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In 1992, the Court decided New York v. United States. The basic facts of the case are as follows. In the early 1980’s, Congress confronted the fact that there were insufficient sites for the long-term storage of nuclear waste. In response, Congress enacted the Low-Level Radioactive Waste Policy Amendments of 1985. The statute required a state to enact a law consistent with federal guidelines for the disposal of nuclear waste. States that failed to do so would face consequences. The statute tried to encourage states to form compacts to safely store one another’s waste. Creating an in-state site would guarantee states access to out-of-state sites. If a state failed to pass legislation creating an in-state disposal site by a certain deadline, the state was required to take title to and possession of all waste generated within its borders, and it became liable for any damages caused by the state’s failure to take possession. The Court recognized that regulation of the interstate market in waste disposal is within Congress’ commerce power, but struck the statute nonetheless.
Was the “affirmative limitation” language of National League of Cities (1976) viable after Garcia (1985)? Is it viable after New York?
As you read Printz (1997), list and compare arguments by the dissent and the majority. With reference to historical arguments, start with the dissent and then look at the arguments by the majority. Do the same with other types of arguments, such as textual and structural ones and arguments from precedent. Most of the majority’s arguments are attempts to respond to the dissent. You should use the same method for analyzing the decision in Alden v. Maine (1999).
The question presented in these cases is whether certain interim provisions of the Brady Handgun Violence Prevention Act . . . commanding state and local law enforcement officers to conduct background checks on prospective handgun purchasers and to perform certain related tasks, violate the Constitution.
[I. The Gun Control Act of 1968 (GCA) established a detailed federal scheme governing the distribution of firearms. In 1993, Congress amended the GCA by enacting the Brady Act, which required mandatory background checks of gun-buyers and the issuance of a permit before delivery of the weapon. While the Act called for the creation of a federal bureaucracy to conduct the checks, it required state law enforcement officers to conduct the checks during the interim period. Petitioners Jay Printz and Richard Mack were two state officers who challenged the statute, saying that forcing them to do the checks at the demand of the federal government violated constitutional principles of state sovereignty.] . . .
[T]he Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme. . . .
Petitioners contend that compelled enlistment of state executive officers for the administration of federal programs is, until very recent years at least, unprecedented. The Government contends, to the contrary, that “the earliest Congresses enacted statutes that required the participation of state officials in the implementation of federal laws,” Brief for United States 28. . . .
The Government observes that statutes enacted by the first Congresses required state courts to record applications for citizenship, to transmit abstracts of citizenship applications and other naturalization records to the Secretary of State, and to register aliens seeking naturalization and issue certificates of registry. It may well be, however, that these requirements applied only in States that authorized their courts to conduct naturalization proceedings. . . .
These early laws establish, at most, that the Constitution was originally understood to permit imposition of an obligation on state judges to enforce federal prescriptions, insofar as those prescriptions related to matters appropriate for the judicial power. That assumption was perhaps implicit in one of the provisions of the Constitution, and was explicit in another. In accord with the so-called Madisonian Compromise, Article III, § 1, established only a Supreme Court, and made the creation of lower federal courts optional with the Congress — even though it was obvious that the Supreme Court alone could not hear all federal cases throughout the United States. And the Supremacy Clause, Art. VI, cl. 2, announced that “the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” It is understandable why courts should have been viewed distinctively in this regard; unlike legislatures and executives, they applied the law of other sovereigns all the time. . . .
To complete the historical record, we must note that there is not only an absence of executive-commandeering statutes in the early Congresses, but there is an absence of them in our later history as well, at least until very recent years. The Government points to the Act of August 3, 1882, ch. 376, which enlisted state officials “to take charge of the local affairs of immigration in the ports within such State, and to provide for the support and relief of such immigrants therein landing as may fall into distress or need of public aid”; to inspect arriving immigrants and exclude any person found to be a “convict, lunatic, idiot,” or indigent; and to send convicts back to their country of origin “without compensation.” The statute did not, however, mandate those duties, but merely empowered the Secretary of the Treasury “to enter into contracts with such State . . . officers as may be designated for that purpose by the governor of any State” (emphasis added).
The Government cites the World War I selective draft law that authorized the President “to utilize the service of any or all departments and any or all officers or agents of the United States and of the several States, Territories, and the District of Columbia, and subdivisions thereof, in the execution of this Act,” and made any person who refused to comply with the President’s directions guilty of a misdemeanor (emphasis added). Act of May 18, 1917. However, it is far from clear that the authorization “to utilize the service” of state officers was an authorization to compel the service of state officers; and the misdemeanor provision surely applied only to refusal to comply with the President’s authorized directions, which might not have included directions to officers of States whose governors had not volunteered their services. It is interesting that in implementing the Act President Wilson did not commandeer the services of state officers, but instead requested the assistance of the States’ governors. . . . It is impressive that even with respect to a wartime measure the President should have been so solicitous of state independence.
The Government points to a number of federal statutes enacted within the past few decades that require the participation of state or local officials in implementing federal regulatory schemes. Some of these are connected to federal funding measures, and can perhaps be more accurately described as conditions upon the grant of federal funding than as mandates to the States; others, which require only the provision of information to the Federal Government, do not involve the precise issue before us here, which is the forced participation of the States’ executive in the actual administration of a federal program. . . .
III. The constitutional practice we have examined above tends to negate the existence of the congressional power asserted here, but is not conclusive. We turn next to consideration of the structure of the Constitution, to see if we can discern among its “essential postulate[s],” a principle that controls the present cases.
The Framers’ experience under the Articles of Confederation had persuaded them that using the States as the instruments of federal governance was both ineffectual and provocative of federal-state conflict. See The Federalist No. 15. Preservation of the States as independent political entities being the price of union . . . the Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the state and federal governments would exercise concurrent authority over the people — who were, in Hamilton’s words, “the only proper objects of government,” The Federalist No. 15. . . .”The Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.” [citing New York v. United States (1992)] The great innovation of this design was that “our citizens would have two political capacities, one state and one federal, each protected from incursion by the other” — “a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.” U.S. Term Limits, Inc. v. Thornton (1995) (Kennedy, J., concurring). The Constitution thus contemplates that a State’s government will represent and remain accountable to its own citizens. . . .
This separation of the two spheres is one of the Constitution’s structural protections of liberty. “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” Gregory. . . .
The power of the Federal Government would be augmented immeasurably if it were able to impress into its service — and at no cost to itself — the police officers of the 50 States.
III-B. We have thus far discussed the effect that federal control of state officers would have upon the first element of the “double security” alluded to by Madison: the division of power between State and Federal Governments. It would also have an effect upon the second element: the separation and equilibration of powers between the three branches of the Federal Government itself. The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, “shall take Care that the Laws be faithfully executed,” Art. II, § 3, personally and through officers whom he appoints (save for such inferior officers as Congress may authorize to be appointed by the “Courts of Law” or by “the Heads of Departments” who are themselves presidential appointees), Art. II, § 2. The Brady Act effectively transfers this responsibility to thousands of CLEOs in the 50 States, who are left to implement the program without meaningful Presidential control (if indeed meaningful Presidential control is possible without the power to appoint and remove). The insistence of the Framers upon unity in the Federal Executive — to insure both vigor and accountability — is well known. That unity would be shattered, and the power of the President would be subject to reduction, if Congress could act as effectively without the President as with him, by simply requiring state officers to execute its laws.
III-C. The dissent of course resorts to the last, best hope of those who defend ultra vires congressional action, the Necessary and Proper Clause. . . . What destroys the dissent’s Necessary and Proper Clause argument, however, is . . . the Necessary and Proper Clause itself. . . . We in fact answered the dissent’s Necessary and Proper Clause argument in New York: “[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. . . . [T]he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments’ regulation of interstate commerce.” New York v. United States. . . .
Finally, and most conclusively in the present litigation, we turn to the prior jurisprudence of this Court. Federal commandeering of state governments is such a novel phenomenon that this Court’s first experience with it did not occur until the 1970’s, when the Environmental Protection Agency promulgated regulations requiring States to prescribe auto emissions testing, monitoring and retrofit programs, and to designate preferential bus and carpool lanes. . . .
The Government contends that New York is distinguishable on the following ground: unlike the “take title” provisions invalidated there, the background-check provision of the Brady Act does not require state legislative or executive officials to make policy, but instead issues a final directive to state CLEOs. It is permissible, the Government asserts, for Congress to command state or local officials to assist in the implementation of federal law so long as “Congress itself devises a clear legislative solution that regulates private conduct” and requires state or local officers to provide only “limited, non-policymaking help in enforcing that law.” “[T]he constitutional line is crossed only when Congress compels the States to make law in their sovereign capacities.” Brief for United States 16.
The Government’s distinction between “making” law and merely “enforcing” it, between “policymaking” and mere “implementation,” is an interesting one. It is perhaps not meant to be the same as, but it is surely reminiscent of, the line that separates proper congressional conferral of Executive power from unconstitutional delegation of legislative authority for federal separation-of-powers purposes. This Court has not been notably successful in describing the latter line; indeed, some think we have abandoned the effort to do so. We are doubtful that the new line the Government proposes would be any more distinct. Executive action that has utterly no policymaking component is rare, particularly at an executive level as high as a jurisdiction’s chief law-enforcement officer. Is it really true that there is no policymaking involved in deciding, for example, what “reasonable efforts” shall be expended to conduct a background check? . . . Is [a] decision whether to devote maximum “reasonable efforts” or minimum “reasonable efforts” not preeminently a matter of policy? It is quite impossible, in short, to draw the Government’s proposed line at “no policymaking,” and we would have to fall back upon a line of “not too much policymaking.” How much is too much is not likely to be answered precisely; and an imprecise barrier against federal intrusion upon state authority is not likely to be an effective one.
Even assuming, moreover, that the Brady Act leaves no “policymaking” discretion with the States, we fail to see how that improves rather than worsens the intrusion upon state sovereignty. Preservation of the States as independent and autonomous political entities is arguably less undermined by requiring them to make policy in certain fields than . . . by “reduc[ing] [them] to puppets of a ventriloquist Congress,” Brown v. EPA (1975). It is an essential attribute of the States’ retained sovereignty that they remain independent and autonomous within their proper sphere of authority. It is no more compatible with this independence and autonomy that their officers be “dragooned” (as Judge Fernandez put it in his dissent below) into administering federal law, than it would be compatible with the independence and autonomy of the United States that its officers be impressed into service for the execution of state laws. . . .
The Government also maintains that requiring state officers to perform discrete, ministerial tasks specified by Congress does not violate the principle of New York because it does not diminish the accountability of state or federal officials. This argument fails even on its own terms. By forcing state governments to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for “solving” problems without having to ask their constituents to pay for the solutions with higher federal taxes. And even when the States are not forced to absorb the costs of implementing a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects. Under the present law, for example, it will be the CLEO and not some federal official who stands between the gun purchaser and immediate possession of his gun. And it will likely be the CLEO, not some federal official, who will be blamed for any error (even one in the designated federal database) that causes a purchaser to be mistakenly rejected. . . .
Finally, the Government puts forward a cluster of arguments that can be grouped under the heading: “The Brady Act serves very important purposes, is most efficiently administered by CLEOs during the interim period, and places a minimal and only temporary burden upon state officers.” . . . Assuming all the mentioned factors were true, they might be relevant if we were evaluating whether the incidental application to the States of a federal law of general applicability excessively interfered with the functioning of state governments. But where, as here, it is the whole object of the law to direct the functioning of the state executive, and hence to compromise the structural framework of dual sovereignty, such a “balancing” analysis is inappropriate. It is the very principle of separate state sovereignty that such a law offends, and no comparative assessment of the various interests can overcome that fundamental defect. . . .
. . . We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State’s officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed.
Our precedent and our Nation’s historical practices support the Court’s holding today. The Brady Act violates the 10th Amendment to the extent it forces States and local law enforcement officers to perform background checks on prospective handgun owners and to accept Brady Forms from firearms dealers. Our holding, of course, does not spell the end of the objectives of the Brady Act. . . . Congress is . . . free to amend the interim program to provide for its continuance on a contractual basis with the States if it wishes, as it does with a number of other federal programs.
These cases do not implicate the more difficult questions associated with congressional coercion of state legislatures addressed in New York v. United States (1992). Nor need we consider the wisdom of relying on local officials rather than federal agents to carry out aspects of a federal program . . . The question is whether Congress, acting on behalf of the people of the entire Nation, may require local law enforcement officers to perform certain duties during the interim needed for the development of a federal gun control program. It is remarkably similar to the question, heavily debated by the Framers of the Constitution, whether the Congress could require state agents to collect federal taxes. Or the question whether Congress could impress state judges into federal service to entertain and decide cases that they would prefer to ignore.
Indeed, since the ultimate issue is one of power, we must consider its implications in times of national emergency. Matters such as the enlistment of air raid wardens, the administration of a military draft, the mass inoculation of children to forestall an epidemic, or perhaps the threat of an international terrorist, may require a national response before federal personnel can be made available to respond. If the Constitution empowers Congress and the President to make an appropriate response, is there anything in the 10th Amendment, “in historical understanding and practice, in the structure of the Constitution, [or] in the jurisprudence of this Court,” that forbids the enlistment of state officers to make that response effective? More narrowly, what basis is there in any of those sources for concluding that it is the Members of this Court, rather than the elected representatives of the people, who should determine whether the Constitution contains the unwritten rule that the Court announces today?
Perhaps today’s majority would suggest that no such emergency is presented by the facts of these cases. But such a suggestion is itself an expression of a policy judgment. And Congress’ view of the matter is quite different from that implied by the Court today.
The Brady Act was passed in response to what Congress described as an “epidemic of gun violence.” The Act’s legislative history notes that 15,377 Americans were murdered with firearms in 1992, and that 12,489 of these deaths were caused by handguns. Congress expressed special concern that “[t]he level of firearm violence in this country is, by far, the highest among developed nations.” The partial solution contained in the Brady Act, a mandatory background check before a handgun may be purchased, has met with remarkable success. Between 1994 and 1996, approximately 6,600 firearm sales each month to potentially dangerous persons were prevented by Brady Act checks; over 70% of the rejected purchasers were convicted or indicted felons. Whether or not the evaluation reflected in the enactment of the Brady Act is correct as to the extent of the danger and the efficacy of the legislation, the congressional decision surely warrants more respect than it is accorded in today’s unprecedented decision.
Article I, § 8, grants the Congress the power to regulate commerce among the States. Putting to one side the revisionist views expressed by Justice Thomas in his concurring opinion in United States v. Lopez (1995), there can be no question that that provision adequately supports the regulation of commerce in handguns effected by the Brady Act. Moreover, the additional grant of authority in that section of the Constitution “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” is surely adequate to support the temporary enlistment of local police officers in the process of identifying persons who should not be entrusted with the possession of handguns. . . . Unlike the 1st Amendment, which prohibits the enactment of a category of laws that would otherwise be authorized by Article I, the 10th Amendment imposes no restriction on the exercise of delegated powers. . . .
Under the Articles of Confederation the National Government had the power to issue commands to the several sovereign states, but it had no authority to govern individuals directly. . . .
That method of governing proved to be unacceptable, not because it demeaned the sovereign character of the several States, but rather because it was cumbersome and inefficient. . . . The basic change in the character of the government that the Framers conceived was designed to enhance the power of the national government, not to provide some new, unmentioned immunity for state officers. Because indirect control over individual citizens (“the only proper objects of government”) was ineffective under the Articles of Confederation, Alexander Hamilton explained that “we must extend the authority of the Union to the persons of the citizens.” The Federalist No. 15 (emphasis added).
Indeed, the historical materials strongly suggest that the Founders intended to enhance the capacity of the federal government by empowering it — as a part of the new authority to make demands directly on individual citizens — to act through local officials. . . .
More specifically, during the debates concerning the ratification of the Constitution, it was assumed that state agents would act as tax collectors for the federal government. . . .
This point is made especially clear in Hamilton’s statement that “the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws” (second emphasis added). . . .
More importantly, the fact that Congress did elect to rely on state judges and the clerks of state courts to perform a variety of executive functions, is surely evidence of a contemporary understanding that their status as state officials did not immunize them from federal service. The majority’s description of these early statutes is both incomplete and at times misleading. . . .
The Court’s evaluation of the historical evidence, furthermore, fails to acknowledge the important difference between policy decisions that may have been influenced by respect for state sovereignty concerns, and decisions that are compelled by the Constitution. Thus, for example, the decision by Congress to give President Wilson the authority to utilize the services of state officers in implementing the World War I draft, see Act of May 18, 1917, surely indicates that the national legislature saw no constitutional impediment to the enlistment of state assistance during a federal emergency. The fact that the President was able to implement the program by respectfully “request[ing]” state action, rather than bluntly commanding it, is evidence that he was an effective statesman, but surely does not indicate that he doubted either his or Congress’ power to use mandatory language if necessary. . . .
III. The Court’s “structural” arguments are not sufficient to rebut that presumption. The fact that the Framers intended to preserve the sovereignty of the several States simply does not speak to the question whether individual state employees may be required to perform federal obligations, such as registering young adults for the draft, creating state emergency response commissions designed to manage the release of hazardous substances, collecting and reporting data on underground storage tanks that may pose an environmental hazard, and reporting traffic fatalities, and missing children, to a federal agency. . . .
Given the fact that the Members of Congress are elected by the people of the several States, with each State receiving an equivalent number of Senators in order to ensure that even the smallest States have a powerful voice in the legislature, it is quite unrealistic to assume that they will ignore the sovereignty concerns of their constituents. It is far more reasonable to presume that their decisions to impose modest burdens on state officials from time to time reflect a considered judgment that the people in each of the States will benefit therefrom.
Indeed, the presumption of validity that supports all congressional enactments has added force with respect to policy judgments concerning the impact of a federal statute upon the respective States. . . .
Perversely, the majority’s rule seems more likely to damage than to preserve the safeguards against tyranny provided by the existence of vital state governments. By limiting the ability of the Federal Government to enlist state officials in the implementation of its programs, the Court creates incentives for the National Government to aggrandize itself. In the name of State’s rights, the majority would have the Federal Government create vast national bureaucracies to implement its policies. . . .
Nor is there force to the assumption undergirding the Court’s entire opinion that if this trivial burden on state sovereignty is permissible, the entire structure of federalism will soon collapse. These cases do not involve any mandate to state legislatures to enact new rules. When legislative action, or even administrative rule making, is at issue, it may be appropriate for Congress either to pre-empt the State’s lawmaking power and fashion the federal rule itself, or to respect the State’s power to fashion its own rules. But this case, unlike any precedent in which the Court has held that Congress exceeded its powers, merely involves the imposition of modest duties on individual officers. . . .
Far more important than the concerns that the Court musters in support of its new rule is the fact that the Framers entrusted Congress with the task of creating a working structure of intergovernmental relationships around the framework that the Constitution authorized. Neither explicitly nor implicitly did the Framers issue any command that forbids Congress from imposing federal duties on private citizens or on local officials. As a general matter, Congress has followed the sound policy of authorizing federal agencies and federal agents to administer federal programs. That general practice, however, does not negate the existence of power to rely on state officials in occasional situations in which such reliance is in the national interest. . . .
Finally, the Court advises us that the “prior jurisprudence of this Court” is the most conclusive support for its position. That “prior jurisprudence” is New York v. United States. The case involved the validity of a federal statute that provided the States with three types of incentives to encourage them to dispose of radioactive wastes generated within their borders. The Court held that the first two sets of incentives were authorized by affirmative grants of power to Congress, and therefore “not inconsistent with the 10th Amendment.” That holding, of course, sheds no doubt on the validity of the Brady Act.
The third so-called “incentive” gave the States the option either of adopting regulations dictated by Congress or of taking title to and possession of the low level radioactive waste. The Court concluded that, because Congress had no power to compel the state governments to take title to the waste, the “option” really amounted to a simple command to the States to enact and enforce a federal regulatory program. . . .
Our statements, taken in context, clearly did not decide the question presented here, whether state executive officials — as opposed to state legislators — may in appropriate circumstances be enlisted to implement federal policy. The “take title” provision at issue in New York was beyond Congress’ authority to enact because it was “in principle . . . no different than a congressionally compelled subsidy from state governments to radioactive waste producers,” almost certainly a legislative act. . . .
Finally, the majority provides an incomplete explanation of our decision in Testa v. Katt (1947), and demeans its importance. In that case the Court unanimously held that state courts of appropriate jurisdiction must occupy themselves adjudicating claims brought by private litigants under the federal Emergency Price Control Act of 1942, regardless of how otherwise crowded their dockets might be with state law matters. That is a much greater imposition on state sovereignty than the Court’s characterization of the case as merely holding that “state courts cannot refuse to apply federal law.” That characterization describes only the narrower duty to apply federal law in cases that the state courts have consented to entertain.
The language drawn from the Supremacy Clause upon which the majority relies (“the Judges in every State shall be bound [by federal law], any Thing in the Constitution or Laws of any state to the Contrary notwithstanding”), expressly embraces that narrower conflict of laws principle. Art. VI, cl. 2. But the Supremacy Clause means far more. As Testa held, because the “Laws of the United States . . . [are] the supreme Law of the Land,” state courts of appropriate jurisdiction must hear federal claims whenever a federal statute, such as the Emergency Price Control Act, requires them to do so.
Hence, the Court’s textual argument is quite misguided. The majority focuses on the Clause’s specific attention to the point that “Judges in every State shall be bound.” That language commands state judges to “apply federal law” in cases that they entertain, but it is not the source of their duty to accept jurisdiction of federal claims that they would prefer to ignore. Our opinions in Testa, and earlier the Second Employers’ Liability Cases, rested generally on the language of the Supremacy Clause, without any specific focus on the reference to judges. . . .
Even if the Court were correct in its suggestion that it was the reference to judges in the Supremacy Clause, rather than the central message of the entire Clause, that dictated the result in Testa, the Court’s implied expressio unius argument that the Framers therefore did not intend to permit the enlistment of other state officials is implausible. Throughout our history judges, state as well as federal, have merited as much respect as executive agents. The notion that the Framers would have had no reluctance to “press state judges into federal service” against their will but would have regarded the imposition of a similar — indeed, far lesser — burden on town constables as an intolerable affront to principles of state sovereignty, can only be considered perverse. If such a distinction had been contemplated by the learned and articulate men who fashioned the basic structure of our government, surely some of them would have said so.
The provision of the Brady Act that crosses the Court’s newly defined constitutional threshold is more comparable to a statute requiring local police officers to report the identity of missing children to the Crime Control Center of the Department of Justice than to an offensive federal command to a sovereign state. If Congress believes that such a statute will benefit the people of the Nation, and serve the interests of cooperative federalism better than an enlarged federal bureaucracy, we should respect both its policy judgment and its appraisal of its constitutional power.

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COMMONWEALTH vs. JACK DOUGLAS & others.
INDICTMENTS found and returned on October 27, 1966, and October 28, 1966.
John P. White, Jr., for the defendant O'Neill.
David S. Nelson for the defendant Douglas, Joseph S. Oteri for the defendant Alexander Celeste, & Monroe L. Inker for the defendant Frank Celeste, joined in a brief.
Murray P. Reiser, Assistant District Attorney (Roger Michael Carey, Legal Assistant to the District Attorney, with him), for the Commonwealth.
CUTTER, J. Douglas, Frank Celeste, Alexander Celeste, and Arthur J. O'Neill were indicted for various offences. Douglas and O'Neill were each charged with threats to extort. Alexander Celeste was charged with being an accessory before the fact to such threats. Frank Celeste and Alexander Celeste were each indicted for violation of G. L. c. 140, Section 110, making it a crime for an unlicensed person to conduct a small loan business (see fn. 3). All four defendants were charged with conspiracy to extort. Frank Celeste was found not guilty on the conspiracy indictment, but the other three defendants were found guilty. Each defendant was found guilty of the other offences, listed above, with which he was charged. [Note 1] The cases are before us under G. L. c. 278, Sections 33A-33G, as amended. On somewhat conflicting evidence the facts set out below could have been found. The jury were not required to believe, or to regard as controlling, other evidence, which might tend to reflect adversely on the testimony and the behavior of the Commonwealth's principal witness, Melvin Sacks (as a partner in his insurance firm and as an employee of the Celestes from October, 1965, to August, 1966).
broker. Interest was to be at the rate of $25 a week (equivalent to 260% per annum). Payments were to be made to one or the other of the Celestes. Some of about eight payments of $25 were made to Alexander Celeste. The other payments were made to Frank Celeste at Sacks's place of business. The payments were not applied to the principal of the loan. Early in November, 1963, Sacks paid Alexander the $500 principal.
In November, 1964, Alexander Celeste again lent Sacks $500 on the same terms. Frank Celeste appeared about once a week to collect $25, and thirty-nine payments of $25 were made between November, 1964, and August, 1965 (a total of $975). During the period, O'Neill began to accompany Frank Celeste when he made collections. No payments were made directly to Alexander Celeste. Sacks did not deduct on his 1965 Federal income tax return any interest payments on this loan.
indicating disputes between the Celestes and Sacks concerning the latter's sales activities.
On August 24, 1966, Douglas reported to Alexander Celeste by telephone in Sacks's presence that there had been a call from the district attorney's office concerning Sacks. Sacks, at Alexander Celeste's house, told Celeste that the call was about money Sacks had borrowed from another lender. Sacks's testimony was that Celeste then hit him in the face, and kicked him in the stomach. See, however, the verdict that Alexander Celeste was not guilty of assault and battery (fn. 1). On this occasion, Alexander told Sacks "it was a cardinal sin to borrow money from another loan shark while owing one." Alexander also told Sacks that if he "knew what was good for . . . [his] wife and kids," he had better not say anything to anyone from the district attorney's office. On an earlier visit Alexander had shown Sacks two sticks of dynamite, and on this occasion said that he would not "think twice about blowing up" Sacks's house. Sacks also testified that he saw various victims "take a beating" in back of the Celestes' garage.
Sacks in fact had borrowed from one Zine and owed money to one Carbone. The latter, when called as a witness in the absence of the jury, claimed his constitutional privilege not to testify.
the road." On September 14, O'Neill told Sacks, "You'd better have some money or you could be put in the hospital for four or five weeks." That day Sacks gave O'Neill $300.
On September 19, Sacks's father withdrew $1,000 from a savings bank and gave Sacks a check for $1,000. Sacks cashed this and paid the proceeds to Douglas. Douglas reported to Sacks that he paid these proceeds to Alexander Celeste. Two days later Douglas asked for the balance. When Sacks replied that he could not get $1,000 "just like that," Douglas said, "When you feel that cold barrel [of a gun] to your head, you'd be surprised how many ways you can think of of coming up with some money." He added, "[Y]our kid must have a long walk . . . from school, and you wouldn't want anything to happen to her knee caps on the way home, would you?" From early in September, Sacks received numerous telephone calls from Douglas substantially every day pressing for payment. Some of these calls were to Sacks's house, but many went to Sacks's new place of employment in Quincy.
In September and early October, Sacks consulted an attorney, Mr. Jordan Ring, a neighbor. Mr. Ring then represented a client who had made an attachment on Sacks's house. Sacks wished to get this attachment removed so that he "could raise the money to pay Al Celeste." It was brought out in part on cross-examination, and expanded in redirect examination, that Sacks told Mr. Ring the story of the threats. He informed Mr. Ring that he had told a detective from the district attorney's office nothing, because he did not "want any harm to come to . . . [his] family and" himself. He informed Mr. Ring that he (Sacks) "would rather pay the money" than go to the district attorney's office in view of the risks. Mr. Ring "insisted that . . . [Sacks] go to the District Attorney's office."
going to. I'm going to see what I can do for you but you'd better have some money in the next day or so."
the machine was installed with the permission of Sacks, the telephone subscriber.
On October 17, Sacks paid to Douglas five $10 marked bills. Sacks was then wearing an electronic device. No tape was procured, however, because the device did not function. On that day the Celeste brothers, O'Neill, and Douglas were arrested.
1. The Celeste brothers contend that G. L. c. 140, Section 110, as amended through St. 1962, c. 795, Section 2 [Note 3] (see later amendment, St. 1967, c. 196, increasing the penalties), is void for vagueness and that the two indictments, charging them with violations of Section 110, should have been dismissed because they failed to inform them with sufficient clarity of the offence charged. We perceive no such infirmity in the section or in the indictments.
on the business. But it does not require such a finding"). See Commonwealth v. Silverman, 220 Mass. 552, 554-555. The section, taken with other sections to which it refers, is adequate "to convey to a person of ordinary understanding . . . [a] description of the prohibited act." See Jaquith v. Commonwealth, 331 Mass. 439, 442. All rational presumptions are to be made in favor of its validity. See Commonwealth v. Finnigan, 326 Mass. 378, 379. There is in Section 110 no such vagueness as was considered in Alegata v. Commonwealth, 353 Mass. 287, 296-297, 299-301, but see pp. 303-304. The final sentence of Section 110 (see fn. 3, at point [A]) in specific terms defines what is sufficient to create a prima facie case of violation by apt reference to at least one set of facts having a rational tendency to show the conduct of a business. Provisions of this type are valid. See Meunier's Case. 319 Mass. 421, 425-426. See also Commonwealth v. Williams, 6 Gray, 1, 4-8; Commonwealth v. Spindel, 351 Mass. 673, 676-678. Proof of two small loans within a reasonable period of time, at a rate of more than twelve per cent per annum, supports the conclusion that the lender was in the business of making such loans. Loans made to friends, or as a matter of charity, are not often effected upon such terms or in such circumstances.
2. The defendants argue various exceptions concerning the evidence received of telephone conversations between Sacks and Douglas. Detective McLean, on an extension line in Sacks's house, listened to one or more such conversations. Mr. Ring (with the aid of a speaker attached to a tape recorder) listened to another. This latter talk, with Sacks's permission, was recorded on a tape. There was no violation of G. L. c. 272, Section 99 (as amended by St. 1959, c. 449, Section 1), [Note 4] which creates the crime of eavesdropping.
Section 99 is supplemented by Section 101. Each conversation was overheard with the consent of Sacks, "a sender or receiver" within Section 99 (fn. 4). Section 101 (as amended by St. 1956, c. 48, Section 4), [Note 5] merely makes certain conduct prima facie evidence of violation of Section 99, but there is no violation where a sender or receiver has given consent to that conduct. The case thus is unlike Commonwealth v. Spindel, 351 Mass. 673, 675, where "[t]here was no evidence that . . . [any person participating in the conversation] consented to . . . monitoring." We need not consider whether the tape recorder was a "device" which Sacks, as owner of his house and "on premises under his exclusive control" (see Section 101, fn. 5), could install and use in any event. See the Spindel case, 351 Mass. 673, 677.
recorded by his listener. See Lopez v. United States, 373 U.S. 427, 437-440 (tape admissible of a personal interview during which a bribe was attempted). In the present case there was, of course, no such prior judicial authorization of the use of a recording device as in fact took place in Osborn v. United States, 385 U.S. 323, 327-331. There was no occasion in the Osborn case for the Supreme Court of the United States to consider again the broad issue presented and decided in favor of admissibility in the Lopez decision, 373 U.S. 427, 437-440. There was no reason for such prior approval. The present case was not one of surreptitious placing of a recording device in another's office (see Berger v. New York, 388 U.S. 41, 44-45), or in a position enabling third persons to overhear, without the consent of any party to the telephone conversation, a private call made from a public telephone booth. See Katz v. United States, 389 U.S. 347, 354-359.
In the case at bar, there was at most a recording of telephoned threats, themselves constituting the commission of a crime, made to the victim of the crime and of continued unlawful harassment. The victim, himself a participant in the conversation, consented to the recording. He was sitting in his own house, at his own telephone, with his own attorney listening to the conversation. If it be relevant (see Lewis v. United States, 385 U.S. 206, 210-212), Sacks was not an informer committing a breach of confidence, and could be found to have been a victim of extortion. See Dryden v. United States, 391 F. 2d 214 (5th Cir. -- recorder on extension telephone). Cf. United States v. White, 36 U. S. L. Week 2613 (7th Cir. -- electronic device on informer), [Note Star] a case which seems inconsistent with the Supreme Court decisions already cited.
No illegal search or other violation of any constitutional or statutory provision made the recording inadmissible. See Glacy v. United States, 361 F. 2d 31, 35-36 (1st Cir.), cert.
den. 385 U.S. 831; Harris v. United States, 367 F. 2d 633, 635 (1st. Cir.), cert. den. 386 U.S. 915. Any other conclusion, we think, would give members of the underworld carte blanche to intimidate (or otherwise to engage in criminal conduct injurious to) innocent members of the public over the telephone, without risk that their words could be overheard or recorded (even with the consent of the victims) in a manner which would be used against the offenders in a court. See Schwartz v. Texas, 344 U.S. 199, 203; Pugach v. Dollinger, 277 F. 2d 739 (2d Cir.) affd. 365 U.S. 458; United States ex rel Griffin v. Hendrick, 360 F. 2d 614 (3d Cir.). Cf. Nardone v. United States, 302 U.S. 379, 382-385; 308 U.S. 338, 340-341; United States v. Dote, 371 F. 2d 176, 180-181 (7th Cir.).
3. There is no merit in the defendants' contention that the judge improperly received evidence of (a) a September, 1963, conversation [Note 6] between Sacks and Alexander Celeste occurring prior to the period (October 15, 1963 to October 18, 1965) mentioned in the indictment as explained by particulars, and (b) a loan transaction which took place in part before that period.
As to Alexander Celeste, the conversation in September, 1963, related to a loan transaction the execution of which, by the collection and payments of interest and principal, continued well into the period covered by the indictment, and shed light on Celeste's activities during the period, including payments on the 1963 loan and the making and collection of the later loan. The evidence was relevant. See Commonwealth v. Stasiun, 349 Mass. 38, 46-47. Cf. Commonwealth v. Runge, 231 Mass. 598, 600.
tended to explain other activities of Alexander Celeste within the indictment period, if, indeed, the evidence was sufficiently definite or comprehensible to have any probative effect whatsoever. There was ample indication that Small was a hostile witness. It was not error to permit the prosecution (which had called him) to ask him leading questions. Commonwealth v. Monahan, 349 Mass. 139, 162-163. Commonwealth v. Soroko, 353 Mass. 254, 260.
4. Similarly without merit is the contention that Sacks was not competent to testify concerning what was done (in crediting payments to principal or interest) with the payments made on the 1963 loan. Sacks, as the debtor under that arrangement, could reasonably conclude (where weekly payments remained constant at $25 a week, and were followed by a single payment of the $500 amount of the original loan) that the earlier payments had been applied as interest. Sacks's conclusions were consistent with the terms of the agreement imposed on him by Alexander Celeste.
5. The judge did not abuse his discretion when he refused to permit Sacks to be cross-examined concerning a conversation with Orlando J. Carbone, a witness later called by Douglas. The conversation had taken place in January, 1967, during the trial of these cases. The judge, as the evidence then stood, reasonably regarded this inquiry as irrelevant to the issues raised in the indictments. At a bench conference, the judge excluded the line of questions until such time as some other evidence showed the inquiry to be relevant. [Note 7] The assistant district attorney stated that he would produce Sacks for further cross-examination on a day's notice, if evidence later showed the inquiry to be relevant, and not merely to relate to a collateral matter.
When Carbone later took the stand, it was represented to the judge that the witness would claim his privilege not to testify because of the possibility of self-incrimination.
The judge conducted a voir dire, in the absence of the jury, and, except in answering questions concerning his name, address, and employment, Carbone claimed his privilege. Douglas's counsel then said, "I submit that there would be no further purpose in inquiring of the witness." An exception claimed prior to the voir dire (to the judge's statement that he would not let the witness identify himself and claim his privilege in the presence of the jury until he heard the voir dire) was not renewed by the defendants after the voir dire. It was within the judge's discretion to hold a voir dire to ascertain whether inquiry in the presence of the jury would be prejudicial to the defendants or productive of relevant testimony. No objection or exception to what the judge did intelligibly raised the issue (see Commonwealth v. Baker, 348 Mass. 60, 63; cf. Murphy v. Commonwealth, ante, 81, 83-84) whether the witness was being afforded too broad a protection based upon his privilege.
6. Sacks's testimony on redirect examination about what he told his attorney, Mr. Ring, was with respect to a matter opened up on cross-examination by inquiry about (a) what Sacks had told the attorney, and (b) what he had or had not told to the district attorney and to certain police officers when he had opportunity to talk to them. There may have been some indication that the defendants were claiming Sacks's story to be recently contrived. See Commonwealth v. Heffernan, 350 Mass. 48, 51-52. In any event, this testimony on redirect examination was reasonably permitted by the trial judge, as matter of discretion, in explanation of Sacks's testimony on cross-examination about (a) his failure to make more prompt reports concerning the threats to the district attorney and to the police, and (b) his conversation with Mr. Ring. See Commonwealth v. Galvin, 310 Mass. 733, 747. See also Commonwealth v. Binkiewicz, 342 Mass. 740, 758; Commonwealth v. Gardner, 350 Mass. 664, 668-669.
failure to report to the authorities the threats made to him and his delay in letting Mr. Ring do so. All this became of significance because of matters brought out on cross-examination. See Commonwealth v. Feci, 235 Mass. 562, 567; Commonwealth v. Gettigan, 252 Mass. 450, 459-460. Similar principles apply to cross-examination (permitted within the judge's discretion) of a witness (Post) concerning an assault upon him by O'Neill, in an effort to test Post's credibility by showing that he feared O'Neill. This was not a case where the prosecution sought to introduce, through a witness called by it, evidence of other crimes to prove commission of the particular crimes charged. Cf. Commonwealth v. Stone, 321 Mass. 471, 473; Commonwealth v. Welcome, 348 Mass. 68, 70-71.
7. The defendants contend that testimony by Sacks concerning certain telephone conversations was admitted without prior proof that Sacks was able to identify the voice of the speaker. Objections were made and exceptions saved but without pointing out to the trial judge that the identification of the voice was the ground of any exception. There was no specific objection (see Irving v. Goodimate Co. 320 Mass. 454, 460) based on the issues discussed in Bond Pharmacy, Inc. v. Cambridge, 338 Mass. 488, 490-491, and Chartrand v. Registrar of Motor Vehicles, 345 Mass. 321, 325. Sacks testified that he had received a call from Douglas. This reasonably implied that he recognized the latter's voice.
The conversations were relevant. There was also sufficient proof of cooperation by all the defendants in pressure on Sacks concerning the collection of the loans to him to warrant the judge's preliminary conclusion that there was a prima facie case of conspiracy permitting evidence of the acts and declarations of one conspirator in pursuance of the common object to be admitted against the others. See Commonwealth v. Stasiun, 349 Mass. 38, 50-51, and the cases there reviewed.
or paid within the period mentioned in the indictments and particulars. The evidence, as a whole, showed that the second loan to Sacks in November, 1964, was not a friendly or charitable act, but entered into for profit. Taken with the earlier loan, on the same terms, which was not paid until November, 1963, and with the testimony of widespread harassment and coercion to effect collection of the second loan, the evidence warranted the jury in concluding that (as to Sacks, at least) the Celestes were in the business of making such loans.
There was direct evidence of Douglas's and O'Neill's threats made to Sacks to enforce payment of the unconscionable and illegal 1964 loan. It could be reasonably inferred that the threats were made at the behest of Alexander Celeste, by his employees and in his interest. The evidence already summarized permitted the jury to conclude that, in exerting the pressures upon Sacks, all the defendants were acting in concert as conspirators to extort.
There was no error in refusing to direct verdicts for the defendants.
9. Other assignments of error already have been covered adequately or do not merit discussion.
[Note 1] The Commonwealth nol prossed certain other indictments tried with these cases. Alexander Celeste was found not guilty on two indictments charging threats to extort, and on an indictment for assault and battery. The transcript states that O'Neill, on the day he was sentenced in these cases, pleaded guilty to certain other indictments on which he also was sentenced. The record does not show these indictments to be related to the present cases.
[Note 2] On October 12, Sacks had a conversation with Douglas about how much he then owed. He quoted Douglas as saying that "he had discussed with Al and Frankie [Celeste] and that they had figured [it] out to be $2,400, but that they would give me a break and make it $2,000." At least the amount of the payments in excess of the $500 originally borrowed by Sacks from Alexander Celeste appears to have been interest, referred to by various witnesses as "vig" or "juice." In the recorded telephone talk of October 17 mentioned in the text, Douglas demanded that Sacks "come up with the vig" and that he "start paying juice." Explanation by Sacks and others of the meaning of these slang expressions was admissible, if judicial notice could not be taken of the meaning. See Crafts v. McCobb, 303 Mass. 172, 175; United States v. Prochaska, 222 F. 2d 1, 2-3 (7th Cir.) cert. den. 350 U.S. 836; People v. Knott, 52 Cal. App. 2d 439, 441-442; Wigmore, Evidence (3d ed.) Section 2582.
[Note 3] Section 110 as in force in 1963 and 1964, reads: "Whoever, not being duly licensed as provided in . . . [Section 96] on his own account or on account of any other person not so licensed, engages in or carries on, directly or indirectly . . . the business of making loans . . . to which . . . [Sections 96-111] inclusive, apply, shall be punished by a fine of not more than . . . [$5,000] or by imprisonment for not more than two years, or both. Any loan made . . . by an unlicensed person in violation of said sections shall be void. [A] In any judicial proceedings under said sections the fact that the defendant has made or assisted in the making of two or more loans of three thousand dollars or less, upon which there has directly or indirectly been paid or charged, for interest . . . or other expenses, a sum which exceeds in the aggregate an amount equivalent to twelve per cent per annum upon the amount actually received by the borrower, whether such sum has been paid to or charged by the defendant or . . . any other person, shall be prima facie evidence that the defendant has engaged in and carried on the business of making loans to which" Sections 96-112 apply. The letter in brackets has been inserted for convenient reference to the sentence following it.
[Note 4] Section 99 reads, in part: "Whoever, except in accordance with an order issued as provided herein, secretly or without the consent of either a sender or receiver, overhears or attempts secretly, or without the consent of either a sender or receiver, to overhear . . . or permit, or to have any other person secretly, or without the consent of either a sender or receiver, to overhear any spoken words at any place by using any electronic recording device, or a wireless tap or electronic tap, or however otherwise described, or any similar device or arrangement, or by tapping any wire to intercept telephone communications, shall be guilty of the crime of eavesdropping and shall be punished by imprisonment . . . or by a fine . . . or both" (emphasis supplied). The remaining provisions of Section 99, dealing with the issuing of judicial orders for use of various devices, need not now be considered. No such order was issued.
[Note 5] Section 101 reads, in part: "Proof of the installation in any building of any device or arrangement which may be used for the purpose of violating the provisions of . . . [Section 99] by listening to any spoken words or proof of the tapping of any wire, unless duly authorized and unless done with the consent of the owner or person in control of the building, shall be prima facie evidence of the commission of the crime of eavesdropping; but nothing contained in this section or . . . [Sections 99 and 100] shall render it unlawful for any person to install and use such a device on premises under his exclusive control" (emphasis supplied).
[Note Star] The opinion in this case, originally announced on March 18, 1968, by a three judge panel, was superseded by an en banc opinion announced on January 7, 1969, 405 F. 2d 838. REPORTER.
[Note 6] The jury were told that the conversation was admitted only against Alexander Celeste. In any event, verdicts of not guilty were directed on indictments charging O'Neill and Douglas with violations of G. L. c. 140, Section 110. The Commonwealth nol prossed indictments charging them with conspiracy to violate Section 110. Even if we were to assume that they have standing to argue the admissibility of this evidence, they were not harmed by it, for the evidence as to them would have been relevant substantially only with respect to those indictments.
[Note 7] Douglas, the only defendant to take the stand, later testified in effect that he had interceded with Carbone in behalf of Sacks in order to persuade him not to press Sacks for payment of a loan made by Carbone and that he had only pressed Sacks to pay Alexander Celeste $200 owed by Sacks. The jury, of course, was not required to believe this testimony.

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After a No-Deal Brexit, Would the UK Remain in the EEA by Default?
Brexit is a journey on uncharted waters. Diplomats, political scientists, economists and legal scholars have neither precedent nor theoretical framework to appraise and analyse the situation. If art. 50 TEU (Treaty on European Union) makes it legally possible for a State to leave the EU, the rules applicable to the process and the legal consequences are far from detailed and precise.
A lot has been written and said about the legal framework for negotiations and the possible content of an exit agreement, without decisive conclusions being reached. What we know for sure, however, is that if Brexit takes effect without an agreement as described in art. 50 § 2 TEU, it shall be international law that will govern the relationship between the EU and the UK. International Law is composed of general rules (customary law, general principles) and treaties. As regards the later, we would like to discuss here the fate of treaties to which both the UK and the EU are parties.
In that respect, the EU and its member States have been concluding a very novel – and unforeseen by general international law – category of treaties, called in EU-jargon, “mixed agreements”. When the EU decides to enter an international agreement that covers issues beyond its competence – because the EU is based on the principle of conferral of competences from its member states (art. 5 TEU) – both the EU and its member States become signatories and parties to such treaty with any third party (one or several States outside of the EU). One such agreement is the one establishing the European Economic Area (EEA), between the EU and its member states on the one side, and Norway, Iceland and Liechtenstein on the other. UK is currently bound by this treaty both as an EU member State, and as a party in its own right.
What happens to the UK’s participation in such an agreement on the day of Brexit, if this issue is not dealt with in a specific exit agreement? The legal rules applicable to the termination of or the withdrawal from treaties are customary rules of international law, which have been codified by two UN multilateral treaties. According to these rules, Brexit should not alter UK participation in these treaties; in other words, the article 50 procedure only concerns withdrawal from the EU treaties (TEU and TFEU), and no other treaty. As the UK is currently itself a party to the agreement as a sovereign state, its exit from the EU does not terminate its participation in this agreement.
The startling conclusion which may be drawn is, except if otherwise agreed by the parties (not only the EU, but also the third countries involved), that in the case of a no-deal Brexit, the UK would remain a party to the EEA treaty. Not being a member State of the EU anymore, the competences transferred to the EU from 1973 onward would from the moment of Brexit return to the UK (as a sovereign state). The UK’s legal capacity to fulfill all the obligations laid down in that treaty from the 30 March 2019 should not raise any serious problem. Naturally, and this might sound a bit strange in the context of relationship with the EU, it would mean that UK has “switched sides” and instantly become a non-EU State party to the Treaty, alongside Norway, Iceland and Liechtenstein.
Is it Possible that the UK Would Automatically Remain in the EEA?
The situation is so original and new, that general international law does not give a clear-cut answer. We do nevertheless show that no rule of general international law allows the automatic termination of UK participation in this treaty. First, we may discard any issue about succession to the treaty since the UK is already party to the treaty, and will remain a party after Brexit; not as a successor to the EU, but as a party to the original treaty, since 1993.
We are well aware that international law also allows the suspension or the termination of a Treaty in case of a “fundamental change of circumstances”, under the principle lawyers call “clausula rebus sic stantibus”. This principle has been codified by the UN, albeit reluctantly (international law wants to limit the possibilities for a state to invoke reasons for not implementing its international commitments). Application of this principle is subject to restrictive and cumulative criteria that would not necessarily be met by Brexit. As a precedent we may look at Slovakia, which in the nineties didn’t want to implement a Treaty originally signed in 1977 between Czechoslovakia and Hungary, within the framework of COMECON, to build and exploit a major dam on the Danube. The International Court of Justice was called to settle the dispute in 1997. Among other arguments (such as the fact that Czechoslovakia did not exist anymore), Slovakia invoked the end of COMECON and the shift from a planned (communist) economy to a liberal one. According to Slovak authorities, the whole project made sense only under communist economic rules, not in a market based economy. However, the ICJ ruled that even such a momentous shift was not enough to invoke a fundamental change of circumstances. By this standard, Brexit is, from our analysis, unlikely to constitute a serious enough ground for the UK to suspend or terminate its participation in the EEA agreement. And it certainly cannot be invoked by the EU, because if the EU was to admit that the withdrawal of the UK from the EU constitutes, for the EU, a fundamental change of circumstances as regards the EEA, it would mean that any EU member State may raise the same argument as regards the TEU and TFEU.
Without developing here all the possible legal debates about the consequences of Brexit on the UK’s participation in the EEA (we have done so in a much longer academic article under review by a scientific journal), we are quite confident that the UK will, if no new legal rule is accepted by the concerned parties, remain party to the agreement. Does that mean that it can just “switch sides” and keep all the benefits of free access to the single market as a third country (which is the precise purpose of EEA). While we have not found any legal rule that prevents the UK from remaining a party to this agreement, neither have we found any saying that it can switch sides in this manner. When legal scholars are short of rules, they search for the practice of concerned actors. Did anyone already switch sides as regards the EEA? And if so, how did they do it, and how did the EU and all the States parties to this agreement react?
It is instructive to look at the experience of EEA states which subsequently joined the EU. The EEA agreement was signed by Austria, Finland and Sweden (among others) as non-EU member states on 2 May 1992. On the 1st of January 1995, these three states became members of the EU. Two legal options would have been possible for them as regards the EEA. Either these new EU member States should have been required to ratify the EEA agreement again as EU member States (following Art. 128 TEU), or the accession agreement of these three countries to the EU should have laid down a specific legal rule settling their situation as regards this agreement. There were, however, no such rules in the 1994 accession agreements of each of these countries. In practice, as was confirmed to us by a senior legal adviser of the Austrian Ministry of Foreign Affairs, Austria just switched sides. And despite some provisions of the EEA being incorrectly worded, it was only in 2004, with the adhesion to the EU of ten new member States and their subsequent accession to the EEA, that the wording of the EEA was amended to properly reflect the fact that Austria, Finland and Sweden had switched sides almost ten years earlier.
It thus means that there is a practice, that has been accepted by at least 15 EU member States and the EU institutions (starting with the Commission), allowing States to switch sides in the EEA, even in the absence of an explicit provision and without formal modification of the Treaty. So our conclusion is that without any specific new legal provision concerning the UK legal situation regarding this agreement, the UK will remain bound by this agreement in its relationship with the EU and with the EFTA countries that are parties to this agreement.
Is This a Viable Brexit Solution?
To be clear, this is definitely not the position we advocate. We are deeply convinced that a negotiated agreement should be the preferred solution, allowing both parties – the EU on the one side, the UK on the other – to design a relevant legal framework according to their respective preferences and needs (whatever they are… positions not always being very clear, especially on the UK’s side). What it means however, is that the EU negotiators (Michel Barnier and his team) are not in the position they imagine as regards the degree of pressure they can put on the UK government to accept any exit treaty as described in Art. 50 § 2 TEU. A Brexit without agreement would not mean the UK would be left out in the cold with only WTO law to regulate its trade relationship with the EU. UK would remain under the regime of EEA, which is not so far from the status quo. Once again, we do not believe this can be a long-term solution – and it would probably be a legal nightmare to implement such solution. However, the proper consideration of this option would provide some leeway for the UK negotiators in their discussions with the EU.
Yuliya Kaspiarovich is Research Assistant and PhD Candidate at the Global Studies Institute (GSI), University of Geneva.
Nicolas Levrat is Professor at the Faculty of Law and at the Global Studies Institute (GSI), Director of the Department of International Law, University of Geneva.
Nicolas Levrat will participate in the DCU Brexit Institute event on Brexit and International Development Cooperation in Dublin on 11 October 2018. More information here.


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Graduation at Agronomia from Universidade Federal Rural do Rio de Janeiro (1984), master’s at Agronomy from Universidade Federal Rural do Rio de Janeiro (1990) and doctorate at Agronomy from Universidade Federal Rural do Rio de Janeiro (1994). She is currently professor of the pós-graduation – UFRRJ (Universidade Federal Rural do Rio de Janeiro). Has experience in Agronomy, focusing on Microbiology and Biochemist of the Soil, acting on the following subjects: diazotrophic bacteria, sugarcane, maize, plant bacteria interaction, plant growth promotion, bacterial systematic. Researcher A at Embrapa Agrobiology. Has been working for more than 20 years in the interaction of diazotrophic growth promoting bacteria (PGPB). Has experience in the development of microbial inoculants for application in cereals and energy crops. Develops her research in the “Laboratory of Grasses” of Embrapa Agrobiology. Also is a researcher level 1C of CNPq and Scientist of Rio de Janeiro State, a special grant granted by Faperj since its creation. Coordinates several national and international projects during her carrier. Is also the Professor of the Postgraduate Course in Agronomy – Soil Science at UFRRJ since 1995, where she coordinates the discipline of Biological Nitrogen Fixation. Due to his experience with micropropagation, I began the first works involving the inoculation of Acetobacter diazotrophicus, a bacterium discovered in 1986 and described in 1989. In her master’s degree, whose thesis presents the first results of the endofitism of an associative bacterium, it changes the concept of bacteria root systems for endophytic bacteria and together with her group, proposes the new classification of beneficial microorganisms described at the time as obligatory endophytic, bringing new information about partnership relations between plants and bacteria. From 1991 to 1994 she obtained a doctorate from UFRRJ. In 1991 and 1992 she did two international fellowships (CNPq grant) in Germany at the GSF – now called Das Helmholtz Zentrum München. Defends her doctorate using the same bacterium of her thesis, Gluconacetobacter diazotrophicus (renamed in 1991). From July to December this year she receives a postdoctoral fellowship from CNPq and starts her work with another energy grass, Pennisetum purpurem. In this period, in partnership with Germany, describes a new species belonging to the genus Herbaspirillum (H. frisingense). In 1994 she was hired by Embrapa – Embrapa Agrobiologia. In January of 1995 she becomes a researcher CNPq and professor of the Postgraduate Course in Soil Science (UFRRJ). Since then she has worked with two crops of agricultural importance for Brazil and the world: sugarcane and corn. Her work has an emphasis on Microbiology and Soil Biochemistry, working mainly on the following topics: biological nitrogen fixation (BNF), plant-microorganism interaction, microbial ecology and C4 grass nutrition.
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Bactérias promotoras de crescimento e adubação nitrogenada no crescimento inicial de cana-de-açúcar proveniente de mudas pré-brotadas. Pesquisa Agropecuária Brasileira (Online). , v.50, p.33 – 43, 2015.
11. Chaves, V.A.; SANTOS, S. G.; SCHUTZ, N.; Pereira, William; SOUSA, J. S.; MONTEIRO, R. C.; REIS, V. M.
Desenvolvimento Inicial de Duas Variedades de Cana-de-açúcar Inoculadas com Bactérias Diazotróficas. Revista Brasileira de Ciência do Solo (Online). , v.39, p.1595 – 1602, 2015.
Nitrogen fixing bacteria in the family and their role in agriculture. Journal of Basic Microbiology. , v.54, p.n/a – n/a, 2015.
13. FERNANDES, V. H.; LADEIRA, M. S.; Vicente, M. de S.; REIS, V. M.; Soares, L. H. de; MELEIRO, L. A. C.
Cultivo de Azospirillum amazonense BR11145 para produção de inoculantes promotores de crescimento vegetal. Revista Universidade Rural. Série Ciências Exatas e da Terra (UFRRJ). , v.33, p.87 – 97, 2014.
14. ALVES, Gabriela C; VIDEIRA, S. S.; URQUIAGA, Segundo; REIS, V. M.
Differential plant growth promotion and nitrogen fixation in two genotypes of maize by several Herbaspirillum inoculants. Plant and Soil (Dordrecht. Online). , v.387, p.307 – 321, 2014.
15. SCHUTZ, N.; SILVA, J. A.; SOUSA, J. S.; MONTEIRO, R. C.; OLIVEIRA, R. P.; Chaves, V.A.; PEREIRA, Willian; REIS, V. M.
Inoculation of sugarcane with diazotrophic bacteria. Revista Brasileira de Ciência do Solo (Impresso). , v.38, p.407 – 414, 2014.
The art of isolating nitrogen-fixing bacteria from non-leguminous plants using N-free semi-solid media: a practical guide for microbiologists. Plant and Soil (Print). , v.384, p.413 – 431, 2014.
17. Pereira, William; LEITE, J. M.; HIPOLITO, G. S.; SANTOS, Carlos Leandro Rodrigues dos; REIS, V. M.
Acúmulo de biomassa em variedades de cana-de-açúcar inoculadas com diferentes estirpes de bactérias diazotróficas. Revista Ciência Agronômica (UFC. Online). , v.44, p.363 – 370, 2013.
Endophytic <i>Bradyrhizobium</i> spp. isolates from sugarcane obtained through different culture strategies. Environmental Microbiology Reports. , v.11, p.n/a – n/a, 2013.
19. SCHUTZ, N.; MORAES, R. F.; SILVA, J. A.; Baptista, R.B.; OLIVEIRA, R. P.; Leite, J.M.; Pereira, William; Carneiro, J.B.; ALVES, Bruno Jose Rodrigues; BALDANI, José Ivo; BODDEY, Robert; URQUIAGA, Segundo; REIS, V. M.
Avaliação agronômica de variedades de cana-de-açúcar inoculadas com bactérias diazotróficas e adubadas com nitrogênio. Pesquisa Agropecuária Brasileira (1977. Impressa). , v.47, p.261 – 268, 2012.
Contribution of biological nitrogen fixation to Elephant grass (Pennisetum purpureum Schum.). Plant and Soil (Print). , v.356, p.23 – 34, 2012.
21. REIS, V. M.; Galisa, P de S; SILVA, H. A. P.; MACEDO, A. V. M.; Vidal, M. S.; Baldani, Jose Ivo; SIMOES-ARAUJO, J. L.
Identification and validation of reference genes to study the gene expression in Gluconacetobacter diazotrophicus grown in different carbon sources using RT-qPCR. Journal of Microbiological Methods. , v…, p… – .., 2012.
22. Fischer, D.; Pfitzner, Barbara; SCHMID, Michael; Araújo, J.L.S. de; REIS, V. M.; Pereira, William; Ormeño-Orrillo, Ernesto; Hai, Brigitte; Hofmann, Andreas; Schloter, Michael; Martinez-Romero, Esperanza; BALDANI, José Ivo; HARTMANN, Antonn. Molecular characterisation of the diazotrophic bacterial community in uninoculated and inoculated field-grown sugarcane (Saccharum sp.). Plant and Soil (Print). , v.356, p.83 – 99, 2012.
23. FLORES, Marinete; Antônio, C. de S.; Oliveira, P.J de; Xavier, Gustavo Ribeiro; RUMJANEK, Norma Gouvêa; Soares, L. H. de; REIS, V. M.
Survival of endophytic bacteria in polymer-based inoculants and efficiency of their application to sugarcane. Plant and Soil (Print). , v.356, p.231 – 243, 2012.
24. TAULE, C.; Mareque, C.; Barlocco, C.; HACKEMBRUCH, F.; REIS, V. M.; Sicardi, M.; Battistoni, F.
The contribution of nitrogen fixation to sugarcane (Saccharum officinarum L.), and the identification and characterization of part of the associated diazotrophic bacterial community. Plant and Soil (Print). , v.356, p.35 – 49, 2012.
Predominant nifH transcript phylotypes related to Rhizobium rosettiformans in field-grown sugarcane plants and in Norway spruce. Environmental Microbiology Reports. , v.3, p.383 – 389, 2011.
Colonization of sugarcane plantlets by mixed inoculations with diazotrophic bacteria. European Journal of Soil Biology. , v.45, p.106 – 113, 2009.
27. SILVA, Marinete Flores da; Oliveira, P.J de; XAVIER, Gustavo R; RUMJANEK, Norma Gouvêa; REIS, V. M.
Inoculantes formulados com polímeros e bactérias endofíticas para a cultura da cana-de-açúcar. Pesquisa Agropecuária Brasileira (1977. Impressa). , v.44, p.1437 – 1443, 2009.
28. SILVA, Marinete Flores da; REIS, V. M.
Produção, caracterização e aplicação de anticorpo policlonal contra Azospirillum amazonense estirpe Am15. Bragantia (São Paulo). , v.68, p.1 – 11, 2009.
29. Silva-Froufe, L.G da; BODDEY, Robert Michael; REIS, V. M.
Quantification of natural populations of Gluconacetobacter diazotrophicus and Herbaspirillum spp. in sugar cane (Saccharum spp.) using different polyclonal antibodies. Brazilian Journal of Microbiology. , v.40, p.866 – 878, 2009.
30. CARVALHO, André Ricardo Vieira de; ALVES, Bruno Jose Rodrigues; BALDANI, Vera Lucia Divan; REIS, V. M.
Application of 15N natural abundance technique for evaluating biological nitrogen fixation in oil palm ecotypes at nursery stage in pot experiments and at mature plantation sites. Plant and Soil (Print). , v.302, p.71 – 78, 2008.
31. RODRIGUES, Elisete Pains; RODRIGUES, Luciana da Silva; OLIVEIRA, André Luiz Martinez de; BALDANI, Vera Lucia Divan; TEIXEIRA, Katia Regina dos Santos; URQUIAGA, Segundo; REIS, V. M.
Azospirillum amazonense inoculation: effects on growth, yield and N2 fixation of rice ( Oryza sativa L.). Plant and Soil. , v.302, p.249 – 261, 2008.
Polyphasic characterization of Gluconacetobacter diazotrophicus isolates obtained from different sugarcane varieties. Brazilian Journal of Microbiology (Impresso). , v.39, p.718 – 723, 2008.
33. ELLIOTT, Geoffrey N.; CHEN, Wen-ming; CHOU, Jui-hsing; WANG, Hui-chun; SHEU, Shih-yi; PERIN, Liamara; REIS, V. M.; MOULIN, Lionel; SIMON, Marcelo F.; Bontemps, C.; SUTHERLAND, Joan M.; BESSI, Rosana; FARIA, Sergio Miana de; TRINICK, Michael J.
Burkholderia phymatum is a highly effective nitrogen-fixing symbiont of Mimosa spp. and fixes nitrogen ex planta. New Phytologist. , v.173, p.168 – 180, 2007.
34. Humphry, D. R.; ANDREWS, M.; Santos, S. R.; JAMES, Euan Kevin; Vinagradova, L. V.; PERIN, Liamara; REIS, V. M.; Cummings, S. P.
Phylogenetic assignment and mechanism of action of a crop growth promoting Rhizobium radiobacter strain used as a biofertilizer on graminaceous crops in Russia. Antonie van Leeuwenhoek. , v.91, p.105 – 113, 2007.
Burkholderia silvatlantica sp. nov., a novel diazotrophic bacterium associated with sugarcane and maize. International Journal of Systematic and Evolutionary Microbiology. , v.56, p.1931 – 1937, 2006.
Diazotrophic Burkholderia species associated withfield-grown maize and sugarcane . Applied and Environmental Microbiology. , v.72, p.3103 – 3110, 2006.
Diversidade de bactérias diazotróficas endofíticas dos gêneros Herbaspirillum e Burkholderia na cultura do arroz inundado. Pesquisa Agropecuária Brasileira. , v.41, p.275 – 284, 2006.
38. SANTOS, Carla Cristiane R.; PERIN, Liamara; BALDANI, José Ivo; REIS, V. M.
Isolamento de Gluconacetobacter spp. em diferentes tipos de solos. Pesquisa Agropecuária Brasileira. , v.41, p.85 – 92, 2006.
39. MEDEIROS, André Fernando Alves; POLIDORO, José Carlos; REIS, V. M.
Nitrogen source effect of Gluconacetobacter diazotrophicus colonization of sugarcane (Saccharum spp). Plant and Soil. , v.279, p.141 – 152, 2006.
40. CARVALHO, André Ricardo Vieira de; ALVES, Bruno Jose Rodrigues; REIS, V. M.
Resposta do dendezeiro à adição de nitrogênio e sua influência nas populações de bactérias diazotróficas. Pesquisa Agropecuária Brasileira. , v.41, p.293 – 300, 2006.
Restrição do 16-23S DNAr intergênico para avaliação da diversidade de Azospirillum amazonense isolado de Brachiaria spp. Pesquisa Agropecuária Brasileira. , v.41, p.431 – 438, 2006.
42. BARBOSA, Edilene Alves; PERIN, Liamara; REIS, V. M.
Uso de diferentes fontes de carbono por estirpes de Gluconacetobacter diazotrophicus isoladas de cana-de-açúcar. Pesquisa Agropecuária Brasileira. , v.41, p.827 – 833, 2006.
43. Mendonça, M. M.; URQUIAGA, Segundo; REIS, V. M.
Variabilidade genotípica de milho para acumulação de nitrogênio e contribuição da fixação biológica de nitrogênio. Pesquisa Agropecuária Brasileira. , v.41, p.1681 – 1685, 2006.
Yield of micropropagated sugarcane varieties in different soil types following inoculation with diazotrophic bacteria. Plant and Soil. , v.284, p.23 – 32, 2006.
45. RADWAN, Tharwat El-sayed El-desoky; MOHAMED, Zeinat Kamel; REIS, V. M.
Aeração e adição de sais na produção de ácido indol acético por bactérias diazotróficas. Pesquisa Agropecuária Brasileira. , v.40, p.997 – 1004, 2005.
Relação entre a distribuição de nitrogênio e colonização por bactérias diazotróficas em cana de açúcar. Pesquisa Agropecuária Brasileira. , v.40, p.1105 – 1113, 2005.
The Potential of C4 Perennial Grasses for Developing a Global BIOHEAT Industry. Critical Reviews in Plant Sciences. , v.24, p.461 – 495, 2005.
Burkholderia tropica sp. nov., a novel nitrogen-fixing, plant-associated bacterium. International Journal of Systematic and Evolutionary Microbiology. , v.54, p.2155 – 2162, 2004.
49. PERIN, Liamara; BALDANI, José Ivo; REIS, V. M.
Diversidade de Gluconacetobacter diazotrophicus isolada de plantas de cana-de-açúcar cultivada no Brasil. Pesquisa Agropecuária Brasileira. , v.39, p.763 – 770, 2004.
50. RADWAN, Tharwat El-sayed El-desoky; MOHAMED, Zeinat Kamel; REIS, V. M.
Efeito da inoculação de Azospirillum e Herbaspirillum na produção de compostos indólicos em plântulas de milho e arroz. Pesquisa Agropecuária Brasileira. , v.39, p.987 – 994, 2004.
51. REIS JUNIOR, Fábio Bueno dos; SILVA, Marinete Flores da; TEIXEIRA, Katia Regina dos Santos; URQUIAGA, Segundo; REIS, V. M.
Identificação de isolados de Azospirillum amazonense associados à Brachiaria spp. em diferentes épocas de cultivo e produção de fitohormônios pela bactéria. Revista Brasileira de Ciência do Solo (Impresso). , v.28, p.103 – 113, 2004.
52. REIS JUNIOR, Fábio Bueno dos; SILVA, Marinete Flores da; TEIXEIRA, Katia Regina dos Santos; URQUIAGA, Segundo; REIS, V. M.
Intra-specific diversity study of nitrogen fixing bacterium Azospirillum amazonense isolated from different Brachiaria species. Symbiosis (Philadelphia). , v.36, p.41 – 56, 2004.
Survival of endophytic diazotrophic bacteria in soil under different moisture levels. Brazilian Journal of Microbiology. , v.35, p.295 – 299, 2004.
54. PERIN, Liamara; FLORES, Marinete; FERREIRA, Joilson da Silva; CANUTO, Erineudo de Lima; MEDEIROS, André Fernando Alves; OLIVARES, Fábio Lopes; REIS, V. M.
Avaliação da capacidade de estabelecimento endofítico de estirpes de Azospirillum e Herbaspirillum em milho e arroz. Agronomia (UFRRJ). , v.37, p.47 – 53, 2003.
Efeito da adubação verde e N-fertilizante no acúmulo de biomassa e fixação biológica de nitrogênio em genótipos de capim elefante (Pennisetum Purpureum Schum.). . Agronomia (UFRRJ). , v.37, p.54 – 59, 2003.
56. BODDEY, Robert Michael; URQUIAGA, Segundo; ALVES, Bruno Jose Rodrigues; REIS, V. M.
Endophytic nitrogen fixation in sugarcane: present knowledge and future applications. Plant and Soil. , v.252, p.139 – 149, 2003.
Evaluation of the biological nitrogen fixation contribution in sugarcane plants originated from seeds and inoculated with nitrogen-fixing endophytes. Brazilian Journal of Microbiology. , v.34, p.62 – 64, 2003.
Response of micropropagated sugarcane varieties to inoculation with endophytic diazotrophic bacteria. Brazilian Journal of Microbiology. , v.34, p.59 – 61, 2003.
Respostas de plantas micropropagadas de cana-de-açúcar à inoculação de bactérias diazotróficas endofíticas. . Agronomia (UFRRJ). , v.37, p.67 – 72, 2003.
60. BALDANI, José Ivo; REIS, V. M.; BALDANI, Vera Lucia Divan; DOBEREINER, J.
A brief story of nitrogen fixation in sugarcane – reasons for success in Brazil. Functional Plant Biology. , v.29, p.417 – 423, 2002.
61. RADWAN, Tharwat El-sayed El-desoky; MOHAMED, Zeinat Kamel; REIS, V. M.
Production of indole-3-acetic acid by different strains of Azospirillum and Herbaspirillum spp.. Symbiosis (Philadelphia). , v.32, p.39 – 54, 2002.
Biological nitrogen fixation associated with tropical pasture grasses. Australian Journal of Experimental Agriculture. , v.28, p.837 – 844, 2001.
63. JAMES, Euan Kevin; OLIVARES, Fábio Lopes; OLIVEIRA, André Luiz Martinez de; REIS JUNIOR, Fábio Bueno dos; SILVA, L. G.; REIS, V. M.
Further observations on the interaction between sugar cane and Gluconacetobacter diazotrophicus under laboratory and greenhouse conditions. Journal of Experimental Botany. , v.52, p.747 – 760, 2001.
Herbaspirillum frisinguense sp. nov., a new nitrogen-fixing bacterial species that occurs in C4-fibre plants. International Journal of Systematic and Evolutionary Microbiology. , v.51, p.157 – 168, 2001.
65. REIS, V. M.; BALDANI, José Ivo; BALDANI, Vera Lucia Divan; DOBEREINER, J.
Biological dinitrogen fixation in Gramineae and palm trees. Critical Reviews in Plant Sciences. , v.19, p.227 – 247, 2000.
66. REIS, V. M.; REIS JUNIOR, Fábio Bueno dos; SALES, Joana Falcão; SCHLOTER, M.
Characterisation of Different Polyclonal Antisera to Quantify Herbaspirillum spp. in Elephant Grass (Pennisetum purpureum Schun.). Symbiosis (Philadelphia). , v.29, p.139 – 150, 2000.
67. REIS JUNIOR, Fábio Bueno dos; REIS, V. M.; URQUIAGA, Segundo; DOBEREINER, J.
Influence of nitrogen fertilisation on the population of diazotrophic bacteria Herbaspirillum spp. and Acetobacter diazotrophicus IN SUGAR CANE (Saccharum spp.). Plant and Soil. , v.219, p.153 – 159, 2000.
68. REIS JUNIOR, Fábio Bueno dos; SILVA, L. G.; REIS, V. M.; DOBEREINER, J.
Ocorrência de bactérias diazotróficas em diferentes genótipos de cana-de-açúcar. Pesquisa Agropecuária Brasileira. , v.35, p.985 – 994, 2000.
69. RICCI, Marta dos S F R; ALMEIDA, D. L.; RIBEIRO, R. L. D.; AQUINO, Adriana Maria de; PEREIRA, J. C.; DEPOLLI, Helvécio; REIS, V. M.; EKLUND, C. R.
Cyperus rotundus control by solarization. Biological Agriculture And Horticulture. , v.17, p.151 – 157, 1999.
70. REIS, V. M.; PAULA, M. A.; DOBEREINER, J.
Ocorrência de micorrizas arbusculares e da bactéria diazotrófica Acetobacter diazotrophicus em cana-de-açúcar. Pesquisa Agropecuária Brasileira. , v.34, p.1933 – 1941, 1999.
71. REIS, V. M.; OLIVARES, Fábio Lopes; OLIVEIRA, André Luiz Martinez de; REIS JUNIOR, Fábio Bueno dos; BALDANI, José Ivo; DOBEREINER, J.
Technical approuch to inoculate micropropagated sugar cane plants with Acetobacter diazotrophicus . Plant and Soil. , v.206, p.205 – 211, 1999.
72. MACHADO, A. T.; SODEK, L.; DOBEREINER, J.; REIS, V. M.
Efeito da adubação nitrogenada e da inoculação com bactérias diazotróficas no comportamento bioquímico da cultivar de milho . Pesquisa Agropecuária Brasileira. , v.33, p.961 – 970, 1998.
73. REIS, V. M.; DOBEREINER, J.
Effect of high sugar concentration on nitrogenase activity of Acetobacter diazotrophicus. Archives of Microbiology. , v.171, p.13 – 18, 1998.
Molecular assay to identify Acetobacter diazotrophicus and detect its occurrence in plant tissues. Canadian Journal of Microbiology. , v.44, p.12 – 19, 1998.
Occurrence, physiology and molecular analysis of endophytic diazitrophic bacteria in gramineous plants. Plant and Soil. , v.194, p.45 – 55, 1997.
76. OLIVARES, Fábio Lopes; BALDANI, Vera Lucia Divan; REIS, V. M.
Occurrence Of The Endophytic Diazotrophs Herbaspirillum Spp In Roots Stems And Leaves, Predominantly Of Gramineae. BIOLOGY AND FERTILITY OF SOILS. , v.21, p.197 – 200, 1996.
77. BODDEY, Robert Michael; OLIVEIRA, O. C. A.; URQUIAGA, Segundo; REIS, V. M.; OLIVARES, Fábio Lopes; BALDANI, Vera Lucia Divan; DOBEREINER, J.
Biological Nitrogen Fixation Associated With Sugar Cane And Rice Contributions And Perspectives For Improvement. PLANT AND SOIL. , v.174, p.195 – 209, 1995.
78. MELLADO, J. C.; RAMIRES, L. E. F.; REIS, V. M.; ROMERO, E. M.
Genetic Structure Of Acetobacter Diazotrophicus Populations And Identification Of A New Genetically Distant Group. Applied and Environmental Microbiology (Print). , v.61, p.3008 – 3013, 1995.
79. REIS, V. M.; OLIVARES, Fábio Lopes; DOBEREINER, J.
Improved Methodology For Isolation And Identification Of Acetobacter Diazotrophicus And Confirmation Of Its Endophitic Habitat. WORLD JOURNAL OF MICROBIOLOGY AND BIOTECNOLOGY. , v.10, p.101 – 104, 1994.
80. JAMES, Euan Kevin; REIS, V. M.; OLIVARES, Fábio Lopes; DOBEREINER, J.
Infection Of Sugar Cane By Nitrogen Fixing Bacterium Acetobacter Diazotrophicus. Journal of Experimental Botany. , v.45, p.757 – 766, 1994.
81. COJHO, E. H.; REIS, V. M.; SCHENBERG, A. C. G.; DOBEREINER, J.
Interaction Of Acetobacter Diazotrophicus With An Amylolitic Yeast In Nitrogen Free Bath Culture. FEMS MICROBIOLOGY LETTERS. , v.106, p.341 – 346, 1993.
82. REIS, V. M.; OLIVARES, Fábio Lopes; JAMES, Euan Kevin; BALDANI, José Ivo; DOBEREINER, J.
Visualization Of Diazotrophs In Sugar Cane Using Optical Microscopy And Immunogold Silver Enhancement. ANAIS DA ACADEMIA BRASILEIRA DE CIENCIA. , v.64, p.430 – 431, 1992.
83. PAULA, M. A.; REIS, V. M.; DOBEREINER, J.
Interactions Of Glomus Clarum With Acetobacter Diazotrophicus In Infection Of Sweet Potato, Sugar Cane And Sweet Sorghum. Biology and Fertility of Soils. , v.11, p.111 – 115, 1991.
84. BODDEY, Robert Michael; URQUIAGA, Segundo; REIS, V. M.; DOBEREINER, J.
Biological Nitrogen Fixation Associated With Sugar Cane. DEVELOPMENTS IN PLANT AND SOIL SCIENCIS. , v.48, p.105 – 111, 1990.
85. BODDEY, Robert Michael; URQUIAGA, Segundo; DOBEREINER, J.; REIS, V. M.
Fixacao Biologica de Nitrogenio Em Cana de Acucar. REVISTA ALCOOL E ACUCAR. , v.10, p.12 – 15, 1990.
86. PAULA, M. A.; REIS, V. M.; URQUIAGA, Segundo; DOBEREINER, J.
Interaction of VA-Micorrhiza with Acetobacter diazotrophicus inoculated into Sweet Potatoes (Ipomea batatas L. Lam.) . Developments in Plants and Soil Sciences. , v.48, p.299 – 300, 1990.
87. PAULA, M. A.; REIS, V. M.; URQUIAGA, Segundo; DOBEREINER, J.
Interactions Of V A Micorrhizae With Acetobacter Diazotrophicus Inoculated Into Sweet Potato, Sugar Cane And Sweet Sorghum. DEVELOPMENTS IN PLANT AND SOIL SCIENCIS. , v.48, p.299 – 300, 1990.

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