Saxbe v. Bustos – Oral Argument – October 17, 1974

Media for Saxbe v. Bustos

Audio Transcription for Opinion Announcement – November 25, 1974 in Saxbe v. Bustos

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Warren E. Burger:

We’ll hear arguments next in 73-300, Saxbe against Bustos and 480, Cardona against Saxbe.

Mr. Evans?

Mark L. Evans:

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

The issue in this case concerns the proper treatment under the immigration laws of that class of aliens known as green card commuters.

A commuter is an alien who has been legally admitted to the United States as an immigrant with the attendant privilege of residing permanently in this country.

He has chosen, however, not to exercise that privilege, at least for the time being.

Instead, he maintains his residence in Mexico or Canada.

He commutes to work in this country, entering each time on the basis of what used to be a green colored border crossers’ identification card, which like the bluebook that some of us know of has changed colors but not names.

It’s now blue card, it looks very much like a driver’s license, but it’s still called the green card.

This is the immigrant’s alien registration receipt card which is issued to every immigrant shortly after he enters this country.

There are two general classes of commuters, although the lines are not always easy to draw.

First, some immigrants commute on a daily basis to jobs in this country, returning each night to their home, much in the same way that a Maryland of Virginia resident would commute to the District of Columbia.

Second, some commute on a seasonal basis coming to this country for longer stretches of time, usually to work in agricultural labor and then returning to their homes across the border usually at the end of the planting or growing season.

Potter Stewart:

And those liner people could work for one employer, but more usually would work for many employers —

Mark L. Evans:

Usually, that’s right.

Potter Stewart:

— during the period of their presence in the United States?

Mark L. Evans:

That’s right.

They usually will follow the crops.

Potter Stewart:

Follow it, yeah.

Mark L. Evans:

According to the current statistics that have been provided to me by the Immigration and Naturalization Service, there are a total of approximately 50,000 daily commuters of whom 42,000 are Mexican aliens and 8,000 are Canadians.

Warren E. Burger:

Canada is mentioned, is that a very significant factor?

Mark L. Evans:

Is Canada a significant factor, indeed, it is, sir because —

Warren E. Burger:

What are the figures there –?

Mark L. Evans:

There are 8,000 daily commuters from Canada.

There are no seasonal commuters from Canada, but insofar —

Potter Stewart:

— mostly be in the Windsor-Detroit area and in the Niagara Falls area?

Mark L. Evans:

That’s right, mostly, it’s — the majority, I believe, are in the Windsor-Detroit area, but there are spread out over the Northwest and Northeast as well, some daily commuters.

Of the 42,000 Mexican daily commuters, about 15,000 or little less than one-third are employed as farm laborers, the rest are engaged in industrial labor or building a construction work or in sales and service work.

Of the 8,000 Canadians, less than 200 are agricultural workers.

Most, as I’ve indicated, commute from the Windsor, Ontario area to the Detroit, Michigan area.

Mark L. Evans:

In addition to these 50,000 daily commuters, there are about 9,000 seasonal workers.

All of them currently are from Mexico, most of them involved in agricultural work.

The legal issue here is whether these daily and seasonal commuters, each of whom has been previously admitted to this country lawfully as an immigrant, may cross the border to work each day or each season without applying each time for a new immigrant visa, which is the formal document ordinarily required for entry to this country as an immigrant.

If a new visa were required for each entry, the commuter practice could not continue, even if it were physically possible to process 50,000 applications for visas — for visas per day.

The entire annual limitation upon the issuance of immigrant visas to western hemisphere immigrants since 1968 is 120,000 which, of course, would be exhausted in less than three days.

The immigration authorities have followed the practice for 47 years of permitting commuters to enter as immigrants with informal border crossing documents after their initial entry with an immigrant visa.

The lawfulness of that practice under the present Act is determined by Section 211 of the Act, which is set forth at page 80 of our brief and I — it maybe worth referring to it because the language — the case would — turns on the precise language of these sections.

Page 2 — page 80 in the middle is where 211 is set forth.

Part A of 211 establishes the general rule that an —

Byron R. White:

Page 80 —

Mark L. Evans:

Page 80, I feel bad about that after —

Byron R. White:

I hope you do.

Mark L. Evans:

But this is the appendix.

Byron R. White:

Yes.

Mark L. Evans:

So, in Section [Voice Overlap] [Attempt to Laughter] Section 211 (a) establishes the general rule that an immigrant visa is required for entry as an immigrant.

211 (b) establishes the sole exception to that requirement, which permits the Attorney General to dispense with formal documents for “returning resident immigrants” defined in Section 101 (a) 27 (b).

It is therefore the language of that Section 101 (a) 27 (b) upon which this case in our view turns.

That language appears just above Section 211 at the top of page 80.

It is one of the definitions as you can see of special immigrant.

When it is read together with Section 211 (b), it provides that a visa is not required for entry by “an immigrant lawfully admitted for permanent residence who is returning from a temporary visit abroad.”

Harry A. Blackmun:

So, it gets down to whether he is lawfully admitted for permanent residence when he has a permanent residence abroad?

Mark L. Evans:

That’s one of the issues.

There are actually two others because the plaintiffs in this case also argue that he’s not an immigrant and that he is not returning from a temporary visit abroad, but this basically comes down to whether actual residence is implied in this definition of a person who can enter on an informal documentation.

Harry A. Blackmun:

I suppose, we’d all be more comfortable if we had a more specific newer statute.

Is there something pending in the Congress to clarify this general area?

Mark L. Evans:

Well, there are — there are a handful, six or so bills pending which would have some impact in one fashion or another upon the commuter practice.

So far as I know, there have not been any reports by the relevant committees that have been submitted as of yet.

Harry A. Blackmun:

Is the Service sponsoring anything over there — there are no clarifications?

Mark L. Evans:

No.

But I’m not sure if clarification is needed Mr. Justice Blackmun.

Mark L. Evans:

The phrase defined in Section 101 (a) 27 (b) that we just looked at and the crucial phrase upon which you — to which you pointed is itself a term of art which is defined in Section (a) 20, which is on the prior page, at the bottom of the prior page and on top of the next and that says precisely what lawfully admitted for permanent resident means.

It means, the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant, such status not having changed, there is not requirement in that definition and there’s no requirement anywhere else in the Act that that privilege be exercised in order to maintain the status of a lawfully admitted permanent resident or indeed to become — to have — to acquire the privileges that go with being a lawfully admitted — a person lawfully admitted for permanent residence.

Warren E. Burger:

Do you think that takes care of the next phrase who is returning from a temporary visit abroad?

Mark L. Evans:

No, that doesn’t take care of it.

I think, it certainly bears on it because —

Warren E. Burger:

That language, doesn’t that language sound like someone who’s gone to the South of France for the winter and —

Mark L. Evans:

Yes.

I —

Warren E. Burger:

— the spring?

Mark L. Evans:

— no question that at first blush, it appears to what we refer to someone —

Byron R. White:

Permanently residing.

Mark L. Evans:

Who’s permanently residing here, who has been out of the country temporarily is returning to his home.

Byron R. White:

— because of the things or privilege, but one could not stand to —

Mark L. Evans:

Well, that’s what it would seem.

But when you analyze it, you’ve got three words, temporary, visit and abroad.

Now temporary clearly applies in all — in both commuters — a commuter whether he is residing here in Mexico or in Canada.

Abroad is also without question.

The only word that really carries this superficial implication is visit, and in the context of a commuter who is not a resident here, there’s nothing that really strains the language to say that he’s visiting when he goes home to sleep or goes home for part of the season.

What’s implied in the word visit, I think, is the intention to come back to this country, that it’s a departure for temporary purposes with an intention to return.

And I think that that — while it’s — as the Ninth Circuit said, there’s some strain in the language, I don’t think it’s so severe that we should read the rest of the statute as having been attended to, to abolish this practice we’re going after so long.

Let me add also that there is — I mean, this all seems a little strange, I confess, but the legislative history that underlies the Act itself makes it quite plain that Congress was fully aware that the Service was treating, had a class of commuters that were treated as lawfully admitted permanent residents, although they were residing in foreign contiguous territory and on pages 52-54 of our brief, we’ve set forth the crucial language in the report.

The report that I’m referring to is one that was a product of an exhaustive study by the Senate Judiciary Committee that was the basis upon which the 1952 Act was developed and ultimately enacted.

This was a 900-page report in which the entire field of Immigration and Nationality law and practice was thoroughly examined.

Practices that were inconsistent with what the community thought was good policy were plainly and obviously branded as improper or that they shouldn’t be continued.

The committee regularly made recommendations throughout the report for legislation to correct what they thought was an improper practice.

It clearly and plainly recognizes the commuter practice.

It starts of —

Potter Stewart:

What’s the date of the report again?

Mark L. Evans:

This is a 1950 report as I understand it.

Potter Stewart:

1950.

Mark L. Evans:

1950, but it was — on the basis of that report, the initial Bill which ultimately became a section later, the 1952 Act was — and the provisions are basically the same.

I mean, it’s an important part of legislative history.

No mention after this report was made of commuters in any of the subsequent reports.

At the top of page 53, we have italicized the phrase, a resident alien’s border crossing identification card as the resident alien’s border crossing identification card is issued to an alien, so-called commuter who has been admitted for lawful permanent residence, but who resides in foreign contiguous territory and is employed in the Untied States.

Down further again, the same point is made.

Warren E. Burger:

Do you think this takes care of the South of France, hypothetical –?

Mark L. Evans:

Well, I don’t think this doesn’t address itself obviously to the temporary visit abroad, but I think it recognizes that this practice has been in existence that it’s not necessarily inconsistent with the language that was ultimately adopted by the Congress in 1952 Act.

And I think it’s only proper to read the temporary visit abroad consistent with Congress’ awareness of this practice going on and it’s refusal to abolish it or even to suggest anywhere in this 900-page report that the practice was improper.

Warren E. Burger:

We should have it, Section (b), that we’re talking about was enacted when, in what year?

Mark L. Evans:

211 (b)?

Warren E. Burger:

Yes.

Mark L. Evans:

Well, the original language of 211 (b) was enacted in 1952, but it has been amended and the plaintiffs in 1965 and the plaintiffs — I refer to Mr. Terris’ clients — plaintiffs because we’re cross-petitioners here.

The plaintiffs attach some significance to the change.

Originally, the language read, I’m looking now at 211 (b) where the language appears, “returning resident immigrants defined in Section 101 (a) 27 (b).”

Originally the language read, “aliens lawfully admitted for permanent residence who depart from the United States temporarily” and the plaintiffs have argued that the changes from that language to the present language reflected Congress’ determination that actual residence was required.

In fact, no such purpose can be found anywhere in the legislative history of this amendment.

The plaintiffs argue that a brief exchange, obscure colloquy is what the Ninth Circuit referred to it as, between the general counsel of the Immigration Service and a staff member of the House Judiciary Committee, in which the staff member was asking certain questions about the commuter practice and was getting responses from the general counsel.

They draw from this the inference that two years later in a Bill, it wasn’t even before Congress at the time the hearings in which this exchange took place, were commenced, was intended to be a response to the Service’s, practice with respect to commuters.

Well, it’s very hard to accept that when you look at the reports that are associated with this 1965 Amendment which was a very major piece of legislation.

Nowhere in the report is there any mention of commuters, the reports of the House and the Senate each list 9 or 12 what they call basic changes that are going to be made in the Immigration Act by this amendment.

No mention is made there of commuters.

The House or Senate Report of (Inaudible) Rich says that the rest are minor and technical and it’s difficult for me to comprehend that the relevant committees of the House and Senate would with the stroke of a pen abolish a commuter practice that’s been going on for 47 years, at that time not quite that long, but for quite a long time, without mentioning that it was doing it or without specifying that it had any intention to do so.

And I can’t believe that it would be viewed as a minor or technical change.

There’s a contention made here also that the commuters failed to satisfy the definition because they are not immigrants, but rather non-immigrants.

An immigrant is defined by the Act as any alien who is not a non-immigrant and it is in that sense a negative definition.

If you’re not a non-immigrant, you’re automatically an immigrant.

The non-immigrants are defined in — for purposes irrelevant to this case in Section 101 (a) 15 (H) (ii) which is set forth on page 79 of the brief.

And that states that you are a non-immigrant, if you’re an alien having a residence in a foreign country which — who has no intention of abandoning it, who is coming temporarily to the United States to perform temporary services or labor.

Plaintiffs contend that this fits precisely what — to the situation with respect to commuters.

What they neglect, what they overlook, however, is that there is an additional requirement associated with that category of non-immigrants.

Mark L. Evans:

Namely, if unemployed persons capable of performing such a service or labor cannot be found in this country.

Well, this is part of the definition.

If you can’t satisfy that definition by virtue of the Act’s language at the top of the page here, you are an immigrant, and the Act, in fact, in another section, in Section 214, presumes that you are an immigrant unless you establish that you are a non-immigrant.

The plaintiffs argue that this means, this failure — they don’t contend, let me start there that there are people in this country who cannot be found to perform the labor that the commuters perform.

They claim that the availability of this labor simply means that these non-immigrants can’t enter, they fall into another land.

They’re neither non-immigrants nor they are the immigrants, because if they were non-immigrants, they could come in with non-immigrant visas unless they were otherwise excluded.

They read this as an exclusion when it appears in a definitional section, it’s part of the definition, and the whole structure of the Act is designed to make it difficult unless you comply specifically with the language of the definitional statutes to enter as non-immigrants, non-immigrants who can enter without regard to numerical limitations.

And for that reason, most often, aliens seek to enter as non-immigrants because it’s difficult to obtain immigrant visas.

And for that reason, the Act starts with a presumption that you’re an immigrant, that you can’t satisfy the non-immigrant definition, you’re an immigrant and sometimes that means you can’t come in at all.

Well, in this case, the plaintiffs have argued that this is an exclusionary provision.

It’s not at all and it wasn’t intended to be.

The Act very clearly — excuse me, the legislative history to which I referred before, very clearly distinguished between commuters on the one hand whom they recognized the Service was treating as resident aliens and what they called temporarily agricultural labor on the other hand.

That referred to the labor that had been brought in under a series of special legislation — legislative provisions to relieve manpower shortages during critical times for harvesting and so forth and a determination was made that there should be some permanent provision in legislation to permit this kind of relief of manpower shortages.

But there was no suggestion that commuters were to be put into that category because the committee that was examining the immigration practice realized that commuters were not — were part of the stable labor pool.

They were here and they came in regularly and they were treated under the prior Act as having been lawfully admitted for permanent residence.

It was to expand the existing labor pool that they made this provision of section — subsection (H) (ii), and it was not in any way and effort to exclude aliens — to exclude commuters.

William H. Rehnquist:

Mr. Evans, in the legislative history that you cover on pages 52 and 53 of your brief, where there is an express reference to the so-called commuter.

Is there any indication reading that in its context that it referred to both seasonal and daily commuters?

Mark L. Evans:

No, there’s nothing there is nothing in there that suggests — as a matter of fact, I don’t think the Service at that time had any clear notion of their being a distinction.

It’s not clear from the record the Service’s kept because in those days, there were not — there was no distinction made that there were any seasonal — they may have been or may not have been.

But there’s nothing in the practice or in the history to suggest that seasonal commuters would have been treated any differently than daily commuters.

Daily commuters — as I said the lines are difficult to draw.

Some seasonal commuters stay in the country for some seasons and go back home and commute daily for a while, and it’s a kind of a spectrum and —

William H. Rehnquist:

Well, does a typical seasonal commuter come in, say, in March or April and stay until October or November or does he begin commuting on a daily basis for only part of the season?

Mark L. Evans:

Well, again, there’s a spectrum involved.

Some commuters only make, say, an average of two entries and exits in the course of a calendar year.

They’ll be a planting season and a harvesting season, for example, and in the interim, they will be back on their farm in Mexico.

Others may stay for a shorter period, a week at a time maybe and back for a week.

But there is no set — I can’t give you a typical example.

There are occasions that I’ve seen in reading through the materials that have been —

William H. Rehnquist:

It’s the regularity of the thing that makes them a commuter?

Mark L. Evans:

It’s — right.

It’s their — the regularity of their entry.

If under the Immigration Service’s practice, if a commuter is out of employment in this country for a period of six months or more, he is — he loses his commuter status.

His status is changed, in other words, he loses his status as a lawfully — as a person — alien lawfully admitted for permanent residence.

Potter Stewart:

Now, what’s the statutory justification for that?

Mark L. Evans:

Well, that’s not a statutory — that’s a matter of practice, a matter — the theory has been —

Potter Stewart:

But if you’re right on your statutory argument in the — that’s wholly unwarranted, isn’t it?

Mark L. Evans:

Well, such status having been changed.

This part is where — that’s where it comes from within the statute.

Potter Stewart:

What status — the status says that he’s a resident alien, eligible to be a resident alien, is that it?

Mark L. Evans:

That’s right.

Potter Stewart:

And if he is, he is.

Mark L. Evans:

Well, eligible —

Potter Stewart:

— as per your argument?

Mark L. Evans:

He has the privilege of establishing a permanent residence —

Potter Stewart:

Yes.

Mark L. Evans:

— in this country.

The Immigration Service through its Board of Immigration Appeals early on concluded that the touchstone of a commuter’s privilege is his employment in this country.

That’s what — that’s — that may even be the language they used.

And therefore, if that touchstone disappears, their status disappears.

It has grown up as the practice within the Service and I don’t know whether the courts have ever considered or not, but that is the — that is the way it’s —

Potter Stewart:

But your whole argument, as I understand it is that a resident alien doesn’t mean that.

It means somebody eligible to be a resident alien in that status?

Mark L. Evans:

Yeah, but —

Potter Stewart:

That’s the keystone, isn’t it –?

Mark L. Evans:

Yes.

Potter Stewart:

— of your argument?

Mark L. Evans:

Well, eligible to reside permanently in the Untied States.

Potter Stewart:

That’s what I mean.

Mark L. Evans:

Right.

Potter Stewart:

Well, that’s what I call a resident alien —

Mark L. Evans:

Yes.

Potter Stewart:

— that’s slightly wrong, but eligible to be a resident alien —

Mark L. Evans:

But that — that eligibility is not —

Potter Stewart:

And if he is —

Mark L. Evans:

— not permanent.

That eligibility is not permanent even for those who reside in this country permanently.

Those who come as immigrants and reside for ten years —

Potter Stewart:

Uh-huh.

Mark L. Evans:

— and leave for five years as aliens, lose their status and their ability to come back —

Potter Stewart:

And that is the matter —

Mark L. Evans:

— with an informal document.

Potter Stewart:

That is a matter of statute, is it not?

Mark L. Evans:

I don’t believe so.

I believe, it’s implemented by the regulations.

The regulations are an 8 CFR 211 (b) and they specify what you have to do if you are a resident alien who needs —

Potter Stewart:

In order to maintain your status.

Mark L. Evans:

If you’re leaving for a period of more than a year, you are — I guess, it’s up to a year, you have to obtain a reentry permit, at least that’s what the regulation says.

As a matter of fact the reentry permit, if you are leaving for that shorter time is the green card, but 211 (b) by the way is set forth in the back of our —

Potter Stewart:

— page 80.

Mark L. Evans:

But this is the administrative interpretation implementation of the phrase in the statute, “such status not having changed.”

If a resident alien is out of the country for longer than the period established by these regulations, he loses his privilege of returning to the country on the basis of informal documentations, i.e., a reentry permit or a green card as opposed to a new immigrant visa.

Harry A. Blackmun:

Mr. Evans, as a practical matter, how does the Service stay on top of this continuing employment?

Mark L. Evans:

Well, I satisfied my curiosity about that myself and apparently, the commuters are identified by certain markings on the green card and to the green card is attached a form upon which information is listed concerning the last entry and concerning — well, I gather that what is done is that the — there are indications in code made on these attachments that indicate when it was he was last exhibited evidence of employment.

And when the appropriate period of time is expired, they warned him that the next entry will require new evidence of employment and if he fails to present that evidence the next time, he is not permitted to enter.

Harry A. Blackmun:

Well, take a seasonal worker moving north during the season, he gets up to the State of Washington and the apple crop for some reason is late, so he sits around for a month, does he become ineligible because of that?

Mark L. Evans:

It’s only an absence from the country without employment, that’s the key to ineligibility.

He could stay in the country forever for his life at that point.

Harry A. Blackmun:

Because at the end of the season, the seasonal commuter when he goes back to Mexico is without employment, is he not?

Mark L. Evans:

When he goes back to Mexico?

Harry A. Blackmun:

Yes.

Mark L. Evans:

Yes, but he’s — if he’s out of employment for longer than six months, he cannot reenter as a commuter.

He must — if he enters at all, enter with a new immigrant visa.

It’s the only those seasonal commuters whose absence from this country is less than — for less than six months at a time.

That is as I indicate there maybe two seasons, a planting season and the harvesting season.

They maybe here for several months at each occasion, but they may — they will fall at periods for less than six months between entries.

Warren E. Burger:

Somewhere in the briefs here, there seems to be some reliance and I think in the Court of Appeals opinion, on the fact that certain interpretations of these regulations and practices might jeopardize our relations with Mexico and Canada.

Did the state — does this record show that the State Department took any position on that?

Mark L. Evans:

Yes, the record contains an affidavit by the Secretary of State Rogers, which appears in the Appendix of the petition at page 38-40.

Warren E. Burger:

Not in the —

Mark L. Evans:

That is in the record.

Warren E. Burger:

Not in the Appendix to the brief?

Mark L. Evans:

No, it’s in the Appendix to the petition.

Byron R. White:

When does that happen?

Mark L. Evans:

It was sworn to on the 21st of April, 1970.

We indicate in our brief that we have consulted with the State Department in the time we prepared the brief and we’re told that if the matter became important at some point that they would consider submitting a fresh affidavit.

The same —

Byron R. White:

What was that?

Mark L. Evans:

Same what?

Is that — reaching the same conclusions?

The same conclusions and the same concerns of State Department have been expressed for many, many years whenever the issue has come up.

As long ago, I remember in the — at some point in legislative history of some section, an affidavit or a letter from Secretary of State, Cordell Hull.

In the earlier litigation of the Ninth Circuit, there was an affidavit there too.

There was also an affidavit I believe in 1964 when a case was brought challenging the same practice but was dismissed on the basis of standing.

There too, an affidavit was submitted, I believe, by Secretary of State, Ross.

So it’s not — it’s not something that is varied, it’s something that has been consistent.

It’s not necessarily in other opposing opposition to any change in the practice.

What it is, is a strong feeling that a sudden, as this affidavit states, a sudden judicial termination of the practice which would affect existing commuters, could have a severe impact in our relations with our neighbors.

Harry A. Blackmun:

Well, that’s 4-years-old now, so it isn’t so sudden as —

Mark L. Evans:

Well, it isn’t so sudden, but it would be sudden in the sense that there’d be no phase-out period, which is one of the proposals that is before Congress.

Harry A. Blackmun:

I take it, but even though this affidavit is 4-years-old, it’s still the position of State Department?

Mark L. Evans:

That is our information, yes, as of the time that the brief was prepared.

Byron R. White:

Was the decision below stayed with respect to seasonal —

Mark L. Evans:

I believe that the — there’s no stay that I know of, but I believe —

Byron R. White:

So the practice is terminated?

Mark L. Evans:

No, I don’t — the opinion —

Byron R. White:

The Service isn’t the main —

Mark L. Evans:

Well, the Court of Appeals judgment remanded the case to District Court for further proceedings consistent with its opinion.

So far as I know, no further proceedings were instituted because of the pendency of this case in this Court.

So, there’s been no final judgment entered directing the Service to pick up the green cards for seasonal commuters.

Byron R. White:

Even without to stay?

Mark L. Evans:

Even without to stay.

Byron R. White:

All the mandated the issue–

Mark L. Evans:

I believe, the mandate has, but if you know, I believe that it’s not improper for a district judge in these circumstances to wait until the litigation has come to its final conclusion when there’s litigations pending in this Court.

Warren E. Burger:

Mr. Terris?

Bruce J. Terris:

Mr. Chief Justice, may it please the Court.

Perhaps, the most important purpose of the immigration laws is to protect domestic labor and if either commuters are non-immigrants or they are immigrants who need immigrant visas it is undisputed that they cannot come into the United States.

And the reason they can’t come into the United States is because in either of those eventualities, they need a certification by the Department of Labor, which states that they are not domestic workers available to carry out that work.

And in fact, the Department of Labor has determined, there is domestic labor available to carry out the work of agricultural labor.

Now, it is possible that automobile workers or workers in other kinds of jobs, could come into the United States, either as non-immigrants or as immigrants needing immigrant visas, if in fact they were not — there was not domestic labor available to do the work that they were seeking to do.

But this case involves agricultural labor and it is undisputed, there is ample domestic agricultural labor.

Our basic position in this case is that the statutory language is absolutely clear.

We do not rely on the legislative history.

hat we do argue is that such legislative history is there is, supports our position.

The legislative history is very scant.

The 1950 report is not an affirmation that the commuter practice was legal.

It is part of a lengthy description of existing immigration practices and so what it did is describe and describe accurately that commuters were entering the United States.

I might say daily commuters at that time, there were no appreciable number of seasonal commuters.

Warren E. Burger:

Well, if it doesn’t have, in that effect, is there something in the nature of acquiescence here —

Bruce J. Terris:

Your Honor —

Warren E. Burger:

In the practice with — it having been described by the committee to the Congress?

Bruce J. Terris:

I think that is really the government’s position Your Honor.

Warren E. Burger:

They didn’t describe it that way though, did they?

Bruce J. Terris:

No, they didn’t.

But I think that’s — I think that that’s the heart of the government’s argument.

It’s the — let me come back to that in a moment.

The government in its lengthy brief and in its submission, it doesn’t address the Service’s own description of what the commuter practice is all about.

The Service admits that the commuter practice is an amiable fiction.

It does not fit within statutory language.

It is said that over and over again and it’s cited on pages 45 to 47 of our brief, their description of what the commuter practice is about.

And so despite the effort now to try to fit it within some statutory language, I think, it’s a fair statement that it doesn’t fit very well, if it all, within any statute.

The basic argument of the government is that this is going on for a long time.

Congress has not changed it.

There had been various Bills before Congress at different times to change it and that that ought be reason enough to allow the practice to continue.

Byron R. White:

Mr. Terris, a 140?

Bruce J. Terris:

No, no, 45.

Warren E. Burger:

We were just counting your pages.

Bruce J. Terris:

For example, Mr. Gordon, the general counsel of the Service says, the commuter status and I’m quoting “the devise of convenience” “never specifically authorized by statute.”

There are lots of other statements of that kind and the most frequent description short form is that it’s an amiable fiction.

Of course, how amiable it is really depends on one’s point of view in the litigation.

Let me go briefly through what our statutory argument is, using the same at the back of the government’s brief starting on page 79.

First of all we contend, under Section 211 (b), and that’s the starting point, if they cannot come within Section 211 (b), then they have to have immigrant visas.

Now, 211 (b) starts out by saying that they have to be “returning resident immigrants.”

Now the government admits they’re not residents.

Now, it’s interesting what the government does to — let me just state briefly what the statute says about residence.

Residence is defined in the Act and I quote “as the principal, actual dwelling place in fact without regard to intent.”

William H. Rehnquist:

When you say returning resident immigrants quoting from Section 211, immediately after —

Bruce J. Terris:

Yes.

William H. Rehnquist:

— it’s defined in Section 101 (a) 27 (b).

Bruce J. Terris:

I was coming immediately to that Your Honor.

William H. Rehnquist:

Okay, go ahead.

Bruce J. Terris:

The government argues that the defined in Section 101 (a) 27 (b) means that you look solely to Section 101 (a) 27 (b), and that that definition becomes the only specification that has to be satisfied.

I suggest at the very least, 211 (b) means that Section 101 (a) 27 (b) is intended to be a definition of returning resident immigrants, and that it makes extremely little sense to then read Section 101 (a) 27 (b) to include non-residents.

That what they’ve in effect done is read out of the statute entirely, the phrase resident in 211 (b).

Now, the Court of Appeals agreed with our position insofar as it was dealing with daily commuters, I mean, seasonal commuters.

But it said as to daily commuters, the daily commuters might — could treat their place of employment as their place of residence.

We submit that that is directly inconsistent with the definition of residence in the statute, and residence is explicitly defined as I’ve said to be principal, actual dwelling place in fact without regard to intent.

Now, it seems to me very clear that a place of employment is not a principal, actual dwelling place in fact.

The Court of Appeals also said that some of these commuters had associations and interests in the United States.

Warren E. Burger:

Are you addressing that now to the seasonal or to the daily or to both?

Bruce J. Terris:

I’m addressing daily because the Court or Appeals for some reason, which isn’t entirely clear, did not make the same type of argument for seasonals.

Warren E. Burger:

Do you think the Court of Appeals cut the baby in half, do you?

Bruce J. Terris:

I think, that’s fair Your Honor.

I think, the arguments — to be frank about it, I think, the arguments in favor of seasonals may, if anything be stronger than for dailies, because the daily commuter never even puts down his hat in a dwelling place for a moment in the United States.

The seasonal at least, spends a few months in the United States with a place which might be called a temporary residence in some form.

Now, I don’t think that comes close to meeting the statutory definition of a principal, actual dwelling place in fact, but it least comes a little closer to it than the daily commuter.

Thurgood Marshall:

And it’s possible that daily — they really never paid any taxes of any kind?

Bruce J. Terris:

Well, the daily — no, the daily commuter Your Honor has to pay taxes insofar as he earns money in United States, but that’s —

Thurgood Marshall:

Well, that — aside from that, but they didn’t pay any —

Bruce J. Terris:

That’s exactly right and they’re most — and the commuters —

Thurgood Marshall:

He’s not a part of the community?

Bruce J. Terris:

He is not — they’re not eligible for naturalization which is of course the basic reason to have an immigrant visa.

They are rarely subject to the draft over the last few years, they cannot vote, they cannot hold office.

They’re essentially for all other purposes, treated as — totally as aliens from outside the country and the Service for this one purpose has treated them as if they are residents of this country.

Potter Stewart:

But do I understand there’s one thing on which you agree with the government and only one, that daily commuters and seasonal commuters are really — stand to fall together in this case?

Bruce J. Terris:

I think that’s probably right Your Honor.

The only thing I think that can be said that distinguishes them in the way the Court of Appeals distinguished them, is the difference in the practice, in the length of the practice.

Potter Stewart:

Uh-huh.

Bruce J. Terris:

The seasonal commuter practice as the Service has admitted —

Potter Stewart:

Is much more recent?

Bruce J. Terris:

Is up until which — was in the early 60s, there’s some dispute whether —

Potter Stewart:

And that determination of the Bracero?

Bruce J. Terris:

That’s right.

Now, the —

Potter Stewart:

Except for some few.

Bruce J. Terris:

Except for a few that existed before that, and the Service I think has admitted that and those quotations are in our brief.

The daily commuter practice —

Byron R. White:

Then is the Court of Appeals right about the daily, necessary wrong about the seasonal.

Potter Stewart:

Uh-huh.

Byron R. White:

A fortiori is wrong about —

Potter Stewart:

Uh-huh.

Bruce J. Terris:

Well, —

Byron R. White:

Or do you want it — ?

Bruce J. Terris:

No.

I didn’t — well, it depends on one’s — it depends on why one decides the Court of Appeals was wrong Your Honor.

If the practice, the length of the practice is the crucial question, then the Court of Appeals determination is correct, because there is some —

Warren E. Burger:

Well, is the length of the practice leading to an administrative interpretation of its powers rather weighty in the legislative acquiescence doctrine?

Bruce J. Terris:

Yes, it is.

And I’d like to address myself though to the weight of that how long the daily commuter practice has been in existence.

The daily commuter practice, there isn’t any doubt, in form, has been in existence since the 1920s.

Now the reason I say, in form, is that up until 1952 and really up until 1968, it was genuinely a pure matter of convenience.

The government relies very heavily on an order and I think it’s quoted in the back of its brief, it’s — the Service’s general order, I guess maybe it’s in the petition but it’s a — no, it’s in the back of their brief, General Order number 86 page 83.

That was an order in 1927 which authorized the daily commuter practice.

It authorized it only for non-quota immigrants.

Now, that was critical because what it meant was, this was a pure matter of convenience in the 1920s.

Mexican and Canadian workers have the right to come into the United States as immigrants on a daily basis.

There was no quota.

There was no labor certification necessary.

If they’ve been required to get an immigrant visa everyday, that would have been an obvious burden on them and on the Service and it made no point because they were entitled to one everyday.

Bruce J. Terris:

In 1952 for the first time, there were substantive requirements put on Mexican and Canadian immigrants coming into the country.

For the first time, the Department of Labor could certify that there were ample workers available, and therefore, the immigrant couldn’t come to the United States.

In 1965, that was taken further by saying, unless he found that there were no workers available, then you couldn’t come in the United States.

In 1968 for the first time, a quota was imposed on Mexican aliens.

Now, that’s the time, this period, whether it’s 1968 or 1965 or 1952, one could debate as the crucial date.

But it’s one of those dates anyway that is the crucial time when this practice meant something, because what it meant at that time, for the first time, was that this practice was allowed, was being used to evade substantive provisions of the Act.

And that’s when, in our view, one should start to date the commuter practice, because up to then, it was a matter of convenience, up to then, it could be called an amiable fiction.

After 1952 is when it had substantive ramifications.

Warren E. Burger:

Well, these figures that have been mentioned about the numbers of people involved, of course, don’t take into account the illegals that are coming across the southern border particularly —

Bruce J. Terris:

This case does not involve them in anyway Your Honor.

Warren E. Burger:

Well, do the number of the illegals over the years have any bearing on what the Service did or how Congress reacted or failed to react?

Bruce J. Terris:

Your Honor, in all the reading I’ve done on the subject that the illegals has never been considered the same time as this.

I don’t believe it’s part of the — that it’s been considered at anytime as part of the same subject matter.

I might say on the question of the numbers, the numbers particularly of seasonal is very hotly disputed.

The government’s figures of 8,000 coming across the Southwest border, but there was an amicus brief, for example, which has been submitted by the Farm Bureau Federation in this case which has an estimate, I think, in the hundreds of thousands.

It’s a matter of very great dispute and the government believes that it has very strong controls in the border and knows how many are coming across.

And both the farm workers and the farmers apparently believe those controls don’t really exist and the government doesn’t know how many are coming across.

Let me go back to Section 101 (a) 27 (b).

There is one bit of legislative history which the government has referred to, and the Court of Appeals in the Ninth Circuit referred to as being an obscure bit of legislative history.

In 1963, there was a colloquy between the general counsel of the Service and a staff member before subcommittee, the House Judiciary Committee.

The general counsel of the Service said, the commuter practice was not based on Section 101 (a) 27 (b).

He said it did not come within that section, because it was not a temporary visit abroad.

He said, it came within Section 211 (b).

Potter Stewart:

That copy as I know is in your brief or somewhere else.

Bruce J. Terris:

That’s right.

It’s cited on page 33 —

Potter Stewart:

33.

Bruce J. Terris:

— of our brief.

He said he was relying on Section 211 (b).

In 1965, two years later, in a Bill that obviously came through the House Judiciary Committee, the phraseology of Section 211 (b) was changed, and 211 (b) was modified to refer deliberately and directly to Section 101 (a) 27 (b) which had previously been said, not to allow the commuter practice.

Bruce J. Terris:

Of course, subsequently to that the Service now says that the language in Section 101 (a) 27 (b), does allow it.

Now we submit that in fact what the Service has done, although its practice may have continued unbroken, its basic legal position has changed completely.

William H. Rehnquist:

Well, does the record show about the standing of your clients in this case Mr. Terris?

Bruce J. Terris:

Standing was litigated Your Honor and the District Court found that they did have standing.

William H. Rehnquist:

Well, what does the record show factually?

Bruce J. Terris:

The only — since this was — there was no trial of any kind, either on the merits around them or on any jurisdictional questions, all it has is the allegations that —

William H. Rehnquist:

Well those are taken as true I think.

Bruce J. Terris:

That’s right, but the alleged —

William H. Rehnquist:

— what they alleged?

Bruce J. Terris:

Well, there were two individual plaintiffs in the Farm Workers Organizing Committee.

The Farm Workers Organizing Committee, of course, represents domestic farm workers in the Southwest.

The two individual people were farm workers, one was a US citizen and one was an actual resident alien of the Southwest.

The intervenors were those people who were all from California.

The intervenors were farm workers, domestic farm workers in Texas.

William H. Rehnquist:

All of them employed?

Bruce J. Terris:

Yes.

They were all — well, there was no specific allegation Your Honor.

They alleged that they were farm workers.

William H. Rehnquist:

And it was a class action?

Bruce J. Terris:

Yes, but there was never any —

William H. Rehnquist:

Never any determination — was it a class action on behalf of all citizens, was it?

Bruce J. Terris:

Some farm workers, originally it was farm workers in California than the intervenors, who was farm workers in Texas.

Now in order to fit within Section 101 (a) 27 (b), the commuters have to be lawfully admitted for permanent residence.

The phrase lawfully admitted for permanent residence is used in a number of other sections of the Act.

In all the other sections of the Act, I think, it’s fair to say that it would be almost incredible for Congress to have intended, to have included commuters.

Let me just give one example.

If commuters are lawfully admitted for permanent residence, it comes within a provision which states that a spouse, parent, or child of a citizen or of an alien lawfully admitted for permanent residence, can enter the United States without a Department of Labor certification that no domestic workers are available.

Now, what this would mean is that these commuters could bring in any of their relatives, including their children, and one would have built into this system, a permanent exemption from the Labor certification requirements, because the exemption could be passed on from generation to generation.

Now, the government says, those issues as to the other sections can be put aside for the purposes of this litigation and they can be determined some other time.

But the statute says that this definition of lawfully admitted for permanent residence is a definition for the entire statute.

Bruce J. Terris:

And the House report says, that’s why this very definition is so important, because it does have many ramifications.

And we submit that whatever rule is adopted in this case, has got to be a rule that will apply to lawfully admitted for permanent residence for all of its uses in the statute.

Let me go to the second part of Section 101 (a) 27 (b) which relates to returning from a temporary visit abroad and the Chief Justice had a colloquy with counsel about, whether it goes to a visit into the Southern France.

That phrase actually dates back in the statute until 1921, and there have been several cases decided under it and they are cited in our brief.

And those cases may clear that that visit to Southern France is exactly what the intent was of that kind — of that provision.

It was intended and this is what the Secretary of Labor determined back in 1924 and that was the time when he was the enforcer of the immigration laws and by number of other courts to apply only to persons with domiciles in this country, not just residence, domicile.

Now, it’s obvious that commuters not only don’t have residences, but they clearly don’t have domiciles here either.

Let me turn now to the regulations.

We submit that even if and of course we argue that they don’t, but even if they came within Section 211 (b) and Section 101 (a) 27 (b), they still wouldn’t be admissible.

The regulations somehow were even stronger than the statute, They allow a person to come — an alien to come in without an immigrant visa and I’m quoting “only if they are returning to an un-relinquished, lawful, permanent residence in the United States after a temporary absence abroad.”

Now, it’s hard to imagine how anybody could write language which is more clear that you’ve got to have residence in this country.

Byron R. White:

What was the date on that?

Bruce J. Terris:

1957.

They came after the 1952 statute.

The interesting thing is Your Honor —

Byron R. White:

That the filing was revoked?

Bruce J. Terris:

Until 1952, there were regulations specifically allowing commuters to come in without an immigration visa.

Those were revoked after the 1952 statute.

There was no clear replacement as to commuters.

Then in 1957, this language was adopted.

Potter Stewart:

Now, where can we find this language, is it at the back of or in your brief?

Byron R. White:

It’s got to be in —

Bruce J. Terris:

It’s in our —

Byron R. White:

— in your brief?

Bruce J. Terris:

It’s in our brief, I know, maybe in the government’s too, it’s at the bottom of page 5 of our brief.

And that phrase by the way occurs on seven separate times in that section in the following section of the regulations.

Potter Stewart:

Not inadvertence.

Bruce J. Terris:

Yes.

It’s obviously not inadvertence.

Potter Stewart:

It’s from a — that’s from a court opinion, I take it, un-relinquished —

Bruce J. Terris:

No, I think that was actually first composed by the — in the regulations Your Honor at least I don’t know of the previous use of that phrase.

Now up until this Court, the government has consistently contended, that has consistently admitted that commuters don’t come within that language.

They admitted that in the courts below in this case and in Gooch v. Clark which is the prior Ninth Circuit case on this subject, they not only admitted it, but the Court of Appeals agreed with them.

The government argued up to now, that it didn’t matter whether they came within the regulations.

It said that that regulation was only just permissive of what — of when people could come in, that outside of any regulations, they can allow people into the country under the practice.

Now that position, I think, is so flagrantly wrong, that’s why it’s been abandoned.

It’s wrong because Section 211 (b) makes very clear that the only basis for coming into the country without an immigrant visa is pursuant to regulations, and I think that that is clearly right.

I think that’s the government’s position today.

Now the Government therefore goes back to the language of the regulations, and what it says is, despite that language of un-relinquished, lawful, permanent residence, it doesn’t mean that.

It says it’s not artfully drawn, that what the regulations and that’s their word, that what the regulations really mean is the status of coming in to the United States, but we submit that that’s simply rewriting the regulations that the regulations are clear on their face.

Let me turn now to our argument that these — that most of these commuters are really non-immigrants.

When I say most, commuters who come to this country, took permanent employment, are not non-immigrants.

And when I say that, I’m now talking essentially of nonagricultural commuters.

Nonagricultural commuters who come to an automobile plant in Detroit or some other plant all through the year to permanent employment, are not non-immigrants.

That is clear under the statute.

William H. Rehnquist:

Well, how about an agricultural worker goes from Mexicali to Calexico?

Isn’t he in the same spot?

Bruce J. Terris:

Agricultural workers, I think, were perhaps some rare exception, that don’t — do not have permanent employments in this country.

They come for a few months and generally not even to the same employer as has been described before, they have a lot of different employers.

They only come for a few months of the year.

Then maybe a few months later on.

I think it’s very clear to what they — they come to the United States temporarily.

They do not come for permanent employment.

Now Section 101 (a) 15 (H) —

Warren E. Burger:

Where do you find in the regulation this sort of the statute to support for the distinction you make between available works for the Ford Motor Company, let’s just say in Michigan coming from across the border and some other kind of a worker.

Bruce J. Terris:

Mr. Chief Justice, our argument as to if they are an immigrant, there is no distinction.

I want to be clear about that.

The argument I’ve made up —

Byron R. White:

(Inaudible) require both?

Bruce J. Terris:

Yes.

Bruce J. Terris:

Yes, sir.

The only difference that would apply to them is that an automobile worker might and I don’t know the answer to this might be able to come in the United States because —

Byron R. White:

(Inaudible)

Bruce J. Terris:

No, as an immigrant because he maybe able to get a Department of Labor certification.

Warren E. Burger:

The shortage certification.

Bruce J. Terris:

That’s right.

So that’s the only difference if we assume that they are immigrants.

If they are non-immigrants, my argument is based squarely on the language of subsection (H), and let me just — it’s — well, let me give the exact citation.

It’s on page 79 of the government’s brief, it’s 101 (a) 15 (H).

That states that a person is a non-immigrant, that an alien having a residence in a foreign country, that’s obviously a commuter —

Warren E. Burger:

Let us spot the exact —

Bruce J. Terris:

Okay.

Warren E. Burger:

— place that will find your —

Bruce J. Terris:

It’s right about in the middle of the page —

Warren E. Burger:

Alright —

Bruce J. Terris:

An alien having a residence in a foreign country which he has no intention of abandoning, that so far is a commuter.

Then we drop down to (ii), who is coming temporarily to the United States, he surely is coming just temporarily to perform temporary services or labor.

Now, that requires both that you come temporarily and that the services or labor be temporary.

It’s been interpreted by the Service and we do agree with this that if a person comes to the United States temporarily but to carry out permanent services or labor, he is not a non-immigrant.

So a daily commuter who comes across the border daily and that his visit is temporary but he, if he works in an automobile plant on a permanent basis, he’s not a non-immigrant.

I think, we —

William H. Rehnquist:

How can you come temporarily to perform permanent services?

Bruce J. Terris:

Well, you come many times temporarily but the job is a permanent one Your Honor.

That is the Service’s interpretation of that phrase to and we do agree with it.

Now what the Service says, however, is that’s not the end of the definition.

That the end of the definition is, if unemployed person is capable of performing such service or labor, cannot be found in this country.

Now, we submit that isn’t part of the definition.

That the definition is the description of the people themselves and not the rule which is clearly — which is really an analogous to the rule for immigrants which is in Section 212 (a) (14), which says to an immigrant that if you can’t get a Department of Labor certification, you can’t come in to this country.

This is the analogous provision for non-immigrants.

If the Service’s position were correct, it would mean that different kinds of people coming for in the same way, same temporary basis, some of them could come in as non-immigrants.

Bruce J. Terris:

Some of them would be non-immigrants, some of them would not be non-immigrants, purely depending on the kind of occupation that was involved and even the time a year, there would be no in effect — in effect there would be no general classification of non-immigrants.

And we submit that the definition is the beginning of this phrase, the latter is the condition upon which you can enter.

Warren E. Burger:

You really — your argument, if I’ve followed you and I won’t vouch for that at all, if I’ve followed it, there are really three categories, the daily commuter, the seasonal fellow and then the man who comes everyday on a substantially permanent basis?

Bruce J. Terris:

I think, that’s correct.

Warren E. Burger:

Three different categories?

Bruce J. Terris:

I think, that’s really correct.

Warren E. Burger:

And do you think the first two categories must stand or fall together and the third is outside the reach of this holding, is that correct?

Is the third within the Court of Appeals’ holding?

Bruce J. Terris:

The reason the third is — I think, it’s fair to say that the third is like all other daily commuters allowed to keep coming into the United States.

The third category that Your Honor stated correctly is part of the daily commuter category.

There are no seasonal commuters that come — by definition, a seasonal commuter isn’t — can’t be permanent.

And so it’s part of the dailies.

We have never litigated anybody, of course, but the agricultural workers.

And so —

Warren E. Burger:

So this third category is outside — outside of appeal?

Bruce J. Terris:

I think, it’s really fair to say it’s outside the litigation.

Now, I don’t want to, however, ignore it such that an effect, I say that don’t think about it as —

Warren E. Burger:

Did the Court of Appeals deal with it?

Bruce J. Terris:

No Your Honor.

Let me tell you — let me explain what happened on it.

The Court of Appeals only dealt with these first two categories, seasonal and dailies.

We then said, we thought, based on their wording in describing dailies, we thought that what — the way they described dailies that they meant the dailies who have permanent jobs can continue to enter the United States, but they didn’t meant to allow dailies who were agricultural workers to do so, and we asked for clarification in a motion after the judgment.

The Court of Appeals refused to give clarification and said that it had given — it had explained itself enough and that the district court could deal with that question on remand on the basis of the Court of Appeals’ opinion.

William J. Brennan, Jr.:

In other words, we’re right and we don’t explain it.

Bruce J. Terris:

Well, I rather not categorize that Your Honor.

Thank you.

Warren E. Burger:

Very well, thank you.

You’ve got about three minutes.

Do you think you can clear this all up in three minutes for us?

Mark L. Evans:

Surely.

Mark L. Evans:

I thought I’ve done that originally.

Warren E. Burger:

Well, then perhaps, your brother confused us.

Mark L. Evans:

There is — addressing this last issue first, no legal difference between any of these categories, call them three or call them two.

I understand there to be two.

A daily commuter is someone who comes to this country regularly on a day-by-day basis.

As I say the lines are frequently hard to draw.

Sometimes they come twice a week or three times a week rather than daily, but they are regular commuters.

Some of them come to permanent job.

Some of them come to look for employment everyday or to look for a temporary employment.

It matters not, because the only reason that would make any difference is if you agree with the plaintiffs’ contention here that these people must be treated as non-immigrants if they’re coming to perform temporary service.

It just doesn’t work.

The definition includes what Mr. Terris would like to read as an exclusion.

It is part of the definition that if there are people available to perform this labor, these people are not non-immigrants, they’re immigrants, and the only way they can come into this country is either with an immigrant visa or with an informal documentation like a green card.

So there are two classes as I see it.

I think, they are indistinguishable.

The government’s position as I understood Mr. Terris is to be is that they stand or fall together.

The only conceivable distinction aside from the notion that one class is non-immigrants and the other isn’t is that one practice has lasted longer.

But the practice has not — that seasonal commuter practice grew up really at a time after a series of temporary measures for bringing a temporary labor into the country had expired and it was — it’s not a new legal theory, it was just a new category of workers who took advantage of what was already there for their benefit already.

And I should address briefly also —

Byron R. White:

— your view is, what was right about the seasonal, they were wrong about the dailies?

Mark L. Evans:

That’s right.

If they are correct on one, I think, they are wrong on the other.

I think, the decision cannot be reconciled of the two.

Warren E. Burger:

And you reject the idea of a third category?

Mark L. Evans:

That’s right.

Warren E. Burger:

You say the third category belongs within the first?

Mark L. Evans:

Yes.

The daily commuter, whether he has permanent job here or whether he comes everyday looking for job.

Warren E. Burger:

And in your view, he is a daily commuter, if he comes over to sell some merchandise for three days a week in the United States and three days a week in Canada.

Mark L. Evans:

That’s right.

Warren E. Burger:

Regular commuter might be a better name for him than —

Mark L. Evans:

Well, I suppose if, you know, now that the problem has been explored through litigation that the regulations about which we have some reason to be embarrassed might well be amended and the Service would like to amend those regulations —

Warren E. Burger:

And you wish to defer on decision until you have that opportunity?

Mark L. Evans:

Well, I might say that it was at one point considered whether the regulations should be amended to correct the ambiguity, but it was determined, I think, quite rightly that it would be improper to make such an amendment, while the case is in litigation, and there has been litigation over this issue ever since 1966 when the case was instituted in the Ninth Circuit, Gooch against Clark.

There’s never been a time when we’ve had a chance to make any amendments without interfering with ongoing litigation.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.