BARLOW v. COLLINS

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Argument of Harold Edgar

Chief Justice Warren E. Burger: Barlow and others against Collins.

Mr. Edgar you may proceed whenever you're ready.

Mr. Harold Edgar: Mr. Chief Justice and may it please the Court.

This case concerns the very limited purposes for which assignments may be made of benefits payable under the upland cotton program. More particularly, it concerns whether the Secretary of Agriculture may disregard the considerable legislative and administrative construction of the statutory phrase “making a crop” and redefine it to authorize assignments for the purpose of paying rent for land.

Prior to his change from regulations such assignments were prohibited.

Petitioners, tenant farmers who were hurt by this change and regulation in a manner I shall develop brought suit in the middle of the District of Alabama seeking a declaration that the change in regulation was invalid.

The district judge held that they have no standing to raise the claim and that in any event it was not meritorious.

The Fifth Circuit affirmed on grounds of standing alone, this Court granted certiorari last June.

I'd like to begin by showing how the changed regulation harms petitioners, tenant farmers.

They farm the land in the traditional pattern of the southern cotton farming.

They stay on the same year here at the same land year in and year out, some have been into farm all their lives.

Some 61 years, the shortest named petitioner has been there for over ten years.

What they do is at the beginning of the year they file -- they make a rent note with the landowner and that rent note gives them the right to use the land.

It also normally provides for the landowner paying them small advances to pay for food and clothing while the crop is being grown.

And the landlord for this gets both the right for the rent at the settlement date which is after the crop is in and at that time the advances are repayable with interest.

However since the tenant farmers do not have any credit standing in the community, typically they are forced to buy all of the seed and tools that they need to make their crop from the landowner who extends them credit and charges prices more higher than the prices that are charged in the community at large.

Moreover, interest is payable in that amount.

So it turns out that at the end of the year they have to pay their rent for all their purchases in the interim and typically they have nothing left and this goes on year in year out.

Now the upland cotton program promised a somewhat better deal for petitioners in this position.

What it did is it authorized in Section (d) 13 that payments made under the program could be assigned.

Now the assignment is a right to get credit.

I mean if you can assign and get credit, people know in the community that you have a definite amount of federal funds coming in, you can avoid the necessity of buying all your goods at the stores maintained by landowners and you can thereby perhaps save some of the money, so that at the end of the crop season you will have some money left.

Justice John M. Harlan: You said Mr. Edgar that people know in the community you have a definite amount of funds coming in.

Is it known in advance just what the figure will be?

Mr. Harold Edgar: It is not known exactly in advance what the figure will be.

It depends on the amount of cotton that's grown and the amount of land that's diverted.

The land diverted is a fixed payment and it doesn't -- you're not growing any crop on the land diverted therefore that amount will be fixed.

The actual price support is predictable by knowing the typical yield rate in the area but it's not by any matter of means a definite figure.

Justice John M. Harlan: Exactly predictable.

Mr. Harold Edgar: No, Your Honor.

Now, if they also Your Honor what they can do is that they can start cooperatives as they have done in this case.

Tenant farmers can get together and by pulling their credit resources they can buy and they can purchase at far less than the cost which they are now paying.

Now if the landlord, if they can assign these payments to the landowner for whom they rent, they in effect lose the right -- the credit the Congress intended for them.

The landlord simply insists that the assignment be made as additional security for renting the land.

In that case he cannot use any of the credit that Congress has provided for his benefit and so far as he is concerned, Congress might as well not have passed Section (d) 13 which did grant farmers this right of assignment with a purpose of creating credit for small farmers.

Now, the Government doesn't deny that this is going on.

What happened in this case was that the landowner told petitioners that either they made an assignment or they got of the land and that two or three of them refused to make the assignment, they were thrown off the land, they were deprived of their allotments which are tied to the land and they were left without effectively any source of income.

The others made the assignment but then they were deprived of the credit as I say which Congress provided.

Now the Government -- respondent does not challenge that this is in fact what happens.

It just says that it's not -- the fact that it's happened does not suffice to warrant granting relief.

The question then is whether Congress permitted this result.

A relevant statutory language is found in Section 8 (g) of the Soil Conversation and Domestic Allotment Act which provides for assignments for the purpose of making a crop.

There are three considerations we think that preclude interpretation of this language to encompass assignment for the purpose of paying rent for land.

First, the structure of the statute itself; second, its legislative history demonstrating a congressional intent to use the phrase as a limitation on assignment rights; and finally administrative construction given the term which from the moment of enactment in 1937 has precluded until the change regulation here challenged any assignments for the purpose of paying rent.

First, the structure of the statute, it provides for assignments to secure cash and advances for the purpose of making a crop.

Now only in the theoretical economist's view is securing use of land in advance.

Normally advances mean goods that are supplied to you on credit, so the language of the statute does not seem to be looking to assignments for the purpose of paying land rent.

Secondly the legislative history, we suggest of the Soil Conversation and Domestic Allotment Act confirms that approach.

The Act was passed as a compromise provision as an amendment report by a Conference Committee.

The House Bill permitted assignments for all purposes but only to landowners.

The Bill was twice introduced in the Senate, a broader assignment bill permitting assignments to anyone and the Senate refused to pass it because it provided insufficient protection for tenant farmers from being forced or from being -- either by their economic circumstances or their own lack of prudence from making inadvisable assignments.

So the Senate rejected the Bill twice.

In Conference Committee the Bill came forth but it came forth limited by these provisions that are designed to protect.

One of those protections is the limitation of the purpose of assignments to making a crop and making a crop is not a term of common usage.

It's also a technical agricultural term and we believe—

Justice John M. Harlan: If I could ask a question.

Isn't the only question here now at this stage is the question standing to raise this question?

Mr. Harold Edgar: Well, Your Honor I have planned to deal with the standing question at the end of my argument but let me --

Justice John M. Harlan: Isn't that what was decided by the lower board that there was no standing?

Mr. Harold Edgar: Well the lower court also intimated its views on the merit but yes its specific holding was that there was --

Justice John M. Harlan: So it has not decided the merits?

Mr. Harold Edgar: No Your Honor, not expressly.

I will turn then to the standing question.

Justice John M. Harlan: Well my point is this is a matter that's all before us.

Mr. Harold Edgar: Well, Your Honor we believe that a decision on the entire case is appropriate in this Court.

The standing question and the question on the merits are very closely linked.

Justice John M. Harlan: Well, naturally you like to have it but I still ask whether the only issues -- the only question that decided on the lower court was standing.

Mr. Harold Edgar: The only -- yes, Your Honor the only --

Justice John M. Harlan: Therefore I would assume that you disagree with lower court and there are no standings involved and you have already told that.

Merits will go back to the lower court for determination.

Mr. Harold Edgar: Mr. Justice Harlan, I think --

Justice John M. Harlan: If the court decided them then the Court of Appeals did it.

Mr. Harold Edgar: I think it's fair to say that the Court of Appeals strongly indicated its view on the merits as respondent noted and in our view that the questions are so close that it doesn't want remanding for the purpose of -- and the Court of Appeals decision.

Chief Justice Warren E. Burger: Though we note we review intonations, we only review holdings counsel, so you'd better address yourself to the standing questions.

Mr. Harold Edgar: Yes, Your Honor.

We believe that the Fifth Circuit decision was simply -- was erroneous in denying standing in this case.

We believe that the source of confusion there was that they analogized this case to the case of the competitive interloper.

Most of the cases that have raised severe standing problems in this Court are those who are persons who is not -- whose conduct is in no way described by a statute challenges the action of someone else who is under some form of statutory limitation and urges that the statutory limitations that govern the other persons conduct are not being carried out.

This is not such a case at all, for example if the Secretary of Agriculture had instead of expanding the purposes for which assignments might have been made, might be made.

If he had simply said no assignments shall be made at all, it seems that the petitioners are surely entitled to come to court and challenge his construction of his duties under the statute and simply saying that it will not be -- the statute will not be given effect and there's no -- from the point of view of standing, doesn't seem to us that there's any difference if he is cutting back power to assign or expanding where it is clear that the purposes that the congressional reasons which underlay the imposition of the restrictions on standing were precisely to benefit tenant farmers.

In the same way that settler of a spendthrift trust imposes the limits on his spendthrift trust to protect the beneficiary against his unwise judgment.

Surely for example, just as a matter of common law, the analogue, the common law, an interest protected at common law the strictest standard that this Court has ever used in standing cases.

Any trustee who informed the beneficiary of spendthrift trust that he was simply going to disregard the terms of the trust the beneficiary would have standing to seek removal of the trust and we suggest that even under the common law right analogue that this case -- there is standing in this case.

There is also clearly standing under this court's holding in Hardin.

The Hardin case two terms ago, there the court said that there was standing.

Standing did exist when a person was a member of a class whose interest Congress had sought to protect.

Now as we say the legislative history of Section 8 (g) is clear.

It emerges as an assignment -- broad assignment provision, the senate rejects it precisely because it is too broad and it manages to get approved with narrow limitations on the purposes for which assignments may be made.

That is the only grounds upon which the approval, the congressional approval was granted.

So we think in light of that it's clear that these tenant farmers are within the class that Congress had intended to protect.

Furthermore, that is that conclusion is particularly strong, seems particularly mandated, in so far as this Court has often said that there ought to be a presumption that administrative action is judicially reviewable.

Now no one else can have standing in this case but petitioners.

In other words a landowner who is harmed, who thought himself harmed would have no standing to raise the claim pressed here in.

These plaintiffs are the only ones who do and it's proper in light of the presumption in favor of judicial review that standing be conferred on those who are adversely affected in fact and that is, of course the constitutional minimum but there is no question here that these parties or these petitioners are adversely affected in the fact.

They’ve been -- some of them have been thrown off the land, they've been working all their lives and that we think compels the conclusion that standing is present.

Justice Byron R. White: Do you employ against on the data process engaged in case?

Mr. Harold Edgar: No, Your Honor.

I've read the Government's brief but I was not here yesterday.

Your Honor, I'd like to return to the question of making a crop and what it may permissibly mean.

As the term is not one of the broad general usage it is not as the government -- respondent suggests a synonym for current farming cause.

It had a long meaning confirmed by agricultural dictionaries that it refers to producing crops, it refers to harvesting, to sowing a seed.

It does not refer to the rental of land.

Now this interpretation we think is confirmed by the fact that within nine days after the Act was passed the Secretary of Agriculture issued regulations expressly forbidding any assignments for the purpose of paying rent for land.

This was immediately after the enactment of the statute.

Now he was undoubtedly informed as to what Congress’ purpose had been, he saw the potential risk in permitting land owners to simply you surf the credit that would have been provided for tenant farmers by forcing them to assign and he said it could not be done.

Now the same risk is present today and as we say respondent does not challenge the fact that the effect of permitting assignments to pay rent is to take the credit the Congress provided away from the tenant farmer.

Now the question becomes what effect this has under the new Act, Section (d) 13 which as we say is the provision enacted in 1965 which incorporates by reference the prior law.

Now that new Act is also pervaded with -- has several protections for small farmers in it.

Section (d) 10 of the act expressly authorizes and commands the Secretary to issue regulations to protect the interest of small tenant farmers and sharecroppers.

So, it can't be said that this purpose which underlay the 1937 Act has somehow that Congress is of the view that it's no longer important.

It is important.

Justice Byron R. White: You say the Act instructs the Secretary to issue regulations to protect the farmer?

Mr. Harold Edgar: Yes, Your Honor, well it --

Justice Byron R. White: Where is that?

That ten Section what?

Mr. Harold Edgar: It's Section 7 U.S.C. 144 d (10) Your Honor which is Section 103 (d) 10 of the 1949 Agricultural Act.

Justice Byron R. White: So I take it then we have the Secretary responding by issuing what he thought was a regulation to protect the interest of the attendant farmer.

And that in his judgment it was necessary in order to help the farmer make a crop to permit assignments for cash rent as well as other cause.

Mr. Harold Edgar: Mr. Justice White, we don't think that construction of what is happened is a likely one.

The reason is --

Justice Byron R. White: Well do you think he was disobeying his duty or --

Mr. Harold Edgar: I think he was just --

Justice Byron R. White: He thought at least that was -- to help the tenant farmers I take it.

Is that right or not?

Mr. Harold Edgar: I -- we would not accept that Your Honor for this reason.

First of all, for most farmers, it does not --

Justice Byron R. White: So he disobeyed his duty and he issued a regulation to hurt them?

Mr. Harold Edgar: No, this regulation Your Honor is not issued pursuant -- the regulations we are challenging are not issued pursuant to Section (d) 10.

This are not part of those regulations, they are rather regulations that are issued under Section (d) 13.

What the Secretary has done in our view is he has issued regulations in part protective of tenant farmers under (d) 10.

He has redefined the term “making a crop” in a way which prejudices severely tenant farmers for the benefit of landowners and does very little good for the rest of the farming population.

Now the people who simply own land obviously do not have to assign for the purpose of paying rent.

The average rental value of cotton land is between one-third, at least in Alabama between one-third and one-half the value of the crop.

So, even those farmers who do rent land are in no need of the right to assign for the purpose of paying rent.

What they can do is they can use the assignment to purchase the seeds, the tools, the other things that they need which are as large, in fact larger portion of the ultimate crop value and use whatever resources they are now expending to get those goods for the purpose of paying their rent if they are dealing with a landowner who will not -- who will simply refuse to accept a rent except on a pay now basis.

Now if that were -- if the Secretary’s purpose were to merely to help other farmers, he could have prevented the harm that is done here simply by issuing a regulation under Section (d) 10 which would say that even though assignments can be made for purpose of making cash rent, no landowner can kick a tenant -- can remove a tenant from the farm who refuses to make the assignment.

Now if the only purpose which underlay to change definition of making a crop was to facilitate financing for farmers as a whole, this particular lawsuit could have been avoided by a protective regulation issue pursuant to Section (d) 10.

Unknown Speaker: I take it that the Secretary probably thought he was (Inaudible)?

Mr. Harold Edgar: Your Honor, we do not know what are the reasons underlying the Secretary's change of regulation were -- were simply they're not issued after any formal proceeding and they are not issued with any explanation.

In part it may be that landowners have been hurt somewhat by the new Act to the extent that the land -- to the extent that the tenant farmers can avoid the whole structure of rent notes, advances, credit from the landowner's farm.

They are going to be losing income and we simply do not know whether that was a motivating factor behind the Secretary’s action whether it was his view.

A view which we don't think can be supported that it was necessary.

Unknown Speaker: One of the purposes of the Act is to take its plan on elevation?

Mr. Harold Edgar: Yes, it was.

Unknown Speaker: And I suppose landowners -- they are accessible as everyone would like to -- they'd like to infer to landowners to take the rent out of the -- out of tax.

Mr. Harold Edgar: They would like.

At the moment, they are not encouraging that because the cotton years have been very bad for the last three years, so they are no longer insisting upon diversion for the 1969 crop.

Presumably they will again but that is not -- that does not affect the question of assignments.

We don't believe Your Honor the whether or not they are encouraging people to take land out of reduction is not out of cotton production.

It does not affect the question of whether assignments ought to be made, ought to be authorized for the purpose of hanging around.

Unknown Speaker: I was looking for some reason for the Secretary expanding in right of the terms.

You say it was the tenant farmer, how did he do it?

Mr. Harold Edgar: The only -- we think there are two possible --

Unknown Speaker: What are the farmer's rights?

Mr. Harold Edgar: It is we think possible that he did it to facilitate financing for farmers across the board you know all farmers.

It makes it easier I suppose for all farmers to finance their total farming expenditures.

It makes it easy in a limited sense rather than juggling their use of credit --

Unknown Speaker: Well, what is it that this particular part of the regulation just affects people who are renting land, doesn't it?

Mr. Harold Edgar: Yes, Your Honor.

Unknown Speaker: And no one is permitted to assign these payments for the purpose of securing the purchase price land.

Mr. Harold Edgar: No Your Honor, it would only facilitate those --

Unknown Speaker: So why would he -- what reason would he have for including cash rent in the assignment?

Mr. Harold Edgar: We can suppose only two, one is that he was attempting to facilitate financing for farmers who both own land and rent land.

It makes somewhat easier for them if they can assign their payments to secure cash to pay the rent.

This is not in the tenant farm con -- no, not in the tenant farm context.

Now the reason we don't think that was his motivation is that if that's all he wanted to do, he could have protected against this particular abuse of which he was aware.

I mean from Alabama tenant farmers organize presented their claim.

Now he could have protected this abuse simply by issuing a regulation precluding a landowner from removing a tenant from his farm if the tenant refused to make the assignment.

If the only purpose behind the Secretary's action was a facilitated one then the harm here alleged which is a real harm could have been -- could have been taken away, could have been removed very simply.

So it's for that reason that we do not think that this was the underlying the Secretary's action.

Particularly in so far as even those farmers who rent land, who both own land and rent land, can normally juggle their use of the assignment to pay for their crops with their cash.

I mean pay for their land with cash and their seed, livestock, tools and those matters with their assignment money.

I would like to reserve the rest -- if the court please, I would like to reserve the rest for my time for rebuttal.

Chief Justice Warren E. Burger: Very well, very well.

Mr. Strauss.

Argument of Peter L. Strauss

Mr. Peter L. Strauss: Mr. Chief Justice and may it please the Court.

I'd like to start if I may with something in the nature of a counter statement of certain factual propositions that bear on this case and which I think put it in something of a perspective.

First, although I think it was clear from petitioners’ oral presentation and perhaps it had been in their briefs.

It should be clear that what we are talking about is a new program, the 1965 program and not a program which has been running since 1938.

Petitioners have no right to make assignments to their cotton payments except under the 1965 Act.

The right of assignment was new.

They have never used it except under circumstances in which they were permitted to make assignments to pay for cash rent because the regulation that permitted them to make those assignments for that purpose was adopted prior to the first crop year, the crop year of 1966 to which the upland cotton program of 1965 applied.

They have not been able to make assignments at least since commodity payments seized under the 1938 Act and in the very early 1940's.

Now they can do so and terms in which they can do so has not been materially changed since that program began.

The second and really part of the first observation is that there has been no continuity in the administration of assignments provisions generally.

Section 8 (g) was passed in 1938 through 1941, literally hundreds of thousands of assignments were made every year and that year the war began.

It was no longer necessary to make commodity payments in order to secure agricultural prosperity and Congress seized to do so.

The assignment fell dramatically and by 1952 when statistics seized to be kept and when the Secretary of Agriculture went to the Congress and said “I don’t need this statute anymore, wipe it off the books.”

By 1952 only 2,100 assignments were made under that Act in that year.

So that there was an effect a 20-year hiatus between the end of practical importance for Section 8 (g) and the enactment of the 1965 Act which the Government’s position is the only Act in issue in this case and we think that has some substantial bearing on the issues before the court.

The third thing and I think discuss to some extent Mr. Justice White to the questions you were asking is that there has been a radical shift in ten-year pattern even among those who rent the land they farm since 1938.

Now we pointed out in a footnote to our brief, it's on page 32, footnote 22 that in 1935 42% of all farmers were tenants and they farmed 32% of this nations land.

By 1964, their place had been taken by part owners.

Part owners are farmers who own some land and rent other land typically for cash.

In the 1964, part owners outnumbered tenants and they farmed almost four times as much land.

Now at the time that we wrote the brief, I had not been able to find statistics relating to cotton farming and footnotes note that fact.

Since that time, I haven't able to find such statistics on a statewide basis and if the Court please, I should like briefly just to mention the ones which strike me as being significant.

They are from the census figures which are compiled on a statewide basis by the Department of Commerce and something called the United States Census of Agriculture.

In 1964, Census of agriculture for Alabama shows that 33% of the commercial farms in that state raising cotton were operated by part owners and these cotton farms, this 33% of Alabama's cotton farmers who have rent obligations.

These cotton farms held 53% of the States cotton land, that's over half.

On the other hand, cash tenants, the other major group, the only other major group with a cash rent obligation were only 11% of the States commercial cotton farmers and they farmed only 7% of its land.

The figures I'm referring to are derived from numerical figures that appear on pages 64 and 65 of this volume and if the court pleases, I have Xerox copies of these pages which I've already given to counsel and which I will leave with the clerk.

The point is there are over twice as many part owners as cash tenants in 1965 and they farmed over seven times as much cotton land.

One could go on at considerable length but the point is a simple one, petitioners are not facing the changed interpretation of an established program under an old statute in which they have long participated.

They are complaining of the initial interpretation of a new program which was passed and which applies and conditions very different from those which existed when the (Inaudible) bond statute on which it happens to draw was passed.

The assignments statute was in 1965 was not a tenant statute and it's interpretation even as respect assignments to finance the farming cost of cash rent primarily effect others, part owners and not cash tenants.

To get back to the other point of the questions you were asking Justice White regarding well, why has the Secretary done this?

What about the protection of tenants, petitioners who were complaining in the course of their colloquy with you that he had adopted no regulations to provide for the protection of tenants?

This was meant to apply to all farmers with cash rent obligations as a whole.

Of course there are regulations which were adopted for the upland cotton program and precisely in the same time and the same volume of the federal register on the same page, perhaps one or two pages before as the assignment provision.

They are set out on page 46 of our brief and they provide the diversion and price support assignments or payments rather shall not be approved for payment by county committee if the county committee determines among other things that there exists between the landlord and any tenant or sharecropper any lease contract agreement or understanding unfairly exacted or required by the landlord which was entered into an anticipation of participating in the program.

The effect of which is to force the tenant or sharecropper to pay over to the landlord any payment earned by him under the program.

To change the status of any tenant or sharecropper so that to deprive him of any payment or right which he would have otherwise had had under the program to decrease the rent to be paid by the tenant -- to increase rather the payment to be paid by the tenant or to decrease the share of the crop or its proceeds to be received by the sharecropper.

Now of course disagreements could exist, they are not present in the allegations with the legal contentions in this case.

Disagreements could exist as to whether those regulations are sufficient, whether they are properly enforced and obviously I don't believe that that's the case.

Petitioners do and I'm sure that there could be reasonable arguments about the question but what strikes me as being significant to this case is that the petitioners will have no part of those regulations and petitioners will have no part of the Section under which they were adopted 7 U.S.C. 1444 (d) 10 which does specifically provide that the Secretary of Agriculture must provide adequate safeguards to protect the interests of tenants and sharecroppers.

They don't argue for standing under that provision for example, their argument isn't; well now here's a provision that says the Secretary must protect the tenants.

Therefore, we have standing, that's not their argument nor do they argue that way on the merit.

The Secretary has failed to protect them.

Of course, it may be significant that that provision only requires adequate safeguards.

There is a little bit of legislative history which petitioners cite in part -- quote in part in their brief I believe it's at page 20 and 21 of their brief.

Petitioners quote in part a House Report from the soil bank program at page 39 of that report.

They quote the sentence that said “no single problem connected with the proposed soil bank has caused the committee more concern than that of guaranteeing adequate protection of tenants and sharecroppers under the program.”

The next following sentence in the report is as follows “several provisions referring to tenants and sharecroppers had intended to protect their interests while at the same time safeguarding the interests to landlords with scattered throughout the soil bank provisions of the Senate Bill and then several other sentences also in that report carry out the same theme.

Congress is not interested simply and only in the safeguarding the interest of tenants that they realize that landlords have interests too and therefore they provide for adequate protection.

The Secretary has a responsibility adequately to protect the interests of tenants and sharecroppers and --

Unknown Speaker: Do you defend -- are you defending the decision below on standing?

Mr. Peter L. Strauss: Yes, I am.

Unknown Speaker: On the grounds used by the Court of Appeals?

Mr. Peter L. Strauss: No I don't to the extent that -- I think it was made clear in our -- from the beginning of this Court in our opposition to the petition for right of certiorari and in our brief we defend the decision below on standing on Hardin grounds.

We don’t think this case does fall within Hardin.

Unknown Speaker: Do you think there is no statutory indication of any desire of intention to protect tenants as well?

Mr. Peter L. Strauss: Well, Section d (10) does say that there has to be adequate protection for tenants.

Petitioners though do not invoke that Section and I think they don't do so advisably and I would hardly wish to.

I think if -- let me put it this way if that was the Section that they invoked, the question on the merits would be very different.

Petitioners’ case on the merits, their actual complaint depends on their being able to characterize a Section that was passed in 1965.

Unknown Speaker: What Section do you think the assignment regulation was issued under --

Mr. Peter L. Strauss: The assignment regulation was issued under Section (d) 13 of course.

Unknown Speaker: Well (d) 13 just says what? This says that the provision from a certain section fell apart?

Mr. Peter L. Strauss: That's right, which are Section 590 (g) or Section 8 (g) of the 1938 Act.

Unknown Speaker: And the Secretary however has issued a regulation which interprets that Section or which applies it in a way that it hasn't been applied before.

Mr. Peter L. Strauss: Well, I would have to disagree, I think in a formal sense, what you say is true but since that statute went out of lost practical meaning in 1942 and was in effect abandoned by the Secretary in 1952.

Since these regulations were adopted in 1965 immediately following the enactment of the upland cotton program in that year.

Excuse me it was February of 1966, immediately following the adoption of the upland cotton program.

Unknown Speaker: Well let me ask you --

Mr. Peter L. Strauss: We view this as the interpretation of the Upland Cotton Act.

Unknown Speaker: Let me ask you, there's a -- what does the statute -- what is the statute -- why is the statute has to permitting exemptions from the normal and assignment policy?

Mr. Peter L. Strauss: I think the statute was passed in order to facilitate the activities of farmers in financing their expenses.

Unknown Speaker: That too I suppose is the purpose of that Section is to aid in farmers getting financing in their operations.

Mr. Peter L. Strauss: In 1965 particularly, I think Congress was well aware that it was cutting by almost 30% the level of support that farmers were receiving under the Act and they were going to need new finances.

Unknown Speaker: Well now, why would you suggest then that these farmers involved in this case aren't within the group which this Section was intended to benefit?

Mr. Peter L. Strauss: In 1960, -- oh I don't -- I fully admit that they are within the group that this Section was intended to benefit but I have not understood Hardin --

Unknown Speaker: Well being in that group they come in and say that this Section was intended to benefit the farmers.

This Section which (d) 13 applies to this statutory scheme and we think that the regulation issued under that --

Mr. Peter L. Strauss: Failed to benefit us.

Unknown Speaker: Failed to benefit or benefit them badly or frustrate the purpose of the Act, now why doesn't that satisfy Hardin?

Mr. Peter L. Strauss: My understanding of Hardin was that it referred rather specifically not to for that matter this Court's prior cases.

It referred rather specifically not to a simple matter of benefiting but rather an issue of protection.

The language which this Court used in Hardin and I'm quoting from page 6 of the opinion as it appears in volume 390 is that when the particular statutory and the particular statutory provision invoked does reflect the legislative purpose to protect a competitive interests, the injured competitor has standing.

Unknown Speaker: Of course this isn't a competition case.

Mr. Peter L. Strauss: No, this is not a competition case and nor do we contend that Hardin is restricted to competition cases.

We do think however that there is some function to be served and we think we observed that function being served by a limitation in those terms in protection terms in keeping people from injury rather than perhaps in failing to do for with them everything that they think ought to be done for them under a beneficial federal program.

Unknown Speaker: Do you think there is a case of controversy here?

Mr. Peter L. Strauss: Yes, I do and I'm not objecting --

Unknown Speaker: The policy question about standing then, we are really talking about the Hardin type of question.

Mr. Peter L. Strauss: I think we are just talking about a Hardin type of question.

I think what this Court having heard the argument yesterday in -- having heard the argument yesterday in the ADAPSO case.

I went back and did a little homework that perhaps I should have done before.

What this Court said in Stark and Wickard is rather to the point in this regard.

There it had to deal rather expressly with what seems to me just this problem, it's part of the same problem then came up in Abbot, what is the relationship between what this Court has frequently said is the presumption of judicial review on the one hand and standing on the other hand.

And the Court was quite careful in that case as it was I think in Abbot itself to distinguish between the two situations to say that before we get to the question of judicial review or reviewability, we have to resolve standing and then it went on to say that the Court was very far from assuming that the courts are charged more than administrators or legislators with the protection of the rights of the people.

Under Article 3, Congress established courts to adjudicate cases and controversies as to claims of infringement of individual right.

That is that there must be -- there must be some special claims on nexus as the Court has put it in Jenkins versus McKeithen just last term.

I have that here some place.

The Court said that something more than an adversary interest is necessary to confer standing.

There must be some connection between the official action challenged and some legally protected interest of the party challenging that action.

Again protection, I can't imagine that those words are casually used.

In every one of these courts, this Court's opinion has also been an emphasis on specificity and I can't imagine that either was inadvertent.

It seems to me that the Court has always restrained itself from the position of appearing to be a general overseer of the conduct of government business.

Unknown Speaker: (Inaudible)

Mr. Peter L. Strauss: No, that’s certainly true.

Unknown Speaker: (Inaudible)

Mr. Peter L. Strauss: Well, maybe I should start with another.

If I may, this is in response to your question I think.

It is quite clear isn't it that if petitioners or rather if you are right.

If the directions of your questions are leading, it won't be only petitioners that have standing.

It will be every farmer in the country, every cotton farmer in the country who is displeased by something the Secretary of Agriculture has done.

Who thinks that he ought to have gotten more, that the level of benefits set off to have been a little higher who will have standing to come in because it's quite clear that in a benefit context this statute is meant to benefit.

Not just tenants and deep principally people other than tenants.

Even among those who pay cash rent principally people other than tenant, so that were not talking about just tenants versus nobody.

Unknown Speaker: Assume the Secretary had at the bar had left the regulations just like they were before.

Mr. Peter L. Strauss: All right.

Unknown Speaker: And the tenant came in and said “Gee!

Mr. Secretary I just can't stay on my land because the landlord wants security and I want to give it to him but you say I can't have it.

I can assign it now.

We think -- I would like to challenge your interpretation of this Section.”

Mr. Peter L. Strauss: Well, in fact if that had happened, I assume that the much more numerous part owners would have been arguing just that way.

Unknown Speaker: Well, I know but how about standing?

Mr. Peter L. Strauss: I think they have no standing.

It seemed --

Unknown Speaker: You have to go -- you would both ways on it and you have to.

Mr. Peter L. Strauss: Oh certainly!

We certainly do.

It's either all farmers or none and we think in that situation the choice is none that this Court's cases have traditionally and consistently limited standing to the area of protection and not simple benefits.

And indeed we don't understand petitioners to argue differently because they seem to be arguing that either tenants will be able to get review or no one.

Unknown Speaker: Or they might have been more understanding -- I recognize --

Mr. Peter L. Strauss: I think --

Unknown Speaker: The relationship between the two obviously of your understanding as to their relationships.

Mr. Peter L. Strauss: The court did grant certiorari on the question of the merits when it was merited in the petition and I don't think I would suggest that it was improper for it to do so.

Unknown Speaker: Well, did the lower court decide anything more than the standing case?

Mr. Peter L. Strauss: I don't think so although again I would have to agree with the petitioners that it certainly gave some very broad hint about where it's fused were.

Unknown Speaker: Is that what certainly Judge Turtle's consent, for example was solely understanding the question?

Mr. Peter L. Strauss: No, he did go on to reach the merits but the majority did decide in terms of decision.

It decided only that the standing issue.

Indeed in Abbot Laboratory for example the court remanded in addition to the cases which were cited in our brief.

Excuse me?

Unknown Speaker: Abbot Laboratories was not on standing.

Mr. Peter L. Strauss: No but it was a similar kind of situation in which jurisprudential questions were raised.

Unknown Speaker: Their answer is not standing.

Their right was not standing.

Mr. Peter L. Strauss: That's right but at the conclusion of its opinion it did then refuse to pass on the merits although it had been pressed to do so in the merits.

Unknown Speaker: To my understanding of the merits of course are always declined.

Mr. Peter L. Strauss: Certainly true, certainly true.

Unknown Speaker: Have both questions been argued by both parties?

Mr. Peter L. Strauss: Both questions have been argued by both parties in this Court, that's right.

I don't think that there is any jurisdictional objection to the Court passing on the merits but we do think that ordinary sound practice of the court is to wait for the Court of Appeals to present its view.

Unknown Speaker: Yes, well there is no jurisdiction with that.

Mr. Peter L. Strauss: Well, if I may for a moment go back to this because I think it --this matter is particularly revealing that we have in Section (d) 10.

A Section which said “now the secretary must protect the tenants” and yet petitioners aren't claiming standing under the Section.

They say their standing as under Section (d) 13 because Section (d) 13 was meant to protect the tenants.

Why do they that?

There is a reason for that it seems to us, if they relied on the express obligation of the Secretary instead of what they think is implicit in the assignment provision as the basis of either of standing or the merits.

Then they would have to face up to the facts that the assignment provisions are not for tenants or cash tenants alone but for all cotton farmers.

And facing up to that fact, the judgment whether assignments to finance the farming expense of cash rent are proper is much more difficult than it appears on the petitioner's view of the statute as meant for tenants alone.

Petitioners say in their reply brief that the issue here is whether landlord shall be allowed unrestricted access to the credit generated by federal benefit.

We fully agree that the tenants -- the landlords are not to be allowed unrestricted access.

Their access is restricted and really the question here is by how much?

Perhaps the regulations which exist are inadequate, we don't think so and petitioners don't claim it.

If they did, we would have to agree that they were properly here, instead they seek to block even properly restricted access by landlords to assignments with the effect that not only tenants would be unable to make them but also the much more numerous class of part owners who may equally need this financing tool and who are not present on the scene in 1938 when Section 8 (g) was passed and such numbers or such forward.

Justice Hugo L. Black: If this people do not have standing, who in your judgment would?

Mr. Peter L. Strauss: Well, as I was explaining to Justice White Mr. Justice Black, it seems to me that the choice of this court faces -- is in part not a choice between this people and no one but all farmers and no one unless this Court is able to find that there is a legally protected interest, distinct from a simple intent to benefit.

Now if this court finds from the legislative history that Congress meant to protect the interests of tenants.

Specific interest of tenants in a manner related to this statute as the court has repeatedly said must be done in Jenkins versus McKeithen and Flast versus Cohen and its other cases.

If there is a legally protected interest which is related in that way, well of course petitioners have standing.

That is the issue here.

If they have no legally protected interest, if all they have is a simple claim to a benefit under the Act then they have no more standing than any other farmer.

It's either all farmers or none and I think that in the obvious the Government's is the Government’s position on the issue.

And I would also say to go back to Abbot Laboratory versus Gardner, it does seem to me that this question -- well if this people can't challenge it, who can?

That question involve the issue of reviewability and the issue of reviewability it seems to us in Abbot, in Stark, this Court has very carefully distinguished from the issue of standing as the question you get to once, you decide that there is a legally protected interest.

Then since the interest is there, since it is protected, since it's meant to be honored by Congress then of course there is some presumption that Congress would want those people to be able to go into court and enforce it.

But you have to decide first that the interest is a protected one.

Justice William O. Douglas: Is the second question on the merit?

Mr. Peter L. Strauss: What I've just been speaking too?

Justice William O. Douglas: Yes.

Mr. Peter L. Strauss: No, I think its part of the standing issue that is I'm trying to persuade the court that the language in Abbot is really not language which ought to be applied in the standing issue.

It is not relevant to the question at stand.

Justice William O. Douglas: It was intended to protect them according to your judgment?

Mr. Peter L. Strauss: Excuse me?

Justice William O. Douglas: By standing it could defend upon whether the act was intended to protect them?

Mr. Peter L. Strauss: That's right and was intended to protect them in around a very specific way.

Justice William O. Douglas: Well that's the issue on the merit.

Mr. Peter L. Strauss: No, I think that's the issue on standing.

Justice William O. Douglas: To a certain extent in another question, have you shown the merits also?

Mr. Peter L. Strauss: It is also a part of the issue on the merits.

Obviously this are closely intertwined but as in Hardin for example, the court found that on the standing issue was the TBA act intended to protect certain competitors and the court found that it was in the abstract as a legal proposition.

Then on the facts of the case resoling disputed factual issues on the merits, it went ahead and it said well but nonetheless.

This treatment of this particular issue doesn't depend on the statute; well I don't think there's any necessity to argue the merits of length.

I think our arguments are fairly adequately set out in the briefs and implicit in what I have said before.

I just want to make a couple of very quick points.

First, that we are dealing here, the Government insist were dealing here with a 1965 statute not with a 1938 statute and in connection with that -- well this Court may decide that making a crop means this or that, we think that the reasons we've set out on the brief that it very comfortably accommodates what the Secretary has done but of course the court could disagree --

Justice William O. Douglas: You're arguing with the merits.

Mr. Peter L. Strauss: Just very briefly Mr. Justice Douglas.

Justice William O. Douglas: We didn't allow the petitioner to argue the merits very briefly.

Mr. Peter L. Strauss: Well if you wish me to stop, I will --

Justice William O. Douglas: Well you think -- No, I don't care.

Do you think the merits are here?

Mr. Peter L. Strauss: I think the Court could reach the merits if it wish too although its sound practice has not been not to do so under any circumstances.

Unknown Speaker: Why should we (Inaudible)?

Mr. Peter L. Strauss: I don't see any reason in this case to do so.

Unknown Speaker: I would prefer if you would say something about the merits if you want to argue.

Mr. Peter L. Strauss: The points I -- the point I wanted to make was only this while we think what the Secretary has done comes within the comfortable meaning of financing the expenses of making a crop.

Expensive rent is an obvious expense of producing cotton or any other crop.

Perhaps this Court will disagree that would do the Government and the law will particularly deserve it but petitioners make an argument that it seems to us to be quite dangerous.

They say because the Secretary interpreted this obscure provision of the law in 1938 under another program which went out of practical existence in 1942.

In a particular way now we can't reinterpret that provision at all and we think that that proposition that Congress in 1965 despite legislative history which says absolutely nothing about the meaning of this provision.

About how it was applied, about whether it was meant to protect tenants or not that if this Court was to say that nonetheless it's reenactment of the statute in 1965 froze into law the prior administrative interpretation.

That would be an extraordinarily harmful thing and this Court remarked does not particularly to our advantage as it was in the Leary case last term.

In connection with Leary, there was an argument, the Government made the argument that the interpretation of the Bureau of Narcotics which had existed for so long ought to be confirmed because there was legislative reenactment at a subsequent time and much less sweeping propositions and since it didn't in any way foreclose the possibility of future change.

And this Court responded the scanty legislative history accompanying the reenactment gives no hint that Congress knew of this particular regulations much less the indirect impact now scribed to them.

That language is peculiarly applicable here and it seems to us to say on the basis of the very scanty legislative history that it exists that the prior interpretation was frozen into law would have all kinds of untoward consequences for future administrative law cases bearing no resemblance at all the facts of this case.

The Government submits that the judgment below should be affirmed.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Strauss.

Mr. Edgar you have about six minutes left.

Rebuttal of Harold Edgar

Mr. Harold Edgar: Your Honor I'd like to first speak a bit about whether a remand would be appropriate in this case under both the Governments’ discussion of standing and on our discussion of standing.

The plaintiff -- the purpose of the assignment provision is put very much in question in order to decide whether standing exists.

In view of the necessity of elucidating the purposes underlying the law that there is very closely on the scope of the discretion that the Secretary has in changing interpretations of the meaning of the statutory language that are well settled, that have been well settled.

And in view of that fact, it would seem to us that in to remand the question once that task had been done in this Court to remand that question to the courts below would be inappropriate.

Unknown Speaker: Once you carry that it's the logical conclusion, what you do is wipe out standing as a fact of it all.

You might as well reach the merits on all this case.

Mr. Harold Edgar: No Your Honor, I don't think -- may I give an example?

For example suppose a landowner sued under Section 8 (g) regardless of whether that deals with tenants with all farmers, it doesn't deal with the interest of landowners.

Standing would be very appropriate means of disposing of that case.

The land owners simply lack standing to come in and sue under this particular act and it involves no -- it involves the consideration of the purposes underlying the Act of course but it does not require you to reach the scope of discretion that the Secretary has to define the terms of the language at all.

Unknown Speaker: Well, of course that's a very easy case, don't you?

Justice Thurgood Marshall: What about the cash tenant?

Mr. Harold Edgar: I beg your pardon, Your Honor?

Justice Thurgood Marshall: What about the cash tenant, who pays his rent in cash?

Mr. Harold Edgar: Well these are petitioners Your Honor, our cash tenants.

Justice Thurgood Marshall: What about the tenant farmers?

Mr. Harold Edgar: The tenant farmers here Your Honor are those who pay rent in cash.

The Secretary has not although taking the new view that land -- payments for land are part of making a crop does not permit such assignments to be made by share properties.

Justice Thurgood Marshall: So you've got both groups?

Mr. Harold Edgar: No, we have the cash tenants.

Justice Thurgood Marshall: Well what about the other kind?

Mr. Harold Edgar: They are not -- they have not been harmed by the change in the definition although the inconsistency of the Secretary's approach is made manifest by the fact that he alters it for purposes of paying cash rent yet not --

Justice Thurgood Marshall: Well, that's my point, if it's inconsistent or in error, does that give you standing?

If it's inconsistent or in error, does that give you standing?

Mr. Harold Edgar: Mere error is not -- does not give you standing, no Your Honor.

Justice Thurgood Marshall: So we don't need to get to the merits uphold, do we?

Mr. Harold Edgar: Well, the point -- my point is Your Honor that the merits, the question on the merits is very closely interrelated to the purposes of the Act to the extent that the Act does have a purpose to protect to that extent that Secretary's interpretation of the statutory language which removes protection is less permissible.

It's impermissible as the plainness of the congressional intent becomes what is found.

Justice Thurgood Marshall: What is the question on the merits?

Mr. Harold Edgar: The question on the merits is whether the term making a crop, the term that has agricultural long legislative history but it does not mean paying rent for land whether the Secretary can redefine it in order to permit tenant farmers to pay.

Unknown Speaker: Does that require any evidence?

The determination of that point?

Mr. Harold Edgar: No.

No, Your Honor it does not.

Unknown Speaker: What is it?

Is it purely a question of statutory construction?

Mr. Harold Edgar: Purely a question of statutory construction.

Unknown Speaker: How long has this case already been pending?

Mr. Harold Edgar: Approximately three-and-a-half years Your Honor.

Unknown Speaker: Two-and-a-half years?

Mr. Harold Edgar: Three.

Unknown Speaker: Three-and-a-half years.

Mr. Harold Edgar: I may be mistaken, I believe it's three.

It was 66 it was brought --

Unknown Speaker: How long would it probably take if it went back to find it's way back to you?

Mr. Harold Edgar: Your Honor it would probably go back to the Fifth Circuit which has already intimated its views.

I don't know what the timing is, I would think of another year at least before the Fifth Circuit would rule on the remand and the case might be heard again in this Court but I'm not aware of the docket so that will be Fifth Circuit.

Unknown Speaker: That was truly a legal decision including the words, the language of the Act?

Mr. Harold Edgar: Yes, Your Honor.

Unknown Speaker: But you advise no evidence?

Mr. Harold Edgar: Yes, Your Honor.

Sorry sir.

Now on this point we are aware that the Secretary has issued regulations under Section (d) 10.

The point is however that the Secretary as the Government made clear in its opposition has construed this regulations not to bar a landowner from removing a tenant from the land when he does not assign his credit over.

That is the precise point at issue respondents brief in opposition says that the Secretary of Agriculture informs the Government that that is the way those regulations have been construed that this harm can continue.

Now the problem of protecting tenant farmers --

Unknown Speaker: I suppose we weren't committed to authority of writ (Inaudible).

Mr. Harold Edgar: No, Your Honor he cannot, this is the point which I wish to develop.

There is a network of federal regulations precluding land owners from terminating the tenancy of their tenants.

Under the D10 regulations, he is not permitted to simply go to his tenant and say “I'm sorry, if you can't pay your money I don't want to rent you anymore, I'm raising the rent” he cannot raise the rent, he cannot alter the terms of the—well there are limitations on his ability to alter the terms of the statutes.

Unknown Speaker: You have taken him off for non-payment?

Mr. Harold Edgar: If he can.

If he does not pay at settlement date he can take them off but only on that day and there is this long pattern of protecting federal benefits against user payment by landowners and this credit right is right to assign is another form of federal benefit.

It is being -- the Secretary is permitting its use of pay by it's -- by it's -- by his impermissible redefinition of the term making a crop.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Edgar.

Thank you for your submission.

Thank you Mr. Strauss.

The case is submitted.