tv Key Capitol Hill Hearings CSPAN April 25, 2015 6:00am-8:01am EDT
recognition and some are seeking. we'll see how that plays out. in every one of these cases there are constitutional questions presented an equal protection clause is that same-sex couples should have the appropriate level of protection and what is the due process clause argument. is it a fundamental right and if so how does it apply to same-sex couples? is it a different fundamental right or is it just that there
are fundamental rights to marriage and who gets access to those fundamental rights and who doesn't. those are the issues that the parties in one way or another addressed. i've read all the briefs, i have to say i think the quality of the briefing by varies. these are not briefs that were written by law professors and so that may be a good thing but they're not as rigorous as we would like to have one more teaching our were teaching our students but it's also fair to say that in many cases they weren't written by or meet the standards of the supreme court briefs. that's not to say there badly done it's just to say they somewhat vary. the petitioners in their briefs all emphasize a mix of doctrine, other cases in due process and equal protection. personal stories about their clients and their parties, appeals to justice kennedy which are an inevitable feature in any case like this and preemptive strikes making their response brief. the respondents briefs, the
state briefs emphasize a mix of responses about going slow and it's legitimate for a state not a state not to plunge ahead into the unknown consequences of legalizing same-sex marriage and all that means for children and other unknown factors. there are several federalism arguments. windsor was really a federalism decision. everything was premised on the idea that it's the states that
choose whether or not to confirm that. that. there's arguments about direct democracies that all these date bands came about through votes of people. i think that's a problematic argument because these amendments were really intended to shut off the debate and prevent future legislative action from revisiting the action. then the argument about responsible procreation. states have learned they really can't make arguments based on morality or tradition for its own sake. there's no indication any of these things the states are saying like gays make bad parents in some way but they want to encourage straight people that have the possibility of accidentally getting pregnant and paste producing babies to
get married. it's reserving marriage for that purpose and encouraging responsible procreation but there's no evidence of these arguments ever having been made. it really emerged in 1990 and the writings of people when religious conservative oppositions had to come up with something that sounded reasonable and plausible to the state interest that didn't seem to be disparaging people or making moral judgment about gay people. i think i'll leave it at that and take specific questions. >> you might want to weigh-in on the windsor argument. another case they rely on is whether it could stand affirmative action at a public
university. >> very often you see in cases people who want to overturn state decisions. there is a great deal of discussion in the briefs and the decision below about whether or not this issue is best tied by the states one by one as laboratories come out or by reference to the 14th amendment. the windsor case does give particular ammunition. there's a whole section about family law is reserved for states and federal government. the federal government should accept whatever decisions the state has made.
there's a great deal of language that can be pointed to in the other case !-e-point to to ban affirmative action in education and michigan which was held unconstitutional by the lower courts but constitutional by the supreme court. that was a case where they join the majority. >> there's a 650 word passage of the kennedy purple prose of democracy and citizens coming together to think about and resolve issues together and that
is being quoted back to him and some of those briefs and commentary about this issue. i think a couple things to remember is justice kennedy is still the same person who in 1996 had no difficulty smacking that amendment after people came together. in one way or another because it was decided through the democratic process doesn't mean that we give it a pass or look at it any less critically. i've always thought of that passage in him wrestling with his attitudes about race.
>> he thought there should be standing on the components of the referendum to appeal because otherwise the officials of california, the california, the very people who are supposed to be bypassed by this popular vote have the power by not appealing. he was happy but it seems to be the popular vote argument is weak in the situation where the majority vote say we can keep getting more varied and you can't. >> they don't want to make law for the moment the examples in these four states are
constitutional amendments to lock it up to prevent others from dealing with the issues if people change their mind in five years they have to go through extremely long and extensive process so this is really not about true democracy just because people voted. voted. they voted in a way that was intended to settle the issue and not come back. >> to give you a little more on the other argument the argument that the reason it's okay to limit marriage is because they are the only one that can become accidentally pregnant. there's hundreds of thousands of people being raised by same-sex couples that are not married and can't get married but the only ones that can become accidentally pregnant so we have to have marriage to channel them into it. this argument doesn't work for a whole variety of reasons. the devise to force people to get married isn't what marriage
is about. marriage is about commitment and mutual support and love and a lot of other things. the idea that marriage is just about this is wrong and the second thing is children are children regardless of how their conceived and the route if you're concerned about having unmarried parents why would you let everybody get married? they're hinting at but never quite say is that the problem with same-sex marriage is that the other people are worried about the institution that they're getting married in. and they think other people are gonna start getting married.
the only people that seem to want to get married in this country are gay people. i think this also gets to a standard of review. the states go to great lengths to say yes this may be overinclusive's out or under an elusive it may leave something out or may not be completely coherent but after a rational review, doesn't have to be perfect but just something the legislator could review and so i think as long of states are pressing for a most deferential process of review, review, they can't come up with the flimsiest rationale for their review but i don't think that will happen. if you look at the kind of analysis the court did even if
you put a label on it the court has never applied the economic on a rational basis. we demand to know what the relationship is. >> align is being drawn and it's hard to think of any other kind of law where you can discriminate in that type of rational way. it doesn't lend itself to the economic regulation. >> the proponents of the amendment in the perry case the natural argument and the things that got the attorney justice
appeased, and they made a joke about it. they weren't taking this argument particularly seriously. >> there's been a lot of focus on the supreme court decisions but there's a real history that the court has had in addressing access to marriage that includes permitting people who don't pay child support to be able to marry, permitting individuals who are prison to be able to marry while they are in prison. there is this really huge issue that the supreme court has viewed marriage over 40 times over a couple hundred years. the court has consistently found
that we have to give huge to individuals who are willing to marry. they're not interested in picking out who should and should not have access to the institution. >> the other piece of this aside from the child welfare piece is the notion that children are better off with a mom and dad. a lot of people still believe that. it doesn't have support by the social sciences but the more fundamental problem with that argument is that kids are there any way. same-sex couples have the same right to reproduce regardless of marriage or not and are in fact doing that. even if you thought that they are not ideal parents, and there's no evidence of that if
you thought that married parents were better than unmarried parents, you still don't have an argument for why they shouldn't get married. there are 400,000 children in foster care still waiting foster care and more waiting adoption. even if you think or believe the idea that the optimal situation might be a mother and father why would you not want to deny these children a mother and father. does a place in michigan where they have four or five special needs children that they have adopted. they're all living in the same household together and that is okay with the state but they
still won't let them get married. what is the reason for that? it's a difficult road once you can no longer argue that same-sex is a bad thing and that people shouldn't be gay from a moral sense. these arguments are just really torturous that they've been making for the past several years. >> assuming that the court agrees with you all are they going to put a label on it this time? >> if it's a justice kennedy opened in let's not forget that the court has not identified any new categories for heightened scrutiny for a long time. there's been a fair number of justice in academic commentators that said people disagree
whether it's a good thing or bad thing but there is one equal protection cause clause. it may vary from case to case on how it's applied, but consciously or unconsciously that seems to be justice kennedy's attitude. it looks like intermediate scrutiny and all the other gay right cases. i think were likely to see equal protection clauses and due process. the best read say they are together and this is something that law professors have written about. the equal protection and due process clause are complementary and they interact and i think the best way of thinking about that is that there is a
fundamental right to marry. then we might have the right to say that the burden shifts to the state cannot deny this fundamental right to this particular group of people. >> it would be desirable if the court would articulate. we had a long time to think about things with the court adoption band and people involved in same-sex relationships and there seems to be a lot of scrutiny of these things. there will be cases going forward where it would be nice to know what the constitutional
standard is. >> where the law was defended in the indiana case by some vigorous representative of the attorney general's office, even they can see that there was no other situation where the government was involved in this individual other than marriage or that discrimination was appropriate. >> can you think of any other way where the government is allowed to discriminate against people. >> they said they couldn't think of anything. >> if we go to a hand higher standard of review -- >> now we've reached the ultimate thing that everybody was worried about and there
seems to be a lot of danger if you're going to strike down these laws. >> are they going to strike down these laws? and if so by what vote? >> i think the most likely outcome is a five to four decision with justice kennedy. i've gone back and read what they said at windsor and i'm prepared to argue that he left himself brewing in that opinion to join a majority in this case. his opinion emphasized federalism and what the courts were not deciding in the windsor case but he said very little about what he thought the proper resolution of the state law issue was. i think there's a nontrivial chance that it could be six
three where he gets on board with existing marriages without getting on board with creation of new marriages. i think those are the two most likely outcomes. also a slight possibility, but not likely, a straight up majority opinion addressing yes on the marriage recognition question. >> i actually agree. i think there's a chance of this being a six three vote. coming out at a more practical level the chief justice i have children who are roughly the same age and we know the
justices are human and part of what they're looking at is their legacy. how are their children and grandchildren going to think about them in years to come and i think that significantly increases the likelihood that the justices will join in in some way or another. not necessarily a hundred% on point. i think one of the areas we may see more of a concurrence from him is on consumer currents. he may concur that they should have access to marriage but it should've been determined on rational law. >> it may not be a bad thing a bad thing for clarity and rigor.
as long as he doesn't write it into modest of a form. >> it's gonna be 524 come on guys. he said it was okay for the federal government to overrule state decisions on marriage. he's got the states making their own decisions and it's a very difficult opinion. >> do you think there some possibility he was thinking this was a legacy and institutional issue and he doesn't want to be on the wrong side of the issue? i said possible, but not likely. assuming all of you are correct that the vote will be 54
remember you only remember the ones you get right. indiana was in the news recently. the talk about is their position from the court are we going to see more of these or a backlash as there was an indiana particularly in states without laws protecting -- i think what we are seeing our people have long opposed any rights for lgbt people. it's not new this is occurred for decades but what has changed is the american public opinion.
in the wake of indiana's decision to pass a federal not a federal, that would be fascinating if they could pass a federal law but the act that will allow a business owner to go into court and say that they had the right to undermine existing, municipal nondiscrimination laws that prohibit the discrimination of sexual orientation in public areas to purchase services and go and shop and going claim that their religious beliefs allow them to take hold in that law for purposes of not serving lgbt people individually or same-sex couples.
there was a huge reaction to indiana's law which passed and was later revised somewhat, in large part because american attitudes have changed. 50% of the american public responded to polling questions and there were multiples that were held saying they felt that it was wrong to discriminate against same-sex couples in public accommodations even if it was wedding related. major corporations from apple to angie's list and walmart came out in opposition to these types of laws. on the other hand some laws. on the other hand some of the laws that we are seeing are much more targeted. they're much more narrow. michigan just recently passed, and needs one more vote to go to the governor's desk, a law that would allow adoption agencies to
discriminate based on religious beliefs. alabama one vote away from passing a nearly identical away. the state of louisiana is considering legislation that would allow government pastors to discriminate on the basis of marriage if they did not believe in that marriage. if that marriage violated their religious beliefs. so if you have a judge that doesn't think that a same-sex marriage is legitimate then they can claim divorce. there's nothing the state could do to sanction that. that doesn't mean they won't be in operation for a number of years or that they will pass. >> there is a case last fall out
of new mexico. >> yes, the owner of a photography business was approached by a same-sex couple people and this was before they had marriage equality and they wanted to have a quick a commitment ceremony. they said they would like you to take pictures of the commitment ceremony and the owner said well i disapprove of your relationship. it doesn't align with my views on marriage and family even though they have very clear laws about discrimination on sexual orientation, i don't think i have to serve you. they found in favor of the same-sex couple. they said to the photographer you are bound by non- description discrimination law
and you are flat-out discriminating on the basis of sexual orientation. the supreme court had the opportunity to take that case up and they declined to do so. i don't think you can read too much into that -- they did. i think there was a real interest in how courts are going to come out on these issues. to date there have not been that many supreme court to deal with the issue. we don't have federal laws protecting same-sex couples from discrimination in public accommodations. it. >> it was not a religious case at all, it was about her art and
that she didn't want to create that art to make her wedding beautiful. the idea that you are complicit in someone else's marriage by selling them a product like a cake or flowers i don't think religion is sufficient to justify exemption. i do think we will continue to see these issues asserted. like the ones in alabama who made these claims but the fact that the community feel so strongly against this suggests that religion for an anti- gay opposition is not as powerful as people thought it was.
>> this has been the drumbeat among social conservatives. this is the argument against same-sex marriage that it interferes with religious beliefs. >> i also want to push back against the idea about small businesses. a large number of small businesses believe that the same behavior is inappropriate and there's been many business owners who have come out and said as a catholic, as a protestant, as a jew, i may not believe that same-sex couples should be getting married but when i am opening my business up to the general public i understand my obligations are different in the public marketplace then my own personal views.
>> one of those might be worth reading. there is a very prominent scholar on religion and litigation and he filed a brief in favor of same-sex marriage and supported his petitioner's to discuss ways to live up to the discussions of same-sex marriage and civil liberties. i think some of them have gotten the majority to say something about this. he spoke respectfully of people who have traditional views about marriage and empathetically who wanted to get married. they're making a play for something in the opinion that might give a nod to the idea that there are issues down the road that may need to be resolved even if the court
grants same-sex marriage. >> absolutely look already all of the major republican candidates for president have made this an issue in their campaign. he wrote an article in the new york time in which he plays out this vision of opposition for marriage equality. it really suggests that individuals should be willing to oppose even if the supreme court rules and favor. they are all trying to attract a small subset of the american people.
those primary voters who are extremely social conservative and they are going to have significant challenges if they continue on this path when they end up in the general election. if you look at americans under the age of 40 75% support marriage equality. even if you look at republicans under the age of 30 61% support marriage equality. they're setting themselves up for potential success amongst their core base but will have problems in the general election. >> they're using this in the primary elections but when you look to the general election they don't want to be talking about this. they want the supreme court to handle it and take it off the table so it's not up to the
president to make this decision. they really don't want to have this issue be a lot alive issue. they can downplay discussing it later. mitt romney keeps getting asked this question. >> we know americans have access to view it. it'll be one of those, what i like to have a beer with this person kind of question. essentially it has nothing to do with same-sex marriage in this country but will be a character
issue that people measure presidential candidates by. today by. today believe in fairness and respect and do they respect my gay son or my gay nephew. >> let's move onto the next set of questions. do support nondiscrimination issues across the country because that issue is still out there. >> i think were going to have to continue to talk about marriage because of state legislature needs to introduce bills that are an attempt to limit the scope of marriage equality within the state and carve out for individuals who don't want to interact with same-sex couples who are marrying. i think there's going to be many opportunities for them to determine how they feel about same-sex relationships. >> i wonder whether or not
transgender issues are going to come up. after marriages decided i think another set of issues waiting in the wings is chan trans gender inequality. it'll be interesting to see whether or not those issues have enough momentum to get discussed. >> there are cases alleging that discrimination on the basis of gender identity is another set of sexual discrimination. they have determined for federal employment jenner identity discrimination is discrimination. now they are trying to look at
private employees. as these issues progress there's going to be opportunity to go on record about these issues. >> okay it is now time for your questions. i just want to throw out the possibility of a seven to decision. i know he's a very conservative justice but he's joining them minority of the court. is that some sort of evolution on this issue? >> it doesn't mean he voted for the decision to deny it. i think it's unclear what the actual vote was in alabama.
>> it was unclear. >> if you look at his opinion it's not ambiguous in any way. >> it still important to note when you are determining whether or not you vote, part of what they're determining is the likelihood success. he might make an assessment about where they think they are going to land but he may not agree with that decision. >> he's very strategic in his thinking in advance and i have to agree with that. there was an article across my
desk of someone saying the dissent in windsor could have been a dissent in the other case in virginia. there was no difference in the arguments he made about gay marriage. >> what if you're not wrong and it's a five for decision the other way. what would happen? all of the states that obtain marriage equality through a state legislative process a state supreme court decision or the ballot box will retain the ability to issue marriage licenses for same-sex couples. it gets more complicated for states who have had a federal ruling they have to go back to
the district court and say we want to start enforcing our ban on same-sex couples being able to marry. then it begins to be a bit of a gamble. i think we can presume that at least four of them will seek that right. there are significant -- if same-sex couples who were legally able to marry can they remain married? >> the federal decision to block that is very questionable.
they may stop marrying people at least for a wild. that will send it back to the political scene for some amount of time. it would be anxiety provoking to those thousands of gay couples who don't know if they will continue to have their constitutional rights. it can be a very painful experience for many people in the country. >> many conservatives seem to believe that if the supreme court allows gay marriage nationwide it could somehow league to polygamy and people being allowed to marry their siblings.
one could make a legal argument that that could happen. >> i think the slippery slope arguments are a dangerous trick but there the recourse of people who don't want to go through the difficult process of reasoning and distinguishing and everything that lawyers are trained to do. you begin with the principles that the court says there's a fundamental right to marry. here is a group that is claiming exclusion from that right. what are the harms, what are legitimate reasons and justify those reasons. it's a completely different set of potential harms rules, state interests involved in polygamist marriages and relationships and
incestuous relationships. they will have two identify what their good reasons are for banning those marriages. there's consequences for children and women and i think you can come up with a whole range of reasons why it would be more permissible from the issue of social harm and legitimate social interests to allow same-sex marriage. the mac. >> that question will get asked. i don't think it's plausible to say you can't draw a constitutional line between the two.
>> has windsor had any effect on the last two years? >> he certainly brought a beautiful opinion for his colleagues to be able to say here you go. >> windsor means this but marriage equality has decided -- and whether or not it made it difference or they would've figured it out by reading the majority -- >> this has been a very interesting briefing. as someone who comes from this from the outside you can see
that this is not going to the supreme court but perhaps it'll go to this justice or perhaps his grandkids if he wants to leave a legacy. what would be the one or two arguments you would bring aiming first of all at kennedy and a few step back and look at this and you know the supreme court is a giant body is this really a functional body that we have? >> that's a lot of questions.
i think first and for now most if you are going in and talking to society and to some extent even roberts, he made it clear that he cares a lot about the children. this was a primary issue for him and he clearly wanted to grapple with why should the children of same-sex couples not have all of the same benefits and protection of the children of opposite couples. why is it that in a state that a state that is not issuing marriage licenses to same-sex couples and therefore ensuring that those couples have state and federal rights, why should those children be subjected to lesser protection than other
children. in terms of the second question, could you repeat part of that again? speemac. >> i think it's too simplistic to say that the courts come down to in this clear political way. we know there are many justices over the year who are put in place by a republican or a democrat with the expectation that they will vote on party lines :
able petitioners, i don't know maybe you explain why this is not a threat to religious liberty something very concerning, civil marriage to a relatively limited locations were culture and religious institutions. that would be one guess anyway. >> the flip side of the question. if you are representing ohio, michigan, if you will the most convincing arguments that you make to justice kennedy and others to say week of states should have have the right to ban same-sex marriage? >> as the was just saying you talk about states. able to have their own policies particularly in this area.
and then perfectly popular vote, something that is respective even more than legislative clause. >> the progressive recognition question. >> again, i think they we will advocate for it. it seems with justice kennedy, we won't have a heavy hand of the federal constitution imposing something that not all states are ready for licensing same-sex marriage but we will say that a sensible, horizontal a sensible, horizontal federalism, the only thing that can sensibly work in a country like ours, states that have chosen to marry gay couples, a lot of the logic from the decision on
windsor. another sovereign cannot respect with one state has chosen and its people sovereignty to create. again, will if the price of saying yes on that question as to say no i think it would be very english. have a sense that he is concerned about his role in history. and so a vision for what his lasting contribution will be >> the whole idea that you were shielding the states you don't have to do the marriages, you just have to respect the that county clerks, the county clerks, justices of the piece, the have to do that. every other department of state justice. [inaudible conversations]
>> kennedy again used the marriage license as having significance and what is creating the marriage, the dignity, the equality of the entitlements. he he attaches a lot of significance in that particular state action even as a practical matter. >> the idea that there are two kinds of marriages and one had to go out of state and find the hotel and other people don't. >> very sensitive. >> but he is not overly concerned. thinking about the substantial burden on women and abortion. there he does not seem to have difficulty. >> part of the problem is he does not fully believe. what he does clearly believe couples who have been married should have the recognition of marriage.
>> trying to channel what might be going on in his life. >> the legal director. pretty sure have contractually obligated. >> it is a declaration and recognition. >> very hard to write a decision. the arguments come down to the same state interest of the same constitutional provisions. i just don't see it. they broke down that way. they give a little extra time. will find out in general yes.
>> speaking of psychoanalyzing justice kennedy, talking about how he is reluctant. suggested that he discovered that there won't be something decided on a case-by-case basis. some area does not want intermediate scrutiny. >> i don't consider myself enough of an expert on the entire body of justice kennedy's jurisprudence to no whether he has a aversion to scrutiny. the way he has resolve these cases is not feel any
aversion to comply with the conventions of a. scrutiny. there seems to be addressed on the court away from the idea that tiered scrutiny is necessary and applying a tailored form of scrutiny to the particular situation. some of the courts have done that to process liberty issues. the court has had cases well, anyway the general drift of the court has moved beyond tiered scrutiny. it seems that justice kennedy is very comfortable. >> interesting. first amendment jurisprudence the strongest supporter of categorical thinking in those cases. different than commercial scrutiny and restrictions. cases were watered down.
this is an administrative enforcement proceeding brought by the department of agriculture against my clients commending the relinquishment of funds connected to specific pieces of property namely reserve raises. my clients appear in the capacity of handlers but under the particular facts of this case the economic circumstances are somewhat different than are
ordinarily through in this industry because as handlers, the joshua horowitz ands assumed financial responsibility for the reasons that were not turned over to the department of agriculture. the producers in this case were fully paid for their reasons. this is a factual finding to be found in the officers's opinion 66 a.m. the appendix to the petition. they paid the producers for their reasons according to the judicial officer, those reasons became part of the inventory of the hornes. the administrative committee came after 80 raisins. it was the hornes who bore the economic burden of this taking. >> i thought the growers were paid only for the value they were permitted that was
permitted volume and that they would not pay for those in the reserve pool? >> that is true in the ordinary course. that was not true in this particular case because of the unusual business model of my clients. these producers pay for all of their raisins. >> are you attesting to the volume or is it just the reserve pool that you find? >> we believe a volume limitation would be a use restriction that might be challengeable but it would not be taking. in this case because an agent of the department of agriculture actually take possession ownership of the reasons, it is that aspect of the case which
was challenging. >> if you are not challenging the bargaining itself, you cannot sell more than 60% of your crop. >> that is correct. >> what happens to the rest of it? you won't be able to feed your family. >> in the ordinary case the reserve percentage which in one case was 37%, and was 30% in another case 47% is handed over to the raisin administrative committee. >> if we just had a volume, you cannot sell more than x amount, i'd take it they would get nothing at all, at least with this reserve pool there is a possibility of getting some. >> the way volume controls
generally work is the owner of the produce is permitted to sell that reserve as market conditions continue. in this case the are ac sold the reasons law in some cases even above the field price. there was a market for the reasons so i would assume volume controls under these economic conditions might have left these particular people better off than under the current -- >> you are complaining about administrative expenses? i still don't understand why this makes this consentual case as opposed to -- you have given up on this being a consensual case. >> we never claimed there was a consensual case. >> basically you see a nexus between the regulation and its purpose. >> we do but more fundamentally,
this is actual transfer of the reasons themselves to the government. >> how is this different than leonard? >> leonard involved oyster shells which are owned by the state they are wild animals, the property of the state and the oystersmen had no property interest in some other than what the state chose to license. >> is that really true? when these fishermen took the oysters other waters. >> they interested the state of maryland provided for the manned the state of maryland with held the 10% of the oyster shells for the purpose of fertilizing -- >> i would have, as soon as they
bring oysters out of the bay, bring their catch to shore, and has been theirs. >> except for the 10% of the state reserve the. >> what sonia sotomayor's question was wouldn't the same be true of reasons? >> reasons are not wild animals even if they are dancing. and belong to the federal government. >> you think leonard is an animals case as opposed to the state contests your property case? >> they did also call it a tax. i am happy to address whether this is the tax because under this court's standards, criteria but referring to the
criteria in this case, this was not an internal revenue code not collected by the internal revenue service authorized by congress. it is not a tax. >> with leonard e. there. the court was basically saying government could do this because this was the good in congress. as long as it meets a consensual tax, there is a nexus between the government's goal and the regulation then it is okay. is used to fertilize oyster ponds or fertilize the oysters, here they are doing it to maintain prices and giving you whatever is left over on the reserve.
>> the fact is oysters belong to the state of maryland and when the state of maryland decides to allow fishermen to harvests -- >> we're in leonard was this? >> i would be happy to file a supplemental brief with the maryland citations' indicating the oysters belong to the state of maryland. >> what the constitution required for the taking was just compensation, not a reasonable nexus a good policy. >> you are not wrong about that. underlying the government's briefs we ask what his position is or characterize their position if you choose. what difference does it make? did you understand that to be
the underlying premise in their argument? or is that unfair on my part to >> they say that from time to time. in fact, there is a fundamental difference between volume control which is present for a number of agricultural products versus the taking because in this case the government literally takes possession of the reasons. it can use the reasons as collateral and consoled raises. >> why didn't you ask about the reserve arrangement and the government's position of the reasons themselves? they're not attacking volume and you cannot target more than x
amount. and the reserve pool, to get rid of the bond limit as well. >> in this part of this there is no separate volume control in the sense that there is no regulation that tells you producers or handlers how to do that but instead they are told to set aside raisins and give them to the government so here there's a taking. >> the part that isn't given to the government, suppose we just -- couldn't you have excised that part of it and still be used to limit the amount that would be marketed? >> the way this case of rose, the department of agriculture
came after -- the -- >> what about that? >> it is a defense. the department says give as raisins or monetary equipment and we say that is not constitutional. >> would there be any obligation to propose an alternative to the taking? the government takes your property can you resist the taking by saying you can do this in another way? you don't have to do that. >> i am not sure any alternative ways would be permitted. >> my question is, it goes on from this. may be answers on the side. i assume for argument's sake have some raisins in my basement. the government comes with a shovel and of burlap sack and takes the raisins.
i would say sounds like the taking to me. the constitution doesn't forbid taking just compensation. at that point i want to know what happens because i guess the government could argue look at this it is of big problem. what this program does is gives reason farmers that the public's expends more money so if in fact you don't want us to take your reasons all right, fine but there would be no problem if anybody said that so we have a rule against free riders, we will give you what it takes to take your reasons and would in fact it costs you the difference between what you received the new program and what you would receive without the program. that works in your favor. it gives you money. it doesn't take money so there is no compensation. in fact if we were to have compensation you should pay us so how are you going to get by
that part? if you can't get by that part how will you avoid paying the fine? i don't see the relationship between taking the argument which is all we have to decide and how eventually you either get some money or don't pay the fine. if you have a minute i would appreciate an explanation. >> i would love to. it was conceptual and practical. let me get the practical response first which is that my clients are certainly not better off. the secretary's own calculation of the price of reasons was $63 per ton higher with volume controls that would have been in an unregulated market. the field price was $810 per ton. taking away 30% of their reasons does not end up with my client's better officers as a result of
the program. quite the contrary. they lose money. we have the calculation. >> you are going to get to the theoretical argument, but in response, the price you just quoted because of this program is circular. >> by the secretary's and calculations, $63 of that 810 is attributable to the volume controls in the program. only $63. >> demand for raisins in the last few growth markets you will have what happens before the rca. you have prices dropping fits the purpose of free competition. >> under today's conditions, the lexus city is not as enormous as
it would need to be. >> that is today, but we haven't paid reserving years. >> when ice ages day. >> one of your arguments in is the conceptual point is that this is per say taking and if there were benefits such as i don't believe there were but if there were that would that most go to weather was composite compensation for the taking which would go to the question of compensation. implicit compensation is a complicated matter that has to do with their there were special benefits and others are split of over the country on that. i don't fink we want to get into whether this would be a special benefit. >> any objection to my riding of fiber to write it like this? is taking. some of the constitution forbids
taking without compensation. and give farmers more compensation that you would have without it. programs can work badly, sometimes counterproductive but it is working well that is what happens so we send it back to the court to see if the program worked well, did it work to make your client better off. what rules to we follow that is how we should do this. >> i think not. but close to their. if this were an eminent domain proceedings then law lower court would determine whether there was implicit contribution. if there were in first compensation proceeding this is an enforcement action, specifically guided by regulations in the seven csi r and implicit in the contribution
is not provided for in those regulations. what is provided in those regulations it is if raisins are not handed over of they handler must pay, multiplied the number of reasons by the field price and that is it. that is commensurate value of their race and so that if they take fact that compensation is exactly that and the two thing glee -- simply are a wash. the broader principle here is that this is not a program designed to provide compensation. the government almost concedes this. this is not like getting land for a post office where the government intends to paid. it is more like a program like kaiser or the others with it is it taking the government has no
intention of paying compensation. that is not the kind of program it is. in cases where there is the taking and the program does not contemplate compensation's the standard judicial remedy for that is to forbid taking. >> whether it is that taking point, and have been trying to think about whether your argument would apply to other kinds of programs and how it might apply to other kinds of programs. how about programs where the government says give us -- produce records for us. there are lot of programs like that. the government is asking us to turn over stuff. seems to me the government asks to turn over stuff all time in the form of records.
how would that fair under your argument? >> if the government is asking for information this won't be at taking. of the records are historical value as they were it, they want to put them in a museum. >> they adjust physical objects the same way raisins are a physical object and the government wants the records. >> the government does not take permanent possession of records. they asked me to show records to establish my tax deductions. i show them the records, they see the information it is not a taking. >> the government could ask you to deliver records to them. >> i did not say that. they can ask me to do that and it is not a taking unless they have taken permanent interest. if they stole the records, the
way they sold the raisins. >> they're keeping the records. >> if they are keeping the records forever i am not sure but i doubt very much that would be a taking. the value of the records is the information which is what i assume it is on a regulatory program. we are not talking about actual -- >> there are cases of government all the time in criminal cases takes control of valuable objects for evidence and sometimes keep it forever and ever and in those cases i think there's a taking. government can take so long as reasonably necessary. you have a valuable diamond ring which is evidence and the government keeps it but keeps the only force along as -- complicated sets of rules for contraband and having to do with
property used to some instrumentality of a crime and so forth but this is extremely far afield from raisins which are a valuable piece of property. >> why is it far afield and you even said information is no problem. people have no property interest in informational the time and if the government says you have to give us that information which counts as property why is that not subject to your move? >> information can be property when it is intellectual property for example. trade secrets can be property. i don't think ordinary record such as the irs demand from taxpayers for the taking. >> where we said that turning
over. and the privilege of selling other commodities, pesticides. how do you deal with that case? >> there is broad language in that case which this court cut back on, in nolan the court held it could not stand for the proposition in the formative benefit simply to allow the property, and the government grant of a benefit. >> getting $63 for what you selfing is. >> the taking itself is absolutely no value to the
producers or anyone else other than those who receive export subsidies from the sale of the raisins. they are the only ones who benefit from the actual -- >> you couldn't do it. you would have a product that would be valued less except that which you could eat at home, you give that up for sale. they gave you the raisins and would you be able to export demand that the government subsidy? >> my clients are not actually in the export business. if my clients were selling raisins for export, they would be entitled to receive the export subsidy that is not the business they are in. >> you couldn't sell that commodity. if they say to producers 60% this year.
what would you do with the raisins? the way other programs fall under control is in an initial reserve comes as market conditions develop more information is available, the owners of the product are permitted to release more and more into the market and -- >> it goes the other way. >> that would be different, that would be a different case. if it went complete these the other way it could well be the harrison frazar inns receive no money at all but it is still the restriction on their use, the reasons haven't been taken from them. in this case the raisins were taken from them and the government sells them and one of these years the government was able to sell or raisins for more than the field price.
>> in my thinking very still what we do about this side. the recent there's a curlicue on the case, what i am thinking of, imaginary plan. i don't think i will last. i will figure out myself. >> thank you. if there are no further questions on reserve my time for rebuttal. >> thank you, counsel. >> mr. chief justice, may it please the court, petitioner's isolate one feature of a comprehensive program regulating commercial marketing of fungible agricultural products, a regulatory program established with producer approval and established for their benefit, a cooperative program among secretary, producers and handlers. the reasons are not put into the program for the benefit of the government, they are put into the program for the benefit of producers and they enter the
stream of commerce. a producer is affected. >> you are really helping them. >> their benefit, they wanted this, didn't they? >> these petitioners do not want the program but the program was established on the premise that it is for the benefit -- >> one little feature of an overall program. that feature happens to be the taking of reasons. you can have a lot of features, no objection to having many features but where one of them is the taking you have to justify it by just compensation. >> the question is whether it is a taking. >> you used to say it isn't taking it involved personal property believe real-estate. >> that is not in our petition. we have not argued personal property is not subject to just compensation clause such that if the government came in and took
someone's car the government has not taken -- let me just if i could set this up and explain how it operates this program operates only when the producer, the grower has voluntarily submitted, committed raises to the stream of commerce. they have put into this string turned over to the handler, the marketing regulates only the conduct -- >> the government can prevent you from putting something into the stream of commerce can charge you. >> the government can attach reasonable conditions. >> that is the lesson which i think -- >> a constitutional condition without just compensation, would be an unconstitutional condition for putting something into the stream of commerce. >> that analysis would apply if there was the taking on the
nolan boland analogy for example. >> any limit to that argument? there are some examples in the briefs that are startling. the government said the manufacturer of cellphones you can sell cellphones but every fifth one you have to give to was for a manufacturer of cars you can sell cars in the united states but every third car you have to give to the united states. >> that would present a different question. >> why would it be different? >> this is part of a comprehensive regulatory program. it isn't just acquiring -- >> if the government to call because it would be okay just not a third. >> we are not saying that at all. if i could just -- >> before you do, the rationale the government can come up with rationale to justify those examples easily. you say cellphone provide is benefit greatly if there's a broader cellphone market of more people using them so we will take every fifth one and give it to people who might not be able
to afford a cellphone and that will help cellphone manufacturers more people will want them so it is okay. this is the good of the people whose property we are taking. >> these programs go back to the 30s when the agricultural industry was in serious trouble particularly in california. prices were below cost of production and you can do what you have done in most of the marketing orders which is not take raises. instead say you can plan 63% of your acreage this year or you can only produce 20 tons. that is how most of the work. they're analyzed under penn central. this is different because in come up with the truck and take your raisins in the dark of night. >> that is not what the government does.
the way the order operates is if the producer submits raisins to the handler, the handler divides them into two categories. to maintain and separate the reserve raisins but they're separated for later sale, they don't go to the government, they are separated for later sale. >> what the mean they don't -- not the government only, d. deny the government owns them? >> for these purposes, for purposes of the case we can see the government gets legal play off of them but that doesn't mean the government has the entire interest in the raisins. it has legal title suppose that -- forced some purposes of this case, the committee, the secretary of agriculture, the committee consulted raisins, proceeds of those sales are pooled and distributed back to the producers.
>> how much did these petitioners acquire in the two years at issue here? how much money was given back to them? >> in one year there were $272 per ton. in the other year there were no proceeds because the cost of administering the reserve program exceeded there was no net proceeds after words. >> over the history of the program, how many years when the program was in effect? welker distribution to growers? >> i do not know how many but a great number of years. the three years leading up to this particular time, one of the years was $47 million was returned, in the prior year's it was $57 million and another
$30 million so the experience has been that -- >> justice of the know about what ever. every telephone you have to give to the government. you've ventured if they're taking -- what is the basis? >> this is a comprehensive governmental program. it governs quality it governs timing of sales and it is important to recognize that is all that is going on here. the reserve raisins are set aside by the handler. after the producer voluntarily turned them over there set aside for later sale petitioners conceit in their brief it takes 23 government can regulate the manner and channel of sales, that is what the reserve program
does, turned over to the handler and handler sits on the side and reserve and the committee decides when and where to seldom. >> this is a historical quirk you have to defend. you can achieve the government's objectives like you do in most other cases through bond limitations that don't require physical takings. for whatever reason in the history of the new deals this was set up differently so we are here dealing with a classical physical taking. we are not going to jeopardize the marketing, agriculture department marketing order regime. the department of agriculture takes these, you said it was the rays in committee or you have trouble in the government speech cases where you make the point these committees are -- we are not saying a committee is not the government. but the operation of the program is not for the government's benefit but the producer. >> look. this is -- i am having trouble
with the same thing. go back to the new deal. the point is to have fewer raisins. and to raise $100 a pound or bushel to 400. that was fought to make the farmer better off which it did and it made the customer's worse off. someone had a good idea. it is wasteful to burn raisins. let's take the reasons we would otherwise burn and give them to school children and we could sell a few. if we do we will get that extra money to the farmer too. now we have school children with raisins we have the farmer having more money. sounds like a good program, you have taken some raisins. what i don't see is how either the farmer or schoolchildren are any the worse off. if they are no worse off, what
compensation are these farmers entitled to? free riders would become yet better off and could charge at the higher price the program creates a hundred dollars. that isn't the issue because you have to have as a rule no free riders and to admit that as a rule, everyone including perhaps these plaintiffs are better off. that is a simple argument. the fdr, the 1949, yet we have endless cases, complexities and opinions and fines, so i am probably wrong in the simple argument. i doubt i am wrong. i want you to explain that. >> it is not --
>> it is not a take. it is the regulatory program classically analyzed, there's a reciprocity of advantage. one of the phrases this court has used among producers. this does not distinctly affect the petitioners. applies to all producers, if petitioners are correct since 1949 every year there has been a reserve requirement. every producer has had a purse say taking. >> i largely agree with what the chief justice said, the way i think about this program this does seem a weird historical anomaly. am i right that all the rest of these agricultural programs are doomed grimsley such that saying this would not affect other agricultural programs and also are there any other programs for get agricultural programs but any other programs
out there that we should be concerned about if we were to think about this as a taken? >> with respect, agricultural programs, there are tweet or ten programs that reserve provisions and then. most of those are not active in the sense of reserve like this one is not and if this one has outlived its usefulness the committee has not proposed a reserve requirement, the program is working like it should. the committee which is responsible decided not to impose a reserve requirement. >> you said there were four ten other programs you said they have -- >> like this one, provisions permitting use of a reserve system unlike this one they are not actively utilizing. >> early enough to actively utilized. >> i think most of this has been in the last decade. i don't know precisely. one of the things that happened in this industry in the last ten
years is it has changed quickly. you will see from the brief filed by sun made and the reason bargaining association they'd leave the reserve requirement should no longer be instituted but they also believe petitioners should not be permitted to be free riders on this program. >> what of non agricultural programs. are there regulatory programs where the government says produce something that is characterized as property? >> the most immediately relevant one which this court sustained was where you were asking about records and information. that is the case in which there was a condition for marketing pesticides. the manufacturer had to submit information to the epa. >> anything else out there tell me what the realm of regulatory programs is, we ought to be
concerned if we were to say something like the production of stuff that somebody claims a property interest in is taken. >> not specifically aware of other programs that the requirements of the information to the government, for example is widespread and in our society what the court basically said was if it was known before the entered connors and applied application, if they knew the material would be disclosed or used by the government for approving other applications -- >> they can prohibit the introduction of harmful pesticides into interstate commerce i'm not sure it can prohibit the introduction of reasons. dangerous raisins. i can understand imposing that condition, that would not be an unconstitutional condition.
>> it is imposed on raises. >> the court's rationale was not a sunday fact that it was -- the product was a dangerous although that was the setting. was the fact that the manufacturer knew when submitting of the information to the epa that would be subject to disclosure and its property value we've eliminated or appropriated by the government for use in evaluating other applications. >> what you take when looking at your brief, you say producers who are dissatisfied with reserve, a pretty audacious -- if you don't like our regulations do something else. >> that is not the only option they have. they have the option of selling rate for other purposes. >> these grapes, the
overwhelming majority have a variety of uses and that is one of the things a grower will take into account. >> if you don't like regulations you can challenge them in court to see if they comply, the answer is always you can do something else and we will never have these kinds of cases. >> this is the point i am -- there's market regulation, people who are growing crops and operating under the marketing order for 30 years before they channel all of that. >> justice kennedy, given the taking is okay everything will work out. >> the fundamental argument is it is not taking in because the borrower voluntarily submit the
total amount of its reasons to the handler. the handler separates them into two quarters one to be sold now and want to be sold later but they both have to do with timing and regulation of sale which petitioners acknowledge the government can regulate the timing and manner of sale. there are two markets. one is the free market, the other is the regulated market for exports, other outlets that do not compete with the domestic market. >> if we say the pledge of allegiance in public schools, if you don't like it go to a different school. i don't understand why it is not the same analysis here. this may be taking of reasons but if you don't like it grow something else. >> it is not the only case. 1 cut back on a rationale, we do not regard the ability to build
a house as a governmental benefits. it did not say, it reaffirmed the idea of an exchange where the government was giving a benefit of clearing the product for use. to interstate commerce is a government benefit. >> the regulatory program is a governmental benefits. >> the regulatory activity which is subjected to this thinking, the introduction of state commerce, that is something of a benign government can give or withhold. >> permission to do it which is where the court says but it is not the only case. for real property, that was a case involving mobile home park and claimed it was the taking of there because the mobil part-owner was subject to rent
control and it was argued that was just like loretta because it was a force physical occupation and the court said no. the critical distinction was they voluntarily chose to enter the rental market to enter promotional transaction and the government because they voluntarily had done it, regulate what was being charged. >> mr. mcconnell was asked about the lender case. i take it you don't think the leonard case has an important bearing on this case. a passing reference on the issue of fungible good. am i correct? >> we are not -- >> you did not suggest this case is just another version of leonard and we should affirm based on learned? >> it was tax, this was not
identified as a tax public because raises don't come to the government. the raisins are going into a pool that belongs to all of the producers and divided up among the producers. these are not as appropriate for the government's own use but leonard is clinically instructive from the point with respect to property like this, the oyster shells are like raisins and what the court said is they are fungible and their only value is commercial sale. this is not the ownership of real property which is unique and personally identified. these races are valuable only for sale. >> the regulatory aspects and program aside to. it said the government says to the racing industry, we could tax you and say you have to
deliver 2% of your net profits. we are not going to do that. we will take 2% of your raisins. would that be constitutional? would that be taking? >> that would be like leonard. it would be an unkind tax. i don't think anything would prohibit that being done. and we think the fact that that would be ok is instructive as the court's discussion of leonard suggests. >> you said you don't think of this case in that way. why don't you? >> it is an analogous in the sense that congress may be able to do this in fact we. the reason i said was different is the wisters, the reasons are not being used for the government's program. they do not go to school lunch programs. it doesn't -- >> we don't usually allow committees and producers who
call the government to impose taxes. that is usually done by congress and this is done by some committee. >> the committee elected by producers, they can impose taxes you are saying. >> the government may be able to impose something some exaction as a tax that this is a regulatory program adopted by producers. important to recognize, and marketing orders to producers, i have to be bound by. and the disagreement does not convert into a taking coin. >> it converts into taking but doesn't carry much water, to say it is adopted by producers.
>> the premises on which congress enacted the statute in 1937 operated then and operate now for the benefit of producers. to calibrate whether the benefits outweigh the burdens. >> central planning in 1937. >> it will be modified and the committee decided not to impose. >> the government sells these for the benefit of the producers. >> they think they can do a better job selling them. they can get a better price.
this is standard regulation. you have to sell in the manner of the program. >> you can't call them raisins and have safety inspections. we silver raisins and give some of what is left to the producers. >> there are two pools of raisins. there are two different schools of reasons that may very. you have the free tonnage reasons which the growers immediately pay for and handler can put on the market but there was a judgment made when the marketing order was established
and son made and the race and association believes it was still true in those years that if you have the big surplus as there was a around the turn of the century it would make the prices plummet if the extra raisins were put on the open market because demand for raises elastic. what the marketing order does his estimates would be free tonnage estimate will be and that is completely open to the market. reserve reasons are essentially value less because you don't need them to satisfy the existing market. we take them off the market to prop up the prices of the freed tonnage reasons and the committee will sell from when they will not undermine in a manner that will not undermine -- >> the program that was carried out with respect to real property. would you provide that? suppose owners of real property
in of particular area think the value of their property would increase if they render a certain amount of that property to the government for the purpose of producing, creating a park or for some other reason? or they get the municipalities to set up this program and one of them object to surrendering this part of that person's his or her land, would that not be at taking? >> the property would be fundamentally different. >> you said you are not arguing about the difference between real property and personal property? >> not saying there is a categorical difference but the lucas decision is instructive. the court was talking about the ability to regulate real property and said there's a difference between real property and personal property at least personal property being used for commercial purposes which would be rendered value list by virtue of government regulations. >> what is the limitations?
>> six years i think it would be. >> has there been any reserve? >> the last one was 2009-2010. i wanted to correct one fact. explain why the market for raisins is in -- elastic. people won't by more reasons if they are cheaper? >> that is correct. it is the quality of raisins and there is a limited set of outlets. raisins are primarily used as food ingredients in raising brand and things like that. the price doesn't affect demand and therefore if you put a great surplus on the domestic market the prices will crater. this has a very sensible approach. >> you don't have to convince us this is a sensible program for you to prevail. >> we do not. >> this is ridiculous program.
isn't that right? we could think it is a ridiculous program. one that has been around since 1949. >> the argument again means every growers in 1949 has -- >> i would rather -- >> you acknowledge -- >> it is not but let me be clear a ridiculous program. >> this is a serious point because the ridiculousness or sensible less of a program is not for us to decide. >> i agree with that completely. this is a regulatory program and should be part of the regulatory source. >> your answer wasn't clear. marketing orders of this sort, have any others been operative as this one has been?
how many -- >> most of them are not operative in the sense of the reserve, my understanding is the reserve provision has been triggered. >> showing the reserve? >> i think it is true maybe of several others. i am not sure, some have to do with the handler the difference between the handler and the producer. go ahead. i want to correct a factual error on the contemplation obama in one year there were a $10 and because of the mathematical calculations, the claim was the petitioners would be better off without the research for. is not correct and the mistake was the assumption all the raises would have been sold at the field price if they were all put on the market and that is inconsistent with the premise of the order. the only reason there is a high price for the free tonnage raisins is the other ones are taken off the markets because they would not have been
recovered in that way. >> how many of these programs are there? of marketing orders? >> there are scores of them. >> eight to ten in relation to how many. >> i don't know the total number but we can follow up with a supplemental leather. i think -- this is not fundamentally different from the others and government has not acquired these reasons for itself. the government doesn't actually keep them in its possession, just tells the handler to keep them and sell some later rather than selling them now and that is not an appropriation. >> thank you. you have five minutes remaining. >> thank you mr. chief justice. several things have been cleared up. the government does concede the government takes legal title to the raisins. the government does --
>> to the extent of taking formal titles as meaningful with respect to actual control or actual benefit these take the title and put it in their business for the benefit of the beneficiary. >> that is true, but the taking -- the government is not a trustee year. >> informed, yes. to sell to reserve raises at the best price it can get. it is in limitations on the free-market. >> it is for the best price and uses the proceeds for the regulatory purposes. >> you have four minutes in rebuttal and another points. >> as to the factual point it is not a calculations based upon selling all of the raisins at
the field price and calculations based on being able to sell all the reasons that the price of the secretary has said would be the price in an unregulated market which is $747. for a time, it is certainly not true that these reserves raisins are valueless, they are an extremely valuable commodity and most of the years the producers of the reasons received absolutely nothing for them. the important point is if it is not any less of it taking even if there's a benefit i have no doubt for example that the value of the apartment went up because there was the cable, it became cable ready but that did not make it any less of the taking as this is the per say taking and many benefits only goes to whether there might be some kind
of implicit compensation as a result of the benefit but this is an eminent domain proceedings but that might be relevant. this is in fact administrative enforcement action in which the department of agriculture was entitled under the constitution to demand the raisins or monetary equivalent without any payment of compensation? >> why not make that argument? >> you are better off, it said. >> is that -- >> the regulation. if you look at 7 c f r 989.166, you will see that that is the provision for what happens when the handler does not turn over
reserve raises to the department of agriculture. has very specific provisions and there is no provision for implicit income compensation. >> the fact that all the raisin producers because of this program including you, no free riders. that is the compensation. >> can they argue that? >> under this regulation i do not think it is open to the department of agriculture joy argue that. i think that would be a logical argument if this were eminent domain proceedings and we were trying to figure out what the proper value of the reasons is. reserving the point that we believe this program does not benefit the producer, and it makes the producers demonstrably worse off. the only people who benefit from this program are the recipients of the subsidy of the export subsidies.
>> the exporters. >> the very first thing you said in this argument, you said typically the handler doesn't take a product and the handler doesn't pay for the product and you would think the warns here will only have a takings claim assuming they have a takings claims for the reasons that they produced and not for the reasons of the people produced but you said that is not correct in this case? >> it is not because the check went out from the race and marketing association to the producers for every raisin, not just the free tonnage reasons but for the reserve tonnage reasons as well so the horns are actually the only people with financial interest in the raisins in this case. that is unusual. >> this is probably neither here nor there but what is the impact of the drought on raising producers? do you know?