TRAIN v. CITY OF NEW YORK
Legal provision: Federal Water Pollution Control (Clean Water), plus amendments
Argument of Robert H. Bork
Chief Justice Warren E. Burger: We'll hear arguments next in 73-1377, Train against New York and Train against Campaign Clean Water.
Mr. Solicitor General, you may proceed whenever you are ready.
Mr. Robert H. Bork: Mr. Chief Justice, may it please the Court.
These cases are here on writs of certiorari to the Court of Appeals for the District of Columbia and the Fourth Circuit.
Each is in action seeking to compel the administrator of the Environmental of Protection Agency to increase allotments he has made under Title II of the Water Pollution Control Act Amendments.
I had best described the statutory process which is deeply involved in this case.
This act provides federal funds to pay 75% of the cost to states and municipalities of the construction of sewage treatment facilities and the act -- the funding process the operations several stages.
First, Congress must enact an authorization for appropriations of a certain size.
Now, that is not an appropriation.
It's more of a statement of intent to appropriate on a later date and that begins this process.
Second, the administrator of the Environmental Protection Agency working within that authorization allots various amounts to the states on a formula suggested by the Act.
When that has been done, when the allotments has been made, the states make proposals for construction of water treatment facilities, sewage treatment facilities that they think are most pressing, and if these are approved, thus meeting with criteria, that approval by the administrator constitutes an obligation of the United States.
And all that remained to be done is for the grantees to make the expenditures, Congress appropriates the funds and they are paid over to the grantees.
Now, the issues we have today are two, and the first is whether the President acting through the administrator has discretion at the second stage of this process, that is the allotment stage, to allot the states amounts less than Congress has authorized to be appropriated.
And second, if he has such discretion, whether that discretion is reviewable in the courts.
The Court of Appeals for the District of Columbia held that there is no discretion at the allotment stage but there is some discretion at the obligation stage.
The approval of plant, the Fourth Circuit assumed that there was discretion at the allotment stage, because the respondents, plaintiffs below in that case conceded it, and the District Court had found that and the Court of Appeals remanded for a trial de novo of whether assuming the discretion, the administrator had abused it or exceeded it.
In a word, I think everybody agrees in this case that the President has discretion at some stage of this process.
Now, I would like to make it very clear to at the outset to remove any element of drama from this case.
We are not here asserting --
Justice Potter Stewart: Did you say drama or grammar?
Mr. Robert H. Bork: I may eliminate both Mr. Justice Stewart but I meant to say drama.
Justice Potter Stewart: D-R-A-M-A.
Mr. Robert H. Bork: Correct.
I will try not to eliminate grammar as I go along.
We are not asserting any constitutional power of the President in this case.
There is here no element of confrontation between the President and the Congress.
We rely entirely upon the discretion we think Congress gave the President intentionally, in the Act, and in that we are supported by respondent's concessions that some discretion is built into the Act.
Although they do not agree with us or indeed sometimes with each other, about how or when it's to be exercised.
Justice Potter Stewart: That the case in other words, everybody seems to agree as they involve the matter of statutory construction.
Mr. Robert H. Bork: That is correct, Mr. Justice Stewart.
Justice Potter Stewart: Rather than any kind of constitutional question.
Mr. Robert H. Bork: That is correct.
Justice Potter Stewart: Implicit or explicit?
Mr. Robert H. Bork: That is correct.
We are making no constitutional argument.
I should also say that these statutes under which impoundment has occurred in the past, in many of which I think impoundment is no longer occurring, common of wide variety of shapes and forms and processes, so that these cases today before us are quite unlikely to settle the issue of withholding of funds under other statutory programs.
This statute is unique.
Well, to get to these cases, Congress authorized the appropriation of not to exceed $5 billion for fiscal year in 1973, and $6 billion for fiscal year 1974.
The administrator of EPA at the direction of the President allotted for those years respectively two and three billion dollars.
A total allotment of $5 billion as opposed to the $11 billion authorized for appropriation.
Now, I should also say that the remainder, the administration position is that the remainder of these allotments will be made in the future.
So, that this case concerns a rate of spending, rather than the total amount to be spent on this program over time.
I would address first the issue raised by the City of New York which is the stage of the process at which discretion maybe exercised and then I will discuss the issue raised by Campaign Clean Water, the case in the Fourth Circuit, the scope and reviewability of the discretion.
When it gets clearer that the President's discretion is to be authorized at the allotment stage, and we have for that the rather mundane reason that that is what the statute says, and that we agree with Campaign Clean Water on that point and disagree with the City of New York on that point.
Now, City of New York makes much plain of the fact that in the debates, various Congressmen who were engaged at that point in stressing the legitimacy of the President's impoundment of funds under the statute.
However, in stressing that discretion, that the President was to given used words like discretion overspending, discretion over obligation and it's almost entirely from that slim foundation, that the respondent tries to argue that Congress deliberately ruled out discretion at the allotment stage.
We think that in the face of the explicit language of the statute, that argument is altogether too thin.
And it's worth noting I think that this is a very natural way to talk about in impoundment issues.
Indeed, public discussion generally talks about the President's ability to control spending, even when under a technical statute, the discretion is authorized at some other stage than the actual payment of the money.
And that's an accurate way to speak because when the President directs the administrator not to allot the full sum, the result of course is a deferral of obligation and deferral of spending as well, and that's what the discretion is all about, ultimately the federal spending.
So, naturally Congressmen talked about it in those terms.
And we can't place all that much weight on their failure in these debates constantly to use the quite technical terms of a very noble process, which this Act contains.
What we do know, unmistakably from the debate in the legislative history is that Congress intended to give the President discretion and that it did that, its vehicle for giving discretion, where the amendments proposed by Representative Harsha, who was a chief sponsor of the Act.
And those amendments were proposed to Sections 205(a) and Section 207.
Now, Section 205(a) which was amended for this purpose, is an allotment provision, and it's plain to us therefore that the discretion given is in making allotments.
As originally drafted, the House Bill said this, in Section 205(a), the allotment provision, it said, “All sums to be appropriated pursuant to Section 207th shall be allotted by the administrator.”
And Section 207 released authorized the appropriation of the amounts.
Now, that language about allotment sounded quite mandatory to some.
All sums authorized shall be allotted.
Explicitly, to make sure that the President had discretion, the Harsha Amendment changed that, the word all was deleted, and from Section 205(a), so that the administrator was merely told to allot the sums authorized under Section 207.
And Section 207, in turn, was amended, to read that there was authorized that to be appropriated and then they added the words “not to exceed, five and six billion for the two years” in question here.
Now, if the intention, as the City of New York contends were to place discretion at the obligation stage, then as the other respondent points out, it will be quite extraordinary for Congress to choose to amend those allotment sections, they would've amended Section 203, which is the -- which is the obligation which provides to the obligation process to say that he need not obligate more than -- you may not obligate more than but may obligate less.
So, when we're faced with the statute, which provides discretion, provides discretion in the allotment provision, and when those amendments are known to have been intended to provide that discretion, for legislative history, I fail to see how the President, or the administrator, could responsively have ignored that text, allotted all the sums and then begun to exercise discretion at the obligation stage.
If the President had done that, I think the City of New York would've sued this.
I think they might we have contended that discretion is largely to the allotment stage, and once the allotments are made, and the rest is ministerial and that they are entitled to the funds, and I think they would have had a better argument than the one they have now.
Justice Potter Stewart: In vetoing the bill originally that the –- was there a veto message?
Mr. Robert H. Bork: There was a veto message which related to the objection to the level of spending, Mr. Justice Stewart.
Justice Potter Stewart: Anything in the veto message bearing on the issues here?
Mr. Robert H. Bork: I think not, he does refer to the fact that he' worried about federal spending, but I think that was not -- the President seems worried about federal spending and the effect on inflation and taxes and so forth.
I do not recall, let me be corrected if I'm wrong, I do not recall if there's anything that addresses this kind of technical question on that what stage.
Justice Potter Stewart: No, I'm was going to ask that his discretion at this and with regards to that.
Mr. Robert H. Bork: I do not recall it this -- as to a discretion yes, he thought that he didn't have enough in the veto message and indeed in overwriting the veto, Congress, a number of Congressmen explicitly said that it's too bad he thought that because he's plainly does have discretion.
But that goes less to the -- that goes to the existence and width of the discretion, rather than the stage at which it must be exercised.
And I should say this, that as a practical matter, the Government has very little interest in which way in at what stage the discretion must be exercised.
We brought this case up, the City of New York case, because if we acquiesce in the judgment that there was no discretion at the allotment stage, we thought we were quite likely be would sought it by another lawsuit in which the Court said, any discretion you had was at the allotment stage, now you must obligate, and so although everybody agree if he has discretion in there someplace, we would've lost it.
Justice Harry A. Blackmun: I suppose General Bork that so long as there is discretion at some stage, the ability of the states to plan will be affected.
Mr. Robert H. Bork: That is correct.
Justice Harry A. Blackmun: Whether it's at one or the other, so that an argument based entirely on ability to plan runs into that obstacle.
Mr. Robert H. Bork: Well, Mr. Justice Blackmun, it seems to me that there are a variety of arguments in these briefs, which are quite persuasive until you realize that they are all arguments that Congress should have written a different statute.
And that if the statute is applied as written, their ability to plan or something else will be harmed, that may be true.
But I think the ability to plan is such in the lead time and these things is fairly extensive, they can plan from the allotments given.
Justice Byron R. White: But if something isn't allotted here about the plan.
Mr. Robert H. Bork: That is correct, they are not about to commit themselves which is this.
Justice Byron R. White: Yes and whether they are about to plan anything, except beyond whatever is allotted to.
Mr. Robert H. Bork: That is correct on the other hand Mr. --
Justice Byron R. White: If they have allotted something they may plan knowing perfectly will, they are going to have to submit the plans that will get by.
Mr. Robert H. Bork: Well, I think they are now able to begin to plan in that sense.
Justice Byron R. White: But not beyond their allotment.
Mr. Robert H. Bork: To plan, yes Mr. Justice White, maybe were using the words in a different sense, but the administration construes -- construes the statute to require that all of the sums be expended and there is now under discussion of variety of ways of timing for the release of these funds they may state that no final decision has been made, so that planning for what -– where will we use this funds and in what way when they become available could go on now.
Obviously, it would be unwise to enter into commitments, contractual commitments now for the unalloted funds.
Justice Harry A. Blackmun: What happens if the Congress ultimately refuses to appropriate?
Mr. Robert H. Bork: Well, I would hesitate to give a firm answer to that Mr. Justice Blackmun because we might have a suit in the Court of Claims which we might have to defend.
I don't envision Congress having encouraged states by saying, we will appropriate at some future date, a total of $18 billion and the sum has been allotted, plans are put in and the states make the expenditures, I really can't contemplate that Congress at that stage would say, we were quite mistakenly, we don't intend to appropriate funds.
Justice William H. Rehnquist: Yet it's not an uncommon phenomenon, is it, for Congress to authorize a substantially more money for a given project than it ultimately appropriate?
Mr. Robert H. Bork: Well it may be, Mr. Justice Rehnquist, but I think here, it may authorize it but if states have gone forward, and expanded their own funds and got themselves into commitments, which are legally binding, I think it could be extraordinary if Congress bend back down on its promise.
And furthermore, there might be at that stage, I think, litigation about the obligation of the United States.
Justice Byron R. White: But you said a moment ago that this was a unique or well, a unique way of going about appropriating or making funds available, different from the ordinary budget or budgetary process.
Mr. Robert H. Bork: As I understand it, yes.
Justice Byron R. White: What is that difference do you think?
Mr. Robert H. Bork: In part of this process of authorizing for appropriation.
Justice Byron R. White: Well isn't that pretty usual of authorizing this as Mr. Justice Rehnquist says more than they may have eventually appropriate?
Mr. Robert H. Bork: I don't think it's usual to have a process in which you authorize for appropriation and then go to the allotment stage and the obligation stage and then appropriate, I may be quite if that's --
Justice William H. Rehnquist: But the allotment stage is unique here in the budgetary process, isn't it relevant in the authorization or the appropriation?
Mr. Robert H. Bork: Well I had this -- the authorization for appropriation and its purpose explained to me and I was told that it is quite unique in this kind of a statute.
I can perhaps shed further light upon that later, I can't now.
One of the reasons is usually, when you have to go to a project, you go through the Appropriations Committee.
This stage, Congress in effect authorizes the appropriation without going to the Appropriations Committee, which does considerably limit the Appropriations Committee's discretion at a later date.
I think that's what (Voice Overlap).
Chief Justice Warren E. Burger: That what it makes unique?
Mr. Robert H. Bork: I think that is Mr. Justice.
Chief Justice Warren E. Burger: So does this takes it outside of what has been our common rubric in the Appropriations Committee that the Congress proposes but we the Appropriations Committee dispose.
Mr. Robert H. Bork: I think this does tend, I don't think this is that I may say so, central to the issue we have before us, but I think this does to some degree limit appropriation of committee's influence on the size of the appropriations.
But I think the -- I think that affect does not.
It may have account for some of the confusion in this entire process but it does not go to the question I think which is before us which is the President's discretion, and how broad it is, and as I say that's --
Justice Lewis F. Powell: So, Mr. Solicitor General initially I think did not the government take position that this commitment of $18 billion perhaps that's not the word, right word here, this $18 billion did not necessarily have to be spent, but now I gather that the position of the Government and that must be spent under this legislation.
Mr. Robert H. Bork: That is the--
Justice Lewis F. Powell: But the discretion is such that it may be spent over a period of time.
Mr. Robert H. Bork: It may be -- the amount we now believe is firm, it may be stretched out in the expenditure.
Justice Lewis F. Powell: Well, to that extent, when you say it must be spent to that extent, and that's to say it's been appropriated, isn't it?
Mr. Robert H. Bork: Oh no, no I mean we think the executive under the statute has an obligation to allot the $18 billion ultimately.
But the executive we think was given a discretion that control the timing and we think --
Justice Lewis F. Powell: Yes, that's I understand you say that but to the extent that the $18 billion must be spent, Congress has indicated that it's going to be there.
Mr. Robert H. Bork: That as Congress has certainly indicated that.
Justice Lewis F. Powell: But yet you think something else may be necessarily the nature of congressional appropriations in fact to make the $18 billion?
Mr. Robert H. Bork: I think so.
I think they have to pass the appropriations bill.
They simply get what the statute itself provides that we will appropriate the money at a later date.
So under the scheme, they must do that.
Justice Byron R. White: But whatever this view now say that whatever discretion executive got and doesn't go –- that doesn't extend to deciding that the X million or billion dollars will not be spent at any --
Mr. Robert H. Bork: That is correct Mr. Justice White, the discretion is timing.
Justice William H. Rehnquist: But the fact that the executive doesn't have that discretion doesn't necessarily mean that Congress will ultimately appropriate all the money that is now authorized.
Mr. Robert H. Bork: That is quite true Mr. Justice Rehnquist, I said to that only one that I will find to be extraordinary if Congress got states into this position and then let them down, and I would think that there might well be litigation in the Court of Claims over litigation is to which I think I have not, not -- not now to take a position.
Justice William J. Brennan: But ordinarily I, a different –- the mere fact and authorization doesn't give any assurance to anyone that necessarily would be in the appropriation.
Mr. Robert H. Bork: That is correct.
Justice William J. Brennan: Here there's something more may not be a complete assurance of appropriation but I gather you're saying that they can't let the states down, almost they'll have to.
Mr. Robert H. Bork: I beg your pardon.
Justice William J. Brennan: Well the congress certainly will have to.
It was indicated that definitely it will.
Mr. Robert H. Bork: They have certainly indicated that and I think that is a moral commitment at the very least.
Justice William J. Brennan: In that extent, this is a little different than the ordinary --
Mr. Robert H. Bork: Yes.
Justice William J. Brennan: -- case, is it?
Mr. Robert H. Bork: I believe so, Mr. Justice Brennan.
Chief Justice Warren E. Burger: Well, the mechanism would be that if the House Appropriations Committee declined to appropriate and the Senate Appropriations Committee also, you are suggesting the House and the Senate could override.
Mr. Robert H. Bork: Oh yes.
Chief Justice Warren E. Burger: And reject that would take care of it.
Mr. Robert H. Bork: I think so.
I think under the main effect of this process is that a moral commitment is made which the Appropriations Committee, I think, would be bound to respect.
But I wanted to discuss the scope of this discretion because I think it's nob of the case rather than the stage at which it occurs and Campaign Clean Water tells us that we really shouldn't pay too much attention to the Harsha amendments which I have described in which were supposed to give discretion to the President, the amendments to Section 205(a) and 207 because he says they are a considerable monkey wrench thrown into the statute in order to achieve a political compromise with the President and of course, ultimately they were used to achieve the gathering of votes to override the President's veto.
And it's important to remember at this stage when you address the question of what the discretion is, what the fight was about?
There was no fight about the President's discretion not to squander money if he found it couldn't be spent advantageously on sewage treatment facilities.
He has the power to refuse to spend money in a wasteful fashion under the Anti-deficiency Act already.
There was no reason to put that kind of discretion into the statute.
What the fight was about, what the veto message was about, and what the fight in Congress was about was the President's authority to withhold spending, withhold obligation or withhold allotments, whichever stage you put in that for fiscal policy reasons as well as program reasons.
Justice Potter Stewart: Is the veto message somewhere in the --
Mr. Robert H. Bork: It's in the -- in the joint appendix Mr. Justice Stewart in brown book and it's -- well, I trust that it's in the record and I'm sure it's, I will.
Justice Potter Stewart: Maybe (Voice Overlap).
Mr. Robert H. Bork: We can check while we're doing it.
The -- and I would point out that when Congress respond before the veto, when Congress was explaining these amendments, the Harsha amendments, when they were talking about it and before the veto, Representative Harsha on page 18 of our brief, I will not quote a language on page 18 of our brief, he was quite clear that the language said that the President can appropriate and can spend anything, up to the sum but not to exceed the sum of five and six billion dollars for those two years.
And Senator Cooper, who was a senate conferee on page 19 of our brief, specifically said, that the President have the responsibility for evaluating the program needs in relation to other national pre -- priorities which certainly means the President has a power to make a trade off between a variety of priorities.
After the veto, Senator Harsha –- Representative Harsha came back again and in urging the House to override the veto, he said, “We have emphasized over and over again that if federal spending must be curtailed and if such spending cuts must affect water pollution control authorizations, the administration can impound the money,” that's on page 20 of our brief, and on page 21, we quote Representative Clawson, another conferee who says repeatedly that if the President must hold the reigns on the federal budget, these amendments, this discretion gives him the power to hold the reigns on the federal budget, and the statutory language itself of course contains no restriction upon the author -- upon discretion authorized.
The Congress could've written a different statute, it can still write a different statute but this is the one we have, and I think it would be quite wrong, it's quite wrong I think for the respondents to ask that that discretion which is clearly in the legislative history which is clearly in the statute itself, should be excised by courts on the theory that they want to forward the goal of clean water, that is to be -- if their process had to be speed it up, that's a process can be work out between the President and the Congress.
Justice Byron R. White: Well, this is the -- they (Inaudible) themselves and I thought that just disagreed on as to when.
Mr. Robert H. Bork: At the stage of the process at which discretion occurs.
Justice Byron R. White: Your points don't say the discretion of the excised, is it?
Mr. Robert H. Bork: Well, they want to cut it down to -– it's very odd Mr. Justice White, to see for example the scope of judicial review of the discretion that is suggested right in the Campaign Clean Water brief.
One is told really only that the discretion may not be authorized, may not be exercised in a way that when in anyway jeopardized the goals of the program and the deadlines of the program.
Well, let's that's to say that there is almost no discretion and is to say that these Congressmen who said that if the federal budget and the demands of fiscal policy re-encountered to the expenditure of all of these funds then the President had the authority to protect the federal spending levels by cutting back on the water program.
Justice Byron R. White: Did you say yes that as you presently view the Act in terms of whether the $18 billion custody allotted at sometime, do you say that the (Inaudible) must be continued at the City of New York?
Mr. Robert H. Bork: No, I think the City of New York thinks that except for program-related reasons, not federal fiscal policy reasons that the money must be obligated.
The discretion occurs at the obligation stage but I think they have a quite narrow view of what the discretion is.
Justice Byron R. White: Well, there is a -- there is a major difference with the major gulf between you and the Government.
Mr. Robert H. Bork: The major gulf between the Government and both of these respondents is the scope of the discretion, and I think that's the nob of the case.
Justice Byron R. White: Not the time?
Mr. Robert H. Bork: Not the time.
Justice Byron R. White: The scope?
Mr. Robert H. Bork: The scope, I think the statute is clear on the time, but as a practical matter, the scope is what counts and I think the scope is quite clear from the way these amendments were used to overwrite the presidential veto on the fiscal considerations and it was explicitly said that these amendments give him control if he thinks the spending is too high.
The total spending not the spending related to this particular program.
Justice Lewis F. Powell: Mr. Solicitor General, on page 9 of your brief, as I understand it, that down to bottom of page 9, you say in effect that there is no practical difference between exercising control over the rate of spending at the two stages if I understand that and if that is correct, what is the difference between the parties here today?
Mr. Robert H. Bork: Well I think the –- as I mentioned, Mr. Justice Powell, we felt that the statute clearly places at the allotment stage and if we didn't come up to this Court with that, that we could get -- whipsawed it by a later Court saying, you've already allotted, now your discretion is gone.
Justice Lewis F. Powell: So, in effect you are protecting a future position, the ultimate affect that a judge, in your opinion, unless you heard flunk in this way, it will be the same.
Mr. Robert H. Bork: If this -– if I understand the issue, Mr. Justice Powell, if this Court for example, were to write an opinion, saying that the discretion operates contrary to our submission at the obligation stage rather than the allotment stage, it would make almost no difference.
But the question of what that discretion is and whether it is reviewable by a Court putting itself in the position of the President and looking at the program, the size of the budget at that time, the other competing national priorities at stake, and making a balance and saying no that a reasonable President would have spent more.
That is the nob of this case.
That is what we think is the political question.
Congress gave this discretion, the President has exercised it and we think it violates the political question doctrine.
Justice Byron R. White: If the only issue that we thought that was presented with Justice Frankfurter's question.
Mr. Robert H. Bork: It is not the --
Justice Byron R. White: That discretion.
Mr. Robert H. Bork: It is not the only issue, Mr. Justice White, in Campaign Clean Water, the Fourth Circuit repealed and reversed and remanded for a trial de novo of the President's exercise of its discretion.
Justice Byron R. White: But if the only issue were to finding, there wouldn't be much to argue about.
You wouldn't really care much.
Mr. Robert H. Bork: Well, I wouldn't care much if this Court told me which stage is was at, Mr. Justice White, but if the lower court did, then I would be in the position of perhaps getting caught by a Court in a different jurisdiction disagreeing.
Justice William J. Brennan: But the important thing here is, whether we say allotment or obligation, your real concern is the breadth of discretion of the President.
Mr. Robert H. Bork: That is -- that I think is the real nob of this case, and I think that the statute itself on its phase is an unconfined discretion and the variety of congressional expressions.
Justice William J. Brennan: I see that your light is running out Mr. Bork, are you going to say anything about this, I haven't had a chance to read it only roughly this morning.
Mr. Robert H. Bork: I will say only about that, Mr. Justice Brennan, that that brief proves in our opinion mathematically that the new Act does not affect this case.
Justice William J. Brennan: I see.
Chief Justice Warren E. Burger: Counsel, in view of the way the timing is working out here today, we'll extend for your side of the table six minutes and give the Solicitor General six minutes more that will consist of approximately right at 3 o'clock, so you can --
Argument of John R. Thompson
Mr. John R. Thompson: Thank you very much.
Chief Justice Warren E. Burger: (Voice Overlap) accordingly, Mr. Thompson.
Mr. John R. Thompson: Well, these are two -- Mr. Chief Justice, and may it please the Court.
These are two very separate cases because they were consolidated by the Court on the grant of certiorari, we have agreed with the respondents in the other case, the clean -- Campaign Clean Water case to divide our time, I will attempt to stay within the 15 minutes which I had originally planned on for the City of New York.
The -- as we see it, the issue in this case, in the New York City case, it is very different –- it's very definitely the timing at which any kind of executive control over the rate of spending is to be exercised, not the scope of the discretion.
We believe that the legislative history shows clearly and unmistakably that the Harsha amendments and whatever control they gave the executive over the rate of spending was not to be operative at the allotment stage.
Thus, full allotments were required to be made by Congress after the Harsha amendments as they were before the Harsha amendments.
Whatever discretion was conferred by the Harsha amendments or confirmed by the Harsha amendments, over the rate of spending, was to be operative as the Court of Appeals found decided only at the obligational stage.
Now at -– in point one of our brief, at pages 8 to 17, we have summarized that part of the legislative history which goes to the time at which whatever the discretion is, the time at which it should be exercised, and we believed that it is far clearer than the Solicitor General would have you believe.
Let me back up just a minute.
The legislative history of the Harsha amendments shows two strands, if you will, two interwoven strands.
One does show as the Government maintains that the objective, the overall objective of those Harsha amendments was in the words of several of the legislation sponsors to emphasize the flexibility of the President's control over the rate of spending.
We do not -- we have no difference with the Government that that was the overall objective where we differ with the Government is as to when that control, whatever its scope was to be exercised.
In it's brief, the Government had virtually ignored the legislative history going to the second strand as to when it should be exercised, but included in our -- in the materials, in point one of our brief, are statements by sponsors of the Act in both Houses, both before and after the veto message which we believe clearly show that the Court of Appeals was correct in deciding that Congress intended that discretion to be exercised only at the obligational stage.
Justice William J. Brennan: Mr. Thompson you're going to suggest what the practical difference is that the time it takes --
Mr. John R. Thompson: Yes, Mr. Justice Brennan and that was raised by questions from Your Honor and from Justices Black and Blackmun -- White and Blackmun.
The function of allotment essentially in this so-called contract authority funding, the main function of allotment is to give the states and their political subdivisions a justification for going ahead with the very intricate planning for all of the vast construction which Congress intended to induce the states to perform in order to clean up the waters of the country in a very short period of time.
Now, there's a statement which is quoted almost in full at page 23 of our brief by Representative Harsha on that planning process, it is -– it indicates several things, first of all, how important the planning process was to those who conceived and labored and drafted the statute.
Secondly, it showed that they were interested not in bits and pieces, stop and go planning as various amounts of money might be allotted and allotted and allotted under the Government's theory.
They had in mind and Mr. Harsha emphasized coordinated long range planning, so that any locality that was a beneficiary of Title II, would be able to plan whatever its share was of $18 billion worth of projects.
Justice William J. Brennan: In other words, knowing advance that you're going to have $350 million, I'll put you in the position where you can plan around a possibility of (Voice Overlap).
Mr. John R. Thompson: Not only a position, Your Honor, where you can plan but you may even not be able to plan as a local official unless you have some kind of ticket from the Government, some kind of go ahead, something you can point to, to the rest of your bureaucracy, to your city council, your older men, what ever happens to be and to your constituents, who were also affected by this to the people, that same statement on page 23 of the brief, in that same statement, Mr. Harsha mentions a kind of things that are included in the planning process and there are a lot more than just simply drawing up engineering and architectural plans and specifications, long as that takes and difficult is that is, he mentions planning generally, by which I take that he meant community planning deciding where these -- where these various plants and collection systems, I might add, where they will be located?
How they will be fitted in with other capital projects of that municipality?
He mentioned site acquisition, he mentioned feasibility studies, and he mentioned getting authorization for any necessary bonds that had to be sold under the statute while the Federal Government is putting up a great deal of money, the states and localities have put up one quarter which comes to $6 billion and it's not easy these days or any day perhaps for states and localities to raise their proportionate share of that.
That has to be coordinated with their other needs.
It is a fast -- it is a fast undertaking to make a coordinated plan in the broadest sense of the word to -- for our projects that would be able to qualify for the federal grants and it seems to us that it was -- that if one remembers the function, the main function of allotment to lay a basis for the cities and towns to go ahead and engage in that planning process, then it becomes clear that absent any specific congressional intent, otherwise, that the only discretion to allot less -- the only discretion conveyed, conferred or emphasized in the Harsha amendments, applied not to allotment, full allotments had to be made, it applied that the obligation stage.
And in the course of our point one, we point to a statement by Mr. Harsha in which he said, he talked about the obligation stage, at which after the full planning of a project has taken place, and it is reviewed by the administrator, reviewed certainly for compliance with these conditions in the statute and perhaps we would –- for New York we would can see this, perhaps also for some fiscal considerations, at that point , is from the administrator by approval would either subject the United States to an obligation to pay that grant or by holding it up by non-approval, he would not subject the United States to that obligation.
It is that point after all of the planning that we believe under appropriate circumstances, the executive could impose what might be called the hold on either a certain type of projects or otherwise.
That would be the point right before the United States became obligated, but at any rate at that point, when the United States wanted to exercise the flexibility, the Act talks about, when the fiscal stringency had vanished, if you will, the plans would all up been made, you would have a shelf full of plans on the top, so to speak could be turned on.
That we think is much more consistent with the underlying intent of Congress that this was a massive ambitious program and they wanted it done just as fast as it could possibly be done.
The allotments you'll notice were said to be -- the allotments were to be made no later than particular dates.
The first date was no later than 30 days after enactment of the Act.
The second allotment for the fiscal -- for the next fiscal year came along six weeks thereafter.
And the final allotment was to be six months before the fiscal year for which it was being made.
Almost at the earliest possible stage Congress wanted these allotments made.
Justice William H. Rehnquist: Mr. Thompson, do you think that the administrator under your theory, his discretion is confined at the obligation stage, do you think he has the same order of discretion or degree of discretion at that stage that the Solicitor General contends he has at the allocation stage?
Mr. John R. Thompson: I have never heard this until today seen any indication from the Government is to exactly how broad they thought the discretion was.
I -- that has been, in our view of this case, of our case that isn't easy question which is not before the Court, how much, how wide the discretion is, Mr. Justice Renhquist.
It's a difficult question left open by the fact that in my view at any rate, the statute does not clearly delineate that.
It looks to me from references that Representative Harsha made to the procedure, the executive was then following in the -– under the Federal Highway Act, which was later held to be improper by the Eighth Circuit but the references that Representative Harsha made to that, it seems to me in all honesty that some discretion would lodge at the obligation stage in the executive beyond just the criteria which are in the Act which are environmental engineering and financial.
But as I say that isn't easy question because of this and it might have to be settled in future litigation, although I think that has become much less likely since this new Budget Act of 1974, which now provides for quite a clear way in which Congress and the President can work cooperatively.
If this Court should declare, should affirm and thereby declare that the full allotments had to be made, and then perhaps adding that the Harsha amendments conferred some discretion at the obligation stage, then the President would presumably make the obligation –- make the allotments, then at the later stage if it should be desirable for the -– if the President and his administrator should think it desirable to put a hold on the obligation of funds, that action would be subject to the new Budget Act.
The President would have to submit a special message to Congress, he would propose that deferral and the deferral would be effective for the rest of that fiscal year unless either House of Congress adopted a resolution rejecting disapproving of the deferral.
It provides a mechanism for which we have not had before for cooperative effort between these two parties.
Justice Byron R. White: Mr. Thompson, do you -- do you think there's any difference between you and the Solicitor General other than the timing of the discretion?
Do you think there's some difference between you and him with respect to the scope?
Or have you (Voice Overlap).
Mr. John R. Thompson: Mr. Justice White, we have not been discussing -- we have not been thinking ourselves except the academic way and we have not been arguing with the Government in our case over the scope of the obligation -– of the scope of the discretion.
Our argument is always been the Government had said they had complete discretion -– complete and unreviewable discretion --
Justice Byron R. White: Do you seem to concede, there are some discretion sometimes.
Mr. John R. Thompson: Now that -- and now they also, they have changed their positions since the early days of those litigation to say that full amount of the $18 billion must be allotted sometime.
In the lower courts, they took the position that the Harsha amendments that they didn't have to allot them if the President did want to anytime, now they say they have to be allotted, they just don't say exactly when they'll do it.
Justice Byron R. White: I'm not sure if it's unfair question but do you concede that at the commitment stage, the obligation stage, there is discretion to refuse, to obligate because the executive does not want to spend money that fast?
Mr. John R. Thompson: I don't believe that's an unfair question but as I replied to Mr. Justice Rehnquist, I would be -- there would be gratuitous answer that I would give you.
I think it would depend upon the circumstances and whether the President could really make out a case that fiscal needs did actually require it.
Chief Justice Warren E. Burger: But does that not concede discretion?
Mr. John R. Thompson: It certainly we -- excuse me, we would concede that there was a measure of discretion.
We don't know how broad that would be and I think it would be very -- I certainly wouldn't be in the position to say that it would just -– just if the President decided overnight for some whim, that suddenly all spending should stop here.
Chief Justice Warren E. Burger: But you take a more extreme example if suddenly we got him to some peripheral war that might have a lot to do with it.
Mr. John R. Thompson: I think under the statute that certainly would authorize it and then as indicated under the Budget Act anyway it would be subject if we were getting way off base too in effect to correction by Congress.
Chief Justice Warren E. Burger: By resolution?
Mr. John R. Thompson: By resolution, yes sir.
Justice Potter Stewart: Mr. Thompson, perhaps you address yourself to this but if so I missed it, do you agree with the basic trust of this most recent brief filed by the Solicitor General as to the non-applicability of the new legislation too?
Mr. John R. Thompson: We haven't been favored with the copy of that Your Honor but --
Justice Potter Stewart: We all referred to it last time.
Mr. John R. Thompson: But -- from what -- from what the Solicitor General said, we would agree with it with one caveat that this proposed deferral of allotments has been included in the special message that the President sent to Congress.
He included it for information only, saying it was not really within the Congress' as purview under the new Act, but he said that he would like further guidance.
Now, if he also said that he would abide by the decision of this Court, on the legal points involved here, but if the either House of Congress taking advantage of the President's submission in that forum should pass a resolution disapproving of the further deferral of allotments of the unalloted $9 billion, then it would seem to me reasonable to suppose that the Solicitor General would promptly advise this Court and then give his -– give the Government's view as to whether they then agree that they would comply with what Congress was either asking or ordering them to do, and at that point if that came before your decision in this case, when and if I say conceivably that could alter -- could alter the situation.
Thank you sir.
Chief Justice Warren E. Burger: Thank you Mr. Thompson, Mr. Jacks, you will have about 18-and-a-half minutes now.
Argument of W. Thomas Jacks
Mr. W. Thomas Jacks: Mr. Chief Justice, may it please the Court.
I'd like to start my argument on an agreeable note.
I'll begin agreeing with General Bork when he said that he thinks the scope of the discretion is at the knob of this case, I agree.
My client Campaign Clean Water is in some respects I suppose at the middle of the road in this case, where flunk on one hand with the City of New York which takes the position that the administrator has absolutely no discretion to withhold funding at the allotment stage.
On the other hand, were flunked by the administrator of EPA, who claims that he has unbounded discretion to withhold allotments as Mr. -- as General Bork pointed out in turning to the language of Representative Harsha on the floor that they can allot anything up to the $18 billion, at least initially.
We take what I think is a more reasonable view of the statute than either of this that is that, yes there is some discretion intended at the allotment stage that that discretion is limited and we think was abused in this situation.
I'd like to address myself --
Justice Potter Stewart: You think the discretion is only at the allotment stage?
Mr. W. Thomas Jacks: Yes sir, we do.
Justice Potter Stewart: Yet it is an either or problem.
Mr. W. Thomas Jacks: No.
Justice Potter Stewart: Proposes on there.
Mr. W. Thomas Jacks: Well, we think our reading of the statute and legislative history, we think it's pretty clear that the discretion was intended to be exercised at the allotment stage because it was the section of allotments and not the section on obligations that was amended.
They could've just as easily changed the mandatory language in Section 203 on obligations that to be discretion if they'd wanted to let the administrator exercise his discretion there.
Justice Byron R. White: So, you wouldn't think that the -– what the executive allots, he cannot later at the obligation stage say, “We're spending money too fast”?
Mr. W. Thomas Jacks: I believe that's correct, Mr. Justice White.
I'd like to focus primarily on the question, this afternoon, of how do we know that the administrator's discretion was intended to be limited.
And how do we gauge where those limitations lie.
I think perhaps the principal point of departure between Campaign Clean Water and the administrator is over what interpretive tools the Court relies on in determining whether there is discretion, whether there are limitations on the discretion and where the limitations lie.
The Solicitor General in his argument pointed primarily to the floor language, the remarks of Representative Harsha, and said it's from this that Congress intended to give discretion notwithstanding the remainder of the statute.
The Solicitor General would have this Court look more to what was done in the 11th hour in this statute and accuses us of ignoring this floor language.
I suppose we would accuse the administrator of ignoring the entire remainder of the statute.
I think it's useful in answering the question how do you know what the limitations are to do two things.
First, to take a general overview of what went on here, of what went on in the Congress over this two-year period during which the statute was pending.
I think it's useful secondly to look at some of the specific provisions of the statute and just ask, what do these provisions mean?
Are they still effective if the administrator's view is upheld, that his discretion is virtually unbounded?
First, the overview, the statute as we pointed out in our brief was two years in the making.
It was very carefully constructed.
From the beginning, the proponents of this statute sought to eliminate completely the discharges of pollution into our nation's waters and to do so in accordance with the prescribed time table.
They were fought at every step of the way by the executive branch, by the administration.
The administration opposed the level of funding; the administration opposed the contract authority mechanism of funding; the administration opposed having a rigid deadlines; it opposed having mandatory enforcement provisions.
Despite this opposition, the bill was submitted to the Congress, was passed.
The president as what his constitutional prerogative vetoed it, and he listed as his chief reason the level of spending called for.
He would've suggested a lower level of spending.
The bill was returned to the Congress and the veto was overwritten and was overwritten overwhelmingly in both Houses, and during the course of the debates on the veto override, people on both side of the aisle, the democrat Senator Muskie, the republican Representative Harsha all agreed that Congress was dictating that the job be done, that they knew it was expensive, they knew it would tax the nation's resources to some extent but that Congress had made that decision.
The question, I think, we've got to ask in taking this overview is, is it reasonable to assume that in making this last minute change to achieve what was essentially a political compromise and it's attempt to avoid the veto, is it reasonable to assume that in making that change, the Congress intended to eviscerate the remainder of the statute.
I think the answer is going to be clearly not, and yet I think if you turn to some of the specific provisions of the statute, you'll find that that would indeed be the effect.
Chief Justice Warren E. Burger: Doesn't the Solicitor General's representation of the Government's policy or position with respect to the commitment of the entire $18 billion at least to cut some of the foundation away from that argument?
Mr. W. Thomas Jacks: It doesn't give me much satisfaction, Mr. Chief Justice, because under the statute, there was a timeframe intended as well as an intent as to the job to be done.
In other words, Congress intended not only that the nation's waters be cleaned up, but that they'd be cleaned up in accordance with the prescribed schedule, so it doesn't give me much comfort when the Solicitor General tells us, “Don't worry, were going to release the entire $18 billion, were just not going to tell you when we're going to do it.”
That doesn't give me much comfort when I have to look at Title III of the statute and I see that under Title III, there are two deadlines.
One is that by 1977, municipalities must achieve a secondary level of treatment; the other is that by 1983, they must achieve -– their plans must feature the best practicable technology.
That gives me problems.
Chief Justice Warren E. Burger: Doesn't the power of Congress to deal with this by resolution at any time give any conflict to you?
Mr. W. Thomas Jacks: No sir, it does not because I agree with the Solicitor General that the new Budget Control Act which became effective on July 12, 1974, doesn't apply, at least not right now, to the impoundment actions which are at issue in this case.
I think that his construction of that statute is correct, when he says that the triggering action by the executive must be one which was commenced after July 12, 1974.
I don't think the Congress can do anything really about this, at least not right now, and at some point in the future, he may-- the administrator may take some further action, which would trigger the provisions of that statute.
But I have to believe we have to allow that.
I beg your pardon.
Chief Justice Warren E. Burger: I have some difficulty with that Mr. Jacks.
You said Congress can't do anything about it now.
Now, as a practical matter it might be very clumsy, very slow, very burdensome that Congress can do anything at once too on this --
Mr. W. Thomas Jacks: Clearly --
Chief Justice Warren E. Burger: -- the day after tomorrow, couldn't they?
Mr. W. Thomas Jacks: Clearly, when we're dealing with the Congress.
They can do pretty nearly anything they want to within the limitations of the Constitution and at anytime they want to.
I don't think that we, as litigants, should be forced to rely on the hope that if sometime in the future, Congress is going to bail us out, when Congress has already said I think pretty clearly what it intends to be done.
That would be our position really on that statute.
I think not only -– let me look -- let me spend one more minute on this question of the deadlines.
We've cited in our brief to a survey that was done by EPA last year, their 1973 Needs Survey, which was prepared pursuant to the statute that's at issue in this case.
In that survey, EPA concluded that -– and I'll speak here for the State of Virginia since that's the state I know best, that's where my group came from.
They said Virginia is going to need $650 million roughly just to meet the 1977 deadline, just to meet that secondary treatment deadline in 1977.
Now, 75% of that of course should come from the Federal Government under this legislation that will be about $489 million.
If Virginia had gotten all of the sums that was -- that were authorized for fiscal ‘73, ‘74, and ‘75, it would've had slightly more than enough.
There would've been slightly more than enough federal money to enable Virginia to meet that ‘77 deadline.
As it is with the withholding of 55% of the funding for the first two fiscal years, Virginia has gotten $243 million rather than the $489 million in federal money they need just to meet that deadline.
In other words, even if you take EPA's own estimates of what construction needs are to comply with the statute, it's clear were in trouble.
I think another specific provision of this statute that is instructed and one that has been addressed to some extent already this afternoon is the contract authority provisions of Title II of the Act.
Those provisions are relevant because when you study the legislative history, it's clear that Congress intended in enacting this advance funding mechanism, to give municipalities and states the opportunity to plan ahead, so that they would know and looking several years now on the road, what federal money they could expect and can plan accordingly.
Now, when the administrator construes his authority under the Act, to mean that he can make an initial allotment in whatever amount he pleases and then can dole out further allotments from time to time, from year to year as he sees fit, I think it's clear that that entirely frustrates that very carefully contrived legislative scheme.
I think then that when one studies the entire legislative history of this statute, when one looks at the deadlines provisions, when one looks at the contract authority provisions, it becomes clear that Congress must have intended some limitation on the discretion the administrator was being given leave to exercise.
In other words, I think that these are far more useful tools than merely turning to Representative Harsha in saying that he said we didn't do anything up to that amount.
I think, it's far more useful and it's indeed in accordance with general rules of statutory construction for this Court to look at the entirety of the statute and ask the question, does it make sense that Congress intended to give the administrator unfettered discretion in light of what that would do to the remainder of the statute.
If the Court has no further questions, I believe, I've concluded.
Chief Justice Warren E. Burger: Thank you Mr. Jacks.
Mr. Solicitor General you have few minutes left.
Rebuttal of Robert H. Bork
Mr. Robert H. Bork: Mr. Chief Justice, may it please the Court.
Let me –- allow me please to explain this supplemental brief in these problems.
I was informed that the City of New York had been served to page group last Thursday and I hope that had been.
The only purpose of that supplemental brief was to quiet any concern that this case might have become moot by the new statute.
That brief is really not in discussion here because it's quite clear whatever view one takes of the new statute, these deferrals would not become moot unless Congress took some further action which it has not taken.
On the question of discretion, which I think is the main question we all agree we have before us, I wish to point -- I did point out, that if the discretion is as broad as the Congressman repeatedly said it was in getting the votes to override the veto, then it would be impossible for a judge to place himself in the position of a President balancing the budget or trying to control inflation and make the choices, but I think it's worth saying something else, I think --
Justice Potter Stewart: Your point is that it's unreviewable, judicially unreviewable discretion.
Mr. Robert H. Bork: If -- Mr. Justice Stewart, if Congress said that the President, “Spend this money unless you think inflation is getting out of hand or other priorities are more important, but we'd like you to spend this money unless you find something like that.”
It seems to me at that point you have a political judgment in the classical sense by the President and for a Court to try to apply its standards to how that judgment should have been made would be a classic violation of the political question doctrine.
Justice Potter Stewart: So, your answer is yes?
Mr. Robert H. Bork: Yes.
Justice Potter Stewart: Judicially unreviewable.
Mr. Robert H. Bork: At that stage.
But I want to point out that Campaign Clean Water attempts to give us a narrower form of review which is a former review about can the program go forward effectively with this kind of withholding of funds.
And I would point out to you that that former review is also has a spurious attractiveness.
What the President has the authority to do is to make a cost-benefit analysis under the Anti-deficiency Act or inherently of whether spending more funds this year rather than next would merely inflate the cost of the resources and whether it's worth it.
And that too is a kind of discretion, and I think it would be quite difficult for our Court to review because it's a cost-benefit analysis.
And the President is saying is 20% more dollars worth 10% more output are not.
So, I think that is an executive kind of decision which will be exceedingly difficult to review.
But in any case, the deadlines in the Act, it is now quite clear probably cannot be met even if all of this money were spent.
The administrator has reported to Congress that far from $18 billion, the Act's objectives are going to require $340 to $350 billion.
So, I think were not realistically --
Justice William J. Brennan: Can you say that again?
Mr. Robert H. Bork: As I am -- I am informed that the administrator of OMB has reported to Congress that the total needs for water purification in this country are going to amount to all over $300 billion.
So, that I think we are not and I think there's going to be trouble with these deadlines no matter what happens and the appropriate thing for these states to do is to apply for rule making procedures because the administrator controls the standards which must be met by the deadlines and if they cannot meet those standards, then there's a -- there's a mechanism in the Act by which that can be accommodated.
One thing that can't be changed is that this Act was sole to Congress and the President's veto overwritten on a view of discretion which included discretion to control total spending and not just discretion with relation to the effectiveness of this program.
Chief Justice Warren E. Burger: Is there anything in the legislative history up to this time, Mr. Solicitor General that suggests that this astronomical figure that you now mentioned was in contemplation when they got there, putting the door with $18 billion?
Mr. Robert H. Bork: No, I think Mr. Chief Justice, that the problem was vastly under estimated.
Chief Justice Warren E. Burger: Nobody -- nobody really knows, is that it?
Mr. Robert H. Bork: Nobody knew it that time.
I -- one hopes that the later estimates become progressively more accurate except for the amounts involved, one would hope that but that the sums apparently are much larger than were anticipated and I think those deadlines of the statutes would not be met if this money were paid out.
Justice Lewis F. Powell: I gather, Mr. Solicitor, that if we would agree with you, you would still feel whether the choice was at the allotment stage or at the allegation stage, or to be reversals in both of these cases where the remands for dismissal for both complaints?
Mr. Robert H. Bork: That is precisely what I think should happen, Mr. Justice.
Justice Lewis F. Powell: The latter on the ground that this is a non-reviewable discretion and therefore a political question in that sense?
Mr. Robert H. Bork: It could be put either in the form of non-reviewable or in the form of Congress intended it to be this broad and therefore there is no function.
Justice Lewis F. Powell: Yes.
Mr. Robert H. Bork: -- to be served.
And I think the latter of this case although I think it is also non-reviewable.
Justice Byron R. White: It could be very, very broad and still be reviewable or it could be relatively narrow as you point out and still -- and still be non-reviewable.
Mr. Robert H. Bork: That is quite true.
I suggest that I think it was given in such a broad fashion that reviewable or not there is really nothing wrong has happened here.
But secondly, I think if one began to review it, that one would immediately be into an area where there are no standards for the Courts to apply, and the Court would essentially be making the judgment to this reserve for the executive in our form of Government.
Chief Justice Warren E. Burger: Well, an executive, especially presumably specially informed in the field.
Mr. Robert H. Bork: That's -- that's correct, Mr. Chief Justice, an executive with delegated authority in this case.
Chief Justice Warren E. Burger: And with standards?
Mr. Robert H. Bork: The only standards that are apparent in the legislative history, they are non-apparent on the face of the statute, it's an unbounded discretion.
The only standard which are apparent in the legislative history are to control federal spending because of inflationary pressures.
Chief Justice Warren E. Burger: Well, that would not preclude an administrator from sua sponte promulgating regulations or invading rule making as you intimated, would it?
Mr. Robert H. Bork: No, that would not prevent the administrator from inviting rule making --
Chief Justice Warren E. Burger: Under $300 to $350 billion that might well be indicated.
Mr. Robert H. Bork: I was suggesting as much, Mr. Chief Justice.
I think that if those figures are accurate, then the expenditures sums from this case is going to have very little to do in general with the meeting of deadlines, and the standards may have to be changed or Congress may have to be approached.
Chief Justice Warren E. Burger: Thank you, Mr. Solicitor General.
Justice Lewis F. Powell: May I just (Inaudible).
If we disagree -- your position is that the discretion is to be exercised at the allot -- at the obligation stage.
Mr. Robert H. Bork: At the allotment stage.
Justice Lewis F. Powell: At the allotment stage.
Now, the judgments below disagree with that, do they?
Mr. Robert H. Bork: One judgment below does, the Court of Appeals of the District of Columbia says, “Know the obligation stage.”
Justice Lewis F. Powell: Yes.
Mr. Robert H. Bork: The Court of Appeals for the Fourth Circuit says, “The court below found the allotment stage was correct, nobody contest that, so we assume it's correct.
Justice Lewis F. Powell: Yes.
Well, in so far as it was held below that the judgment at the allotment stage wouldn't we have to affirm in that respect, if we agreed with that?
Justice Potter Stewart: Affirm the Fourth Circuit.
Mr. Robert H. Bork: You have to affirm in the respect that the discretion is at the allotment stage, I would ask you to reverse the remand for trial de novo on the discretion issue.
Justice Lewis F. Powell: And send it back to dismissal.
Justice Byron R. White: You didn't think the deal is to when, when you said that was only at the -- at the obligation stage then we wouldn't be reversing the New York case.
Mr. Robert H. Bork: No, you would not Mr. Justice White.
Justice Byron R. White: We'll affirm it.
Mr. Robert H. Bork: But the -- the -- I suppose the Fourth Circuit case would drop out then there will be no litigation when the discretion was exercised at the obligation stage.
Chief Justice Warren E. Burger: Mr. Thompson, Mr. Jacks, it appears that you have not until recently and perhaps only today will have received the supplemental brief.
If you find that there is something in the supplemental brief that you'd like to comment thereon, will you kindly inform the clerks, so that the Court will be advised and for consideration until we have any comments that you wish to make.
Rebuttal of W. Thomas Jacks
Mr. W. Thomas Jacks: We certainly shall, Your Honor.
Chief Justice Warren E. Burger: Thank you.
Thank you gentlemen.
The case is submitted.