Transcript

IN THE SUPREME COURT OF THE UNITED STATES

RAYMOND KASSEL ET AL., Appellants, v. CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, Appellee

No. 79-1320

November 4, 1980

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 2:01 o'clock p.m.

APPEARANCES:

MARK E. SCHANTZ, ESQ., Solicitor General of the State of Iowa, Hoover State Office Building, Des Moines, Iowa 50312; on behalf of the Appellants.

JOHN H. LEDERER, ESQ., DeWitt, Sundby, Huggett & Schumacher, S.C., 121 South Pinckney Street, Madison, Wisconsin 53703; on behalf of the Appellee.

PROCEEDINGS

MR. CHIEF JUSTICE BURGER: We will hear arguments next in Kassel v. Consolidated Freightways.

Mr. Solicitor General, you may elevate the lectern if you wish.

ORAL ARGUMENT OF MARK E. SCHANTZ, ESQ., ON BEHALF OF THE APPELLANTS

MR. SCHANTZ: Thank you, Mr. Chief Justice, and may it please the Court:

Iowa appeals from decisions below, holding that a nondiscriminatory Iowa statute limiting the length of a twin-trailer vehicle to 60 feet unconstitutionally burdens interstate commerce. At stake here, however, appears to be the authority of the states to regulate vehicle lengths at all.

The Iowa Legislature has determined that the length of vehicles should be limited in the interest of safety. Implicit in that determination is a factual premise.

QUESTION: As a matter of fact, this is your sole argument here, isn't it, Mr. Schantz? Safety?

MR. SCHANTZ: That's correct, Your Honor. That's the sole interest of the State that is asserted in justification of the statute.

The premise is that safety concerns increase, safety concerns with motor vehicles increase as their length increases. And the central issue here is the proper scope of review by a federal district court of such a factual determination by a legislature. Iowa submits the District Court misperceived its fact-finding function and inappropriately substituted its judgment for that of the Iowa Legislature. Rather than making a de novo determination whether Iowa's 60-foot limitation promotes safety, the federal court should ask only whether, on this record, a reasonable legislature could believe that length limitations promote highway safety.

Put a little differently, Iowa contends the Court should not have asked, as it plainly did, does this evidence persuade me as a matter of adjudicative fact that a 65-foot twin trailer is significantly less safe than a 60-foot twin trailer, or a 55-foot semi? Rather, the Court should have asked, could a reasonable legislature conclude that the length of vehicles operating on highways should be limited in the interest of safety? If so could a legislature then conclude that it's reasonable to draw a line at 60 feet?

The question then is, what is the question? And we think both parties agree that if Iowa's limitation is properly viewed as a safety measure, Iowa should prevail. If not properly viewed as a safety measure, Consolidated Freightways should prevail.

QUESTION: Mr. Solicitor, suppose Iowa made a rule of difference as to whether it was raining or snowing, because there is a difference?

MR. SCHANTZ: That's correct.

QUESTION: It doesn't make too much difference how long a truck is in sunny weather, but in rainy weather it does make a difference, doesn't it?

MR. SCHANTZ: We think it does make a difference in sunny weather too, but one of the more critical differences certainly is when the roads are bad, and they are frequently bad in Iowa.

QUESTION: And when visibility is bad.

MR. SCHANTZ: Exactly. That is one of the principal safety concerns here, is with visibility, is with splash and spray that large trucks, long trucks, regardless of their configuration.

QUESTION: Do you think then that -- let's take the State of Wyoming or Colorado or some of the states with mountains and curved highways and steep, could have a shorter length than even Iowa?

MR. SCHANTZ: Mr. Chief Justice --

QUESTION: Let's say, just five feet, not -- five feet shorter? I want to keep it within reason.

MR. SCHANTZ: I think they could, within reason.

QUESTION: I mean, they couldn't say, no trailer trucks at all, could they?

MR. SCHANTZ: No twin-trailer trucks at all? I don't believe so, in the face of this Court's decision in the Raymond case, which our interpretation of, is a case that involved discrimination against vehicles with twin-trailers. So we would not say that they could promote, that they could exclude twin-trailer vehicles. Indeed, they must have some rational basis for treating them in any way different.

QUESTION: What would you say about Iowa's right to fix a 50-miles-an-hour speed limit when Nebraska and all the contiguous states were 60 miles an hour?

MR. SCHANTZ: We would strenuously argue that Iowa has that authority.

QUESTION: What if they dropped it down to 20 miles an hour?

MR. SCHANTZ: Well, with all line-drawing problems, as Justice Holmes, the quote in our brief from Louisville Gas and Electric, at some point it may be that a court should say that it's not --

QUESTION: That would be an undue burden, you would say, on interstate commerce, to say 20 miles an hour is the limit for trucks?

MR. SCHANTZ: I would not characterize it that way. I think the Court might then begin to wonder whether speed was the basis -- that a concern for safety based on speed was truly the basis for that determination. And if the Court found that, that would be a different case.

QUESTION: I don't understand that. Supposing the people of the state like to drive slowly and they have a 20-mile-an-hour speed limit for everybody in the state, not just trucks, and they enact it through their legislature saying, we think that it's pretty clear to us that if nobody goes faster than 20 miles an hour, we'd have fewer deaths on the highways. Why couldn't they do that?

MR. SCHANTZ: I think if they truly did it consistently, Your Honor, they could --

QUESTION: Well, presumably they would if they had a 20-mile-an-hour speed limit and everybody obeyed it.

MR. SCHANTZ: If they had a 20-mile-an-hour speed limit --

QUESTION: And I don't understand why you can't make the same argument on a 25-foot truck length too. They're probably safer than 65-foot trucks.

MR. SCHANTZ: I think that's probably correct, Your Honor.

QUESTION: Well, can't the state just adopt a 25-foot truck length? I don't understand.

MR. SCHANTZ: Well, I would be --

QUESTION: It has safety, it certainly has safety concerns associated with it.

MR. SCHANTZ: That's correct. That's correct. We would defend that.

QUESTION: Certainly one reason you might not want to adopt it is that trucks would in that event avoid Iowa, and Iowa merchants and so forth get profit from trucks of 55-foot length coming through Iowa.

QUESTION: That's a reason why they might not want to do it, but I'm assuming the legislature decides, we'd rather have safety than the business brought to us by 30-foot trucks.

MR. SCHANTZ: That's correct, Your Honor, and I think that reveals an important point about what's going on in this kind of line-drawing. It is really a question of how much safety at what cost. It may even be hard to identify a precise increment that you get from adjusting a line five feet.

QUESTION: that has echoes of the recent "benzene" case, does it not?

MR. SCHANTZ: I can't address myself to that, Your Honor.

QUESTION: Well, what -- let's hear it test it out further. Suppose they said, no trucks at all. Suppose the Amish took over control of the State, populated the State with a majority, and the Legislature was overwhelmingly Amish, and they said, no trucks, just horses and buggies. Because they're safer. They can demonstrate on the record that if you just have horses and buggies on the highways, you have fewer accidents and fewer deaths. Is there a point, in other words, when there is an undue burden, an unreasonable burden on interstate commerce, independent of whether this helped or hurt the local merchants?

MR. SCHANTZ: Let me say two things. First, it's not critical to our case that there be some limit. We would be prepared to concede that for argument. I think, though, it's a fully defensible position, to say that insofar as the record shows that the State is truly motivated by safety and that that's a rational concern, that this Court need not intervene under undue burdens on commerce grounds. For one thing, if because the decision to reject that is a legislative type decision, how much safety at what cost, and in that --

QUESTION: Do you really want to add, "at what cost"? Because I would think it's consistent with your argument to say, as long as they're interested in safety, and that they're entitled to decide how much safety, and that's the end of it. Isn't that your judgment?

MR. SCHANTZ: No, to be clear, I think any safety regulation could be stricter, or a state could invest more resources.

QUESTION: So you think there has to be a cost -- at what cost? There has to be a balance in it?

MR. SCHANTZ: Yes, I do.

QUESTION: You mean, in short, the safety, the burdens of the safety -- the burdens that safety imposes could be too much burden?

MR. SCHANTZ: On the contrary, Your Honor, it is just because it is a policy question of how much safety at what cost, that we believe this Court should leave that question to a legislature. And in the event that the states get it terribly wrong, if Iowa were to get it terribly wrong -- which it hasn't in this case, we submit -- Congress is there to substitute its judgment on that question of policy.

QUESTION: But Mr. Schantz, before you get to Congress, could the State ever be terribly wrong if it had an expert who was willing to get on the witness stand and say, I think there is a probability that this different regulation will save one human life?

QUESTION: I'd certainly be willing to defend that proposition and I --

QUESTION: Regardless of the cost impact on commerce?

MR. SCHANTZ: That's right. That's right.

QUESTION: Are you asking us to overrule the Wisconsin case?

MR. SCHANTZ: No, we're not, Your Honor, for two reasons. One is that Iowa did not default in defense of its length regulation, and I think that the Court's questions reflect that. This Court is persuaded that as a general matter length is related to safety. And we think the record supports the proposition that a legislature could reasonably find that.

QUESTION: Well, there was a two-week trial in this case, wasn't there, before Judge Stewart?

MR. SCHANTZ: Yes, and a very long period of depositions, Your Honor.

QUESTION: Perhaps it's irrelevant, but does the right to travel possibly enter into this total picture? Does the power of a state legislature go so far that it can impose limits which would be clearly barriers to the right to travel?

MR. SCHANTZ: Well, I think the right to travel cases, primarily, at least, involve the rights of persons to travel and not the right of carriers to transport --

QUESTION: But can a state say, if you want to travel through this state, you have to either walk or ride horseback? I think, as I understood it, that was the Chief Justice's question.

MR. SCHANTZ: In principle, as silly as it sounds, I think as a matter of Commerce Clause jurisprudence that is not a bad position. Congress is going to come along and tell us, now come on, Iowa, you've got to get into the twentieth century, if we tried to do that.

QUESTION: Well, to get to a more current issue, could Iowa ban all trucks which were carrying nuclear waste or hazardous waste from passing through it?

MR. SCHANTZ: Not from passing through it, because I think that would be a direct, probably would be a direct regulation of interstate commerce, Your Honor.

QUESTION: Well, but it's a safety. It would -- safety, safety, safety.

MR. SCHANTZ: Yes, and I think the state can do a lot of things that are reasonable to restrict.

QUESTION: Well, I know, but a state here says, instead of saying all nuclear waste trucks stay out, all trucks over 60 feet stay out.

MR. SCHANTZ: That's right, Your Honor.

QUESTION: That's pretty direct, isn't it?

MR. SCHANTZ: It's not a barrier in that sense, in that --

QUESTION: I'm afraid it is, that there are no trucks of that length allowed in the state, no matter what they're carrying.

MR. SCHANTZ: But the nuclear waste would not get through. In this case the freight can go through Iowa. It's not a barrier in that sense. And in fact, many general commodity carriers --

QUESTION: I know, but the trucks can't go.

MR. SCHANTZ: That particular truck can't go through, and if the limit were raised to 100 feet, Your Honor, that would still mean that a 108-foot truck can't go through, so I think we're still basically talking about a question of line-drawing by the Legislature.

I'd like to return to the question of how Raymond is distinguishable here. The evidence is one very critical distinction, I think. The other distinction has to do with the statutory framework of Wisconsin. Wisconsin's legal framework, I think, differed in critical respects from Iowa. One looks back at the Raymond case and the way that the legislation is set forth. In Wisconsin Consolidated Freightways could not operate a 40-foot twin, or a 55-foot twin. And it was somewhat irrelevant that the twin they wanted to operate was 65 feet in length as far as the law was concerned.

QUESTION: Because the law provided what?

MR. SCHANTZ: The law said, there was a general statute that said, that was referred to, that semis could operate at 55 feet without a permit. Semis beyond that length could not operate. That was the length limitation for the semi-trailer configuration. Now, the twins were advantaged and disadvantaged in comparison with that. There was another statute that said, you can get a permit from their DOT to run 100-foot trailer trains.

QUESTION: Trains; trailer trains. Which would be double bottom.

MR. SCHANTZ: Which was the regulation that applied to twin trailers or triples or how many ever additional you added on. So the Legislature said, if you get a permit from the DOT, 100 feet is okay. The DOT then adopted some regulations limiting the use of trailer trains to garbage trucks, raw milk, and empty trailers -- empty vehicles in transit, I believe. And so it was really because of their configuration that Wisconsin did not allow those trucks.

Now, the question of length got into it partly because of the way the lawsuit was defended, but it wasn't that statute which was challenged by Consolidated Freightways. All of their evidence was comparative safety, between the twin-trailer configuration and the semi-trailer configuration. Most of their burden claim focused on the cost savings, the interlining, the cost of dock handling that would be associated with the configuration of the vehicle as opposed to its length.

QUESTION: Mr. Solicitor, you're going to comment and give us your assurance about your border cities exemption?

MR. SCHANTZ: Your Honor, the border cities exemption -- the border cities provision -- I don't want to quibble about words, but I'm not sure it's an exemption, it's a classification addressed to what we think is a different situation.

QUESTION: I asked that at this time because of your reference to the Raymond case and its structure. And here you have a structure too of some kind.

MR. SCHANTZ: We think that is another difference between this case and the Raymond case. Iowa does have a series of length provisions, rather than one. We have one for semis; at this time it was 55 feet; it's now been increased to 60. For twin trailers, it was 60 feet; for buses it was 40 feet. For vehicle carriers it was 65 feet; for livestock carriers it was for 60 feet. And for vehicles going in and out of border cities, those border cities which passed a local ordinance, they could borrow the limit of the adjacent state.

QUESTION: Well, counsel, following up on Justice Blackmun's question, Iowa is somewhat peculiarly situated with respect to border cities, isn't it, in that being bounded by the Mississippi on one side and the Missouri on the other, you have Dubuque, Clinton, Davenport, Keokuk, Fort Madison on the Mississippi side?

QUESTION: Council Bluffs.

MR. SCHANTZ: Council Bluffs on the Missouri side, yes.

QUESTION: Sioux City and Council Bluffs on the other, so that a remarkable percentage of the population lives in identifiable border cities.

MR. SCHANTZ: I don't think the record reflects that precisely, Your Honor, but that would by no means be a majority of the population of Iowa. Several of the larger cities -- Des Moines is three times larger than any other city, and it's pretty much right in the middle. Cedar Rapids; Waterloo.

QUESTION: Compared to Wisconsin?

MR. SCHANTZ: I think more of the population in Wisconsin is inland; yes, Your Honor.

QUESTION: Well, are other kinds of trucks permitted to exceed this length limit too?

MR. SCHANTZ: Yes, it doesn't have anything to do with twins versus semis. You can run larger livestock carriers and insofar as the record discloses the history of that, it is basically that for many years the length limitations were not enforced.

QUESTION: The livestock trucks run all over the state.

MR. SCHANTZ: Sixty-foot livestock trucks, which is the same limitation for twin-trailers. We don't give the livestock trailers any special break.

QUESTION: While we're on geography, is it relevant to this case and the problems of the case that Iowa is something of a crossroads in a sense, at least one of the main crossroads for east-west traffic and north-south traffic?

MR. SCHANTZ: From Consolidated Freightways' point of view, frankly, I'm sure it is relevant, just as Pennsylvania being between Boston and New York on interstate highways.

QUESTION: Iowa is pretty big to detour if you're going from Minnesota or Winnipeg down down to New Orleans, isn't it?

MR. SCHANTZ: That's a significant -- we would not suggest that's an insignificant detour. But we would suggest --

QUESTION: Would you suggest, perhaps, it just relates to the pain that they're suffering, not to the constitutional issue?

MR. SCHANTZ: Exactly, Your Honor. Because we don't think that because Georgia is not on a major route between two states that allow longer trucks that they are entitled to have a different rule than Iowa. So we think the Court must address, really, ultimately, the general question of whether the states are going to be free to adopt reasonable length limitations.

QUESTION: Mr. Solicitor, did you argue the case in the 8th Circuit?

MR. SCHANTZ: No, I did not, Your Honor.

QUESTION: I wonder if you have any comment about Judge Henley's obvious suffering dubitante about the full crew law.

MR. SCHANTZ: We think that -- well, perhaps that didn't completely describe our argument. We think that the insight in that dubitante opinion is very much what we are arguing for.

QUESTION: And he shouldn't just have been dubitante.

MR. SCHANTZ: We think it would have justified a full dissent, Your Honor. Because I think when we separate the questions of whether length is generally related to safety, which was really the kind of question that was addressed in the Brotherhood case -- and I've also called it the Firemen case, and I apologize for that -- the Brotherhood of Locomotive Enginemen and Firemen, the question the Court asked there was, is the number of people on a crew generally related to the safety of the operation of the train? And I think it was clear from the opinion that the Court didn't think it was much related, but they thought that, it could reasonably be thought that it was. And the Court did not think a federal court should decide whether you had four crew members or five. And a similar point was made in the concurring opinion in Ray v. Atlantic Richfield, where the question of the size of oil tankers came up, 120,000 deadweight ton limit. The oil companies had 150,000 deadweight ton tankers they wanted to use. The Court didn't really address, implied that this is for the legislature, where you draw the line. Could you reasonably think that the size of tankers is related to safety and environmental concerns? In the opinion Justice Marshall stated the evidence was in conflict and therefore, it's a safety regulation, and when you get into that safety generally prevails.

QUESTION: Suppose you read the opinion below as saying, well, we understand what the right standard is. We should ask whether a reasonable legislature could possibly have thought this was related to safety, namely, limiting to 60 feet rather than 65, or 55 rather than 65. And so, applying that standard we find that there is no relation to safety, and that a reasonable legislature was just away off base; it was irrational. It's permitted to go that far, I suppose?

MR. SCHANTZ: I think if Consolidated Freightways could demonstrate it.

QUESTION: Is the Court permitted to go that far? That's the proper standard, I understand from you.

MR. SCHANTZ: Absolutely. If the Court can say that no reasonable legislature could believe that length was related to safety --?

QUESTION: No, no, no; that no reasonable legislature could believe that its length limit is any safer than Missouri's.

MR. SCHANTZ: That five feet makes a --

QUESTION: Any difference. Suppose the Court concludes that just no reasonable legislature could possibly think this. They just got blown over by something.

MR. SCHANTZ: Well, that was really the point I was addressing, Your Honor. I think to ask the question that way, which is really the way the Court asked it, I think, is to ask the wrong question. A reasonable legislature --

QUESTION: I don't blame you for taking that tack, but here the Court did say that Iowa's limit as compared with Missouri's has no relation to safety.

MR. SCHANTZ: The trial court said specifically, little if any difference, five feet of length. And the Court of Appeals said, applied a clearly erroneous standard, which we think is wrong, they should review that question of constitutional fact on the whole record, and asked whether or not -- let me start over. It seems to me that a reasonable legislature could believe that length is related to safety, could also believe that five feet does not make very much difference, and still think, we've got to draw the line here somewhere.

QUESTION: Well, are you just disagreeing with their judgment? Are you saying they really asked the wrong question?

QUESTION: They really asked the wrong question; that's your point?

MR. SCHANTZ: They really asked the wrong question, and if you ask the right question, I think it's clear that a legislature could believe length is related to safety.

QUESTION: Well, isn't it also clear that if you ask what you say is the right question the District Court would have come up the other way? Because the District Court said he was convinced that the Freightways had shown him convincingly but not overwhelmingly that there was no relation.

MR. SCHANTZ: That statement, Your Honor, plus the fact that the District Court called for preemption by Congress. It asked Congress to set a 65-foot limit. The only rational grounds, I think, for the Court calling for that is the Court's belief that on that record, as a general matter, length is related to safety. So we think that to focus on five feet is to slice the salami too thin.

QUESTION: So, the Court shouldn't be able to ask if five feet makes any difference?

MR. SCHANTZ: Not five feet within a reasonable general range; no, Your Honor. Maybe I wasn't clear. I think that is our position, and I think that's exactly what -- whether night turns to day at 6 or 6:15, to use Justice Holmes' example, is not a question that a court can find judicially manageable standards to answer.

QUESTION: Well, are you then saying that when it comes down to slicing it that thin, the phrase you used, then it's for a legislative body, not for a judicial body?

MR. SCHANTZ: Exactly. Because it is that kind of basic choice between a policy choice of values, cost, and safety, that is hard to defend at an intellectual level. And the Court, of course, I think must find standards that can be distinguished and developed at an intellectual level.

QUESTION: Mr. Schantz, I'm still a little troubled by your explanation of the Raymond case. You say that's not a length case and this is a length case. Well, why in constitutional terms is it different if the state that says, well, I think semis should be regulated in one way and twins in another? Why isn't this the same kind of safety judgment?

MR. SCHANTZ: It is the same kind of safety judgment. It is the same kind of question. And I read Raymond to say that on that record, on that record, a reasonable legislature could not believe that the configuration of vehicles, that having a different trailer, two trailers rather than one, makes a safety difference. The Court was careful to point out that had Wisconsin tried to defend that, they might have been able to show that. But they didn't. They defaulted. That's the relevancy.

QUESTION: But you would think they could reenact the same statute, just put a little different legislative history in and then they'd be okay?

MR. SCHANTZ: Well, no, because -- not the same statute. They can reenact a length limitation that is applicable to twin-trailers and if it doesn't discriminate between twin-trailers and semis, I see no reason why they shouldn't.

QUESTION: I don't know why they can't discriminate between twin-trailers and semis if they should happen to think one is safer than the other.

MR. SCHANTZ: Well, because -- perhaps they could relitigate that point --

QUESTION: And if it's a rational judgment.

MR. SCHANTZ: It has to be a rational judgment. And this the Court has said, we're going to let the carriers try and prove to us that it's totally irrational. And what I think Raymond means is that in that case they did, as with respect to the variable of configuration but not with respect to length.

With the Court's permission, I'd like to leave remaining time for rebuttal.

MR. CHIEF JUSTICE BURGER: Very well. Mr. Lederer.

ORAL ARGUMENT OF JOHN H. LEDERER, ESQ., ON BEHALF OF THE APPELLEE

MR. LEDERER: Mr. Chief Justice, may it please the Court:

QUESTION: Let me -- before it interrupts your line of argument -- ask you this: suppose in an evidentiary hearing it developed that a significant number of accidents on the road by over-the-road trucks of whatever size, but the large ones, is the result of drivers going to sleep or otherwise having some problems. And therefore the state would require that any truck going through that state has got to have dual controls and two operators, the way they do in airplanes. Do you think that's carrying it --

MR. LEDERER: If in point of fact drivers falling asleep were causing accidents, I think that would be a perfectly legitimate state regulation. I am in agreement with my brother Mr. Schantz, if a state regulation promotes safety, if in fact it promotes safety, I think in general, absent discrimination, that regulation should be upheld.

QUESTION: Who decides whether in fact it promotes safety, the courts or the legislature?

MR. LEDERER: I think that is a factual determination that has to be made by the Court. And there are several reasons for that.

QUESTION: Well, if the state says that 13 percent of the accidents occurred because of drivers going to sleep or other malfunctioning of the driving and therefore dual controls will protect that, does that bring it under the McGowan v. Maryland rational basis, or not, in your view?

MR. LEDERER: At this Court we're not dealing with the Equal Protection Clause and we're not dealing with the Fourteenth Amendment and due process. We're dealing with the Commerce clause. And I think the test under the Commerce clause has to be different than the test that's applied under the Fourteenth Amendment. The rational relationship test is an inappropriate test under the Commerce Clause. And the reason basically is because under the Commerce Clause you have a direct conflict between the state government and the interest of the national government. In that situation you can't turn to the state and say that the state should be the arbiter of that conflict, and so long as there is any rational relationship whatsoever we will defer to the state.

In this case I think the thing that perhaps is most important, because, as I say, I'm in agreement with Mr. Schantz, if the Iowa regulation promoted safety, we wouldn't be here. But the record in this case is conclusive. The Iowa regulation does not --

QUESTION: Mr. Lederer, you say the record is conclusive. And you cite in your brief at least three times the Brotherhood case, which says that the district court's responsibility for making "findings of fact certainly does not authorize it to resolve conflicts in the evidence against the legislature's conclusion, or even to reject the legislative judgment on the basis that without convincing statistics in the record in support of the legislative viewpoint constitutes nothing more than what the district court in this case" -- that is, the Brotherhood case -- "said was pure speculation."

MR. LEDERER: I think you have to draw a careful line between two things. I do not think it is in the province of the federal courts to determine that if there is a slight advance in safety, the economic burden outweighs that slight advance. The decision of how much safety is a political decision, and that's a decision that has to be reached by a legislature, be it state or federal.

What this Court can determine -- not this Court, but the federal court, the trial court can determine the factual case, the factual question of, does it promote safety at all? That is a factual question and susceptible of proof.

QUESTION: But Judge Stewart then, in effect, found against you, because he said the evidence in your favor was convincing but not overwhelming.

MR. LEDERER: Well, no, he didn't quite say "not overwhelming." He said, "the evidence, convincingly if not overwhelmingly." He also, in other places in the opinion, referred to it as "clear," and referred to it as conclusive.

QUESTION: But there were witnesses from both sides and he had to pick one side or the other to believe, didn't he?

MR. LEDERER: That's correct. But I don't think that this case can be distinguished from Raymond on the ground that in Raymond the state defaulted and here the state was able, not to default, but through the vigor of its counsel, to find some expert witnesses, no matter how questionable their expertise, and no matter how contradicted their testimony was by other witnesses, and no matter how restricted their testimony was; and to say that's the difference upon which a Commerce Clause case ought to be decided one way or the other.

QUESTION: Well, I should think Consolidated would have its own bevy of witnesses that it could produce on these occasions too, to say that there's no effect on safety.

MR. LEDERER: That's right. I think -- you know, first we have the question, of course, the trial court has to determine the evidence. I think, though, that --

QUESTION: Does it try the statute literally? You say that's to determine the evidence.

MR. LEDERER: I think there's a distinction that has to be made here between two types of statutes. If you have a situation such as we have in Iowa, in Iowa if the 65-foot twin trailer vehicle, the vehicle itself, is unsafe, then Iowa's regulation promotes safety. If the 65-foot twin trailer vehicle is safe, then the effect of Iowa's regulation is to cause accidents, injuries, and deaths that need not occur, because Iowa increases the hazard to the interstate traffic by forcing it to go around the State.

QUESTION: Or having more vehicles on the road in Iowa.

MR. LEDERER: Or having more vehicles on the road in Iowa if, rather than running your twin trailers around the State, you choose to run semis through the State. In that situation it seems to me that the trial court has to determine what the evidence is, whether the regulation does promote safety or does not promote safety. And I distinguish that case from a second case in which you have a regulation by the state which might promote safety but if it's ineffective causes nothing other than economic burden. In that case I think perhaps the courts would be fully justified in giving an extremely strong presumption of validity to the state regulation.

QUESTION: Well, doesn't the Brotherhood case say that, that the district court has no authority to resolve evidentiary conclusions one way or the other against the judgment of the legislature?

MR. LEDERER: To an extent the Brotherhood case does say that. But the Brotherhood case can be distinguished on the basis that what the Court was addressing was not so much the question of whether the train crew promoted safety or didn't promote safety. What the trial court did that it should not have done was determine that that advance in safety, no matter how slight, was outweighed by the economic burden. There's a suggestion in the opinion in Brotherhood, and more specifically in the trial court's opinion; in the three-judge panel's opinion you find a strong suggestion that in Brotherhood the trial court found that there maybe was some increase in safety, it just wasn't very much. And given the fact that it wasn't very much and the burden was great, it ought to be rejected.

We don't suggest that that's the proper test. What we suggest is on the record in this case. There is no promotion in safety; in fact, what's happening is because that 65-foot twin-trailer vehicle is safe, what's happening is that unnecessary accidents, injuries, and fatalities are occurring.

QUESTION: Are you then defending squarely the Court of Appeals decision or not?

MR. LEDERER: Yes, Your Honor.

QUESTION: And its rationale?

MR. LEDERER: Yes, I will --

QUESTION: You're embroidering it a little bit, aren't you?

MR. LEDERER: I'm embroidering it a little bit. I disagree slightly with the Court of Appeals, and I think in the brief we did make the argument that it didn't have to distinguish --

QUESTION: Yes. You didn't make this argument that you just made, in the Court of Appeals?

MR. LEDERER: Not in its full form, Your Honor.

QUESTION: All right. Then, let me ask you another question. Suppose the District Court had resolved the case the other way on the facts and had said that, gee, we have a range of experts here, we've got five on this side and five on that side. And suppose it decided to just pick the other side? Do you think the Court of Appeals would have reversed?

MR. LEDERER: No, I do not.

QUESTION: Well, then, how can you possibly say that no rational legislature could have decided that there was a safety factor involved here if the District Court on the evidence before it could have come out the other way and withstood an appeal?

MR. LEDERER: I think the difficulty is, are we looking at the hypothesis of what the Legislature could believe or are we looking at what the facts are?

QUESTION: Well, the facts are -- those aren't always -- that depends on what a district judge finds, that here's a -- you just can't go around and recognize facts, like -- they don't grow on trees. Here are these witnesses saying what the facts are, and there are five on one side and five on another. And if you tell me that the district judge would have been sustained either way he decided on that evidence, I don't know how you can say the Legislature's judgment should not be accepted.

MR. LEDERER: I'm sorry, Mr. Justice White, I believe I misunderstood your question. Had Judge Stewart on the evidence in this case --

QUESTION: Yes.

MR. LEDERER: -- held the other way, I think we could have met the clearly erroneous standard. I do not --

QUESTION: You don't think the Court of Appeals --

MR. LEDERER: -- think that there was sufficient evidence for the State to be able to sustain its case even under the right standard for appellate review. This case is one-sided.

QUESTION: Of course, it isn't "clearly erroneous." I'm not sure that's the clearly erroneous standard that's applicable in that case. Taking the U.S. Gypsum case at 333 U.S. which I think lays down the basic clearly erroneous test, it's that while there is some evidence to support the trial court, the preponderance is heavily against. Would you be satisfied to settle for that?

MR. LEDERER: I think perhaps it would be best to reach it this way. Returning to the initial question of, well, suppose the Legislature had a rational basis, you know, what the Legislature could believe can justify many things in a Commerce Clause case. I don't think the question should be, what could the Legislature believe. In fact, the evidence in this case -- and we have a very curious record, because we had the Governor as a witness for the defense -- the evidence in this case shows that the Legislature did not believe that the 65-foot twin-trailer vehicle was an unsafe vehicle. The Legislature in Iowa passed a bill that would permit 65-foot twin-trailers. That bill was vetoed by the Governor. The Governor stated in his veto message the reasons for the veto. There is nowhere in that message -- and the Governor stated on the witness stand that that message stated all of the significant reasons for the veto -- there is nowhere in that veto message, the suggestion that 65-foot twin trailers are less safe than 55-foot semis. There is --

QUESTION: But that's not the enactment of the statute. That's subsequent legislative history. When was the 60-foot limitation enacted?

MR. LEDERER: I believe in 1963.

QUESTION: So this is a 17-year-old statute. Was it unconstitutional when it was enacted?

MR. LEDERER: No.

QUESTION: When did it become unconstitutional?

MR. LEDERER: I think it became -- unconstitutional and I shouldn't so quickly say, no -- sometime around 1963.

QUESTION: When the neighboring states moved to 65 feet, that made the Iowa statute unconstitutional.

MR. LEDERER: I think when the neighboring states went to 65 feet, far more pertinently, when 65 feet became the national standard --

QUESTION: Well, whatever -- Iowa had a constitutional duty to step into line. Is that your point?

MR. LEDERER: I think that's correct.

QUESTION: Whenever it --

MR. LEDERER: Given the fact that the 65-foot twin-trailer is a vehicle as safe as the 55-foot semi --

QUESTION: What's your authority for saying the 65-foot trailer is the national standard?

MR. LEDERER: Your Honor, there is a Society of Automotive Engineers standard for interchange, there's extensive testimony in this case that no other vehicle other than the 65-foot twin-trailer used in general commodity carriage can be interchanged. The Iowa Twin Trailer Study -- Iowa conducted an extensive study of the safety of these 65-foot twin-trailers, and came to the conclusion that they're safe. That study also came to the conclusion that only the 65-foot length could be interchanged, in other words operated --

QUESTION: You're not talking about an Act of Congress or of any governmental body, you're simply talking about the practicality of --

MR. LEDERER: Practicalities, that's right.

QUESTION: You're urging that a burden upon interstate commerce arose at some point?

MR. LEDERER: That's correct. That's correct, and when it arose was when the 65-foot twin-trailer became the standard vehicle.

QUESTION: Well, but Mr. Lederer, supposing that the safety evidence all showed that as of whatever date it was, everybody was satisfied 65 feet was just as safe as 50 feet, but they also realized 50 feet was a little more dangerous than 40 feet. Could they have, instead of going up to 65, said, we think we'll be very safe in Iowa if you cut everything back to 40 feet. Why couldn't they have done that?

MR. LEDERER: I think that would present a far more difficult question than does this case. I think it would be a serious question whether Iowa --

QUESTION: Are you saying that they had a constitutional duty to lengthen, to increase the permissible length, even though the 60-foot length could be demonstrated to be safer than, say, a 35-foot length or a 40-foot length?

MR. LEDERER: I'm sorry. What I'm saying --

QUESTION: Isn't there a difference between saying that the difference between 60 and 65 feet is zero, but that doesn't mean 60 feet has no relevance to safety.

MR. LEDERER: That's correct. Sixty feet may well have a relevance to safety, but what Iowa has shown by its legislation is that Iowa accepts as a reasonable standard of safety the 55-foot semi-trailer, which is, you know, the most common vehicle, and the 60-foot twin, which is a highly uncommon vehicle. We have shown on the facts, clearly, conclusively, that the 65-foot twin is as safe as either one of those vehicles. Now Iowa does pick up a very significant safety advantage by prohibiting the 65-foot twin.

QUESTION: Well, is it a difference whether that kind of evidence persuades a district judge or persuades a state legislature?

MR. LEDERER: I think the problem is quite simple. The Iowa Legislature has acted wisely in this case. Sixty-five foot twins are are as safe as 55-foot semis. Nonetheless, from the perspective of Iowa, the Iowa Legislature has acted properly. Sixty-five foot twins are very limited-purpose vehicles. They are used for large general commodity carriage, interstate carriage. Iowa is not a large manufacturing state; such manufactories as it does have are located generally along the borders; certainly there are some in Des Moines and other cities, but the borders are industrialized. What they do by prohibiting 65-foot twin-trailers is they prohibit interstate through traffic. It has no benefit to Iowa. It's merely passing through Iowa because Iowa is the geographic location where the best east-west route lies. By prohibiting 65-foot twin trailers Iowa gets rid of that traffic. It's of no benefit to the State and it achieves fewer accidents in Iowa, because it's reduced traffic generally, and advantages for the Iowa motorist because it's reduced traffic generally -- that, I would assert, and I think, you know, the Governor's veto message certainly suggests it, is the principal reason why the Iowa Legislature has retained their 60-foot twin-trailer limit, particularly since the border city exemption removes much of the political pressure in the state for 65-foot twins. The result is that Iowa is shifting to other states and to interstate commerce in general, not only shifting the safety burden, but also increasing it. Because you have to go around the State and that's a longer trip, a significantly longer trip.

The result is, is that there are fewer accidents in Iowa and more accidents on the route around Iowa than there would be otherwise, and in fact far more, because the route around Iowa is largely two-lane highway, whereas the route through Iowa is on I-80, which is an interstate highway.

QUESTION: Someone might reasonably argue that the cure for that is for the other states to copy Iowa.

MR. LEDERER: Well, it would not so long as you accept the assumption -- and it's not an assumption in this case, it's proved -- that the 65-foot twin-trailers are as safe as 55-foot semis. You have the exact same problem. Iowa suggests, why don't we run 55-foot semis through the State? Aside from the problems in the rest of the system, you'd have to run more trucks to carry the same amount of cargo, and if you run more trucks through that's going to mean more accidents.

QUESTION: Well, isn't there a certain domino theory to your argument? If you can persuade Minnesota to enact a law allowing a 100-foot trailer, then you've got an argument that Iowa's burdening interstate commerce by not allowing a 100-foot trailer?

MR. LEDERER: I don't -- early in the process I think you could argue, yes, it's a domino problem. But we're past that early point in this case. Sixty-five foot twin trailers are a widely accepted standard everywhere in the country except the east coast. There's a map in the appendix that lays out which states permit them and which don't. Those states that don't permit them are all east coast states, generally contiguous, with some minor exceptions. Iowa sits in the middle of a region and is the only state that prohibits 65-foot twins, and because of its geographic location astride Interstate 80 is a crucial state.

QUESTION: Your argument would say that all of the 13 eastern states, or however many they be, could be forced to accept 65-foot twins too since presumably they're as safe in the east as they are in Iowa.

MR. LEDERER: I think the safety question would be the same. I think you'd have some problems with the burden on interstate commerce. The burden that Iowa imposes is as large as it is in large part simply because of Iowa's geographic relationship. It's in the middle of routes that are run with 65-foot twins because all the states around Iowa permit 65-foot twins, because it's on the major transcontinental east-west route. What's passing through Iowa are shipments from Chicato to Los Angeles, from the industrial midwest out to the west coast and back.

QUESTION: Well, then, you'd really have a stronger case than the Raymond in Wisconsin, which is not on that route.

MR. LEDERER: That's correct. Wisconsin was on a route, but certainly in terms of importance I-80 is probably a more important route than that through Wisconsin.

QUESTION: Well, suppose Iowa just said, we have too many cars and trucks on our roads and we're just going to ration travel, and they just by lot reduced the number of trucks on their roads by half, in order to promote safety?

MR. LEDERER: If two conditions were met, one --

QUESTION: Nondiscriminatory; yes.

MR. LEDERER: -- nondiscriminatory.

QUESTION: That would be hard, I grant you, in my example.

MR. LEDERER: And two, that there truly was a problem on the roads. One of the pieces of evidence in this case --

QUESTION: Well, there's always a problem on the road. Too many accidents.

MR. LEDERER: The evidence in this case shows very clearly that Interstate 80 through Iowa is at present not an interstate highway that's reaching the saturation point that you see around this city, for example. There's a level of service study, there are traffic and engineering studies which show that there's more capacity on Interstate 80 and the presence or absence of the twin-trailer traffic on that highway is not going to make a difference.

QUESTION: Well, aren't you attacking the -- the statute surely applies to trailers on local roads?

MR. LEDERER: We're not attacking the statute as it prohibits 65-foot twin-trailers on local roads. The burden in this case comes from the fact that what Iowa is doing is stopping interstate through traffic, that through traffic goes on the interstates. The voyages would be entirely on the interstates.

QUESTION: Why aren't you attacking it on -- insofar as it applies to local roads?

MR. LEDERER: We simply would not be able to show a significant interstate burden.

QUESTION: Why not?

MR. LEDERER: Because --

QUESTION: Aren't there any goods delivered into the interior of Iowa of goods from out of state?

MR. LEDERER: Not in significant volume and not by my client, Your Honor.

QUESTION: Well, how about Maytag washing machines in Newton, Iowa?

MR. LEDERER: Perhaps some understanding of the way the general commodity system functions -- normally, pickup and delivery of goods is made in Consolidated's system by what's called the short semi or broken-down double. It's half of a twin-trailer, short semi truck. That's legal --

QUESTION: So your terminals are along I-80?

MR. LEDERER: That's correct. However, I should to be perhaps fair state that there's simply not very much traffic going into or out of the interior of Iowa. Iowa is not a heavy industrial state. Most of the goods that are shipped in twin trailers are manufactured goods.

QUESTION: Mr. Lederer, your argument based on the Governor's veto message that the real purpose of the legislation is to divert traffic around Iowa would support the argument that there is purposeful discrimination against interstate commerce, in effect?

MR. LEDERER: Yes, sir.

QUESTION: I can't remember, did the District Court make any findings that would establish that?

MR. LEDERER: The District Court made a curious finding. The District Court found the Iowa legislation to be nondiscriminatory because it promoted what the District Court found to be the state goal of diverting traffic around Iowa. The District Court then went on to say, that goal has at least the aura of protectionism to it. So the District Court specifically found that there was no discrimination in the numerous exemptions.

QUESTION: What you're saying is that the facts that it found really demonstrate discrimination?

MR. LEDERER: The facts that it found really demonstrated discrimination.

I think the -- I don't suggest that this Court should consider the Governor's veto message, or even the legislative history. And there's perhaps another item to the legislative history, is after the Governor vetoed the 65-foot twin-trailer bill, the Legislature then passed the bill for the border city exemptions, and the Governor in his veto message said specifically, I wouldn't have any objection for goods going to or from Iowa. I just want to get rid of the through traffic.

But the Legislature then passed the border cities exemption. It also delegated to the Transportation Commission the power to permit 65-foot twin trailers. The Transportation Commission had an extensive factual study that was prepared by the Iowa Department of Transportation and it was intended to be a comprehensive study of all the aspects of 65-foot twin-trailers. That study found that there weren't any safety differences to the disadvantage of 65-foot twin trailers. The vehicles were safe. The Transportation Commission then legalized 65-foot twin trailers in the State on almost all the primary roads in the State, including the interstates.

QUESTION: Would the Legislature have the right to disbelieve that, or regard it as contrary to the collective experience and observation of all of the legislators?

MR. LEDERER: If we were dealing with a statute that only affected Iowa and if the question before the Court was, did the Iowa Legislature act wisely? Yes, of course. Under due process, under equal protection, the Iowa Legislature could do such a thing. But we're not here on due process or equal protection. What's happening here is the Iowa Legislature is making a determination that distinguishes between interstate through traffic and local traffic, but it's making a determination that benefits Iowa. Unquestionably it is a wise decision from Iowa's point of view. If the Iowa Legislature has made an error of fact, it is a grossly unwise decision from the national point of view, because what it has done is harm the safety of interstate commerce as well as imposing an economic burden. In that situation you cannot defer to the Iowa Legislature's factual judgment.

QUESTION: Would you say the same thing if they reduced the speed limit from 55, some sort of a national limit that we have, to 45 or 50, on a showing that this would reduce the number of accidents but it obviously would increase the cost?

MR. LEDERER: If all it did was increase the cost and it reduced the number of accidents, I think the Iowa Legislature would have acted properly and we could not win the case under the Commerce Clause. I do not think that this Court, under the Commerce Clause, should be in the position of balancing on the one hand increases in safety and on the other hand economic burden. Perhaps it's --

QUESTION: I take it you think -- what relevance to this case do you think the Pike case has? Any?

MR. LEDERER: I think the Pike case is relevant in that it establishes the overriding general test to be applied. We have here --

QUESTION: And a nondiscriminatory burden should serve some substantial state interest, is that it?

MR. LEDERER: I think -- yes; correct. I think the difference is that there has to be a corollary when you're dealing with safety. If what's being promoted at the local level is safety and all that's being harmed at the national level is economics, if it's just dollars, I don't think this Court should then step in and override the State Legislature.

QUESTION: Balance safety against dollars? So you just don't -- you don't think if safety is on the one hand and only dollars on the other, Pike is irrelevant?

MR. LEDERER: That's a political decision. That's right. And it should be made by a legislature. The situation --

QUESTION: Haven't you come pretty close to describing this case?

MR. LEDERER: No, Your Honor. The situation here is not that. On the one hand we have clear, convincing, and conclusive proof that the vehicle is safe. So we're not dealing with the case where the regulation promotes safety at least directly, in other words, by prohibiting a hazardous vehicle. The vehicle is not hazardous. Mr. Justice Marshall earlier referred to increased splash and spray. The vehicle, for instance, because of the difference in its running gear, puts out 20 percent less splash and spray than semis. The vehicle itself --

QUESTION: I will remember that the next time I pass one on the road.

MR. LEDERER: Your Honor, if you pass a twin-trailer, it will be less. There's quite conclusive proof of that, so we're not dealing with a case of a regulation which promotes safety directly. There's a second level though here. If that vehicle is safe, what we're dealing with in terms of burden is an economic burden, yes. But also a safety burden. Iowa's legislation makes it more hazardous to conduct interstate commerce. Regardless of what Consolidated does, whether it runs its goods at 55-foot semis, 60-foot twins, or runs them around the State in 65-foot twins, or shuttles them through the State in broken-down twins, that commerce is more hazardous. So you have a case where on the one hand you're promoting state's safety interest solely by reducing traffic, because the vehicle itself is safe. And on the other hand you're increasing the hazard of interstate commerce.

QUESTION: I don't understand your increasing hazard argument when the statute was enacted in 1963 and remained unchanged. It's the industry that changed. The law didn't change in Iowa. So I don't see how you can say Iowa has increased the hazard.

MR. LEDERER: I could express it differently. Iowa has prevented the industry in the area around Iowa from being able to conduct operations as safely as technological advances would permit.

QUESTION: You mean to amend the law? The trucking lobby has been unsuccessful in getting the law amended.

MR. LEDERER: For a very clear reason. Sixty-five foot twin-trailers are principally interstate through trucks. Local interests don't have a strong interest in twin-trailers. To the extent that they do the border city exemption substantially lessens that political pressure. I thank the Court.

MR. CHIEF JUSTICE BURGER: Thank you. Do you have anything further?

MR. SCHANTZ: Unless the Court has further questions.

MR. CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 2:59 o'clock p.m., the case in the above-entitled matter was submitted.)