Ames Moot Court Competition 2012

[MUSIC PLAYING] JEFF HABENICHT: Good evening, everyone. Good evening. On behalf of the Board of Student Advisers and Dean Minow, I would like to welcome all of you here. Welcome to the 102nd Ames Final Round. Before we begin, I would like to ask a couple of logistics. First, please remember that there's going to be no photography in here during the event. We also ask that you please remain seated during arguments. Please turn off all of your cell phones. And please hold your applause until both sides are done arguing. And as a reminder, there will be a rebuttal after the Respondents. Tonight's arguments represent the culmination of a long journey for all of the participants. The journey began over a year ago in the Q Round, followed into the spring and the Semi-Finals, and then it's probably been, I imagine, a majority of the participants' fall semester this year. At each step of the way, both of the teams have been phenomenal and worthy exemplars of those to come. And tonight, we celebrate all of their hard work. [APPLAUSE] The case before the court tonight is called Go Glow, Inc. v. Sheila Simpson, and was written by Elizabeth Prelogar and Tejinder Singh, both of the Harvard Law Class of 2008. They were unable to join us, but I do want to say that they are phenomenal and some of the best people that I've worked with. And again, want to say thank you to them. Eight months ago, the state of Ames passed a law entitled The Ames Buy American Green Technologies Act. This law prohibits government entities in Ames from purchasing green technologies that are not manufactured by American companies using American-made materials. The current dispute arose when the University of Ames tried to install solar panels across this campus. Originally, the University of Ames contracted with a petitioner, Go Glow to install those panels. However, the University later discovered that Go Glow was owned by a Chinese company and used foreign-made parts in violations of the Ames Buy Green Act. Subsequently, the University terminated the contract and Go Glow brought the current legal action against the respondent, Sheila Simpson, who is the Vice President for Capital Planning and Facilities at the University of Ames. This case revolves around the question of whether or not a state can pass a law preventing government entities from purchasing items not made in America. In particular, there are two issues. First, whether the Ames Buy American Green Technologies Act is invalid as an intrusion on the federal foreign affairs power. And second, whether the same act is invalid under the Dormant Foreign Commerce Clause. Petitioner Go Glow is represented by the William J. Stuntz Memorial Team, consisting of Ryan Doerfler, Cormac Early, Conor Mulroe, Josh Segal, Vivek Suri and Allison Trzop. Vivek Suri and Cormac Early will be presenting the oral arguments on behalf of their team. This is how the team describes their name. Bill Stunz was a professor here at Harvard Law School. He joined our faculty in 2000 and became the Henry J. Friendly Professor of Law in 2006. In March 2011, aged 52, he died of cancer. Professor Stuntz's scholarship explored the causes of the many pathologies of criminal justice in the United States-- erroneous convictions, harsh sentencing, prison overcrowding, racial disparities in incarceration, and more. But Professor Stuntz brought more than a sharp critical eye to the criminal justice system. His scholarship combined empathy with erudition. A devout evangelical Christian, Professor Stuntz counted mercy among the priorities that the criminal justice system often ought to have but did not. Our team strives to honor his memory and the thoughtful, compassionate life he lived. Sheila Simpson, the respondent, is represented by the Gordon Hirabayashi Memorial Team, consisting of Yaira Duden, Emma Freeman, Benjamin Jackson, Michael Lieberman, William Milliken, and Michael Springer. Emma Freeman and Michael Lieberman will be presenting the oral arguments on behalf of this team. The team describes their name as follows. Gordon Hirabayashi was a civil rights icon who stood up for the Constitution and the rule of law. Subject to a Japanese exclusion order during World War II, Hirabayashi purposefully violated the decree in order to challenge its constitutionality. He ultimately appealed his case all the way to the Supreme Court. Although the court ruled unanimously against him, Hirabayashi's bravery inspires those who believe that fundamental civil liberties should not be abridged on the basis of racial prejudice. In 1987, the Ninth Circuit overturned his conviction due to newly discovered evidence proving that the government had known that there was no military reason for the exclusion order but had withheld that knowledge from the Supreme Court. Gordon Hirabayashi passed away on January 2, 2012. Our team honors his memory and the courage he possessed in fighting for justice, no matter how lengthy the struggle or how high the cost. Tonight, the Honorable David Sorter, Associate Justice of the United States Supreme Court, will preside as Chief Justice of this final round argument. Joining him will be the honorable Reena Raggi, who is currently serving on the United States Court of Appeals for the Second Circuit and the honorable Mark Wolf who is currently the Chief Judge of the District of Massachusetts. Best of luck to both the teams, and we hope you enjoy the evening. [APPLAUSE] BAILIFF: All rise. The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez, oyez, oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court. DAVID SOUTER: I guess it's up to me. Please be seated. [LAUGHTER] We will hear argument now in case number 12-152, Go Glow versus Sheila Simpson. Before the arguments begin, I would like to hear from counsel on each side just about the disposition of their time. Counsel for the petitioner? VIVEK SURI: Mr. Chief Justice, and may please the Court. We will each be taking 15 and a half minutes of time, and we will be reserving four minutes for rebuttal. DAVID SOUTER: 15 and a half? VIVEK SURI: That's right. Mr. Chief Justice, the Ames Buy American Act is invalid-- DAVID SOUTER: Excuse me. I'd like to just hear about time disposition from your friends on the other side before we begin. EMMA FREEMAN: Mr. Chief Justice, we'll be splitting our time evenly, 17 and a half minutes between me and my colleague. DAVID SOUTER: OK. Counsel? VIVEK SURI: Mr. Chief Justice, the Ames Buy American Act is invalid because it intrudes into the field of international relations. The principal reason for that conclusion is that the state has taken a position on a question of foreign policy with no serious claim to be addressing any local responsibility. The act's impermissible objective, changing the nation's economic relationship with the rest of the world from one of interdependence to one of independence, is reflected by the act's text, is confirmed by the statements of its sponsors, and its put beyond all doubt by the mechanics of its operation. If the federal exclusivity in foreign affairs means anything, it must mean the invalidation of this law. Now Respondent denies that the federal foreign affairs power is exclusive. So on Respondent's view, states are free to initiate hostilities that don't amount to war, to set up an international spy network, and to establish foreign embassies. This is an astonishing proposition that this Court's precedents have repeatedly rejected. REENA RAGGI: Well, they're willing to see that power limited by preemption of the federal government whenever it chooses to exercise its superior authority. Why isn't that adequate? VIVEK SURI: They are indeed willing to do so, but just because Congress can step in and enforce a constitutional guarantee doesn't follow that this Court shouldn't enforce that guarantee as well. There are three reasons that's so. REENA RAGGI: Well, the guarantee you're talking about is Congress's power to exercise, to involve foreign affairs, right? VIVEK SURI: I would phrase it as the states' disability to intervene in foreign affairs. REENA RAGGI: And where does the Constitution refer to the states' disability to intervene? VIVEK SURI: It's not explicit in the text, just as the anti-commandeering rule, or the coercion doctrine, or the state sovereign immunity are not explicit in the Constitution. All of these are structural guarantees. Now this structural guarantee doesn't just protect the interests of the federal government. There are three other actors whose interests it protects. It protects the states, it protects the president, and it protects the voters. So let's start with the states. Other states in the Union have an interest in Ames not inviting retaliation against the whole country. If a state intervenes in the field of foreign affairs, then those actions will have repercussions that the entire nation will feel. And states should not be allowed to impose those risks on sister states until Congress has consented. Second, let's talk about the voters. Voters have an interest in holding the government accountable, and they can't do that if they don't know which government is producing these foreign policy effects. Now here if states, in the aggregate, end up producing foreign policy effects, then voters across the country won't necessarily be able to hold those states accountable because they won't live there. This Court has said in its anti-commandeering decisions and also in NFIB against Sebelius that protecting accountability is a function of constitutional structure. REENA RAGGI: So is what you're urging us to conclude that there are no limits on a state's ability to intrude itself into foreign affairs unless and until Congress acts? VIVEK SURI: The precise doctrinal test you use to implement the state's disability in foreign affairs is a subject of reasonable dispute. Now what we've proposed is that if a state has no claim to be addressing any local responsibility, if the sole purpose of its law is foreign, is international, then that law must fall because there is no conflict between local values and foreign values, in that context. DAVID SOUTER: Let me ask you a question, which in one sense goes beyond, I think, at least the obviously record material. And it's a question that you may not have an immediate answer for, and feel free to defer your answer to rebuttal if you wish to. But I think it goes to sort of a fundamental difficulty, which I will confess that I have with your position here. We don't have in the record the certiorari material beyond the grant of cert, but I think we can assume that we took this case, made a discretionary judgment to take the case, because there are at this point, as I understand, 20 state Buy American laws out there. And it seemed to the Court that that was enough of a critical mass that there should be a comprehensive review of this growing phenomenon. The remarkable thing about the case, however, as it comes to us now, is that the political entity whose power is being protected, either by the Foreign Affairs Doctrine or the Foreign Commerce Clause, the United States of America, is not here. There is no amicus brief, there is no representation on the part of the State Department. And my question is, when we are asked to make doctrine on an issue as fundamental as this and affected entity is totally absent, wouldn't the better view on our part be simply to dismiss the case because for want of the guidance that the United States might be able to give? This is a judgmental question. And so my question to you is, what-- in existing doctrine or in any specific argument that you're prepared to make, what is the best argument for continuing in effect to take this case and deal with it on the merits? And as I said, if you wish to defer that to rebuttal, you may. VIVEK SURI: I'll answer right now. The best reason for this Court not to take the views of the United States into account is that even if the United States weighed in on Respondent's side, we should still prevail. That's exactly what happened in Zschernig, where the State Department filed a brief saying this law doesn't pose any foreign relations problems at all. The Court still concluded, independently, that it did. So silence by the United States is at least better than weighing in on their side. So in that sense, it doesn't matter that the United States hasn't participated. DAVID SOUTER: That may have been-- Zschernig may have been rather an adventurous attitude on the part of the Supreme Court. The opinion was certainly written by a justice who was no shrinking violet when it came to the exercise of judicial power. And maybe that kind of audacity is not the best course for us. If we decide that audacity is not the best course here, is there a doctrinal or other argument saying that we should in fact charge ahead? VIVEK SURI: Let me answer that in two ways. First of all, audacious or not, Zschernig was relied on by this Court, in an opinion you wrote in 2003. And secondly-- DAVID SOUTER: Not for that proposition, however. VIVEK SURI: And secondly, we-- [LAUGHTER] --we don't have to rely solely on Zschernig. We can rely more generally on the principle well-established in this Court's cases where the federal foreign affairs power is exclusive. MARK WOLF: Well, actually I would like to pick up on that. On page 11 of the respondent's brief, they say that your assertion that the states may not intrude into the realm of foreign affairs because of the federal government's exclusive responsibility relies on a series of cases other than Zschernig, in which there was either a statute, an executive compact, or a treaty-- in other words, some manifestation from the political branches. Now I've read those cases. That appears to be factually accurate. Do you dispute that characterization of those cases? VIVEK SURI: Two responses to that. First of all, that's not accurate with respect to Sabbatino and Holmes against Jennison. Second, even if it is accurate with respect to the other cases they mentioned-- the Chinese Exclusion Case and the Hines against Davidowitz and so on-- the Court still did say that the foreign affairs powers exclusive. That's not mere dictum. That was part of the court's reasoning. The Court said because of the exclusivity of the foreign affairs power, the degree of conflict necessary between federal and state law is lower. In any event, even if it were dictum, it's not some obscure dictum in a case that's buried and forgotten in the United States Reports. It's dictum that's been repeated over and over in this Court's jurisprudence. MARK WOLF: But Zschernig, as far as I can tell, is the primary case and the one case in which there is no statute or treaty or other manifestation of intent from the executive branch. And I have a question related to Justice Souter's question as to whether Zschernig should really be afforded respect under the doctrine of stare decisis or not. It was decided by Justice Douglas on constitutional grounds. There is, to me, a compelling dissent from Justice Harlan. And as Justice Ginsburg said in one of her recent dissents, it's hardly ever really been relied upon by anybody else. So if we're thrown back on Zschernig, a decision of this Court, isn't it a fine candidate, under Brandeis's view of stare decisis, to being corrected now by us. VIVEK SURI: No, it's not because it's not the only case that states that proposition. You mentioned Justice Harlan. Justice Harlan wrote this Court's opinion in Sabbatino, where you invalidated a state law, even though there was no conflict between the state policy and the federal, and any particular federal statute, federal treaty, or federal agreement. So Zschernig is not the sole case. But even sticking just to Zschernig, the fact that this Court relied on that case quite substantially just five years ago-- excuse me, nine years ago shows that this Court certainly doesn't think that it's outdated. DAVID SOUTER: In which decision? VIVEK SURI: Garamendi. DAVID SOUTER: But remember that in Garamendi the case came up in which there was in fact action by the executive branch in the form of executive agreements. In this case, we have no action by the executive on the one doctrine, we have no action by Congress on the other doctrine, and we have not so much as a whimper even as to their views in this Court. So this is not another Garamendi. VIVEK SURI: All right. Let me deal with Garamendi first and then talk more broadly about why the structure and purposes of the Constitution would lead to the same result. So in footnote 11 of Garamendi, you wrote that there are two types of foreign affairs preemption, one in which there is a conflict not necessarily with a specific statute but with federal policy generally. And that type of preemption might be appropriate when a state is addressing some local responsibility. But then you also wrote that if a state is not addressing any local responsibility-- and it is not here-- then Zschernig style field-style preemption might be more appropriate. Now moving more broadly to why you shouldn't just leave it to Congress to act here. Congress can act either way. If Congress wanted to validate state Buy American laws, it could just consent to them, and we wouldn't be here. So you're essentially setting a default rule, and you have to ask yourself, which side do you want to put the weight of legislative inertia on? And I think it's more reasonable to put it on the side where states won't be allowed to impose risks on other states, to infringe on the field of foreign policy, which is usually reserved for the federal government, in a way that'll make them less accountable to the voters until Congress-- DAVID SOUTER: If I-- I think you were first off the mark. REENA RAGGI: Mr. Suri, I want to be certain I understand why you think we need to go into this area at all. Is there any way that we would reject your Dormant Commerce Clause argument in this case and yet be persuaded by your Dormant Foreign Affairs argument? VIVEK SURI: I suppose that is possible, although we think both arguments are persuasive. No, you don't have to-- REENA RAGGI: No, no. But I'm trying to figure out what it is about the Foreign Affairs Doctrine, in particular, that we need to pay attention to in this case that goes beyond anything that the Commerce Clause gives you. VIVEK SURI: Now under the Commerce Clause, you might decide that the state's potential reliance on the market participant exception might be relevant. But here that isn't relevant because the state doesn't have any viable domestic purpose that it can peg its hat on. So no matter what you rule about the market participant exception in a few moments, the law is still invalid because it has no domestic purpose. REENA RAGGI: And you don't think that the market participant doctrine, if we were to still find it persuasive, would have a role to play in the foreign affairs area as well? VIVEK SURI: No, I don't think you would because this is a context in which whether a state acts as a market participant or not, either way, it can cause harm to the entire nation by inviting retaliation against the United States. And this Court has said that just because the Commerce Clause contains a market participant exception, other clauses don't necessarily do so as well. REENA RAGGI: Do you think the Foreign Affairs Doctrine that you're urging goes so far as to preclude a state from sending a trade mission to another country and urging it to buy the products of, you know, Florida oranges or Idaho potatoes or anything like that? VIVEK SURI: Florida and Idaho could, perhaps, pass those particular laws because those would be serving local interests, namely the economy of Florida or Idaho. But I don't think states could send ambassadors abroad to promote trade with the United States as a whole because that's no business of any particular state. DAVID SOUTER: Do you believe that a federal Buy American Act is unconstitutional? VIVEK SURI: No, we do not. DAVID SOUTER: Why is that serving a legitimate public purpose when the Ames Act is not? VIVEK SURI: Because different purposes are legitimate for the federal government and for the state government. And the best case for that is Nyquist against Mauclet which held that encouraging naturalization was not a legitimate purpose for the state of New York, even though, obviously, it is legitimate purpose for-- DAVID SOUTER: Well, I-- you know, I'll grant your premise. But what in fact are the facts in this case? What is the national interest that is served as distinct from the state interest, which is absent? VIVEK SURI: The national interest-- which, of course, must be balanced against the risk of retaliation-- is an interest in promoting the economy of the United States and in protecting American jobs. DAVID SOUTER: Why can't Ames do that? VIVEK SURI: Because Ames isn't protecting itself. It's protecting the nation as a whole, and that is not a traditional, local responsibility. MARK WOLF: The-- you seem to argue in your brief that article 1, section 8-- when it says Congress has the power to regulate foreign commerce-- gives it the exclusive power. But I'm not sure how that's reconcilable with the 10th Amendment that says all powers not provided to the national government are retained by the state. Certainly, it appears to me, that the Constitution was intended to diminish the authority of the states, but I don't see anything of the Constitution that expresses the intention to prohibit the states from doing things that have some impact on international affairs as well as perhaps on national and local affairs, including discouraging global warming, for example. VIVEK SURI: May I answer? I'm over time. DAVID SOUTER: You may. VIVEK SURI: I have two answers to that. The first is the 10th Amendment says that all powers not prohibited to the several states are reserved. It doesn't say expressly prohibited, which is what the Articles of Confederation did. And we're arguing for an implicit prohibition. Secondly, you said in the term limits decision in 1994 that a state can only reserve those powers that it had to begin with. And then in Curtiss-Wright you said, states never had the power to affect foreign affairs or intervene in foreign affairs in the first place. So when you put those two decisions together, the 10th Amendment doesn't even come into play in the first place. Thank you. DAVID SOUTER: Thank you. Counsel. CORMAC EARLY: Mr. Chief Justice, and may please the Court. The Commerce Clause forbids the states from imposing discriminatory burdens and regulations on commerce, whether with other states or with other nations. But that is precisely what the Ames Buy American Act does. It turns away foreign green technologies solely because they are foreign, and it closes markets even to American green technologies if they contain foreign raw materials. Now the state claims that because it is acting as a market participant this discrimination is excused. But that argument does not salvage this law for two reasons. First of all, this Court has never extended the market participant exception to international commerce and should not do so now. DAVID SOUTER: Well, how do we refuse to do it with coherence to the text of the statute of the provision? CORMAC EARLY: This Court has repeatedly recognized-- in cases, like Japan Line, Barclays Bank, and Nordair-- that although textually hooked to the same power to regulate commerce, the international commerce power and the domestic commerce power are distinct And that, in particular, when it comes to state regulations of international commerce, they should be subject to higher scrutiny. And that's because there's a greater risk to the nation as a whole, and there's a lower state interest. And so if I could turn to the greater risk to the nation as a whole, there's a greater risk for two reasons. States actions that discriminate against international commerce are more likely to invite retaliation than state actions that discriminate against both international and other domestic commerce. DAVID SOUTER: Well, let me let me ask you a question, maybe short of the retaliation that you have in mind. If your argument is sound, let's assume there is no Buy American statute in Ames. But when Ames comes to make its decision as to what green technology it's going to buy, it engages in exactly the discrimination that is going on now. No foreign green technology. Does that give the let's say-- or I'll make it an easier question. No Chinese green technology. Is that action, on the part of Ames, a violation of the Constitution? CORMAC EARLY: If that action rose to the level of being a consistent state policy and practice, it would, Your Honor. DAVID SOUTER: No it's a one time buying opportunity. Ames is building, whatever it is here, a gymnasium. And Ames simply says, we're not going to buy the Chinese stuff. Is that a constitutional violation? Would it give China a bivens action? CORMAC EARLY: We don't believe it would, your Honor. It requires something on the level of a statute or consistent state practice or policy. REENA RAGGI: But the Foreign Commerce Clause, the Dormant provision of the Foreign Commerce Clause would be violated by such a contractual term? Why couldn't they? Why couldn't they sue? CORMAC EARLY: Well, they'd need a cause of action, Your Honor. And conceivably, that could arise under section 1983. The difficulty there is that when it comes down to an individual discretion. So for example, if it turns out that Sheila Simpson is simply bigoted against Chinese companies and refuses to buy their products on that basis, and we could convincingly prove that, then conceivably we would have a cause of action. Fortunately, we don't need to get into the difficulties of that nature here because we've got a statute that on its face discriminates against foreign commerce. REENA RAGGI: Why isn't this akin to White v. Massachusetts Council that instead of wanting employees to be residents, the materials have to be residents? Why isn't it like that under the Commerce Clause? CORMAC EARLY: A couple of reasons, Your Honor. First of all, White, even on its own terms, was a regulation of domestic commerce, and so all of the arguments about why international commerce is different would still apply. But even if we accept-- REENA RAGGI: That's it's broader. That it's broader, and somehow it shouldn't be looked at as narrowly as you're saying we look at the Interstate Commerce Clause? CORMAC EARLY: That's correct, Your Honor, because there the state interest is substantially lower because the state doesn't have an interest in protecting the United States as a whole. It has an interest in protecting its own citizens. And so when it discriminates in favor of its own citizens, that's one of the justifications that this Court has recognized for the market participant exception that would be absent in that case. MARK WOLF: I would like to clarify whether I understand your position. Is it your position that the market participant exception is appropriate with regard to interstate commerce but should not be applied with regard to foreign commerce? CORMAC EARLY: Our position-- we don't take a position on whether or not it's appropriate to interstate commerce. As you may have noticed from our briefs, we have several problems with it. But that doesn't necessarily mean, we think it should be overruled. There could be reliance interest, interest on other stare decisis arguments. MARK WOLF: Well, this is part of what I want to get at. I mean first you characterize the market participant doctrine as badly reasoned and unworkable and suggest that it ought to be reversed. You're not relying on stare decisis with regard to market exception while relying on it, in my view, heavily, too heavily with regard to Zschernig, or however you pronounce it. That's one, and it's something that I think we need to decide whether we feel the jurisprudence should be consistent in this area or whether there's a justifiable inconsistency. But I have trouble with the following. Let's say the statue was written to say that solar panels have to be produced exclusively in Ames. That would-- in that circumstance, arguably Ames would be a market participant for the purposes of interstate commerce but would be equally excluding the Chinese. And if you took it a step further, if virtually all of the solar panels in the world that were any good were made in Ames or China, well, facially it might look like a domestic prohibition. Practically, it would be permissible if we maintain the market participant distinction. So how can we logically and reasonably not extend market participation to foreign commerce when, in this global economy, the distinction between interstate and foreign is often illusory? CORMAC EARLY: Well I think the premise of your question, Your Honor, which we dispute is that the effect on foreign nations of a Buy Ames law and a Buy American law would be the same. And we don't think that's true for two reasons. First, economically, it can be substantially worse for foreign competitors to face a Buy American law than a Buy Ames law. And that's because under a Buy Ames law, both the Chinese solar panel manufacturer and its American counterparts who are not based in Ames, are equally shut out of the market and are equally disadvantaged. But under a Buy American law, those American counterparts have greater opportunity to have uncontested access to the American market. That can give them economies of scope and of scale, which can lock in the structural advantages for them in terms of, for example, having larger factories, in terms of negotiating rates with their raw material suppliers, which can allow them to build their solar panels more cheaply. And that can give them an insurmountable lead in competition in other markets, such as, for example, Europe. And so purely on economic terms this kind of law is, at least conceivably, depending on the technology and depending on the size of the state market and depending on the nature of the competition in this industry, substantially worse for foreign competition. DAVID SOUTER: But that will also vary with the size of the state as I think has been pointed out. California may very well be considerably larger than any foreign country that is in the competitive manufacturing business. So would the application of your argument vary depending on whether we're dealing with a Buy California Act, or Buy Ames Act, or a Rhode Island Act? CORMAC EARLY: No, Your Honor. It wouldn't. And it's worth pointing out that Respondent's argument would. They argue that Ames is distinct because it's the 31st largest state. This is only $145 million of commerce involved. But we don't believe that's an argument that this Court should accept. Because if this Court were to accept that argument, it will be drawn into trying to distinguish, what's a big enough state? What's a big enough market? Our argument is that states enjoy equal footing in the Union, that they have the same powers as each other, and that's been the case since the framing. And so if Ames can do this, California can do this. And if California can do this, so can Texas and New York and Illinois. And collectively, they can shut off a very great deal of trade with foreign nations. And those foreign nations are very likely to be offended by this, particularly when it is-- when the distinction is on the basis of foreign or not foreign. DAVID SOUTER: Let me go back to a point I raised earlier. The argument you are making is basically an argument about fact. There will be a certain significance if this is allowed. And if your fact argument about significance is sound, why isn't the United States in this case telling us that? CORMAC EARLY: Oh. Well, the United States has been silent in this case, and we don't know why, Your Honor. But it's worth pointing out that, for example, in Sabbatino, this Court was careful to-- part of the reasoning in that case, that the judiciary would respect foreign acts of state without asking for the views of the State Department, is that diplomacy is a delicate and ongoing process. And it's not always appropriate to force the hand of the State Department, to ask them, how are you doing with Canada on this particular issue? Because it might be indelicate or inappropriate for the State Department to state, on the record, we're having trouble with Canada, and they're being obstructionist on our other priorities. Because that's the kind of dirty laundry that we don't necessarily want to force the executive to air in public. REENA RAGGI: I want to take you back to your suggestion to us that adopting your argument doesn't require us to also address the Dormant Commerce Clause in the market exception. But if we are prepared to tolerate a market exception for the Interstate Commerce Clause, doesn't that necessarily mean that there won't be foreign competition either? I mean, if you favor Ames products under the Interstate Commerce Clause, you can exclude not only California products but also foreign products. CORMAC EARLY: Certainly, Your Honor. REENA RAGGI: So how do we avoid coping with whether we can allow this market exception to exist at all if we go down the road you're urging? CORMAC EARLY: Well, again, stare decisis interests would be the analysis that we would apply to the existing domestic market participant exception. But that exception doesn't-- REENA RAGGI: But I'm not making myself clear. As soon as you exclude anyone other than Ames, you exclude foreign as well as state. How would that be permissible? CORMAC EARLY: That would be permissible, Your Honor, on an existing doctrine because the distinction we're arguing for is when the statute on its face distinguishes foreign from domestic. And so for example, in Cook against Pennsylvania in 1878, the case that announced this doctrine, that was a state tax that was imposed on foreign goods but not on American goods. And so when the state statute discriminates on its face on the basis of foreign or not foreign, that's the distinction that we're arguing for. Certainly, we accept that if it's Ames and Not Ames, in the Not Ames bucket, you have other states and foreign nations. But that distinction is actually less likely to invite backlash. First, because of the economic argument I was making earlier, that it can be worse for foreign competition to face a Buy American law rather than a Buy Ames law. But also because simply when it comes to retaliation from foreign nations, there are also political considerations. And when foreigners feel they've been singled out for being foreign, that's more likely to give rise to a potentially justifiable inference of animus. If the state of Massachusetts passes a Buy Massachusetts law, it's unlikely that it's suffering from animus towards Connecticut or Rhode Island. But if it passes a Buy American law, it could potentially be suffering from animus towards China or India. And those countries-- DAVID SOUTER: What if every state passes a Buy State law? CORMAC EARLY: A Buy State law? DAVID SOUTER: Yeah. 50 states have their versions of Buy Massachusetts law. What's the result? CORMAC EARLY: Well, under existing market participant doctrine, Your Honor, that would be OK. And we certainly-- if our clients were disadvantaged by that situation, we might come back on another case and make many of the same arguments we made in our briefs and throw in some analysis of reliance interest for whether or not we should eliminate the doctrine entirely. DAVID SOUTER: Well, let me ask you just to switch hats for a second. Let's go back to your brother's subject of foreign affairs power. Every state passes a Buy Domestic statute. Under the foreign affairs power, is that beyond constitutional possibility? CORMAC EARLY: Potentially, Your Honor. And here we look to analysis in cases like Garamendi, where this court mentioned that by imposing its own sanctions-- or excuse me, in Crosby, that by imposing its own sanctions the state of Massachusetts had taken away the ability of the executive to impose federal sanctions and had thus weakened the federal executive's hand in negotiations with foreign countries. So potentially, depending on the nature of the kind of laws that are passed by the states in that hypothetical, it could be a problem under the foreign affairs power. Under existing Dormant Commerce Clause doctrine, it would be OK because that would be market participation. But this law discriminates on its face against foreign commerce, and this Court has never extended the market participant doctrine that far. In fact in Reeves against Stake, this Court explicitly withheld judgment on the question. And it did so with good reason. MARK WOLF: But isn't there a very vivid distinction between this case and Crosby, where Justice Souter did not rely on the broad grounds relied upon by the First Circuit but very expressly on the fact that Congress had given the president authority expressly over economic sanctions concerning Burma? And therefore, there was implied preemption of state acts that would interfere. But in this case, Congress and the president have enacted to, for example, decide where to strike the most appropriate balance between foreign policy considerations and domestic considerations, such as employment or environment. CORMAC EARLY: Well, two points in that, Your Honor. First, we agree that in cases like Crosby and other such cases, this court has relied on statutory preemption. Respondents claim that this is because the Court has retreated from documents, such as Zschernig that are more constitutional in nature. We don't agree with that. We think that that's simply an exercise of constitutional avoidance. It's more easy to decide a statutory question. And when that's available, it's entirely appropriate for the Court to do so. That's not available here. But second, on the specific question you answered, the analysis in Crosby is the same. Because whether or not Congress has yet given the president the authority to conduct these negotiations, that authority still depends on being able to bring the entire weight of the national economy to bear in negotiations. And when states pass those kinds of laws, they weaken the president's hand, either actually or potentially. Thank you. DAVID SOUTER: Thank you, Counsel. Ms. Freeman. EMMA FREEMAN: Mr. Chief Justice, and may it please the Court. My name is Emma Freeman, and I represent respondent, Sheila Simpson. I will be discussing the dormant foreign affairs power, and my colleague, Michael Lieberman, will address the Dormant Foreign Commerce Clause. Petitioner's sweeping interpretation of the federal government's foreign affairs power is a solution in search of a problem. Ames is but one of 20 states that has enacted Buy American statutes over the past three decades. Yet there is little evidence to suggest that these statutes have any harmful effect on foreign relations. Indeed, the-- REENA RAGGI: Well, we don't have a factual record on that, do we? There was no hearing on that or evidentiary development. EMMA FREEMAN: No, not that the record reflects, Your Honor. But there is little to any evidence in the record to suggest that the political branch's view, the Ames Act, or other acts like it as unduly interfering with their power to set trade policy and establish foreign relations under the Constitution. REENA RAGGI: I'm not sure I understand your constitutional argument. Are you urging us to construe section 10, to take the view that if section 10 doesn't limit the state's powers, then any section 8 powers are concurrent? EMMA FREEMAN: Not necessarily, Your Honor. REENA RAGGI: What's the interaction between 8 and 10? EMMA FREEMAN: Certainly, your Honor. Our understanding of Article 1, section 10 is that it prohibits the states explicitly from engaging in certain high agenda questions of foreign affairs. It's well-established, and we concede that states may not conduct war, states may not enter into treaties independently. These are well-established principles. But when the federal government has not acted in the broad field of foreign affairs generally, states may act, under Zschernig, in ways that do not more than indirectly affect foreign relations. And the Ames Act has not done so here. REENA RAGGI: So section 8 powers can be exercised by the states unless and until the federal government takes action? EMMA FREEMAN: Yes, Your Honor. Generally speaking. REENA RAGGI: Is that a use it or lose it principle for the federal government? EMMA FREEMAN: Here you could say that, Your Honor. We believe that the Constitution contemplates the foreign relations powers specifically-- not every power in Article 1, section 8, but foreign affairs specifically-- to lie primarily with the political branches because they are informationally and institutionally superior. As an organization, they are well aware of foreign relations questions. Lobbyists-- such as the NFTC, which was a party this Court's case in Crosby-- bring these high agenda questions to the attention of the political branches, and that's-- DAVID SOUTER: Well, Counsel. Counsel, may I interrupt you here for a second? I understood your argument a moment ago not to be that in the face of inaction on the part of the political branches, the states could do anything. You referred it to the-- I forget what the test is-- not more than incidental effect as a limitation. So you're not saying that they can do anything, and if the national government remains in a state of inanition, it stands. You're not saying that, are you? EMMA FREEMAN: No, Your Honor. Under the Dormant Foreign Relations Doctrines and the Dormant Foreign Affairs Power as it currently exist, Zschernig and its lower court progeny suggest a two-part inquiry for assessing the constitutionality of state statutes under the dormant foreign affairs power. And ultimately, that boils down to Zschernig's threshold test. States may act in ways that touch on foreign affairs so long as they do not more than incidentally or indirectly do so. REENA RAGGI: But that's different from what you're urging, which is allowing the state to act if the federal government doesn't? Are you are you willing to cabinet to only incidental activities by the state? EMMA FREEMAN: Yes, Your Honor. We do believe that there are limitations on state action, but we believe that they are most primarily realized and most appropriately realized via the preemptive power of the political branches, not via the implementation of dormant doctrines by this Court. REENA RAGGI: How is that practical? MARK WOLF: So does that-- are you-- you get it in stereo. So there was nothing that you could point to to preempt Zschernig. Are you arguing that Zschernig should stand? Are you arguing that we should reverse it? EMMA FREEMAN: Your Honor, in the first instance, we do believe this Court would be well within its stare decisis precedent to disavow Zschernig and the Dormant Foreign Affairs Doctrines. They are unnecessary in light of the political branches' preemptive power, and moreover, they interfere with the principles of federalism and separation of power that animate our federal scheme. But even under the Dormant Foreign Relations Doctrines as they currently stand, the Ames Act is constitutional. And I'd first like to turn to the first prong of our test. The Ames Act does not single out a foreign country for criticism or invite politicized inquiries into the policies or politics of other countries. MARK WOLF: Is there any case-- you've got a two-part test. They have more parts to your test. Has your test ever been used in that two-part form to decide any case? EMMA FREEMAN: Yes, Your Honor. In Mujica, the Court engaged in just such an inquiry. It asked whether the statute singled out and then proceeded to balance the state and federal interests. But broadly, Your Honors, our test is an articulation of the way that lower courts have found it easiest and simplest to implement Zschernig's holding. And we believe it is more faithful to Zschernig and to precedent under Zschernig than petitioner's proposed test. REENA RAGGI: Why is-- DAVID SOUTER: Now go-- I'm sorry. You've tried once before. REENA RAGGI: Why is-- what basis is there for limiting it to criticism of one country? Why isn't it you know criticism of the Soviet bloc in the past or countries that all manufacture certain products with child labor, whatever? Why should the test be criticism of one country? EMMA FREEMAN: Two points, Your Honor. The first from precedent, and the second from policy. First, particularly the Ninth Circuit has made clear that singling out tends to refer to only one or two countries at a time. You point to the Soviet bloc. That might likely fail the singling out test. Countries involved in World War II have been considered singling out, especially in [INAUDIBLE] and [INAUDIBLE],, a recent Ninth Circuit decision. REENA RAGGI: OK. So now we're to a group test? We've moved from single country to groups? EMMA FREEMAN: Your Honor, under the precedent, one or two countries has been able to be considered singling out, as we understand it. But even if, under your hypothetical, there was a statute that singled out a broader bloc of countries or policies, even if it survived the first prong of our inquiry, it would likely fail the second because it's unlikely that the state interests in that situation would be so strong as to outweigh the federal government's policy interests in the foreign affairs arena in that situation. DAVID SOUTER: Before you get into the strength of the interest, let me go back to the singling out. As I understand it, the way the doctrine stands right now, it is not that the statute itself must single out-- though that would suffice to fail for the first prong-- but that the statute invites action that singles out. That's correct, isn't it. EMMA FREEMAN: Yes, Your Honor. DAVID SOUTER: Why, then, do we not have a perfect example here in which the statute has in fact invited exactly that? The reason that this case is before us is that domestic political pressure in the United States, in Ames rather, exercised by a group of students who raised the issue are singling out the domestic labor policy of China. Why isn't this a perfect example of an invitation to single out? It's quite true. Tomorrow, they may be singling out Burma. Next week, it may be Albania. I don't know. But there certainly is a demonstrated invitation in the statute to single out. And why, therefore, doesn't the statue fail? EMMA FREEMAN: Your Honor, we submit that the record in this case does not reflect that the Ames University singled China out in its application of the Ames Act. And I have two reasons why that's the case. First, page 30 of the record made clear that the only inquiry the General Council of Ames University engaged in was to ask whether the materials Go Glow used were produced domestically or were not produced domestically. China did not come into play in the text the Act, it's not apparent in the preamble found on page 18 of the record, and-- DAVID SOUTER: Why does the university have to be the one that singles out? EMMA FREEMAN: Because, Your Honor, there's an important distinction between the reason the violation of Go Glow came to the attention of the university and the reason the statute was implemented. That student protests brought the violation to the attention of the university, it's constitutionally insignificant. DAVID SOUTER: OK. But that-- I mean, you're drawing a fine distinction. But the fact is, on the record that we have, there is only one reason to believe that in fact the statute was invoked by Ames. And that reason was criticism publicly of the university and of the enterprise of buying through Go Glow based upon the domestic policy of China. Whether the university would have originated that criticism itself doesn't seem to me to make any difference at all. In fact, its opposition to China and, if you will, an accession of that opposition on the part of the university that explains what happens here. Why isn't that enough? EMMA FREEMAN: Your Honor, respectfully, we disagree that the protests of the students reflect the position of the university or the reason that the act was implemented. DAVID SOUTER: Well, you can't disagree with the fact that the university didn't want to take them on and say, no, you kids are absolutely wrong. The university-- I don't know whether you can say the university buckled or the university suddenly realized, as it had not before, that there was a violation of the statute going on. But the reason for the university's action was the criticism revealed in the protest about Chinese labor policy. EMMA FREEMAN: Your Honor, the reason for the implementation of the act was not meant as a criticism of Chinese labor policy, though that was the subject of the student protest. Instead, I return again to page 30 of the record. The General Council's only consideration, was not to criticize China, was not to implement some sort of change in Chinese labor policy, but was instead to implement the act because Go Glow's materials were manufactured in a place that was not the United States. That was the beginning and the end of the inquiry. The statute does not on its face invite any sort of singling out a criticism that Zschernig was concerned with. In Zschernig, there was a substantial record of courts implementing the Oregon probate statute in ways that criticized other countries, in ways that targeted other countries, and in ways that were likely to provoke foreign controversy and provoke retaliation by those other countries. The same is not true here. There is a substantial amount of territory between the Ames Act, both in its text and in its application, and the statute at issue in Zschernig. I'd like now, Your Honors, to turn to-- MARK WOLF: I actually have a question as to whether in Zschernig there was that kind of evidence at all. Justice Douglas wrote in part, "as one reads the Oregon decisions, it seems that foreign policy attitudes, the freezing or thawing of the Cold War, and the like are the real desiderata. They, of course, are matters for the federal government, not for local probate courts. I didn't discern from reading this decision-- that's not as long as decisions these days-- that there was any vast record. It just seemed to me, perhaps, that was a pronouncement from particular views and possibly general principles, but that the factual record wouldn't distinguish that case from this one. EMMA FREEMAN: Respectfully, Your Honor, we disagree. And just several pages later in that same opinion in Zschernig the Court did focus on the fact that other probate courts implementing the same statute had repeatedly done so in ways that were violative of what would come to be known as the Zschernig principle. They criticized. They made statements about whether certain governments were communist or whether they were democratic. They inquired into Marxist regimes. None of these considerations is present here. And though quote you point to is certainly accurate, it doesn't reflect the heart of the decision in Zschernig. MARK WOLF: Well, none of them-- if none of them are present, then there is a footnote with quotes from various cases. But perhaps people-- legislators are more skillful now and less candid. Or indeed, we don't know whether this is the very first case under the Ames statute, do we? And perhaps, there hasn't been the opportunity for the same repeated criticism. But it does seem fairly pointed when China has such a substantial portion of solar panels, in any event, that this forseeably would have a dramatic material effect on sales from China where-- we could take judicial notice-- there's well-founded and widespread concern about human rights abuses and about unfair competition in the form of very cheap, and in some respects, subsidized labor and other costs. So I could understand why you might argue that Zschernig should be overruled. And you did say under principles of stare decisis. Precedents are overruled. We no longer have Plessy v. Ferguson. We no longer have Swift v. Tyson. And those were decided on constitutional grounds. But I'm still struggling to find material differences between this case and Zschernig, if we should apply it. EMMA FREEMAN: Your Honor, I'd like, in order to answer your question, to turn to the substantial state interests implicated by the act. And I'd like to do so to counter Petitioner's assertion that the Ames Act in no way furthers any traditional state prerogative. We respectfully submit that on the record in this case that is simply not true. Page 18 of the record, the preamble to the act, reflects three important traditional state prerogatives that differ this case from Zschernig. The Ames Act seeks to environmentally protect Ames by achieving the governor's goal of climate neutrality by 2050. It seeks quality control over the goods used in its public works projects. And finally, it pursues public works procurement, which this court in [? Hines ?] v. McCall recognized to be an area that falls within the state's traditional and exclusive area of competence. REENA RAGGI: Can you tell me how the act furthers the first and the second, given that it doesn't require the purchase of the best or the most environmentally advanced products? It requires the purchase of American products, presumably even if another country's product has a better environmental impact or is of a higher quality. So I'm not sure I see how it furthers the first two. EMMA FREEMAN: Certainly, Your Honor. And because we're dealing here with state legislation, we don't have on the record the formal legislative history that might otherwise shed some light on the legislature's thinking in terms of how the Ames Act furthers these goals. And in situations like that, the Court traditionally infers possible rational bases for such legislation. And in this instance, it would be a reasonable conclusion for this Court to draw to think that domestic goods would help environmental protection in Ames because it would reduce carbon emissions from transporting green technology goods from other countries. It's also reasonable to assume that the Ames legislature felt that domestically produced goods would be of the highest quality and would best serve the interests of Ames and its public works projects. DAVID SOUTER: Why? EMMA FREEMAN: Your Honor, again, we are working with a record that gives us very little on this question. DAVID SOUTER: Yes, but you also have to work with the responsibility that you had the opportunity under your motion for summary judgment to get this kind of material into the record, if you had an opportunity to do it. EMMA FREEMAN: That's absolutely true, Your Honor And there simply is less legislative history available under state legislation than there is for federal. But I would also draw this Court's attention to Minnesota v. Clover Leaf Creamery, where it declared the principle that courts tend to prefer not to question findings of legislative fact. And at the end of the day, what we have here is the best judgment of the Ames legislature as reflected in the preamble of the act. REENA RAGGI: Why would that be so when the question is whether this is constitutional? I understand where we might do rational basis analysis in any of a number of contexts. But we now have the state invoking these principles to support it's discrimination against and-- as your adversaries put it-- intrusion into foreign affairs. Why shouldn't that get a higher scrutiny? EMMA FREEMAN: Your Honor, traditionally in dormant foreign affairs cases-- and I see my time is up. May I answer? REENA RAGGI: I think so. DAVID SOUTER: Yes, yes. EMMA FREEMAN: Thank you. Traditionally, these cases have fallen outside of the traditional rational intermediate strict scrutiny spectrum and have deserved their own traditional scrutiny. But here at the end of the day, petitioner has not borne its burden under the summary judgment standard to demonstrate that this court should invalidate the act based only on its purported purpose to affect foreign affairs. Thank you, your Honors. DAVID SOUTER: Thank you, Counsel. Mr. Lieberman. MICHAEL LIEBERMAN: Mr. Chief Justice, and may it please the Court. The market participant exception is well established in the Dormant Commerce Clause area, and so the fundamental question before this Court is whether it should also apply in the foreign commerce context. We submit that it should apply, and every lower court to address the question has held that it does apply. This consensus among the lower courts is unsurprising because the exact same justifications for the market participant exception that this Court has enumerated in the interstate context apply with full force in the foreign commerce context. In both contexts, federal interference with a state's decisions about how to spend its own money is a particularly offensive invasion of a state sovereignty. And so this Court has channeled the decision-- about whether a state's law should take a backseat to federal law-- has channeled that decision to the political branches, who are accountable to the states and in the foreign policy area, have a wider range of information or resources available to determine how that balancing act should turn out. REENA RAGGI: Your adversaries seem to at least admit the possibility that if this were just a contract with these terms there might not be an issue here. It's that there's a law. And if I understand their brief, it's a law with penalties that they say go beyond what a market participant could impose. Do you want to tell us why we shouldn't be concerned about that distinction? MICHAEL LIEBERMAN: Absolutely, Your Honor. As to the penalties, the penalties that the Ames Act imposes are no different than a penalty that a private party could impose in a contract. There are two types of penalties. The first is a simple commitment by the state itself to no longer do business with a party that violates the Act or breaches a contract with the city. REENA RAGGI: How would a private party do that? I mean, this is a law now that precludes any contractor for the state from doing otherwise. A private party might say, I'm not going to deal with you for seven years, but then in two years, you know, rethink it. MICHAEL LIEBERMAN: You're correct, Your Honor. A private party could not reduce it to law and make it as policy, but a private party could honor such a commitment. And it's no different than what the state of Ames is doing here. It has simply made the decision in advance rather than after the breach. As to the damages that are in the Ames Act, the act imposes liquidated damages, and the liquidated damages are nothing other than what a private party could also put into a contract. DAVID SOUTER: Well, except that-- I mean, the theory of liquidated damages in contract actions starts with the proposition, number one, that there are damages, and number two, that they would be difficult, perhaps, in these circumstances to ascertain or at least time consuming to do so, and that the liquidated damage provision does not rise to the level of something punitive. The trouble with applying that concept here is that, to begin with, there aren't any damages. We know, in fact, that the subcontractor-- I'm sorry, that the general contractor was able to buy his panels for $250,000 or less than he would have had to pay if, in fact, he had complied with the act. There is no reason to believe that his bid was not, therefore, accordingly favorable, and therefore, that whatever the savings was in some measures or some degree, it was passed on to Ames. So that to begin with, there are no damages whatsoever. And I don't see how you can turn that into an analogy with private liquidated damages. MICHAEL LIEBERMAN: Your Honor, there are damages here. The damages are not economic. As you say, this actually would have saved the state money. The damages are the same intangible harms that motivated the Ames legislature to pass the act in the first place. As Ms. Freeman-- DAVID SOUTER: Harms to whom? MICHAEL LIEBERMAN: Harms to the state of Ames and to its citizens, your Honor. DAVID SOUTER: The liquidated damages provision in private contracts are for the benefit of the private contractor, not third parties. You made the argument, as I recall in your brief, that, in fact, the ultimate damages here are to American manufacturing, and that they are very difficult to ascertain. Liquidated damages provisions in private contracts do not protect the broad body politic. They simply protect the specific contracting party who has been hurt. Isn't that the end of the argument for an analogy here? MICHAEL LIEBERMAN: Your Honor, in this case, the party that is contracting is the state itself, and the citizens of the state are who make up the state. So it's one entity. The citizens-- REENA RAGGI: But if you want to be treated as a market participant, we have to look at you as a contracting party, not as a policy maker. You want compensation through these provisions for public policies, not for the contract, and that seems to be different from a market participant. What are we missing? MICHAEL LIEBERMAN: Your Honor, the harms here are intangible and difficult to calculate, but just because the harms are-- REENA RAGGI: But to whom? MICHAEL LIEBERMAN: The harms are to the state and to the citizens of the state. REENA RAGGI: As a contractor? MICHAEL LIEBERMAN: When the state of Ames enters into a contract with a private party and the private party violates the terms of that contract, which has the Ames Act embedded into it, then those harms are suffered by the state and its citizens. And those harms are damage to the environment from using lower quality green technologies, they are damage to the quality of goods received. REENA RAGGI: What if they're not in lower quality? MICHAEL LIEBERMAN: The Ames legislature made a judgment in passing the Ames Act that domestically produced green technologies were of a better quality than those produced-- REENA RAGGI: A private contractor might be able to have a preference for one item over another and provide a specification for that provision. And when somebody didn't provide it, then how would you decide damages? MICHAEL LIEBERMAN: If there was not a liquidated damages provision within the contract? REENA RAGGI: Right. How would you assess damages if you asked for product X and they substituted product Y? MICHAEL LIEBERMAN: A court would presumably look at the relevant factors and determine what the damages were, and those damages would not be limited just to economic damages. The state could put-- or the private party could put forth the types of intangible harms it has suffered. And that's simply what's happening here. There are intangible harms that would be suffered by the state of Ames, and those are just put into the contract in the form of liquidated damages. DAVID SOUTER: Aren't we entitled to be very skeptical about a claim for-- an amorphous claim for intangible damages, when it's based on a series of purposes and findings that include, for example, the statement that the object of the statute is to give the American manufacturers an even playing field, when, in fact, that is precisely the thing that the act precludes? The act is overtly discriminatory. When a legislature engages in those kinds of virtually nonsensical statements, shouldn't the court frankly say, OK, we're not going to put any weight on the fines? MICHAEL LIEBERMAN: Two points, Your Honor. The preamble of the act on page 18 lists a number of findings by the legislature, and we believe that the ones that serve local purposes are the ones that should control here to show that the act does pursue the local purposes that my colleagues claim that does not pursue. Now to the extent that the domestic green technology industry has helped here, the parts of that industry that are located in Ames will itself be helped, which is another local interest. DAVID SOUTER: Do we know whether there are any? MICHAEL LIEBERMAN: We do not on this record, Your Honor. However, the state of Ames sees itself as a leader in the green technology field, which is in some of the sponsor statements, so we can presume that the state of Ames does have some of this industry within it. MARK WOLF: It seems to me that the questions my colleagues have been asking you, and respectfully, to some extent the responses, indicate that there's a fundamental difference between a governmental entity and a private corporation, which to me raises the question as to whether the market participant rule that we've adopted for interstate commerce with regard to-- say, states and municipalities-- should be applicable at all? There are certain things in other areas-- say, the First Amendment area-- that a private actor can do. Harvard University could have a hate speech policy, and the University of Massachusetts, as an arm of the government, should not. Why, given all the difficulties that are emerging from this colloquy, should we maintain any market participant exception for states? MICHAEL LIEBERMAN: Your Honor, this Court has traditionally justified the market participant exception on three grounds-- history, federalism, and fairness. As for history, this court has recognized that the Commerce Clause itself was aimed at state regulations and state taxes that were discriminatory against other states. But this Court has noted that there is no indication of any constitutional plan to limit the ability of the states to operate freely in the free market. And so in recognition of that principle from history, this Court has created the market participant exception. In terms of federalism, as I mentioned earlier, intruding on a state's decisions about how to spend its own money, its own resources, and the collectively owned property of its citizens, is particularly offensive to that state's sovereignty. And so those decisions have been channeled to the political branches, which are accountable to the states. And then in terms of fairness, which I think was at the heart of your question, we certainly agree that states are not private businesses. But what the market participant exception recognizes is that when states go into the marketplace and purchase things-- purchase goods and purchase services-- they are, in that moment, like a private market participant. They are subject to market forces, they have to pay minimum wage, they're subject to OSHA health and safety regulations. MARK WOLF: They're not subject to market forces because they're not trying to get the best quality at the best price. They're using this policy to serve other purposes-- promote the environment, perhaps promote local employment. And they have resources, with regard to sanctions, that no private actor could impose in commercial relationship. So that, I think, is at the heart of this. And listening to questions and the answers causes me to wonder whether this market participant concept is indeed unworkable, with regard to municipalities, and ought to continue to be viable at all. MICHAEL LIEBERMAN: Your Honor, we believe that it is still viable. And we agree that if a state government goes beyond what a private party could impose in terms of sanctions, it would no longer be acting as a market participant. And I took that the colloquy I had with Justices Souter and Raggi to be whether that was the case here. And our position is that the state has not gone further than a private market participant could, and so it is still acting as a market participant. Now if Your Honors were to believe that the state was acting in a way in opposing the sanctions that a private market participant could not, that still would not be a grounds to strike down the Ames Act because those sanctions are easily severable from the rest of the act. And so because they're severable, I'd like to turn back to my colleague's arguments about why the market participant exception should not apply in the foreign commerce context, specifically if this Court will retain it in the dormant interstate commerce context. And the bulk of the argument was that in the foreign commerce context a state spending policy might provoke retaliation from foreign nations. And there are two problems with that argument. The first is that the prospect of foreign retaliation from a state spending policy is far less pronounced than the prospect of foreign retaliation from a state discriminatory regulation or tariff, and that is because the effects are limited. A state spending policy, like the Ames Act, only applies when the state itself is going into the marketplace, using its money, and making a purchase as opposed to a regulation or a tariff, which is generally applicable to all business activity within the state, whether or not the state is actually a party to that transaction. REENA RAGGI: Does that argument require us to consider the play that the state has in the world economy? I mean, California is the ninth largest economy in the world. So the argument seems a little more difficult there, and I don't see a principle on which we would decide this case, based on the fact that you're not as big a state as California. MICHAEL LIEBERMAN: Your Honor, we agree that the policy would apply the same regardless of which state it was or the size of the market, and that's simply because market participation on a wide scale is still market participation. And the fact remains that when a state-- if California has a spending policy, that spending policy will apply only when the state itself spends money, not when the many, many other private businesses that do business in California conduct their private activities. So the Ames Act, for example, applies only when the state of Ames spends its money. REENA RAGGI: But now we've got 20 states that do this and more could be on the way. At what point do we have to consider that there are so many states doing this that it could, in fact, have an effect on foreign commerce as well? MICHAEL LIEBERMAN: This Court's market participant jurisprudence has channeled that decision, that very decision, to the political branches. It is the political branches who can look not just at the case or controversy before it but also at the wide range of state policies and the wide range of federal foreign policies that might be implicated by one of these acts. And so the market participant exception doesn't make state policies immune from federal oversight, not by any means. What it simply does is ask the political branches, who are accountable to the states and have more information, it asks the political branches to make the decision. And that is simply all we ask here. And the political branches here, despite being aware of the Ames Act and being aware of state Buy American acts in general, have not taken any action and have not expressed any concern about our foreign policy. Now I'd like to turn to the specific act and clarify its scope a little bit more because, both in the briefing and today, my colleague referred to it as an embargo or as shutting companies out of the market entirely. And I'd like to reiterate that the act doesn't do that. Go Glow, the company here, is still free to do business in Ames just as it was the day before the act was passed. The only change is that it has one less customer now-- the state of Ames itself. It is still free to sell its products to anyone else it pleases in any state it pleases. And that is the key difference between regulation and a spending policy here. And that is what the market participant exception recognizes. And so because of those limited effects, the concerns about foreign retaliation are less, the concerns about creating disuniformity with federal policy are less. And all of those concerns don't come to bear when a state is simply spending money. On top of that, state spending policies are far less worrisome because they're not coercive. They don't apply to everyone. Someone can simply opt out. Go Glow can decide, we're not going to do business with the state. This act no longer affects us. And so for all of those reasons, the Ames Act is not something that will cause foreign policy concerns, will not provoke foreign retaliation, and that is, indeed, reflected on the record before us. The act has been in existence for two years, and yet only one country has issued a statement of mild concern and seems to have moved on from that. REENA RAGGI: I want to ask you a preemption question. It applies to both the Foreign Affairs and the Commerce Clause argument. To the extent that 20 states now have this legislation, it seems to me there's a real question whether the federal Congress could muster the votes to preempt. And to that extent, are either of these principles-- either the Dormant Foreign Affairs Principle or the Dormant Foreign Commerce Clause-- really just a matter of majority rules? Or do they occupy the field, regardless of whether or not Congress is prepared to preempt? MICHAEL LIEBERMAN: Your Honor, as you say, the individuals in Congress have interest both for the state and for the national government. But even if many, many states passed these laws, those Congresspeople will be able to assess the foreign policy consequences. And even if their own home state has a Buy American Act, or a Buy Local Act, if the effects of that act, and the cumulative effect of that and similar acts, were enough to jeopardize our foreign policy, then Congress would act to preempt it. DAVID SOUTER: Well, you say Congress would act. And yet the part of the premise of my sister's question is, realistically, can Congress act? The fact is that we are considering this case at a time in which the possibility of congressional action on anything is greatly diminished from what it has been in other circumstances. And for this purpose, it doesn't matter who-- if any one or the other party is to blame-- it just is a fact of life. And therefore, if you're putting weight on the capacity of Congress to act, isn't that implicitly an argument to us that, I guess, you, the Court, better act? Because Congress may very well not be able to. MICHAEL LIEBERMAN: Two points in response, Your Honor. The first is that there is good reason to believe that Congress can overcome these collective action hurdles, specifically in the foreign context because foreign policy and foreign relations are particularly of national concern, and Congress-- DAVID SOUTER: You think we have a bipartisan foreign policy right now? MICHAEL LIEBERMAN: Not specifically. No, Your Honor. I wouldn't go that far, certainly. But Congress has shown an ability and willingness to respond when something is so, so contrary to our foreign interest and causes so much foreign harm that would-- let me finish if I may. DAVID SOUTER: Will you please finish your answer? MICHAEL LIEBERMAN: That if something were so serious as to warrant a court's intervention, it would also be serious enough to warrant Congress's intervention, and Congress is the act that is best equipped to make that judgment. Thank you. DAVID SOUTER: Thank you. Counsel. VIVEK SURI: Mr. Chief Justice, let's begin with a few words about the purposes of this statute. Now my colleague on the other side said that we don't really know what the purposes of the statute are because we're working with a very limited record. Well, that's a great argument for reversing the grant of summary judgment and having a trial on this very issue. DAVID SOUTER: How can you make that argument? These were cross motions to summary judgment. Each side had an opportunity to make a record as good as each side could. VIVEK SURI: Because this case is here because summary judgment was granted to them so all inferences should be drawn in our favor. But let's turn-- DAVID SOUTER: Except that the entire record would be considered by the Court in granting summary or denying summary judgment in each respective case. VIVEK SURI: Sure. And then if you look at the entire record, you'll find that these assertions of purpose that the state has made here don't have an empirical basis. Essentially, they're saying, trust the state legislature because it has asserted that American solar panels are better in quality or friendlier to the environment. That might be appropriate if you're applying rational basis review under the Equal Protection Clause or substantive due process. But that's not appropriate in a federalism case, and that follows from your decisions in Lopez and Morrison, where you said there must be some empirical basis for a congressional judgment to receive deference. DAVID SOUTER: Have Lopez and Morrison been followed in the last 10 years? Or did the sea change that they were thought to signal prove to be illusory? VIVEK SURI: Right. I mean, we can debate whether this was a holding or not a holding, but the Chief Justice did follow the Lopez and Morrison in the recent health care decision. The point of those decisions is there must be some empirical basis for the claim. "We say so" is not a sufficient basis. Now it's been hypothesized that this statute might serve an environmental purpose because foreign products are going to have to travel a longer journey and therefore, will consume more energy along the way. Well, if the state were concerned about that, it should have enacted a distance rule-- like no products from more than so many miles from the state. I don't know where Ames is, but let's suppose it's around here in Massachusetts. Ontario is closer to here than Hawaii. But under this statute an Ontarian solar panel is excluded, but a Hawaiian one is included. That is not how a state goes about protecting the environment. Finally, there's been some dispute here about whether Zschernig should be interpreted as prohibiting state purposes to intervene in foreign relations. Now the Ninth Circuit has interpreted Zschernig as we do. But set that aside. Returning to first principles, when a state has no purpose whatsoever except to affect foreign relations, there is no traditional state prerogative being intruded upon. There is no local interest being violated. There is no conflict of constitutional values. DAVID SOUTER: Well-- REENA RAGGI: That might be relevant to the Foreign Affairs argument, but I'm not sure that the Commerce Clause argument when what they're doing is spending their own money, I mean, just as a private party would decide it's going to buy American. If it's its own money, why can't the state? VIVEK SURI: All right. Let's turn to the Commerce Clause. There have been two justifications for this market participant exception. The first justification is that a state should be able to protect the interests of its own citizens. The second is some sort of even-handedness between states and private traders. Neither of those rationales is applicable here. So a state-- the state is not acting as the guardian of its people because it's not protecting its people. It's trying to protect the people of the United States as a whole. So that's rational one gone. The second rationale, which is acting like a private trader, is also out of the picture because what the state has done here-- I mean, leave aside all of the penalties in the seven-year bans. They have made something illegal. That is something no private actor could do. That's why neither of the rationales for the market participant exception is applicable in this case. So that's why the grant of summary judgment should be reversed. REENA RAGGI: Well, let me ask you about that with the penalties. They seem to suggest we could sever the penalties, and then it would just be a requirement. It operates on their bargainers, not assigning a stigma to anyone. Why wouldn't that be enough? VIVEK SURI: May I answer? I'm over time. DAVID SOUTER: Yes. VIVEK SURI: So two answers to that. First, even if you got rid of the penalties and just left, as it were, the mandate in place, that is something that no private party could impose. No one could make it illegal for you to not engage in a particular type of activity. Secondly, the penalties and the mandate exist as an interlinked provision. It's not like one exists for a purpose other than the other. So under this Court's severability precedence, when two parts of a law are inextricably intertwined, they stand or fall together. Thank you. DAVID SOUTER: Thank you, Counsel. And thank you, all Counsel. It's been very helpful to us. We'll take recess. BAILIFF: All rise. [APPLAUSE] All rise. DAVID SOUTER: Please be seated. We have a difficulty in announcing the judgments here, and the difficulty doesn't always afflict moot court judges. But it afflicts us tonight, and that is the risk of seeming to be too nice. That is usually not the fault that people attribute to judges. But as you will see in a moment, there is something facially lopsided about the rankings that we have to announce. It is lopsided because there is no such thing as, let's say, judgments of proportional merit. It's all or nothing on each of the categories of the judgments that we have to render. But this was one of those cases, one of those sets of briefs and sets of the arguments, in which we are not being polite when we say what is so frequently said in moot courts, and that is that Counsel in all their performances, written and oral, were so extraordinarily good that we had to draw some very, very fine lines in there. We didn't spend all night doing it. But in fact, we had very difficult judgments to make. And as I said, we are not engaging in some kind of professional courtesy when we both thank and express our admiration, for both the people on both sides of this case. That said, let me tell you what the judgments are, and then my colleagues and I will expand a little bit on what we have concluded. And we will then recess the court. With respect to the best brief, we believe that the respondent's brief was the better of the two. And by the way, our format is to say best, and I guess that's proper. There were three briefs. In any case, we think the respondent side had the better of it. The respondent's brief sort of respected the rule that, as they say, that God is in the details. And the details were very good and very concrete. With respect to the best argument, we believe that the best argument was Ms. Freeman's argument. And once again, this was a tough call to make. We don't, in a courtroom, day in and day out, hear anything of the quality that we heard here. And so it was a tough call. As you can tell from the two that we have made, it necessarily has to follow that the best overall was in fact the respondent's argument. We would also like to add, although there is no one, I think, in the room this evening to receive personally this commendation, we would simply like to add that this was a case in which the bench memorandum that was prepared for us seemed to all of us to be extraordinarily good. And we trust that those who did the bench memo will hear at some point our expressions of thanks for the work that was done there. With those specific judgments made, let me turn first to Justice Raggi for her comments. REENA RAGGI: Thank you. I want to speak for a moment first about this extraordinary competition. All of us on the bench are invited to judge at many schools around the country, and their moot court programs are all wonderful, even ones that take place in New Haven. [LAUGHTER] But there's nothing like Ames. On this, I really do speak from a wealth of experience as an Ames participant, as a judge, and even as an Ames parent. I know that the task of that is, how long can a parent really hold his or her breath? But what I wanted to say about Ames is that I just don't know of any other competition that puts contestants or competitors through such a rigorous ordeal, none that emphasizes brief writing as Ames does with its sequence of three briefs. And then of course, the glamor event here in the Ames courtroom. I mean, there's nothing that's as electric as this. So I am just delighted to be asked again to participate, and particularly tonight, when I thought that the quality of the briefs and the advocacy was so excellent. Now when the Chief Justice said that we came to this decision with some difficulty, I will say it was because, in part, we were not unanimous. I am the outlier. I would have thought that the petitioner's brief had it over the respondents by a hair. Both briefs were excellent, to the point where I could not decide on one reading whose I would favor. But for myself, on a second reading, I gave it to you all. And to the extent that you look for some consolation, I share that with you. I also would have chosen you, Mr. Suri, the best advocate. I thought there were many things about your advocacy tonight that were really exemplary. And while I thought all of you were terrific, I just wanted to share with you that that was my view on this. Now, in saying that, I also want to share with you that the Dean was nice enough not to say that when I was an Ames participant, I was a losing Ames participant. So the petitioners have my heart tonight. And I want to say that on the night I found out that the decision did not go for my team, I was convinced my life was over and spent days walking around bridge convinced of that fact. If this happens, to you rest assured there's life after Ames, sometimes even on the federal bench. [LAUGHTER] DAVID SOUTER: Justice Wolf? MARK WOLF: I can certainly reinforce that having my main distinction at the Harvard Law School being one of two people, as far as I know, who never took first year exams and nevertheless graduated. And I don't think I made it out of the first round of Ames during my second year when I returned from the military. But I really had to discipline myself. It's an honor as well as a challenge to come off the bench to pinch hit on an occasion like this. And I regularly say to my law clerks, I'm not judging a moot court competition. When I'm in court, I'm aiming to get the legally correct decision, and I actually don't want to be unduly influenced or influenced by the quality of the lawyering. I want to be influenced by the merits of the subject. And I think it took some discipline for me, which I hope I achieved, because I actually sort of philosophically have more sympathy with the respondent's view and who should be deciding. Should it be courts or the political branches? When I read the petitioner's brief this morning, I said, this is really good. I don't get many briefs that are this good. And then I read the respondent's brief, and I said, this is superb. And I tested it. For example, the argument on page 11, getting into the facts of the particular cases on which the petitioner was relying and distinguishing them impressed me. And the petitioner's reply brief made good points but did not have the restrained dispassionate tone of the original brief. There were a number of characterizations that rather than being conclusory, rather than, in my view, being the most effective form of advocacy in some respects, to me, distracted from the merits of the argument. And that's part of what influenced me to think overall the respondent's brief in briefing was superior, although both were at an extraordinarily high level. And like my colleagues, I think I went through the exact same evolution. I thought Mr. Suri was hit with some very hard questions very quickly, and you didn't flinch. I thought you were responsive to them. And Mr. Early took the baton and did quite the same. And I'm thinking well this has got to be very hard to beat. And by a slight margin, it was extremely difficult for me to distinguish between Ms. Freeman and Mr. Lieberman, the respondents were marginally better orally, too. I think a number of us came at you with an emphasis on certain issues that those who drafted the case didn't anticipate, including my interest in the questions of stare decisis that permeated the matter. And I thought Ms Freeman had a particularly good response on that. So my dominant impression is I'm sure glad I got my Harvard Law School degree and my judgeship decades ago because I don't think I'd fare well in competition with any of you. And William Faulkner once said that his generation would be judged by the splendor of its failures. And you haven't got the prize now, but to get to this point, despite that disappointment, is a splendid failure. You stretched yourselves in the way Faulkner was talking about. And something I regularly say to younger people, because I've experienced it over and over myself, that those who-- well, if you look at the basketball, it's not since Red Auerbach's great Boston Celtics that anybody's been able to win five or six or nine championships in a row. The people who prevail one year don't the next year. And there's no question, in my mind, that every single one of you who worked on these briefs and argued today are going to have great success, and I hope and trust, fulfillment, in our calling as lawyers. DAVID SOUTER: Well, I guess I want to start on a couple of very personal notes, and the first is that Justice Raggi is not the only person on this bench who lost an Ames argument. I didn't get as-- I didn't get as far as the finals, I can assure you. But I can also assure you that when my side did lose, unlike her, I did not think that life's prospects were coming to an end at all. I simply said, I've got to find better judges. [LAUGHTER] I won't say that's the reason I went on the bench. But the second personal note is maybe something that should be confined to a footnote, if at all, but I can't resist it. One test of Mr. Early's brilliance as an advocate came in response to a question I asked him, a rather fanciful question about the possibility of bringing bivens actions here. And I seem to have overlooked the fact that we were dealing with the actions by states so that if anybody was suing, it wasn't going to be bivens actions. It was going to be 1983 actions. Mr. Early's brilliance consisted of the fact that he gave no signal that he had noted my gaffe. He did not correct me. And you can go far in life by-- [LAUGHTER] It reminds me of what Justice Ginsburg told me at the time she and her husband were celebrating their 50th wedding anniversary. She said that on the morning they were married, her mother-in-law said to her, would you like the secret of a long and happy marriage? And Justice Ginsburg said, well, yes, I would like to know. And her mother-in-law said, it helps to be a little deaf. [LAUGHTER] I don't know whether there is a Mrs. Early yet, but if you treat her, the way he treated me, you're-- [LAUGHTER] --you got a happy future ahead of you. [LAUGHTER] The somewhat less personal thing that I'd like to add is a note, not about doctrine, but a note about-- I was going to say tactics. Perhaps, this is sufficiently global even to be regarded as strategy. But it's this. This, like a lot of very well thought out moot court arguments, was an argument that, of course, was addressed to the development of doctrine. It's very difficult, however, to divorce cases on the development of doctrine from cases or considerations on the strategy of litigation. In this case, as in all others, if an issue is before the Supreme Court of the United States, there's one thing you can be reasonably sure of. And that is it was not taken merely to fine tune little doctrinal statements. We don't have the cert petitions here, and there's no reason we necessarily should have had them in a record like this. But I think we can reasonably assume that the Supreme Court of the United States granted cert in this case because there were 20, now 20 Buy American Acts out there in the states, and the time had come for a kind of global examination of the wisdom of allowing these things to proliferate as they apparently were doing. In the actual world of practice, if a cert petition in this case had come before the Supreme Court, there's one thing I think we can assume the Court would have done. It would not have acted on the cert petition without doing what, in Supreme Court jargon, is called a CVSG. The Court would have called for the views of the Solicitor General on the question of whether or not to grant cert. And if the court had done that, the Solicitor General would either have said, don't touch it, or would have revealed the position which, if it were touched, the United States would take. We do not have an indication here that there was any CVSG. And the fact is then that it's difficult to find in this case a great, big issue. There are loads of legitimate doctrinal questions here, and we've heard them bruited about. But where is the great, big issue, which is going to dwarf everything else in the argument if you can find it? As I suggested a moment ago, the original big issue was simply the proliferation of Buy American Acts. But once we get to the posture that we're in here, in which the United States has not filed an amicus brief, there is no statement on record of the position either of the State Department, or the executive more generally, or perhaps of the Solicitor General, even reflecting the views of Congress. Once we get to that point, the big issue in the case is the silence of the United States on an issue in which it is the power of the United States, after all, which is the subject of the case, whether it be under Foreign Relations Powers or whether it be under Foreign Commerce Clause. This presents a problem for the Court and a problem for the respondents-- I'm sorry, for the petitioners who managed to get their case up here. The problem for the Court is that we're not that good at foreign policy. We're not that good at foreign commercial relations. We need help, and we got into the, perhaps, adventuresome character of the-- I keep saying Zschernig and Justice Douglas's opinion. But in all seriousness, to me, it is inconceivable that the Supreme Court would decide this case today without a position stated and argued by the Supreme Court of the United States-- I'm sorry, by the government of the United States. And that's why I suggested at the beginning that perhaps the proper disposition of this case would have been to dismiss it on the grounds that cert was improvidently granted, that the improvidence having been indicated by the silence of the United States on an issue of great national interest involving judgments of fact, that, in fact, a Court unaided is very difficult to make despite instances in the past of the court's willingness to suggest that it would make them anyway. How, then, does this difficulty of the Court translate into what Counsel should do? Well, to begin with, it translates into a huge difficulty for the petitioner. And the brunt of this on the merits is a problem for the petitioner. For the respondent, it's relatively easy. The respondent can say, hey, look, there are 20 of these things, and the United States has not said a word about this. How can anyone seriously claim, whatever may be the fine tuned standards either of review on either of these clauses, that there is something invasive of the federal power here and therefore unconstitutional? That's the obvious position for respondents, in a case like this, to take. So I thought, what could the petitioners have done? And this is what I was trying to get at by the question. And I will be the first to say that if I had been arguing this case in Ames, I would not have thought of this. And the reason I did think of it was that I've been through enough litigation to realize that we wouldn't decide this case. Here's what I think the petitioners could have done, even though I wouldn't have done it either. The petitioners could have argued that the very silence of the United States indicates the invasive manner in which the Ames Buy American Act and others like it has for federal power. And at one point, Mr. Early started going in this direction. And the fact that the United States is not here is, itself, extraordinary. So you say, well, why isn't it? Why wouldn't it be here? Well, one way to answer that question, which I would have urged if I had been making an Ames ar-- if I could go back 50 years and make another argument, the answer I would have given was this. The fact that the United States is not being heard on an issue of national policy like this is, itself, proof of the invasion of federal power. The government of the United States does not have to make formal preemptive acts through, let's say, executive agreements on the foreign policy-- Foreign Relations Power or preemptive acts of legislation under the Commerce Clause. The government can still speak. That's what friends of the courts do. When the government didn't, and that is proof that something has skewed the processes of government here. Otherwise, the United States would have spoken. One possible explanation, plausible explanation, I think, for the fact that the government did not speak here is the history of the case that actually brought the case into court. It didn't come into court simply because the University of Ames suddenly discovered that the act was being would be violated by the use of foreign technology. The case arose because there was a lot of very public student protest, the focus of which was the internal policy of China, its labor policy. It was claimed to be unduly low wage. It was deemed to be oppressive in several respects. Therefore, if Ames comes in and says, I'm sorry-- if the United States comes in and says, oh yes, these Buy American Acts are great, it could very well be cast-- the government could very well be cast publicly as taking a position on Chinese labor policy. And if, in fact, the government comes in and says just the opposite, throw these things out, once again the government could be cast in taking the contrary position on Chinese labor policy. It is perfectly true that the government frequently does take positions that reflect on the domestic policies of other nations. But when it does, it normally does so in the exercise of its judgment that it is an appropriate time to do so. The very fact that the United States did not come into this case is as an amicus curiae is an indication that it felt pressed to take a position when it did not want to take a position, and in the best judgment of the executive branch of the United States at least, it was inappropriate to take a position. What could be a more obvious interference with the conduct of the United States in its foreign policy at very least than the silence of the United States here. How plausible that will seem to me a week from now, I don't know. [LAUGHTER] But that would have been a way to get a great, big issue in front of the Court would that would dwarf and would drive all the smaller points of doctrine and doctrinal articulation. And that is, as I said, that was what I was driving at. I wouldn't have thought of it when I was arguing, if I had been arguing this case, on either side. And as I said, Mr. Early moved in that direction in response to one of my questions. And of course, the respondents did emphasize. Ms. Freeman began the argument by emphasizing 20 states. The emphasis was not placed so heavily, as you know, on silence. But the general rule-- what at least motivates me just to have gone into this is-- the general rule is, if you are arguing a case like this, find a big thing to argue if you can. Maybe you can't. But needless to say if you get to the Supreme Court of the United States, somebody thinks there's a big thing there, or the case wouldn't have been taken. And see if you can find it. That it would have been my candidate for changing, let's say, the character of the litigation from one of doctrinal detail to one of sort of an overarching fact-based demand for some action by the Supreme Court, needless to say, whichever side you're on, action in your favor. So the one lesson I hope you will take from this is look for something big. And with that, we are going to adjourn, and I believe the drill will be that we'll have a chance to talk with Counsel for a while before we go over and Counsel get a well-earned glass of wine later on. We'll stand adjourned. [APPLAUSE]

Channel: Harvard Law School

Views: 20,484

Rating: 4.875 out of 5

Keywords: Harvard Law School, HLS, Harvard University, Supreme Court, Ames Moot Court, David Souter, Mark Wolf, Reena Raggi

Id: mI-z3iopas8

Length: 116min 5sec (6965 seconds)

Published: Tue Oct 10 2017