i mean i think it's really important especially when it comes to the transgender community to think about how healthcare and also important to think about what transitioning is and any services that they can help provide to make that easier to help them do it while they're still at work. andone thing we didn't touch on is policy beyond marriage equality. you can still get fired in 21 states for being lgbt. you could be evicted from your homes, and you can be denied services. we have a lot of work on the policy front. you cannot legislate acceptance. that is why we are so focused on accelerating acceptance.

those policies alone, whether they are at the federal or state level, the best policy and protection is acceptance, because that is when you have a consensus that you have a safer environment. whether it be a work environment or your housing environment or your community. >> is there anything you think congress should do to benefit the lgbt community, or would you rather focus on individual programs to help the lgbt community. you mentioned not having a vote on the issue, so do you think there is anything legislative that can be done on the federal level?

>> i was mentioning there are about 80 lgbt bills that are pending. there are another that are anti-trans. those are called bathroom bills. it is legislating what bathroom a person can or cannot go into. we have to progress as a community to allow our transgender brothers and sisters feel safe and accepted and not be put in situations where they are scared and unsafe. those bathroom bills are creating those environments. those are a big one we are having conversations about and trying to build awareness throughout. >> focusing on the legislative

branch of government, let's say the supreme court decides same-sex marriage has to be recognized. suppose the congress comes back and says we are going to possible to try to negate the decision. what happens now? >> if that happens we are going to help them. we have been fighting for this. a lot of people say this happened overnight. it didn't happen overnight. people have been fighting for decades. we will continue pushing forward. when you have a community that supports families, you have a better community. even if congress goes up against it, we will make sure we

organize around that and make sure we stop it. >> have you been talking to any of the presidential candidates regarding the lgbt community? >> i am glad we are apolitical so we are nonpartisan. no. the shortest answer yet. >> seeing there are no more questions, i would like to thank her for her excellent presentation. i would also like to thank crystal white for the assistance. i would like to thank the audience. with that the proceeding is closed.

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handles. also district maps, a foldout map of capitol hill, and a look at congressional committees, the president's cabinet, federal agencies, and state governors. order your copy today. it is $13 95 plus shipping and handling at the c-span store. >> south carolina governor nikki haley called for the removal of the confederate battle flag from the state capitol grounds and took sides on an emotional issue after the white man seen killing brandishing that flag. his features tim scott and lindsey graham amongst other lawmakers.

>> normally i try to get you ready, and i am not going to do that today. hopefully all are ready to go. this has been a difficult time for our state. we have stared people in the eye and watched prayer for people. we are hurt and woken and needed

to heal. we were able to start the process not by talking about issues that divide us but i holding vigils and 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 this 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. they saw the true hate can never triumph over pure love.

children saw the hardest role of south carolina starting from there. i want to talk a little bit about the heart of our state. i want to talk about the people of south carolina i'm so proud to serve. the country and the world have watched our strength and resilience over the last two days. we are strong people who love god, our families, and have deep faith. we believe in neighbors helping neighbors. we hold tight to our traditions and continue to grow and change in ways as we move forward. we were recently named the friendly estate in the country and the most patriotic, too. american flags fly proudly from home to home in south carolina. in just the last few months, the nation watched our state go

through another time of crisis when we dealt with the betrayal of one of our own in the tragic shooting of walter scott. south carolina did not respond with writing and violence, like other places have. we responded by talking to each other, by putting ourselves in other people's shoes, and by finding common ground in the name of moving our state forward. the result, both republicans and democrats, black and white, came together in past the first body camera bill in the country. and i stand in front of you, a minority female governor, twice elected by the people of south carolina. behind me stands my friend, senator scott, elected by those same people as one of just two african-american members of the united states in it. five years ago, it was said in the last 50 years, south carolina is the state that has changed the most, for the better. that was true when i quoted it at my first inauguration in 2011. it is even more true today. we have changed through the times and will continue to do so. but that does not mean we forget our history. history is often filled with emotion, and that's more true in south carolina than a lot of other places. on matters of race, south carolina has a tough history.

we all know that. many of us have seen it in our own lives, in the lives of our parents and grandparents. we don't need reminders. in spite of last week's tragedy, we have come a long way since those days, and have much to be proud of. but there is more we can do. that brings me to the subject of the confederate flag that flies on the statehouse grounds. for many people in our state the flag stands for traditions that are noble. traditions of history, of heritage, and of ancestry. the hate filled murder that massacred our brothers and sisters in charleston has a sick and twisted view of the flag. in no way does he reflect the people in our state who respect and in many ways, revere it. those south carolinians view the flag is a symbol of respect, integrity, and duty. they also see it as a memorial way to honor ancestors during time of conflict.

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 brutally oppressive past. as a state, we can survive and indeed, we can thrive, as we have done, while still being home to both of those viewpoints. we do not need to declare a winner and a loser here. we respect freedom of expression, and for those who wish to show their respect for the flag on their private property, no one will stand in your way.

but 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 flag 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 are going to focus on supreme court rulings from today and those expected over the next week or so. today the state decided it was unconstitutional for police to force hotel -- force hotel or motel owners to give over records. then we hear supreme court justices talk about the government taking rai from farmers to boost prices. we asked viewers about which cases they are watching.

>> i am watching the affordable care act. i have a granddaughter who will have to get some of her own. she will be 26. she has just finished college. we should let people who love each other get married. i don't think heterosexuals have done well for the institution of marriage. maybe they can do better. i want someone to show me where the word marriage is in the bible. i have never seen the word in the bible. >> one of the things that is most equal is having health insurance means health care. i have never lived in the community were those who couldn't afford assurance were not taken care of.

the second thing is we need to understand the law is the law. if they write a poor law, the law needs to be fixed. >> a couple of viewers weighing in on the supreme court decision. the court has three more decision days. back to her case dealing with hotel owners and warrantless searches. it strikes down an ordinance that allows police to demand guest records on demand. the argument is that it is needed to fight prostitution and illegal gambling at budget hotels and motels. here is the oral argument. >> case 1311. the city of los angeles versus patel.

>> this case is about whether to deprive scores of cities of one of the most effective tools they have developed to did to her human trafficking, prostitution, and drug crimes that have seized the ground in america's hotels and motels. the ordinance being questioned is the least intrusive inspection scheme this court has encountered. it is limited to only a book the hotels transcribed specifically for the city and they have been turning over by operation of the law. >> is the information the same? looking at the requirement, the

early information was somebody's name. today they have information federal law does not permit to be disclosed like drivers license, credit card information. isn't there a difference? >> you are right the amount of information hasn't increase. privacy interest has been pretty much the same. that is the information the hotels have argued is the most private. >> the most effective tool for

trafficking, prostitution, child molestation, none of that sounds like -- the purpose is administrative. >> it is administrative. you have to focus first on the target. the target is not people accused of crimes. the target is hotels or motels required to keep records to record information. it is required for the deterrent purpose, and criminals do not like to register. >> are you saying the police will request these records on demand, and they don't have to have any reasonable suspicion because it deters people from staying in hotels?

it is nothing like reasonable suspicion requirements. >> that's right. frequent unannounced spot inspections are necessary, that if the hotels do not record all the names and they record most names but not the names of the guests they are criminals. >> tell me how many prosecutions there have been for the failure to register people. >> there have been numerous prosecutions. i cannot tell you how many. the complaints refer to the

plaintiffs having been prosecuted. the problem is the hotel records the names of those who are criminals. >> those people are going to refuse to do it. a record-keeping requirement has no constitutional challenge. what does is the unfettered access. >> let me break it down. those people who don't want to do it go somewhere else. if they are forced to do it

they will not commit those crimes in the motels. so they never know the police are going to come, and the police show up. the police show up, and they notice room number two is unoccupied according to the register, but they see someone in room number two. they know only from observation there is a violation. they have nothing to compare it. >> you mean they can walk up and down the hall and see nobody is in a certain room? you have room number two as if it is right there.

>> motels are out in the open. >> what about my question of room 1204? >> the police may be allowed to wander around the hotel. >> what about my >> i suppose they can see which rooms have cars in front of them. >> that's why the real-time observation is so key. you cannot do that a month later. >> what you're saying is it is easier to prosecute, but it doesn't mean you can't devote

some resources and find this out. you do surveillance, like watching people go in for two hours and leaving. you keep a record of it. you even stop them from leaving. there is a lot of law enforcement techniques that could be used to combat the situations you are talking about. >> not nearly as effectively. >> since when has the fourth amendment completely been abandoned to how affect if the proof the police can get at a moment should be? >> that's not the test, but do we refer to the fact it's not as effective? let me give you an example. if all the police are doing is looking at 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 do it -- for example, look at the keys because they are not easy to see, so having the information right in front of them and comparing it to things they might be able to observe -- >> why isn't this just like barlow's, that it's not necessary on the following rationale? most people will consent. if the police go into a hotel and say we would like to see our registry, most people are going to consent. if somebody says no and there is a real believe the evidence is going to be destroyed, or you could get a warrant and conduct a surprise investigation if you want to. we talked about why that suggested these warrantless

searches are not necessary. what makes this different? >> what makes it different is the distinction on the one hand. that is move ability of information. that is the transients of the information you used to verify. -- transience of the information you used to verify. if it's the sort of condition that doesn't change over time, you can get a warrant. >> what is going to change? the registry is the registry. it's an unusual case. you have the feeling the hotel is complicit, then you can make sure to freeze the registry. that is going to be an unusual case.

mostly the registry is going to be there. mostly people are going to consent. you can get a warrant. >> what changes is the information on the basis of which you draw that comparison. if you get the register a month later, you can't compare the facts on the ground. >> it's an hour later. >> you mean get a were and in an hour? they are not easy to get. >> what is the probable cause for the weren'tarrant? >> there is no probable cause. >> you have to have a policeman sit outside the hotel four days -- for days. do you know what problem that will cause unless there are people who are there for a short time who haven't registered.

>> it is wife berger and is well -- why berger and biz well said you don't need to get a warrant. >> does he or she have to use the phrase and say there is no reasonable expectation of privacy in our society, or do we just forget that phrase. >> the answer depends upon which fourth amendment rubric one uses. the court says, was it a legitimate business and so forth ? >> i don't know.

>> i don't know if it is still necessary to address. >> if the court adopts the berger rubric, because this is so heavily regulated because everyone knows these registers have been reviewed by the police no one goes into the hotel business unaware their registers will be -- >> what kind of expectation of privacy are we talking about? 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. payroll records are not the thing for which you need spot inspections. >> they will falsify a lot of records. we really need to see what is happening on the ground in real-time. >> a record is false or not. you don't need real-time

verification. >> we could have 1000 examples like this. >> my answer is still the same. he doesn't have the same real-time need to verify facts. >> don't worry about that. checking people who register, you don't know until you see people. you say, let me keep -- let me see the record for your employees. >> either the ultimate record is false -- you don't have the real-time ability to verify. >> you falsify the registry? my problem is i don't see one regulation that is not applicable to virtually every public accommodation entity.

whether it is a telephone company or a day school or a hospital. virtually all of these requirements you list aren't of the normal state regulation of entities that serve people. is it your position that once we say this is closely regulated that everything is? >> no, i am eating into my rebuttal time. first, the closely regulated exception is more than closely regulated. there are three other elements to it. you need to demonstrate the necessity. you need to demonstrate there is an adequate substance -- substitute for a warrant. i would like to reserve the remainder of my time for a rebuttal.

>> thank you. >> this court can resolve this case on a much narrower bases than it has used in looking at other inspection schemes. the ninth circuit recognized the case did not involve an entry into the not public working places of a business. it did not involve a residential property. it involved the lobby of the hotel and a brief inspection of the registry of the hotel. >> it could involve entry. our rule isn't simply because you can get in a house that you are free to rummage through desks. >> that's right. this statute requires the registry be produced for inspection. the way in which the officer

gets to the registry is to walk into the lobby. >> you are saying if a police stand outside of a house and says, bring me whatever is inside, he tells the person you have to bring me what is inside. >> it would be for search. it would depend on the facts. we are dealing with businesses which have reduced expectations of ribosome. we are not dealing with the nonpublic parts of the businesses. the ninth circuit did not apply the rules that govern those kinds of situations where the court has sometime said an administrative argument is required and other times has said it is notntry 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

>> look at the structure of the scheme. they are not going to have any reason to have come in. it is limited. in that kind of scheme, the court is consistently insisted on. and i hope they will take a look at the sphere. i am just describing. >> i thought the shorter answer would be, look at the lack of procedural protection on the challenge. >> they say exactly that. >> anytime the challenge to the lack of office, somebody has looked at it. it does not need to be. >> let me add one other point. it is underappreciated in the

case. not only does the claim asserted the challenge. there is a check -- there is a trial. the record is the record in this case. we proceed our challenge only before the second trial. they stipulated that they had only spatial defenses. that is why we have this oddity. the evidence has already been collected and there is nothing to be gained by having a second trial. >> you have constantly said that one of the objections that the hotel owner can make is that do you want these records for the enforcement of the criminal law? he said that is bad. the purpose of this thing is to enable the criminal law to be enforced, isn't it? >> there are two different points that are being enforced here. they have an administrative scheme. my point is different. imagine on tuesday, a police officer comes in and says, i

think there is a prostitute in room three. what i am going to do is invoke this for 149. and see if that person's name matches up with the prostitute name. it requires probable cause. it does not mean they can investigate crimes. this court has said time and time again that it is important that we involve the courts. in this case it shows it more starkly than ever. >> i think there should be an exception to the principle where the purpose of the scheme is to enable a detection of criminal act if woody. then, the objection would be -- you cannot require them to keep the books the because the whole purpose is to detect criminal activity. they can keep the books to detect criminal activity. if they request the book in order to detect the criminal activity, is it -- it is bad.

that does not make any sense at all. >> that is not the argument. >> what is the argument? >> if they are used to deter crime, not detect. all they do is look at the records to make sure we are keeping records. my point is, it can happen regularly. a officer will come in and say i am not concerned about filling out the form, i think there might be a prostitute and -- in room three. >> i thought an equally important purpose is to prevent harassment. i do not like this hotel owner, i want to drive this hotel out of business. i am going to be showing up in his lobby every day. that is part of what is going on here. >> the principal thing that this court's presidents is going on -- look at what is missing. the other side will say, we identified records.

the question is not what the records are, it is the loss of the senses tranquility. we do not know how frequently and what the harassment purpose is. we do not know if a police officer will come in over and over again. >> have we used that phrase before? tranquility. >> i am not sure if the fourth amendment should be expanded. >> a tranquil hotel owner? 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. >> i think in hotels may have these notices posted all over where the emergency exit is and where all of that is. can a police come in and make

sure they have all of those signs posted? >> -- >> yes. because they are in public spaces. >> is the back of the hotel a private place? >> i am talking about every hotel room. >> inside the room? >> can they go inside and say this is an important thing to make sure people do not die in a fire. >> it is a great example for us. that is under the fire inspection regime. there has to be a subpoena ahead of time. at the very least, the lowest level or the lowest standard the court has ever applied is in the case against do we. you have to have a set of rules about when the searches are going to apply and be conducted -- and how often. >> i do not understand your answer. maybe it is because this weapon has applied. the police, even if this

ordinance were invalidated, the police can show up whenever they wanted, couldn't they and ask for the owner or the person at the desk voluntarily to disclose the register? they can be in the lobby as much as they want. how does this aid in harassment of hotels? >> because of the fact they are requiring us to produce private records. this was always the case with the police could not show up and inspect the premises. they could still show up and harassed. the court says if you are going to invade privacy -- everyone agreed it was a private amendment, a fourth amendment issue. next there are two scenarios. they walk in and say, would you let us look in the register and the owner says, no, i do not want to. they come back the next day and do the same thing. that is the first scenario. the second is, they come in and asked to see the register.

and then what? it is harassment because they sit there for a while. ? i just understand. >> they after day we have to give them private information. if they intend to put us out of business. let's imagine the following scenario. they have come up with this hypothetical about when it could be valid. the officers see someone come into the hotel and each time there might be someone coming in saying, we are the police, let us see the records. it really can interfere. >> can you provide specifics. that might be one thing. what goes on in this free compliance conditional review. the hotel owner says, you cannot look in the register -- registry. i want free compliance review.

what is the nature of that review. >> this court has considered that question. california bankers donovan has said that the administrative, with the police officer, do not have to go to a judge. then, there is an objection by the business owner. remember, in banking, these are records the government requires you to produce. then what happens is, generally what will be the rule -- it is up to the city, it is up to them to go to a judge. the fact that it is on us to go to a judge and the fact our objections are very limited. only get to object if it is against law enforcement. we are almost always going to give them the records because it will be a completely futile objection. the judge can tell the cop that

he needs to behave. >> those are the only objections that can be made in terms of harassment? >> is the details are in this press. >> what are the presidents involving -- presidents involving being treated like a public utility. there are requirements for hotels how big a room has to be, how many people you can put in a room, and in many locations, how much you can charge for a room. the hotel owner is not like a private's nest. he is a regulated provider. he has traditionally been regulated closely over the years. >> the first time is, how many times have you been aspect question -- the answer is none. how much of this property is protected and private. overwhelmingly, hotels have constitutional protections. 95% of this hotel is going to be

guest rooms. they go out and search the open junk yard. you can inspect the open stores, or go behind the scenes. here, the police cannot do it. the fourth amendment protects privacy at the hotel. there is a much greater production put on privacy by our part. is there a reason to think hotels are more heavily regulated as an industry than other industries that we can think of? >> no. think about it. california bankers are cases involving banking. the government requires you to keep all kinds of records. in both of those cases -- those are the bank customer records. what this court said in both of those cases, there are rare exceptions. title i of the bank secrecy act is constitutional because it

requires a subpoena. there is the prospect of getting a judge involved. the investigation can be to onerous. >> innkeepers have been regulated for centuries. they have duties to the public. i am just puzzled. the records have to be kept. there are very few reasons for keeping those records private. >> that i disagree with justice kennedy. we use these records for very different purposes. they are every record of all the business transactions. we use these records to keep in touch with the customers -- every business does. >> hotel sex does this -- hotel six doeds this? i have never received anything from them. >> nobody doubts.

this applies to the four seasons, the ritz carlton everything else. justice kennedy, while we are attentive to the point let's not lose sight of the fact that these records can show very, very personal information -- not just the driver's license information. whether you have stayed at a hotel during a religious or political convention. here is the point. what you are doing is, you have to make an honest assessment of whether this information does help further the fourth amendment value of privacy. it does. this has arrived at information in it. there has never been a dispute about that. i am sympathetic to the fact that innkeepers have been regulated for a long time. i do 9.9% of the jurisdictions

in this country -- this is not the case. this is not the rule. the nature of that regulation is not one that in pages on our sense of privacy. we have to take guests, but what does that tell us on whether albert records or private. the one point and wanted to make is in 2002 the department of justice study and it found that 335 different provisions of federal law use the system i described to you. that is the sabina -- subpoena first to get the records. with the possible exception of the occ, where you never have to get a judge involved -- amendment. >> 99 .9% jurisdiction -- does that include? does new york city have something like this?

>> they apply to big cities and small cities. >> you are saying the motel has a private interest. they can do that by keeping their own record private. they can require the information as a matter of law. >> my point is this, because the precedents say >> is it true? >> my answer is yes. they can do it anywhere and the government can require any business to keep track of all of its transactions and customers. if the government can say, give us all of our information, they have a notably fourth amendment. there is not anything special about hotels. the reason the deputy general on behalf of the knighted states is there are hundreds of regulatory

schemes that the government administers. it is now required to use a subpoena, but what self-respecting regulator -- >> the subpoena is worthless. it can be easily destroyed or falsified. it is very useful if you are trying to get complicated records that cannot be easily altered between the time when the subpoena is issued and the time when it is enforced. nobody issues is subpoena for the murder weapon that you suspect is in somebody's house. these records are more like the murder weapon, they are something that can be easily falsified. the subpoena is worthless. >> i believe the opposite, with due respect. how many hours did someone work, with due amount of pay. i do not understand the nature of recordkeeping if you can falsify that.

the court has insisted upon this. this is to keep the officer in mind and for us to know the enforcement officer has been kept in mind. we do not want to put undue burdens on the government. >> you think payroll records in general are no more complicated than a ledger at a motel that runs by the hour? >> if the question is, did the person work 50 hours or 35? i just want to fill and 35 or 50, yes. the court did not even think that was a remotely plausible argument. >> thank you, counsel. mr. rosenkranz, four minutes. >> thank you, your honor. we will start with the point and then circle back to the merits. as i hear mick -- mr. goldstein describing the rule, the only

objections that are going to be raised our harassment and whether this is for a legitimate purpose. if that is the concern that is a graphic challenge. if the hotel has a cop coming in a five times a day and they say it is harassment -- the searches are inappropriate. if the officer is doing criminal investigation, rather than actually caring about whether my records are complete, that is an as applied challenge. the plaintiffs have not tried to demonstrate that this ordinance is unconstitutional in every circumstance. on pages 19-20 in our brief, there are numerous scenarios. mr. goldstein mentioned only one of them. when the hotels are required to unload their records to the police department every day, it may not even be a search. it is certainly less intrusive.

>> that is not the statute. i did not understand those examples. >> justice kennedy, not at one. some of them, some of them the ordinance has the purpose of requiring someone to do something that they would not have to submit to. the one i just gave, as an example, the scenario of uploading the documents, rather than the police taking them on the spot, is less intrusive. the problem here is that the plaintiffs have tried to invalidate every half will application of the ordinance but they have not done the in truth -- the 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 to come the on the other side. if there is a felon coming into the place. 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. >> understood, your honor. >> you are entitled to a warrant, a subpoena. that is let they are challenging. they are not challenging the other reasons why the police go in it 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 objections is constitutional. >> understood. let's not talk about exceptions.

let's talk about another example, if the hotel continues to keep the register in the open, like they have for 100 years and then snatches it away when the police come. >> that is a different issue. >> for that reason, they would have no expectation of privacy and the fourth amendment case would be completely different. >> then it is not a search at all. this statute is not going to work. >> if they snatch it away, the ordinance is doing the work. >> we wouldn't take the search at all if there was no expectation of privacy. >> exactly. we would win the fourth amendment case that is a being invalidated by deciding this. >> council, you have questions.

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 an industry where there has been hundreds of years of regulation, including a history of warrantless searches even broader at the time of the founding, 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. >> thank you, counsel. the case has been submitted. >> the case decided today that says the government cannot force raisin farmers to give up their annual crop for less than it is worth. here are a couple of them as the supreme court draws to a close. >> i currently get my health insurance through the new york state exchange and i am very grateful that in this day there is the kind of employment security that there once was. an idea that one has to go and get one's health insurance through an employer, if that's an idea whose time has passed? i do not understand how the

states that do not have their own exchanges -- for example, on c-span, i heard that the louisiana governor said if the supreme court was against the subsidies and states that do not have their own exchanges, that he does not plan to create and exchange for the louisiana. how can he get away with that? or any governor or state who says that. i do not understand how this expansion portion of their population, who needs it, how can they politically get away with that? say the supreme court does rule against those states, why would they not feel tremendous pressure to create their own state exchanges. i have not heard it in the media explained. >> gay marriage. i do not think the contract i entered into with my wife should

be changed. they need their own definition of their civil union. >> i guess i will move to get my marriage and old. -- annulled. it is not the contract i was entering into. >> the supreme court ruled today 8-1. they take raisins away from farmers to help reduce supply and boost market prices. the court sided with california farmers hornes. they were losing money from a program they called outdated and ineffective. they had been fined thousands of dollars for trying to get around it. >> you will hear the argument this morning in case 14 275, horne vs. the department of agriculture. >> thank you for being willing

to hear this little case a second time. it does involve important principles in the livelihoods of the hornes, and hundreds of small california raisin growers who will be profoundly affected. this is an administrative proceeding and was brought before the department of agriculture against my clients demanding the relinquishment of funds connected to specific pieces of property, namely reserved raisins. my clients appear in their capacity as handlers. in the particular facts of this case, the economic circumstances are somewhat different than what are ordinarily true in this industry because as handlers the hornes assumed the full 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.

this is a factual finding found to be in the judicial officers's opinion in the appendix to the petition. the hornes pay the producers for their raisins. those raisins became part of the inventory of the hornes when the administrator came after the raisins. it was the hornes who bore the economic results. ruth ginsburg: i thought they paid only for the volume that they were permitted. the permitted volume. they were not paid for what were in the reserved. michael mcconnell: justice ginsburg, that is true in the ordinary course that was not true in this particular case the

-- because of the unusual business model of my clients. these producers were paid for all of their raisins. ruth ginsburg: are you objecting to the volume limitation or is it just that the reserve pool that you find? michael mcconnell: we believe a volume limitation would be a use restriction that might be challenge of all -- challengeable. in this case, because of an agent of the department of agriculture actually taking possession of ownership of the raisins, it is that aspect of the case which we are challenging. >> that is what is so challenging. if you are not challenging the volume it self, you cannot sell more than 60% of your crop. michael mcconnell: that is correct. ruth ginsburg: what happens to the rest of it? you won't be able to feature

-- you won't be able to feed your family. michael mcconnell: in the ordinary case the reserve percentage, which in one case was 37%, and was the percent in another case, 40% of percent is handed over to the raisin administrative committee. >> if we just had a volume, you cannot sell more than x amount then on would take it they would get nothing at all, at least with this reserve pool there is the possibility of getting some money. >> 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

raisins above the field price. there was a market for these raisins. i assume that's these particular might have been left off better. >> what you are complaining about is the 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 raisons 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 could then sell the oysters. why were the oyster shells not theirs at that point? >> whatever property interest the state of maryland provided for them, the state held 10% of the oyster shells for the purpose of fertilizing the oysters. >> i would have thought that as soon as they bring the oysters out of the bay, and bring their catch too short, what i have caught is then theirs. >> except for the 10% of the state reserve the. >> what sonia sotomayor's

question was, wouldn't the same be true of reasons? >> raisons are not wild animals even if they are dancing. and they did not originally belonged to the federal government. >> you think leonard is an animals case as opposed to the state contests your property case? >> yes, i do. >> they did also call it a tax. i am happy to address whether this is the tax because under this court's standards criteria for determining a tax this is not one. this is not in the internal revenue code and not collected by the internal revenue service. there are no tax laws devised by congress. the proceeds do not go into the general treasury.

this is not a tax. >> it was not that way in leonard either. the court was basically saying the government could do this because this was good in congress. as long as it needs the test, there is a net is between the government's goal and the regulation -- then it is ok. there they used it to fertilize oyster ponds or to paris-fort allies the oysters -- re-fertilize the oysters. >> the fact of the matter is the oysters belongs to the state of maryland and when the state of maryland decided to allow fishermen to -- >> when and where and leonard was this?

>> i would be happy to file a supplemental brief with the maryland citations' indicating the oysters belong to the state of maryland. >> i thought that what the constitution required for the taking was just compensation not a reasonable nexus, a good policy. in my wrong about that? >> you are not wrong about that. >> underlying the government's briefs, we ask what his position is or characterize their position if you choose. because we can do this what , difference does it make? did you understand that to be the underlying premise in their argument? or is that unfair on my part to >> they say that from time to time. in fact, too years ago they rejected arguments of that sort. 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. -- of the raisons. it can use the raisins as collateral it can give the raisins away. >> you are attacking the reserve arrangement. they are the government's possessions. as far as i have heard so far, you are not attacking volume and you cannot target more than x amount. why did you not ask for an exemption from the reserve full. what you are trying to do now is get rid of the limit as well.

>> in this particular program, there is no separate volume control in the sense that there is no regulation control that tells the producers or handlers how to handle the raisins. instead, they are told to set aside the raisins and give them to the government. so here is the 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? there is a division between what goes in the reserve at what is bargained. the department of agriculture came after my clients. this is not our lawsuit. the department came after us. >> it is -- is it a counterclaim? >> it is a defense. the department says give us the raisins or the monetary equivalent.

we say that is not constitutional. >> would there be any obligation to propose an alternative to the taking? the government takes your property, can you resist the taking in another way? >> i am not sure any alternative ways would be permitted. >> my question is, it goes on from this. i assume for arguments sake, that i have raisins in my basement and i am this program. the government comes with a shovel and of burlap sack and takes the raisins. i would say that sounds like the taking to me. the constitution doesn't forbid taking, just compensation. at that point i want to know what happens because i guess the government could argue look at

at this program. it is a big program. if you do not want us to take your raisins, fine. but there will be no program if everybody says that. so there is a rule against three-writers. -- free riders. fine but there would be no problem if anybody said that so we have a rule against free riders, we will give you what it takes to take your reasons and would in fact it costs you the difference between what you received the new program and what you would receive without the program. that works in your favor. it gives you money. it doesn't take money so there is no compensation. in fact if we were to have compensation you should pay us so how are you going to get by that part? if you can't get by that part how will you avoid paying the fine? i don't see the relationship between the taking argument,

which is all we have to decide. either you get some money or you do not pay the fine. if you have a minute i would appreciate an explanation. >> i would love to. i have a conceptual and a practical response. let me get the practical response first which is that my clients are certainly not better off. the secretary's own calculation of the price of reasons was $63 per ton higher with volume controls that would have been in an unregulated market. the field price was $810 per ton. taking away 30% of their reasons -- of their raisins does not end up with my clients better off as a result of the program. quite the contrary. they lose money. we have the calculation. >> i do not want to interrupt you because we are going to get to the theoretical argument, but in response, the price you just quoted because of this program

is circular. or am i wrong? >> by the secretary's and calculations, $63 of that 810 is attributable to the volume controls in the program. only $63. >> weren't we told that the demand for raisins in the last -- is inelastic? what will happen if you have before the rca? your prices dropping, sitting the purpose of free competition. >> under today's conditions, the lexus city is not as enormous as it would need to be. >> that is today, but we haven't paid reserving years. >> when i say today, -- >> the conceptual point is this is a per say taking.

if there were benefits such as i don't believe their work, but if there were, that would go to whether there was compensation for the taking -- which would go to the question of compensation. -- implicit comput -- implicit compensation is a complicated matter and has to do with whether there were special benefits. do not think we want to get into whether this would be a special benefit. >> do you have any objection to my writing? if i were to write it like this? it is a taking. the constitution forbids taking without compensation. it gives the farmers more compensation than they would have without it. programs can work badly, sometimes counterproductive but it is working well that is what

happens. so we send it back to the court to see if the program worked well, did it work to make your client better off. what rules to we follow, that is how we should do this. >> i think not. but we are close to their. if this were an eminent domain proceedings, then law lower court would determine whether there was implicit contribution. if there were in first compensation proceeding, this is an enforcement action, specifically guided by the regulations in the seven cs r. under those regulations we know exactly what takes place. what is provided in those regulations it is if raisins are not handed over of they handler must pay, multiplied the number of reasons by the field price

and that is it. that is also the measure of the value of the raisins. if they take back the compensation is exactly that and the two things simply are a wash. the broader principle here is that this is not a program designed to provide compensation. the government almost concedes to this point. this is not like getting land for a post office where the government intends to pay. this is more like a program like kaiser or some of the others where, if it is a taking, the government has no intention of paying a compensation. in cases where there is a taking and the program does not contemplate compensation, the standard remedy for that is to

forbid the taking. >> whether it is that taking point, and have been trying to think about whether your argument would apply to other kinds of programs and how it might apply to other kinds of programs. how about programs where the government says give us -- produce records for us. i am sure there are a lot of programs like that in the world. there is something intuitive from what you are saying. the government is asking us to turn over stuff. seems to me the government asks people to turn over stuff all time in the form of records. how would that fair under your argument? if what the government is asking for, information -- if the records are of historical value

and they want to put them in a museum. >> i do not know if they have historical value. they are just physical objects. the government just wants the records. >> the government does not take permanent possession of records. they asked me to show records to establish my tax deductions. i show them the records, they see the information, it is not a taking. >> no, but you are saving the government could not ask you to deliver records to them. >> i did not say that. they can ask me to do that and it is not a taking unless they have taken a permanent possessory interest. if they sell the records the way they sold the raisins, -- >> they are keeping the records. >> if they are keeping the records forever, i am not sure but i doubt very much that would be a taking. the value of the records is the

information which is what i assume it is on a regulatory program. we are not talking about actual physical -- >> there are cases of government all the time in criminal cases takes control of valuable objects for evidence and sometimes keep it forever and ever and in those cases i think there's a taking. government can take so long as reasonably necessary. you have a valuable diamond ring which is evidence and the government keeps it but keeps it only for so long as there are -- >> this is extremely far afield from raisins, which are a valuable piece of property. >> i am 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 interest all the time. if the emperor -- if the government says, you have to give us the information -- which counts as property, why is that not subject to your rule? >> information can be property when it is intellectual property. for example, trade secrets can be property. i do not think ordinary records, such as the irs demands from taxpayers as a taking. >> where we said the turning over of trade secrets, which is property for the privilege of selling other commodities what is the taking? how do you deal with that case? >> there is broad language in that case which this court cut

back on, in nolan, the court held it could not stand for the proposition in the formative benefit simply to allow the property, and the government can grant a benefit. >> getting $63 for what you you are selling is. >> the $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 receive export subsidies from the sale of the raisins. they are the only ones who benefit from the actual taking. >> but you could not do it?

except for that from which you could eat at home. you did not intend to eat it at home because you gave it up for sale. would you be able to export them. >> if they, my clients are not actually in the export business. if my clients were selling raisins for export, they would be entitled to receive the export subsidy. that is not the business they are in. >> my point is you could not otherwise sell the commodity. if what they did was put it in the house and say producers sell 60% this year, what would you do with the raisins? >> the way other programs and a volume controls work is there is an initial reserve and as market conditions develop, and for information is available, the

owners of the product are permitted to release more and more into the market. >> suppose it goes the other way. >> that would be a certainly different case. if it went completely the other way, it could well be that the owners of the raisins receive no money at all. it is still a restriction on their views. the raisins have not been taken from them. in this case the raisins are taken from them and the government itself them back. in nash and one of these years, the government was able to sell the raisins or more than the field price. >> what do we do about to be fine? the reason i am bringing this up -- it is a curly cue on the case. i do think i will ask it.

i think i will figure it out myself. >> thank you. i will reserve the remainder of my time for rebuttal. x thank you, counsel. >> petitioners isolate just one feature of the comprehensive program regulating the commercial marketing. the regulatory program that was established with producer approval and is established for their benefit. it is a cooperative program among the secretary producers and handlers. the raisins are not put into the program for the benefit of the government. the are put into the program for the benefit of the producers and they enter the stream of commerce. in fact, a producer is affected. >> they are in grades. -- ingraits. they really wanted your help?

>> they did not want the program. the program was established. >> that little feature, happens to be the taking. the taking of raisins. you could have a lot of features. there is no objection to having many features. but where one of them is the taking, if you have to justify it by just competent -- compensation. >> do we believe it is a compensation. it involves personal property. only real estate. >> that has not been our position. we have not argued that personal property is not subject to the just compensation clause. if the government came in and took someone's car. the government has not taken anything from you. if i could set this up and explain how it operates, this program operates only when the producer or grover has voluntarily admitted and

committed the raisins to the stream of commerce. they have been put into the stream of commerce and turned over to the handler. the market order regulates only the conduct of the handler. the government cannot prevent you from putting something into the stream of commerce. >> the government can attach reasonable conditions to entering the stream of commerce. >> i think that is the lesson of my example. it is a constitutional condition. >> it would be an unconstitutional condition for putting something into the stream of commerce. >> that analysis would apply if there was a taking on the analogy, for example. >> is there any limit to that argument? there are some examples that are startling. you can sell cell phones, but

every fifth one you have to give to us. every third car, you have to give to the united states. >> i think that would present a very different question. >> why would it be different? >> this is part of a conference sent -- come three regulatory program. >> if the government took all of gm posh cars, then it would be ok? >> we are not saying that at all. the rationale the government can come up with a rationale to justify those examples of very easily. cell phone providers benefit greatly if there is a cell phone market and a number of people using them. that will help cell phone manufacturers because more and more people will have them and more people want them. therefore, it is ok. that is the same rationale you are applying here. these are the people whose

property we are taking. >> these go back to the 1930's. that is when the agriculture industry was in trouble. in california prices were below the cost of production. they do not take the raisins, they say you can only plan to 63% of the acres this year. or, you can only produce 28 tons. that is how most of them work. this is different. you come up with the truck and you get the shovels, and you take your raisins. >> that is not what the government does. the way it operates is, the producer submits the raisins to the handler and the handler divides them into two categories. they handler is required to maintain and separate the reserve raisins.

they are separated for later sale. they do not go to the government. they are separated for later sale. >> what you mean they do not go to the government? does not the government on them? do you deny that? >> for these purposes, we perceive the government gets legal title, but that does not mean the government has the entire interest in the raisins. the government has legal title so that it may -- so we will soon, for purposes of this case, so the committee -- not the secretary of agriculture -- the committee can sell the raisins. he proceeds are pulled and distributed back to the producers. >> how much from those sales did these petitioners acquire in the two years? how much money was given back to them? >> in one year there was 272 dollars per ton. the other, there were no proceeds back stop because the

cost of administering the program exceeded -- there were no proceeds afterwards. >> it started in 1949, right? how many years was the program in effect while there was a distribution to the growers? >> i do not know that. there have been a great number of years. the three years leading up to this particular time. one of them -- $47 million was returned. another 30 some million\ was returned in another. the experience has been that there typically was -- >> i would like to trouble the justice. every fifth car or every fifth

telephone that you have to give to the government. you have not answered the question. is that a taking? what is the basis? >> this is a comprehensive governmental program. it governs quality, it governs timing of sales and it is important to recognize that is all that is going on here. the reserve raisins are set aside by the handler, after the reducer has voluntarily turned them over. they are set aside either handler for later sale. it says on page 23 that the government can regulate when, the manner, and the channel of sales. this is exactly what the program does. the handler sets them aside for the reserve and they decide when and where to sell them. >> you could achieve the government's objectives, just as

you do in most other cases. and what ever reason in the history of the new deal, this was set up differently. we are here, dealing with a classical physical taking. we are not going to jeopardize the marketing order regime. by the way it at her be the department of agriculture that takes these. you said earlier it was the raisin committee. we always make the point that these committees are the government. >> we are not sake and committee is not the government. i am saying the operation of the program is not for the benefit of the government. >> i am having trouble with the same thing. i agree so far with what the chief justice has said. go back to the new deal. you can in fact earn raisins. the fact of which was to have fewer raisins. the result of which was to raise the price of raisins to $400 a

pound or bushel. that was thought to make the farmer better off, and it did. it may be customers worse off. someone had a good idea. it is wasteful to burn raisins. let's take the reasons we would otherwise burn and give them to school children and we could sell a few. if we do we will get that extra money to the farmer too. now we have schoolchildren with raisins, we have the farmer having more money. sounds like a pretty good program. you have taken some raisins. what i don't see is how either the farmer or schoolchildren are any the worse off. if they are no worse off, what compensation are these farmers entitled to? of course, free riders would become yet better off and could charge at the higher price the program creates