Transcript

IN THE SUPREME COURT OF THE UNITED STATES

MARK E. DENNIS, Petitioner v. MARGARET L. HIGGINS, DIRECTOR NEBRASKA DEPARTMENT OF MOTOR VEHICLES, ET AL.

No. 89-1555

October 31, 1990

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:01 a.m.

APPEARANCES:

RICHARD A. ALLEN, ESQ., Washington, D.C.; on behalf of the Petitioner.

L. JAY BARTEL, ESQ., Assistant Attorney General of Nebraska, Lincoln, Nebraska; on behalf of the Respondents.

PROCEEDINGS

11:01 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in No. 89-1555, Mark Dennis v. Margaret Higgins.

Mr. Allen, you'll proceed. You may proceed.

ORAL ARGUMENT OF RICHARD A. ALLEN ON BEHALF OF THE PETITIONER

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

The issue in this case is whether a claim that a State tax violates the commerce clause of the United States Constitution is a claim that is cognizable under 42 U.S.C. section 1983. The pertinent part of section 1983 provides a Federal cause of action for legal and equitable relief against every person who under color of any statute of any State subjects any citizen of the United States to any -- to the deprivation of any rights, privileges, or immunities secured by the Constitution.

In this case the Supreme Court of Nebraska upheld petitioner's claim that a Nebraska truck tax that he was required to pay violated the commerce clause and it affirmed a permanent injunction that the trial court had granted the petitioner in joining respondents, who were certain State tax officials, from collecting the tax. Nevertheless, the court rejected petitioner's claim under section 1983, because it concluded that a State official's violation of the commerce clause did not deprive petitioner of any rights, privileges, or immunities secured by the Constitution.

The court relied mainly on the 1978 decision of the Eight Circuit in Consolidated Freightways v. Kassel, which held that the commerce clause does not establish individual rights against Government but instead allocates powers between the State and Federal Governments.

The conclusion that the commerce clause does not secure individual rights, privileges, or immunities is, I submit, squarely at odds with many decisions of this Court.

QUESTION: Well, there's language in decisions that talk about individuals benefiting from it as indeed they do, of course, by the Court's application of it. But it's a little hard to find in the language of the constitutional provision that we call the commerce clause any intent to benefit individuals in any direct sense? Wouldn't you acknowledge that?

MR. ALLEN: It's true, Justice O'Connor, that the commerce clause itself is merely a -- states an affirmative grant of power to the Federal Congress to regulate interstate commerce. But it's been a fundamental precept of this Court's jurisprudence, at least since 1851 when it decided Cooley v. Board of Wardens, that the commerce clause in addition to granting power to the Federal Congress to regulate interstate commerce imposes specific obligations and restraints upon the State Governments of its own force.

QUESTION: Which can be raised without the benefit of 1983 which was not in existence at the time of Cooley v. Board of Wardens.

MR. ALLEN: It's true, Justice Kennedy, that they can be raised of their own force. But that's true of many constitutional and statutory provisions which this Court has held section 1983 applies to.

QUESTION: Well, have we ever held that 1983 applies to any constitutional provision other than the reconstruction amendments in the Bill of Rights?

MR. ALLEN: Uh --

QUESTION: I think the answer is no.

MR. ALLEN: I think the answer is no. But --

QUESTION: In Carter v. -- the Carter v. Greenhow contracts clause case would, would be contrary to your position on this point, would it not?

MR. ALLEN: I don't think so, Justice Kennedy. I think Carter v. Greenhow is, is -- does not support the decision below for a number of reasons. First of all, it was a -- it involved, if anything, the contracts clause and not the commerce clause.

But second, the court in that case, contrary to what respondents have argued, did not hold that the contracts clause does not secure any rights under the Constitution. In fact, it held the opposite. It said that the contracts clause does secure rights under the Constitution. But what it specifically held was that the plaintiff in that case had not asserted that violation of the contracts clause. And as this Court has subsequently noted in Chapman v. Houston Welfare Rights Organization and in Hague v. CIO, Carter v. Greenhow was really -- the result in that case was really based on the deficiencies in the plaintiff's pleading.

In any event I submit that the decision below is inconsistent with this Court's decisions in at least three areas: in its decisions under the commerce clause; in its decisions under section 1983; and more broadly in its decisions under other provisions of the Constitution which allocate governmental powers but which this Court has held also secure individual protections enforceable by individuals.

QUESTION: What do you think the implications of Golden State Transit are in this case?

MR. ALLEN: I think Golden State Transit, Your Honor, squarely supports our submission. The -- in that case -- in that case the court summarized the test that this Court has specifically fashioned to determine what constitutes a right, privilege, or immunity that's enforceable under section 1983.

It identified three factors, three considerations, that are relevant to that, to that inquiry, all of which I submit support the conclusion that the commerce clause creates constitutional rights.

First, the court stated in deciding whether a Federal right has been violated we've considered whether the provision in question creates obligations binding on the governmental unit or rather does no more than express a congressional preference for certain kinds of treatment.

Second it stated that the interest that the plaintiff asserts must not be too vague or amorphous to be beyond the competence of the judiciary to enforce. And third, the court has said we've also asked whether the provision in question was intended to benefit the punitive plaintiff. Under these criteria I submit that there can be no serious question that the commerce clause secures rights, privileges, and immunities enforceable under section 1983.

QUESTION: Well, certainly the last inquiry raises a very credible inquiry in my view.

MR. ALLEN: Well, I can only respectfully disagree, Justice O'Connor. I think there's no merit to the suggestion that the commerce clause was not intended to benefit individuals. But, let me just -- go through these --

QUESTION: Well, didn't it, didn't it really go to the structure of government and the authority to be given to the new Federal Government and the relationship between the Federal Government and the States that made up the union. Do you really think that it gives any evidence of an intent to directly benefit individuals?

MR. ALLEN: I think it does, Your Honor. It is true that the commerce clause is a fundamental structuring provision of the Federal Constitution, indeed, may have been one of the principal causes for the Federal Constitution, and it allocates governmental powers. But that is not to say, or that is not consistent -- inconsistent with the proposition that it was also intended to benefit individuals.

In fact, the proposition that the commerce clause -- the contention that the commerce clause was not designed to benefit individuals was perhaps the most dramatically and clearly refuted by this Court's decision in Morgan v. Virginia. And that was a case in which this Court upheld the claim of an interstate bus passenger challenging a State statute requiring segregation on interstate buses under the commerce clause. The Court struck down that statute, and it rejected the claim by the State that the plaintiff had no enforceable rights under the commerce clause and the Court said constitutional protection against burden on -- burdens on commerce is for her benefit.

QUESTION: Well, is it analytically -- is the case any different for commerce clause purposes than Gibbons v. Ogden?

MR. ALLEN: Well, this case, unlike Gibbons v. Ogden is a dormant commerce clause case. In this case Gibbons v. Ogden really went off on Congress' power under the commerce clause and this is -- this is a straight dormant commerce clause case. But the Court in case after case under the dormant commerce clause has upheld the rights of individuals to enforce individual personal protections under the commerce clause. And perhaps more importantly in those cases the Court has used the term rights to describe the protections that the commerce clause gives.

For example, in Boston Stock Exchange v. State Tax Commission, the Court upheld the claim of certain tax commissions that a New York statute violated the commerce clause, and it rejected the contention that those -- that the plaintiffs were not entitled to raise those claims by saying that plaintiffs are asserting their right under the commerce clause to engage in interstate commerce free of discriminatory State taxation.

QUESTION: Under your theory is there any violation of the Constitution by a State actor that does not give rise to a 1983 suit?

MR. ALLEN: I can't think of any, Your Honor. The respondents and the court below attempt to analogize the commerce clause to the supremacy clause, which of course this Court last term in Golden State Transit said was not itself a, a source of rights actionable under section 1983.

But the supremacy clause is very different from the commerce clause or really from any other provision of the Constitution. Supremacy clause is merely a declaration of the supremacy of Federal law. It does not of itself impose any specific restraints or obligations on the States or on the Federal Government.

The commerce clause in contrast is a source of Federal rights and of -- and of specific obligations that are imposed in the States. And indeed in this very case, the court below imposed those obligations on the State of Nebraska, and they did so at the behest of petitioner in order to protect his interests. It is I submit a contradiction in terms for the court below to conclude that the petitioner has an enforceable protection and yet has no right.

But again I think the -- this Court's decisions that perhaps are clearest on this point are the decisions in Morgan v. Virginia and mostly clearly refute the decision of the court below that the commerce clause doesn't protect individual rights are Morgan v. Virginia, Boston Stock Exchange, and also United States v. Guest. In United States v. Guest the Court upheld an indictment under the criminal counterpart to section 1983, which alleged that the defendants had violated the constitutional rights of certain black citizens to travel freely to and from the State of Georgia. The Court upheld that indictment and it said that the constitutional right to travel was based on the commerce clause.

I submit that -- that this Court could not affirm the decision below without effectively overruling all of those decisions or at least calling them seriously into question.

Now, respondents have argued that those cases are not important because they didn't involve section 1983 and because they didn't involve the precise of what section 1983 means by rights, privileges, and immunities. But there's no basis for the supposition that section 1983 intended the words rights, privileges, or immunities to have any different meaning from their commonly understood meaning or from their meaning in usage in other context. Respondents in effect would have this Court employ a special vocabulary for section 1983 that's at odds with its ordinary meaning.

As I -- furthermore, as I've said respondents' contention that the commerce clause does not secure individual rights is inconsistent with the specific test that this Court fashioned and summarized in Golden State Transit v. Los Angeles for determining what constitutes a right, privilege, or immunity enforceable under section 1983.

QUESTION: Is there any claim in this case that, that, that this action could not have been brought under ordinary jurisdictional provisions?

MR. ALLEN: No.

QUESTION: The Federal question?

MR. ALLEN: It could not have been brought in Federal court under Federal jurisdictional statutes. Or it could not have been brought into Federal court for several reasons. First, it sought an injunction against the State tax and the Federal Tax Injunction Act prohibits Federal courts from entertaining such actions.

QUESTION: Uh-huh.

MR. ALLEN: And second of all, it sought monetary relief and the Eleventh Amendment prohibits Federal courts from entertaining such actions. So as a factual matter, the only place this claim, with or without section 1983, can be brought is in section -- is in State court --

QUESTION: Well, if a tax -- suppose a State tax weren't at issue and suppose only an injunction is sought, you can bring a Federal question suit in them --

MR. ALLEN: You can, yes, you can --

QUESTION: -- and claiming -- claiming that there's been a --

MR. ALLEN: If there was a State regulation, Your Honor, such as a truck tax -- a truck length law or something, you could have Federal question jurisdiction and now without --

QUESTION: And rely on the dormant commerce clause?

MR. ALLEN: Yes, you could.

QUESTION: And get an injunction.

MR. ALLEN: Yes. The same is true -- but the same -- I think the point that I would stress is the same is true of other provisions of the Constitution and of Federal statutes this Court has held are enforceable under section 1983.

QUESTION: Well, I know, but if you could get an injunction in such a Federal question case, I suppose it's based on the fact that you have a right to it.

MR. ALLEN: That's absolutely correct. And indeed this Court has -- has stated that in Davis v. Passman. The Court said the essence of a cause of action is the ability to enforce a right. Again it's a contradiction in terms.

QUESTION: That's true. But I don't suppose any -- the other side doesn't disagree with that, do they? Or do they say it's no right, it's just a standing question?

MR. ALLEN: I think what they say is that if it's a right in other contexts, it's not a right in the context of section 1983.

QUESTION: Okay.

QUESTION: Mr. Allen, help me on something I don't quite understand. You could not have brought this action into Federal court because the defendants are protected by the Eleventh Amendment. Are not those defendants held not to be persons within the meaning of 1983 for that reason?

MR. ALLEN: No, Justice Stevens, they are persons for these purposes. In Will v. Michigan Department of State Police --

QUESTION: Right.

MR. ALLEN: -- I think last term or the term before, the Court held that States themselves were not persons within the meaning of section 1983.

QUESTION: Or officers acting in their official capacities.

MR. ALLEN: And officers acting in their official capacities when sued for monetary relief. But the Court in Footnote 10 of that opinion made the clear distinction that officials sued in their official capacity for injunctive relief are persons who are subject to suit under section 1983.

QUESTION: So insofar as you sought monetary relief it clearly is not a 1983 claim?

MR. ALLEN: That's correct.

QUESTION: So you're claiming the injunctive aspect is the 1983 claim?

MR. ALLEN: That's correct.

Respondents don't deny that -- going back to the Golden State test --

QUESTION: Let me pursue that one step further. Do you think that the Tax Injunction Act modifies 1983 in any respect? Is it possible if you construed those two cases -- two statutes together, you'd say, well, you can't get monetary relief because of the Eleventh Amendment and you also should not construe 1983 to authorize equitable relief in Federal court at least by virtue of the Tax Injunction Act? I suppose that would be true, wouldn't it?

MR. ALLEN: Yes.

QUESTION: But then there's this very narrow area that 1983 provides a cause of action in State court only even though if you're right on the merits you clearly have a State remedy and it's 1983 action is totally superfluous except for the provision for attorneys' fees, is that right?

MR. ALLEN: Essentially that's correct. It's not totally superfluous except for attorney's fees because there may be instances in which the State officials are violating constitutional rights in bad faith. For example, if State officials adopted a practice of harassing people coming into their State because they were from the State of Ohio, because they didn't like Ohio, and did so in bad faith and violation of the commerce clause, I think that in those circumstances someone would have a cause of action for damages against the individuals.

But in this case, we've not --

QUESTION: But not if their State acting in -- well, I see what you're -- yeah.

MR. ALLEN: But if they're acting in bad faith they would not have a qualified immunity. And I think that's an important consideration with respect to the issue in this case and that's an important reason I think that section 1983 needs to be given the full scope that its language suggests.

QUESTION: You wouldn't need the commerce clause in that situation if they were -- if they were using State law to exclude people in bad faith without any good State reason for it, you'd have a cause of action, I would assume anyway, without the commerce clause, wouldn't you? Once you posit bad faith, which is what makes them not state -- not States being sued for damages.

QUESTION: I think I can -- Justice Scalia, I think one could conceive of a circumstance where such discrimination might not violate the equal protection clause but yet be a bad faith violation of the commerce clause. For instance, this Court has held that the equal protection clause does not prohibit retaliatory State actions, but the commerce clause I think clearly does as all the cases have held.

QUESTION: Well, in the Morgan case they deliberately left out the Fourteenth Amendment. It wasn't in there at all. It strictly commerce clause.

MR. ALLEN: It was strictly commerce. I don't know why they left it out, but it was strictly a commerce clause case.

QUESTION: Ask me sometime, I'll tell you.

MR. ALLEN: The respondents -- getting back to the Golden State test -- the respondents don't really dispute that this -- the commerce clause satisfies at least the first two considerations in Golden State but they hang their argument on the third consideration, which they claim the commerce clause doesn't meet. That is, that it has a intent -- it allegedly has no intent to benefit individuals. And I submit that that's simply not true, that Morgan and other cases indicate that it does, it does have that intent.

But furthermore, the, the dichotomy that the respondents and the court below seek to draw between, one the one hand the purpose of the commerce clause to allocate government powers and to serve national and broad societal interests, and on the other hand a purpose to benefit individuals is I submit a false dichotomy. The fact that a constitutional provision my allocate powers and have a purpose to serve broad national interest does not mean that it is -- does not also intend to serve and secure liberty for individuals.

And in fact this Court has consistently rejected that dichotomy in cases involving provisions of the Constitution which allocate powers among the branches of the Government. And perhaps for purposes of the issue in this case, that is, the question whether such provisions give rise to individual rights, the most telling decision is this Court's decision last term in United States v. Munoz-Flores where the Court rejected the Government's argument that the origination clause, which requires revenue measures to originate in the House of Representatives -- rejected the Government's argument that that clause doesn't involve individual rights.

The Court -- excuse me -- the Court specifically stated that the Government's contention that the origination clause does not involve individual rights is erroneous and the Court said it had -- it has repeatedly upheld provisions separating -- in separation of powers cases, repeatedly upheld the claims of individuals seeking to enforce their own protections based on those provisions.

I'd like to briefly address respondents' contention that the legislative history of section 1983 supports the decision below. The court of -- the Supreme Court of Nebraska made no reference to the legislative history. Respondents, however, have relied on it and they've relied primarily on certain remarks of Representative Shellabarger which appear to draw a distinction between provisions of the Constitution which relate to the division of powers between the State and Federal Government and provisions which secure the rights of individuals within the States. And I think three things should be said about those remarks.

First, there's nothing in those remarks that indicate that Congressman -- Representative Shellabarger was expressing any view about the scope of the legislation that would become section 1983. The thrust of his remarks appeared to be that remedial legislation was particularly necessary in the case of the latter-type provisions. But he did not say and he did not suggest that the legislation that he was supporting did not encompass all of the provisions of the Constitution. And, indeed, the absence of any limiting or qualifying language refute any such suggestion.

Second, it's not clear what provisions Congressman -- exactly what provisions Congressman Shellabarger would have put into which category. The examples he gave of power-providing provisions were the provisions providing that the States shall enter into no treaties, that they shall not coin money and they shall not emit letters of credit. The examples that he gave of the latter-type provisions were the fugitive-from-justice provision of the Constitution, the fugitive slave provision, and the privileges and immunities clause.

Most importantly, nothing in his remarks made any reference to the commerce clause, and there's simply no basis for the supposition that Congressman Shellabarger would have concluded that the dormant commerce clause did not create rights

And, in fact, this Court's decisions -- numerous decisions of this Court establish that the dormant commerce clause does establish rights with respect to individuals as between them and the States.

QUESTION: I suppose you could say the same thing in a sense about the treaty clause. Conceivably an individual could challenge an agreement that was made, say, between the State of California and Mexico on the grounds that it was actually a treaty that needed to be approved by Congress and they were trying to do some of this person under the treaty. They, they would at least have standing to do that.

MR. ALLEN: They would have standing and if the question of whether or not the treaty provision gave rise to section 1983, cause of action, I think that would be a -- an interesting and perhaps difficult question.

QUESTION: More difficult than this one you (inaudible).

MR. ALLEN: Certainly more difficult than this one.

In sum, Your Honor, in sum the section 1983 provides a Federal cause of action for the deprivation of any rights, privileges, and immunities secured by the Constitution without any limitation or qualification. This Court's decisions have repeatedly held that the coverage of section 1983 must be broadly construed, and it has consistently rejected efforts to limit the scope of rights that are covered by section 1983.

Now if it were for some reason appropriate to carve out the commerce clause from the protections that section 1983 provides, Congress is free to do so. But there's simply no warrant for this Court to do so on the basis respondents' strained and unnatural reading of the statute.

If there are no further questions, I'd like to reserve the balance of my time for rebuttal.

QUESTION: Thank you, Mr. Allen.

Mr. Bartel, we'll hear now from you.

ORAL ARGUMENT OF L. JAY BARTEL ON BEHALF OF THE RESPONDENTS

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

Respondents maintain the decision below was correctly decided for three basic reasons. First, under the test set forth by this Court last term in Golden State, a right that's secured by the Constitution under section 1983 only where the constitutional provision at issue is intended to benefit the plaintiff, asserting the existence of a right actionable under section 1983.

Second, the nature and purpose of the commerce clause, as interpreted and applied by this Court, demonstrates the clause was intended to allocate power between the States and the Federal Government. In order to preserve the national interest in maintaining political and economic union, the clause was not intended to benefit individuals or participants in the interstate market place and thus secures no right to petitioner actionable under section 1983.

Third, the legislative history of section 1983 --

QUESTION: (Inaudible) otherwise?

MR. BARTEL: Certainly there are causes of action but not one under section 1983.

QUESTION: Well, that was a cause of action in this case.

MR. BARTEL: In State court, that's correct.

QUESTION: Yes, and based on the commerce clause.

MR. BARTEL: Yes, petitioner had standing to raise his claim in State court.

QUESTION: Well, they not only raised it, they -- he won on that claim.

MR. BARTEL: He received declaratory injunctive relief, that's correct.

QUESTION: Yes, and did he get an injunction against the tax?

MR. BARTEL: Yes, he received prospective injunction.

QUESTION: And that he -- but he has no right -- he had no right. What was he just a private attorney general or what?

MR. BARTEL: He has -- he has no right within the special meaning of section 1983, a right secured by the Constitution under this test -- under the test set forth by the Court in Golden State. In Golden State the Court specifically stated that one of the standards for determining whether a constitutional provision secures a right within the meaning of that -- of that statute is that the provision in question must be one which is intended to benefit the plaintiff. We submit the commerce clause is not such a constitutional provision.

QUESTION: Well, in this case if they've been paying illegal -- what they claim to be illegal taxes and the State courts said, yes, the statutes -- those taxes are unconstitutional and the question then might be about a refund. And suppose the State court says, yeah, you can get a refund of past taxes. Still no right?

MR. BARTEL: Within the meaning of section 1983, no. There is a distinction there that we need to make between a general version or a general understanding of a right. For example, a right to bring a case into court and the special meaning of a right under section 1983. And while the petitioner seems to say that there is a common understanding of what word right means under section 1983, obviously the test set forth in Golden State indicates that there are limitations on that and that one of the limitations is the express requirement that it be intended to benefit the plaintiff. And we submit the commerce clause, if that is the basis for the claim --

QUESTION: Mr. Bartel, why don't you slow down just a little bit. I think we could understand you a bit.

MR. BARTEL: Certainly, Your Honor.

The parties here agree that the standard to be employed in determining whether a constitutional provision secures a right under section 1983 is set forth in the Court's decision in Golden State. The disagreement here is based on the application of the Golden State standard to claims of violation of the dormant commerce clause.

The crucial element and first part of the Golden State test at issue here is whether the commerce clause was intended -- is intended to benefit the plaintiff. We submit the ultimate question which must be -- to answer is whether Dennis' standing to sue as a person affected by a State law.

QUESTION: Let me just -- may I just interrupt. Are you saying -- obviously back at the time the clause was drafted, the plaintiff wasn't around. But the people who were engaged in the business of transporting goods and people across State lines from one State to another, you say that the interstate commerce clause was not intended to benefit people engaged in that sort of activity?

MR. BARTEL: The history and background of the commerce clause demonstrate that its purpose was to allocate power between the State and Federal Governments.

QUESTION: Well, I understand, but you were talking about the people whom it was intended to benefit. And aren't these the very quintessential examples of people who are intended to be benefited by, by having interstate commerce free of, of discriminatory restrictions and the like?

MR. BARTEL: The basis for the commerce clause was not the basis of conferring benefits on individuals per se. The protections to be afforded by the commerce clause are national in scope -- the interests of preserving national interest and economic unity. The historical background of the clause was obviously to, to illuminate the type of commercial warfare and economic rivalries --

QUESTION: But are you saying there are no individuals who are intended to be benefited -- it was just a structural provision that didn't benefit anyone except to form the basis for the way the Government was put together? Is that your point?

MR. BARTEL: It's our position that whatever benefits may be derived to individuals as a result of the existence of the commerce clause and the dormant commerce clause doctrine are merely incidental to the clause's main purpose, that purpose being, again, to preserve the national interest in political and economic union.

QUESTION: So really what you're saying is with respect to the first of the three points you're making -- I don't understand some that you want -- there really are no individual businesses or persons who would fit the, the requirement of being intended beneficiaries of the clause?

MR. BARTEL: That's correct. And this Court's decisions have in commerce clause cases confirmed the notion that the interests involved in being resolved in those cases are not individual interests but national interests.

QUESTION: Does your analysis on that point turn on the proposition that Congress could permit the States to regulate if it chose? Is that what makes this right one that's it not a right given directly to the person?

MR. BARTEL: It's a part of it I think, Your Honor, because it indicates that perhaps it is certainly not -- whatever they're claiming is not -- is certainly subject to qualification. Congress can remove it -- any individual's ability to act entirely or it can give the States the authority to restrict or prohibit and enact legislation that they otherwise could not do, for example, under application of the dormant commerce clause. But the key focus is, as the Court has recognized in several decisions, that the clause itself protects only the interstate marketplace and not particular participants in the marketplace or firms operating in commerce -- in Exxon v. Maryland and Minnesota v. Cloverleaf Creamery.

QUESTION: And, and what you do with a case arising out of a contract clause?

MR. BARTEL: Well, as you indicated, Justice Kennedy, in questioning counsel here, the contracts clause in Carter v. Greenhow was held not to secure right within the meaning of section 1983. It was not rights secured by.

QUESTION: Well, let's assume you can explain the case away as a pleaded case so that the issue came back before us to know, but would you distinguish between the commerce clause and the contract clause?

MR. BARTEL: Perhaps under the Golden State test of intent to benefit one might view the specific nature of the contracts clause. By referencing contracts themselves, it seems to -- an argument could certainly be made that that reference relates directly to perhaps individual rights because contracts obviously relate to the rights of individuals, vested rights there, and that might arguably present a little different analysis than you would. But clearly the commerce clause is different, much different than the contracts clause in the sense that it doesn't support any type of civil (inaudible). It is an allocation clearly in distribution of powers between the States and the national Government. So the clauses really are different in nature even if one were to reexamine Carter.

QUESTION: Do you think there's a right to engage in interstate commerce?

MR. BARTEL: Not as that term is used in section 1983, no.

QUESTION: But there is a right nevertheless.

MR. BARTEL: Only if you use the term in the sense that perhaps the individuals --

QUESTION: Well, the State says -- says no imported natural gas shall be allowed in this State and the people who are excluded sue and win. Do you think they had a right or not?

MR. BARTEL: They certainly have standing to in essence vindicate the national interest in holding that kind of legislation unconstitutional, that's correct. But it's not based on an individual right secured by the Constitution under 1983.

Perhaps I think the distinction was recognized --

QUESTION: How do you explain again cases like United States v. Guest and Morgan which speak in terms of individual rights and purported to give relief at least for a violation for the right to travel that the court said was covered by the commerce clause?

MR. BARTEL: Well, first we take issue with petitioner's assertion that the decision in Guest was based strictly on the commerce clause. We, we read Guest as not being specifically based. They're basing the constitutional right to travel on the commerce clause. In subsequent opinions of the Court, Shapiro v. Thompson and Attorney General v. Soto-Lopez, the Court has declined to locate the right to travel in any specific provision of the Constitution. Furthermore, we think there is a distinction that should be drawn between petitioner's alleged right to engage in an interstate trade, and that's an interest that should be viewed as fundamentally different from the right of -- the personal right to travel at issue in these cases.

As for Morgan -- we view Morgan as simply a consistent application of this Court of vindicating a national interest in State commerce as opposed to the recognition of any individual right.

QUESTION: Well, I don't know why in the answer you gave me why you just didn't repeat the same answer, that's just not the kind of right that 1983 is talking about.

MR. BARTEL: Well, because I wanted to distinguish -- Morgan in particular I think since they rely so heavily on it I'd like to emphasize that this case was not an individual right-type case at all and that the actual holding in the case was based solely on the national interest served by the commerce clause.

The Court there stated that the reason the statute was invalid not that it was based on the violation of individual right but rather because the statute unduly burdened interstate commerce because seating arrangements for the different races in interstate motor travel require a single uniform rule to protect and promote national travel. Again, this is consistent with the -- consistent recognition by the Court that the -- anything -- the decision in commerce clause cases is not based on an individual right, rather it is a national interest being vindicated. And that is the basis for the Court's decisions.

QUESTION: What about the right conferred upon a, a businessman to be free from predatory practices by another businessman? Is that a -- under the Sherman Act -- is that an individual right or is that just a national interest?

MR. BARTEL: Well, of course, we're dealing here with section 1983 --

QUESTION: I understand, but I -- I'm -- I don't grasp the distinction. You draw a dichotomy between those statutes and those provisions that seek to prevent -- protect private interests and those that seek to protect national interests. But in fact, I thought every time Congress passes a statute or the people enact a constitutional provision, they're not doing it for the selfish benefit of some individuals. Isn't there a national interest behind every right that's conferred? I mean, you always have some further good government objective to it, don't they?

MR. BARTEL: Certainly, the Court has recognized that the Constitution after all as a whole was designed to be --

QUESTION: Sure. So -- so --

MR. BARTEL: (Inaudible) nation itself --

QUESTION: The commerce clause does indeed have in mind free travel and what not, but in order to assure that national interest it gives rights to particular individuals to assert the right --

MR. BARTEL: But it --

QUESTION: -- just as the Sherman Act, in order to get lower prices for all consumers, gives rights to businessmen to sue for predatory practices.

QUESTION: But the critical question here though is we're dealing with the interpretation of a statute passed by Congress. And what did Congress mean when it used the words "rights, privileges, or immunities secured by the Constitution under section 1983," and we think that the legislative history is revealed as to what Congress intended when it enacted the 1871 Civil Rights Act.

QUESTION: Well, what you're saying is that they intended some shadowy distinction between rights that have a national interest and rights that don't have a national interest and I'm just trying to fathom whether that distinction makes enough sense that any rational person could have had it in mind. I don't see the two.

What about -- what about the -- is there a private right in the origination clause? Does that -- the origination of the Constitution, does that confer a private right which requires tax bills to be originated in the House and we have allowed suits to be brought alleging taxes to be unconstitutional when they are imposed under a taxing statute that did not originate in the House but originated in the Senate. Is that a private right in your mind or a national right?

MR. BARTEL: Well, of course Munoz-Flores, as cited by petitioner here, involved I believe the origination clause and the precise question of whether the person there had a right to bring the action. That of course revolves on a consideration of separation of powers in that instance. Now, perhaps because the separation of powers doctrine was primarily designed as a prevention against tyranny, you know, for individuals, then perhaps the Government --

QUESTION: You consider that a national right then? That would be a national right, not a 1983-type right?

MR. BARTEL: Certainly. It would not implicate 1983, but your question is is there some individual right nevertheless, you know, obviously outside of 1983 because it involves Federal action.

Again, to give -- to recognize the right of individuals to challenge that kind of an action is based, as I said, on probably a recognition that that type of constitutional protection, separation of powers, serves a very important function in the prevention of tyranny within the branches of government, and it of course represents a concern fundamentally different than the one we're raising here simply is the -- the meaning of section 1983 again as set forth in the legislative history of the act by its principal sponsor and others and an understanding that not all constitutional provisions were covered by the act's rights, privileges, or immunities language.

In addition to Representative Shellabarger, who I think's comments are highly relevant, we've also pointed out that other Representatives and even -- and Senators at the time of the passage of the act recognized the same distinction between constitutional provisions that serves to deal with the relationship between individuals and the States, which were to be covered by the act, and the constitutional provisions recognizing distinction between the political powers between the States and the general Government.

Now, clearly it would appear that the commerce clause, although not specifically mentioned by Representative Shellabarger, falls in the category of a rights or a power-allocating provisions. And Representative Hoar specifically mentioned the commerce clause in his comments as we cited in your brief at page 36 and 37 in distinguishing those from the types of personal rights to be covered by the 1871 act. Senator Trumbull recognized the same distinction, including a reference to interstate commerce being a, a provision dealing with national authority as opposed to an individual rights-granting provision. We do not think that legislative history should be lightly dismissed as petitioner would ask us to do here.

In addition to the Morgan case petitioner has also relied almost heavily on Boston Stock Exchange v. State Tax Commission. We submit that the reference in Boston Stock exchange to a right to engage in interstate commerce it is included within a discussion of the standing of the exchanges to bring the act and talks about the adverse effect, injury in fact, requirements that deal simply with their standing to bring the action. And if you look at the decision on the merits you will see that the actual basis for the Court's finding the tax unconstitutional in that case is an undue burden on interstate commerce focused on the free-trade purpose, in other words the national interest served by the, by the commerce clause and not the recognition of any individual right possessed by the exchanges.

The non-application of section 1983 to claims of this nature we think is, is also demonstrated by some cases decided by the Court shortly after the passage of the Civil Rights Act in 1871. In 1885 again, the Carter v. Greenhow case in which the Court distinguished between the language and the Federal question statute, the broader arising under the constitution language as opposed to the more limited "rights secured by" language in section 1983. The significance of that I think is that it recognized that shortly after the act that not all constitutional violations were intended to be within the scope of section 1983.

Again, Bowman v. Chicago and Northwestern Railway Company, another 1885 decision, involved the claim on commerce clause grounds that a State statute restricting interstate delivery liquor violated the plaintiff's right to engage in interstate commerce. The Court there indicated that while that claim may be one arising under the Constitution, it did not State a claim for the deprivation of any rights secured by the Constitution.

We believe that there are additional considerations that would militate against the Court's expanding section 1983 to commerce clause litigation. The major impact of section 1983 here would be simply to permit a recovery of attorneys' fees. When Congress enacted the attorney fee statute in 1976 to ensure effective access to the courts, we find it difficult to believe that commerce clause litigation was among the type of cases that Congress was concerned was being denied effective access to the courts, given the long history of commerce clause litigation in the country.

QUESTION: Mr. Bartel, I think you suggest that, because you really can't say Congress' purpose or that the purpose of the Constitution was to confer private rights, 1983 doesn't cover it even if -- even if in order to affect that purpose private individuals must be given a cause of action.

MR. BARTEL: Well, again the basic premise is that --

QUESTION: So it's the purpose, the purpose of the clause, whether you can say that it's -- the purpose was to give private rights or really just to vindicate a national interest.

MR. BARTEL: You're saying the purpose of the commerce clause?

QUESTION: Yes.

MR. BARTEL: The purpose we think indicates that under the Golden State test that the constitutional provision which they claim secures their right here was not intended to confirm the type of specific benefit on individuals participating in the marketplace recognizing under section 1983.

QUESTION: Well, even if -- you can say -- even if in order to effect the purpose that the, that the clause has, you must allow individuals to sue and recover.

MR. BARTEL: Certainly, and individuals have throughout the history of the Nation -- have done so.

QUESTION: Yes.

MR. BARTEL: And that indeed in this case, the courts of Nebraska were open to them. It was not a situation where they were being denied their remedy. The question was whether their cause of action would be one under section 1983 or whether they would have to pursue their remedy under some other claim.

We've also suggested to the Court that if it should find that claims under the dormant commerce clause are actionable under section 1983 that a remand would be appropriate because we feel that the implications of the Tax Injunction Act have not been addressed here and that they should be because they indicate that perhaps Congress has established an alternative remedial scheme which has precluded availability of sections 1983 and 1988 in this particular class of cases.

In 1987 the Court in Arkansas Writers' Project v. Ragland indicated that the question of whether State courts must entertain section 1983 claims and State tax challenges had not been decided. And 3 years -- 2 years prior to that in Spencer v. South Carolina Tax Commission the Court had affirmed on a 4-4 vote without opinion that a decision of the South Carolina Supreme Court which denied attorneys' fees in a claim in a State tax case based on the privileges and immunities clause, we submit that perhaps that in the event the Court should find that there is a cause of action under section 1983 here, that a remand would be appropriate to address the effect of the impact of section 1983 and 1988 in a State tax challenge.

If there are not further question, I have no argument.

QUESTION: Thank you, Mr. Bartel.

Mr. Allen, do you have rebuttal?

REBUTTAL ARGUMENT OF RICHARD A. ALLEN ON BEHALF OF THE PETITIONER

MR. ALLEN: Thank you, Mr. Chief Justice.

First, I'd like to respond to the contention that United States v. Guest did not base the decision there on the commerce clause. That's simply incorrect. Guest squarely rested the violation, the alleged violation, of the identical statutory language on the commerce clause at 383 U.S. at 758 the Court said, in Edwards v. the People of the State of California invalidating a California law which impeded the free interstate passage of an indigent, the Court based its reaffirmation of the Federal right of interstate travel upon the commerce clause. This ground of decision was consistent with precedents firmly establishing that the Federal commerce power surely encompasses the movement in interstate commerce of persons as well as commodities. And for that reason they upheld count four of that indictment.

Second, with respect to the contention that Bowman v. Chicago Northwestern Railroads somehow supports petitioner, that's simply incorrect. Again, Bowman did not -- did not hold that the commerce clause did not secure rights under the Constitution. What the Court in Bowman held was that the plaintiff's claim in the case against the railroad was simply a State law claim. In other words, a claim that the railroad was obliged by the State law of common carriage to carry his commodities, and that's why the Court rejected his claim and found that it did not fall within the jurisdictional statute.

And an interesting contrast of Bowman, I think, is a case around the same period which is one of the early cases enforcing the dormant commerce clause against a discriminatory State tax, and that's Guy v. Baltimore in 19 -- in 1879. And in that case, the Court struck down a Baltimore worthage fee that was imposed only on ships that came into Baltimore carrying out-of-State commodities. And the court said if the prohibition against discriminatory taxation were not in the commerce clause, "It is easy to perceive how the power of Congress to regulate commerce with foreign nations and among the several States could be practically annulled" -- and this is the important part -- "and the equality of commercial privileges secured by the Federal Constitution to citizens of the several States materially abridged and impaired." Clearly the Court at that time viewed the commerce clause as securing privileges to the citizens of the several States.

Reference was made to remarks of other Congressmen and particularly Congressman Hoar during the debates on section -- on 1983. If you read Congressman Hoar's remarks, basically he was engaging in a dissertation on the Constitution and explaining how there were different types of provisions, but there's nothing in his remarks that suggest that he understood the proposed legislation as not including rights under the commerce clause.

Finally I'd like to address briefly the respondents' argument that if this Court recognizes that --

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Allen. Your time has expired.

The case is submitted.

(Whereupon, at 11:53 a.m., the case in the above-entitled matter was submitted.)