GARCIA v. SAN ANTONIO METRO. TRANSIT AUTHORITY

Transcript: 

ORAL ARGUMENT OF THEODORE B. OLSON, ESQ., ON BEHALF OF THE APPELLANTS

Chief Justice Burger: We will hear arguments first this morning in Garcia against the San Antonio Metropolitan Transit Authority and the consolidated case.

Mr. Olson, you may proceed whenever you are ready.

Mr. Olson: Mr. Chief Justice, thank you, and may it please the Court.

The issue in this case is whether the national uniform wage and hour protections afforded by the Fair Labor Standards Act are available to employees of publicly owned transportation systems.

These protections are an otherwise indisputably legitimate exercise by Congress of authority expressly delegated to it to regulate commerce by Article I of the Constitution.

Beginning in 1966, the Fair Labor Standards Act was extended by Congress in stages to employees of publicly owned mass transit systems.

The San Antonio Metropolitan Transit Authority and the American Public Transit Association challenged the applicability of the wage and hour protections in the Western District of Texas based upon this Court's decision in National League of Cities versus Usery.

The Secretary of Labor and Mr. Garcia, a SAMTA employee, are defendants.

The District Court initially upheld the challenge without an opinion.

On appeal, this Court vacated the District Court judgment and remanded the case for further consideration in light of the Court's decision in United Transportation Union versus Long Island Railroad.

The District Court, notwithstanding that decision and three contrary Circuit Court opinions, the District Court again decided in favor of appellees.

Mr. Garcia and the United States have appealed directly to this Court.

To the extent that a federal regulation of states as states presents a danger to our federal system, National League of Cities articulated a limited immunity from otherwise valid Congressional regulation of commerce in order to prevent the utter destruction of the state as a political entity.

A federal law will not be stricken, however, unless it would directly impair the state's ability to structure integral operations in areas of traditional governmental functions.

Two years ago, in United Transportation Union versus Long Island Railroad, this Court unanimously concluded that a commuter railroad is not an integral part of traditional state activities generally immune from regulation.

Unidentified Justice: Mr. Olson, we remanded on that case, of course, but isn't there a distinction in that the Long Island case was a railroad that was part of the interstate rail system from the time it was established up to the time of the decision of this Court?

Mr. Olson: I submit, Mr. Chief Justice, that the difference is not a distinction that ought to have constitutional significance.

The transit systems that are at issue in this case are part of the interstate system also.

The Congress specifically held that.

The commuter railroad in Long Island's principal function was to move commuters from Long Island into the city of New York and back again.

There isn't any constitutionally based significance between whether the rail... whether the system operates on rails or rubber wheels.

The function was the same.

History cannot be cited to support transit as a traditional local governmental function.

In fact, appellee's notion of a tradition would seem to include anything developed during the last 20 years.

But states have never historically considered it necessary to their survival as sovereign entities to operate transportation enterprises, much less to operate such systems completely free of involvement by the national government on matters of national concern.

Municipalities, except in isolated circumstances, did not even enter the field for the first three-fourths of our nation's history.

In 1934, in Helvering versus Powers, this Court unanimously agreed with the Solicitor General that it was no part of the essential governmental functions of a state to furnish transportation to its people.

The Court characterized Boston's operation of a mass transit system, a street railway, as a departure from usual governmental functions, a business enterprise, and in the same category as the sale of liquor.

Thus, 50 years ago transit systems were not traditional governmental functions.

They were not considered governmental functions at all.

Unidentified Justice: You are not suggesting that a transit system is analogous to a liquor store, are you?

Mr. Olson: The transit system is analogous to a liquor store according to the Supreme Court's decision in Helvering versus Powers 50 years ago.

Unidentified Justice: Exactly, but 50 years ago streets were maintained by cities to enable people to be transported from one place to another, and would you analogize that at all to the mass transit systems that are now necessary to move people from one place to another?

Mr. Olson: We would submit, Justice Powell, that the analogy is still the same.

The state has entered into a field previously occupied by the private sector to furnish services that it deemed appropriate, the state deems appropriate for the citizens of that particular state.

The reference to the liquor industry was a reference to the South Carolina decision of about 30 years prior to the Powers case in which South Carolina had regarded it as a part of the function of their activities to take over the liquor industry in the state.

The fact that the states and the municipalities operate the roads is no different today than it was in 1934, so there is no constitutionally based significant difference between 1934 and today which ought to change the situation with respect to transit systems.

Unidentified Justice: I don't quite place San Antonio, but it is somewhere near the... at least the last time I was there, somewhere near the center of Texas, isn't it?

Mr. Olson: Yes, it is.

Unidentified Justice: Now, how does that link up with the interstate rail system?

Mr. Olson: It does not link up with the interstate rail system, but Congress has determined that transit systems in the cities have a significant impact on commerce in a variety of ways.

Those findings were first articulated by Congress when the Fair Labor Standards Act was adopted On 1938 in general terms, in terms of the effect of various different enterprises on commerce itself.

And then as Congress determined to extend the application of the Fair Labor Standards Act in this area, Congress made various findings with respect to the effect of a transit system and the employment of the workers in the transit system on commerce.

So, unless this Court is prepared to enter into an inquiry concerning whether or not the Fair Labor Standards Act is a proper exercise by Congress of its authority under the commerce power, I submit that there should not be different constitutional distinctions between types of exercises of the commerce power.

The railroad system is not unlike the railroad system in the Long Island Railroad, which may have linked up with the national railroad system, nonetheless was principally engaged in the business of carrying commuters from the suburbs to the city and back, so the system functionally is not any different than what we are looking at in San Antonio.

Now, since 1934, there have been some changes as far as transit systems are concerned.

The nation's larger municipalities have taken over the private sector activity in the transit field since that time.

In 1940, only 2 percent of transit systems were publicly owned.

This proportion had grown slightly to 8 percent in 1965.

It was not until 1979 that this figure jumped to 51 percent.

In short, as appellee's public literature declared in that year, 1979, public ownership of transit is a recent development.

Unidentified Justice: I suppose that has occurred primarily because the private sector can't operate a lot of these systems at a profit.

Is that right?

The public has had... the cities and local governments have had to step in because of the economic inefficiencies of the systems?

Mr. Olson: Well, that is the assertion, and it is very difficult to prove that one way or the other, Justice O'Connor.

Unidentified Justice: In that regard, if that is true, would you say that it is traditional that local government steps in to meet needs of residents of the local community which can't be met by the private sector?

Mr. Olson: I don't think that the analogy carries that far.

The reason that the states went into transit may be debatable.

The fact is that about the time that this transition became a very significant factor, the federal government, the Congress of the United States enacted the UMTA, the Act that I mentioned previously, which provided vast federal subsidies to support the acquisition and operation by the local governments of those transit systems.

So, to the extent that it might be said that transit systems couldn't be operated or couldn't be operated at a profit by the private sector, it was apparently true that it couldn't be operated by the local governmental sector either.

So it is not an appropriate jump to take that facet of the fact of taking over the operation by the local government entities to assume that it has then become a traditional governmental function.

Unidentified Justice: Well, I suppose you would, though, concede that it is traditional that government would step in to provide things for people that they can't provide for themselves within the community.

Mr. Olson: Government has done that sometimes.

Government doesn't necessarily provide everything that people cannot provide for themselves.

Unidentified Justice: Well, of course not, but it traditionally has been a basis for providing government services, has it not?

Mr. Olson: It has been asserted as a basis for providing government services, and I can't quarrel with that as a generalization.

Unidentified Justice: Would you agree, Mr. Olson, that over a period of 200 years, more or less, that something which at one time was a private function could become a governmental function just by the pressures of economics?

Mr. Olson: It is conceivable that it could.

I hesitate to say that it could not.

But I would suggest that the Court would be very reluctant to recognize that in the context of a Tenth Amendment constitutional analysis such as we are dealing with here.

We are talking about the Tenth Amendment as an essential protection of the sovereignty of states as states, and a preservation of the federal system.

The benchmark that this Court has always turned to in deciding what is necessary for the preservation of the federal system is to undertake an analysis of the relative powers and authorities of the states to the federal governments when the states first entered into the union in 1787.

So it is necessary, it seems to me, very firmly to be guided by historical reality and the relative allocation of powers, and when the state governments enter into something because they choose to operate it as an activity which they decide is something that they would like to provide for their citizens, that, in my judgment, and I believe... we submit to the Court it should not be the Court's judgment... could cause something to become... something that can be handled by the private sector suddenly to become a traditional governmental activity, something that is necessary for the states to perform in order to be states.

Unidentified Justice: Mr. Olson, I am sure you would agree that mass transit is a governmental function.

Mr. Olson: I would agree only in the sense that some... and today a substantial number of the mass transit systems in this country are performed by governmental entities.

In that sense, they are governmental functions.

There are many that are still performed by private industry.

Unidentified Justice: Not many relatively speaking.

Mr. Olson: Not many relatively speaking, but remember, the federal government has provided this assistance, so we are not just talking about governmental functions, but we are talking about traditional local governmental functions, and I might add that the briefs reflect the fact that in certain cases the cities contract out this function to private enterprises to perform the service for them--

Unidentified Justice: And subsidize those that are contracted out.

Mr. Olson: --Yes.

Unidentified Justice: But let me ask you this.

Would the federal government consider it a federal function to operate mass transit in cities that said, we expect you to do it.

You claim it is a federal function.

Mr. Olson: The federal government today is not claiming that it is a federal function.

Unidentified Justice: Whose function is it?

Mr. Olson: It is not necessarily a municipal governmental function.

It is not necessarily a federal function.

It is not necessarily a private function, any more than an oil utility or an electric power utility might be necessarily vested in one place in the spectrum of who can perform functions or not.

We are talking in terms of the Tenth Amendment, as I understand this Court's decisions, of what is governmental versus what is... and governmental in the sense of what it takes to be a sovereign entity.

We submit that it doesn't require in order for a state to retain sovereignty to operate the activity of transporting people from one place to the other, and I might say that the decision of this Court two years ago in the Long Island Railroad case substantially and overwhelmingly supports that proposition.

The Court again considered virtually the same question it considered 50 years before in Helvering versus Powers, and almost in the words of the Court itself, whether... that question was whether a publicly owned transportation system was immune from federal regulation.

Once again, and once again without dissent, the Court determined that the commuter system there was not an integral part of traditional state activities generally immune from federal regulation under National League of Cities.

Unidentified Justice: But was there not some considerable emphasis on the interstate aspects of that line, that it was linked up on both ends with the national railroad system?

Mr. Olson: Well, there was some emphasis in the Court's decision after the Court considered, most importantly, and I submit it appears from the Court's decision most importantly, the historical analysis to compare the respective functions of states versus federal governments and what is truly governmental, and looking back into the history, the Court first of all considered that.

Then, we submit, the Court entered into a functional analysis, or the case appears to suggest that, to determine whether the movement of people... and remember, this was primarily an activity designed to move people from one part of the city to the other.

The transit systems link up in interstate commerce.

The transit systems in Washington, D.C., for example, link up with National Airport.

They move into Virginia.

They move into Maryland.

They link up with other... They pick people up from the bus station or the train stations.

So, the transit systems are very much a part of the interstate commerce system, and not functionally or constitutionally distinguishable from the Long Island Railroad, we would submit.

Unidentified Justice: Before the Long Island commuter system was acquired by the local government, what was its situation?

Mr. Olson: The Long Island Railroad had been a private enterprise for a substantial number of years, well over 100 years.

Unidentified Justice: And regulated by what government?

Mr. Olson: Well, regulated by the federal government.

That, the Court went on to that in the third part of the Court's opinion in the Long Island Railroad case.

However, I think that that raises a very important... in order to escape the force of the logic of that decision, the appellees have landed on the fact that, and emphasized the fact that railroads, particularly the Long Island Railroad, have a long history of very specific federal regulation of railroads.

And they seize upon the Court's opinion which contained the language that there is no justification for a rule which would allow the states by acquiring functions previously performed by the private sector to erode federal authority in areas traditionally subject to federal statutory regulation.

It is not true that the federal government has not regulated transit systems, but certainly we do not believe that the Court was adopting a proposition that would suggest because only if there is a long antecedent history of specific federal regulation of a subject will it not be preempted by the Tenth Amendment.

That is sort of a use it or lose it theory whereby if the federal government doesn't regulate a particular activity, it might lose the power to do it under the Tenth Amendment.

And I submit that would require rewriting the Tenth Amendment to read,

"the powers not exercised by the United States are reserved to the states."

as opposed to

"the powers not delegated to the United States."

The power to regulate commerce is delegated to the United States.

It may have been exercised more or less up to its limits.

It may have been more close to the limits in the railroad situation than it ever has been in the transit system.

But the Tenth Amendment does not say that in order to preserve the power of the federal government over commerce it first must exercise that authority.

In fact, the functional analysis that we believe is at the heart of the Court's decisions in this area accords with reality.

Chief Justice Marshall may have said it the first time in the Planters Bank case in 1824, when he said that when the government becomes a partner in a trading company, it divests itself so far as concerns the transaction of that company of its sovereign character, and takes that of a private citizen.

Appellees urge a new approach on the Court.

They say that transportation is a service which the private sector can no longer provide, and that a transportation system is vital to citizens, and therefore it is an essential governmental function.

It is true that public authorities have unquestionably fostered a dependency in most large cities on government-subsidized transportation.

It may not be surprising that the private sector cannot provide or may not be able to provide alternatives to urban mass transit as operated by the states and the cities now, because the states and the cities, using federal funds, and using state funds, are operating those systems at 25 to 40 percent of the operating revenues.

They are operating them at a deficit, and in a sense they have precluded the development in that area of private sector alternatives.

We submit that if that logic is followed to its logical conclusion, the states would be able to take over utilities, the supplying of food, the supplying of gasoline.

There are a lot of things that are necessary to citizens, most citizens in our society.

The government could take over those functions, the state governments could, and they could begin providing those services to the citizens at a fraction of the cost, driving out the private sector, and then at the same time if that logic was followed by this Court, eroding the power of the federal government, shrinking it increasingly over the years, over commerce.

Unidentified Justice: Well, Mr. Olson, I suppose that the local citizens would exert some influence over their elected officeholders over the extent to which they want local government taking ever expensive new programs.

Mr. Olson: I am afraid that they--

Unidentified Justice: And with the concern that citizens have about tax rates, wouldn't they exert enough control that the dangers you speak of are really not realistic?

Mr. Olson: --There is a potential political check to that process.

Whether that would be effective or not, it is very difficult to say.

If you offer a citizen an opportunity of receiving electrical utilities in his home or heating it in the wintertime at one-fourth of its present cost to him, and then tell the vast majority of the citizens that that is going to be paid for taxes, it might well be that that pressure becomes inexorable to take over that function.

We submit that this Court would not support a theory that would allow the commerce power of the federal government, which is so vital to hold this country together, to eclipse federal authority in that way.

Unidentified Justice: You didn't mention water in that list of services that you recited, water that is supplied in every home.

What about that kind of a service?

Mr. Olson: Water?

Unidentified Justice: At one time that, of course, was done by private companies.

Mr. Olson: The history on water is not as clearly developed in the briefs of this case to lead necessarily to one conclusion or another.

I think the facts would support the proposition, however, that the government took over the function in the area of water substantially because government itself needs water, and needs a... it is a part of the government's process of preserving the health by preserving the quality of the water.

It is a part of the government functions in the sense that you need water to put out fires, which is an essential governmental function.

So, I would submit that the water is in a distinguishable category.

One final point, and then I would like to reserve the balance of my time for rebuttal.

The appellees have suggested that somehow the federal government should be displaced from this area because there was a history of substantial local regulation in the area of transit.

This is another, a second area, I submit, where the appellees are attempting to rewrite the Tenth Amendment.

They suggest that if an activity has a long history or an expansive history of regulation by the states, that somehow the federal government is precluded under the Tenth Amendment.

That is some sort of a change in the Tenth Amendment, almost like the prescriptive development of a prescriptive range of authority, and would require rewriting the Tenth Amendment to say the powers first exercised by the states would be reserved to the states.

Unidentified Justice: Mr. Olson, you are not suggesting there is anything wrong with rewriting the Tenth Amendment, are you?

The National League of Cities did that.

0 [Generallaughter.]

Mr. Olson: I haven't got a very good answer to that.

I think that the Court interpreted the Tenth Amendment and the implicit structure of federalism in the Constitution, and the result that we are seeking today is consistent with the Tenth Amendment and the National League of Cities cases.

The logic of the two arguments that the appellees have made which require, as I say, rewriting the Tenth Amendment, would bring us a qualitative step back toward the Articles of Confederation.

Providing transportation is a legitimate and laudable municipal objective.

The federal government supports it, and has contributed heavily to it.

Simply because the most populace cities have recently entered the field, however, does not mean that Congress's power to regulate commerce must be correspondingly reduced, and it would be an irony if federal funds which assisted in the evolution of this industry into municipal hands and caused a situation in which the federal protections for minimum wages for the laborers in that field would be pulled out from under those citizens.

Unidentified Justice: What would you say, Mr. Olson, if 100 years elapsed, and the statistic was that all of the mass transit systems in the United States were municipal or state-owned, none with any federal government aid in their inception?

Mr. Olson: I would submit, Mr. Chief Justice, that that would still not change the constitutional analysis and the urgency as set out in the Constitution of Congress's ability to control commerce.

Unidentified Justice: Then the federal aid in the inception is irrelevant?

Mr. Olson: It is not irrelevant, because we are looking at transit and municipal transit in the whole panoply of circumstances, and we are talking now in terms of a test that this Court has articulated as traditional governmental functions.

We are saying that it is not traditional.

It has just begun, in terms of its transition to the private sector, and the reason that it is there in substantial part is because of federal money, and that should not be able to erode the federal government's power to protect workers in the commerce section.

Chief Justice Burger: Very well.

Mr. Coleman.

ORAL ARGUMENT OF WILLIAM T. COLEMAN, JR., ESQ., ON BEHALF OF THE APPELLEES

Mr. Coleman: Good morning, Mr. Chief Justice, and may it please the Court.

The basic issue here is whether publicly owned local mass transit services, which almost all local governments provide today and upon which 94 percent of all persons who ride on local mass transit today are traditional government functions.

The court below found that such services are as traditional as hospital, recreational facilities, libraries, and museums, to name a few of the activities that the federal government has admitted today are traditional local governmental functions.

First, I would like to put before you a few of the facts.

In 1959, San Antonio concluded that it had to serve the local mass transit needs of its entire community, and the only way to do so was to own and operate such a system.

It acquired the local transit system without any federal funding, well before Congress attempted to regulate the minimum wages and overtime pay for any local mass transit worker, private or public, and well before Congress passed UMTA.

The same situation is true with many other American citizens.

SAMTA, a political subdivision of Texas, which by statute is performing an 1978, again without any federal funding.

In Texas today there are 18 urban mass transit systems.

All are publicly owned.

Nationwide, by 1979, publicly owned local mass transit systems provided, as I said, 94 percent of all mass transit rides in the United States, and took place on 90 percent of all mass transit vehicles.

A publicly owned local mass transit network is at least as vital to the health, welfare, order, and survival of the community as are the other functions listed in National League, and if you have any doubt about this, I would refer you to Page 33 and 34 of the SAMTA brief, in which the Congress indicated why it felt it had to begin to make contributions to local communities.

Justice O'Connor, the fact is, in the case of San Antonio, it was the citizens that voted to acquire the local mass transit company.

At the same time, the citizens voted and authorized the state to impose a sales tax on them to supplement the cost of operation.

Now, what does this vital public service cost the people of San Antonio?

The average cost per passenger was 66 cents.

The passengers on average paid only 18 cents.

A third of ridership was school children, the elderly, and the handicapped, all of which paid 10 cents per ride.

Downtown service was free.

The remaining cost of the service was paid primarily from local sales taxes, and to a lesser extent from UMTA grants.

Nationwide, in 1965, once again, before UMTA funding and before Congress first attempted to extend the Fair Labor Standards Act to any publicly owned system, 56 percent of all transit employees worked for public systems, and over half of the nation's 21 largest cities were served by public systems.

The great majority of people who ride public transit are the disadvantaged, the poor, low income workers, and school children.

No publicly owned system makes a profit.

All are heavily supported by state and local taxpayers.

Every one of the 14 major systems cited as private on Page 17 of the government's brief are now privately owned.

Thus the court below found that nationwide public transit benefits to the community as a whole is provided at a heavily subsidized price, and it cannot be provided at a profit.

Thus government is particularly well suited and in fact is the only component of society that can provide the service.

Government today is the primary provider of transit services.

Now, the government ignores these facts and says that you do not apply National League of Cities based upon four fallacious statements.

I say this because contrary to the government's position, one, it is the determination of wages and overtime pay that under this Court's opinions is essential to the state's separate and independent existence, not the state activity involved.

Next, federal funding by matching grant does not affect whether an activity is a traditional local governmental function.

Third, contrary to what the government says in its brief, transit was not singled out by Congress from other traditional activities for Fair Labor Standards Act coverage to prevent unfair competition.

And fourth, this Court has already established the impact of the Fair Labor Standards Act on traditional state functions, and has determined as a matter of law it is impermissibly intrusive.

Now, the first point of the government.

The government wrongly contends on Pages 24 through 38 of their brief and again on Page 14 and 15 of their reply brief that to be a protected traditional government function for purposes of the Fair Labor Standards Act, the particular service that the state provides to the public, not the state decision-making authority over wages and hours, is what must be essential to the separate and independent existence of the state.

EOC versus Wyoming is exactly to the contrary.

There, this Court started its analysis with the conclusion that the management of state parks is clearly a traditional state function.

Thereafter, the only dispute between the majority and the minority was whether the federal law affecting the state's ability to make employment decisions on the basis of age had the same intrusive effect on the states' ability to structure their integral operations as did the Fair Labor Standards Act.

The majority said no, and the majority said yes.

We believe the federal government slips into this fundamental error by wrongly reading EOC to require that the state activity involved, such as parks, hospitals, libraries, or museums, or as in EOC park game warden, must be a Code 4 function or core sovereign function in order to be traditional.

But the fact is that EOC used these words on Page 1066 of the opinion in Footnote 11 only for the purpose of comparing the intrusiveness of the Federal Age Discrimination Act on the state's right to establish a retirement age to the intrusiveness of the Fair Labor Standards Act on the state's function of determining wages and overtime pay, which it confirmed was a core state function essential to the state's independence.

The government's reading of EOC would lead to the absurd conclusion that a city's failure to provide a public hospital, a museum or park would destroy the state's independent existence.

As decided in National League and reaffirmed in Mr. Justice Brennan's opinion for the Court in EOC, it is the interference with the state's right to make wage and overtime pay decisions which destroys such independence.

This issue therefore, if stare decisis has any meaning, should no longer be challenged in the Fair Labor Standards Act case.

Unidentified Justice: But, Mr. Coleman, if that is the test, what about the Long Island Railroad case?

Mr. Coleman: Well, the Long Island Railroad, there the Court determined that basically the Long Island Railroad was not performing a traditional state activity.

At the time of the decision, there were 17 railroad commuting systems, only two of which were owned by the government.

Secondly, the Court there determined that when you are dealing with a railroad which is part of the interstate system, that Congress would not and the Constitution does not permit the state to carve out part of it.

Unidentified Justice: I am not sure I made my question clear.

Would you say that the federal government could not enforce the Fair Labor Standards Act against the Long Island Railroad?

Mr. Coleman: I would say that the Long Island Railroad... well, first, Long Island Railroad doesn't decide that issue either way, but I would say--

Unidentified Justice: Right, but if I understand your position, you are saying any Fair Labor Standards Act application to a public employee is impermissible.

Mr. Coleman: --No.

This would say traditional governmental function.

Long Island Railroad holds that the providing of commuter railroad service is not a traditional governmental function because at that time there were only two such systems in the United States.

There were 15 others which were all operated.

In addition, I think it is striking that when you read your cases or reread your cases, U.S. Parden, for example, Parden case, the one thing this Court has made clear is that when you are dealing with a railroad system, that there... which is part of a national system, that there the power of the Congress is supreme, and you do not cut it off, and I would just urge you to compare the decision in the Parden case with the decision in the Missouri employment case, where there, because you were dealing with providing... workers who provided health and welfare services, you there said the rule that you apply in railroad cases was not applicable, and it seems to me that under those circumstances, Long Island Railroad clearly does not cover this situation.

Unidentified Justice: Mr. Coleman, was it in Long Island that the Court said that in determining what is a traditional function, we do not use a static concept or approach?

Mr. Coleman: That's right.

It says it is not dependent just upon history, that something at one time could have been not pervasively in the public sector, as I assume the transit company in Boston in 1934, which had gone bankrupt, and to get it back on its feet, to put it back in the private sector again, they had the city being the trustee, but that was the only one that existed at that time.

Unidentified Justice: But did the Court use the words "static concept"?

Mr. Coleman: It said it could not... Mr. Chief Justice Burger clearly said it was not a static historical concept.

It was one that you looked at at the time you made the decision.

And here it is clear that by 1965 and even before that, that transit, mass transit was an essential local governmental function.

Now, the other argument that the government makes is that somehow because in part federal funding helped the city to move from a system where you had local privately owned and operated systems but regulated locally and privately to one today where just about every city is owned and operated by the public, that if that is so, then it cannot become traditional within the meaning of National League.

This just has to be simply wrong.

I just urge you to look at the situation with respect to public hospitals, which clearly are traditional.

It is clear today, for example, that only 36 percent of the hospitals are actually governmentally owned, even though you count all the federal hospitals.

It is also clear that through the Hill-Burton money and through Medicare and Medicaid, that the federal government has given much more support to the public hospitals than they have given to local mass transit, yet everyone here concedes, and I hope the government still does, that public hospitals would be a traditional governmental function.

I think when you turn to sanitation that the whole industry was revolutionized from private septic tanks to waste water treatment facilities beginning in the 1970's, and the federal government put up $33 billion in federal funding, more than twice the total federal funding of transit.

Once again, everyone agrees that sanitation is performed by the government and is a local traditional function.

But I think the government is especially wrong in basing its argument on UMTA funding in a mass transit case, since this Court declared in Jackson Transit that UMTA was not intended by Congress to impose federal labor laws such as the Fair Labor Standards Act on local government that has additional federal funding.

Unidentified Justice: Mr. Coleman, what if the government simply provided as a condition of getting the federal funding that the transit authority pay wages consistent with the Fair Labor Standards Act?

Mr. Coleman: That would be a completely different case, Your Honor.

As you know, under the taxing power, the government can impose conditions.

You first have, although there are not many cases, the Court today saying the whole doctrine of unconstitutional conditions, that the... I don't think the federal government could say, well, if you take the money, you have to segregate on the basis of sex on the buses.

I would say that that would be an unconstitutional condition.

Whether this one would be, where you give up your rights under the Tenth Amendment, I don't think any court has decided.

But the one thing is clear in all the cases, that here the government did not do that.

In fact, Mr. Justice Blackmun, in his opinion in Jackson Transit, goes through the legislative history and demonstrates that the federal government did not make that intention, in addition, and therefore that brings into play the Pennhurst case, where you said that you cannot claim that the government has imposed a condition unless it is specifically set forth in the statute.

Now, in this case, interestingly enough, it has been set forth just the opposite.

If you read Section 9(c) of the UMTA Act, you will... it says that the fact that you take this money is not to impose any conditions on you as to how you operate your system with respect to your employees other than those things specifically set forth in the statute, and this is not one of the things specifically set forth.

I also would like to call your attention to Justice O'Connor's opinion in dissent where she had three others in the recent Dixon case where, Your Honor, you made it clear that where the federal government establishes a program where it makes grants to the local community, that the one thing that the local community is not required to do is to give up its autonomy unless that was the condition of the grant, and in this case there is no provision that that was a condition of the grant.

Now, the third fallacy of the government is that local transit can be distinguished from the activities expressly protected in National League because the government wrongly says Congress singled out, and this is at Page 20 of their brief, public transit for fair labor standards coverage to prevent unfair competition with the private sector.

Now, actually, the government fails to tell you, Your Honors, that the same section of the 1966 amendment, which is Section 102(a) brought within the Fair Labor Standards Act schools, hospitals, and related institutions as well as transit.

The federal government's partial quote from the 1960 House and Senate Report is misleading, for as shown by the full quotation, which is on Page 39 of SAMTA's brief, Congress specifically stated that by the 1966 amendment it wanted to eliminate unfair competition in schools, hospitals, and other institutions as well as transit systems, each of which Congress embraced in the phrase "enterprise engaged in commerce", and as such they were specifically identified in the cited Congressional Report.

The federal government then cited the same pages of the same House Report in its brief in Maryland versus Wirtz to sustain application of the Fair Labor Standards Act to schools and hospitals, and then argued the same point, incidentally on the same Page 20 in the brief, in the National League case with respect to trash collection, agencies, recreational facilities, libraries, and the like.

Now, clearly today, since only 6 percent of the people in the United States that use mass transit ride on other than the publicly owned system, clearly today it is absurd to say that somehow the publicly owned system are competing with the private systems.

The fact is that there are no private systems, and for the simple reason that it is impossible today to serve the people of the community at a profit.

It is a necessity that you have this type of service.

It is as important today as keeping the streets repaired, and certainly at that point the people have voted either by the legislature or by referendum that this will come into the public sector, and that they will put up their tax money to support it.

Now, there is some hint in the government's brief that what they are really trying to do is protect people from being taken advantage of.

That isn't the case.

The minimum fair wage today is $3.35.

In the United States, the average transit worker today is making $9.01, and on SAMTA, the average worker makes $8.61 per hour.

The problem is that to serve the people properly, you have to have schedules.

It is like the police force.

It is one of those things where you have to have the work when you need the service.

People come to work in the morning.

They go home in the evening.

So you have the problem that people have to... you have to work people four hours in the morning, and then they take time off, and then they come back to take the crowds home at night.

Also, obviously, you plan the work for every person, and in San Antonio, for example, the schedules are planned so that if everything happens on time, you would get there... you work eight hours.

On certain schedules you select, however, you would have to work eight hours and 45 minutes.

In those instances, the... and if you did that for five days a week, if you took that other schedule, you could be working more than 40 hours, but you do not get the overtime pay.

In addition, there are all types of premiums.

You come in to work ten minutes earlier.

You have to fill out an accident report.

Or you ofttimes have to report to other than the depot, and so there are all these premiums, and this has been built up over a series of collective bargaining agreements through all of these locally owned mass transportation systems.

But if you then have to apply the federal law, the federal law talks in terms of a statutory rate, and they require you to roll in all those premiums as part of the basic hourly rate rather than the fact that you can, because you have agreed that for that you don't have to calculate that when you are paying overtime.

So if this Court now would say that somehow the Fair Labor Standards Act would apply to local mass transit workers, it would mean that the disruption in the industry would be as great as it was when the Court looked at it and determined that it would not be applied to policemen or firemen.

As I said, there is nothing in Long Island Railroad which changes the position that we have advanced here today.

Finally, I would like to say that Long Island... I mean National League invalidated the 1974 amendments as applied to traditional functions.

I think the government will concede that over 80 percent of the workers that Congress intended to cover, this Court said that under the Constitution they can't be covered.

Under those circumstances, the only way you could save the Act even if you would carve out an exception for transit would be that you would have to read into the Act what it says, but if a government employee is not involved in a traditional function.

I don't think that your cases say that you can add on.

They say that once you strip it down, you have to see whether what is left is constitutional.

Also, the Sloan case makes it clear that when you are convinced that Congress wanted a particular program, which was, and they got bold after the decision in Maryland versus Wirtz, and there the Court at that time held that there was no Tenth Amendment argument.

There Congress felt that they could apply it to every public employee, but this Court in National League reversed Maryland versus Wirtz, and says that can't be done.

It seems to me that even though you would try to find some argument where you could carve out mass transits, but I don't think you could, I think the responsible thing to do would be to knock out the whole statute and let Congress take a chance to see whether today under the situation they would want to impose this onerous condition on the state.

If National League, which this Court has distinguished but reaffirmed on numerous occasions since 1976, continues to have meaning, it must embrace local public transit systems as traditional governmental functions.

Few functions of government are as vital to the life of the community and the health and safety of all of its residents.

Providing public transit is not only an integral part of the city's historic responsibility--

Unidentified Justice: Mr. Coleman, may I ask you if your position applies to municipally owned utilities, power companies?

Mr. Coleman: --No, sir, because a municipally owned utility... we will take electric cases, if you are talking about an electric one.

Unidentified Justice: Right.

Mr. Coleman: The fact is that very few of the cities own such facilities.

Most of them are in the private sector.

In addition, they can be operated for profit.

In addition, they have not been services which have been traditionally performed by local government.

They are not traditionally services heavily supported by state and local taxpayers.

They are not--

Unidentified Justice: Does your position turn on the fact that throughout the country this particular function is generally owned locally, and if that is the case, and if you had an increase in municipal ownership of public utilities, would the constitutional rule change?

Mr. Coleman: --Well, I would think at some point it would, if you would have the eight factors which you have in the case of mass transit.

I have them listed here.

It provides... All of it is provided by the public sector, just about.

It is heavily supported by state and local taxpayers.

Cannot be provided at a profit, but cannot be abandoned.

Benefits the entire community.

Reduces congestion, pollution, and forces rational land use.

Knits together the community.

Users charges are no greater than for exempt activities such as sewage and hospitals.

Not subject to long-standing or comprehensive federal regulation.

There is a long tradition of state regulation.

Federal funding here is no greater than activities exempted in National League.

The states consider transit to be an essential governmental function.

If you have all those, and that was true through all the United States, unless we are going to start living in a society that can't change, at some point you would have to change.

Today, I would not stand here and say the operation of a utility in electricity or gas is a traditional local state function.

But as the Chief Justice pointed out, water is a different situation.

I mean, water at one time was owned privately.

When it was owned privately, it was regulated under the state utility law, but then water became so important and so essential that it then passed into the public sector, and if you read the Brush case, in that case the Court there says by the time of its decision in 1934 that it had become so pervasively owned by the cities and the states that it had passed into the public sector.

Chief Justice Burger: Thank you.

Mr. Olson.

ORAL ARGUMENT OF THEODORE B. OLSON, ESQ., ON BEHALF OF APPELLANTS -- REBUTTAL

Mr. Olson: Mr. Chief Justice, and may it please the Court, the last case mentioned by Mr. Coleman was the Brush case, which was decided in 1937.

In 1938, the Court in Helvering versus Gerhardt declared that Brush should not be interpreted as a decision bearing on the doctrine of constitutional immunity.

It had to do with the tax regulation, and the Court sharply distinguished it the following year.

Mr. Coleman makes the point that the San Antonio... particular San Antonio system was purchased without federal funds and certain other limitations, lack of federal fund involvement in the San Antonio system particularly.

That is not relevant.

We have to look, as this Court instructed us, at the nation as a whole, and not one particular transit system.

Secondly, the San Antonio Transit System has conceded in its briefs and the briefs of all of the parties here have established that all the transit systems or virtually all of them receive federal funds, use federal funds to subsidize their operating, and use federal funds to purchase capital equipment.

Mr. Coleman has primarily based his argument on the notion that transit is vital.

Transit is very important.

That does not make a governmental function, we submit.

There are many things in this life that are supplied by private industry that are important to people, but it has never been the function of government to move you from your home to your work and back again.

It is fine for the government to do that, and the federal government has assisted that.

We believe that the federal standards of commerce... this is a regulation of commerce... should be applied.

Mr. Coleman suggests that none of these transit systems make a profit.

That is probably true, and two years ago in the Long Island Railroad case this Court said in Footnote 11,

"There is certainly no question that a state's operation of a common carrier, even without profit and as a public function, would be subject to federal regulation under the commerce clause."

Mr. Coleman suggests that the railroad situation is completely different because the power of Congress over railroads is supreme.

He hasn't given us any reasons why transit should be any different.

Transit is a part of commerce.

It is vital to the commerce of this country, and unless this Court would establish a different level of priorities for different types of regulation of commerce, commerce, interstate commerce and transit systems must be treated the same way as interstate commerce on the railroads.

Finally, Mr. Coleman suggests that we look at the percentage of these activities that are owned by local government entities to determine the constitutional question.

That would result in a different constitutional decision under the Tenth Amendment this year than might have been the result in 1975 and a different result possibly in 1999.

If this Court, and I believe it did, means what it said when it stressed the fact, irrespective, although we were not necessarily talking about a static historical test, in every one of these intergovernmental immunity cases that I have read, the Court has talked about traditional governmental functions.

We are involved here and being concerned about the preservation of the federal system.

Therefore history and the tradition and what government has historically done is of vital significance in this area, and it can't be determined on the number of enterprises acquired by local governmental entities.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Transcript: 

IN THE SUPREME COURT OF THE UNITED STATES

JOE G. GARCIA, Appellant v. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY ET AL.; and RAYMOND J. DONOVAN, SECRETARY OF LABOR, Appellant v. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY, ET AL.

No. 82-1913, No. 82-1951

October 1, 1984

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:03 a.m.

APPEARANCES:

REX E. LEE, ESQ., Solicitor General of the United States, Department of Justice, Washington, D.C.; on behalf of Appellant Donovan.

LAURENCE GOLD, ESQ., Washington, D.C.; on behalf of Appellant Garcia

WILLIAM T. COLEMAN, JR., ESQ., Washington, D.C.; on behalf of the Appellees.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments first this morning in Garcia against San Antonio Metropolitan Transit Authority and the related case.

Mr. Solicitor General, you may proceed whenever you're ready.

ORAL ARGUMENT OF REX E. LEE, ESQ., ON BEHALF OF APPELLANT DONOVAN

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

The issue in this case is whether Congress can constitutionally prescribe wage and hour limitations for the employees of San Antonio Metropolitan Transit Authority, which is a public entity under Texas law.

It is undisputed but for SAMTA's public status, Congress would clearly have this authority pursuant to its Commerce Clause powers. In setting the case for reargument, the Court has asked that the parties address the question whether or not the principles of the Tenth Amendment as set forth in National League of Cities v. Usery should be reconsidered.

Our answer to that question is that those principles must be preserved. The difference between the power of the federal government to regulate private businesses and to regulate the states as states is rooted solidly not only in the Tenth Amendment, but also in the broader principle of federalism. That is both historically and also structurally a mainstay of the Constitution itself.

It is a principle which this Court has consistently and unequivocally reaffirmed on four separate occasions subsequent to National League, and whose doctrinal foundations in the precedents of this Court reach back more than a century prior to National League.

This does not mean, however, that the appellees should win this case. The key issue is the requirement that the local government show that the federal law impairs its ability to structure integral operations in areas of traditional governmental functions.

I'll discuss in just a moment our view that the supports -- that this test, this traditional governmental functions test, imports an historical standard. But under no conceivable meaning of that term have the appellees in this case satisfied that third of the Virginia Surface Mining test requirements.

The district court acknowledged that the historical record is not one of predominant public ownership and operation of transit services, and the American Public Transit Association itself has recognized in its official public literature, and I quote: "Public ownership of transit is a recent development."

A House report issued in 1964 observed that as late as 1960, 95 percent of local transit service were privately owned and operated. And it was not until the late 1970s that the majority of this country's transit systems were publicly owned.

Indeed, it is quite apparent, as explained on pages 26 through 34 of our first brief, that the change from private to public dominance in the mass transit field is directly attributable to federal funding. Sought by local governments in the early 1960s on the basis of pleas by them that without massive federal aid the change from private to public ownership would not be possible and service might cease.

Typical of the representations that were made to Congress was the statement by San Antonio itself, and I'm quoting: "If we do not receive substantial help from the federal government, San Antonio may join the growing ranks of cities that have inferior transportation or may end up with no transportation at all.

QUESTION: General Lee, may I ask whether the Federal Fair Labor Standards Act requirements apply to all federal employees? Do you know?

MR. LEE: I would --

QUESTION: Do you know which ones might be exempted, if any are?

MR. LEE: I would -- I'm just going to have to check on that. I would assume that they do, but I'm not certain.

The Sixth Circuit, we submit, was quite correct when it stated in the Kramer case that "Tradition for these purposes must be gauged in light of what actually happened, and what happened is a federal program of local transit services in which the states participate as latecomer junior partners. There is, therefore, no tradition" -- and I'm still quoting from the Sixth Circuit -- "of the states qua states providing mass transportation."

There is a related point. Congress did not have to accomplish its mass transit spending objectives the way the states requested. Congress could have given the subsidy direct to the private carriers instead of to state and local governments. And in this respect the case is very much like FERC v. Mississippi.

Central to the Court's holding in FERC, as I read that opinion, is the common sense proposition that by acceding to an alternative preferred by the states, Congress should not be taken to have forfeited Commerce Clause powers that it otherwise clearly has and that would be unassailable if Congress had accomplished its objective other than the way the states requested. We submit that the same principles applies here.

Probably the dominant theme of the briefs filed by the appellees and their amici is that the ability of state and local governments to make certain policy choices otherwise available to them may be impaired in the event the federal government has the authority to set wage rates for their employees. And as a starting point that is a relevant argument, because we agree that as this Court said in FERC v. Mississippi and has repeated several times since, the authority to make policy choices, to make policy decisions is probably the quintessential attribute of sovereignty.

But we find it ironic that the appellees' petition in this respect purports to be based on federalism; because the authority to make fundamental policy decisions is no less an essential attribute of sovereignty for Congress than it is for the states, and both are affected by this case.

Because while it is true that SAMTA's ability to make some mass transit policy choices could be affected -- the federal government regulates its wages and hours -- it is equally true that SAMTA's wage and hour decisions, if left to their unfettered control, can also limit Congress' ability to regulate Congress. And the reason is that wage and hour decisions by a publicly-owned mass transit employer have just as much effect on interstate commerce as the same decisions, the same wage and hour decisions by a non-governmental mass transit employer.

And if there is one thing that is clear concerning Congress' Commerce Clause prerogatives, it is that the authority to decide, the power to decide concerning the effects on interstate commerce, the comparative effects of different kinds of practices, lies solidly within Congress' stewardship.

And this brings us to the crucial issue of what should be the governing constitutional standard. The reason that there is a constitutional issue in this case is that a central structural feature of our Constitution is the side-by-side existence of two sets of governments. And in any case like this one where you have federal regulation under the Commerce Clause of the states qua states, then the complete and uninhibited exercise of sovereign power by either of these sets of governments creates a potential conflict with the sovereign powers of the other. That is the constitutional problem, and if the governing constitutional standard is to be adequate, it must take that fact into account.

QUESTION: Do you think -- do you think Maryland v. Wirtz was wrong?

MR. LEE: We accept the overruling of Maryland v. Wirtz that was accomplished in National League of Cities, and we're not --

QUESTION: So you would have -- you would have -- you have been on the other side of National League of Cities, then. I mean you would have -- you would have -- you wouldn't have been making the argument the Government made in National League of Cities.

MR. LEE: Had I been the Solicitor General at the time of Maryland v. Wirtz, I --

QUESTION: I mean -- no -- National League of Cities.

MR. LEE: Had I been the Solicitor General at the time of National League of Cities, I would have taken the same position the Solicitor General took in that case.

But in the interim since that time, National League of Cities has been decided. There is a rather comprehensive body of law that has developed, including this three-part test plus the balancing safety valve which we think gets it just right, so long as there is an understanding as to what is meant by traditional. There has been some reliance by the states on that test, and there is significant interest in preserving the existing precedents of -- of this -- of this Court. And for that reason --

QUESTION: Well, General Lee, how does a focus on the historical services provided by a state serve to protect the more fundamental ability of the state to make and carry out its policy choices as a sovereign? I'm not sure that I understand how that serves us well in protecting sovereign rights of states.

MR. LEE: It serves to protect sovereign rights of states and the sovereign rights of Congress, Justice O'Connor, and this is absolutely fundamental to our case, the answer to that question.

We start from the premise, as I've just developed, that the basic constitutional problem is that ours is a federal system, and that if you concentrate only as my opponents do on the fact, with which we have no dispute, that the unfettered exercise by Congress of its powers can erode some state prerogatives, then that leads you in one direction.

Mr. Garcia, on the other hand, focuses in his brief on an equally correct proposition, which is that the unfettered exercise by the states of their prerogatives to make wage and hour decisions, if there are no limitations, can also limit Congress' authority, which it otherwise clearly has, to make decisions concerning effects on Congress.

Our point of view is that this Court really did get it right when in Hodel v. Virginia Surface Mining and three subsequent occasions it said that it's to be -- that the -- that the test is to be three parts plus a balancing safety valve, which permits us to take into account the fact that there is -- there is this equipoise, there is this -- that there are these -- the need to accommodate the competing interests of both state and federal.

Now, as to the -- as to the basis for the historical test, we think that the historical test is also sensitive to the competing needs of both sets of governments; because on the one hand, once again, you can say that regardless of when the states come into the field, that their problems do relate to legitimate police power objectives.

QUESTION: Mr. Solicitor General, are we not talking really in the broadest sense of the power of Congress to regulate compensation of state and city and county employees? In other words, we're not talking just about a transit system. We're talking about sewage and water and street lights.

MR. LEE: Well, all we are talking about in this case itself, of course, is the applicability --

QUESTION: Yes, yes.

MR. LEE: -- Of the Fair Labor Standard Act to San Antonio --

QUESTION: But we're -- we're also talking about broad constitutional principles and the division of or allocation of power between state and, federal government.

MR. LEE: That is correct. There are those issues in the background. But I would urge that the only issue that needs to be decided at this time is the narrow issue of -- of wages. Now --

QUESTION: Issue -- issue really is who pays -- which entity pays the compensation of -- of state and city employees. And if the federal government starts down this road, where does one stop it.

MR. LEE: Well, that is an issue, and that is the perspective from what -- that -- that is the question as placed in the perspective from the appellees' standpoint. But I can also say that there is a question concerning the prerogative of the Congress to set -- to regulate commerce.

The appellees have very properly raised the question -- probably the dominant theme in the appellees' briefs is a concern that if they lose this case, there will be an adverse impact on their -- particularly if -- if -- if our historical test is -- is adopted, that this will freeze their prerogatives to enter new fields.

My answer to that, and to further answer to your question, Justice Powell, is that there is nothing in this historical test which freezes in any way or adopts any kind of a static view which prevents the states from entering new fields. All it says is that when they do enter new fields, if it is a field that is already subject to regulation by Congress, then they may have to enter it subject to the same to some reasonable Commerce Clause regulations of the same type that their private competitors are already facing. And that is a principle that has been established by this Court at least as early as 60 years ago in Helvering v. Powers and has been reiterated numerous occasions since then, in California v. United States v. California, Harden v. Terminal Railway.

QUESTION: What is the -- what, Mr. Solicitor General, is the competitor of a private mass transit system in today's terms? What competitors are there?

MR. LEE: Well, there -- of course, at the time -- at the present time, it is dominantly a field that is dominated -- it is a field that is dominated by public transit systems, though I would add quickly and parenthetically that came about because of this mass -- this massive federal aid.

But at the time -- the issue really must be gauged as of the time the states first entered the field. And you have to ask in answering this question, has there been a law -- is this a traditional governmental function?

QUESTION: MR. Solicitor General, this time point troubles me. Are you talking about a majority of the states or state by state? And before you answer that question, my next question would be are you talking about city by city or county by county, or what is the limit of the standards you advocate?

MR. LEE: No. I think you have to look at it as a national problem. And I think --

QUESTION: A majority of the states?

MR. LEE: I don't think that you -- I don't think that it would be profitable to look at. I don't think it would be that helpful to look at in terms of a majority. Indeed, I would urge that that issue not be reached in this particular case, but that the only decision that be reached in this particular case is that where you have the circumstance that you had here where prior to the massive federal aid, and indeed, where you had federal regulation in the employment relations field reaching back to 1935 and at least as early as 1961 that you had federal regulation applying to -- to -- to transit employees, and a circumstance in which as of 19 -- there simply was not a well established -- there simply were not well-established patterns of state ownership already in the field at the time that the federal government entered.

Now, I grant --

QUESTION: Mr. Lee, I take it these questions, for me anyway, raise a secondary question, and that is whether the traditional governmental function test is a correct one. I take it you feet it is.

MR. LEE: Indeed I do, Justice Blackmun. We think the entire approach is sound, and an integral part of that approach is the third test which is the traditional governmental functions test.

QUESTION: But this is why you're getting these questions from the bench.

MR. LEE: That is correct. That is correct. And I wish to emphasize that we do believe that that test is a sound one, and it's sound for three reasons. One is it has the force of precedent behind it. The second is that it is responsive to the basic underlying constitutional problem. You cannot focus simply on the problems under federalism that the states have or the problems under federalism that the Congress has. You have to accommodate in some way both of them, and we believe that this historical test accomplishes that.

Mr. Chief Justice, I'd like to reserve the balance of my time.

CHIEF JUSTICE BURGER: Mr. Gold.

ORAL ARGUMENT OF LAURENCE GOLD, ESQ., ON BEHALF OF APPELLANT GARCIA

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

It is our position that there are several and different and distinct arguments, each of which leads to the conclusion that the application of the Fair Labor Standards Act to publicly-owned mass transit systems is constitutional.

There are certain broader arguments than those made by the Solicitor General for that proposition which I wish to begin with. I also agree for the individual appellants here that the arguments -- the basic argument that he has made concerning the situation in which the states and localities move into an area which was pioneered primarily by the private sector, and do so under conditions in which the federal government is a major cause of the states and localities entrance into that field, is not a situation in which the state thereafter can claim that the exercise of that authority free and clear of federal authority is essential to federalism.

In this system that we have of both a federal and state government, to say that such an example of cooperative federalism where the federal government no less than the states and localities is part and parcel of creating the regime in which the states and localities are providing a goods and -- is -- are providing a good or service is one which expands state authority and narrows federal authority, seems to us to be impermissible.

There are at least two arguments which have broader ramifications than the argument I've just outlined and on which we agree with the Solicitor General. The first, which I -- I think I ought to begin by saying would require the overruling of National League and Cities -- National League of Cities is that the system of federalism, which we all agree the Constitution creates, is a system in which the national government has enumerated powers but is supreme within those enumerated powers, and where the distinctive feature is that the national government does not have plenary powers.

We believe that the argument for that proposition has three basic components. The first is the language of the Supremacy Clause and of the Tenth Amendments themselves. The Supremacy Clause says this Constitution and the laws of the United States which shall be made in pursuance thereof shall be the supreme law of the land, anything in the Constitution or laws of any states to the contrary notwithstanding. And the Tenth Amendment says simply that powers "not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people." And all this against the background, as I have said, of a Constitution which does not say that the rational government shall have plenary power, but rather enumerate certain powers, including the power to regulate commerce, and which includes also those powers necessary and proper to carry out that basic authority -- an authority which was indeed the very foundation of the process which led to the formation of this nation and the rejection of the Articles of Confederation.

We set out in our brief on reargument at pages 5 to 12 and then in our reply brief on reargument at pages 2 to 10 the understandings that underlie the bare words and the structure that I have just stated.

We take Madison as the embodiment of the consensus on these major questions of structure and relationship, and we trace what he said in particular in the Federalist Papers and thereafter. That is not a submission that lends itself to oral presentation, but I wish to note two brief snippets. They can be judged in the context or by the totality of our presentation.

While serving in Congress, Madison stated during the debates over the creation of the Bank of the United States, interference with the power of the states was no constitutional criterion of the Power of Congress. If the power was not given, Congress could not exercise it. If given they might exercise it, although it should interfere with the laws or even the constitution of the states.

And the Constitutional Convention, I would note, considered and rejected a proposal which would have precluded Congress from, and I quote: "Interfering with the government of the individual states in any matter of internal policy with -- which respects the government of such state only, and wherein the general welfare of the United States is not concerned.

QUESTION: Mr. Gold, do you think the framers of the Constitution would have envisioned that they were authorizing the federal government to tell the states how much they could pay their own employees to carry out their necessary sovereign functions?

MR. GOLD: I -- I think, Justice O'Connor, that the -- the answer to that question is the following -- is what follows. The states and localities at the time of the adoption of the Constitution had very small establishments indeed. And the basic question of the extent to which the commerce power would eventually expand seems to us to be cancelled out by the fact that there was also a belief at the time that the wide variety of services that the government provides today would not be provided by the states and localities at all.

I am quick to add that the essential animating concern in the two National League of Cities argument and this argument is the one that you have stated. I can only say two things about that argument that concern insofar as it applies to those activities that are truly and uniquely governmental.

One, as Justice Harlan said in Maryland v. Wirtz, any activity of the federal government under the commerce power has to be shown to be in activity which -- an action based on an effect on commerce. I am not clear that an attempt to regulate the governor or the legislatures or their staffs could pass that test. I don't want to argue the point one way or the other, because the interesting fact of 200 years of history is that it has never occurred.

The Founding Fathers, insofar as they were concerned about the states and state sovereignties put -- state sovereignty, put their faith in a political system rather than in a system which would provide that the federal government has enumerated powers, with an exception that the Court shall judge whether those enumerated powers unduly interfere with state sovereignty, and the trust has not yet been abused.

What was said in the tax immunity cases by Justice Frankfurter with regard to creating doctrine on worst case fears ought to be remembered in this context as well.

The beginning of my answer to your question also gets me to the second distinct argument we would make, and that is that the production of goods and services is not an essential of state sovereignty.

In preparing for this argument I was reading through a book called "American Public Works Association History of Public Works in the United States, 1776-1976," cited in the Solicitor General's opening brief. There was little or nothing in the way of the production of goods and services --

QUESTION: Mr. Gold, forgive me for interrupting you.

MR. GOLD: Yes.

QUESTION: But when you use the term "services," a state does very little beyond providing services for the public; so is there any limitation to your use of the word "services?"

MR. GOLD: Yes, Justice Powell. It is our view that there are certain activities of the states which we just do not regard as a good and service that is rendered in common with the private sector, or that has historically been rendered in common; and that is the making and enforcement of public law. And --

QUESTION: But -- but the typical category of services that the public is interested in primarily and that have thought to have been subject to local democratic control, basically you start with police, and fire, and streets, and light. All of those, I take it from your brief, you would say are subject to the Commerce Clause.

MR. GOLD: No. The -- the police seems to --

QUESTION: Did you say --

MR. GOLD: Oh, I apologize, Your Honor.

QUESTION: Well, you said they are or are not subject to the Commerce Clause?

MR. GOLD: I --

QUESTION: Are all of those services subject or not subject to the Commerce Clause regulation?

MR. GOLD: I started answering. I apologize for breaking in.

The -- it is our view that the police function is properly seen as part and parcel of the lawmaking and law enforcement function, and that that -- and we are now talking about how to delimit a National League of Cities test rather than a test -- rather than whether the test should be over -- overruled entirely. It is our sense that that's part of the law enforcement function.

On the other items which we have grown used to seeing as part of a widely expanded state, locality and federal role, we say this: in almost every instance in the 18th century, the activity was performed either in whole or in part in the private sector, and that that was true well into the 19th century as well.

What has been the determinant factor so far as we can tell in looking at this history is the availability of capital in the state and locality, the capital needs, the interest of individual entrepreneurs entering --

CHIEF JUSTICE BURGER: I think you've concluded your answer now to Justice Powell, and your time has expired.

MR. GOLD: Thank you.

CHIEF JUSTICE BURGER: Mr. Coleman.

ORAL ARGUMENT OF WILLIAM T. COLEMAN, JR., ESQ., ON BEHALF OF THE APPELLEES

MR. COLEMAN: Good morning, Mr. Chief Justice, and may it please the Court:

On reargument this case involves two basic questions: first, whether constitutional federalism provides any limitation on Congress' exercise of its commerce powers directly against the state to supplant core state functions such as the establishment of wages, hours and overtime policies for state and local governments. The second question is whether local public mass transit, constituting 94 percent of all transit services today, is a traditional governmental function.

I think since the Solicitor General agrees with so much of our position, we ought to get to the one thing on which we have the disagreement.

Today, 100 out of 106 major urban communities have publicly-owned local mass transit, as do all communities with transit in Texas. Ninety-four percent of all transit riders nationwide ride on public mass transit.

San Antonio started to supply public mass transit service in 1959, which is well before there was any attempt of federal regulation of transit or wages and hours.

Now, General Lee explains his modified historical test for traditional functions as follows. The state activity must be well established prior to the development of the federal regulatory presence in the field. Public transit, we submit, clearly meets this test and is not distinguishable from the traditional activities the Solicitor General concedes were correctly protected in National League of City.

I'd ask you to turn to page 2 of SAMTA's original brief to show you the legislative history. Enacted in 1938, the Fair Labor Standards Act expressly exempted all states and their political subdivisions, and all transit systems, public or private, from the minimum wage and overtime provisions. Furthermore, the National Labor Relations Act, enacted in 1935, exempts all public agencies, including transit systems -- an exemption that continues until today.

The first attempt to extend any Fair Labor Standard provisions to any private transit provisions was in 1961 when minimum wage coverage only was extended only to a few private systems -- those which had revenues in excess of a million dollars. Now, that doesn't sound like much today, but project yourself back to 1961, and you will realize that that meant that very few private systems were covered. Then, all public systems remained completely exempt according to the express language of the -- of the statute.

The city of Philadelphia -- the city of San Antonio, as I said, began to furnish the service in 1959. Thus, we have a picture where Congress expressly exempted public transit service from FISA and NRL -- NLRA requirements during the period in which such transit became well established as a common local governmental service.

By 1965, before there was any attempt by Congress to cover any public transit system, the majority of transit employees worked for public transit companies -- some 56 percent. In 1966, Congress extended the minimum wage requirements to public hospitals, schools, and only those public systems whose rates and services were regulated by a state or local public utility commission. Transit operators, private and public, continued to be exempt from all overtime provision.

Now, you recall it was in 1965 when the UMPTA statute was passed, and there's not a word in that statute, as you recognized, Mr. Justice Blackmun, in Jackson Transit Company, which said that if the cities took the money, that there would be any condition of federal regulation with respect to wages and hours. In fact, you said, Your Honor, in that case that that statute specifically says that wages and hours and other labor conditions were to be left to local law.

QUESTION: MR. Coleman --

MR. COLEMAN: It was not until 1970 --

QUESTION: Mr. Coleman, could I just ask this question? In your historical development I suppose it would be perfectly clear under your argument that Congress would not have the power to apply Title VII of the Civil Rights Act to your client either.

MR. COLEMAN: Oh, no, sir. That -- one thing's clear: the Fourteenth Amendment was a dramatic passage of saying that that was one thing in which the federal government had the power to interfere with respect to states.

QUESTION: But if they had just relied on the commerce power, they could not have done it.

MR. COLEMAN: They could not have -- they could not have done it. And that's what they clearly relied upon here.

QUESTION: But you say that this limit applies to exercise of the commerce power but does not apply to exercises of power under the Fourteenth Amendment.

MR. COLEMAN: Well, I would say that I'd have to look at the members on the Court. Some of you have indicated, as you did, Mr. Justice Brennan, in -- in the EEOC v. Wyoming, that when you get around to exercise power under Section 5 of the Fourteenth Amendment that the Tenth Amendment, or federalism, has no restriction whatsoever.

The Chief Justice, and there were three that joined you, said that even there, there was a restriction, although the restriction obviously was a different nature. But I would say that there ought to be some restriction even when you're proceeding under Section 5, because I believe there's one thing in this country that is very important: that we do preserve the independent and separate existence of the state. And I don't think that under Section 5 of the Fourteenth Amendment that Congress can do something which destroys that independent existence and separate existence of the state.

As I was saying, we have a picture here that one, you have no regulation of public transit specifically, no regulation of private transit, and it was only in 1974 that Congress attempted to extend minimum wage and hour and overtime provisions to all public transit systems. Prior to the time that Congress attempted to do that, the state practice had become entrenched, because prior to the Congress that enacted, 90 percent of all transit services were provided by public transit agencies. Thus, publicly-owned local mass transit meets even the Solicitor General's own ill-founded and unprecedented historic test for traditional governmental activity.

For 30 years as the states assumed this vital service, Congress told the states that they would be exempt from the Fair Labor Standards Act. Even when Congress provided in UMPTA for assistance to local transit, they did not intend to disrupt the settled practices of labor relations governed solely by state law, and that's what was held in Jackson Transit.

In fact, the Government's unsupported historical test bears no relation to the purpose of federalism: restraints on Commerce Clause regulation of the states as states. Federalism ensures that state and local governments can fulfill their role in the Union by providing those governmental services which their citizens require. Whether an activity has been historically public has nothing to do with the present day realities of state involvement in providing the modern requirement of a state citizenry.

Clearly, the word "traditional" does necessarily mean historical. For example, for decades the tradition in this Court when I stood before this Court was to address the Justices as Mr. Justice. In the last three or four years the tradition has become instructed to address them as Justice.

In any event, this Court decisions rejects the equation of traditional with the passage of many decades. The decisions do not support the suggestion that even if the service is now supplied by most state and local government, it is not traditional merely because the current public sector pervasiveness does not have ancient historic roots; that, in fact, in National League of City, the services protected were defined sometime as integral, other times as important, and also at other times as traditional.

Long Island Railroad clearly states that traditional -- that traditional does not give rise to an historic test. The Court held the same in New York v. The United States.

I think in this case, Your Honors, these systems had become public and were traditional even before Congress gave any money to the systems. In addition, when Congress gave the money to the systems, it did not say that the systems had to abide by the Fair Labor Standards Act. And your cases make it clear -- Jackson Transit and the Pennhurst -- that unless Congress says that if you want the money, you have to abide by this condition, that you do not read conditions, impose them on the local governments.

The other argument the Solicitor General makes is that somehow you will have unfair competition between the private and the public systems if you don't apply the Fair Labor Standards Act.

The language that he quotes in his brief was describing the situation in 19 -- which led to the passage of the 1966 act, which covered hospitals, schools and some transit companies. And this Court rejected that argument in -- in National League of Cities.

In addition, I would just ask you to see whether when, for example, in San Antonio it costs you 60 cents per passenger to give the service, and the passenger pays only 18 cents, or 10 cents if a school child, or the elderly, or the handicapped, or if they ride downtown in order to eliminate traffic congestion, to promote unemployment -- to promote employment and to serve the people, it's for free -- I would just ask you how one can come in and compete with that type of system? So it is clear that the competition argument certainly has no relevancy here.

Now, the next argument that the Solicitor General makes, but he hasn't made it at the bar of this Court today, but when you read his brief, you're not quite sure what he's talking about when he says it's the state core function which is to be protected.

We think it is clear that the cases say that the state core function is its ability to fix wages and hours and overtime policies. That's what was said in National League of Cities; that's what was said in EEOC; that's what was said in the FERC case.

It is not that we also have to show, as the Government at certain places suggests, that the -- that the functioning or providing of transit service will -- if you end that that you will end the existence of the city. And in Long Island Railroad, the Chief Justice made it quite clear that when he held that the railroads were not -- were subject to federal regulation, he said that we're dealing with the third prong of the test which is solely whether the railroads is a traditional government function. The fact that there were only two of them, the fact that there had been a long history of government regulation made the difference.

I'd now like for a moment to turn to the question of the federal constitutionalism which really answers the argument made by the union.

It is clear that when the Constitution was set up that states were to remain and they were to have separate and independent existence. If that's so, then if you don't have a constitutional federal limitation, Congress could presumably even tax a percentage of all revenues collected by state taxes.

I think Justice Blackmun in dissent in Nevada v. Hall made it clear, however, that there is an implicit federalism restriction on Congress and the states. He says, "I would find that source for Nevada sovereign immunity not in expression of the Constitution but in a guarantee that is implied as an essential component of federalism. The Court has had no difficulty in implying the guarantee of freedom of association or implying a right of interstate travel. I have no difficulty in accepting the same argument for the existence of a constitutional doctrine of interstate sovereign immunity. The only reason why this immunity did not receive specific mention in the Constitution -- that it was too obvious to deserve mention -- is for me significantly fundamental to our federal structure to have implicit constitutional dimension."

Now, we have collected on page 17, footnote 17 of appellees' supplemental brief other cases where constitutional limitations were found implicit from the structure and language of the Constitution. In fact, I stand before you and say that few such principles are more often reiterated than this; that the framers' notion of the continued separate and independent existence of the states places a limitation on Congress' exercise of its plenary powers against state and local government.

QUESTION: Mr. Coleman, if you were -- if you were arguing this for the first time or if the issue had just come up for the first time, would you be more likely to have made kind of a federalism argument than -- than to try to pose it under the Tenth Amendment?

MR. COLEMAN: Well, I -- it's also the Tenth Amendment, but --

QUESTION: Well --

MR. COLEMAN: And you get to the Tenth Amendment in one of two ways. One -- and I think --

QUESTION: Well, if you can get to it the other way, there's no need to, is there?

MR. COLEMAN: Well, no, no. I'll tell -- I'd like to give you the problem, Your Honor.

One, if you follow --

QUESTION: We have it, all right.

(Laughter.)

MR. COLEMAN: -- The approach of -- of Justice Brennan, he would say that within the Commerce Clause if what you're trying to do is to destroy the separate and independent existence of the state, that he would read the Commerce Clause as not going that far; and so, therefore, he would say the power wasn't delegated.

Within the other approach -- and I think the cases tend to support this -- is that, one, you assume that under the Commerce Clause that the federal government has plenary powers, and if it's commerce and any person today after Wickert and Philburn and the Kassenbach case can spell out how anything affects interstate commerce. But there are other provisions of the Constitutiona also. And it's clear, for example, that even though you exercise the plenary power under the Commerce Clause, you could not say and on the trains people can't speak or read the newspaper. Why? Not because there's any -- that's not a regulation of Congress, but because of the First Amendment.

By the same token, you say that as you look at the Constitution, and if you say that there should be separate and independent positions of the state, there's certain things that the state -- that the federal government can't do because that would seriously affect and destroy the existence of the state.

QUESTION: Even though the power was otherwise there.

MR. COLEMAN: That -- that the power was there, but the same way, if the power was there, then you'd go to the First Amendment or you go to the Fifth Amendment to limit it, here you go to the structure of the Constitution, and you say that --

QUESTION: That was the -- well, that was the basis of the tax immunity cases, wasn't it?

MR. COLEMAN: Well, that's the basis of the tax immunity cases. It's the basis of the Ashton case dealing with the bankruptcy case as to whether you can force a city to go into reorganization.

Now, with respect to the Commerce Clause, for example, Mr. Justice Marshall for the Court in Bry, footnote 7, says it. In Hodel v. Virginia Surface Mining, again for the Court, he says it, as well as he says it in -- in concurring opinion in Employees v. Missouri Department of Public Health and Welfare.

Mr. Justice Brennan for the Court in EEOC v. Wyoming at footnote 18 says it. The dissenting opinion of the Chief Justice in EEOC and his opinion for the Court in Long Island Railroad says it, in which, incidentally, it was a unanimous opinion.

The dissenting opinion of Justice Powell in EEOC says it. The principle has also been asserted by Justice Blackmun in his concurring opinion in National League and his opinion for the Court in FERC v. Mississippi.

QUESTION: Mr. Coleman, I have to confess, what do they all say?

MR. COLEMAN: They all say that --

(Laughter.)

MR. COLEMAN: They all say that when you exercise plenary power under the Commerce Clause that there's a limitation which is based in constitutional federalism that you have to recognize that the -- that the state -- that the federal government -- I mean that the -- that the Convention intended to keep the states separate and distinct, and therefore, this limitation --

QUESTION: But do they all say that the organ of the government that was going to keep them from going too far was necessarily the judiciary rather than the Congress, because after all, the states are rather well represented in Congress.

MR. COLEMAN: Well, they -- that -- that's -- that's -- well, in that -- I'd first like to say -- to answer twofold. One, there's no presumption of constitutionality here, because the one thing that's clear, that Congress enacted the 1974 amendment only because this Court in Maryland v. Wirtz said that there was no such principle of constitutional federalism, and the federal government had absolute power. And so now since when in National League you -- you reversed that, it's hard to say that there's still a presumption, normal presumption.

Secondly, the one thing that's clear, that when there was a dispute between the various organs of government, the -- the --

QUESTION: Mr. Coleman, my question was directed to what the framers probably thought would be the correct protection against having the federal government devour the states. Would it be the judiciary or the Congress itself in which the states are represented?

MR. COLEMAN: Ultimately -- ultimately it would be the judiciary. I think that Mr. Ellsworth, who I think was the second Chief Justice of the United States, he says it, and we quote where he says it. It's also said by the other people that where there is a dispute between the federal government and the state as to whether this type of action was appropriate within the Constitution, that the federal judiciary was to make the determination.

It also suggests in the Chadda case where there the dispute is between the Congress and the President of the United States, and each one felt that what they were doing was right and correct, and each one was equally familiar with federalism and everything else and separation of power, but there this Court made the determination.

Also in the Nixon tape case you had the same problem where you had --

QUESTION: Yes, but in this case you have a peculiar situation, because the issue is one that vitally affects the states, and they are the ones who, in turn, have the primary control over Congress through their own representatives.

MR. COLEMAN: Well, I -- I --

QUESTION: Which is not true in the Chadda situation or the Nixon tapes.

MR. COLEMAN: Well, I would suggest if you call up any -- any governor in any one of the 50 states and -- and ask him whether he thinks that his state is protected in everything that the state wants to do because there's two Senators down here from that particular state or that members of the House are down here, I -- I just don't think that you can say that the -- that the -- that the states, because they have members in the Congress, are nevertheless -- don't have a separate, independent interest which sometime is not reflected.

And once again I say that even though in other cases you can say this, here you have to recognize that the reason why Congress did what it did was because you decided Maryland v. Wirtz, and now you've overruled Maryland v. Wirtz. So at least you ought to uphold the court below and send -- and say that the statute is unconstitutional; and then if Congress wants to take another look at it in light of the fact that they don't have all the power that they thought they had, then at that point the -- the presumption -- the presumption argument might make some sense. But even though there's a presumption, I still think ultimately the Congress -- I mean this Court is the one that has to make the decision whenever there's a conflict between the -- the federal government and the state.

QUESTION: Mr. Coleman -- Mr. Coleman, after all, regardless of how members of Congress are elected, the Congress of the United States is a part of the federal government, isn't it?

MR. COLEMAN: Yes, sir, that's true.

Now, the -- the other point I'd like to turn to is the -- what impact of the -- does the Fair Labor Standard Act have on public transit service.

First, we all know that both National League of Cities and EEOC says that an assessment of actual impact is not necessary to resolve -- to resolution of the states' immunity. The federal government concurs in its brief in the lower court or this point. It is not the millions of dollars of extra compensation that is at issue here. It is the displacement of state policy choices that creates the impermissible intrusion. That interferes with an attribute of sovereignty, and therefore threatens the separate and independent existence of the state.

The state, here, unlike in FERC, have no choice between providing the service consistent with federal law or opting not to provide it. State and local governments do not have the budgetary resources to adopt costly federal requirements whenever imposed. Most state -- most state constitutions require a balanced budget or set a limit on debt.

Since labor costs are about 65 to 73 percent of the operating cost of transit, the Fair Labor Standards Act costs may be tremendous. State and local governments with public transit services will be forced by the FLSA to choose between raising fares or curtailing services. The person most hurt by this will be the poor, the elderly and the disadvantaged who depend on public transit to get to school or work or to their other basic -- or for their other basic needs. SAMTA, for example, at rush hour 60 percent -- 66 percent of all riders are Hispanic, 14 percent are black, 84 percent have incomes of under $15,000.

Bus drivers, like policemen and firemen, must meet the public need for essential services. Schedules and working conditions are designed to respond to these needs. They cannot be tailored to eight-hour days. Furthermore, compensation is geared to the unique conditions in the transit sector and do not mesh with the requirements of the Fair Labor Standards Act.

Through the years, special premiums have evolved to compensate transit operators for split shifts, early sign-in and travel time to locations other than principal bus depot and other unique scheduling requirements. Under the Fair Labor Standards Act, these special treatments may be included in the regular rate, and therefore would greatly increase the amount of overtime cost for transit.

The Solicitor General's only answer is that cities and states should renegotiate their labor contract. And I just ask you to look at all the problems when you ask any union for give-ups, and it seems to me that the one thing that National League of Cities made clear is that you ought not to impose that type of disruption the state. And it does not lessen the undeniable fact that the states' ability to make policy choices now and in the future would be displaced by federal regulations.

Also, in certain of these cities when the transit system is acquired, the people get slotted into the general civil service ledger for other city employees. Now, can you imagine a mayor faced with the problem where he's negotiating with the -- with -- with policemen and firemen, and you say the Fair Labor Standards Act doesn't apply, but the people performing the same type of work on a transit company, you say oh, gee, the Fair Labor Standards Act does apply here.

To be accountable and responsive to all the citizens of the local community in the provisions of important public service and to be able to experiment, as Justice Brandeis thought so important, state and local governments must have the capacity to make the political judgments about fares, general and special tax increases, services and the costs of providing local public transit.

To subject one essential element of this local political equation to remote proxy control in Washington undermines the state's political capacity to be responsive to the community it serves in providing these governmental functions that uniquely must be provided at the local level.

We urge you, Your Honor, to affirm the decision of the court below.

CHIEF JUSTICE BURGER: Do you have anything you can cover in thirty seconds, Mr. Solicitor General?

ORAL ARGUMENT OF REX E. LEE, ESQ., ON BEHALF OF APPELLANT DONOVAN -- REBUTTAL

MR. LEE: Just this point, Mr. Chief Justice. Unless tradition does refer to what's happened in the past, then some opinions of this Court are going to have to be written -- rewritten as well as some dictionaries.

Unless it is an historical test, then there is to be no effective vouchsafer for the principle unanimously announced by this Court in Long Island that states are not to have the power to erode federal authority. Just as much -- just as there must be some -- my time is up.

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

We'll hear arguments next in alexander v. Choate.

(Whereupon, at 11:04 a.m., the case in the above-entitled matter was submitted.)