[00:00:02] Speaker 05:
Case number 16-5270, Detroit International Bridge Company, a Michigan corporation at all, appellants versus the government of Canada at all.

[00:00:13] Speaker 05:
Mr. Humes, appellants.

[00:00:15] Speaker 05:
Mr. Lundman, Federal Appeal.

[00:00:17] Speaker 05:
Appellants.

[00:00:24] Speaker 02:
Good morning, Your Honors.

[00:00:25] Speaker 02:
We have four basic arguments on appeal.

[00:00:28] Speaker 02:
Two relate to Section 3 of the International Bridge Act, or IBA.

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One relates to Section 4 of the IBA, and one relates to Congressional Acts.

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relating to the Detroit International Bridge Act's Ambassador Bridge.

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Unless the panel has a preference on the order of argument, I would like to begin with – I'd like to say something about each, but I'd like to begin with our challenge to the State Department's approval of the so-called Crossing Agreement under Section 3 of the International Bridge Act.

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Your Honors, Section 3 says – authorizes the Secretary of State

[00:01:04] Speaker 02:
to approve such agreement referring back to an agreement that, quote,

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I've reserved four minutes time – and authorizes approval for an agreement between, quote, a state or a subdivision or instrumentality thereof, end quote, with an agreement between those – a state or subdivision or instrumentality – with Canada or Mexico relating to an international bridge.

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Your Honors, our submission really is quite simple.

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It's that state officers acting in violation of state law do not constitute a state or a subdivision or instrumentality thereof."

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End quote.

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There's been no adjudication that they were acting in controversy of state law.

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There has been no adjudication under state law by any state court.

[00:02:01] Speaker 02:
That is correct, Judge Shintel.

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However, both the district court and the government agree that the Secretary's approval of the call... Actually, that's not exactly right.

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You did try to bring an action in state court, and the court said it was untimely.

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Oh, yes.

[00:02:16] Speaker 02:
Oh, sorry.

[00:02:16] Speaker 02:
I want to be very clear and forthright.

[00:02:18] Speaker 02:
There has been no adjudication of the issue.

[00:02:20] Speaker 02:
Not only did we bring the action referenced in our opening brief, Judge Garland, which was dismissed as untimely, as you say, there's another action now where there's condemnation proceedings against the bridge company and the same issue is being litigated.

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I do want to make sure that's disclosed.

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But our point- At this point in time, when you say it was acted unlawfully,

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I don't assure that we're the right place to adjudicate that.

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I understand the question, Judge Sentel.

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Here's why I submit this is the right court to adjudicate it.

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The government itself, on page 31 of its brief, says that once the Secretary of State approved that agreement, that agreement became federal law.

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Federal law.

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The agreement itself is federal law by the government's admission.

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competent to adjudicate the legality of the state actions.

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At most, the Secretary can act on the belief or on information, on opinion as to the legality of that action, right?

[00:03:33] Speaker 02:
Your Honor, I think the Secretary has no authority to approve it unless it's legal.

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This is not – Whoa, whoa, whoa, whoa.

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Unless it's legal.

[00:03:41] Speaker 03:
But what is the standard by which we're to determine whether it's legal?

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Does the Secretary have to make an adjudicated decision, or can the Secretary simply act on legal opinion that the acts are legal?

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Your Honor, thank you for the question, because I really want to clarify something that may not have been clear enough in the briefs.

[00:04:03] Speaker 02:
We are not arguing... You had plenty of room in the brief to clear it.

[00:04:06] Speaker 03:
If you had been a little more concise, maybe you could have got it in there.

[00:04:10] Speaker 02:
Excuse me, go ahead.

[00:04:12] Speaker 02:
We are not arguing about a procedural requirement for what the Secretary must do before approving.

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Our argument is that the statute does not authorize the Secretary to approve an agreement if it's invalid, and the court – Invalid according to who?

[00:04:26] Speaker 02:
The court.

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According to what standard?

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The court, on a de novo standard, is a question of law.

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Allow me, if I may, to illustrate – There's no reason to assume that every one of these agreement approvals would go to court.

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What I'm asking you is what the Secretary's duty is with reference to this legality question that you're asking.

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I think the Secretary's duty is the same as in any of the following three illustrations.

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If the Secretary were presented with an agreement – and forgive me if this seems facetious – about a tunnel,

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the secretary would have no approval, authority to approve it, and if the secretary did, we could come to this court and invalidate it.

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That has nothing to do with whether the secretary has to decide, by what standard the secretary has to decide it's a legal agreement with the country?

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The same standard.

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That's a standard of law, a standard that is subject to de novo review.

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If the secretary had been presented with a memorandum of understanding,

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signed, but that explicitly says, this is non-binding.

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We can fool around with it later.

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We can adjust it and amend it as we see fit.

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And that was submitted to the secretary for approval.

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We could come to court and invalidate it.

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It would not be an agreement.

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And that would be a state law issue.

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If the secretary is presented with something other than that, however, to say, for example, the document

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What is the Secretary's duty with reference to the legality of the actions of the state officials involved in the underlying agreement?

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The Secretary's duty is to comply with the law.

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And that is reviewable on a daily basis.

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The law requires the Secretary to make a determination with reference to the... The law only authorizes the Secretary to do what's in the statute.

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The statute only authorizes the Secretary to approve an agreement by a state or a subdivision instrumentality.

[00:06:23] Speaker 02:
It's got to be an agreement, it's got to be by those entities, and it's got to be about a bridge.

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In this case, the Secretary had in front of him

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What purported to be exactly what you just described?

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What was missing in what the Secretary was proving in this case?

[00:06:41] Speaker 02:
What was missing?

[00:06:44] Speaker 02:
I'm sorry, Your Honor, I don't understand the question.

[00:06:46] Speaker 02:
What was missing from what the Secretary did?

[00:06:48] Speaker 03:
Yeah, you just described what the Secretary has to have.

[00:06:51] Speaker 02:
The Secretary had that in this case.

[00:06:53] Speaker 02:
No, it did not.

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It did not because the agreement it had

[00:06:57] Speaker 02:
was executed by state officers acting in violation of law.

[00:07:02] Speaker 03:
Now, that's the problem that you're raising, is you're saying the Secretary had in front of him exactly what reported to be exactly what he needed.

[00:07:09] Speaker 03:
However, you're saying that all that reported to be an agreement, it wasn't because of the equation of state law.

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And I'm asking you, by what standard do we judge the Secretary's determination that it was legal?

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De novo.

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And I don't see how that can be.

[00:07:24] Speaker 02:
Well, Your Honor, what I'm asking you to consider... The Secretary would never have an adjudication.

[00:07:29] Speaker 03:
Well, it might sometimes, but it's not in this case to have an adjudication of illegality.

[00:07:34] Speaker 03:
He had an opinion of the Attorney General that it was legal.

[00:07:38] Speaker 03:
Why is that not a sufficient act by the Secretary to act reasonably as opposed to make an adjudicated fact of determination?

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An agency's obligation to comply with the law does not depend on the agency's expertise in the law.

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An agency is always obliged to act lawfully, both within the statute that authorizes it and the Constitution.

[00:08:01] Speaker 03:
I don't think I'm going to get any further with you.

[00:08:04] Speaker 03:
All right.

[00:08:04] Speaker 03:
And I won't.

[00:08:06] Speaker 02:
I understand, Your Honor.

[00:08:07] Speaker 00:
So let me see if I can get further with you for a minute.

[00:08:14] Speaker 00:
You cite sort of your theory.

[00:08:17] Speaker 00:
to this, uh, ignorant case.

[00:08:19] Speaker 00:
Pueblo of Santa Ana versus John Kelly.

[00:08:21] Speaker 00:
Is that right?

[00:08:22] Speaker 00:
Yes.

[00:08:22] Speaker 00:
And that that case, you like the way the 10th Circuit did that case.

[00:08:26] Speaker 02:
Is that right?

[00:08:26] Speaker 02:
Yes, Your Honor.

[00:08:27] Speaker 02:
I recognize we like about the ignorant cases and I accept all of them.

[00:08:32] Speaker 02:
And Judge Collier did as well is that they say that it is a federal question whether or not it's valid under state law.

[00:08:39] Speaker 02:
They do say

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And this may be where your honor is headed, Chief Judge Garland, that there's no obligation on the part of the Secretary of Interior in those cases to look at state law.

[00:08:51] Speaker 02:
And they say that in the course of saying the Secretary's approval can't possibly validate something that is unlawful under state law.

[00:09:03] Speaker 00:
Yeah.

[00:09:03] Speaker 00:
So as I read this case, what this case says is,

[00:09:08] Speaker 00:
Congress did not intend to force the secretary to make extensive inquiry into state law.

[00:09:13] Speaker 00:
However, that does not mean that consequences should not flow if it turns out the state is not validly bound itself to the compact.

[00:09:21] Speaker 00:
And in that case, the state court in the end decided that it wasn't lawful under state law.

[00:09:29] Speaker 00:
Well, it seems to me, why isn't that where we are here?

[00:09:31] Speaker 00:
That is, the agency has done

[00:09:38] Speaker 00:
a review.

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You don't like the review that they did, but they did a review.

[00:09:43] Speaker 00:
And now – and that should be the end of the question for us.

[00:09:47] Speaker 00:
If you win in the Michigan court, then the agreement's invalidated and there's no agreement.

[00:09:52] Speaker 00:
And nothing that the Secretary of State or the President approved says anything about that.

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They've only approved an agreement.

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If there is no agreement, then there's no agreement.

[00:10:02] Speaker 00:
So if you want to fight the state law case, assuming that you can overcome your failure to be timely in the state court, then that's the place to fight it.

[00:10:13] Speaker 00:
Why isn't that the answer to this?

[00:10:14] Speaker 02:
Because both the district court and the government agree this is federal law, and the court has an unflagging obligation.

[00:10:21] Speaker 00:
I don't care what the district court and the government agree to.

[00:10:25] Speaker 00:
The question is,

[00:10:27] Speaker 00:
There is an agreement as far as the agency is concerned.

[00:10:31] Speaker 00:
They think there was an agreement, not as if they could explore all of the law, but in terms of the state attorney general giving them an opinion, they think there was an agreement.

[00:10:43] Speaker 00:
They've approved that.

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If you can now later show in a state court that it is not an agreement, then the whole deal is off.

[00:10:52] Speaker 00:
And that will be too bad if there's construction and everything else after that.

[00:10:57] Speaker 00:
But you'll have to wait until that happens.

[00:11:01] Speaker 02:
We could do that.

[00:11:01] Speaker 02:
We may do that.

[00:11:02] Speaker 02:
That happened in the earlier cases.

[00:11:03] Speaker 02:
Well, you're trying to do that.

[00:11:04] Speaker 02:
But there's still a federal question of whether the State Department is authorized to approve something that's an invalid agreement.

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And normally, our review on these things is arbitrary and capricious standard.

[00:11:17] Speaker 00:
And our question is, were they arbitrary and capricious in concluding that there was an agreement here?

[00:11:22] Speaker 00:
Yes, they were, but they're – Your Honor – No, that's – but your position is that's not good enough, right?

[00:11:27] Speaker 00:
Your position is the review has to be de novo.

[00:11:30] Speaker 02:
That's true, but we make both arguments, to be clear.

[00:11:32] Speaker 02:
We make both.

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But if I can just take one more second on de novo.

[00:11:35] Speaker 02:
There is a contrary to law standard in the APA.

[00:11:37] Speaker 02:
It's not just arbitrary and capricious.

[00:11:40] Speaker 02:
And it's contrary to law for the State Department to approve something that is not in agreement between a state or subdivision or instrumentality.

[00:11:46] Speaker 02:
plain text of the statute, they're not authorized, this court is competent, and it's not the most unusual thing in the world for a federal court to decide a federal question that turns on a predicate question of state law.

[00:11:59] Speaker 00:
Well, that depends on whether you're right that it turns on.

[00:12:01] Speaker 00:
You're arguing by totology here.

[00:12:04] Speaker 00:
You assume that you're right, that the definition of agreement is one of federal law, and that the federal court has to decide whether the state law is correct or not.

[00:12:13] Speaker 00:
The statute doesn't say that.

[00:12:15] Speaker 00:
It's true that if we assume the result of your argument, that you win your argument.

[00:12:20] Speaker 00:
But that's the question before us.

[00:12:22] Speaker 00:
And the statute gives us very little support for the proposition that that's our job.

[00:12:27] Speaker 02:
I would simply ask you to consider Chief Judge Garland, my example of the MOU, where it's not clear its binding, it's not clear its agreement.

[00:12:34] Speaker 02:
I think that would raise a federal question.

[00:12:35] Speaker 02:
I don't think this is any different.

[00:12:37] Speaker 02:
It may turn on a predicate question of state law.

[00:12:40] Speaker 02:
But this is a significant thing.

[00:12:43] Speaker 02:
They approve it, it becomes federal law.

[00:12:45] Speaker 02:
Now the federal question is, did they have authority to approve it?

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That's our de novo argument.

[00:12:49] Speaker 02:
Very briefly, since I'm going to run out of time, the arbitrary and capricious standard, please, I would exhort the court to compare Addendum 91 and Addendum 94, the unambiguous prohibitions against MDOT and MSF signing these agreements.

[00:13:04] Speaker 02:
with joint appendix letter 685 to 86.

[00:13:08] Speaker 02:
That's the letter from Deputy Attorney General Carol Isaacs.

[00:13:11] Speaker 02:
Not a formal opinion, mind you.

[00:13:13] Speaker 02:
Not from the Attorney General.

[00:13:14] Speaker 02:
It has one sentence on those two unambiguous prohibitions.

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It doesn't address them.

[00:13:20] Speaker 02:
It doesn't explain why they don't apply.

[00:13:21] Speaker 02:
There is no argument for why they don't apply.

[00:13:24] Speaker 02:
It is arbitrary and capricious, as well as de novo.

[00:13:26] Speaker 02:
Your Honors, I'm going to run out of my rebuttal time, but if I could, I'd touch upon the other three arguments quickly.

[00:13:32] Speaker 02:
Unless the non-delegation doctrine is completely dead, this is a case where it applies.

[00:13:37] Speaker 02:
There is nothing in the statute providing any guidance.

[00:13:40] Speaker 02:
At 635 of the Joint Appendix, the State Department admits the statute provides, does not provide a particular standard.

[00:13:47] Speaker 02:
There's no case where the agency itself admits that.

[00:13:52] Speaker 02:
Second, Your Honor, count four.

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which is our panel six, which is our section four argument.

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There's a jurisdictional question there.

[00:13:59] Speaker 02:
There is no question it was the agency who took the action.

[00:14:03] Speaker 02:
None.

[00:14:04] Speaker 02:
The only question is whether the APA doesn't apply if the agency is delegated the power to take the action from the president, rather from the Congress.

[00:14:13] Speaker 02:
We submit it makes no difference.

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It came from Congress, through the president, to the agency, but it's the agency who took the action.

[00:14:20] Speaker 02:
The Franklin Supreme Court case found it a close call whether even the president is exempt from the APA, and they relied on the plain text

[00:14:28] Speaker 02:
of the statute, the plain text of the statute here makes crystal clear all agency action is subject to review unless it's explicitly carved out.

[00:14:36] Speaker 02:
Finally, Your Honors, on our argument relating to our statutory rights, I think it boils down to this.

[00:14:42] Speaker 02:
There can be no dispute that the International Bridge Act of 1972

[00:14:47] Speaker 02:
What did not in any way, could not infringe upon our rights.

[00:14:53] Speaker 02:
If they were arguing that it did infringe upon our rights, we would... Infringe upon what rights?

[00:14:57] Speaker 02:
The rights in our franchise statute from 1921.

[00:15:00] Speaker 02:
Founded Addendum 2 and Addendum 10.

[00:15:03] Speaker 03:
Don't tell me where they were found.

[00:15:04] Speaker 03:
Tell me what that right is.

[00:15:05] Speaker 02:
Right.

[00:15:05] Speaker 02:
We have a right to make the right that we... You're claiming an exclusive franchise?

[00:15:10] Speaker 02:
No.

[00:15:10] Speaker 03:
Is that a right you're claiming?

[00:15:11] Speaker 02:
No.

[00:15:12] Speaker 02:
Your Honor, our argument is that we have a right to maintain and operate

[00:15:16] Speaker 02:
end quote, our bridge with no time limit.

[00:15:19] Speaker 02:
And what we are saying is that right is meaningless if we can't build our twin span.

[00:15:25] Speaker 02:
Under the International Bridge Act, and the International Bridge Act's legislative history recognizes those rights and says that the statute should not be construed in a committee report to adversely affect those rights to repair, replace, or enlarge existing bridges because that's how you maintain and operate it in perpetuity.

[00:15:44] Speaker 03:
If under the international what you seem to be assuming here is the restraint of the building of the other brain.

[00:15:54] Speaker 03:
I'm sorry.

[00:15:56] Speaker 03:
You're not claiming that

[00:15:59] Speaker 03:
government prevents you from doing things to your bridge, improving, expanding, whatever it is.

[00:16:08] Speaker 02:
Correct.

[00:16:09] Speaker 02:
We've claimed that in other cases, which has been before this Court, but our claim here before this Court now is that the construction of this Canadian government bridge will make it impossible.

[00:16:19] Speaker 03:
Makes it uneconomical.

[00:16:20] Speaker 02:
That's correct, Your Honor.

[00:16:21] Speaker 03:
That is correct.

[00:16:22] Speaker 03:
The vast difference between

[00:16:24] Speaker 03:
not permitting you to do something and doing something off to the side that makes it uneconomical for you to do it.

[00:16:31] Speaker 03:
These are not the same things.

[00:16:32] Speaker 02:
Well, that's the question, Your Honor, and here's all I would quickly submit.

[00:16:36] Speaker 03:
If under the International Bridge Act they approve... In effect, you're claiming an exclusive franchise.

[00:16:42] Speaker 02:
right?

[00:16:42] Speaker 02:
I don't believe we are, Your Honor.

[00:16:45] Speaker 03:
The interference that you are alleging is the building of a competing bridge, right?

[00:16:51] Speaker 02:
Your Honor, if the facts, we've alleged facts which must be taken as true.

[00:16:55] Speaker 03:
What is the

[00:16:57] Speaker 03:
What is it that's preventing you from doing to your bridge what you think you have the right to do?

[00:17:01] Speaker 02:
It would be economic madness.

[00:17:03] Speaker 02:
Absolute insanity.

[00:17:05] Speaker 03:
How is that different than what I asked you?

[00:17:07] Speaker 03:
I'll tell you how it's different.

[00:17:08] Speaker 03:
You weren't even as close to franchise.

[00:17:09] Speaker 02:
Because if the traffic levels weren't high enough to justify both bridges, the only way we could stop them would be an exclusivity argument.

[00:17:16] Speaker 02:
We would lose the argument we're making now.

[00:17:18] Speaker 02:
It's a huge, huge difference, Judge Santel.

[00:17:21] Speaker 02:
If under the International Bridge Act, the State Department approved a bridge in the exact location of the twin span and said, just build on the other side, I think you'd see this case differently.

[00:17:31] Speaker 02:
If they built it 100 feet away from our bridge and made it physically almost impossible, I think... No, physically impossible.

[00:17:37] Speaker 03:
Then you'd have a very different... That's right.

[00:17:39] Speaker 03:
And all we're saying is economically... But you're not alleging any problem of physics.

[00:17:43] Speaker 02:
I think we submit we allege that traffic levels are declining.

[00:17:52] Speaker 02:
You have to accept that is true that they will take 75% of our commercial truck traffic.

[00:17:56] Speaker 02:
You have to accept that is true and that we will have it will be economically impossible madness.

[00:18:01] Speaker 02:
for us to build our twin span.

[00:18:02] Speaker 02:
And if we don't build it, our bridge will become a relic and we'll be dead in a matter of a few years.

[00:18:08] Speaker 02:
We allege those facts.

[00:18:10] Speaker 02:
So that's what's going to happen.

[00:18:11] Speaker 02:
That's what we can prove.

[00:18:12] Speaker 02:
This is not a close case.

[00:18:14] Speaker 02:
If we go and you go back and remand for facts and we can't prove that, then we'll have a different result.

[00:18:20] Speaker 02:
That's what we're alleging.

[00:18:22] Speaker 00:
You're on a storage?

[00:18:23] Speaker 00:
You're over time, but I want to ask you a question.

[00:18:25] Speaker 00:
In your effort to be the first case since 1935 to find the non-delegation doctrine.

[00:18:34] Speaker 00:
Not to find the doctrine.

[00:18:35] Speaker 00:
Huh?

[00:18:36] Speaker 00:
To strike down the statute, not to find the doctrine.

[00:18:37] Speaker 00:
To strike down the statute, right.

[00:18:40] Speaker 00:
So I'm having difficulty reconciling your argument with our decision in district number one, Pacific Coast District versus Maritime Administration.

[00:18:51] Speaker 00:
The statute in that case said, a person may not, without the approval of the Secretary of Transportation, place a documented vehicle, a vessel, which was under the laws of the United States, under foreign registration.

[00:19:05] Speaker 00:
That's all it said.

[00:19:07] Speaker 00:
And we held that because this was a narrow issue, that is, it was narrow in the sense of being only about transfers from American registry to non-American registry, and because it was an issue involving the foreign affairs of the United States, because it involved moving from an American to a non-American registry, this was not an unlawful delegation.

[00:19:33] Speaker 00:
Now, in this case, you have an even more narrow

[00:19:37] Speaker 00:
statute, one which only approves of passages across international boundaries.

[00:19:45] Speaker 00:
And again, it involves foreign affairs because, by definition, it requires an agreement with Canada or Mexico.

[00:19:54] Speaker 00:
How can you reconcile your opinion – your decision – your argument with our decision in maritime administration cases?

[00:20:01] Speaker 02:
Chief Judge Garland, I must confess that I don't have a mastery of familiarity with the case.

[00:20:07] Speaker 02:
I hope to have something more for you on rebuttal.

[00:20:09] Speaker 02:
But it sounds much less clear to me.

[00:20:12] Speaker 02:
I'll just do it very quickly.

[00:20:13] Speaker 02:
Much less clear to me the power that's being delegated there.

[00:20:17] Speaker 02:
Here you have a power that is very specifically delegated to assign to Congress in Article 1, Section 10, Clause 3.

[00:20:27] Speaker 02:
And a lot of these delegation cases, Your Honor, I submit,

[00:20:32] Speaker 02:
relate to interstitial issues of powers that lie between executive and legislative powers, and therefore they are understandably subjected to quite a lenient standard.

[00:20:42] Speaker 00:
Well, there's no argument about that in this opinion.

[00:20:45] Speaker 00:
That is, the question in the case is Congress has passed a statute about interstate commerce, which is within Congress's power, and it is delegated to the Secretary whether to approve certain kinds of transfers.

[00:20:58] Speaker 00:
Actually, that's exactly the same thing as was the case in the Panama case, which is the only predecessor that was anywhere near what you want in 1935.

[00:21:08] Speaker 00:
It wasn't a general authority under some compact clause or anything else.

[00:21:15] Speaker 00:
It was under interstate and foreign commerce.

[00:21:20] Speaker 00:
And that's what this case was.

[00:21:23] Speaker 02:
Well, the power to regulate commerce is a much more general power than the power to approve compacts with foreign government, which is unconstitutional thin ice to begin with because Article 1, Section 10, Clause 1 absolutely prohibits states from entering into treaties, period.

[00:21:41] Speaker 00:
I don't understand why it's unconstitutional than ICE when there's a contact clause.

[00:21:46] Speaker 02:
A treaty would be unconstitutional, period.

[00:21:49] Speaker 02:
An agreement needs Congress's consent.

[00:21:51] Speaker 02:
Now, Congress has delegated the power to give that consent.

[00:21:55] Speaker 02:
That seems to me to warrant some greater constitutional scrutiny.

[00:21:59] Speaker 00:
than the power to regulate interstate and foreign commerce?

[00:22:02] Speaker 00:
Congress can't delegate that to us either.

[00:22:04] Speaker 02:
The delegation, respectfully, I don't think is as narrow.

[00:22:08] Speaker 02:
That sounded like a very narrow delegation of changing registries.

[00:22:11] Speaker 02:
I don't even understand exactly how that's a delegation.

[00:22:14] Speaker 02:
That strikes me as an executive power.

[00:22:16] Speaker 02:
It doesn't strike me as a delegation.

[00:22:17] Speaker 02:
I understand that the opinion may not make the point I'm making.

[00:22:20] Speaker 02:
I'm simply saying that that's what I'm submitting to the court, that there is a different analysis

[00:22:25] Speaker 02:
when you're looking at something that's arguably an interstitial power between executive and legislative, rather than something that is unambiguously signed only to Congress.

[00:22:35] Speaker 02:
Okay, we have the argument.

[00:22:37] Speaker 02:
Thank you, Your Honor.

[00:22:44] Speaker 01:
May it please the Court, Robert London, representing the Federal Appellees.

[00:22:47] Speaker 01:
I will start off with Section 3 of the International Bridge Act.

[00:22:51] Speaker 01:
It's the Secretary's duty under that Act

[00:22:54] Speaker 01:
to review the agreements, agreements between the state of Michigan here and Canada, but always agreements between a state and a foreign country and in Mexico about an international grid for foreign policy.

[00:23:05] Speaker 01:
And that provides the intelligible principle to satisfy the international delegation task.

[00:23:11] Speaker 03:
I'm not sure that I followed the Supreme Court in Whitman.

[00:23:16] Speaker 03:
I want to get the language right here.

[00:23:18] Speaker 03:
When Congress confers decision-making authority upon agencies, Congress

[00:23:25] Speaker 03:
lay down the legislative act, by legislative act, an intelligence principle to which the person or body authorized to act is directed to conform.

[00:23:35] Speaker 03:
What is the legislative act in this case by which the Congress has laid down an intelligence principle?

[00:23:42] Speaker 01:
Well, the Legislative Act is the International Bridge Act, and the Supreme Court says... That's not an act laying down an indomitable principle.

[00:23:49] Speaker 03:
Well, the Supreme Court... That's the act, as you just said, that gave the Secretary the delegate.

[00:23:54] Speaker 03:
It gave the Secretary the duty.

[00:23:56] Speaker 03:
Nobody questions that they did delegate.

[00:23:59] Speaker 03:
The question here is, did Congress

[00:24:04] Speaker 03:
comply with what the Supreme Court described in Whitman as laying down an intelligible principle by which the person or body authorized to act is directed to conform.

[00:24:14] Speaker 01:
So we have three responses.

[00:24:16] Speaker 01:
One, Whitman goes on to say when the statute is narrow.

[00:24:20] Speaker 01:
So for example, when it's not like the Clean Air Act, the action of Whitman, which was really broad reaching with wide impacts.

[00:24:28] Speaker 01:
when it's a narrow statute.

[00:24:29] Speaker 03:
At the outset, I will concede that the Supreme Court eventually in Whitman said there was not an unconstitutional delegation to go ahead.

[00:24:36] Speaker 01:
Right.

[00:24:37] Speaker 01:
And also set aside cases like this one, where the act is very, very focused.

[00:24:43] Speaker 01:
It's focused bridge from the United States to Canada.

[00:24:47] Speaker 01:
And in that context, the court can easily infer that the State Department, who this task is assigned to under Section 3,

[00:24:55] Speaker 01:
is to review those agreements for foreign policy.

[00:24:59] Speaker 01:
And even if there was any doubt about that, the legislative history clears it up.

[00:25:03] Speaker 01:
There's a memo attached to the committee report that the committee report references.

[00:25:06] Speaker 03:
You're seriously, you're not a novice here.

[00:25:09] Speaker 03:
You seriously believe you're going to convict me with legislative history?

[00:25:14] Speaker 03:
Well, I'm speaking to the court as a whole.

[00:25:16] Speaker 03:
The Supreme Court expressly stated Whitman that it had to be by legislative act.

[00:25:21] Speaker 03:
You know that a

[00:25:23] Speaker 03:
piece of legislative history is not a legislative act.

[00:25:27] Speaker 01:
And let me read you the language from Whitman that I think is very helpful for us on what else you can look at.

[00:25:35] Speaker 01:
And it's the court, I'm not finding the quote, but it goes on to say the Clean Air Act, this issue at Whitman was very broad-reaching.

[00:25:50] Speaker 01:
In some cases, when it's a very narrow assignment of power,

[00:25:53] Speaker 01:
We don't need we don't need any words in the statute and and that's in in Whitman itself And this court has confirmed that context is relevant as well And if you look at context here, and you look at the fact it's assigned to the State Department whose bread and butter is foreign policy review You can get to an intelligible principle, and that's the principle then the state would say not that you complied with the language

[00:26:20] Speaker 03:
There's another line with reference to the Legislative Act requirement.

[00:26:24] Speaker 03:
You're not saying you comply with it, but rather that you don't have to.

[00:26:29] Speaker 01:
Well, it depends what you mean by legislative.

[00:26:31] Speaker 01:
It talks about Legislative Act, and so it's not, I don't think Whitman is saying you just look at the text of the statute and keep your eyes closed to what the statute's addressing.

[00:26:40] Speaker 03:
Suppose I do think so.

[00:26:42] Speaker 03:
Have you complied with it then?

[00:26:44] Speaker 01:
How we comply with it then?

[00:26:45] Speaker 01:
I think from the fact that it's assigned to the State Department, and when you read this section, it's about international bridges.

[00:26:51] Speaker 01:
I think you can connect the dots readily.

[00:26:55] Speaker 01:
And it's enough here that when you take, the Court has said you take a practical understanding of this issue.

[00:26:59] Speaker 01:
You don't parse the language in this kind of close reading way.

[00:27:03] Speaker 01:
You look at the big picture, and the big picture here, I think, is really clear.

[00:27:06] Speaker 01:
There's a principle.

[00:27:07] Speaker 01:
It's foreign policy review by the State Department.

[00:27:12] Speaker 01:
As to that review,

[00:27:13] Speaker 01:
The bridge company doesn't make any argument that that foreign policy review was arbitrary.

[00:27:17] Speaker 01:
What they're saying is no, no, no.

[00:27:19] Speaker 01:
We need this state law issue resolved instead.

[00:27:22] Speaker 01:
And the state law issue being whether the state of Michigan was authorized to enter into the agreement or not.

[00:27:28] Speaker 01:
And I think that's an issue of state law.

[00:27:30] Speaker 01:
That's an issue of state courts to litigate.

[00:27:32] Speaker 01:
That's an issue the bridge company is litigating in multiple state courts, both the one that was recently dismissed and the condonation cases that Mr. Hu mentioned.

[00:27:41] Speaker 01:
And I don't think there's any text in the statute that indicates that the Secretary of State in Section 3 of the International Bridge Act has to go any farther than that.

[00:27:52] Speaker 04:
Well, I thought the argument that they were relying on was the phrase such agreement.

[00:27:57] Speaker 04:
And they take from that that the Secretary could not approve this agreement if, arguably, it was facially invalid.

[00:28:05] Speaker 04:
And I thought what they were getting at was the fact that the Secretary had all this information from state legislators saying that there was no authority to enter into this agreement.

[00:28:18] Speaker 04:
And all, quote, the Secretary had was something out of the State Attorney General's office and the Governor's office.

[00:28:26] Speaker 01:
Two responses, I think the word agreement there, they're putting too much work on it, and it's not a facial attack.

[00:28:31] Speaker 01:
They're not saying that you look at the agreement and there's a facial problem with it, that it's not an agreement, or that it's not a bridge, or that it's not the state of Michigan.

[00:28:40] Speaker 01:
Those are the examples Mr. Hume gave, and this isn't that case.

[00:28:44] Speaker 01:
There's no issue here that it's a bridge.

[00:28:46] Speaker 01:
There's no issue that the state of Michigan's name's on the agreement.

[00:28:50] Speaker 01:
Then you're right.

[00:28:51] Speaker 01:
The State Department got letters from state legislators, individuals in Michigan, saying like, hey, there's a Michigan law issue here.

[00:29:00] Speaker 01:
And at that point, the State Department did not just stop.

[00:29:03] Speaker 01:
It wrote to the governor.

[00:29:04] Speaker 01:
It wrote to the attorney general and said, we need an answer to this.

[00:29:08] Speaker 04:
So in the record of decision, was the secretary required to allude to the state law issue at all?

[00:29:18] Speaker 01:
I don't think it had to, however attached in the responses to comments to the record.

[00:29:23] Speaker 04:
Well, that's what I was really getting at, that there's nothing in the record of decision.

[00:29:27] Speaker 04:
All we have is the Secretary's response to comments.

[00:29:30] Speaker 01:
which is attached to the record decision.

[00:29:32] Speaker 01:
It's the appendix to it.

[00:29:32] Speaker 01:
So I think it's there.

[00:29:35] Speaker 01:
And it explains, this is what we did.

[00:29:38] Speaker 01:
And the response was from the Secretary.

[00:29:39] Speaker 04:
But what I'm trying to understand is just sort of a legal point in terms of if the Secretary gives us five reasons, and they all have to do with foreign affairs, international.

[00:29:57] Speaker 04:
It has, as an appendix, a response to someone who raises what I understand your position to be a totally irrelevant issue.

[00:30:08] Speaker 04:
And the Secretary responds to it so that we can see that the Secretary, in a sense, wasn't arbitrary and capricious by ignoring this comment, but in fact responded to it.

[00:30:19] Speaker 04:
But it's not a concession that the Secretary thought he had any obligation

[00:30:26] Speaker 04:
to address this issue.

[00:30:27] Speaker 04:
That's what I'm trying to understand.

[00:30:29] Speaker 01:
I don't think it's concession that there was an obligation to do any sort of assessment under Michigan state law.

[00:30:34] Speaker 04:
But you seem to agree that he couldn't have approved an agreement if there was a state law that said under no circumstances does the governor have any authority whatsoever to enter into

[00:30:47] Speaker 01:
I don't have a position on that question.

[00:30:54] Speaker 01:
We don't have that here.

[00:30:57] Speaker 01:
If there was a law, what we have is comments raising this possibility.

[00:31:02] Speaker 01:
and then the State Department doing its diligence on it and getting an answer from the Michigan Attorney General's Office, page 685, signed by the Chief Deputy Attorney General, says, Attorney General's designee, right, early for name.

[00:31:14] Speaker 04:
Well, your brief isn't written in the sense that you view that as a separate, like, alternative reason for approving.

[00:31:26] Speaker 01:
Well, I think our brief is, I tried to write the brief with the first argument being,

[00:31:31] Speaker 01:
there's no duty under section three of the act to do this sort of state law analysis.

[00:31:36] Speaker 01:
In any event, the extent that this triggers arbitrary and capricious review, here's what the State Department did, and I think it easily satisfies that standard.

[00:31:47] Speaker 01:
The working problem here is another one the district court identified, that if you go down this road of assessing the state law details, requiring the State Department to do that rather than the Michigan State Courts, then the problem really arises of whether Michigan is the indispensable party under Rule 19 as the district court concluded.

[00:32:06] Speaker 01:
And the district court's conclusion is based on the fact that the bridge company was arguing that

[00:32:12] Speaker 01:
the district court had to do this state law analysis.

[00:32:15] Speaker 01:
And that analysis would result in an opinion from a federal court saying agreement is good or agreement is bad.

[00:32:21] Speaker 01:
And that then really drags Michigan's sovereign interest directly into the case and explains the rule 19 holding as well.

[00:32:27] Speaker 01:
As to section four, there are two arguments we made about why that's not reviewable at this time.

[00:32:34] Speaker 01:
The first is the presidential permit.

[00:32:35] Speaker 01:
The first is it's a presidential permit.

[00:32:38] Speaker 01:
And the president had this authority pursuant to the Constitution to issue permits for cross-border bridges.

[00:32:45] Speaker 01:
That authority predates the International Bridge Act.

[00:32:48] Speaker 01:
It's recognized and explained in the executive order from 1968.

[00:32:52] Speaker 01:
And then the International Bridge Act comes along against that backdrop and endorses that view.

[00:32:58] Speaker 01:
And it endorses it very specifically.

[00:33:00] Speaker 01:
In section three, it assigns this approval review to the secretary of state.

[00:33:05] Speaker 01:
But section four says the permit decision is for the president.

[00:33:09] Speaker 01:
And when you've got that clear one-hand agency action, other hand presidential action, I think that really strongly points to this being a presidential action that's not reviewable under the API.

[00:33:19] Speaker 00:
Can I ask you about that?

[00:33:19] Speaker 00:
Yes.

[00:33:20] Speaker 00:
So you're relying on Franklin for that proposition, right?

[00:33:23] Speaker 01:
Yes, among other things.

[00:33:24] Speaker 00:
That's the Supreme Court of the United States' opinion, which beats all of ours.

[00:33:29] Speaker 00:
So I would assume that you better rely on that.

[00:33:31] Speaker 00:
I'm relying on it.

[00:33:34] Speaker 00:
Yeah.

[00:33:34] Speaker 00:
So it seems to me the operative phrase there is the core question is whether the agency has completed its decision-making process and whether the result of that process is one that will directly affect the parties.

[00:33:48] Speaker 00:
In this case, the action that creates an entitlement

[00:33:51] Speaker 00:
and has a direct effect is the President's statement to Congress, not the Secretary's report to the President.

[00:33:57] Speaker 00:
Now, in this case, by action of the executive order, the decision is over.

[00:34:02] Speaker 00:
The President never acted.

[00:34:04] Speaker 00:
The Secretary of Defense and the other people who are supposed to bring it to the President's attention did not do so.

[00:34:10] Speaker 00:
So there's no role for the President, right?

[00:34:13] Speaker 00:
The President is not going to make a decision in this case, and never has made a decision, other than to delegate the decision to

[00:34:20] Speaker 00:
Secretary of State, isn't that right?

[00:34:23] Speaker 01:
There is to delegation, but I think because this is pursuant to the President's authority and confirmed in the International Bridge Act, Section 4, it's the President's action all the way through.

[00:34:34] Speaker 00:
Even if the President has delegated the decision to an agency?

[00:34:40] Speaker 01:
at least in this context, where it's pursuant to the President's constitutional authority in a legislative act saying it's a presidential act.

[00:34:47] Speaker 00:
Yeah, but President, you could make an argument here that what the President done here is in violation of Section 4, because Section 4 doesn't allow for any delegation to anybody other than the President, assuming that you think that would, and therefore what the President's done is void.

[00:35:04] Speaker 00:
But assuming you don't believe that, which I assume you don't, then you have to assume that the delegation is appropriate, in which case, once the time has passed for the President to do anything, or as in this case, the President was never asked to do anything, then the final action is agency action.

[00:35:20] Speaker 00:
I'm not sure why this is any different than – I mean, the Constitution provides for a unitary executive.

[00:35:26] Speaker 00:
That is, it provides for a President.

[00:35:27] Speaker 00:
It does not provide for the Secretary of State, and it does not provide for the

[00:35:33] Speaker 00:
the Attorney General, those are provided by statute.

[00:35:36] Speaker 00:
And the President has delegated certain authorities to those, or Congress has delegated certain authorities.

[00:35:42] Speaker 00:
Now, of course, the President may always reverse those.

[00:35:45] Speaker 00:
But where the President has not acted, the matter's over.

[00:35:50] Speaker 00:
I don't understand why this case comes within Franklin, where in that case, everything depended on the President's statement.

[00:35:58] Speaker 01:
I think there's two critical distinctions between here that make this fall on the presidential action.

[00:36:03] Speaker 01:
One is what the question is, the relevant question we think is what's been delegated.

[00:36:08] Speaker 01:
And what's been delegated is presidential power.

[00:36:10] Speaker 01:
And it doesn't lose its presidential power when the secretary of the state, because the president asked,

[00:36:16] Speaker 01:
the second the states make the decision does it.

[00:36:18] Speaker 01:
And the second point is this isn't a case where it's kind of a unitary executive theory and that it's inherently, you know, agencies are inherently acting on behalf of the president.

[00:36:30] Speaker 01:
We've got Congress in the Bridge Act drawing this line between section three and four with respect to agency action in three and presidential action in four.

[00:36:38] Speaker 01:
And so I think it's a really rare case in that it fits in that, even though we have such a clear distinction.

[00:36:44] Speaker 01:
But the other critical point is these international bridges, as the executive order explains, it's presidential authority, and that's what's being... I think your fallback argument would be that this is committed to agency discretion.

[00:36:57] Speaker 00:
Yes.

[00:36:57] Speaker 00:
Maybe you want to talk about that.

[00:36:59] Speaker 01:
I'm happy to talk about that.

[00:37:00] Speaker 01:
And the analysis there is, well, what standard is there, and how broad is it, and whether it's committed agency discretion by law or not.

[00:37:10] Speaker 01:
And the answer is yes.

[00:37:12] Speaker 01:
The standard here is simply national interest for the determination on whether or not to grant the presidential permit.

[00:37:19] Speaker 01:
And that doesn't provide a standard that the court can meaningfully review.

[00:37:24] Speaker 00:
So I assume that, like your colleague, you have not read District Number One Pacific Coast District?

[00:37:30] Speaker 01:
Well, we cite that in our brief on this prong, not on the unconstitutional delegation.

[00:37:34] Speaker 00:
And on this prong, it did say pretty much the same.

[00:37:37] Speaker 00:
You had a very similar statute, which gave the Secretary of Transportation authority to decide, didn't give any grounds, other than the implicit ground of it having to relate to foreign affairs.

[00:37:51] Speaker 00:
And we did hold that it was committed to agency discretion.

[00:37:54] Speaker 01:
right we think that's right we think the legal assistance for vietnamese asylum seekers is very similar to this one it's in the same area of law i.e.

[00:38:01] Speaker 01:
foreign policy the court there says the agency is entrusted by a broadly worded statute with balancing complex concerns involving security and diplomacy here

[00:38:12] Speaker 01:
the Section 4 in the presidential permit, national interest determination, and a broadly worded statute, Section 4, as well.

[00:38:19] Speaker 01:
So we think that case, in addition to the district case, both point strongly to the answer being here in this committee discussion.

[00:38:26] Speaker 00:
Let me ask if there's any more questions.

[00:38:29] Speaker 00:
Thank you.

[00:38:30] Speaker 00:
Is there any time left for rebuttal?

[00:38:32] Speaker 00:
All right, we allowed your opponent to have 50 seconds over.

[00:38:37] Speaker 00:
We, of course, gave you about five minutes over, but we'll give you another two minutes here.

[00:38:42] Speaker 02:
Very quickly, Your Honor, the point about this being a delegation of executive authority under Section 4 is just simply wrong.

[00:38:50] Speaker 02:
Since 1899, Congress had said no international bridge could be approved without congressional authority.

[00:38:56] Speaker 02:
Judge Collier has a very good description of this history, a joint appendix 76 to 84.

[00:39:02] Speaker 02:
The executive order didn't delegate it because it required congressional authorization.

[00:39:07] Speaker 02:
Your Honors, there are multiple cases

[00:39:10] Speaker 02:
where very respected judges life into these all the sense that you're going to be saying

[00:39:19] Speaker 00:
What's that?

[00:39:20] Speaker 00:
Are these all dissents?

[00:39:21] Speaker 02:
They're not all dissents.

[00:39:23] Speaker 02:
They're often narrowing constructions in the Sexual Online Registration – Sex Offenders Registration Act, Judge Gorsuch – then Judge Gorsuch in the Tenth Circuit, Judge Rogge in the Second Circuit, and both Justices Scalia and Ginsburg agreeing significantly in dissent in the Reynolds case, simply showing the significance.

[00:39:42] Speaker 02:
The Eighth Circuit did strike down a statute in South Dakota v. Department of Interior

[00:39:47] Speaker 02:
It was vacated on appeal only because the agency changed its position.

[00:39:51] Speaker 00:
I don't think there's any dispute that there's a non-delegation doctrine.

[00:39:54] Speaker 00:
The court said so in Whitman.

[00:39:55] Speaker 00:
The question is whether you, where you fall within that doctrine.

[00:39:58] Speaker 00:
That's fair enough, Your Honor.

[00:39:59] Speaker 02:
I simply, I'm not sure it's actually quite accurate that no statute's been struck down since the Eighth Circuit did, although it was vacated.

[00:40:06] Speaker 02:
So, but for a different reason.

[00:40:13] Speaker 02:
I think just quickly on this, Councilman, the department's position is that it does not matter how unambiguous the statute, the agreement, how unambiguous it is that the agreement is unlawful, they can still approve it.

[00:40:24] Speaker 02:
That's their position.

[00:40:25] Speaker 02:
In fact, I think their position is even if there was a Supreme Court, State Supreme Court case.

[00:40:29] Speaker 00:
That wasn't the position of the district court's alternative holding.

[00:40:32] Speaker 00:
The district court's alternative holding was that they did enough here.

[00:40:36] Speaker 02:
In the alternative holding, yes.

[00:40:37] Speaker 02:
But I think if you look at JA 139 of her opinion, her principle holding was it simply didn't matter.

[00:40:44] Speaker 02:
It could be no matter how unlawful.

[00:40:45] Speaker 02:
And Judge Rogers, your question about an unambiguous statute, it's the nail on the head.

[00:40:50] Speaker 02:
That actually is what happened here.

[00:40:51] Speaker 02:
I again recommend the court to look at Addendum 91 and 96.

[00:40:56] Speaker 02:
And finally, we ask the court for our underlying congressional intent and franchise argument to simply consider hundreds of millions of dollars have been spent building highways.

[00:41:06] Speaker 02:
to the Ambassador Bridge – that's at Addendum 83 – they said in the report to protect plans for the Ambassador Bridge twin span.

[00:41:14] Speaker 02:
They said when they enacted the Ambassador Bridge, don't adversely affect rights – that's at Addendum 65 to 66 – don't adversely affect the rights of bridges to repair and replace.

[00:41:23] Speaker 02:
None of this was considered

[00:41:26] Speaker 02:
at all in the State Department's approval of the NHTSA.

[00:41:29] Speaker 02:
It did not comply with the necessity requirement in Section 4 of the IBA, which, Your Honor, we submit provides law to apply.

[00:41:38] Speaker 02:
Thank you.

[00:41:39] Speaker 02:
Thank you, Your Honor.

[00:41:40] Speaker 02:
I'll take the matter under submission.