Reno v. Condon - Oral Argument

Argument of Seth P. Waxman

Chief Justice Rehnquist: We'll hear argument now in Number 98-1464, Janet Reno v. Charlie Condon, Attorney General of South Carolina.

General Waxman.

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

We live in an age in which data bases of personal information are widely used in the national economy.

They are bought and sold, and they're critical to national marketing, yet their dissemination threatens personal privacy and sometimes safety.

The Driver's Privacy Protection Act is one of a series of laws in which Congress has balanced the benefits to commerce of disseminating personal information against the costs of that dissemination to personal security.

Beginning with the Privacy Act and the Fair Credit Reporting Act in the early 1970's, up until the Financial Services Act that was enacted just last week, Congress has acted on a sector by sector basis as new uses of personal data and new threats emerge.

In this case, Congress heard testimony that, while motor vehicle data bases are of particular value in commerce, their dissemination poses unique risks to personal safety and privacy.

Once disseminated, motor vehicle data bases are things in commerce, just as surely as are data bases that belong to financial institutions, cable operators, health care providers, and Congress may therefore regulate a State's discharge of data into the national economy just as it restricts a State discharge of pollutants or other State activities that have a substantial effect on interstate commerce, like operating airports, or issuing municipal bonds.

Chief Justice Rehnquist: As I understand it, General Waxman, the Government says it's the Commerce Clause authority here, not anything to do with the Fourteenth Amendment.

Mr. Waxman: That is correct.

We have not sought this Court's review on the Fourteenth Amendment question.

Justice O'Connor: And what are the other examples of Congress' choice to regulate States alone, exclusively under the Commerce Clause power, rather than general legislation?

Mr. Waxman: I think Justice O'Connor, that there are few examples of Congress' attempt to regulate States alone directly, as actors as opposed to the traditional preemption doctrine, because ordinarily what States do in interstate commerce is similar to what other people do, and in this case I think it's very important to recognize that this act, the Driver's Privacy Protection Act, is one of a series of laws that stretches from the 1970's until last week, in which of necessity Congress has been dealing with this kind of evolving information age on a sector-by-sector basis.

Justice O'Connor: Well, that could be the case, but I still have my question, if there are other examples...

Mr. Waxman: Well...

Justice O'Connor: of Congress' choice under the Commerce Clause power to regulate exclusively the States.

Mr. Waxman: Well, I think the best example that I've come up with, and it's in our brief, is, for example, the regulation of the operation of commercial airports.

All commercial airports are... I believe they are all operated by State or municipal entities, and yet Congress has the authority and has given the FAA the authority to say...

Justice Stevens: Are you sure of that, as factual predicate for that statement?

I think there are a lot of private airports that are operated by private parties.

Mr. Waxman: No, I think commercial air... this was actually a subject of debate in the oral argument in Travis, in the Seventh Circuit, and I believe we went back and checked.

There are lots of private airports, but commercial airports that take commercial airliners are something that are specially regulated by Congress and the FAA.

They're operated only by State and municipal entities, and Congress can say, you can't have a runway shorter than 7,000 feet.

Similar...

Justice Kennedy: But Justice O'Connor's question points up a reaction I had in reading your brief.

I thought, well, I'm going to find some cases that will show that the Federal Government can do this occasionally.

I can't find them.

And on page 35 you say, Congress may directly regulate stated activity affecting Congress, no cite, and I think the reason is, for 150 years or so the assumption has been that Congress cannot regulate States.

It regulates persons.

Mr. Waxman: I...

Justice Kennedy: Under its preemption power, sometimes.

Mr. Waxman: Well, I think with respect... preemption, of course, we're not arguing that this is a preemption case.

In our view, this is a case that is stronger for the Government than preemption, but the principle that when States act in interstate commerce, when they attempt to regulate an instrumentality or a thing in commerce, or they engage in an activity that substantially affects interstate commerce, Congress has the authority to direct or limit their activities just as it does with respect to anyone else.

If one or more States in this... with the example of this statute decided to contract out their motor vehicle data base function to EDS or some other information services company, it can't make a constitutional difference if one commercial airport decide... you know, becomes privately operated, and in this case, the act...

Justice Scalia: Mr. Waxman, this case differs, it seems to me from the airport cases you're talking about and from the pollution emission example you alluded to earlier, in that the collection and retention of data regarding automobile licensing is distinctively a governmental function.

You're talking about distinctively governmental records.

It's not something that... you know, any commercial actor can pollute.

Any person could, although it may not be that they have, run an airport, but only States collect information, which is why the legislation in question applies only to States, because it's...

Mr. Waxman: Well...

Justice Scalia: It's a purely governmental... now, maybe this is a Garcia-type concern I'm raising, but I think that is really what is...

Mr. Waxman: I...

Justice Scalia: troubling me about the case.

Mr. Waxman: I think it is, but let me address your concern, Justice Scalia, as best I can.

First of all, the act applies not only to States, but also to contractors and people who receive the information from the State.

It acts on the data base.

And the critical point I want to make in response to your question is, the... although I think Congress could take over licensing and motor vehicle permit issuances, Congress has not attempted to interfere in any way with the State's ability to issue licenses, issue motor vehicle registrations, to regulate how those laws are administered or enforced.

It... this act takes effect only when data is released into the national economy.

Justice Scalia: But we answered that argument in the Printz case.

Justice Kennedy: In the Printz case, you made the same argument.

Justice Stevens: You said, really, this is good to the States.

Justice Kennedy: This is allowing the States to regulate.

It's much better than if the Federal Government just took over driver's licensing, or took over weapons regulations.

But in Printz we said, the point is, we want to make clear who is regulating, is it the Federal Government, or is it the States, and this blurs the line, and this you may not do.

Mr. Waxman: With all respect, Justice Kennedy, I don't... I think this is Baker and Fry and not Printz, because the Federal legislation is not using State employees or State governments to regulate third parties, or to act on its behalf.

In Printz, as this Court explained, as in New York... and I think this is very... it's certainly important to our case.

What this Court said is, you cannot... the Congress can't use its sovereignty to govern private conduct through another sovereign.

It can't require States to legislate a solution to a problem that Congress has...

Chief Justice Rehnquist: But here... here, the act certainly does in effect impose duties on people in the Motor Vehicle Division, where you get a request for information.

I mean, it's not a categorical prohibition.

The people in the Motor Vehicle Division have to be very familiar with this Federal statute to know whether to issue the thing or whether to deny it.

Mr. Waxman: Well, Chief Justice Rehnquist, that is certainly true.

It is just as true as it was in Fry with respect to wage controls, in Baker with respect to the issuance of bonds, in Garcia with respect to wage rates and employment laws, and in... with respect to the pollution laws.

There are a lot of things that Congress requires the States to do or prohibits them from doing with respect to interstate commerce that requires that they do things.

In Baker, this Court said that a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with Federal standards regulating that activity is a commonplace that presents no constitutional defect.

Justice Scalia: General Waxman, your... the connection with commerce that you rely on here is, as you stated at the outset, simply the fact that information, these lists, once they are released, are an article of commerce, and I suppose that would apply to any information possessed by a State, so the Government could also... the Federal Government could also regulate the State's use of its tax information and any other State records, I assume.

Mr. Waxman: Well, Justice Scalia, I think first of all there would have to be a showing with respect to the particular type of information that was being regulated, that it did... that its dissemination did, in fact, have what this Court has reiterated to be a substantial effect in interstate commerce, a point that's not contested here.

And I think... and I would concede to you that we would have a different case if the Federal Government were trying to do something that the principle articulated in Coyle, and recognized in Garcia and Baker, were to apply.

If the Federal Government prohibited the State from issuing to the public information about how it operates, if it interfered with the State's ability to structure its fundamental mechanisms of self-government, but this...

Justice Scalia: Well, suppose the Federal Government has a change of heart, and it... which it does.

I mean, 10, 20 years from now, they say the problem is not excessive dissemination of information, the problem is, not enough dissemination of information, and we think all the States should have a Freedom of Information Act, just like the Federal Government.

Mr. Waxman: Well, again...

Justice Scalia: Could it pass such a law, that any information in the States' records have to be released?

Mr. Waxman: I don't... I think that would be very... I mean, if it were truly anything, it would be very problematic, and it might not be defensible under Coyle.

Justice Breyer: Wouldn't a closer case...

Mr. Waxman: It would also require, I think, either express findings, or it to be obvious to this Court's, quote, naked eye that that law had, or the release of that information had a substantial effect on interstate commerce, but here, it's conceded, there's no question that it does, and not only are these data bases...

Justice Scalia: That's the only obstacle, effect on commerce.

If there is a...

Mr. Waxman: No.

Justice Scalia: substantial effect on commerce, to the extent there is, the Federal Government could require all of the States to make available whatever is in their files to the public?

Mr. Waxman: Justice Scalia, as we understand this Court's jurisprudence, the Tenth Amendment has three, if you will, independent heads of authority.

The first is the principle expressed in Coyle and reiterated in Garcia and Baker that I just talked about.

There is an area of the State's ability to structure its mechanisms of self-government that the Federal Government simply is powerless to affect.

That's number 1.

You can't tell them they can't move their State capital, or they can't have a police force, or they have to have a commission that has 11 and not 12 people on it, or maybe even that they have to reveal information that it is essential to the State's function not to reveal.

That's head number 1.

Head number 2 is the principle that the Court articulated in... well, in Garcia, in which the protection of the States is largely left to the national legislative process, but there may be procedural defects in which one or a few States are subject to an undue burden or discrimination by reason of some defect in the legislative process.

And the third, of course, is reflected in the anticommandeering principle that this Court has articulated in the legislative context in New York, and in the executive context in Printz, and if any one of those...

Chief Justice Rehnquist: There was no doubt there that commerce was affected, I take it, so that it was not a question of Congress' commerce power, but a question of other limitations on that power.

Mr. Waxman: That's right, Chief Justice, and I think with respect to those three heads of authority they all... they wouldn't even come into play unless the Court were to find, or Congress were to find that it were acting under one of its enumerated powers.

I mean, if it's not acting under an enumerated power, the Tenth Circuit prohibits it by its very terms, because that power is reserved.

These three independent constraints that the Court has articulated over the years apply even if there is a finding that the Congress is exercising a legitimate authority in interstate commerce.

In this case, for example, Mr. Chief Justice, if this data base were being in fact a data base from a financial institution, or a health care provider, or a video store, all of which Congress has separately regulated, there would be no question that Congress would have authority to regulate or limit the dissemination so long as there was some substantial effect on interstate commerce.

So we get to the Tenth Amendment question in this case, because Congress is concededly operating to regulate something, an article in interstate commerce, and the question is whether this law, unlike the law in Printz or in Coyle, violates some independent prohibition of the Tenth Amendment, and Justice Kennedy...

Justice Kennedy: Well, isn't it one of the fundamental mechanisms of State government that State employees and State officers are accountable to their voters, to their citizens for what they do, and this completely blurs that line?

Mr. Waxman: Well, I think I would...

Justice Kennedy: In fact, suppose you have a State which is so insensitive that it's selling this information right and left, by the Federal statute you make it unnecessary to the State voters to control that conduct.

Mr. Waxman: Well, Justice Kennedy...

Justice Kennedy: It seems to me... and just to finish the thought... here the class affected, i.e., the people that have driver's licenses, is congruent almost precisely with those who vote and control their State officials.

Federal intervention is (a) unneeded and (b) intrusive on this governmental mechanism.

Mr. Waxman: Well, I'd like to make two points.

Actually, I originally had three, but I've now forgotten the third.

[Laughter]

I'd like to make two points with respect to this.

First of all, the information that is being restricted here is not information about how the Government works, or how the Government structures its operations, the type of information that this Court was concerned with in Reporter's Committee, and that would pose a different problem.

But the second point I want to make is that the same point... that is, well, you know, if the people of South Carolina want more protection for their privacy, they can vote, you know, they can elect, I don't know, a different Attorney... they'd never find a better Attorney General...

[Laughter]

but they could elect a different Attorney General, or they can move.

They could move to North Carolina, or some State that has a protection that's even stronger than the national legislature.

But the same could be said with respect to the child labor laws, the surface mining laws that were at issue in Hodel... the people of South Carolina are, of course, also citizens of the United States, and they have the right to call upon either Government for the protection of their liberties.

That, after all, was the point I think that you made about the double protection of liberty in the compound republic.

And what's particularly significant here is that Congress was asked, in testimony by the Association of State Motor Vehicle Operators, expressly to enact a law that, quote, must apply uniformly on a national basis because of the ubiquity of this information and the ease of accessing this information on computer modems from anywhere in the world.

The stalker who killed Rebecca Schaefer could just as easily have come from Nevada or Utah as from California, where she lived, and that's... I'm not suggesting that when the States ask for something, that makes it constitutional.

In New York, this Court made it clear that if all 50 States agree with the Federal Government that it can do something that violates an independent prohibition of the Constitution, it still adds up to nothing.

But with respect to legislation that Congress is empowered to enact, the fact that Congress was responding to the State motor vehicle administrators who were asking for a national uniform law, it seems to me does have some significance with respect to the exercise of Congress' authority.

Justice Scalia: I'm not sure that the... what the State administrators desire is not always what the State government desires, or what the State voters, much less what the State voters desire.

I mean, you have to assume that if the States do not have this restrictive policy that is imposed on them by the Federal Government, those States that don't have it don't want it.

Mr. Waxman: Well, I don't know that I would make that assumption at all.

There's now a Federal law in which all... I think every State except for four are fully complying with.

Some States have enacted laws that are even more restrictive of the transfer of information, and this act doesn't in any way preempt the operation of those laws, except with respect to the information that independent Federal statutes Congress has required the States to report, which is, of course, an issue that this Court reserved in Printz.

Justice O'Connor: This discussion is a... has a little bit of an academic quality in light of recent congressional action, I take it, which now is out there telling the States that if they don't have these privacy protections they will lose Federal transportation funding.

Mr. Waxman: Well, actually, one of the... Justice O'Connor, we did the best we could in our supplemental brief to explain the operation of this provision of the Department of Transportation Appropriations Act.

One of the unusual things about it is that it includes a provision that if States don't comply they will not lose any funding, although it does also purport to apply Congress' Spending Clause authority to the Driver's Privacy Protection Act.

Justice Ginsburg: What is the sanction, then, in the appropriations...

Mr. Waxman: Well, there is... I mean, there is no... the appropriations law, which of course is 1-year legislation in any event, doesn't include a sanction, but it incorporates all of the provisions of the Driver's Privacy Protection Act, which itself has sanctions.

And presumably also we think, if a State took the money... and the law does not even apply to the State of South Carolina until after this Court issues, quote, a final decision in Reno v. Condon... we think that the Federal Government could, if, contrary to an assumption that we have to make, which is that the States would comply, it didn't, we could presumably seek injunctive or declaratory relief.

But we did indicate to the Court in our supplemental brief that this intervening legislation does lend somewhat of an academic tone to this discussion, but it doesn't moot the case, and it doesn't really change any of the substantive issues in the case, because the law doesn't apply to South Carolina, presumably because the Court was attempting to respect, or the Congress was attempting to respect this Court's decisional processes.

But more to the point, when this legislation sunsets, there still will be a substantive law enacted under Congress' Commerce Clause authority, so... well, it... yes, it does have a somewhat academic...

Justice Stevens: What also raises a question in my mind is, if there is this unwritten constitutional principle, the Federal Government may never pass a law that imposes burdens on States that don't also impose burdens on private parties.

Why wouldn't that principle, if it is a valid principle, apply to spending legislation as well?

Mr. Waxman: Well, if the... if... it may very well apply.

Justice Stevens: Surely you couldn't... surely the Congress couldn't give the States money on condition that they close up all their newspapers, for example, or something like that.

If there's an overriding Federal constitutional principle, it seems to me it must limit the spending authority as well as the Commerce Clause.

Mr. Waxman: I have been unable to discern anything in the constitutional structure that would require a result as bizarre as saying to Congress, if you want to regulate the dissemination in interstate commerce of the motor vehicle data base, you have to do so in the same law and in the same way as all of the other data bases that are in interstate commerce that you've heard have different promise and pose different problems.

After all, Article I, it authorizes Congress within its enumerated powers to enact laws that are necessary and proper, which must include in it the prerogative that all legislatures have to tailor their laws to the problems at hand.

And the Tenth... for purposes of the Tenth Amendment, if a particular State activity affecting commerce is within reach of the national legislature, if it also applies to some private parties, then it seems to me that the power to address that activity by the State necessarily does lie within the powers, quote, delegated to the United States within the meaning of the Tenth Amendment.

Congress' power doesn't depend on whether the act also applies to private parties.

Justice Ginsburg: General Waxman, may I just clarify one point?

With respect to the liberty interest that's supposed to be protected by the dual sovereignty, as I understand the Federal legislation, it gives the choice to the driver, so the driver who wants his name available to solicitors or anyone can just say, yeah, okay, give my name.

Mr. Waxman: Well, it's even more solicitous of the State motor vehicle operators, because it allows them to disseminate it for any purpose, provided that they have in place a system... and this is reflected in section (b)(11) of 2721, provided that they have a system that permits people to, quote, opt out of the legislation, so it is certainly true that the State, any State that puts in place a system that allows people to just check off if they want to opt out can otherwise sell this data base as they have before.

Justice Scalia: General Waxman, you know, you mentioned the three separate heads that could overcome the Federal Government's authority to control activities, Printz and so forth.

Why shouldn't there be a fourth, or maybe it's... maybe it comes... falls under one or the other, and that is, a State's records and what a State does with its records are very much its own business?

I mean, you know, the issue of transparency of Government is a major concern, and each Government should know just... should be able to determine just how transparent its own operations will be.

These are State records, and some States have decided we want transparency.

Mr. Waxman: Justice...

Justice Scalia: Anybody can look to see who's getting licensed and who isn't getting licensed.

Mr. Waxman: Well, Justice Scalia, I... this may be repeating myself, but maybe I didn't make my point clear.

I think that that, in certain contexts that exception, that instance would be covered by the Coyle head.

That is, if you... if the Federal Government were purporting to restrict the State from making available information to tell its citizens about what it's doing, how it's operating, that would be a case that's very different than an act which comes in only at the point at which a State puts into interstate commerce information that private citizens, personal information that private citizens provide to it.

I mean, one of the things I think that was most striking in the testimony before Congress was the testimony about how vulnerable people become when this information is available, because the ability to tie your address and your photograph to a license plate is the equivalent, in terms of personal safety, to being required to walk around all day with a sign that says, my name is Seth Waxman, and I live at this address, and I'm this age, and I have these medical disabilities.

It's a unique aspect of information that says nothing about... tells the Government, the people nothing about how the States are operating.

May I reserve the balance of my time?

Chief Justice Rehnquist: Very well, General Waxman.

Mr. Waxman: Thank you.

Argument of Charles Condon

Chief Justice Rehnquist: General Condon, we'll hear from you.

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

This case is not about protecting privacy.

We are for protecting privacy, and this case is not about preventing the horrible crime of stalking.

We're against stalking.

The issue in this case is whether thousands of State officials across the country can be pressed into Federal service by the Congress to administer a Federal regulatory act.

I think if I could answer Justice Kennedy's question, which I think goes to the heart of this case, the Driver's Privacy Protection Act is complex, it's burdensome, it has all these exceptions, 14 exceptions, and it applies only to the States of the United States, and to follow this Federal mandate, which is unfunded, by the way, State officials must first look at it, interpret it, and then apply it to this...

Justice O'Connor: Well, in one sense, though, the act does regulate use of the information by both the States and private parties into whose hands the information comes.

Mr. Condon: The overall...

Justice O'Connor: It is, to a degree, broader.

Mr. Condon: That's correct.

The overall tenor, though, is to the State officials.

Justice O'Connor: And it is also, in part, about privacy, because your State chooses to sell the information and make it public, and the Federal legislation would say to the State, you can't.

Mr. Condon: Well, if I can answer both of those questions, it is possible this act may be severable, because it does... and we're saying that the Congress should directly regulate individuals.

That's our position, and so we have no problem with the direct regulation of Congress by individual citizens.

But as to your comment or assertion that South Carolina sells this information, under the Driver's Privacy Protection Act, had it been in effect in South Carolina when South Carolina sold 3.5 million photographs... this is my point about how the act is ineffective... that selling was legal under the Driver's Privacy Protection Act, because the same sale occurred in Florida and Colorado, where the act had never been challenged and was in effect.

So the Driver's Privacy Protection Act, number 1, doesn't work.

But that's really besides the point, because...

Justice O'Connor: It sure is.

Justice Stevens: I mean...

Unidentified Justice: [Laughter]

Justice Scalia: you're just saying it ought to be stronger.

Mr. Condon: No.

We're saying the exact opposite.

[Laughter]

Let South Carolina run its own business here.

Justice Ginsburg: General...

Justice Scalia: When you say pressed into service, that made sense to speak that way in Printz, because the State was being forced to act as a government in order to implement a Federal regulatory program.

Your State is no more being pressed into Federal service than any private organization which has records that comes under a similar prohibition from the Federal Government is, quote, pressed into Federal service and, of course, you can't press private individuals into Federal service any more than you can States.

I mean, we do have a Thirteenth Amendment, after all.

Mr. Condon: I would ask you to look at the practical effects of this law.

First of all, a State DMV employee in Darlington, South Carolina who knowingly violates this act faces arrest, a criminal fine, presumably by the FBI.

Justice Scalia: Well, it's onerous, but that doesn't mean that they're being pressed into service.

They're not implementing any Federal program.

They're just saying... what it says is, you can't allow this information to be disseminated, just as it tells some private corporations that they can't do it.

Mr. Condon: If I could use this very concrete analogy.

When citizens want to come into this courtroom this morning, pursuant to directions from this Court, the Marshal's Services says, you can't come in.

Now, the Government's position is that only the Marshal's Service is being regulated.

Our position is that the citizen is being regulated.

The citizen cannot come in here, and so a prohibition is, indeed, a regulation.

Justice Ginsburg: But you said the citizen could be regulated, and really I misunderstood you.

I thought what you said was, the Federal Government can act on the citizens, so it would be permissible for Congress to pass a law that says no person, no private person shall request driver's license information.

If any private person does, they commit a Federal offense.

Mr. Condon: We would not object to that, to such a law.

In fact, that's what the Congress should do.

Chief Justice Rehnquist: Well, your position as I understood it, General Condon, was that various State employees in the Motor Vehicle Division were being pressed into service, because the complicated Federal regulatory scheme required them to administer, in effect, that act, in order to decide whether to release particular information or not.

Mr. Condon: That's precisely the point.

Justice Kennedy: But is the Government right when it says that is still different from Printz, because in Printz the government officials, State officials were being pressed into service to direct, regulate, control the activities of their own citizens, and that isn't the case here.

Do you agree with that distinction?

Mr. Condon: No.

Look at Sheriff Printz of Montana, what he had to do in the Printz case.

The Brady Act simply required Sheriff Printz to run, in effect, a records check, a rap sheet, so Sheriff Printz had to get the name and the social security number from the Brady form, period.

There was no obligation to turn that back over to the gun dealer, no obligation to give it to the Federal Government.

Here, we've got to tell our State DMV employees that, listen, you've got this really complicated law, it's got these 14 exceptions, who knows what they mean...

Justice Kennedy: No, but I take it to be General Waxman's point that in Arizona, when the citizen couldn't buy the gun, he didn't know who to blame, the State or the Federal Government.

Here, there is no operation, as I understand his argument... and maybe this is... maybe you'd disagree with it.

Here, there is no operation of the law on State citizens by reason of anything State officials do.

Mr. Condon: Well, I want to get back to my original point.

Let's say you get your car towed this morning.

The act provides that, pursuant to a car being towed, you're entitled... there's an exception there, a permissible exception that the State records can then be released.

But the citizen then comes in, and presumably the State official has to look at that exception and develop standards and develop forms.

We have to verify if, indeed, this is the correct information here, you're not making this up to stalk someone, so the citizen is really being directly regulated by us.

We're being puppets of the Federal Government.

Justice Breyer: Isn't that true of every Federal prohibition on what a State government does?

I mean, suppose you sell hot dogs at the State park.

Don't you have to comply with the food and drug laws?

I mean, and they may be complicated, and you may have to say what kind of a hot dog and what kind of a stand, and what about... it's certainly a lot better than the minimum wage, or the... isn't it?

I mean, you have to do a lot less than that.

And... in other words, is your argument on this part just going to set aside all Federal regulatory programs that tell States what they can't do?

Mr. Condon: Justice Breyer, that again is a good question, but that goes to the heart of this case.

We aren't selling hot dogs here.

Justice O'Connor: Well, let me ask you another example.

I think Congress passed the Internet Tax Freedom Act, and it told States they couldn't tax these Internet transactions for a period of time, can't do it.

I suppose under your theory that's invalid, too.

It only dealt with the States and governmental entities.

Mr. Condon: That could raise...

Justice O'Connor: I suppose that's invalid, is that right?

Mr. Condon: That could raise some concerns, if the Congress is telling the States that pursuant to your taxing authority we take...

Justice O'Connor: And yet that's a far cry from the kind of commandeering of State personnel that concerned the Court in Printz, isn't it?

Mr. Condon: Yes, but...

Justice Breyer: Your theory is... your answer to Justice O'Connor that because that statute that she mentioned tells only States what they can or can't do, it doesn't apply to private people, that for that reason... it says, State, you can't tax.

For that reason, it would likely... I'm not holding you to this, but I mean, your instant reaction is, that's just as unconstitutional.

Mr. Condon: It would raise concerns.

Justice Scalia: All right.

Justice Breyer: If it raises concerns... I take it you're not attacking all of this Court's dormant Commerce Clause jurisprudence, are you?

Mr. Condon: No.

Justice Stevens: No, fine.

Justice Breyer: If you're not, then I would think... and think of all those cases.

Each one of them, a judge has said to a State, you, as a State, cannot do something.

Now, suppose Congress said exactly what courts have said, and they said it in statutes.

In each of those statutes Congress would have said to a State, as a State, you cannot, you cannot run your airport and keep Egypt Air out.

You cannot sell natural gas and keep Algerian gas out.

I mean, you can't regulate it.

You can't regulate your electricity and keep Canadian electricity out.

You can't, you can't, you can't.

And if you accept that jurisprudence, but you're also arguing you can't regulate the State as a State, how do you do that?

How do I... how would I possibly find for you on your theory you can't regulate a State as a State, and not set aside the entire dormant Commerce Clause and dozens of statutes, et cetera?

Mr. Condon: Well, national security implications may be different, but if I can get back to your hot dog...

Justice Breyer: It's not national security.

I mean, is that the distinction?

Mr. Condon: No.

Justice Breyer: I'm talking about the entire Commerce Clause jurisprudence.

Mr. Condon: I understand.

Justice Breyer: The dormant Commerce Clause.

I'm talking about any kind of a congressional statute aimed at a State which would say, State, you can't tax this, State, you can't tax that, and I have 10 examples if you want me to give them.

State, you cannot keep out Algerian natural gas.

State, you cannot... those don't apply to private people.

They apply to States, and they say to a State, State, you cannot.

Now, are you asking us to set aside all that?

Mr. Condon: Well, I think what's telling here is that when asked of the Solicitor General, is there one case that tells the States under the Commerce Clause, and only the States, you can't do X, Y or Z, you come up with this airport example that Justice Stevens pointed...

Justice Souter: What about the answer to Justice Breyer's question?

Mr. Condon: Well, I'm trying to answer it, but to answer your question, if you look at the Garcia line of cases, and the...

Justice Souter: Well, what about Justice Breyer's questions?

Mr. Condon: Well...

Justice Scalia: Commerce Clause regulation?

Justice Breyer: lots of examples.

I mean, I can give you 10 statutes where Congress says to a State, you can't tax airplanes, you can't tax cars, you can't tax electricity, you can't tax this, you can't tax that.

I'm familiar with the regulatory area, where maybe it isn't Congress, but it's Federal regulatory agencies that say, when you regulate natural gas distribution systems, you cannot discriminate in your rules against Algerian LNG.

Mr. Condon: Yes, I heard...

Justice Breyer: You can't discriminate...

Justice Kennedy: Is the answer that this is exactly the way preemption and supremacy power should work?

Congress has the ultimate determination over which branch of Government regulates individual entities, but that's not this case, because here Congress is regulating a State?

Justice Breyer: That's what I don't understand.

Chief Justice Rehnquist: How does that...

Mr. Condon: Well...

Justice Breyer: How is it more of a regulation of the State here to say, State, you may not release this information to a private person than to say, State electricity regulator, you may not discriminate in your rules against electricity coming from Canada?

What, in your view, is the difference?

Why is one regulation...

Mr. Condon: Well...

Justice Breyer: State as a State, and the other not?

I'm not saying there isn't one.

I'm just saying I don't see it.

Mr. Condon: When you look at the jurisprudence in terms of preemption and other enumerated powers within the Constitution, admittedly it's different in terms of where we are, but to get back to the decisions of this Court, which has breathed new life into our system of dual sovereignty, we simply...

Justice Breyer: I'll ask Justice Kennedy later.

Unidentified Justice: [Laughter]

Mr. Condon: Well, you know, to reference this point, directly regulating individuals is a different matter here, and when you've got the States here... and again, if I could go back to the hot dog, because I like that one, if I could, we're not selling hot dogs here.

When the car first came through South Carolina, we took this over.

This is what we do in terms of regulating automobiles, and for the Congress to come along, worried... and we're responsive to our citizens.

We have to run...

Justice Kennedy: Well, of course, that's one of the problems with the case, is that we go from commandeering to exclusive State function, and nothing seems quite to work, as Justice Scalia pointed out earlier.

Now you're... what you're doing is saying that this is an integral State function, it's an inherently governmental function.

That's different from commandeering.

Mr. Condon: Yes.

Well, I think it's...

Justice Souter: Well, are you saying, then, that Garcia was wrong, that we go back to Usery?

Mr. Condon: In this case we don't need to revisit those issues.

That's a law general...

Justice Scalia: Well, you might need to.

Well, there's...

Justice O'Connor: You might need to.

That's the point.

I don't think that the commandeering rationale of Printz quite covers this, and yet the old law under Usery pre-Garcia, we might say this is a traditional State function, but what are you saying to us, that we ought to go back to that, or... or what?

Mr. Condon: If you look at Printz, and just really keep it simple, and if you've got some questions about the commandeering, I would ask you to look at the practicality of what's going on here.

This is much more commandeering than what the sheriff...

Justice Souter: Well, but it's... you say... you keep emphasizing the burden and, as Justice Breyer suggested a moment ago, save for details, I don't see anything distinguishable between this burden and the burden of the wage and hour law, which can be nightmarish to administer.

And if the burden is in fact the... going to be the criterion, then even without going back to Usery, the wage and hour law extension to the States, even though it covers private individuals, I presume is unconstitutional, too.

Is that your position?

Mr. Condon: No.

Justice Souter: All right.

Mr. Condon: And of course, the balancing is not necessary.

I... as Printz makes clear...

Justice Souter: So the burden, then, is... the so-called burden argument I assume, then, takes you nowhere.

That's not essential to your position.

Mr. Condon: I think it takes you to look at the aspect of administering, because in the abstract I think you can say, well, they're not... this is merely a prohibition.

But to get back to my concrete example, when the officer...

Justice Souter: So... but I don't want to misunderstand you.

The... your point, I take it, is not whether the burden is heavy or the burden is light.

The burden is... the only relevant question is whether acts of administration are required on the part of the States in order to comply with a Federal statute.

Is that the criterion?

Mr. Condon: That's the heart of this case.

Justice Souter: Then the wage and hour law goes, because the States certainly have to take many, many steps to administer the wage and hour law to their employees.

Mr. Condon: Well, as this Court has said...

Justice Souter: Do you agree that the wage and hour law, therefore, has got to be struck down in its application to the States?

Mr. Condon: This Court has said that was a law of general applicability.

Justice Souter: But it has administrative burdens, so...

Mr. Condon: And my point about administrative burdens is to get to the heart...

Justice Souter: they're okay if they're distributed to States and to private entities?

No matter what the administrative burden, it's okay as long as private entities also have administrative burdens?

Mr. Condon: Again, in terms of trying to answer your question directly...

Justice Souter: Well, that would be yes or no.

Unidentified Justice: [Laughter]

Justice Souter: I mean, truly, if... is it your position that the administrative burdens are okay if the same statute imposes administrative burdens on private entities?

Is that your position?

Mr. Condon: In this particular case?

Justice Souter: Well, in all cases.

Mr. Condon: Well, there may be a case that is so... and I can't imagine this getting through the Congress, but it might, where it's so broad but so burdensome it would get to the core of our State functions.

That... it would depend upon the statute.

Justice Souter: Well, if your core is State functions, then you're back in Usery, and you don't need the burden criteria.

Mr. Condon: Correct, but...

Justice Stevens: May I ask you a question about your central theory?

As I understand it, your central theory is that unless the statute regulates both private conduct and State conduct, it's invalid under a Tenth Amendment concern.

And that's supported by the fact that as far as you can say, and I don't think the... your opponents have found anything... historically, it just hasn't been done, and so you say that we must assume that there is this constitutional limitation on the power of Congress to regulate States.

Now, does that principle mean, for example, that Congress could not pass a statute the obverse of this, requiring States to send their... all of the information about criminal conduct, finger prints, missing children, and so forth, to a central bureau in Washington for review and use and for Federal purposes?

Mr. Condon: Ministerial reporting, I know, Justice...

Justice Stevens: Well, but my example is one... I don't think the test is how burdensome it is.

The test, as I understand your argument, and I want you to enlighten me if I'm wrong, is the absence of impact on private parties, and the statute just impacts on the States, and I give you an example and you say, well, that's all right because it's not very serious, or does the principle apply there?

Mr. Condon: If the reporting involved a lot of cost and expense in gathering it, I think that would raise some concerns.

Justice Stevens: It would routinely require the police to report all missing children, and finger prints, and something of that kind.

It's... it requires the information.

It doesn't require it be kept quiet.

Mr. Condon: Well, of course, that's not this case.

Justice Stevens: Well, why isn't it this case?

That's my question.

Mr. Condon: Well, that's really my point.

Justice Ginsburg: It is this case in part, because one part of this statute does require the States to provide certain information.

All of the Federal statutes... this is not a hypothetical case that Justice Stevens has raised.

Several Federal statutes require the States to supply information to various enforcement agencies.

Mr. Condon: That also is a good question, Justice Ginsburg, and this statute does codify the existing statutes that require some reporting.

We've not made that the core challenge of this case because of this administerial reporting aspect, but when you get back to what's going on, to the DMV employee in South Carolina, if I could, they are being commandeered by the Congress, Congress'...

Justice Stevens: Would you... I know you've been interrupted, and I hate to do it to you again.

Would you answer my question?

Mr. Condon: The administerial reporting?

Justice Stevens: Does your principle apply to my hypothetical?

Mr. Condon: I believe that in terms of the core of this case, it could.

Justice Stevens: It... I should think you'd have to say it must if there is really a principle and not just an accident of history.

It may well be true that some things have never... the Federal Government may have never done some things in the past, but that does not necessarily mean that the power isn't there, even though unexercised for 200 years.

Mr. Condon: Well, could I rely on a little elbow grease at the joints there, in terms of a little play?

I mean, the Governments have to function together, and reporting missing children to the Congress, I mean... but here, the Congress has decided that privacy is the issue de jour, that we're going to tell these horrible States...

Justice Stevens: But that's an argument about the wisdom of the legislation.

Mr. Condon: The commandeering.

They've sent no money with this.

It's very complex.

It's complicated...

Chief Justice Rehnquist: In Justice Stevens' hypothetical, it seems to me people are being commandeered perhaps even more so than in this situation.

Mr. Condon: Depending upon the nature of the reporting...

Justice Stevens: Yes.

Mr. Condon: that is true.

I agree with that.

If there's whole new aspects in terms of gathering and costs and things.

But just sitting right there, and the Congress wants to require the States... but the principle, I agree, might come into play, but again, here you've got the Attorney General of the United States that can assess a $5,000 a day fine against the States for not complying, we have a...

Justice Stevens: No, but if you beat up... if a State official beats up a prisoner he can get fined under the Civil Rights Act.

The fact that there's...

Mr. Condon: Well...

Justice Stevens: criminal penalties attached to State violation of Federal law doesn't really make it any different than a lot of other statutes.

Mr. Condon: Again, the Fourteenth Amendment is not involved.

Justice Stevens: I understand, but you could also have a speed limit that if they violate it, that... you know, the fact that criminal penalties attach doesn't really reach the question of what Congress' power is, it doesn't seem to me, anyway.

Mr. Condon: Well, in terms of... again, the practical effects, in terms of the commandeering, and again, this isn't information that it's improper for us to have, or something new, or that the flow of information is new.

People need to have this information.

Insurance rates...

Justice Scalia: Well, basically...

I don't see how they're commandeered at all, come to think of it.

I mean, all they've told you is, don't give out information.

Why is that hard to comply with?

I mean, if a State didn't want to go through a hassle, all it would have to say is, nobody can get any information from our driver's records, period.

What's to commandeer?

What's the big burden?

If you choose to give out some of it, that's your problem.

In figuring out the details of what we're going to give out, make sure that whatever we do give out doesn't run afoul of Federal law, but Federal law doesn't require you affirmatively to do anything.

All you have to do is sit on your hands and not give away any driver's information.

Big deal.

What's so hard about that?

Mr. Condon: The information has to flow.

It's essential that...

Justice Scalia: That's your choice.

That's your choice.

That's not the Government commandeering you to make all these hard decisions.

It's because you choose to make some of it available that as a matter of State function you say, well, if the State's going to do what it wants to do, we're going to have to make sure that it doesn't run afoul of the Federal act, but that's your choice.

Mr. Condon: Well, these are things we do.

rate-setting with insurance companies, they have to know who's the good driver and the bad driver.

Police, in terms of solving crimes, they have to be able to look at these records and do things, and to simply say, well, you can just simply stop doing your business and doing your job, I think...

Justice Ginsburg: General Condon, I find such difficulty with your commandeering burden argument when I think of the legislation you're not challenging, at least here, the Fair Labor Standards Act, the Surface Mining Act.

Lots of environmental legislation poses very heavy burdens on the States.

Mr. Condon: Well, Garcia and Baker, that's still good law, and again, that's not here before this Court, but that's not what's involved in this case.

This statute only applies to the States, and it only applies to the officials in those States, and we have to comply with this statute or face these penalties, which... you may make light of it, but I don't know how many Federal statutes that are out there that can have someone arrested for the FBI for knowing violation of simply doing their job day-in and day-out.

And again, in terms of blurring the political accountability, getting back to that, these are records that South Carolina law requires to be produced, these are records that we pay tax dollars to produce, and we're just simply saying that, let South Carolina be run by South Carolinians, and...

Justice Souter: But the wage and hour law provides the same confusion.

When you go the employee and say, I'm sorry, you can't work more than 40 hours because you'd be subject to overtime and we're not going to pay it, the employee doesn't know whether that it's the State government that doesn't want them to work, or whether it's because the National Government requires time and a half.

I don't see how you can draw any principle distinction between the statutes which you are disclaiming any effect upon, and the one that you are challenging, because in each of them there is going to be uncertainty in the minds of the citizen as to the source of the law.

Mr. Condon: Well, when you've got a statute like the wage an hour that applies across the board, and is part of the national fabric, here, as to what's going on here... and again, we're for protecting...

Justice Souter: Well, this is certainly... this statute is certainly intended to be part of the national fabric.

It applies to all the States.

That's about as national as you can get.

Mr. Condon: Except for the fact that the Federal Government has data bases that isn't covered by this.

FAA has data bases on the Internet with people's personal information, the FCC, the ICC.

It's at the State level.

It's us we have to implement.

They're commandeering our officials in terms of how to apply this act, and again...

Justice Scalia: Well, I suppose you could distinguish the wage and hour laws and a lot of other examples if you made the argument that there is something distinctive about State records, and that the Federal Government, this is just a category which the Federal Government can't control, that just as it can't tell a State where to have its Statehouse, it can't tell a State what to do with it's governmental records, how that... you know, that's an argument.

That may be right or wrong, but at least it would be compatible with your acknowledging the validity of these other statutes.

They don't deal with State records.

State records are... I don't know, they're sacred, just as a Statehouse is.

They belong to the State, and the Federal Government mucking around with them goes over the edge.

I mean, I... that's a conceivable argument.

Mr. Condon: That may be a possibility, but there are other... this is... what should be done here as a last, last resort has been the first resort.

The Congress could directly regulate individuals who get these records.

The Congress could take our records, take this burden over.

We can do other things with our time.

But what they've done, they've gone right after the States with an act that really doesn't work to begin with.

It's very complex, and in terms of this Court's decision in terms of Printz and New York, it raises the exact same principles that are at stake, and we simply would ask, on behalf of the States, to continue to keep... breathe new life with your prior decisions into our dual sovereignty system, which protects us all.

Justice Ginsburg: Do you say that to the extent that the Federal Government requires you to turn over records, that that would fall under your principle, too, but as a matter of comity you're not objecting, or that that's distinguishable when the Federal Government says, South Carolina, you will give your driver's license information to certain Federal agencies for certain purposes?

Mr. Condon: I think in terms of the principles, we're at the comity level, especially when...

Justice Ginsburg: So that if you wanted to insist on that being unconstitutional, you can say they're our records, and we don't have to give them to anybody.

Mr. Condon: Again, that's not the case before here.

There's time enough for that.

Justice Scalia: I assume that if anybody's hurt by South Carolina's being more liberal with its disposition of its driver's records than other States are... other States may indeed follow the Federal practice under their own State law, but I suppose if California is more liberal, if you call it liberal, it doesn't hurt anybody but South Carolinians, does it?

Mr. Condon: Democratic accountability.

As a matter of...

Justice Scalia: There's nobody outside of South Carolinians who would have their driver's information coughed up by South Carolina.

Mr. Condon: That's correct.

Justice Breyer: So...

Mr. Condon: But as a matter of information, we've gone further in South Carolina than the Federal act.

We protect privacy more now, and that's really the point.

Let the States run their own records, let them make those individual choices, and we're accountable to...

Justice Scalia: Or the people of the State whose driver's license are at issue.

Mr. Condon: That's precisely our point, to let us run our records, and again, I understand that this case has broad implications for the future, but when you look at what's going on here in terms of the facts of this case, we feel that the prior holdings in New York and Printz dictate this result.

Thank you, Mr. Chief Justice.

Rebuttal of Seth P. Waxman

Chief Justice Rehnquist: Thank you, General Condon.

General Waxman, you have 3 minutes remaining.

Mr. Waxman: Thank you, Mr. Chief Justice.

I'd like to make three points in my 3 minutes, if I may.

First of all, with respect to the Usery-Garcia point, Judge Easterbrook, writing the majority opinion in Travis, which is the companion case in the Seventh Circuit, found correctly, we think, and for the reasons we articulate in our reply brief at page 8, footnote 6, that this case, in any event, wouldn't be decided differently even under the regime in Usery.

And I commend the Court's attention to Judge Easterbrook's majority opinion and our analysis, which essentially takes off from the Chief Justice's concurrence in South Carolina v. Baker, where the Chief Justice emphasized that the more expansive conception of the Tenth Amendment espoused in Usery recognized that congressional action that, quote, operates to displace the State's freedom to structure integral operations in areas of traditional Government functions runs afoul of the authority granted by Congress.

Justice Scalia's hypothetical, where there was a bar on releasing any information that is in a State record, probably would raise very serious concerns under Usery, but a release in commerce on information that is personal and private that is provided by citizens we think doesn't implicate Usery.

With respect to the... Justice Kennedy's point and Justice Stevens point about the category of one, I... if one looks at the environmental laws, for example, that Congress has regulated sludge and solid waste systems that are operated, if not exclusively, overwhelmingly by municipalities, and Congress... and it has regulated in a way that is different than it regulates other types of environmental issues, and the fact that Congress distinguishes...

Chief Justice Rehnquist: I don't know that the Tenth Amendment applies with all its force to local governments as opposed to State governments.

You're talking about the regulation applies to local governments.

Mr. Waxman: Well, if it doesn't, Mr. Chief Justice, I'd sure like to take another shot at United States v. Printz, which involved sheriffs and...

[Laughter]

I don't mean to be facetious.

We have understood that in contrast to this Court's Eleventh Amendment jurisdiction, the Court has always construed its Tenth Amendment jurisdiction to include not only States but subordinate sovereign entities, or subordinate governmental entities.

I just want to point out, with respect to South Carolina v. Baker, which is always cited as a statute of general applicability, and perhaps in one sense correctly so, but only in the sense that this is, too, the section that... the statute that was at issue in Baker, section 310(b)(1) of the Tax Equity and Fiscal Responsibility Act applied only to State and local governments.

It denied a tax exemption to unregistered bonds, a tax exemption that only applied to... ever only applied to State and local governments.

The Court pointed out in its opinion that this was part of a general system of law, a general law that did away with... it tried to address the problem of tax fraud through the use of unregistered bonds.

It acted with respect to the Federal Government in a different way, and the same is true here.

Chief Justice Rehnquist: Thank you, General Waxman.

Mr. Waxman: Thank you very much.

Chief Justice Rehnquist: The case is submitted.