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Ronald Reagan Presidential Library
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Collection: Roberts, John G.: Files
Folder Title: JGR/Testimony Approval
(09/01/1984-07/31/1985)
Box: 54
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THE WHITE HOUSE
WASHINGTON
September 4, 1984
MEMORANDUM FOR CONSTANCE J. BOWERS
LEGISLATIVE ANALYST
OFFICE OF MANAGEMENT AND BUDGET
FROM:
ASSOCIATE COUNSEL 128R TO THE PRESIDENT
JOHN G. ROBERTS
SUBJECT:
DOJ Testimony on H.R. 6056,
"Coastal States Marine
Resources Conservation Act"
Counsel's Office has reviewed the above-referenced
testimony, and finds no objection to it from a legal
perspective.
ID #.
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
o . OUTGOING
H . INTERNAL
I INCOMING
Date Correspondence
Received (YY/MM/DD)
/
Name of Correspondent:
James Murr
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: DOJ testimony on H.R. 6056,
"Coastal States Marine Resources Conservation
Act."
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
Culture
ORIGINATOR 84,09,04
1 1
Referral Note:
CUAT 18
R 84,09,04
584,09,04
Referral Note:
3:00
1
/
/
/
Referral Note:
1
/
/ /
Referral Note:
/
/
1
1
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A - Appropriate Action
1 Info Copy Only/No Action Necessary
A
Answered
Completed
C - Comment/Recommendation
R . Direct Reply w/Copy
B Non-Special Referral
Suspended
Draft Response
$ For Signature
F
. Furnish Fact Sheet
X interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code
Y
Completion Date
Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
TOTAL = 30 pages
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
September 4, 1984
SPECIAL
LEGISLATIVE REFERRAL MEMORANDUM
TO:
Legislative Liaison Officer
Department of the Interior - Norma Perry (343-6797)
Department of Commerce - Mike Levitt (377-3151)
Department of State - Cy Alba (632-0430)
Council on Environmental Quality
SUBJECT:
Department of Justice testimony on H.R. 6056,
"Coastal States Marine Resources Conservation Act."
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
A response to this request for your views is needed no later than
3:00 p.m. - Tuesday, September 4. (Hearing is September 5.)
Questions should be referred to Constance J. Bowers (395-3890),
the legislative analyst in this office
James C. Murr for
Assistant Director for
Legislative Reference
Enclosures
CC: Mike Horowitz
Fred Fielding
Scott Gudes
Dave Allen
DRAFT
STATEMENT
OF
RALPH W. TARR
DEPUTY ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL COUNSEL
BEFORE
THE
SUBCOMMITTEE ON FISHERIES AND WILDLIFE CONSERVATION
AND THE ENVIRONMENT
COMMITTEE ON MERCHANT MARINE AND FISHERIES
UNITED STATES HOUSE OF REPRESENTATIVES
CONCERNING
H.R. 6056
THE COASTAL STATES MARINE RESOURCES CONSERVATION ACT OF 1984
ON
SEPTEMBER 5, 1984
DRAFT
DRAFT
Mr. Chairman and Members of the Subcommittee:
I am pleased to appear today at your request on behalf
of the Attorney General to present the preliminary views of
the Department of Justice on certain constitutional issues
raised by H.R. 6056, the Coastal States Marine Resources
Conservation Act of 1984. Because we have only had a brief
period within which to review this bill, and because the
constitutional issues raised by it are multifaceted and complex,
I am not in a position today to be definitive about the consti-
tutionality of this bill in particular, or legislation like this
in general. The views expressed here today therefore can only
be tentative, and are designed simply to provide the Subcommittee
with some assistance in understanding how this bill might be
analyzed from a constitutional perspective. I note in passing
that this bill also appears to raise significant non-constitutional
issues of both a legal and policy nature. Pursuant to the
Department's understanding of the Subcommittee's wishes as to
this hearing, I will not address those issues in my testimony
this morning. Instead, the Department of Justice is considering
the non-constitutional issues and will provide the Subcommittee
with appropriate separate written comments on the bill discussing
those matters.
I. Summary of the Bill and Constitutional
Issues Raised Thereby
We understand the bill to have three primary operational
effects. First, the bill establishes that the commercial
harvesting of fisheries resources 1/ within the internal waters
of each coastal state shall be subject exclusively to the laws
of that state. The term "internal waters" is defined by the
bill to encompass "those waters that are landward of the baseline
from which the territorial sea of the United States is mea-
sured
" 2/ Second, the bill authorizes each coastal state,
in in implementing measures it considers necessary for the con-
servation of any fisheries resources within its internal waters,
to give preference, to the extent it considers appropriate, to
its residents in the commercial harvesting of those resources.
This preference is permitted by the bill if the coastal state
determines that the application of equal treatment to residents
and nonresidents in regard to such harvesting would require
limitations of general application that would be "so stringent
as to render harvesting economically unfeasible."
Third, the bill would declare that no federal law may be con-
strued to invalidate, impair, or supersede the laws of a coastal
state relating to the conservation or harvesting of fisheries
resources within its internal waters, or extend to any non-citizen
1/ The term "fisheries resources" is defined in the bill to
mean "eel, shad, herring, catfish, bullheads, white perch,
striped bass, black sea bass, weak fish, flounder, and edible
species of mollusks, and crustaceans."
2/ We are informed that in most cases this baseline is three
miles from the shoreline.
-2-
of a coastal state any right or privilege granted by that
state to its citizens regarding the commercial harvesting of
fisheries resources within its internal waters. In sum, the
bill would grant each coastal state exclusive regulatory
authority over conservation and harvesting of certain fisheries
resources within roughly a three-mile maritime belt off its
coast. The exercise of this exclusive regulatory authority
could include, at a state's option, giving preferences to its
residents over all other persons engaged in the commercial
harvesting of such fisheries resources. Such preferences
might, for example, take the form of reduced licensing fees
for harvesting activities and equipment, higher allowable
limits upon harvesting, or an exclusive right to harvest
which would exclude non-residents entirely.
The Department of Justice believes that serious consti-
tutional issues are raised by a state's granting of such pre-
ferences under the authority that would be granted by this bill.
Because of the short time we have had to review the complicated
constitutional issues raised by this proposal, and because of
the ambiguity of the legal precedents in this area, we are unable
to state definitively whether or not this bill, and state legis-
lation promulgated thereunder, would be upheld against consti-
tutional challenge. In any event, a more definitive deter-
mination concerning the constitutionality of H.R. 6056, or
any of the subsequent state laws, would have to be based upon
-3-
a careful review of the entirety of the legislative record
supporting the challenged statute including its legislative
history, its factual and policy rationale, and, perhaps most
important, the particular state regulatory context and factual
pattern within which a constitutional challenge would arise.
In the absence of such information, in my testimony this morning
I shall attempt to provide the subcommittee with a brief dis-
cussion of the most important constitutional issues raised by
this bill, and the manner in which those issues generally might
be considered by the federal courts.
II. Constitutional Analysis
A. The Commerce Clause
As you know, the Commerce Clause of the Constitution,
Article I, § 8, cl. 3, vests Congress with the power to "regulate
commerce with foreign nations, and among the several states
"
While the Commerce Clause speaks in terms of powers bestowed
upon Congress, the Supreme Court has long understood the
clause also to limit the powers of the several states to
erect barriers against interstate trade. 3/ The Commerce
Clause limitation upon state laws affecting Commerce is by
no means absolute, however. In the absence of superseding
3/ Lewis V. BTBT Investment Managers, Inc. 447 U.S. 27, 35
(1980) (numerous cases cited).
-4-
federal legislation, states retain wide authority under their
general police powers to regulate matters of legitimate state
concern, even though interstate commerce may be affected
thereby. 4/ In those areas in which Congress has not exercised
its commerce power, i.e., in those areas where the commerce
power lies "dormant," the Supreme Court has articulated a
three-part inquiry to determine whether state laws imposing
burdens on interstate commerce shall be upheld:
(1) whether the challenged statute regulates
evenhandedly with only "incidental" effects on
interstate commerce, or discriminates against
interstate commerce either on its face or in
practical effect;
(2) whether the statute serves a legitimate
local purpose; and, if so,
(3) whether alternative means could promote
this local purpose as well without discriminating
against interstate commerce. 5/
We believe that in the absence of federal legislation on
the subject, state laws mandating the types of preferences
4/ Lewis at 36 (cases cited).
5/ Hughes V. Oklahoma, 441 U.S. 322, 336 (1979).
-5-
authorized by H.R. 6056 would likely be held unconstitutional
under the dormant Commerce Clause. 5a/ A series of decisions
of the Supreme Court establish that the Commerce Clause
"circumscribes a State's ability to prefer its own citizens
in the utilization of natural resources found within its
borders, but destined for interstate commerce." 6/ Indeed,
many Supreme Court cases "have held that the Commerce Clause
of the Constitution. precludes a State from mandating
that its residents be given a preferred right of access, over
out-of-state consumers, to natural resources located within
its borders or the products derived therefrom." 7/ In Hughes
v. Oklahoma, 8/ the Supreme Court held that an Oklahoma statute
which placed no limits on numbers of minnows that could be
taken by licensed minnow dealers and did not limit in any way
how minnows could be disposed of within the state, but which
forbade transportation of any commercially significant number
of minnows out of state for sale, violated the dormant Commerce
5a/ But cf., Tangier Sound Waterman's Assoc. V. Douglas,
541 F. Supp. 1287, 1301-1306 (E.D. Va. 1982) (dictum that
dormant Commerce Clause is not violated by Virgina law
denying non-residents the right to commercially harvest
blue crabs in Virginia's waters; court holds, however, that
the law violates Privileges and Immunities Clause.
6/ Hicklin V. Orbeck, 437 U.S. 518, 533 (1978) (citing cases).
7/ New England Power Co. V. New Hampshire, 102 S.Ct. 1096,
1100 (1982) (citing cases).
8/ 441 U.S. 322 (1979).
-6-
Clause. The Hughes Court recognized the Oklahoma statute as an
attempt to serve its minnow population, but found that the
state had chosen a way "that most overtly discriminates against
interstate commerce." While conservation may qualify as a
legitimate local purpose, the court observed, this legitimate
purpose may be promoted "only in ways consistent with the
basic principle that 'our economic unit is the Nation,
"
The Court concluded that when an animal "'becomes an article
of commerce
...
its use cannot be limited to the citizens
of one State to the exclusion of citizens of another State. " 10/
The situation presented by this legislation, however,
does not present a constitutional issue under the dormant
Commerce Clause. On the contrary, this bill apparently is
intended to be an explicit exercise of congressional power
under the Commerce Clause to regulate the commercial harvesting
of fisheries resources in state waters. 11/ Moreover, it is
"clear that Congress 'may redefine the distribution of power
over interstate commerce' by 'permit|ting] the states to regulate
9/ Id. at 338-39.
10/ Id at 339. See also Foster-Fountain Packing Co. V.
Haydel, 278 U.S. 1 (1928) (Louisiana statute forbidding
interstate transportation of in-State shrimp unless the heads
and shells had been removed violated dormant Commerce Clause).
11/ There is little doubt that commercial harvesting of fish
in state waters, and the movement of vessels from one state
to another in search of fish, are activities which affect
interstate commerce and are subject therefore to congressional
regulation. See Douglas V. Seacoast Products, Inc., 431 U.S.
265, 281-82 (1977) (cases cited).
-7-
the commerce in a manner which would otherwise not be per-
missible. " 12/ In White V. Massachusetts Council of Construction
Employers, 13/ the Supreme Court declared flatly:
The Commerce Clause is a grant of authority to
Congress, not a restriction on the authority of
that body. Congress, unlike a state legislature
authorizing similar expenditures, is not limited
by any negative implications of the Commerce Clause
in the exercise of its spending power. Where a
state or local government action is specifically
authorized by Congress, it is not subject to the
Commerce Clause even if it interferes with inter-
state commerce.
In White, plaintiffs challenged on Commerce Clause grounds an
Executive order of the Mayor of Boston that required all
construction projects funded with city funds to be performed
by a workforce at least half of which were city residents.
The Supreme Court upheld the constitutionality of the Executive
order, finding, inter alia, that "federal regulations for
12/ South-Central Timber Development, Inc. V. Wunnicke, 52
U.S.L.W. 4631, 4632 (U.S., May 22, 1984) (cases cited).
13/ 103 S.Ct. 1042, 1047 (1983).
-8-
[the] program affirmatively permit the type of parochial
favoritism expressed in the order." 14/
The Supreme Court does require, however, that in order
for state regulation to be removed from the reach of the
dormant Commerce Clause, "congressional intent must be
unmistakably clear. "
The requirement that Congress affirmatively
contemplate otherwise invalid state legislation
is mandated by the policies underlying dormant
Commerce Clause doctrine. It is not
merely
a wooden 10rmalism. The Commerce Clause was
designed to "to avoid the tendencies toward
economic Balkanization that had plagued relations
among the colonies and later among the States under
the Articles of Confederation. # Hughes V. Oklahoma,
441 U.S. 322, 325 (1979). Unrepresented interests
will often bear the brunt of regulations imposed
by one State having a significant effect on persons
or operations in other States
....
On the other
hand, when Congress acts, all segments of the country
14/ 103 S.Ct. at 1047. Justices Blackmun and White, concurring
in part and dissenting in part, observed, "Congress unquestionably
has the power to authorize state or local discrimination
against interstate commerce that otherwise would violate the
dormant aspect of the Commerce Clause. " 103 S.Ct. at 1048-49.
-9-
are represented and their is significantly less
danger that one State would be in a position to
exploit others. Furthermore, if a State is in such
a position, the decision to allow it is a collective
one. A rule requiring a clear expression of approval
by Congress insures that there is, in fact, such a
collective decision and reduces significantly the
risk that unrepresented interests will be adversely
affected by restraints on Congress. 15/
In sum, assuming this bill and its legislative history
make unmistakably clear a congressional intent to authorize
discrimination in the harvesting of fisheries resources based
on state residency, we believe the bill would survive consti-
tutional scrutiny under the Commerce Clause. Our research
reveals no instance in which the Supreme Court has invalidated
on Commerce Clause grounds state legislation designed to
give effect to an explicit and unambiguous congressional
15/ South-Central Timber Development, Inc. V. Wunnicke, 52 U.S.L.W.
4631, 4633 (May 22, 1984).
-10-
judgment authorizing a limitation or prohibition upon interstate
commerce. 16/
B. The Privileges and Immunities Clause
The Privileges and Immunities Clause, Article IV, § 2
provides: "The Citizens of each State shall be entitled to
all Privileges and Immunities of Citizens in the several
States." Writing for a unanimous Court in Paul V. Virginia, 8
Wall. 168, 180 (1869), Justice Field characterized the Privileges
and Immunities Clause as a guarantee of equality for all
citizens 17/ within any state:
It was undoubtedly the object of the clause in
question to place the citizens of each State upon
the same footing with citizens of other States, so
far as the advantages resulting from citizenship in
those States are concerned. It relieves them from
16/ See generally Prudential Insurance Co. V. Benjamin, 328
U.S. 408, 423-24 (1946) (Court notes that in each case wherein
Congress authorized state action previously held invalid
under the dormant Commerce Clause, Court has subsequently
given effect to congressional judgment contradicting the
court's own previous one).
17/ The Privileges and Immunities Clause has been interpreted
to protect citizens as individuals, but not corporations or
other artificial legal entities. See, e.g., Western and
Southern Life Insurance Co. V. California Board of Equalization,
451 U.S. 648, 656 (1981) ; Hemphill V. Orloff, 227 U.S. 537,
548-50 (1928); Asbury Hospital V. Cass County, 326 U.S. 207,
210-11 (1945) Paul V. Virginia, 8 Wall. 168, 177 (1869).
-11-
the disabilities of alienage in other States; it
inhibits discriminating legislation against them by
other States; it gives them the right of free
ingress into other States, and egress from them;
it ensures to them in other States the same freedom
possessed by the citizens of those States in the
acquisition and enjoyment of property and in the
pursuit of happiness; and it secures to them in other
States the equal protection of their laws. It has
been justly said that no provision in the Constitution
has tended so strongly to constitute the citizens
of the United States one people as this.
More recently, Mr. Justice Marshall stressed the Commerce
Privileges and Immunities Clause's "norm of comity" in Austin
V. New Hampshire, 420 U.S. 656, 660-61 (1975): "[T]he Clause
...
establishes a norm of comity without specifying the particular
subjects as to which citizens of one State coming within the
jurisdiction of another are guaranteed equality of treatment. "
In interpreting the clause "the Courts have manifested the
disposition
not to attempt to define the words, but 'rather
to leave their meaning to be determined in each case upon a view
of the particular rights asserted or denied therein. McCready
V. Virginia, 94 U.S. 391, 395.
In Baldwin V. Montana Fish and Game Commission, 436 U.S.
371, 383 (1978), the Supreme Court elaborated upon the distinction
-12-
between those subjects as to which equality of treatment
under the Clause was required, and those which were not, as
follows:
Some distinctions between residents
and nonresidents merely reflect the
fact that this is a Nation composed
of individual States, and are permitted;
other distinctions are prohibited
because they hinder the 'formation,
purpose, or the development of a
single Union of those States. Only
with respect to those "privileges"
and "immunities" bearing upon the
vitality of the Nation as a single
entity must the State treat all
citizens, resident and nonresident,
equally.
The Baldwin Court upheld a Montana licensing statute that
imposed substantially higher licensing fees on nonresidents
than on residents, and that required nonresidents to purchase
a "combination license" in order to be able to hunt elk.
Justice Blackmun, writing for the Court, emphasized the
recreational, non-fundamental character of the right at issue.
"Equality in access to Montana elk," the Court declared, is
not basic to the maintenance or well being of the Union.
Appellants do not -- and cannot -- contend that they are
-13-
deprived of a means of a livelihood by the system, or of
access to any part of the State to which they may seek to
travel." 18/
Consistent with the Court's reasoning in Baldwin, states
constitutionally may distinguish between residents and non-
residents for the purposes of suffrage, qualifications for
elective office, and provision of certain services and benefits. 19/
On the other hand, the Privileges and Immunities Clause has
been interpreted to prevent a state from imposing unreasonable
burdens upon non-residents, for example, unequal laws respecting
ownership and disposition of privately owned property within
the state, 20/ and limitations upon access to the state's
judiciary. 21/
The Supreme Court has been particularly reluctant to
approve state-created discriminations against non-residents
that impose significant burdens upon those persons' pursuit
of a livelihood within the state. In Ward V. Maryland, 12
Wall. 418 (1871), the Supreme Court held unconstitutional a
18/ Id. at 388.
19/ See Baldwin, 436 U.S. at 383.
20/ See Blake V. McClung, 172 U.S. 239 (1898).
21/ Canadian Northern R. Co. V. Eggen, 252 U.S. 553 (1920).
-14-
Maryland statute regulating the sale of goods in the City of
Baltimore that discriminated against non-residents of Maryland
by requiring non-resident merchants to obtain licenses without
requiring the same of certain similarly situated Maryland
merchants; by requiring non-residents to pay higher license
fees than those Maryland residents who were required to
secure licenses; and by prohibiting both resident and non-
resident merchants from using non-resident salesmen, other
than regular employees, to sell goods in Baltimore. In
holding that the statute violated the Privileges and Immunities
Clause, the Court observed that "the Clause plainly and unmistakably
secures and protects the right of a citizen of one State to
pass into the other State of the Union for the purpose of
engaging in lawful commerce, trade, or business without
molestation." Id. at 430. In another, more recent case
implicating the right of non-residents to pursue their livelihood
free of discriminatory burdens, the Supreme Court held the
so-called "Alaska Hire" statute violative of the Privileges
and Immunities Clause. 22/ That statute, enacted allegedly for
the purpose of reducing unemployment in the State of Alaska,
required that all oil and gas leases, easements or right-of-way
permits issued by Alaska for oil or gas pipeline purposes
22/ Hicklin V. Orbeck, 437 U.S. 518 (1978).
-15-
contain a provision requiring the employment of any qualified
Alaska residents in preference to all non-residents. The
Court found that the state had failed to show that non-residents
were "a particular source of the evil at which the statute is
aimed," 23/ namely, the state's unemployment problem. Moreover,
the Court was unable to find any substantial relationship
between the state's unemployment problem and the statutory
scheme which granted to all Alaskans, regardless of their
employment status, education, or training, a flat employment
preference for all jobs covered by the statute. "Even if a
statute granting an employment preference to unemployed
residents or to residents enrolled in job-training programs
might be permissible, Alaska Hire's across-the-board grant of
a job preference to all Alaskan residents clearly is not." 24/
The Hicklin Court rejected the State's contention that because
the oil and gas resources that are the subject of the Alaska
Hire law are owned by the State of Alaska, this ownership is
sufficient justification for the law's discrimination against
nonresidents and takes the law totally outside the scope of
the Privileges and Immunities Clause. The Court rejected
Alaska's reliance upon McCready V. Virginia, 94 U.S. 391
(1877), which upheld a Virginia law prohibiting non-citizens
23/ Id. at 526.
24/ Id. at 528.
-16-
of Virginia from planting oysters in tidewaters within the
jurisdiction of the State of Virginia:
Although some courts, including the Court below,
have read McCready as creating an "exception" to
the Privileges and Immunities Clause, we have just
recently confirmed that "[i]n more recent years
the Court has recognized that the State's
interest in regulating and controlling those
things that they claim to 'own'
...
is by no
means absolute. " Baldwin V. Montana Fish and
Game Commission, 436 U.S. at 385. 22
The two cases most relevant to the analysis of this bill
under the Privileges and Immunities Clause are Toomer V.
Witsell, 334 U.S. 385 (1948), and Mullaney V. Anderson, 342
U.S. 415 (1952). In both cases, the Supreme Court held that
State legislation which discriminated against nonresidents
with respect to commercial fishing in offshore waters violated
the Privileges and Immunities Clause. In Toomer, plaintiffs
challenged a South Carolina statute which required nonresidents
to pay a license fee of $2,500 for each shrimp boat working
in the three-mile maritime belt off the coast of South Carolina
25/ Hicklin V. Orbeck, 437 U.S. at 528-29.
-17-
while imposing upon residents a fee of only $25.00 for the
same privilege. 26/ The Supreme Court held this "severe
discrimination" 27/ against non-citizens violated the
Privileges and Immunities Clause. The Court declared:
26/ The Court provided the following background concerning
the statute in question:
The fishery which South Carolina attempts to
regulate by statut[e] in question is part of a
larger shrimp fishery extending from North
Carolina to Florida. Most of the shrimp in this
area are of a migratory type, swimming south
in the late summer and fall and returning north-
ward in the spring. Since there is no federal
regulation of the fishery, the four States most
intimately concerned have gone their separate
ways in devising conservation and other regulatory
measures. While action by the States has followed
somewhat parallel lines, efforts to secure uniformity
throughout the fishery have by and large been fruitless.
Because of the integral nature of the fishery, many
commercial shrimpers, including the appellants, like
to start tralling off the Carolinas in the summer and
then follow the shrimp down the coast to Florida.
Each State has been desirous of securing for its
residents the opportunity to shrimp in this way,
but some have apparently been more concerned with
channelling to their own residents the business
derived from local waters. Restrictions on non-
resident fishing in the marginal sea, and even
prohibitions against it, have now invited retaliation
to the point that the fishery is effectively
partitioned at the State lines; bilateral bargaining
on an official level has come to be the only method
whereby any one of the States can obtain for its
citizens the right to shrimp and waters adjacent
to the other States.
334 U.S. at 387-88.
27/ 334 U.S. at 385.
-18-
[The Clause] was designed to ensure to a
citizen of State A who ventures into State
B the same privileges which the citizens of
State B enjoy. For protection of such equality
the citizen of State A was not to be restricted
to the uncertain remedies afforded by diplomatic
processes and official retaliation
In line with this underlying purpose,
it was long ago decided that one of the
privileges which the Clause guarantees to
citizens of State A is that of doing business
in State B on terms of substantial equality
with the citizens of that State.
Like many other constitutional provisions,
the privileges and immunities clause is not
an absolute. It does bar discrimination against
citizens of other States where there is no
substantial reason for the discrimination beyond
the mere fact that they are citizens of other
States. But it does not preclude disparity of
treatment in the many situations where there
are perfectly valid independent reasons for it.
Thus the inquiry in each case must be concerned
with whether such reasons do exist and whether
the degree of discrimination bears a close relation
to them. The inquiry must also, of course, be
-19-
conducted with due regard for the principle that
the States should have considerable leeway in
analyzing local evils and in prescribing appropriate
cures. 28/
In analyzing South Carolina law, the Court found that the
discrimination against nonresidents was so great that "its
practical effect is virtually exclusionary.' 29/ Returning to
the South Carolina's justification for the statute, the Court
expressed some skepticism concerning its alleged purpose of
conservation of shrimp. The Court noted, for example, that
South Carolina imposed no limitation on the number of resident
boats which may be licensed, and cited State reports which
revealed the state's concern for increasing the market for
shrimp. More importantly, however, the Court found that
there was no reasonable relationship between the danger
presented by non-citizens of South Carolina, as a class, and
the discriminatory provisions imposed upon them. While there
would be little question as to the State's authority to
restrict the shrimp harvest in general, or to restrict the
type of equipment used in its fisheries, or to graduate
28/ 334 U.S. at 395-96.
29/ Id. at 396-97.
-20-
license fees according to the size of boats, or to charge
non-residents, a fee to compensate the State for any added
enforcement burden they may impose, or for any conservation
expenditures otherwise paid by residents through their taxes,
South Carolina could not adopt a remedy "so drastic as to be
a near equivalent of total exclusion." 30/ Finally, the
Court rejected the State's argument, based upon McCready V.
Virginia, 94 U.S. 391 (1896), that wild fish and game
are the common property of the State, as trustee for the
benefit of its citizens, and that the State may discriminate
as it sees fit against persons lacking any beneficial interest
in the trust. The Court expressed serious reservations with
respect to extending McCready beyond its particular facts, 31/
and quoted with approval Justice Holmes' statement that " [w]ild
birds are not in the possession of anyone; and possession is
the beginning of ownership. " 32/
30/ 334 U.S. at 398.
31/ The Court noted, for example, that the rule in McCready
may not apply to "free-swimming fish. 334 U.S. at 402
(citing Manchester V. Massachusetts, 139 U.S. 240, 265 (1891)).
32/ 334 U.S. at 401 (quoting Missouri V. Holland, 252 U.S.
416, 434 (1920).
-21-
The Court's decision in Toomer was expressly reaffirmed
in Mullaney V. Anderson, 342 U.S. 415 (1952). In Mullaney,
the territorial legislature of Alaska imposed a $5.00 licensing
fee on resident commercial fishing in territorial waters,
but a $50.00 fee upon non-residents. The Court found that the
fee did not fall within the principles discussed in Toomer
that might make discrimination against non-residents permissible
under the Privileges and Immunities Clause. 33/
State laws implementing H.R. 6056 undoubtedly would
be analyzed under the Toomer-Mullaney standard. A preference
authorized by H.R. 6056 and implemented by state law might be
approved by a court if such preference were based on something
more than the mere fact of residency. When there are "valid
independent reasons" for disparity of treatment among residents
and nonresidents, and where the degree of discrimination
bears a "close relation" to those reasons, the Privileges and
Immunities Clause is not violated. 34/ We understand that
H.R. 6056 would authorize preferences for residents only upon
a finding by the state that application of equal treatment to
residents and non-residents in regard to fisheries harvesting
would require implementation of harvesting limitations "so
33/ 342 U.S. at 417 (citing Toomer, 344 U.S. at 398-99).
34/ Toomer V. Witsell, 334 U.S. at 396.
-22-
stringent as to render harvesting economically unfeasible."
This rationale for discrimination between residents and
non-residents appears to be based upon conservation and
commercial considerations. Although we certainly can make
no definitive prediction at this time as to how a court might
view this justification and its factual basis, we believe
such a rationale could well satisfy a court employing the
Toomer-Mullaney standard. It would be up to the several
states, of course, to assure that their implementing laws and
regulations conform closely to this rationale. Additionally,
as previously noted, the constitutionality of this legislation
and of state implementing laws and regulations will depend in
large part upon the legislative history of this bill, including
especially the Congressional findings contained therein. We
caution, however, that regardless of the contents of this
legislation and its legislative history, 35/ state legislation
35/ Unlike the case law concerning the dormant Commerce
Clause, the Supreme Court has not, to our knowledge, determined
whether Congress may, through affirmative legislation, authorize
a state to enact legislation which in the absence of Congressional
authorization would violate the Privileges and Immunities Clause.
See generally White V. Massachusetts Council of Construction
Employers, 103 S.Ct. 1042, 1049 n.1 (1983) (Blackmun & White
JJ. concurring in part and dissenting in part). At least one
leading constitutional scholar as stated:
[It cannot be assumed) that Congress has limitless
power to authorize state discrimination against
out-of-state citizens. The privileges and immunities
clause
confers a personal right against state
(Cont. on p. 24)
-23-
discriminating against non-residents will be closely scrutinized
by the courts under the Privileges and Immunities Clause, and
those who would defend such legislation must be prepared to
present persuasive reasons for such discrimination "beyond
the mere fact that [those discriminated against] are citizens
of other States." 36/ Toomer V. Witsell, 334 U.S. at 396.
C. Equal Protection and Due Process Clauses
It is clear that a state or federal law which infringes
upon a class of persons' rights to employment in a major sector
35% (Cont.)
action unjustifiably discriminating against out-
of-state citizens whether or not such discrimination
is congressionally authorized.
L. Tribe, American Constitutional Law §§ 6-31, at 403 n.18
(1978) (original emphasis).
36/ We recognize that some earlier cases have held that the
states have virtually unlimited authority to grant preferences
to their citizens concerning fishing in their waters. See,
e.g., McCready V. Virginia, 94 U.S. 391 (1876) Corfield V.
Coryell, 6 Fed. Cas. 546 (No. 3230) (C.C.E.D. Pa. 1823)
(Bushrod Washington, J. on circuit) (non-citizens have no
right to gather shellfish in New Jersey waters); see also Geer
V. Connecticut, 161 U.S. 519 (1896). We believe the property
right principles underlying these cases have been effectively
abandoned by the Supreme Court in its more recent analysis of
state discriminations against non-residents with respect to
fish and game resources. See, e.g., Hughes V. Oklahoma, 441
U.S. 322 (1979) Hicklin V. Orbeck, 437 U.S. 518 (1978)
Douglas V. Seacoast Products, Inc., 431 U.S. 265, 284 (1977);
Toomer V. Witsell, 334 U.S. 385 (1948).
-24-
of the economy implicates potentially serious issues under
the Due Process and Equal Protection components 37/ of the
Fifth and Fourteenth Amendments. See, e.g., Truax V. Raich,
239 U.S. 33, 41 (1915) ("it requires no argument to show
that The right to work for a living in the common occupations
in the community is of the very essence of the personal freedom
and opportunity that it was the purpose of the [Fourteenth]
Amendment to secure"). In cases in which a class of persons is
disadvantaged -- but not absolutely barred -- from a significant
employment or business opportunity for solely reasons of
non-residency in a particular state, we believe a court more
likely than not would choose to analyze the constitutional
issues under the Privileges and Immunities Clause, rather
than under the Equal Protection or Due Process Clauses. 38/
It is possible, however, that if non-residents were barred
entirely from commercial fishing pursuant to state legislation
or regulation promulgated under the aegis of H.R. 6056 that
the court might consider the claims of such persons under
the Due Process and Equal Protection Clauses.
For example, in Takahashi V. Fish and Game Commission, 334
U.S. 410 (1948), the Supreme Court held that a California
statute barring issuance of commercial fishing licenses to
37/ See generally Hampton V. Mow Sun Wong, 426 U.S. 88 (1976).
38/ See e.g., Hicklin; Tooner; Mullaney cases.
-25-
resident aliens was unconstitutional. The Court assumed for
purposes of decision that the object of the statute was to
conserve fish in the ocean waters off the coast of California
and to protect California citizens from outside competition
in the commercial fishing industry. 34/ The State of California
argued, first, that it was simply following federal legislation
in the immigration and naturalization area which adopted
classifications based in part upon nationality and other
factors. The Court, however, found that a state has "no power
to single out and ban its lawful alien inhabitants
from
following a vocation simply because Congress has put some
such groups in special classifications in exercise of its
broad and wholly distinguishable powers over immigration and
naturalization." 40/ Second, the Court rejected California's
argument that its "ownership" of fish within its boundaries
entitled it to establish an exclusionary rule against aliens
as a conservation measure:
To whatever extent the fish in the three-mile
belt off California may be "capable of ownership"
by California, we think that "ownership" is
inadequate to justify California in excluding
39/ 334 U.S. at 418.
40/ Id. at 420.
-2b-
any or all aliens who are lawful residents of
the State from making a living by fishing in
the ocean off its shores while permitting all
others to do so. 41/
More recently, in Hampton V. Mow Sun Wong, 426 U.S. 88
(1976), the Supreme Court held federal regulations which
excluded all persons except American citizens (and natives of
Samoa) from employment in most positions in the federal
civil service to be unconstitutional. The Court began with
the observation that depriving aliens of "employment in a
major sector of the economy is of sufficient significance to
be characterized as a deprivation of an interest in liberty"
protected by the Due Process Clause. 42/ Based upon the
Court's decisions in Sugarman V. Dougall, 413 U.S. 634 (1973)
and In re Griffiths, 413 U.S. 717 (1973), 43/ the Court
observed that the discriminatory rule at issue would violate
the Equal Protection Clause if adopted by a state. The Court
41/ Id. at 421.
42/ 26 U.S. at 102.
43/ Sugarman held that a New York law which provided that
only United States citizens could hold permanent positions in
the competitive class of the state's civil service violated
the Equal Protection Clause. In Griffiths, the Court, on the
same day, held that Connecticut's exclusion of aliens from
the practice of law was unconstitutional under the same Clause.
-27-
went on to find that the Federal Government had failed to
establish "an overriding national interest as justification"
for a rule excluding non-citizens from such an important
sector of employment. 44/
In sum, we believe there is some risk that a court may
decide to review this bill and implementing state laws and
regulations under the Due Process and Equal Protection Clauses
of the Fifth and Fourteenth Amendments. Should it do so, it
would be important -- just as it is in the Privileges and
Immunities Clause context -- to be able to demonstrate an
important state or national interest which would be directly
furthered by a preference or privilege based on state residency.
Of course, if analyzed under the Equal Protection and Due Process
Clauses, there would not be any issue, as under Privilege and
Immunities Clause analysis, as to whether Congress could
authorize the states to discriminate in a manner in which
they could not if acting solely under their own authority.
This concludes my prepared remarks, Mr. Chairman. Again,
the Department appreciates this opportunity to assist the Sub-
committee in its consideration of this legislation. I would
be glad to answer any questions you or Members of your Sub-
committee might have.
44/ 426 U.S. at 103, 116.
-28-
DRAFT
THE WHITE HOUSE
WASHINGTON
May 15, 1985
MEMORANDUM FOR GREGORY JONES
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
JOHN G. ROBERTS JJR
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Testimony of Victoria Toensing Regarding
H.R. 613, H.R. 665, and H.R. 775
Counsel's Office has reviewed the above-referenced draft
testimony. Although I will defer to the Department, I would
suggest deletion of the carryover paragraph between pages 5
and 6. In my view, it is not even arguable that a law
directed against vandalism at places of worship would
violate the Establishment Clause. The law has a clear
secular purpose -- to prevent vandalism -- and is directed
at places of worship not to promote religion but because
places of worship are peculiarly subject to a certain type
of vandalism. In short, the argument is so weak that it is
not a compelling reason to oppose the legislation, and
should be deleted.
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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
ROUTE SLIP
Take necessary action
TO Fred Fielding
Approval or signature
Adrian Curtis
Comment
Karen Wilson
Prepare reply
Discuss with me
For your information
GMJ
See-remarks below
FROMGreg Jones (x3454)
DATE 5/14/85
REMARKS
Please give me your comments on the
attached by noon tomorrow, 5/15.
Thanks.
cc: Jim Murr
OMB FORM 4
Rev Aug 70
Cary
Kathleen
Suy Junes
STATEMENT
OF
VICTORIA TOENSING
DEPUTY ASSISTANT ATTORNEY GENERAL
CRIMINAL DIVISION
BEFORE
THE
SUBCOMMITTEE ON CRIMINAL JUSTICE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
CONCERNING
H.R. 613, H.R. 665 and H.R. 775
ON
MAY 16, 1985
/85
13:56
NU. DUE
001
Thank you for the opportunity of appearing before the
subcommittee to discuss H.R. 613, H.R. 665, and H.R. 775, all
of which would make it a federal crime for private individuals
to engage in certain violent acts directed at religious
property, or which are intended to interfere with the free
exercise of religion by any person or group. Religious freedom
is one of our most cherished liberties. Interference with the
right to worship in peace is intolerable. Any effort to deter
and punish such disgraceful conduct should merit our support
and praise. It is, therefore, with a sense of acute
discomfort, that I must express to you the objections of the
Department of Justice to these three well-intentioned bills.
Although the bills are similar in many respects, there are
some differences:
H.R. 613 would make it a federal felony to vandalize,
set fire to, or in any other way damage or destroy a religious
house of worship, any religious object contained therein, or a
consecrated cemetery, or religious school, with intent to
intimidate or otherwise interfere with any person freely
exercising his religion.
H.R. 665 would make it a federal felony to willfully
vandalize, deface, set fire to, or in any other way damage or
/
The bill purports to add a new 18 U.S.C. 246. Because
there is an existing section 246, page 1, line 6 of the bill
should be changed to read "Sec. 247."
4/85
13:56
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NO. 002
002
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destroy any cemetery, any building or other real property used
for religious purposes, or any religious articles contained in
any cemetery, building, or real property used for religious
purposes. In addition, the bill would make it a federal felony
to injure or intimidate any person or class of persons in the
free exercise of religious beliefs. Attempts would be covered
and enhanced penalties would be provided for if injury or death
results.
H.R. 775 would add a new 18 U.S.C. 247 which would make
it a federal felony to willfully damage or destroy (1) a
cemetery, (2) a building or other real property used for
religious purposes; or (3) a religious article contained in a
cemetery or such building or real property. The proposed new
section 247 covers attempts and provides for enhanced
punishment if injury or death results. H.R. 775 also would add
a new 18 U.S.C. 248 which would make it a federal felony to
injure, intimidate, or interfere with any person in the free
exercise of religious beliefs. Enhanced penalties are provided
if injury or death results. In addition, the bill would
require the FBI to collect and include in its Uniform Crime
Reports information relating to certain crimes motivated by
racial, ethnic, or religious prejudice. In this regard,
I understand that the Department furnished its views to the
Subcommittee on similar legislation, H.R. 1171, the proposed
"Hate Crimes Statistics Act."
85
13:57
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NO.002
003
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In our view, this legislation would be an ineffective law
enforcement response to the problem of vandalism and other
forms of violence directed at religious groups. Moreover, the
legislation may suffer from constitutional infirmities and, in
any event, will present difficult prosecutive problems.
Traditionally, state and local law enforcement agencies
have investigated and prosecuted crimes of vandalism, malicious
destruction of property and related criminal activity. We are
aware of no information indicating an unwillingness or
inability on the part of local authorities to pursue such
matters when they occur on property occupied by religious
organizations. Moreover, creation of concurrent federal
jurisdiction over offenses traditionally dealt with by the
states often encourages state law enforcement agencies to shift
their attention and resources away from the area of concern.
From a law enforcement perspective, state prosecutions of
such matters would be more certain and more effective. Under
the proposed legislation, the Government would have the burden
of proving the "religious" character of the vandalized
property, and that the accused had the specific intent to
interfere with the free exercise of religion by another person
or group. In a state prosecution, however, proof that the
accused merely vandalized property or assaulted or threatened
another would be sufficient,
In addition, a significant amount of the vandalism of
:eligious buildings and cemeteries is committed by juvenile
NO. 002
004
- 4 -
offenders. The Anti-Defamation League of B'nai B'rith
indicates that the overwhelming majority - more than 85% -
of those arrested for anti-Semitic vandalism in recent years
"have been age 20 or younger, mostly teenagers and juveniles."
(Testimony of Jerome H. Bakst, Director of Research and
Evaluation, Anti-Defamation League of B'nai B'rith before The
Subcommittee on Criminal Justice, House Judiciary Committee,
March 21, 1985.)
Juvenile matters, as you may be aware, are rarely
prosecuted in federal court. When such proceedings are
initiated federally the Attorney General or his designee
must certify to the court that the state does not or will not
assume jurisdiction, or does not have adequate juvenile
programs or services, or that the offense charge is a violent
felony or serious drug violation and that there is a
substantial federal interest in the case, 18 U.S.C. 5032.
The intent of this legislation is to protect the free
exercise of religion by individuals and groups. The First
Amendment's guarantee that "Congress shall make no law
respecting an establishment of religion, or prohibiting the
free exercise thereof," has been held applicable to the states
through the Fourteenth Amendment. Section 5 of the Fourteenth
Amendment gives Congress the "power to enforce, by appropriate
Regislation, the provisions of this article."
~
DUE
000
- 5 -
Taken together, these constitutional provisions
undoubtedly give Congress the power to legislate against the
efforts of any state government to interfere with the free
exercise of religion. However, it has never been suggested
that the Religion Clauses of the First Amendment, of their own
force, prohibit purely private interference with religious
freedom.
The extent to which Congress is empowered to enact
legislation punishing purely private interference with the
various rights secured against federal and state governmental
action by the First and Fourteenth Amendments is an issue
unlikely to be quickly and easily resolved. See, e.g., the
several opinions in United States v. Guest, 383 U.S. 745
(1966). Unless and until this issue is resolved in the
Government's favor, the enforcement of this legislation will
proceed with some uncertainty.
While it is constitutionally permissible for the state to
extend the protection of its police power in a neutral fashion
to religions institutions, the specific focusing of this
legislation upon protection of only religious property and
activities may be constitutionally improper under the
Establishment Clause of the First Amendment. In prosecutions
under these proposals statutes, we could expect to encounter
the argument that Congress is affording a greater degree of
protection to religious property and activity than is afforded
to property and activity in the secular realm. The argument
13:58
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NO. 002
006
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- 6 -
will be made that the proposed statutes advance the cause of
religion, and are devoid of any secular purpose. Moreover,
this legislation will involve the courts in making
determinations as to whether beliefs are "religious" and as to
the sincerity with which such beliefs are held. This kind of
"excessive government entanglement with religion" should be
avoided. Lemon V. Kurtzman, 403 U.S. 602 (1971).
It is important to note that the conduct prohibited by
this legislation is covered, in part, by existing federal law.
Title 18 U.S.C. 1074 provides criminal penalties for one who
"travels in interstate or foreign commerce with intent
...
to
avoid prosecution
...
under the laws of the place from which
he flees, for willfully attempting to or damaging or destroying
by fire or explosive any
...
synagogue, church, religious
center
Unlike the legislation under consideration, the
constitutional basis for 18 U.S.C. 1074 in the Commerce Clause
is clearly articulated. While its constitutionality under the
Religion Clauses has not been tested, inasmuch as it simply
places these institutions on a par with secular entities
("building, structure, facility, vehicle, dwelling house
...
or educational institution, public or private "),
it
should pass muster.
Similarly, there are two civil rights statutes (18 U.S.C.
241 and 242) which, in the event of state action, could be used
to punish interference with religious practices and the
destruction or theft of property used for religious purposes.
14.
13:58
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NO.002
007
95
- 7 -
Moreover, some serious acts of violence directed at
religious property, such as bombings and arson, may be
federally prosecuted under 26 U.S.C. 5861, which, among other
things, prohibits the receipt or possession of unregistered
explosive or incendiary destructive devices, or under
18 U.S.C. 844(1), which prohibits the malicious destruction
by fire or explosives of any property used in or affecting
interstate or foreign commerce.
CONCLUSION
In conclusion, let me state that the Administration and
Department of Justice are dedicated to the preservation of
religious liberty. Nevertheless, for the reasons outlined
above, the Department is constrained to recommend against
enactment of this legislation and does so most reluctantly.
THE WHITE HOUSE
WASHINGTON
July 24, 1985
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
JOHN G. ROBERTS
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Testimony: Court Reform Legislation
Counsel's Office has reviewed the above-referenced
testimony, and finds no objection to it from a legal
perspective.
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