>> here is a news reefing, standing with governor and haley, commerce men james clyburn and lindsey graham, along with other lawmakers.

gov. haley: normally i would try to get you already, but i cannot do that with my thumbs up today. hopefully you are ready to go. this has been a very difficult time for our state. we have stared evil in the eye and watched good prayerful people killed in one of the most sacred of places. we were hurt and broken and we needed to heal. we were able to start that process not by issues that divide us, but by holding vigils, by having our neighbors, by honoring those we lost and by following to our knees in prayer. our state is grieving, but we

are also coming together. the outpouring of love and support from all corners of people across the state and country has been amazing. the families who lost loved ones have been unbelievable pillars of strength and grace. their expression of faith and forgiveness took our breath away. they have truly shown the world what south carolina looks like at our best. the mother emmanuel church reopened its doors yesterday. michael and i were there, we took our little ones. my children saw what true faith looks like. my children saw that true hate can never triumph over true love. my children saw the heart and soul of south carolina, starting to mend. i want to talk a little bit about the heart of our states, iowa to talk about the people of -- i want to talk about the people of south carolina i am so proud to serve. he the country in the world have watched our strength and resilience over the last few days. we are strong people who love god, our families and have great faith. we believe in a resulting neighbors, we are a state that has held tight toward traditions

and continue to grow and change that move us forward. we were recently named the friendliest state in the country, and the most patriotic too. american flags fly probably from home to home in south carolina. in just the last few months commencing nation lost our state go through another time of crisis, when we don't want the trail of what our own and the tragic shooting of walter scott. south carolina did not respond with rising of violence like -- with riots or violence like other places have, we responded by talking to each other, by putting each other's shoes does putting ourselves in each other's shoes, and fighting common ground in the name of moving our state forward. the result, both republicans and democrats, black and white, we came together and pass the first body camera built in the

country. i stand in front of you, a minority female governor, twice elected by the people of south carolina, behind me stands my friend senator tim scott elected by the same people love one just to african-american members of the united state senate. five years ago it was set that south carolina is the state that has changed the most for the better. we have changed through the times and will continue to do so. that does not mean we forget our history. history is often filled with emotion and that is more true in south carolina than other places. many of us have seen it in our own lives. we don't need reminders to in spite of last week's tragedy, we have come along way since those days and have much to be proud of. that brings me to the subject of

the confederate flag. for many people in our state the flag stands for traditions that are noble. the hate filled murderer who massacred our brothers and sisters has a sick and twisted view of the flag. in no way does he reflect the members of our state. those south carolinians view it as respect and duty. they see it as a memorial. that is not hate, nor is it racism. at the same time, for many others in south carolina, the flag is a deeply offensive symbol of a brutal past. as a state we can survive as we

have done, while still being home to both of those viewpoints. we do not need to declare a winner and a loser. for those who wish to show respect for the flag on their private property, no one will stand in their way. the statehouse is different. and the events of this past week call upon us to look at this in a different way. 15 years ago, after much contentious debate, south carolina came together in a bipartisan way to move the flag from atop the capital doll.

today, we are here and a moment of unity in our state, without ill will, to say this time to remove the flag from the capitol grounds. [cheers and applause] 150 years after the end of the civil war, the time has come. there will be some in our state who see this as a sad moment. i respect that. but know this, for good and for bad, whether it is on the statehouse grounds or in a museum, the flag will always be a part of the soil of south carolina. but this is a moment in which we can say that that flag, while an integral part of our past, does not represent the future of our great state. the murderer now locked up in charleston said he hoped his actions would start a race war. we have an opportunity to show that not only was he wrong, but that just the opposite is happening. my hope is that by removing a symbol that divides us, we can

move forward as a state in harmony, and we can honor the nine blessed souls who are now in heaven. [applause] the general assembly wraps up their year this week, and as governor, i have the authority to call them back into session under extraordinary circumstances. i have indicated to the house and the senate that if they do not take measures to ensure this debate takes place this summer i will use that authority for the purpose of the legislature removing the plaque from the statehouse grounds. [applause] that will take place in the coming weeks, after the regular session and the veto session have been completed. there will be a time for discussion and debate. but the time for action is coming soon. i want to make two things very clear. first, this is south carolina's

statehouse. it is south carolina's historic moment. and this will be south carolina's decision. for those outside of our state the flag may be nothing more than a symbol of the worst of america's past. that is not what it is for many south carolinians. the statehouse belongs to all of us. their voices will be heard, and their role in this debate will be respected. we have made incredible progress in south carolina on racial issues, yes, but on so many others. the 21st century belongs to us because we have chosen to seize what is in front of us, to do what is right, and do it together. i have every faith that this will be no different. it is what we do in south carolina. it is who we are. second, i understand that what i have said here today will generate a lot of interest. what i ask is that the focus still remain on the nine victims of this horrible tragedy. their families, the mother emanuel family, the ame church

family, and south carolina family, we all deserve time to grieve, and to remember, and to heal. we will take it, and i ask that you respect it. we know that bringing down the confederate flag will not bring back the nine kind souls that were taken from us, nor rid us of the hate and bigotry that drove a monster through the doors of mother emanuel that night. some divisions are bigger than a flag. the evil we saw last wednesday comes from a place much deeper much darker. but we are not going to allow this simple to divide us any longer. the fact that people are choosing to use it as a sign of hate is something that we cannot stand. the fact that it causes pain to so many is enough to move it from the capitol grounds. it is, after all, a capital that belongs to all of us. july 4 is just around the corner. soon we will once again celebrate the birth of our nation and of our freedom. it will be fitting that our state capital will soon fly the flag of our country and of our state, and no others.

god bless the people of the great state of south carolina. thank you. [cheers and applause] >> over the next few hours, we will focus on the supreme court rulings from today and those expected over the next week or

so. to let them search through guest registries without giving them a chance to go through the judge. then we hear the supreme court justices asked questions dealing with the government taking raisins away from farmers. later, two cases that have yet to be decided on same-sex marriage and the health care law. >> i am watching the affordable care act case and the gay marriage case. i have a granddaughter, who will have to leave my insurance as of october 3, she will be 26 and finished college. as far as gay marriage is concerned, i think we should let people who love each other get

married. i don't think us heterosexuals have done well, maybe they can do better. and i want people to show me where the word marriage is in the bible. >> i think there is a representation that having health insurance is health care. i have never seen where those who could not afford doctors were not taken care of. the second thing is, the fact that we need to be able to understand that the law is the law. that law needs to be fixed. >> a couple of viewers waiting in on the supreme court decisions yet to come. the court has three more decision days. after today, that case dealing

with hotel owners and warrantless searches, they struck down the law that allowed police to inspect hotel guest records on demand. the rejected the measure was needed to fight prostitution. here is the oral argument in the case. >> the city of los angeles versus patel. >> thank you, mr. chief justice this case is about whether to deprive scores of cities of one of the most effective tools that they have developed to deter human trafficking and drug crimes that have seized the ground in america's hotels and motels. the ordnance in question is the least intrusive -- ordinance in questions is the least

instrusive inspection scheme this court has ever encountered. it is limited to showing the police a single book containing only information that the hotels transcribed specifically for the city and that they have been turning over to the police by operation of law for 150 years. >> first -- two questions. is the information that they have been keeping for 150 years the same? because looking at the requirements, the early information was basically somebody's name and i'm not even sure their address. today's registry and requirements have information that federal law doesn't permit to be disclosed. like driver's license. credit card information.

federal law says, you can't disclose that information. >> the privacy interests however, have been pretty much the same. it was name and address in the rate that they were charged and so forth. and that is the information that the hotels have argued is the most -- >> all of the things that you say, the most effective tool for trafficking, prostitution, child molestation, none of that sounds like it's the purpose of the search is administrative. >> it is administrative, your honor. to understand why. you have to focus first on the target. the target here not people who are accused of crimes, the target is the motels and hotels who are required to keep records to record information. why are they required to record the information? for the deterrent purpose. and the deterrent purpose more specifically is the criminals do

not like to register. they do not like to record -- >> mr. rosenkranz, are you saying that the police will do this, request these records on demand and they don't have to have any reason at all reasonable suspicion of probable cause, nothing, because the purpose is to deter people from staying at hotels who might do bad things? nothing like a suspicion requirement. >> that's correct, your honor. it's the same rationale this court adopted in berger. that frequent unannounced spot inspections are necessary in order to achieve that deterrent purpose. that if the hotels do not record all the names, and more specifically they record most names but not the names of the guests they know are criminals, there's no way to know unless you have this frequent

unannounced inspection, that someone is missing. so there's a real necessity here as there was in berger and bizwell. >> tell me how many prosecutions there have been -- i use the word both criminally or civil for the failure to register people? >> there have been numerous prosecutions. i can't tell you how many. the complaints in this case, which are the beginning of the joint appendix, refer to the plaintiffs having been prosecuted multiple times or fined for failure -- failing to keep the records. i do want to underscore this point about necessity. the problem is not that the registers are empty. the problem is that the hotels decline to record the names of those who they know are criminals or the motels do.

>> that has nothing to do with the free right to search. those people who are refusing to do it are going to refuse to do it. a record keeping requirement has no -- has no constitutional challenge. what does is the unfettered access to that record. >> agreed, your honor. >> those people who don't want to do it won't do it. >> they go somewhere else or don't commit their crimes. but if they are --- if they are forced to do it, which is to say the motel won't let them stay there unless they register, then they will not commit those crimes in the motels. and the only way to make sure that the motels are enforcing that obligation is to descend on them without notice, as justice ginsberg was saying, and frequently so that they never know when the police are going to come. why? to make sure that they are indeed, reporting the information. why is the real time observation key?

it's because say the police show up and they have a register and they notice the room number 2 is unoccupied, according to the register, but they see someone in room number 2. they know only from real time observation that there is a violation here. if they get the register a month later, they have nothing to compare it to. >> you mean they can walk up and down the halls and see that nobody is a certain room? i don't know how you do that. >> it's not the way it works in particular. >> you have room number two as if it's right there. what if it's room 1204? >> motels, for example, are out in the open. >> what about my question about room 1204? >> the police may be allowed to wander around the hotel.

they probably will not see much if what they are doing is wandering back and forth looking at particular -- >> supposing they can see what rooms have cars in front of them. and i suppose as to room 1204 they can see usually behind the desk what keys are missing. what rooms appear not to be occupied. >> that's correct, your honor. that's why real time observation is so key. because you can't do that a month later. and that's why we have the same necessary -- >> why? i mean what you're saying is it's easier to prosecute, but it doesn't mean that you can't devote some resources and find this out. you do a surveillance, which is what police do for a lot of crimes. and you watch people going in for two hours and leaving. and you keep a record of it. you can even stop those people who are leaving to ask them. there's a whole lot of law enforcement techniques that could be used to combat the situations you're talking about. >> but not nearly as effectively, your honor.

>> since when has the fourth amendment completely been abandoned to how effective the proof that the police can get at the moment should be? >> your honor, that's not the test, but dewey refers to the fact that it's not as effective. it simply doesn't work, your honor. let me give you an example. if all the police are doing is looking for who is in what room and what keys are missing, they don't know what to look for until long after the fact. they may be looking for the wrong thing. there are many motels where they can't -- where they can't do it, for example, look at the keys because they are not available in easy to see. it's having the information right in front of them. and then comparing it to things they might be able to observe. >> mr. rosenkranz, why isn't

this like bar lows? it's not necessary on the following rationale. number one, most people will consent. so you go, the police go into a hotel and say we'd like to see your registry, most people are going to consent. if somebody says, no, and there's a real basis for believing that the evidence is going to be altered or destroyed, you can seize it pending judicial review. or you can get an administrative warrant ex parte and conduct a surprise examination if you want to. we talked about all of those things in barlows about why that suggested that these warrantless searches were not necessary. what makes this different? >> your honor, what makes this different is the distinction between barlows on the one hand and berger, dewey, bizwell on the other hand. that is the movibility of information. that is the transience of the

information that you use to verify. in barlows, if there is an unsafe condition, there is an unsafe condition. it's hard to see. this court said it also and distinguished -- this was distinguished on that ground. if it's the sort of condition that doesn't change over time you can get a warrant and it doesn't affect -- >> what's going to change here? the registry is the registry. and as i just said, if an unusual case you have the feeling that the hotel is complicit, you can make sure to freeze the registry. but that's not going an unusual case. and mostly the registry is going to be there. as i said, mostly people are going to consent to the extent not, you can go get a warrant. >> what changes is the information on the basis of which you draw that comparison. if you only compare the register -- if you get the register a month later, you can't compare it to facts on the ground. >> it's an hour later. >> you mean get warrant within

an hour? warrants within an hour are not that easy to get. >> what's the probable cause for the warrant? if you haven't seen the register, what's the probable cause? >> there is -- >> you have to have a policeman sit outside the hotel for days? you don't have probable cause unless you know there are people who are in the room for a short term, who haven't registered. >> that's exactly right. warrants are for probable cause. that's why berger and bizwell said, no, you don't need to get a warrant when you're doing an administrative inspection. >> if you prevail in this case and a member of the court sits down to write the opinion, does he or she have to use the phase reasonable expectation of privacy and say there is no reasonable expectation of privacy in our society, culture? do we just forget that phrase?

>> under the berger case, the court looks at the statute, asks is this a closely regulated business, was it necessary, is it a legitimate nonlaw enforcement purpose. and so forth. >> another way to talk about reasonable expectation of of privacy. >> indeed it is. >> talk about that in the katz case. telephone booth case. i'm not sure -- is that still a phrase that's necessary and required for us to address in an opinion like this? >> if the court adopts the berger rubric, what the court was doing is saying because this is so heavily regulated in the condecks of this case, because everyone knows that these registers have been reviewed by the police for 15 years, no one goes into the hotel business unaware that their registers

will be -- >> what are we talking about? hotel guests, right? >> no, your honor. the motel, the plaintiffs have taken the position that this is not about the expectation of privacy of the guests. >> yes, that's what i thought it's a hotel. you can't see my register. it's dear to me. >> even though i have entered a business that for 115 years has revealed these registers, and for 100 of those years actually revealed the registers to the guests. >> suppose that there is a statute that says -- they need to conduct the surprise warrantless searches because there's a serious problem with businesses turning up false payroll records that constitutional? >> i would think not, your honor. at least not without more information. the difference is there isn't this long history of the government reviewing payroll

records. and secondly, at least a closer question, and secondly, payroll records are not the sorts of things which you need spot inspections. >> they do. the government says that if you wait until they submit everything at the end of the year they'll falsify a lot of records and we really need to see what's happening right now on the ground in real time. >> either a record is false or not. you don't need real time verification. >> you do. because you don't want to give them the time to falsify things until the end of the year. we could have 1,000 examples like this. >> my answer is still the same. it doesn't have the same real time need to verify against facts that are -- >> why not? i'm checking to see if people are actually registered. you don't know -- until you see a person working. you at a construction site, you count the number of people, and say let me see your record keeping for your employees today. that's real time need.

>> but either the ultimate record that is submitted is false or it's not. you don't have the real time ability to verify whether there's -- >> you just keep a register -- you falsify the register the way you're saying these people would. my problem with the closely held -- closely regulated is i don't see one regulation that's not applicable to virtually every public accommodation entity whether it's a telephone company or a hospital. virtually all of these requirements that you list are part of the normal state regulation of entities serve people. is it your position now once we say this is closely regulated that everything is? >> no, your honor.

>> that sounds -- >> i'm eating into my rebutal time, so if i may answer quickly. first of all, the closely regulated exception is not -- is way more than just closely regulated. there are three other elements to it. you need to demonstrate the necessity. you need to demonstrate that it's not a criminal justice purpose. and you need to demonstrate that there is an adequate substitute for a warrant. there are no further questions i'd like to reserve the remainder of my time. >> thank you, counsel. mr. david. >> thank, mr. chief justice. may it please the court. the court can resolve this case on a much narrower basis than it has used in looking at other administrative inspections schemes such as the one in bar

barlows. this case did not involve entry into the nonpublic working places of a business. it did not involve an entry into the a residential property t involved an entry only into the public lobby area of a motel and brief inspection of the registry of the motel. >> it's very significant. it could well involve an entry into a drawer. we wouldn't normally say well because you can -- our rule's not simply because you can get into a house you're free to rummage through desks. >> that's certainly right. but what this statute requires is that the registry be produced for inspection. and the way in which the officer gets to the registry is to walk into the lobby. so -- >> you're saying if a police officer stands outside a house and says bring me whatever it is i want from inside, he brings it out, that's not a violation of the fourth amendment?

because, under compulsion, he tells the person you have to bring me what's inside. >> justice sotomayor, it would be a search. reasonableness would depend on the facts. >> my point here -- we are dealing -- >> we are dealing with businesses which have reduced expectations of privacy and not dealing with entry into the nonpublic areas of the businesses which is what marshalls was concerned with. kohlon made, berger, all those cases. the ninth circuit itself did not apply the rules that often those kinds of situations where the court has sometimes said an administrative warrant is required and other times said it is not. >> this is a challenge. are there any where a substantial number of instances in which the application of this thought would be constitutional? >> i think there would, justice athleteo. -- justice alito. if there were circumstances to justify the access to the registry. most importantly -- >> then you don't need the statute. >> the statute helps because it informs the -- >> no. under circumstances you could

get a warrant. >> well, you -- >> that doesn't work? >> i think it works, justice kennedy, in the sense that the statute provides encouragement for a potentially recalcitrant hotel owner to produce it because it's an offense for him not to. more importantly, i think for the court's evaluation of the challenge issue, there is no record in this case about what kind of privacy expectations actually exist with respect to hotel registries. it's largely a matter of conjection, speculation, and everybody's intuition. >> i don't see why it was ever required more. always required is a person to say this is my business record. and why do they have to prove more? >> because -- >> what are they supposed to prove? they don't use -- that they don't show it to anyone else? we never required that? >> i think they should so there is a certain degree of confidentiality associated with. >> there is today when the federal law requires that you not disclose credit card information and driver's license information and these registries contain that information. you can't have it both ways.

>> the registry is -- the registries by law, they are required to have the driver's license information taken from people who are paying cash. >> that's right. >> and requires the credit card information of people who are otherwise registering. >> the registry doesn't have to have the credit card information unless they check in at a kiosk. what the ninth circuit did was invalidate the statute. regardless of any fact it can't be enforced against anyone. >> i asusme, if the problem is license plates and credit card information and all that, it's not up to the hotel to complain about that invasion of privacy

it's up to the guests, right? >> i would agree with that. this case does not involve guests. it's just the hotel. >> and there are a range of situations in which different information is maintained in different ways. i think treating the spatial challenge is problematic. if you reach the merits, what the ninth circuit did was conclude this case doesn't trigger the very strong safe wards triggered when there is an invasion of a nonpublic space of a business. they treat it as an administrative subpoena case which does have fourth amendment requirements associated with it, but those requirements are that the subpoena be relevant. that it be reasonable in scope. and that it be specific. and the ninth circuit conceded that all three of those requirements are satisfied. section 4149 by itself establishes the relevance of the information for the administrative purpose that the statute serves. it is specific. and it is narrow in scope. and anybody who goes into the hotel industry knows that that is a -- inspection that they are subjected to. >> how do you distinguish marshal and barlow? >> you do, justice kendy. the distinction which is the

ninth circuit itself, is that involved entry into the nonpublic areas of the business. which exposes a much wider range of information to the inspection of the authorities. marshal covered every industry in interstate commerce and allowed osha inspections without any limitation. in that circumstance -- >> i don't understand that. you're saying it makes a difference actually whether you keep the registry at the front desk or back office? >> what i'm saying is that the ninth circuit analyzed it precisely that way. you can walk into the lobby of a hotel, the court so said, in the case, you're not invading any expectation of privacy. all you do is ask the hotel keeper, front desk clerk, to show you the register, which can be done simply by just moving the computer screen so that the officer can see it. and that is the most minimal intrusion on privacy interests if they exist. >> if i were running a hotel, i think i might prefer to have two uniformed detectives in the backroom where the guest doesn't see it. i think it's quite intrusive. >> the ninth circuit treated it as a lesser degree of intrusion than inspection of all the private areas of the business. that's why it applied to this

line of cases. once you apply the subpoenal line of cases, you realize the statute itself serves the purposes that that line of cases is designed to serve. the only remaining claim that's really -- the judicial review would be very difficult to accomplish in this case because the whole purpose of this administrative scheme is, we are not -- we regulate prostitutes. we regulate narcotics activity through the criminal law. the place where they are frequently conducted are low budget motels. they have a strong incentive to take cash and not fill out a registry. the regulatory purpose of 4149 is to target not the criminals but the place where they conduct their activity. and doing it in a classic administrative way. this is flaul activity. this is lawful activity.

you can rent a room. you just have to not rent it to people for cash for short terms. for no reservations. when they don't have an identification to show who they are. and you need to keep a record of what you're doing. >> i'm trying to figure out what you think is relevant here. let me give you a high poe it's not a hotel but hunting lodge. and there are record keeping requirements about how much people shoot and when they shoot them and what they shoot and so forth. the fish and wildlife service or some state equivalent of that we do not want to rely on people reporting this to us. at periodic points. we just want to make spot inspections, surprise inspections all the time. would that be all right? >> it seems like a much more difficult case to me in part because -- >> a public hunting lodge? >> private hunting lodge. this is a private hotel. >> there's a difference. >> i will have to defer to the members of the court.

[laughter] i think the interest that's being served there is far weaker than the interest that's being served here. which is a genuine problem reflected in the fact there are 100 statutes like this across the country. >> that's how you're going to distinguish it because it's more important? because the fish and wildlife people think it's awfully important to make sure that all these rules are complied with. >> i agree with that, justice kagen. do i think this court and its classic fourth amendment analysis governs the government interest to make sure of the intrusion. i don't know enough about the hunting lodges you have in mind. i will say this, that a mere requirement that you expose books and records you're required to keep at a regulatory matter and no one disputes that, to a law enforcement officer in a public area of your facility that's this case. >> there is no dispute here that you can require the hotel to keep the records. >> that is correct. we are not challenging that. >> i think there would be a big dispute with regard to private hunting lodges whether you require them to deep the record.

>> there may be second amendment concerns the court would weigh in the balance. i think that the court can resolve this case in an extremely narrow fashion. >> i think it's even more dangerous. look at almost how many businesses, retail businesses transact their record keeping in public areas. talk about any shop in the country. they don't go to the back virtually, any of them, and transact their business, keep their credit card information. they put it right on the computer in front of them. intruding on someone's private information in a public place eliminates the fourth amendment. >> i think you asked three questions. first the substantiality of the government interest. second the nature of the intrusion on privacy. and third, necessity. there is a strong need in the

case of these hotels where prostitution and narcotics activity flourish because criminals do not want to identify themselves when they check in to have regular unannounced inspections to give the hotels the incentive to comply with the registration law. >> thank you, counsel. >> thank you. >> mr. goldstein. >> mr. chief justice, may it please the court. we ask the court to hold that the city does not need to go to the judge in advance and get a warrant but instead that it merely needs to issue us a one-page subpoena. we can object to that subpoena but it's going to be enforced unless the city isn't actually implementing a legitimate administrative scheme because it's searching to harass us or investigate crimes. >> is it your position that there is no instance in which this statute and the implementation of it would be constitutional? >> it is because the hypothesis that you would use it for exigent circumstances or when you waive the right to privacy, don't actually involve the

enforcment of the statute. what's necessary here, the value in the fourth amendment, is the requirement that there be a regularized scheme. it's going to be a regularized scheme that either appears in the administrative rule itself. that doesn't exists here. there's no limit on when they can search. how often they can search. or the reason they can search. if there isn't that, then you put a court into the process. we make preenforcement judicial review available. the reason is the fourth amendment protects our sense of tranquility. the hotel owners and individuals and other context, businesses and other context need to know these officers aren't going to at their whim conduct these searches. >> suppose a city or state wanted to establish an administrative inspection regime along the lines of bar lows. what would it have to include in your judgment? could the warrant be issued by an administrative law judge as opposed to a superior court judge? >> yes. >> would it require probable cause? >> no.

>> could it be done without prior notice? >> yes. >> could you have different standards for different types of hotels? inspections for all hotels you but much more frequent inspections for hotels that rent by the hour, hotels that have a large number of guests who pay in cash, and so forth. >> yes. >> all those things could be done. if that's ok, it's not clear to me what that would add to the ordinance before us? >> that was, and justice kennedy asked how barlows plays out in this context -- mr. dreeben is half right in his answer. he is absolutely right the court said if you're not physically inspecting the premises, then you don't have to ahead of time get warrant. justice scalia, it's not a problem cause criminal warrant. all the court is required in this line of cases is that the government show it's part of an administrative scheme. the second part is what'ses

-- is what is missing. the key case mentioned in passing it hasn't gotten enough attention, it's called donovan vs. lone stare. it was decided by justice rehnquist, unanimously opinion and it considers a circumstance similar to this. that is under the fair labor standards act, the government can do what it does here. it demands employment records. the reason this court said that that comports with the fourth amendment, there is a balance. that is that the government has to issue a subpoena to which the employer can object. and that accomplishes two things. the first is, without burdening the government it interjects the possibility of judicial review. that way you know the enforcement -- >> what would be the nature of the objections? mr. rosenkranz, in answer to my

question, there is no notion of probable cause, reasonable cause. the hotel owner is required to keep these records. that's not disputed that they are required to keep them. the police don't have to have any reason. what would be shown by that hearing? >> your honor, this court's consistent line of precedence, there are six case that is have dealt with the subpoena rule have said the following. that is the concern when you have a scheme like this one that doesn't tell the officer how often or when to search, is that the officer will do two things forbidden by the fourth amendment. one is they'll do it in a harassing way, and second they'll use it for crime control. the real concern here, the city is validly saying they want to look at the record for example find prostitutes or the johns who are involved in renting the rooms. so that's why what you do is you let the police issue the subpoena. they don't go to the judge ahead of time. but the prospect there can be an objection, you can go to a

judge, is what protects the sense of tranquility of the business owner. >> what's the purpose -- you agree it's constitutional to require the register? >> absolutely. >> why is the state interested in requiring the register if it can't look at it with little notice? what's the point? >> justice kennedy, the fact that it's only interested in law enforcement i think is a point in our favor. but just recognize that what mr. rosenkranz is describing is the scenario that gave rise to your question about 1204 is inaccurate. if i play out a hypothetical. his point is follows. an officer shows up at a hotel and sees someone -- sees a light on in room 2. what he wants to do then is look and right then determine, look there is a registration card for room 2. i don't know what that proves because he doesn't know anything inappropriate is going on in room two, it doesn't matter. what the officer does is makes a record. there was someone in room two on june 1 at 12:00 a.m. and comes back two days later and serves the subpoena. there is no reason in the world -- that doesn't give any advance notice to the motel owner. if he has a particular concern

he can sequester the records. so they can have them held separately. if there's going to be an objection, which is rare, there's no reason -- his concern is about contell prainous observation. that's not the issue in the case. he can sit outside and look outside the room. the issue in the case is do you have to go in and have no opportunity for a judge to be involved before you search the record? >> seeing the light on doesn't prove anything unless you know that the hotel has not registered the person who is in the room. >> justice scalia, remember, our objection is not to them being able to either require the register or inspect the register. neither one of those is at issue. the question is, can they do that without giving us any opportunity to say to a judge what's actually going on in here is law enforcement or harassment, they have come in five times during the day. and that system, which is they issue the subpoena, they don't go to the judge ahead of time.

they give me a subpoena, right. they say, we want the records. and if there is an objection the officer has made the observation about room 2. and they can go ahead, telephone warrants are easy. there is no reason the subpoena objection can't be heard by a judge late on. he's observed and made a note about what's going on in the hotel. >> they could fill in while he's running off getting a subpoena. >> the subpoena -- >> who is in that room? >> he's not running off anywhere. the subpoena is simply handed at the desk. this is an administrative one-page piece of paper. let me say -- >> i don't understand. he has it in his pocket? >> yes. >> all you're asking for from this litigation the one who wants to inspect it just pulls out a piece of paper and hands it to him and makes it ok? >> there's two parts. that's how the subpoena works.t

the reason this court has the -- has required at the bear minimum, accepting the very limited berger context, when you hand the subpoena, the person who receives the seen kwla says, -- the supeona says, this is an unusual case, i'm going to go to the trouble of objecting. i think can i tell a judge and prove to the judge this is law enforcement in disguise. >> i could say the same thing without the subpoena. >> yes. our critical point is this guarantees him the right to say that to a judge. >> allows him the opportunity while the policeman is getting the subpoena to fill in the name of the person in what is otherwise a blank space. >> mr. chief justice, he's not going to get a subpoena. subpoenas don't work that way. >> i thought you said if he serves the subpoena, the other person can demand judicial review. >> that's correct. >> the police officer has to go somewhere to get the judicial review with whoever the hotel owner sends. >> it might not work that way. that is the hotel owner may have to file a motion to quash. it's not particularly important. mr. chief justice, here's the problem with that argument. >> it is important. because we are trying to figure out how this works.

policeman goes with the subpoena, the hotel owner says i object. what happens? how long does it take? >> it doesn't take any amount of time which is why the court has consistently required it. that is he says, i'm not going to give you the records. i'm going to file a motion to quash. if the police want to enforce it right away, they can go to an administrative judge. >> they go somewhere. >> yes. >> during that time, doesn't the hotel clerk take his pen and say, i didn't register this guy in room 2, i'm going to get in trouble, and he fills in -- >> no, for the reason given by justice kagen. you can sequester the records. we are talking about a set of cards. this is a real concern. it is a concern made up by the city's lawyers in this court when at trial they did not produce any evidence of this. it would be equally applicable in every kind of required record, same is true in a construction site -- >> if you object and say i'm going to take these records and keep them in the police car trunk until we resolve this?

>> yes, can you do that. >> there is authority? >> sure. it's very similar to what this court has said on the fourth amendment context. remember when the police show up at someone's house and they are concerned about the destruction of evidence inside, what they do is simply -- >> that's much more intrusive than -- >> justice kennedy, don't think the government can have it both ways. these are our private records. they want to do something incredibly unusual that the fourth amendment forbids. they want a scheme 245 doesn't say when they'll search, how often -- >> they are records required by law to be kept. and you are are not objecting to that at all. >> justice scalia, that's right. the other side makes a good point. and that is these are business records that receive reduced fourth amendment protections. we understand that. so did the unanimous court in stare.

what it said that's the reason we don't have a probable cause requirement here. that's why we require the minimum amount of judicial process which is the prospect that if the owner has a good objection, they can go to a judge. that's why we don't have the fourth amendment's full protections. >> they can be sequestered by the police officer, even asked by the chief justice, do you have to have some kind of outside approval. if the hotel owner says you can't have these records, the police can say, give me the books and take them away. >> yes. not inspect them. hold them aside. this is a real problem, which there is no evidence of, if they want to hold them aside, then they can be just sequestered. nobody looks at them. >> that is the seizure. >> absolutely. >> why is that justified in looking at the information not?

>> this court has held that in the identical circumstance, this arises in the fourth amendment context. when the government is concerned about the destruction of evidence before it can acquire a warrant, it can sequester the property. it can seize control of the property without searching it. >> that's just if it has probable cause. >> your honor, it has the relevant level of cause that's required in the particular context. >> i thought you said in response to my earlier questions that the city could have a regime under which an administrative law judge issues a warrant, not a subpoena, for a periodic inspection. so the officer would have the warrant, would go to the hotel. here's the warrant. this is your periodic inspection. there would be no prejudicial review. there would be a challenge later. >> no, your honor. what this court has said in cases, is when you get the preenforcement judicial review that is the judicial involvement required. we would be perfectly happy with

the difference between your hypothetical and this one is that a judge is involved and shows that this isn't for law enforcement, it's the orderly operation of administrative scheme. whereas what the city wants is for a beat cop to go in at any time as often as he wants for any purpose. >> the complexity in the answers and frankly surprise i have at some of your answers may indicate that this is not a case for a spatial attack. we have to go back and decide these issues on a case by case basis. >> justice kennedy, ail give you my response to that. that is the court in all of the

colonnade lineup cases has dealt with things on a categorical cases. never on a case buy case basis because it looked at the structure of the scheme. this is a scheme where they are not going to have any reason -- they don't need justification to come in. we know they can seize. it's a particular record. they can do it any time. that kind of scheme what the court has insisted on, the court will take a look at loanstare is there be this minimum of a subpoena process. >> i'm sorry. i thought the stronger answer would be we have always looked at a lack of procedural protection under a challenge. any time that the challenge is to the lack of process, we have looked at it, implied, whatever, it doesn't need to be . >> let me add one other point that's underappreciated in the case. not only does our complaint assert an as applied challenge there was a trial on that, and the record on the as applied challenge in the record in this case, we pursued our spatial challenge only after before the second trial it stipulated they only had spatial defenses of the statute. that's the reason we had this oddity we are here on the facial challenge. the evidence had a been collected. there is nothing to be gained by having a second trial.

>> you constantly said that one of the objections that the hotel owner can make is that you want these records for enforcement of the criminal law. right? you say that's bad. >> yes. >> but the whole purpose of this thing is to enable the criminal law to be enforced isn't it? >> there are two different points being made here. one is, you are quite right. they have an administrative scheme. the point of the administrative scheme is to judge for criminal violations. my point is different. imagine on tuesday, a police officer comes in and says, look, i think there's a prostitute in room 3. what aim going to do i'm going to invoke this 4149 and see if that person's name matches up as a prostitute. that's criminal law enforcement. it requires probable cause. the fact that they have an underlying administrative scheme doesn't mean they can investigate crimes through using this evidence. the court has said time and time again in its administrative decisions that it's really important that we involve the courts because those -- in this case has presented more starkly

than any other, that you misuse the administrative process -- >> i think there may be an exception to that principal where the whole purpose of that scheme is to enable the detection of criminal activity. and then the objection would be the whole scheme is bad. you cannot require them to keep books. because it's whole purpose is to detect criminal activity. that's not what you're arguing. they can keep the books in order to detect criminal activity, but if they request the book in order to detect criminal activity, it's bad. it doesn't make sense at all. >> because it's not the argument. and that is -- >> what is the argument? >> their defense of the statute is not that the records are used to detect crime. it's that they are used to deter crime. they don't look at the records to find criminals. all they do is look at the records to make sure we are keeping records. my point is that one day a police officer under this -- it can happen regularly. if an officer will come in and say i'm not concerned about whether you filled tout the

form. i think there might be a prostitute in room 3 and use it for criminal law. >> mr. goldstein, i thought an equally important purpose behind this law is, as you said earlier, prevent harassment. i don't like this hotel owner. i want to drive this hotel out of business. i'm going to be showing number -- up in his lobby every day. that's part of what's going on here, right? >> in fact the principal thing this court's precedence has pointed to -- look what's missing in this ordinance. every time they say we identify specifically the records. the question isn't what the records are. it's the loss of sense of tranquility provided by the fourth amendment. we don't know how frequently and harassing purpose and what reasons at all if police officer will come in over and over again. >> have we used that phrase before? >> which one? >> tranquility? >> i don't think that word is. >> talk about privacy and all that. i'm not sure that the fourth amendment should be expanded to protect the sense of

tranquility. >> the problem with tranquil hotel owners. i associate with owning a hotel. >> it is the sense of certainty that the fourth amendment provides that what you do know is that there are going to be limits on when the police come in and say show us your papers. that's what we are talking about. >> i think there's some -- they do it. in hotels they have these notices posted all over about where the first emergency exit is and all that. could police come in and check to make sure the hotel has those posted? >> yes. >> without any warrant? >> because they are in public spaces. >> is the back of a hotel room door, is that a private place? >> take for example in the back of the restaurant, in the back of the kitchen -- >> i'm talking about every hotel room. >> inside the room? >> they say, look, this is a very important thing to make sure people don't die in a big fire. we want to make sure you have them. let me look at room 12. >> great example for us.

that's a fire inspection regime. what has to happen is there has to be a subpoena ahead of time. at the very least this court -- standard the court has ever applied is in a case called dewy. what dewy said is at the very least if you're not going to involve a court, you have to have a set of rules when these searches are going to be conducted and how often. >> i didn't understand your answer about harassment. maybe it is in the record. or maybe it's because this wasn't as applied. the police, even if this ordinance were invalidated, the police could show up whenever they wanted, couldn't they, and ask for the owner or person at the desk voluntarily to disclose the register? they could be in the lobby as much as they want. exactly how does this aid in harassment of hotels? >> because of the fact that they are requiring us to produce private records.

it was always the case in cases like bar lows, where the police couldn't show up and inspection the premises, they could harass. the court said if you're going -- everyone agrees this is a fourment amendment search. >> it's a public space. i don't know whether it's dispositive, but it's of some relevance. they walk in. two scenarios, one with the ordinance, one without. without, they walk in and said would you in the kind anyof your heart look at the register? and the owner says no. i don't want to. and they come back the next day and do the same thing. that's the first scenario. second is, they come in and say let us see the register. you show them the register. and what? it's a harassment because they sit there for a while and the guests coming in see the police in the lobby? i don't understand -- >> it's the fact that day after day after day we have to give them our private information. and it really will involve a

problem, it can harass and put us out of business. imagine the following scenario. we are put in this position because they come up with this hypothetical about when it could be valid. the officers see someone come into the motel. each time they see someone come into the motel they come in and say we are the police. let us see the records. it can interfere -- >> if you had case specific example, that might be one thing. it would help if you could tell me what goes on in this precompliance judicial review. the hotel owner says, sorry. you can't look at the registry. i want judicial review. what is the nature of that review? >> this court has considered that question in the fair labor standards act. banking context and tax context. california bankers, donovan and loan stare what it has said is the administrative agent with the police officer, whoever enforces the law, don't have to go to a judge, is a one-page subpoena. then there is an objection by the business owner in any of these context.

in banking, these are records that the government requires you to produce. and then what happens is that the -- what generally will be the rule, it's up to the city. the city will put the onus on us to go to a judge. the fact the onus is on us to go to a judge and the objections limited, which is to say we only get to object this harassment. rule is they almost over give the records. it is the prospect we can go to a judge that tells the beat cop he needs to behave. >> those are the only objections that -- >> yes. >> harassment and using this for law enforcement. >> yes. that's in court's precedence. that's the rule -- >> how many of these courts precedents involve a business that has been treated like a public utility? there are requirements for hotels how big the room has to be. how many people you can put in a room. even in many locations how much you can charge for the room.

the hotel owner is not like the private business. he is a regulated provider of public services that has traditionally been regulated closely over the years. >> the first question you asked is how many times you have been asked that question, the answer is none. the second answer to your question is, in the relevant sense, which is to say how much of this property is protected and private, is that overwhelmingly hotels have constitutional protections. remember, 95% of this hotel is going to be the guest rooms. and unlike in cases like -- remember they search the open junkyard. unlike cases like bizwell where you inspect the open storage or go behind the scenes, here the police can't do it. the fourth amendment, everybody agrees, protects privacy at the hotel. and so there is a much greater expectation of privacy on our part. >> the question that justice scalia is asking, is there a reason to think that hotels are a more heavily regulated industry than all the other

industries that we can think of? >> no. just think about it. california bankers and miller are cases involving banking. banking is incredibly heavily regulated. you have to to have a charter. the government requires all types of records. remember, justice scalia, those are the bank customers' records. they are about the bank customers' transactions. what the court said in both those cases, in rare exceptions like the $10,000 requirement. title 1 is unconstitutional because it requires a subpoena. there is a prospect of getting a judge involved if the bank secrecy requirement is too onerous. >> inn keepers have been regulated for centuries. they have duties to the public. i'm just puzzled by this. you concede the record has to be kept. but there are very few reasons for keeping those records other than law enforcement.

>> that we disagree with justice kennedy. we have kept these records and inkeepers have kept these records for time immemorial. we use these records for different purposes. every record of our business transaction. we use them to keep in touch with our customers. it's quite proprietary information. >> motel 6 does this? i never received anything from them. [laughter] >> my goodness. >> you may not be in their frequent guests. nobody doubts. remember, this is an ordinance that applies to the four seasons, and ritz charlton and everything else. they carve out a subsegment while we are attentive to the point we are not asserting -- the guests are not asserting 4th amendment rights here, let's not lose sight of the fact that these records can show very very personal information. not just the driver's license

information, but whether you stayed at a hotel during a religious or political convention. >> complaining about the privacy interest of the guests. >> justice scalia, here's the point. they agree this is a fourth amendment search, point one. then, what you are doing you have to make an honest assessment whether this information really does further the fourth amendment valu of -- 4th amendment value of privacy. it does. because this has private stuff in it. there's just no real dispute about that. i'm sympathetic to the fact that inn keepers have been regulated for a long time. in 99.4% of the jurisdictions in this contry, this is not the rule. there are hundreds, but there are 18,000 other jurisdictions in which this is not the rule and apparently has never been the rule. and the nature of that regulation isn't one that on our sense what does that tell us about whether our records are private? certainly, we can identify a huge array of other businesses that are regulated.

one point i wanted to make was in 2002, the department of justice did a study and it found that 335 different -- of federal law is what i described to you. subpoena first in order to get the records. there was a handful of them are none of them involving the records with the possible exception that you never have to get a judge involved. >> 99.4% jurisdiction spirit is that include, are you comparing the little hamlet in indiana with los angeles or new york? >> i don't know the answer to that particular question of the particular city. >> the motel has a private interest. they can do that by keeping their own record. you have conceded they can require the information as a matter of law.

>> my point is this. my point is because they can do it here, they can do it anywhere and the government can require any business to keep track of all of its transactions and customers and if the government can then just say, all right give us that information, they reduced the fourth amendment. the amount of government regulation here is massive. the reason the general is here on behalf of the united states is that there are hundreds and hundreds and hundreds of regulatory schemes the federal government administers where it is now required to use a subpoena. >> a subpoena is worthless when what is sought is something that could be easily destroyed, hidden, or falsified. it's very useful if you are trying to get complicated records that can i get is lee

altered during the time the subpoena is issued and the time it is enforced. nobody issues a subpoena for the murder weapon, that you suspect is in somebody's house. these weapons are more like the murder weapon. you seem to concede when you say the police concedes them. the subpoena is worthless then. >> the record is how many hours somebody worked with how many hours of pay. i just do not understand the nature of record-keeping. the court has insisted on this as a bare constitutional minimum to keep the enforcement officer in line and let them know the enforcement officer is in line. they do not want to put undue burdens on the subpoena. >> you think payroll records in general are no more complicated than the hotel that runs by the

hour? >> it is relevant, the question is, the records is 50, the accurate -- the actual record would say 50 and i just want to fill in 35, yes. the court did not even think that was a remotely plausible argument in the line of cases i am describing. >> thank you, counsel. four minutes. >> thank you. let me start with the facial point and an circle back to the merits. mr. goldstein is describing the rule, the only objections are whether this is for a legitimate purpose. if that is a concern, that is a challenge where if a hotel has a cop coming up to them five times a day and they come in and say, this is really harassed and the searches are in a brick, if it is the purpose of the officer

doing criminal investigation rather than actually caring about whether my records are complete, that is a challenge. the plaintiffs have not even try to demonstrate that this ordinance is unconstitutional in every circumstance. on pages 19-20 in our brief, we developed numerous scenarios and mr. goldstein mentioned only one of them. for example, where the hotel is required to upload records to the police department every day, it may not even be a search, but it is less intrusive. >> i did not understand those examples. the police could act without this in some of those examples. >> not that one. in some of them, the event has the purpose of requiring someone to do something they were not -- would not otherwise have submit to.

the one i just gave as an example, the scenario of uploading the documents, it is less intrusive. the problem here is that the plaintiffs have tried to invalidate every possible application of the ordinance but they have not done the in truth -- intrusiveness balance one needs to do for each of them. let me circle to the merits. >> i am still very confused about this. there is really a potential exception to a warrant. even a fourth amendment warrant of going into someone's home. there is someone sick on the other side. if there is a felon into the place. but that does not eliminate the need for a warrant. it is not, tell us later. police cannot keep going in and fish around for an excuse.

it is a process issue. you are entitled to a warrant, a subpoena. that is -- they are challenging. they are not challenging the other reasons why the police could go in legitimately, and an exception to the fourth amendment. they're asking whether this kind of search, generally, without all of those other circumstances or other fourth amendment exceptions is constitutional. >> understood. let's not talk about exceptions. let's talk about another example where the motel keeps the register open like they did for

a hundred years, and snatch away when the police come to a request that is a different issue. it is in the public. >> for that reason, they would have no expectation of privacy in the fourth amendment calculus would be totally different. >> then it is not a search at all. >> no, if they snatch it away, there is work. >> no expectation of privacy, we would not say it is a search at all the police were taken away. >> exactly. we would win the fourth amendment case there that is being invalidated by deciding this. >> why don't you take an extra minute or so. >> thank you. let me emphasize this is a narrow rule we are talking about. we are talking about a rule unlikely to be repeated in so many of the other circumstances discussed today. it is about an inspection of only a single vote of information the government

requires hotels to maintain and that mr. goldstein has admitted the government can require hotels to maintain. it is in a context especially prone to criminality, that people are using these precisely to commit crimes, where the gaps are quite detectable in real and not detectable otherwise. in industry where there has been hundreds of years of regulation including a history of warrantless searches even broader at the time of the founding third hotels were being searched without warrants at the time of the founding. a history of 100 years of police inspections in los angeles itself and even 100 years of these things being open to the public. the court has no further questions. >> the cases omitted. >> more from the records. the government cannot force far

mers and we took your call today about what cases you're watching as the supreme court term draws to a close. >> i am interesting in king v. burwell. i get my health insurance through their new york state exchange and i am very grateful that in this day, not the kind of employment security there once was. an idea one has gets one health insurance through an employer whose time has passed. i do not understand how the state that do not have their own it changes for example on c-span, i heard the louisiana nurse say it is the supreme court rules against subsidies and states that do not have their own exchanges. he does not plan to create an exchange for louisiana area how can he get away with that?

already any governors or states who say that, i do not under how the substantial portion of their population will means it, how can they politically get away with that? and say the supreme court does rule against those days, why would they feel tremendous pressure to create their own exchanges. i have not heard it in the media explained. >> gay marriage because i do not think the contract i entered into with my wife should be changed. as they needed their own definition of civil union. i guess i would move to get my marriage annulled. because i -- it is not the contract i would enter into. >> the supreme court today ruled on the new deal era program that lets the government came raisins away from farmers ruling the

program cost to shuttle under the fifth amendment. they sided with california farmers who claimed they were losing money under a program they called outdated in ineffective. they were fined for trying to get around it. >> your argument in this morning. mr. mcconnell? >> mr. chief justice if it would please the court, thank you for being willing to hear this case for the second time. against my clients commanded the relinquishment of funds connected to specific pieces of

property unnamed reserve raises. my clients appear in capacity of handlers but under the particular facts of the case the economic circumstances are somewhat different than ordinarily true in this industry because as handlers, the horns assumed the financial responsibility for the raisins that were not turned over to the department of agriculture. the producers in this case were fully paid for their raisins. it is a factual finding to be found in the opinion at 66 a of the appendix. and warrants pay the producers for their raisins according to the judicial, it became part of the inventory of the horns of when the raisin administrative

committee which i will refer to as the rac came after the raisins. it was the horns and the horse only for the economic burden of this taking. >> i thought the growers were paid only for the volume they were permitted, that was permitted volume and they were not paid for what goes into the reserve pool? >> that is true in the ordinary course. that was not true in this particular case because of the unusual business model of my clients. these producers pay for all of their raisins. >> are you attesting to the volume or is it just the reserve pool that you find? >> we believe a volume limitation would be a use restriction that might be

challengeable but it would not be taking. in this case because an agent of the department of agriculture actually takes possession ownership of the reasons, it is that aspect of the case which was challenging. >> if you are not challenging the bargaining itself, you cannot sell more than 60% of your crop. >> that is correct. >> what happens to the rest of it? you won't be able to feed your family. >> in the ordinary case the reserve percentage, which in one case was 37%, and was 30% in another case, 47% is handed over to the raisin administrative committee. >> if we just had a volume, you cannot sell more than x amount

i'd take it they would get nothing at all, at least with this reserve pool there is a possibility of getting some. >> the way volume controls generally work is the owner of the produce is permitted to sell that reserve as market conditions continue. in this case the rac sold the reasons law in some cases even above the field price. there was a market for the reasons so i would assume volume controls under these economic conditions might have left these particular people better off than under the current -- >> you are complaining about administrative expenses? i still don't understand why this makes this consentual case

as opposed to -- you have given up on this being a consensual case. >> we never claimed there was a consensual case. >> basically you see a nexus between the regulation and its purpose. >> we do but more fundamentally, this is actual transfer of the raisins themselves to the government. >> how is this different than leonard? >> leonard involved oyster shells which are owned by the state, they are wild animals the property of the state and the oystersmen had no property interest in some other than what the state chose to license. >> is that really true? when these fishermen took the oysters, other waters.

>> they have whatever interest the state of maryland provided for the state of maryland with held the 10% of the oyster shells for the purpose of fertilizing -- >> i would have, as soon as they bring oysters out of the bay bring their catch to shore, and has been theirs. >> except for the 10% of the state reserve the. >> what sonia sotomayor's question was, wouldn't the same be true of raisins? >> raisins are not wild animals even if they are dancing. and belong to the federal government. >> you think leonard is an animals case as opposed to the

state contests your property case? >> they did also call it a tax. i am happy to address whether this is the tax because under this court's standards, criteria, but referring to the criteria in this case, this was not an internal revenue code not collected by the internal revenue service authorized by congress. it is not a tax. >> it didn't happen that way in leonard either. the court was basically saying government could do this because this was the good in congress. as long as it meets a consensual tax, there is a nexus between the government's goal and the regulation then it is ok.

they used to fertilize oyster ponds or fertilize the oysters here they are doing it to maintain prices and giving you whatever is left over on the reserve. >> the fact is oysters belong to the state of maryland and when the state of maryland decides to allow fishermen to harvests -- >> where in leonard was this filed? >> i would be happy to file a supplemental brief with the maryland citations' indicating the oysters belong to the state of maryland. >> i thought what the constitution required for the taking was just compensation, not a reasonable nexus, a good policy. >> you are not wrong about that.

underlying the government's briefs, we ask what his position is or characterize their position if you choose. what difference does it make? did you understand that to be the underlying premise in their argument? or is that unfair on my part? >> they say that from time to time. in fact, there is a fundamental difference between volume control which is present for a number of agricultural products versus the taking because in this case the government literally takes possession of the reasons. -- raisins. it can use the raisins as collateral. >> why didn't you ask about the

reserve arrangement and the government's position of the raisins themselves? you're not attacking volume and you cannot target more than x amount. why didn't you ask from an exemption from the reserve pool, to get rid of the bond limit as well? >> in this part of this there is no separate volume control in the sense that there is no regulation that tells you producers or handlers how to do that but instead they are told to set aside raisins and give them to the government so here there's a taking. >> the part that isn't given to the government, suppose we just -- couldn't you have excised that part of it and still be

used to limit the amount that would be marketed? mr. mcconnell: justice ginsburg, the way this arose is the department of agriculture came after my client. this is not my lawsuit. justice ginsburg: a counterclaim? mr. mcconnell: it is a defense. a department says give us raisins or the monetary equivalent and we say that is not constitutional. justice scalia: would there be any obligation on your part to propose an alternative? the government comes and takes your property. can you resist without saying, government, you can do this in another way. please do it in a different way. mr. mcconnell: we do not, not, and i am not sure any alternative ways would be permitted.

justice breyer: it goes on from this. maybe the answer, but for arguments sake, some raisins in my basement. i am in this program. the government comes with a shovel and some burlap sacks and takes the raisins. well, sounds like taking to me. at the next point the constitution does not forbid that. you have to pay just compensation. i want to know what happens. i guess that the government could argue, look at this program. it is a big program. what it does is gives raisin farmers, at the public expense more money. if you do not want us to take your raisins, fine, but there will be no program if everyone said that. we have a rule against free riders. we will give you what it cost you to take your raisins, in fact, the difference between

what you received given the program and what you would receive without the program. that difference works in your favor. it gives you money. it does not take money. so there is no compensation do. if we were to have compensation you should pay us, the government. how do you get by that? if you can't, how will you avoid paying the fine? i do not see the relation between the taking argument and how it eventually you either get money or don't have to pay the fine. if you have a minute i would appreciate an explanation. mr. mcconnell: i would love to. conceptual and practical response. let me give the practical response first. my clients are certainly not better off. by the secretary's own calculation, the price of raisins was $63 per ton higher

with the volume controls than it would have been in an unregulated market. the fuel price that year was $810 per ton for taking away 30 percent of their raisins does not end up with my clients better off as a result. quite the contrary. they lose money. we have the calculation. justice kennedy: you are going to get to the theoretical argument. the response. well, the price you just quoted is because of this program. mr. mcconnell: by the secretaries on calculations $63 of that $810 is attributable to the volume controls. only $63. justice sotomayor: weren't we

told that the demand for raisins is inelastic? you are going to have what happens before. you are going to have prices dropping. that is the purpose of free competition, isn't it? mr. mcconnell: under today's conditions it is not as enormous as it would need to be. justice sotomayor: well, there is no reserved. mr. mcconnell: what i said today -- justice breyer: one of your arguments. the conceptual point is that this is a per se taking. that would at most go to whether there was implicit in-kind compensation which would go to the question of compensation. implicit in-kind compensation is a complicated matter having to do with whether there were

special benefits. there is a split over -- all over the country on that. i don't think we want to get into whether this would be a special benefit. would you have any objection to my writing if i were to write it like this? it is a taking. ok. the object of the program is to give farmers more compensation than they would have without it. programs can work badly. sometimes it is counterproductive, but if it is working well, that is what happens. we send it back to the court did it work to make your client better off and what roles do you follow. mr. mcconnell: i think not. i am close. if this were an eminent domain proceeding the lower court will determine whether there was implicit in-kind compensation proceeding, but this is an

enforcement action specifically guided by the regulations in the seven cfr, and other those regulations, we know exactly what takes place. implicit in-kind contribution is not provided for. what is provided is that the -- if reserve raisins are not handed over to the rac the handler must multiply the number of raisins by the field price and that is it. that is also the measure of the value of the raisins so that if they take that, the compensation is exactly that and the two things simply are a wash. the broader principle is that this is not a program designed to provide compensation.

the government almost concedes this. this is not like getting land for a post office where the government intends to pay. this is more like kaiser, at -- aetna or some of the others where if it is the taking the government has no intention of paying a compensation. and in cases where there is a taking in the program does not contemplate compensation, the standard judicial remedy is to forbid the taking. justice kagan: take you back to whether it is a taking. i have been trying to think about whether your argument would apply to other kinds of programs and how it might apply. so how about just programs where the government says give us -- produce records for us.

i am sure there are programs like that in the world. something intuitive. i am wondering. it seems to me the government asks people to turn stuff over all the time in the form of records. how would that fare under your argument? mr. mcconnell: if what the government is asking for this information, this is not going to be a taking. if the records themselves are of historical value -- justice kagan: they are just physical objects in the same way that raisins are. the government wants some records. mr. mcconnell: the government does not take permanent possession of records. if i am in an irs audit and they asked me to show me the records

i show them the records they see the information, it is not a taking. justice kagan: you are saying the government cannot ask you to deliver records to them? mr. mcconnell: i did not say that. they can ask me to do that, and it is not a taking unless they take permanent possessory interest. if they go off and sell the records the way they sell the raisins -- mr. mcconnell: -- justice kagan: they are keeping the records. mr. mcconnell: if they are keeping the records forever, i am not sure, but i doubt very much it would be a taking. the value of the records is the information, which is what i assume it is in the regulatory program. we're not talking about actual physical -- justice kennedy: there are cases where the government all the time in criminal cases takes control of valuable objects for evidence and sometimes keeps it forever and ever and in some cases there is a taking. a taking.

i think we and other courts have said that. only so long as is reasonably for so long as the case. you have a valuable diamond ring which is evidence. mr. mcconnell: complicated sets of rules having to do with contraband and property used as an instrumentality of a crime. but this is extremely far afield from raisins which are a valuable piece of property. justice kagan: i'm trying to understand why it is far afield and what it is far afield from. you said information is no problem. the people have property interests in information all the time. if the government says, you have to give us that information, why is that not subject your rule? mr. mcconnell: information can be property, intellectual property for example, trade secrets.

i do not think ordinary records such as the irs demands from taxpayers is a taking. justice sotomayor: we said the turning over of trade secrets which is property, you have just submitted that, for the privilege of selling commodities, pesticides was ok. it was not a taking. how do you deal with that case? mr. mcconnell: there is broad language in that case which this court court cut back upon in nolan versus california coastal commission. the court held that monsanto could not stand for the proposition that is an affirmative benefit to someone simply to allow them to use the property in an ordinary sense. there has to be an actual affirmative government grant of a benefit. justice sotomayor: getting $63

more a pound for what you sell seems like a significant benefit. mr. mcconnell: $63 results from volume controls. that does not require a taking. the taking itself is of absolutely no value to the producers or anyone else other than those who received export subsidies from the sale of the raisins. they are the only ones who benefit from the actual taking. justice sotomayor: but you could not do it. you would have a product that is valueless except that you could eat at home, but you did not intend to eat at home. if they gave you the raisins would you be able to export them and get the government subsidy? mr. mcconnell: if they -- my clients are not in the export business. if my clients were selling raisins for export, they would be entitled to receive the

export subsidy, but that is not the business they are in. justice sotomayor: my point is you could not otherwise sell this commodity. if all they did was put it in the house and say to the producers sell 60 percent this year, what would you do with the raisins? it would just sit there. mr. mcconnell: the way other programs work is, there is an initial reserve and as market conditions develop and more information is available the owners are permitted to release more and more into the market. justice ginsburg: what would happen if it went the other way? mr. mcconnell: that would be -- that would certainly be a different case. if it was completely the other way it could well be that the owners of the raisins received no money at all.

but it is still a restriction on their use. the raisins haven't been taken from them. in this case the raisins are taken from them. in one of these uses, the government was able to sell the raisins for more than the field price. justice breyer: there is still what we do about this fine. imaginary plan. i do not think i will ask it. i will figure it out myself. [laughter] mr. mcconnell: no further questions, i will reserve the remainder of my time for a -- four rebuttal. chief justice roberts: thank you, counsel. mr. kneedler: mr. chief justice and may it please the court competitions isolate one future of the comprehensive program regulating the commercial

marketing of the product regulatory program established with producer approval and for their benefit from a cooperative program among the group. the raisins are not put into the program for the benefit of the government but for the benefit of producers and they enter the stream of commerce. in fact, the producer is affected -- justice scalia: they are ingrates, right? you're helping them. they wanted this and it is for their benefit. mr. kneedler: these petitioners do not want the program, but it was established on the premise. justice scalia: it is one feature of an overall program which happens to be the taking of raisins. you can have a lot of features no objection, but where one is a taking, you have to justify it by just compensation. mr. kneedler: the question is whether it is a taking. we believe it is not the -- it

is not. justice scalia: we used to say it is not if it involves personal property. only real estate. mr. kneedler: that has not been our position. we have not argued personal property is not subject to just compensation such that if the government came in and took someone's car -- well, the government has not taken the raisins -- if i could set this up and explain how it operates this program operates only when the producer, grover has voluntarily committed the raisins to the stream of commerce, been put into the stream of commerce, turned over to the handler. the marketing order only regulates the conduct of handlers. justice scalia: the government can prevent you from putting something into the stream of commerce, charge you for putting something into the stream? mr. kneedler: the government can attach reasonable conditions. justice scalia: including

taking. mr. kneedler: that's, i think is the lesson of monsanto. justice scalia: it would be an unconstitutional condition for putting something into the stream of commerce. mr. kneedler: that analysis would apply [inaudible conversations] 's -- justice alito: are there any limits to that? you can sell cell phones but any fifth one, you have to give to us. you can sell cars in the united states but every third car you have to give to the united states. mr. kneedler: i think that would present a very different question. justice alito: why? mr. kneedler: this is part to a comprehensive regulatory program.

justice kennedy: you are saying it would be ok. [laughter] mr. kneedler: no, we are not saying that all. the rationale -- the government can come up with the rationale to justify those examples easily. chief justice roberts: you say cell phone providers benefit greatly. we are going to take every fifth want and give it to people who might otherwise be able to afford a cell phone. that will help cell phone manufacturers because more people will have them and want them therefore it is ok. that is the same rationale you are applying here. this is for the good of the people whose property we are taking. mr. kneedler: these programs go back to the 1930's when agricultural industry was in trouble, particularly in california. prices were below cost of production. you can do what you have done in most other marketing orders which is not take their raisins and instead say you can only plant 63% of your acreage this year.

chief justice roberts: that is how most of them work. most are analyzed. this is different because you take the shovels and you take the raisins in the dark of night. [laughter] mr. kneedler: that is not what the government does. the way the order operates is that the producer submits the raisins to the handler. the handler divides them into two categories. the handler is required by the order to maintain and separate the reserve raisins, but they are separated for later sale. they don't go to the government. they are separated for later sale. justice scalia: what do you mean -- does not the government owned them? you denied the government owns them? mr. kneedler: for purposes of this, we can see the government gives legal title but that is not mean the

government has the entire interest in the raisins. the government has legal title so that it may -- the committee, not the secretary of agriculture, the committee can sell the raisins. the proceeds of those sales are pulled and distributed it back to the producers. justice scalia: how much from those sales did these petitioners acquire in the two years at issue here? how much many was given back to them? mr. kneedler: in one year, $272 per ton. there were no proceeds back another year. because the cost of administering the program exceeded -- there was no net proceeds afterwards. justice ginsburg: over the history of the program, it starts in 1949 right? mr. kneedler: yes. justice ginsburg: how many years while the program was in effect was there a distribution to the growers? mr. kneedler: i do not know

that. how many years but a great number of years. the three years leading up to this particular time -- one of the years was $47 million was returned. in the prior years it was 50 millions or so and that another $30 million or so. the experience has been -- justice sotomayor: i too have trouble like justice alito about the telephone or whatever. every fifth car or telephone you have to give to the government. you have answered that question. what is the basis? distinguish this. mr. kneedler: this is a comprehensive government program and governs quality, timing of sales. it is important to recognize that is all that is going on here.

the reserve raisins are set aside by the handler after the producer has voluntarily turn them over for later sale. petitioners concede the government can regulate when the manner and the channel of the sales. that is what the reserve program does. they are turned over to the handler, the handler sets them aside and then the committee decides when and where to sell them. chief justice roberts: this is a historical work you have to defend. you could achieve the government's objectives just as you do in most other cases through a volume of limitations that do not require physical taking. for whatever reason, this was set up differently. so, we are here dealing with the classical physical taking. we are not going to jeopardize the marketing, the agriculture department's marketing order regime. by the way, the department of agriculture -- you said it was the raisin committee -- otherwise you will have a lot of

trouble in your government speech cases. you always make the point that these cases are the government. mr. kneedler: i was saying that the operation of the program is not for the government's benefit. justice breyer: i'm having trouble with the same thing. i've agreed so far with what the chief justice said. go back to the new deal, you can in fact earn raisins, the point of which was to have fewer raisins. the result of which was to raise the price of raisins from $100 a pound or a bushel to $400. that was thought to make the farmer better off which it did. it made the customers worse off. somebody had a good idea and it was wasteful to burn raisins. let's take the raisins we would otherwise burn and give them to schoolchildren and maybe we

could even sell a few. if we do, we will get back extra money for the farmer, too. now we have schoolchildren with raisins. we have the farmer having more money. sounds like a pretty good program. of course, you have taken some raisins, but what i don't see is how either the farmer or the schoolchildren are worse off. if they are not, what compensation are these farmers entitled to? of course, free riders could be better off. they could charge at the higher price that the program creates. $800. after all, that is not the issue because you have to have as a rule, no free riders. once you have that as a rule, everyone, including perhaps these plaintiffs, are better off than not at all. that is a very simple argument. it is what i understand to be the economics involved. yet, we have endless cases

complexities opinions and fines. therefore, i am probably wrong. of course, i doubt i am wrong, but nonetheless, i want you to explain what is wrong with it. mr. kneedler: we agree with much of what you said except -- it is not a taking of the raisins. justice breyer: you want to say it is not a taking. mr. kneedler: it is a regulatory program classically analyzed because there was a reciprocity of advantage -- one of the phrases this court uses -- among producers. this does not distinctly affect the petitioners, it applies to all growers. since 1949, every year there has been a reserve requirement. every producer has had a per se taking. justice kagan: i largely agree with what the chief justice said. just the way i think about this program is this does seem a weird historical anomaly. am i right that all the rest of these agricultural programs are

done differently such that saying this was a taking would not affect other agricultural programs? also, are there any other programs out there -- forget agricultural -- are there any other programs out there that we should be concerned about if we were to think about this as a taking? mr. kneedler: well, with respect to agricultural programs, i think there are eight or 10 other programs that have reserves provisions in them. i think most of those are not active in the sense there is currently reserve just like this one is not. if this one has outlived its usefulness and the committee has not proposed a reserve requirement, the program is working like it should. the committee has decided not to impose a reserve requirement. justice kagan: you said there were eight or 10 other programs that have -- mr. kneedler: like this one

they have provisions permitting a use of a reserve system, but they are not actively utilized. justice scalia: how long have they not been actively utilized? mr. kneedler: i think most of this has been in the last decade. i don't know precisely. one of the things that has happened in this industry in the last 10 years it has changed greatly. you will see in the file by the raisin bargaining association, they now believe the reserve requirement should no longer be instituted, but they also firmly believe the petitioners should not be permitted to be free riders on this program. justice kagan: what of nonagricultural programs? are there other regulatory programs of the government says you can do something that is characterized will as property? mr. kneedler: the most relevant one which this court sustained was in the monsanto case.

you were asking about records and information. that was a case in which the condition for marketing pesticides, the manufacturer had to submit information to bpa. justice kagan: we know about that one. anything out there? tell me about the realm of regulatory programs that we should be concerned about if we were to say something like the production of stuff that somebody claims property interest in is a taking? mr. kneedler: not specifically aware of other programs, but monsanto in the requirement to submit information to the government, for example, is widespread in our society. what the court basically said was that if it was known when someone, before they enter commerce and applied their application, if they knew that the material would be used by the government for approving other applications, there was no taking. justice scalia: the government

could prohibit the introduction of harmful pesticides into interstate commerce. i am not sure it could prohibit the introduction of raisins. dangerous raisins? [laughter] i can understand imposing that condition on monsanto and that would not be unconstitutional. it seems to me it is when you impose it on raisins. mr. kneedler: the court's rationale was not based on the fact it was dangerous, although that was the setting. the fact that the manufacturer knew submitting the information to epa, it would be subject to disclosure and therefore it is appropriated by the government or eliminated for use of evaluating other applications. chief justice roberts: we get your brief on page 32. you say producers who are dissatisfied with the reserve requirement may plant other

crops. that is a pretty audacious statement. if you do not like our regulations, do something else. mr. kneedler: that is not the only option they have. they had the option of selling the grapes for other purposes. these greats that the overwhelming would -- grapes are -- have a variety of uses. that is one of the things a grower would take into account. justice roberts: if you don't like regulations, you can challenge them in court to see if they comply with the constitution. the answer is always you can do something else, it would seem we would never have these kinds of cases. mr. kneedler: this is a subsequent point i am making. the point is there is market regulation, people w