New York v. United States - Oral Argument

Argument of Peter H. Schiff

Chief Justice Rehnquist: We'll hear argument now in No. 91-543, New York v. United States, 91-558, the County of Allegany v. United States, 91-563, the County of Cortland v. United States.

Mr. Schiff.

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

The petitioners in this case challenge the constitutionality of the Low-Level Radioactive Waste Policy Amendments Act of 1985 as being in violation of the Federal system, and specifically we place our reliance on the Tenth Amendment and the Guaranty Clause.

We recognize that Congress certainly has the power under the Commerce Clause to deal with the subject of the disposal of low-level radioactive waste, but it is our position that the means that it has chosen here is constitutionally defective.

This act is directed solely at the states and makes the states responsible for the disposal of low-level radioactive waste that is generated within the state.

It makes the states responsible for the disposition of the waste of private generators, Federal generators, as well as any that is generated by the state itself.

This is a totally mandatory provision which requires the states to stay, to enter and to stay in the field of low-level, disposal of low-level radioactive waste.

The mandate is made particularly effective by the so-called take title provision which specifies that if the state has not otherwise provided for the disposal of low-level radioactive waste by January 1, 1996 that the state must take title of any such waste, and if it doesn't accept possession that it becomes liable for any, to the other generators if there are any damages, direct or indirect.

In other words, one way or the other the states are simply ordered by Congress to enter this activity.

The statute is truly unique in the annals of American jurisprudence.

We know of no other situation where the states have simply been mandated to take part in a particular activity.

In the past what Congress has done, it has essentially recruited the states in one of two ways to do the regulation that the Federal Government would like to have done.

It has either, as in the Hodel case involving the land mine, surface act, it gives the states an option.

You regulate according to the standards set out by the Federal Government, or otherwise we, the Federal Government, will do the regulation itself.

The other means that they have chosen is the Spending Clause, and to provide Federal money as an inducement for the states to do regulation in accordance with Federal standards.

Justice Scalia: Mr. Schiff, is that all this case is about, that Congress is going to have to tie New York's continuing receipt of highway funds to its assumption of this responsibility?

Mr. Schiff: Well, if that is legal, but it hasn't done that, Your Honor.

Justice Scalia: It seems like a lot of trouble for very little, very little point.

Mr. Schiff: Well, it's our position that the means that the Congress uses is a very important consideration in the constitutional structure of this, of the Government.

It is our basic position that the Constitution contemplates two sets of sovereigns and that the states are intended to have the choice as to which activities they will participate in.

So we think that the means that the Congress chooses is by no means a minor one.

We think it is a vital one, and we think it's a serious incursion on the constitutional structure.

Justice O'Connor: Mr. Schiff, do you suppose Congress could provide that a state without a site for radioactive waste, that no shipments of radioactive waste could be sent out of state?

Mr. Schiff: Yes, we think that's perfectly acceptable.

We have no problem, and we have not, have never objected to that separately.

But we think that's not a, what this case is all about either.

Justice O'Connor: Let me ask you another question.

If we were to agree with you on the take title provision, is it severable?

Mr. Schiff: We think not.

Justice O'Connor: Why not?

Don't you think Congress would probably have enacted this law absent that clause?

Mr. Schiff: Well, as we point out in our brief, we think the legislative history, all of which really shows up in the congressional record I think on December 19 of 1985, the day that this law was passed, shows that the, we don't think it would have been passed by simply excising the take title provision.

We think probably some law would have been passed, but it may have been something very different.

And as we read your cases that, if it is clear, as we think it is, they wouldn't have passed the legislation by simply excising the provision.

Then it's not severable, and there isn't any severability clause here.

Justice O'Connor: Well, I would have thought the problems were so acute that they probably would have passed it without that clause.

We don't know... that provision.

We don't know exactly where it came from.

It appeared rather at the last minute, didn't it?

Mr. Schiff: Well, as we read the legislative history, it came at the instance of the governors of the so-called sited states, ones that had disposal sites, and they made it plaint that they did not think that the legislation as it stood at that point was sufficiently, it didn't have enough teeth.

And they were concerned that the same thing that happened under the 1980 act would happen with respect to the 1985 act, so they said we need teeth.

However, the question of, this Court will have to decide whether it is severable or not, and all I can do is I think refer the Court, in addition to what I have said here on severability, to our brief and commend that you examine that legislative history.

I suppose the threshold question before the Court in light of the Garcia decision which the--

Justice Scalia: What do we do if there's no legislative history, or we don't think any of it is very convincing?

Do you have any advice for those of us who might find that to be the case?

Mr. Schiff: --Well, I think--

Justice Scalia: How do we decide severability?

I thought we decide it on the basis of simply whether the statute works without the provision.

Does it make sense.

Mr. Schiff: --Well, I think there are two elements, Justice Scalia.

If it works is the second element, but the first element is whether it's apparent that it would not have been passed without it.

It may be that it would be, if one doesn't look at the legislative history in this case, you might reach the conclusion that it is severable, because I'm not sure you can tell for sure that it would not have passed.

But for those of us, for those who do look at legislative history we think that the law, that it is apparent that it would not have been passed in that form by simply excising the take title provision.

Justice White: Well, did the title provision originate in the Senate?

Mr. Schiff: Yes.

As I recall it it originated in the Senate.

Justice White: And your senator was all for it, I take it?

Mr. Schiff: Senator Moynihan supported the legislation.

We don't think that... well, if I may I will... that is correct, but I will discus that slightly later.

Justice White: That's all right.

[Laughter]

Justice Scalia: He wasn't representing the State of New York anyway, was he?

[Laughter]

Mr. Schiff: Not in a constitutional sense, Your Honor.

Justice Scalia: He was representing the people of New York, wasn't he?

Mr. Schiff: He was representing the people of New York and he was acting as a senator, but he was not representing the constituted government of the State of New York which has to speak through the legislature and the governor.

And that is I think what this case is all about, that the, that the constitutional system does contemplate action through the state legislatures and through the state governments.

We think that is what the Federal system means and that is what did not happen here.

That is why we think this case is properly reviewable within the confines of the Garcia case.

You will recall while the Garcia case essentially said that this Court will not normally review Tenth Amendment challenges, it did recognize that it would consider or might consider statutes that impair the constitutional structure.

And we think that, contrary to the decisions below, that review of this case comfortably fits within what was left open in the Garcia case.

In fact we suggest that very little else would fit in any better than the present case.

Chief Justice Rehnquist: How exactly does this act of Congress violate the Tenth Amendment in your view?

Mr. Schiff: Because this act regulates not so much commerce as it regulates the states.

It picks out the states and simply directs the states, that you must do a particular activity.

We think that is not a power... we think the decision as to whether to act with respect to engaging in a particular activity is one that is reserved to the states under the Tenth Amendment.

Chief Justice Rehnquist: Well, how about where Congress regulates a state-owned railroad?

Mr. Schiff: Well, this is... the difference between this case and those cases, Your Honor, is that there what Congress is doing is to regulate an activity that the state has already chosen to undertake.

It could withdraw from that activity if it chose.

I mean, that's the kind of case that was involved in the trilogy of Fair Labor Standards Act cases, Wertz, National League of Cities, and the Garcia case.

It's also the kind of thing that was involved in South Carolina against Baker, where the Federal Government decided generally not to permit unregistered bonds if people chose to issue bonds, and, as to states, if they were tax free.

But it was applying across the board generally.

Chief Justice Rehnquist: You say the Congress just included states among the people it was regulating for carrying on a certain activity and it didn't single out states?

Mr. Schiff: That's right.

This case is in many ways analogous to an earlier New York against United States case, the one involving the taxing of the waters from Saratoga Springs that were sold by the State of New York, where the Court did say that you could tax New York if you're taxing them like everyone else, but the Court, admittedly by way of dicta, made it plain that the situation would have been very different if you're simply singling out the states and simply taxing them.

And the whole Court seemed to think that that, said that that would be unconstitutional.

And we think that's precisely the problem here.

This is a problem in this case that was essentially left open or avoided, if I might, in FERC against Mississippi, where--

Justice Blackmun: Mr. Schiff, are you asking that Garcia be overruled?

Mr. Schiff: --No, we're not.

Justice Blackmun: You're willing to sit on the little open door that was left there?

Mr. Schiff: Absolutely.

We think that it is a reasonable open door and what happens in some other cases we leave to another day.

We think that it plainly doesn't need to be overruled.

Justice Kennedy: Are you asking that FERC be overruled?

I see you're about to get to that.

Mr. Schiff: No.

We think FERC is quite distinguishable.

The majority of this Court in FERC made it quite clear that the state had a choice.

It didn't really have to do what that act of Congress required it to do because it didn't have to regulate public utilities, while--

Justice White: Well, you know that it, you know that's a, just a dream world.

Mr. Schiff: --Well, that's what some of the, that's what the dissenters indicated, and I'm not... but the fact of the matter is that the decision as it was written indicated quite plainly that that was critical to that decision.

Justice Kennedy: What are the underlying values that you're trying to further by the Tenth Amendment argument that you urge upon us?

Is it, is this simply just a matter of etiquette and form, the etiquette of federalism, or is there something more substantial?

Mr. Schiff: Well, we think, Justice Kennedy, that, as Justice O'Connor's opinion recently in the Ashcroft case indicated, that the Federal system is a very significant element in the constitutional structure, so we don't think it's a matter of etiquette.

We think that it is important for the states to be able to determine when to undertake activities, where to place their resources--

Justice Kennedy: Is that so that the states can be held accountable to their own political constituencies for the results they reach?

Mr. Schiff: --Absolutely.

Justice Kennedy: Do you think that the state would be any less clear in the responsibility it had to its constituencies if the Federal Government had enacted the statute such as Justice O'Connor proposed earlier, that no nuclear, no nuclear waste could be shipped out of a state unless all of these conditions are met?

It seems to me what the state has done here, or what the Federal Government has done here at least makes it clear who bears the responsibility for this scheme of regulation.

Mr. Schiff: We think that, for one thing it is the question of... waste can be stored as opposed to disposed of on a short-term basis, short-term basis meaning quite a few years.

That's certainly what is being done with respect to high-level radioactive waste.

So it's not as if, this isn't a question of whether we have to ship it out of state or not.

It's a question of whether we have to do this according to the drum beat of the Federal Government where they don't choose to do it.

Actually we're subject to Federal regulation, we're being given a time table which we're not convinced is meaningful or desirable for the people of the State of New York.

So in that context we think the Federal Government should be doing the regulation rather than imposing its will directly on us.

And it's not a matter of shipping it out.

It's a matter of how we control our own destiny.

I do want to say that, perhaps in conjunction with your question, that it is argued by our opponents that this is really, was an agreement among the states, and that somehow that is the way the Federal system is supposed to operate.

Now we just don't understand that here.

The Constitution does provide for agreements though compacts, which again involves the formal action of various state legislatures and the executive, but you don't do agreements by having lobbying activities, even from the Governors' Association or other similar groups and say that represents a state agreement.

Justice Kennedy: I suppose my problem is that it does seem to me that if the Federal Government just sat down for a bit with a pencil and paper it could devise some sort of constitutional scheme to accomplish precisely this result.

So I wonder what the underlying value served, that is being served by our accepting your argument.

Mr. Schiff: Well, Justice Kennedy, we think the Government could also probably find an appropriate means of doing it.

The problem is that they didn't do it, and we think that this opens up a Pandora's box.

Justice O'Connor: Well, Mr. Schiff, I suppose there's a difference between offering incentives to the states to make their own choices and simply mandating that those choices be made.

Isn't that right?

Mr. Schiff: That's precisely our position.

Justice O'Connor: Now, I suppose that finding a location for radioactive waste is a little like trying to find a location for a prison.

We all think we need to have these locations, but no one wants it in their state, their community, their county, their city.

Isn't that right?

Mr. Schiff: Well, as a matter of fact, Your Honor, no, it's not totally correct.

I mean, it may be like--

Justice O'Connor: By and large--

Mr. Schiff: --It may be like finding a prison, except that I know our experience in New York is that there are some areas that want prisons because of the income that it--

Justice O'Connor: --Well, those are pretty few and far between, and I suppose it's not very attractive to Congress to have to make that choice, and this is a rather clever way of shifting responsibility for making the choice to the states, which is politically very unattractive, I would think.

Mr. Schiff: --Well, we agree with that position, and what's happened here is that the Congress has made the directive and all the burdens, all the accountability is shifted to the state which doesn't have the right to decide whether to do it or not.

Chief Justice Rehnquist: Certainly it's the State of New York deciding in this case and not Allegany and Cortland Counties deciding, I guess.

They might have different views.

Mr. Schiff: Well, I think the basic decision is that of the state.

That's correct.

I mean--

Chief Justice Rehnquist: There's no Tenth Amendment that protects the counties from the state.

Mr. Schiff: --Not in this case, no.

I mean, it's, the National League of Cities, you point out the Tenth Amendment did apply to counties in some respects, but I think in this case it would be the state that is being protected, and that's all that any of the petitioners have argued.

Justice White: Would it have made any difference to you if the Congress had said and by the way, we'll pay half the cost, that this law, that will be foisted onto the State of New York?

Mr. Schiff: Well, if it's only, if it's foisted on, Justice White, it wouldn't make any difference.

But if they give us a choice of we will pay half of this and you have an option as to whether you do it, which in the scheme that--

Justice White: No, they're ordering you to do it and they're saying... what if they say we'll pay the entire cost?

Mr. Schiff: --I think our position is that as long as they mandate it without giving the legislature--

Justice White: So you don't think this is just, this is just a budget problem for New York?

Mr. Schiff: --No, I don't think so.

Absolutely not.

And by the way, I should say that the Government somehow thinks in its brief that the Spending Clause is involved here because of the payments that go from the, some money is going from the generators and some of it goes in an escrow fund.

But the statute makes it clear that's not Federal money.

It's not appropriated, it's simply kept there.

So I simply don't understand the argument that the Government has made that that is, the Spending Clause is involved here.

Justice Scalia: Mr. Schiff, is the State obliged to regulate under this law?

Can the State comply with this law without using any of its governmental powers?

Mr. Schiff: No.

It doesn't have to do anything necessarily in the first part of this, although the language is mandatory, but I think it could do without that.

But when you get the take title provision it has no choice but this waste is given to it.

Now what's extraordinary about this legislation is that the Federal Government, as to a good part of its radioactive waste, now stuff from the naval reactors and that low-level radioactive waste is not the state's responsibility, but the Federal Government has actually made the state responsible for the Federal waste.

It's a truly extraordinary law.

Justice White: But you don't challenge it on any ground other than the Tenth Amendment, do you?

Mr. Schiff: Well, the Tenth Amendment, the Guaranty Clause.

I mean basically we're challenging... no, that's the basis on which we're challenging, the Federal system.

I mean, we're not trying to dissect the various elements of what makes up the argument that the Federal system is vital to the constitutional structure.

Justice White: Do you think Congress can pass a law that's generally applicable around the country that says if you're going to operate a waste disposal facility you have to do it in the way we prescribe?

Mr. Schiff: I think it can do that.

Of course, yeah.

I mean, it has... and it's doing that.

I mean basically it, the NRC controls the standards by which you regulate radioactive materials.

Justice Stevens: May I just ask a small question about your argument directed at the take title provision?

Is it at the specific shall take title to the waste, and it also says shall be obligated to take possession of the waste and shall be liable for damages directly or indirectly caused?

Is it just the title part or do you make the same attack on all three obligations?

Mr. Schiff: Well, it's really all three in combination.

Justice Stevens: So it wouldn't really matter to you if you didn't have to take title?

Mr. Schiff: I think the worst part of it is really being responsible, being liable for anything that may happen if we don't take it.

This is a... our obligation in this can run for 5 centuries.

I mean, we think that that is a responsibility that should remain with the generator of the radioactive waste.

Now, to the extent that the state has generated some of this waste we are not saying that we're not, we wouldn't be liable, but we're saying it shouldn't be foisted on us, the rest of the liability.

Justice Stevens: But isn't there a way you can avoid that liability?

Mr. Schiff: I have no idea how we... well, yes, that's why we're here in Court.

[Laughter]

Justice Stevens: There's no way you can get a, set up a program that would avoid your taking--

Mr. Schiff: Well, I suppose, sure, but, I mean, but that's again telling us we have to do something, then we would have to do the regulatory scheme that Justice Scalia was asking about.

So it's one way or the other.

We have been conscripted, commandeered to do the Federal Government's regulation here.

Justice Scalia: --Taking title you say is the sanction for not regulating as the Government has told you to regulate?

Mr. Schiff: That's right, but it's a form of regulating because once we have it eventually we would have to do something with it.

And as Justice White points out, that the Government can require people who are the owners of it to deal with it, so that that puts us in that category and we can't avoid it.

We are stuck.

Justice O'Connor: Well, Mr. Schiff, it's a pretty clever scheme.

Maybe Congress can just require the states to take over a pro rata share of the national debt they have run up.

Mr. Schiff: Well, that was a question that we had thought about.

If this starts I think it leads us down that path.

It can require the state to have beds for all people of a particular illness by some date, and if they don't have it provide a suit to let people who haven't been given a bed, we'll say cancer patients, to sue the state for that.

I mean, it's a radical change of the Federal structure, and we certainly hope that the Court will agree with us.

If there are no further questions at this time I would like to reserve the remainder of my argument for rebuttal.

Argument of Lawrence G. Wallace

Chief Justice Rehnquist: Very well, Mr. Schiff.

Mr. Wallace.

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

This is the second case this term, Arkansas against Oklahoma being the first, concerning Federal legislation addressed to problems arising from the transmission of pollutants across state lines.

In itself the waste disposal problem Congress faced pitted states against states in a manner only Congress could resolve.

The three states that had sites could not discriminate against wastes originating out-of-state, the other states lacked incentive to develop additional facilities, and the three sited states were in the unfortunate position of either having to accept waste from throughout the country or shutting down their disposal facilities and depriving the generators within their states of disposal facilities.

There was also a broader national concern implicated, and that is that the problem of waste disposal must be solved if the people of this Nation are to continue to enjoy the important benefits of the technologies that generate those wastes.

There are millions of residential, commercial, industrial, and institutional customers who get their energy needs from nuclear power plants licensed under Federal statute.

There are--

Justice Scalia: Mr. Wallace, that dilemma that the three states that had waste disposal facilities, that they confronted of either shutting them down so that even they couldn't use them for their own in-state waste or else having to accept waste from everywhere, Congress could have solved that problem under the Commerce Clause, I presume, couldn't it?

Couldn't it have allowed those states, it could have passed a statute allowing those states to use their in-state disposal sites only for their own nuclear waste?

Mr. Wallace: --We believe Congress did solve the problem under the Commerce Clause.

It could have taken that route, but the studies done by the National Governors' Association and others who were expert in the field indicated that 50 separate disposal sites, one in each of the states, would have been very detrimental.

It would have lost economies of scale that were important to the maintenance of these technologies.

Justice Kennedy: That had 47 votes going in, I'm sure.

[Laughter]

Isn't it true, Mr. Wallace, or is it, that this statute is a step further than the Congress has ever gone in that it is telling a state that it must enact a certain rule?

Mr. Wallace: Well, it is giving the state a choice of options because the states came to Congress and proposed that Congress solve this problem by retaining authority in the states to provide for the handling of the low-level nuclear waste.

Justice Kennedy: No, but it says the state shall take title.

Mr. Wallace: That is only if the state doesn't exercise any of the other options available to it, some of which involve minimal state undertaking, such as contracting with an existing disposal site in one of the compacts, or authorizing a private contractor to develop a site within the state.

Justice Kennedy: But can we begin by saying that there is no direct precedent for an enactment of this kind?

Mr. Wallace: I think that is true.

This is a novel approach to a problem where Congress, pursuant to a unanimous request from a state organization representing the governors of all 50 states, was dividing up the responsibility for handling nuclear waste disposal, where Congress, the Federal agencies would undertake the high-level waste responsibilities and most of the responsibility for low-level waste generated by Federal generators, and the states would retain the policy-making authority with respect to the locally sensitive issue of selecting sites for disposal of the low-level nuclear waste.

Justice Kennedy: Could the Federal Government command that the states take title to all illegal handguns within their borders and be responsible for the damages caused by failing to take title and possession?

Mr. Wallace: I can't answer that question definitively.

It certainly would go much further than what has happened here.

Justice Kennedy: Generically it's the same kind of statute, isn't it?

Mr. Wallace: The take title provision, which we don't believe is even ripe for decision today in the setting of this case, it may never apply to New York, it can't take effect until 1996, is only one option down the road if New York doesn't undertake any of the other options that are available here.

It was added in on the face of things because all of the other disincentives would fall on the generators, and there was some fear that this might impair the availability of the technologies that are so important to the country and that an additional disincentive would be useful to insure that the states would do something on behalf of the generators within their borders.

Justice Scalia: It's rather like saying that 30 years in prison is one of your options for embezzlement.

You can either embezzle or spend 30 years in prison.

The Federal Government has told the states that they can either regulate or the nuclear waste is yours.

I mean, in a sense it's an option, but don't you think it's, a sanction is a more descriptive term?

Mr. Wallace: Perhaps.

We refer to it as a penalty in our brief.

It's part of a series of incentives and disincentives that Congress placed in the '85 act after the 1980 act proved to be too toothless to get the job done.

And Congress was relying primarily upon the political clout that the generators within each state would have as the burdens would fall on them to get the state to undertake the responsibilities, and this was added as a final possibility.

Exactly what kind of sanction or penalty it is is really subject to much doubt, which is another reason why ripeness principles should be followed here.

It is far from clear what, if any, actual enforceable liabilities, enforceable in Federal or state court, would be imposed by this, given the clear statement rule of the Atascadero case and other questions about possible implementation of this provision would arise when and if it ever comes into play.

There is no indication that New York will ever actually be subject to this.

It's even doubtful whether the generators, if it did kick in, would make the request that would impose this on New York because they don't like to call attention to themselves in ways that might create public controversy.

There's much that is speculative and in our view premature about the complaint concerning the take title provision that New York is asking this Court to use as a vehicle for undoing this entire statutory scheme, even though it has had the benefit of the extension of time for disposing of its waste in the sited states and the payments made under this scheme for a period of many years now.

And I might point out that most of the amici who are supporting New York with respect to this issue that is prematurely presented agree with us on the severability question.

And if I may just say a word about severability, the answer to that seems quite clear to us for two reasons.

One is that the 1985 act displaces and in terms repeals the 1980 act which would again be resurrected if the 1985 act were not severable.

And it is quite apparent that Congress wanted to make improvements by adding incentives and disincentives to the 1980 act and would prefer the remainder of the 1985 act to the 1980 act, and in fact the 1985 act passed unanimously in the House initially without the take title provision which was then added in the Senate.

There was never a dissenting vote recorded in any of the enactments of the entire 1985 act.

And like the 1980 act which took basically the same approach, it was signed into law by a president who was himself a former governor.

So the circumstances that gave rise to this enactment make it singularly implausible to think of it as an attempt to aggrandize Federal power at the expense of the states.

Indeed the most basic provision of the act is the conferral of power on the states, acting through the regional compacts, to discriminate against interstate commerce which they would not be allowed to do otherwise.

And other than the take title provision which is not ripe for review in our view, we believe that the provisions of which New York complains are squarely within the principle of South Dakota against Dole.

Justice O'Connor: Mr. Wallace, if we disagree with you on whether the take title provision is valid and if we disagree with you and think it is indeed ripe for decision, do you think it's severable from the balance of the act?

Mr. Wallace: We do indeed, for the reasons I stated a few moments ago, that otherwise the 1980 act, which Congress and the National Governors' Association all had found unsatisfactory, would be resurrected to replace the improvements that were enacted in the '85 act.

And the House itself had unanimously passed the '85 act without the take title provision.

So there seems little doubt about what the proper resolution of that is if... Congress of course could amend either, but there's no reason to think it would prefer to start with the '80 act rather than the remainder of the '85 act.

But we think that the constitutional power of Congress was adequate to the task in the manner Congress went about this, that the commerce power, as augmented by the necessary and proper clause, allowed Congress here to enact this measured series of incentives and disincentives to redress the inequities that had occurred among the states and to provide assurance not only that those inequities would not reoccur as they had after the 1980 enactment, but that the serious threat that they posed to important national concerns would not be threatened again because of failure to provide sufficient incentives in honoring the states' request that they be allowed to exercise the regulatory authority here.

We think it would be singularly inappropriate to adopt in judicial hindsight some kind of a least restrictive alternative approach to adjudging Federal legislation of this kind.

I mean, what may seem a reasonable way of adding something to the deal, such as otherwise you'll lose your highway money so you should go along with these provisions at that possible expense, may well have been a deal breaker.

Enormous effort went into negotiating and enacting this legislation.

Justice Kennedy: By deal breaker you mean the enactment would not have succeeded if they had not used this particular device?

Mr. Wallace: Well, what--

Justice Kennedy: Because if that's the import of your question, then this case does have great significance, doesn't it?

Mr. Wallace: --Well, what I am suggesting is that what was acceptable to the parties who over a period of years negotiated a compromise between the sited and the unsited states and what... is not always apparent in hindsight to someone who didn't participate in those negotiations.

All the states are treated equally under this legislation, and all had a vigorous voice in the Congress.

This is very unlike cases dealing with insular minorities or cases dealing with state discrimination against out-of-state commercial ventures.

Justice Kennedy: It's like the poor.

They all have an equal right to be disappointed.

Mr. Wallace: Well, it's very different from the state discrimination against interstate commerce cases, where somebody who is not a vigorous participant in the state's political processes is affected by what the state has done in a way that discriminates against interstate commerce.

It's in settings of that kind that the Court has said that the judiciary in hindsight is to see whether a less restrictive approach would have been equally effective.

Justice Scalia: I think what you're saying, Mr. Wallace, is that we really don't know whether this deal would have been put together without this provision, and therefore if we find it invalid I guess the only fair thing to do is to find the whole statute invalid.

That seems to contradict an early point you made, though.

Mr. Wallace: I'm not saying that it's not, I'm not saying that it's not severable.

This--

Justice Scalia: I don't think you can make both arguments then, though.

I mean, either, you know, either it wasn't an essential part of the whole deal and therefore is not severable, or it was, in which case the argument you're now making is valid.

Mr. Wallace: --The argument I'm making is that this additional disincentive was within the legislative power of Congress to enact because it made a judgment about what would be an appropriate grouping of incentives and disincentives.

And what might not be necessary and proper in some other settings, given the magnitude of the legitimate Federal concerns at stake here and the unanimous requests of the states that the decision-making authority be reposed in the states, this was a necessary and proper exercise of the commerce power to see to it that this state against state dispute was equitably resolved and would no longer threaten the availability of the important medical research and energy technologies that are vital to the people of this Nation.

That is our submission, if there are no further questions.

Argument of William B. Collins

Chief Justice Rehnquist: Thank you, Mr. Wallace.

Mr. Collins, we'll hear from you.

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

I'd like to begin by framing this case from the point of view of the three sovereign states I represent and then, because there were several questions about the implications of overruling Garcia, I'd like to address the point that even if this Court, that this case does not hinge on a broad interpretation of Garcia.

Like New York, the sovereign States of Washington, South Carolina, and Nevada have a strong interest in state sovereignty and in the Tenth Amendment, but this case is unlike any of the other Tenth Amendment cases that have come before this Court.

One of the obvious differences is this does not pit Federal power against state power.

Indeed South Carolina, Nevada, and Washington intervened in this case to support this action.

And when you have looked at the amicus briefs you have seen that--

Chief Justice Rehnquist: Isn't what you mean, Mr. Collins, that as a matter of arguments before this Court the states are not all on one side, not that the statute doesn't pit Federal power against state power?

Mr. Collins: --Well, indeed, Your Honor.

But my point is that I think if you look at National League of Cities, Garcia, Hodel, you would not find states here advocating that the statute was valid.

That difference in opinion doesn't mean that it's valid, but it's an indication that this is a different kind of case.

Justice Scalia: That's just, that was just a regrettable consequence of human selfishness.

All states were losers in Garcia.

They all had to pay the higher salaries.

Here some states are losers and some states are winners.

It's not at all surprising that the winners are going to come in and say leave everything alone.

Mr. Collins: That's exactly right, Justice Scalia, and that's why this is a different kind of case.

New York--

Justice Kennedy: I think it is somewhat surprising that the State of Washington and South Carolina and Nevada are arguing that the Federal Government has the right to direct them to enact a law and direct them to take a governmental action without conditioning it the way it's often, the way it's usually done.

Mr. Collins: --Well, first, Justice--

Justice Kennedy: I think that's very surprising.

Mr. Collins: --Well, I don't think it's surprising at all.

This case involves an inherent classic kind of interstate conflict between the states.

Some states, like New York, generate a lot of nuclear, low-level nuclear waste.

They don't want to store it in New York.

Other states, like Washington, South Carolina, and Nevada, have tried to deal with that problem.

We have sites in our states to take care of this waste.

But as a result of the dormant Commerce Clause and this Court's decision in Philadelphia v. New Jersey we have no option but to take waste from all the other states that choose to send it to us, or, or close down the site.

Now this conflict is exactly the thing that separates this case from the other kinds of cases where, as Justice Scalia said, all the states are losers.

In this case states that try to be responsible in dealing with their waste are losers and the other states can take advantage of them.

Justice O'Connor: Well, Mr. Collins, I just don't see any way to draw the line that you would have us draw on behalf of those three states.

I can't believe that the State of Washington or South Carolina or Nevada would be in here arguing that Congress would have the right to shift off part of the national debt or shift off all medical costs by congressional feat to the states, or any other of the potential schemes that this would open up.

I can't believe you'd be here making that argument.

Would you?

Mr. Collins: No.

Indeed we would not.

And we're not--

Justice O'Connor: Well then how do you justify it here, because it's a principle we have to deal with, not some individual scheme?

Mr. Collins: --That's right.

And I think that this law meets the kind of principles that, the narrow kinds of exceptions where the Federal Government can make a statement to the states and involve them in a Federal-state cooperative program.

And the point I want to emphasize is that even, this case does not hinge on a broad reading of your decision in Garcia.

I think that even if we analyze this in light of the dissenting opinions in Garcia that this particular enactment would be valid.

And let me do that.

There are basically two dissenting opinions in Garcia.

One was authored by Justice Powell, and Justice Powell focused on the fourth National League of Cities test to look to see whether the Federal interest is demonstrably greater and state compliance is essential.

Now I submit in this case the Federal interest is demonstrably great, simply because nuclear, the nuclear waste area is something that the Federal Government has been involved in, and it's a problem that must be solved.

Justice Kennedy's handgun example, people certainly differ about whether handguns are a problem or whether they should be regulated.

But no one here is saying that we don't need to safely dispose of nuclear waste.

Justice O'Connor: Well, and I suppose everyone would agree that we need to solve the problem of medical care of the indigent and we need to solve crime and we need to solve prison space, and so forth and so on.

Mr. Collins: But it's a unique concern of the Federal Government, Justice O'Connor.

The second point that I would say why there is a Federal interest is that this case involves a central concern of the Commerce Clause, and that was something that Justice Powell focused on.

This is not a case where the Federal Government through the Commerce Clause power has the ability to have a wide reach and deal with other kinds of things.

This goes to the heart of the Commerce Clause because of the dispute between the states.

When one state acts to have a site, then other states are relieved of the responsibility, and that inherent conflict, I think, means that the, it is a central concern that the Federal Government in those limited states can make a kind of command to the states.

Also I think state compliance is essential simply because you have to do something with this waste.

It needs to be dealt with.

Justice Scalia: Isn't there a fundamental difference between this case and Garcia in that when this statute says each state shall be responsible for providing for the disposal of waste, it doesn't limit it to waste generated by the state itself.

It means all waste in the state, and therefore this statute cannot be complied with by the state without the state using its sovereign powers.

The Federal Government is directing the state how to exercise its sovereign powers.

Mr. Collins: It's directing the state to take responsibility, Justice Scalia.

Justice Scalia: Well, you can put it that way if you like, but it can't take responsibility for somebody else's waste without exercising its sovereign powers.

And that was not Garcia.

Mr. Collins: That's what I'm saying.

I'm not claiming that this... I'm talking about... I agree.

Justice Scalia: I'm saying it's worse than Garcia in that respect, not better.

Mr. Collins: The states are not, are given maximum amount of flexibility to decide how to do this.

There are nine compacts that have been formed.

The states have a wide option.

The last point I'd like to make before I take my seat is just to concur with counsel for the Government that if the Court finds the so-called take title provision invalid, that it is clearly severable from the remainder of the act.

There is no severability clause, but there is a presumption in favor of severability.

It passed the House unanimously, and in fact the act would operate just fine without the so-called take title provision because this act gives part of the power of, the Federal power to the states so that the states actually have the ability when acting within a compact to exclude waste that is generated from outside the compact region.

And that is why we would say that this does not, is not detrimental to the state power.

In fact states have a lot of autonomy.

They have choices about how to deal with it, albeit with the take title provision they must be responsible.

They have a wide range of options of how to deal with the waste.

They can enter into compacts, they can contract with compacts.

One compact can contract with another compact.

The only thing that they are prohibited from doing under the take title provision is simply ignoring the problem.

So we would request that this Court affirm the judgment below or, if the Court finds that the take title provision is invalid, the Court should sever that provision and sustain the remainder of the law which we think is an excellent example of the partnership between the Federal Government and the state government.

Rebuttal of Peter H. Schiff

Chief Justice Rehnquist: Thank you, Mr. Collins.

Mr. Schiff, you have 3 minutes remaining.

Mr. Schiff: I have nothing further absent questions from the Court, Your Honor.

Chief Justice Rehnquist: Very well.

The case is submitted.