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tv   Virginia 10th Congressional District Debate  CSPAN  September 24, 2014 12:30pm-1:46pm EDT

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does it amount to an official act of recognition? the court will find itself in a very difficult western having to resolve this power question between the executive branch and congress. the d c circuit held that the president's authority was exclusive and plenary. in fact, the requirement that congress imposed would infringe on recognition power. in part, the statute itself creates the problem here. the statute itself says that it is the policy of the united states that jerusalem is the capital of israel. this is one of the things that creates a significant infringement on the president's recognition authority rather than opening up somebody's passport and seeing israel instead of jerusalem. it doesn't change the practical reality of the point of view of the state department which, i think, is that if the supreme
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court were to reverse and say that the statute were to be enforced, there would be a perception, at least the state department believes there would in the middle east, that the u.s. has retreated from the long-established policy on neutrality of the status of jerusalem. there is a practical problem presented to the supreme court in this case. the difficult constitutional interpretive collection on whether the president's authority is exclusive since the time of george washington and if this particular statute was an infringement on that exclusive recognition authority. an extremely difficult and important case that creates theoretical and practical difficulties for the court. from that, we discuss the second case is in much more normal areas. labor employment law. courts have granted five labor
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employment cases. four of them involve traditional issues of statutory interpretation, a question of whether a certain time is compensable under the flsa, under title vii. and the pregnancy discrimination act about how exactly that prohibition on pregnancy discrimination should be interpreted. but i will not talk about any of those cases. i will talk about the labor case that was granted. it seems notable to me because for 10 years, people have been petitioning the courts to grant this issue. it is difficult to see why now, after 10 years of conflict of the six, third, and seventh circuit circuit that they all of a sudden would now. the question is, way back, the unions routinely negotiate for health care benefits for retirees as well as active employees. for decades, i represented the steelworkers. it includes negotiated provision
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for health care retirees. a couple of decades ago, as health care costs started to accelerate substantially, employers were operating under a recent versions of health care costs and started to think about things like using hmos, cost contributions, co-pays. and as they would change the plans that apply to retirees, they would sue and say my health care benefits were vested. i require a vested right to lifetime benefits under this collective bargaining agreement. the sixth circuit said yes, when you think about what retirees presume, almost any language in the collective bargaining agreement should be interpreted with a thumb on the scale towards belief that retirees have lifetime vested benefits. fast forward a couple of years, and they say no.
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if there is not a clear statement that the benefits and are beyond the collective bargaining agreement, the benefits are not vested for life. the seventh circuit ended up coming down somewhere in the middle saying we need some language that is indicative of continuation to lifetime benefits. we don't require a clear statement the way the third circuit does. i think there have been 12 since the stabilization raising the issue with the court. i have been racking my brain about why it would be granted this year. some of the explanation is in the increased public attention to the availability of health care and to possible increased public interest and what kinds of -- where and how you attain a legal right to coverage. that is speculation on my part. it has been a long-established conflict in an important area to employees that have reliance on
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the fact that they have health care coverage for life. and employers that face increasing health-care costs that they simply don't know how to manage as they negotiate new contracts with their unions. a very important case. it will not get the most public notice. >> let me take you back to the passport case. i am scratching my head and i see a reference to the president's power, duty, or obligation to receive ambassadors. where else in the text of the constitution is this recognition power you speak of? >> the source i think is in the president's authority of what the court has long held as the sole instrument of u.s. diplomacy and u.s. international relations.
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that, in combination with the provision and that residents have acted unilaterally is what i believe the government will rely on to say it is plenary and exclusive authority. >> i will talk about two cases and discussed the relationship between congress, the courts, and the administrative state. these are both cases the supreme court has agreed to hear. furthermore, they are cases where my firm is filing the amicus briefs. in both cases, challenging the government action. the first case has to do with amtrak. the basic issue is this. in 2008, they passed a law instructing amtrak to promulgate new regulations involving standards for performance of trains on these tracks. the catch is that amtrak is basically a competitor with the other trains that will be regulated by these rules.
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the other trains are mostly freight. but they are competing for scarce time on the tracks. the freight rails were none too happy about suddenly being regulated by one of their competitors. after they promulgated the regulations, the freight rails said that the statute violates the nondelegation doctrine. when you hear the nondelegation doctrine, you might think of the so-called intelligible principle. this is a slight variation on that. the court decided a case called carter cole, that congress can't delegate rulemaking power to private entities. the challenges in this case say this is a direct application of
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that case. amtrak is private and can't exercise rulemaking power. a good friend of mine, when he heard about this case, if you have any doubt that amtrak is government, just try the food. [laughter] that is a fair point, but there's a little bit more nuanced than that. they say they are not a department or agency of the federal government. it is to be operated as a for-profit corporation. there will be a big fight in the case over weather amtrak is public or private. it has nothing to do with the nondelegation doctrine. this is a case about what circumstances is the case have to go through notice and comment rulemaking before it changes its interpretation of the regulations. we know how a bill becomes law. we know how you promulgate regulations, you go through
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notice and comment rulemaking. what happens when agency changes interpretation of rulemaking? the labor department in the past has interpreted regulations regarding overtime pay. the mortgage loan officers, are they exempt from overtime rules? originally -- i don't think that's right. in the past, the labor department said yes, they are exempt from the overtime rules. the labor department reversed that interpretation and said they are entitled to overtime pay. the association challenge the rule saying that because the labor department made a significant change to the definitive or authoritative interpretation, it needed to go through comment rulemaking before making that change. under the administrative
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procedure act that sets the standards for the administrative procedure, there is a black letter rule that interprets rules and policy statements and guidance that are exempt from the comment requirement. there are a couple of precedents for paralyzed veterans that say that when an agency makes a so-called significant change to a past authoritative or definitive interpretation -- it is more than interpretation. they are, in effect, changing the rule. the d c circuit decision sparked no small outcry. 70 filing amicus brief saying that the standard is completely wrong and at odds with the administrative procedure act that compared it to the seminal case in which the supreme court said the court of appeals can't add on to the standards already set forth by the administrative procedure act. cases like this, they might seem like they are very narrow issues
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but in the last few years there has been this interesting series of cases in the supreme court about the relationship between the courts and congress and the agencies. a few years ago, justice scalia started to question the deference that the court should give agencies in interpreting regulations. recently there was a case called city of arlington about, do the courts defer to interpretations of agencies' own jurisdiction? there was a statutory interpretation case. at the heart of it was that epa's effort to interpret, some would say rewrite, the straightforward numerical standards of the clean air act. i think the health care exchange act case is in a similar vein. it is interesting to watch the court little by little past the boundaries of deference, of the separation of powers.
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it manifests in interesting cases. >> does it tend to divide the court ideologically? >> let me start with the second question, in terms of the divide, it cuts across the justices. we see this especially with justice scalia, who on the one hand, a lot of conservatives cheered him on when he started to question deference to agency interpretation of rules, but in the city of arlington case, he writes the opinion saying the court will continue to defer to agency interpretation. the justices often say very interesting things. chief justice roberts as well. in terms of the theme, maybe i am overthinking this. maybe the justices take these cases one at a time and they stand on their own merits. for me, i think there is the sort of broader -- not broader rethinking, but this much more
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thoughtful reconsideration of the relationship between the courts and the agencies in terms of deference. >> we have given you a nice overview about the cases on the docket already. you can judge how big they are. i would suggest that the end of june they are not going to be on the front page of my newspaper. a couple that carrie is going to discuss might well be. >> i had the challenging job to look at what is coming up, the long conference where many cases will be considered. much of what i say could be moved within a week. we will see what happens.
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at any rate, at the bottom, all of the issues i am discussing, even if they aren't considered by the court this term are something the court will decide probably next term. if it turns out they don't take any of these cases, i will give exactly the same talk next year. the first cases i want to talk to are the hounding and king cases. these are the next big challenge to the obamacare regime. this one is interesting because the challenge is trying to get the text of the affordable care act enforced according to how it was done. it is not trying to overturn the affordable care act, it is trying to enforce it. in the act, there is a provision that the subsidies available for plans purchased under an exchange at established by the state under section 13.11 of the
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act. the irs, in the face of an unexpected three or four states that did not establish exchanges, wanted to make sure the subsidies were available nationwide and not in the minority of the states. they interpreted it, going back to our question of agencies interpreting the statutes, they interpreted it in a way that was called somewhat a mismatch with the text of the statute. they set -- cases for the state that didn't stat establish an exchange, the federal government did so instead. what we have is, in the king case, we have individuals and in the held in case, individuals and employers who sued, arguing that this was in violation of the law. the agency may have the right to interpret the statue but not the right to rewrite the statute. in this case, the implications are not only that the people would not get the subsidies, but
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also that millions of people will also not be subject to the individual and employer mandate. the numbers i have seen are about 5 million people, if the irs is incorrect, if the text reads as a plaintext meaning, about 5 million people would not get subsidies but another 8.3 million would not be subject to the individual mandate and 57 million would not be subject to the employer mandate. there is huge implications for a lot of people. what we saw in these two cases was basically the circuit split. the morning of july 22, the d c circuit held that this was an improper interpretation by the irs. by early afternoon, the fourth circuit held that it was fine, that this was ok and the irs has the authority to do this.
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normally, one thing the supreme court is looking for is a circuit split. they had one right there. the plaintiff who had lost wasted no time in filing their petition. they turned it around in nine days. then it could have been considered by this first conference. because the government was given a 30-day extension, it would be considered in october, possibly early november. in the meantime, the government asked the d c circuit to take the case. the court which is now composed of a 7-4 majority of democratic appointees, if they vote along party lines, they will overturn the decision of the panel and a race.
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the question is whether the court will even take this case given the fact that the split is in question. there is a lot of argument as to why they would. the court does consider cases that are major questions when there is not a circuit split. even if there isn't a circuit split at the time the case is argued, there is a good chance there will be a circuit split down the road. these states are in 10 different circuits. until all of those circuits have decided the issue, it is still going to be a question that is causing uncertainty for everyone in the state who wants to buy insurance. all the employers who aren't sure whether they need to offer it. a lot of employers feel forced to cut hours for their employees to make it possible to continue not offering health care. and for the states themselves, how to be regulating.
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it is a major issue and we will see if there is more. this is another case that could fit into the pushing back on chevron. does chevron even apply here? does the irs maintain a health care law? whether you feel like it is a tax might fit into that question. whether the statute is ambiguous and whether that interpretation is reasonable, there is that. this also fits into the theme of the growth of federal government, growth of the administrative state and the pushback on these constitutional limits on government. particularly on the constitutional issues we have had with this president having less respect for the separation of powers and the limits on his own authority as long as he has got his phone and his pen. he seems to take a less serious view of his constitutional obligations than something he should. we have seen a pretty dismal
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success rate and some of these aggressive positions make claim to that. the second set of cases is marriage cases. there is a slew of circuits that have petitions already on monday's conference. the fourth circuit, the seventh circuit and the 10th circuit have multiple cases with petitions. there are also decisions in the fifth circuit, sixth circuit and ninth circuit. one challenge is, there is not actually a split right now. it may go away. all the circuits that have considered the issue have looked at it the same way. they have all overturned state laws and constitutional amendments that limit marriage to a man and a woman.
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how the court will take the cases is hard to predict. we had justice ginsburg a week or so ago commenting that we have to wait for the sixth circuit to find out what they do. she would seem to be suggesting, why rush into these cases? we will wait until one occurs. it is reasonable to think there may be one. the sixth circuit oral arguments in which they considered four different state laws seemed to lean in favor of upholding those laws. that would create the first split in this issue. there is also the fifth circuit, which is seen as -- depending on the panel, it has a decent chance of upholding the state laws. that is a case that has not been scheduled for oral argument. one of the ones in louisiana
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also upheld a state law. which case might be considered? there is a lot of very complicating the vehicle issues in terms of problems in the various cases. some of them, like the fourth circuit case, there is a question because the attorney general isn't actively supporting the law. you come up with questions like the prop eight case. what do you do when you have the state executives -- who can defend it? and whether they are allowed to petition for appeal when they have lost a case that they wanted to lose? both the seventh circuit case and the 10th circuit case out of utah have solved many of those questions between states that have governors and attorney generals supporting their laws. we have an interesting combination.
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you have a question of licensing as well as recognition from out of the state. whether you have to recognize marriages contracted in other states. on the seventh circuit, they have due process challenges. that might be a chance for the supreme court to get all these issues on the table. all of these cases are beating the great pace of petitioning that we saw in the king cases. they were -- not only did judge posner turnaround the decision, but i believe it was only two days after the decision came down that they filed -- no, it is five days after the decision that they filed. the response was in the same day the petition was in. everyone seems to want to hear these cases. the states have responded saying, we won, but please take our cases anyway.
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this is a rush for who gets to be the case that has its name on it. that could also affect how the court views it as well. everyone is making slightly different arguments. in terms of -- some of the issues will be similar in either this case or the affordable care act cases because the split is in question. it is affecting a large number of people. maybe not the 57 million that are affected by the health care mandate, but there are many people who want to see this solved. i am sure the court will have to deal with the case eventually. >> thank you for that. i think some of the things you touched on are so interesting. let's take them one at a time. let's talk about the king cases. i don't think you said directly, if the challenge succeeds, it is
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very hard to be sustained. >> how fast it does so is going to be a question. having the subsidies unavailable in those states will be a severe blow to the law. not as severe as the original challenge to the case, but definitely it would fall under its own weight. >> if there is that fear, how likely is it, understanding that the plaintext is very supportive of what you laid out, how likely is it that congress wanted to put such a time bomb in section 13.11? >> there is evidence that they did know what it was and one of the architects of the law commented on this. they didn't think of it as a time bomb because i don't think they thought the case could go through without establishing these exchanges.
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they thought it would force the states to play ball. but at the end of the day, what congress intended is unknowable. you have hundreds of individuals. for the same reason, it is and what the court should be looking at. i think we need a full conference. their job is to write a law. and not have the irs going back and try to cover their back and not have the supreme court going back and trying to rewrite the law for them. we need to maintain that accountability. we need congress to know that his words actually make sense. you really do need to do your homework up front. >> sticking with the aca case, i would be eager for anybody's thoughts on the point carrie just made.
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is the court likely to grant certain under support and question? >> nobody wants to make a prediction. >> i wrote an op-ed when the hearing petition was pending, walking through the d c circuit history of hearing cases. it seemed to me that it would pause before rehearing the case. obviously i got that one wrong. caveat emptor. this case was so important, the d c circuit needs to rehear it,
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such an important case, but it is strange to hear the administration supporters say that over and over again and then say it is not that important. it is important enough that the circuit needs to rehear this immediately, but not the sort of thing we need the supreme court justices to weigh in at this point. having seen the ferocity surrounding the debate, you have to wonder what the justices were seeing and watching. they don't live in a vacuum. they see all this happening around them. you have to wonder whether the cacophony that surrounded the rehearing request might influence the court's eagerness to take this case up. k it is extremely important, they said. >> if i had to guess, i would guess the court won't take the case as a split, in part because i think in their mind they think they are done with the affordable care act.
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it was the case of the term not long ago. it was, from what we can tell, traumatic and really a big, difficult case internally. i suspect they would be your to jump back into this unless there is a split, which would be the traditional criteria. >> let me ask you a counter scenario, which is, a couple of years ago when they decide of the last case, there were four justices who were pretty unhappy and eager to take down this law. it only takes four votes and those justices might be eager to jam up the chief justice, or at least that is one way of thinking about the court. but that is probably too cynical. >> even if that cynical view is right, i think -- if the case is seen as a way of getting back at the chief justice, then
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presumably they fall along the lines they did last time. if you favor the challenge, it looks a lot more credible coming from a split than it does if there is no split. >> in addition to the four the individual mandate case, not to drag us back to administrative law, but there were five justices last year who voted against the epa's frontline arguments in the clean air act case. they said under the greenhouse gas statute, words in statute to mean something. you can't just claim the results of an interpretation are absurd and rewrite the statute to maintain the program. it seems to me that there are strong echoes of that epa case
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in the health-care exchanges case. i think -- the other epa case the last term where justice ginsburg said the job of the court isn't to promote the policies they think would be best but apply the statute as it is written, that works in this case as well. >> that will tell you something about where they come out on the merits. other thoughts on the aca cases? let me move to the marriage cases, which are very likely to be the centerpiece of this term, and turn it into whatever else they have taken, whatever cases they have taken. if they take same-sex marriage as they are likely to do, that is going to mark this term. let me not get ahead of myself. as carrie pointed out, there is
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also no circuit split here. what is our thinking about whether this is the kind of case where the court cares about a circuit split? it is no small thing for federal judges around the country to be striking down state laws. is that enough? i am going to start calling on people by name. >> i will start. it is a very unique posture. they are not getting any boost from any party. i think that is what puts the court off the situation here. when you saw how the california case came out last time, and then you see the comments justice ginsburg is making, there is a hesitancy that cuts across party lines. at the same time, i think the undercurrent is having to deal with all these state requests
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which are very complicated, which are causing real difficulties in terms of lower courts. one judge said, i understand the court has granted other cases. we are not issuing opinions stating why. i am not going to grant one. i think there is an institutional cap in terms of how many cases to deal with. >> i think the importance of this case is so great. they take cases of much less weight based on importance ground. i think they will take these cases. one of the facts that got talked about a lot of couple years ago, even justice ginsburg kept on talking about the aftermath of roe v wade. the way the court took that case in her description, instead of taking a step by step view, went broad on that case. do we want marriage to be the next roe v wade? i think that is something the
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court is concerned about. maybe it is part of the reasons she was suggesting we want to wait before getting involved in this case. the challenge is that we do have almost a fever of lower courts that are rushing as fast as they can to overturn every state law they can find. whether the supreme court gets involved or not, you have courts that have gotten involved. whether you have the case of courts overriding democratically elected positions, it may be possible for the court to avoid a specter of a repeat on that. >> one wonders what justice kennedy is thinking.
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justice kennedy preview panel with special guest -- on the marriage cases, it is especially so. he wrote about liberty and also wrote about state authority and federalism. it wasn't clear to anybody where he was going with this. what we have seen in the aftermath is a lot of courts focused on their version of liberty with much less care for state power and federalism. maybe justice kennedy is happy to watch this play out. maybe he is looking for another opportunity to clarify what he wrote. >> so it is the case that justice kennedy is the author of all three major gay rights decisions. it will likely be his legacy and it would be surprising if he
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would make a turn now when the polling numbers are moving in one direction. or do you disagree? >> i am not going to make any money betting on what justice kennedy is going to do. he has written a lot about federalism. he has written a lot about individual liberty. often times it seems that federalism is a means to the end of liberty. it is not clear how it is going to play out. this takes these two lines of justice kennedy's thoughts and puts one against the other. >> actually the poll numbers recently show that support for
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same-sex marriage has dropped. whether that is a blip, i don't know. you wonder if that is that same affect. when you have people who feel like the courts are jumping in, usurping territory that should be worked out in the political and social spheres, maybe him making the decision would undermine his being viewed as a positive legacy. i don't know. i don't know whether justice kennedy wants to make that decision. he probably would have done it last time. >> you are quite right. >> he would probably rather -- >> when the court issue came before the court last year, not the doma case, it was plain as day that justice kennedy didn't want the case to be before him. he was delighted to see it go away. i don't think anyone predicted that windsor would be received as it has been, with everyone focusing on one of the two theories in the case, the liberty theory.
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whether the court wants to or not, i think this is probably something like a consensus, it is going to be hard to avoid getting into it. let me ask one more general question and then turn to your questions. at the end of the last term, it was hard to write, because reporters like conflict. there was substantial conflict at the very end of the term in hobby lobby, but it was also a term that had an extraordinary amount of unanimity. the largest in the modern era. about two thirds of the cases were decided unanimously. not all of them unanimous on the rationale, but many of them. i am wondering whether there are thoughts here about whether that is a blip or whether that is testimony to the court trying to get together, testimony of the chief justice playing a role in getting the court together, or whether it is the nature of the docket on the cases we have been talking about, which may be areas in which the justices are less apt to disagree. >> i will take the guess that it
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is a blip. i think we have only seen the trend over one term and there was nothing specific that would have suggested an overall shift. the personnel is going to change within a year or two probably. my guess is that it is just a one-term event, maybe two-term advance. but we are not going to enter a new period of unanimity of the supreme court. >> i tend to agree with one minor caveat. i think the chief justices in major cases have led to more unanimity than you would have otherwise seen. justice kennedy has been on most of those and most of the court has come with him.
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in other cases of that kind, the court was on the brink of making a major ruling, stepped back. when you see cases like that come up, i think it is part of that. >> i think there is broad agreement on a method of statutory determination that would cause some convergence and the major interpretation cases. for example, the fair labor standards act case. i would predict some unanimity. i think in cases that are not directly in the limelight, there is agreement on the method of looking at statutes. you might see more agreement in those areas than the hot button cases that have more
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interpretive play. >> it ebbs and flows. other panelists would know these cases better than me. in cases involving the voting rights act, campaign finance, the court was able to achieve unanimity on a statutory interpretation, on an issue basically returned to the court. i think accounts indicated that some justices were not too pleased on how things played out in the long run. it changes over time. >> i agree. 13 unanimous losses by the administration. when they take extreme positions, that aids the cause of unanimity. some of the cases they were considering, the ninth circuit helped with unanimity. they were able to unanimously overturn them. sometimes good rashes of serious error, the court can look really unanimous. there are certainly more cases where there is absolutely an ideological divide but they managed to come together. that means sometimes you get
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cases where that kind of unanimity can survive. once they are forced to look back at the case, it is going to break apart eventually. >> personnel changes. what is the outlook? assuming there were to be a resignation in this administration, what kind of chances with the president have to appoint someone -- let me ask it this way. justice ginsburg has said words to the effect of, who are you going to get better than me? i don't think that was the statement of an egomaniac but it was the statement of a political realist. >> certainly in terms of who is likely to step down, everybody focuses on justice ginsburg. in part it is because there is no sign of anyone else having any likelihood of that anytime soon. you never know what might happen. in terms of what would happen if justice ginsburg did step down, it depends insignificant part on which party controls the senate. that is going to be the big
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question. we will know more about that shortly. it is a political process question and it depends on who votes for who. >> i think it is what controls the senate. we have already seen the filibusters eliminated. while they are still available for some dream court nominations, it would be naive
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to think that harry reid would not get rid of those as well as there was any pushback on whoever the president nominates. if the democrats maintain control of the senate, the president could appoint another ginsburg if he wanted to. i think he could easily get 51. that is all he will need when harry reid takes the next step. >> chief justice pater decried the partisanship around nominations and reminded us that scalia was unanimously confirmed. ginsburg got just a handful of votes against. with the last four nominations, we seem to be in a different climate. what accounts for that? >> you can't talk about that without going back. the whole system has really changed from one of significant deference to the president to one in which there is a lot of
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pushback and a lot of fight. my perspective is that it was started by the democrats making a huge deal out of borg's nomination. we are now in a world where that is how nominations are dealt with. i don't think we can step back from that now. you are not going to get both parties to disarm simultaneously. >> post borg was kennedy, breyer and ginsburg. it didn't change every single nomination. >> now we are in a different
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world. everyone things we are still in that -- let the other panelists see if they think there is hope. >> i don't think there is any downward ratchet in this process. it can only get worse. even when it can't get worse, it does seem to. >> an interesting question is what happens when you have the senate in the opposite party control as the president. up to now, the last few nominations, you have had the senate controlled by the same party as the president. if everybody is voting on party lines, the nominee will squeak by. things get much more complicated if the other party is
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controlling the senate. then everybody votes on party lines, they reject the nominee, the president comes back with another nominee. you keep having partyline projections. does the president move more towards the center in terms of the nominee or say, i am just going to get more ideologically towards my end every time and keep playing this game out. that is the reset button question. nobody knows how that is going to play out. >> we have seen that before, 1968.
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that was johnson not being able to get his nominees through a republican congress. it is messy. in terms of confirmations, i think it is important to separate two things. character assassinations of judicial nominees. to say that we shouldn't engage in character assassination is not to say we shouldn't have strong political and intellectual debates over supreme court nominees. washington was a more peaceful town back when the republicans -- orrin hatch would get together with bill clinton. lewis powell or scalia would get through easily. what we lost in those debates was real thoughtful discussion of ahead of time about what the american people want the court to look like, what our elected officials want the court to look like, and to have their say at the beginning of the process. >> adam makes a good point. it is not irrational. as more social policy has moved over to the court, i think you are seeing more invested in making sure the bench is filled with people who share their approach to law and society. >> then there really is no hope. we are so divided on the proper outcome of that intellectual debate. really, there can't be anything but this kind of harshness.
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it is winner take all and loser goes home until they win. i don't see any end to the process playing out the way it is now. >> isn't justice ginsburg's whole critique of roe v wade that they thought they could end the political debate once and for all? buckley said there are no eternal victories. these things continue on and on. that is probably the way it should be. >> so you decide for yourself whether the situation is hopeless or just really bad. [laughter] we will move to your questions. who would like to go first? or would you like to follow the panel? here is a microphone for you. >> ok. the statutory question is cut and dry, but the fourth circuit reasoned that references to such exchanges included federal exchanges, and therefore the statute construed, supported the irs' interpretation. i wonder what you and others might think about the viability
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of that argument with the nine justices, all of whom say plain text is important. >> we filed briefs in king and yes, my position is the plaintext is pretty clear. it is clear the plaintext is intentioned with the irs' interpretation. the question is whether the exchange created by the state can stand in the shoes of the state. i think you can argue both ways. this is why the fourth circuit was able to come to that position. you might not even fully get down there.
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some of it does get determined by your approach to discretion and deference and chevron. a lot of it may be determined by this earlier procedural point of, do we have to get deference to the irs interpretation? if the courts decide we have to get deference, they might not think it is such a great interpretation but they have to go with it. i think there is a lot of room. the plaintext simply doesn't say that. it is an open question. i think the text is clear enough to easily sustain saying this is unambiguous text. obviously, minds can differ. >> any thoughts on that? it is so quiet in here. yes? >> hi.
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i guess it doesn't seem quite as clear to me that the courts have settled on an approach the statutes. i think it is clear in ordinary cases that that is so, for example, i think there is a pretty good argument that there was no statutory interpretation. they just never got around to figuring out what the statute says except that it doesn't reach this case. they would have had to figure out the constitutional question and we don't want to do that. i guess i would worry if i were
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thinking about what is going to happen and hoping the statutory approach, the textual approach to statutes holds up. it is under a lot of real pressure. i wonder about that as a possible way of understanding the situation. >> i agree. i think bond tells you much more about the court approach to constitutional interpretations than statutory interpretations. everything was driven by the effort to avoid citing a very hard question. it traces back to the hallmark of the tenure. whether you agree with or disagree with it, we saw it in the affordable care act, in austin. you are right. at the same time, i also filed a brief in king supporting the challenge.
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i think the position is fairly complicated. sometimes they are arguing that this was an intentional gap and the irs filled it. i think they are trying to find out which argument is going to be received better but they haven't chosen which one they liked better. >> is this issue going to come up again? looking at the statute, there is a very strong statement from congress that the united states policy on jerusalem is this, but the remedies, what they are asking for is much smaller. they are asking for a passport marked to israel. i thought about this case quite a bit. i think it does pose a tough challenge between congress, the president and their powers. at the end of the day, the family just wants a passport. the president can say, u.s. policy remains unchanged. at the end of the day, the court can construe the statute narrowly on the question of u.s. policy and get to the question
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of what something says on a passport. when i look at the case, i step back. it is hard for me to see what the real substantial infringement of the president's recognition power is. nobody is saying that u.s. policy on statutes says this, but in this case i don't think anybody is saying that u.s. policy is different. it is just what is written in a passport. >> i think that is essentially severing the statement about what u.s. policy would be. to have something in the passport that the president and previous administrations actually would have a damaging effect on the ability to control foreign policy and recognition of sovereignty or the decision not to recognize sovereignty. you have to reject the president's judgment and sever the statutory statement about what this means u.s. policy is from the notation on the passport. i think those are big things to do. if the court is willing to say, we are going to discount the
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president's judgment on this and ignore the statutory language, i think that is a very dramatic step. >> in terms of whose judgment, there is the president, but there is also what something should stay in a statute. you referred to foreign affairs. that is a line he is drawing from back when marshall was still in congress. if you look at where that line comes from, i think what marshall was saying is once policy is defined by congress, the president is the sole organ and carrying that out. that is true, maybe he is the instrument of foreign policy but an instrument doesn't play itself. maybe it is the senate and congress that should have some say of what is in a passport. otherwise it is the president's judgment of what will and will not make foreign policy. >> the other thing i think is
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interesting here is that long-standing institutional judgments acquiesced by congress over the long term like unilateral recognition should get to the president. there are very powerful arguments that the president has that his judgments would be damaging, as previous presidents have also judged. >> adam does make a point that it seems kind of trivial. who is going to upset at the turkish border? >> the judgment of the number of secretaries of state, that is not trivial. it will be read in a particular way in the foreign relations setting.
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do you just give that the back of your hand and risk having this affect on international relations or not? i don't know if the court is willing to give us the back of its hand. >> there is one more thing in play here. when president bush signed the statute, he said, i am not going to treat this as mandatory. that is back when signed statements were a big deal. back in 2008, president obama is giving his famous interview where he says, i am not going to use signing statements to nullify or undermine congressional instructions. i understand he was a senator then, he is a president now. it really seems like at this point, maybe somebody needs to remind everybody about where we have been on these issues. >> it sounds like in this particular case, you think a
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constitutional avoidance move might be right. >> sure. like i said, i am just very curious why we can't avoid the bigger policy issue and decide narrowly on the basis of what is written in a passport. >> yes sir. >> in terms of temperature of social events like the border, where agents are collecting people, what do you think the temperature will be for these cases? what do you think is going to be the trend for this coming term? >> i am not sure we fully have the question yet. >> my question is, how is these issues going to affect citizenship? will there be more rioting?
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>> i think the facebook case will not result in rioting. let me ask the question in the most salient way. assuming the court establishes a right to same-sex marriage, which i think is more likely than not, how do you think the country reacts to that? >> there is a sense that attitudes are shifting so quickly -- i think we could have answered that 10 years ago, five years ago, maybe even last year, and there is a sense that attitudes are changing quickly enough that it is hard to predict. it is very hard to know. >> i think it may have the affect of deepening the lines because of the feeling of this not being the result i would have come to. it could work both ways. it could mean everyone jumps on the bandwagon, says this must be the direction everything is going, or people could backlash and say, i think the court is
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stepping out of line. you could get pushback. it is really hard to predict. i think it would be different if the court decides this year versus next year. >> how much do you think the court does or should care about blows to its reputation, authority, prestige? how much do we care about that class? >> a little bit. [laughter] i think it is human nature for them to be -- to care about how their decisions are being received in terms of affect on the other branches and their own credibility. it is critical that they not pay
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too much attention to it. we would not want a supreme court that is just following whatever is popular and not paying attention to the text and history. probably they pay a little bit of attention. >> it is good that the justices are instituted by life tenure. this gets back to our earlier discussion about judicial nominations. if the justices, no matter which way they go on this case, it is going to fiercely energized some corners of the political world. we are going to feel this affect on future nominations. those are the reasons why i find it hard to take too seriously complaints about the public fighting over confirmations as fiercely as they do. they fight over these things because they are important. the courts ultimately make
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decisions for which the public only gets a voice after the fact. >> let me answer the question in a slightly different way. one of the terms in terms of statutory representations, and criminal law, both the gates case and another case raised points about how to broadly construe criminal statutes. the court is going to be construing the statutes in the context of a justice system going through changes. we have a lower crime rate than recently. we had a dropping crime rate over the last 25 years or so. i think eric holder recently announced the size of the federal prison population is dropping this year for the first time since 1980. if you look at some of the key cases, there is kind of an aspect of the facts which are
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almost comical. perhaps the lead example, a guy who threw some fish and to the water. it is such an odd context that the compelling government interest is absent from these cases. an interesting question is whether the facts of the case, or of dropping crime rates in general, changes or has some influence on the scope of statutory implication. in the 1980's, when crime was a political question, crime rates were high and politicians were talking about crime a lot. in that window of time, you have a series of cases construing federal criminal laws very broadly, basically saying this is up to the justice department to exercise prosecutorial discretion.
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the court almost got out of the statutory interpretation game. i wonder if now we are seeing a shift towards narrower statutory interpretation, whether that is reflected in crime rates or some other shift. it is a really interesting trend to watch. >> other questions? let me ask one that occurred to me as we were talking. the court seems to think -- i don't know if this is right -- that the public is going to accept a unanimous decision more easily than a closely divided one. which is why they worked so hard to make brown versus board of education a unanimous case. does that actually work on the ground? do people care whether hobby lobby was 5-4 and the abortion case was unanimous? do people care about the
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marriage case is likely to be 5-4 or 6-3? do these differences that the courts seem to care about make a difference on the ground? >> i think to some it does. those that are following the supreme court's closely are using votes as proxies for what is right or wrong. on the conservative side, you might say, i am going to follow justice scalia and justice thomas. if you are on the liberal side, you might say, i will follow justice sotomayor and justice ginsburg. if they write a dissent, you think of a scalia dissent where he rips the other side, that can affect people. i suspect it really influences those that are sitting around
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the room -- many of them here. the inside crowd that has a strong sense of, i like this justice. i suspect the public is not really influenced by any of that. there is a debate out there but they are not reading it. >> i tend to agree. the question is, who are we talking about? court watchers, yes. the general public, no. how the cases interact with their own life is what matters to them. the cases really affect everybody, the tax cases affect everybody. i do think as carrie pointed out, institutionally, some of these divisions against the administration do matter. you talked about the appointments clause challenge. there was unanimity on a lead
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issue. i think that does matter in terms of when they come back to the court. >> to just illustrate that it is not always perceived by people the way it is, take bush v gore, it is 7-2. one part of the decision was 5-4 but another part 7-2. everyone sees it as this huge dividing line. it depends on which part of the decision. at any rate, there are certain really controversial issues. when you have some kind of unanimity like the case with the recent appointments clause, at least it does defuse to a certain extent when you have justice kagan and justice sotomayor voting on the same side. you can still say this is a wrong result, but it makes it a little harder. >> keep in mind, the people have to -- the businesses and the
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people that end up being governed by these decisions, a nine-vote decision doesn't say much at all in difficult questions to very minimalist decisions. there is a lot of clarity for people who have to comply with the law. a 5-4 decision might cause a political uproar but at least everybody knows where the court stands on the broader principles. it cuts both ways. >> if we have run out of questions -- have we? then i think we will call it a day. thank you so much. please thank the panelists. [captions copyright national cable satellite corp. 2014]
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[captioning performed by national captioning institute] >> david cameron has announced he is recalling parliament for debate on iraq. the prime minister said that members of parliament would debate the u.k. response to the iraqi government's request for help, adding that he would not turn away from what needs to be done. look for that debate on friday. back at the united nations today, president obama will preside over a meeting of the security council, urging and adoption of the resolution requiring countries to persecute individuals that leave their home countries.
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live coverage of that security council meeting coming up at 3 p.m. eastern. all day they have been asking the question -- what is the greatest threat to the united nations that should be addressed? this morning the president addressed the u.n. general assembly, outlining the global response to combating isis. he also talked about the u.s. response to the ebola out rake and was radical of the russian invasion of ukraine. this is from earlier today. >> mr. president, secretary general, fellow delegates, ladies and gentlemen, we come
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together at a crossroads between war and peace. between disorder and integration. between fear and hope. around the globe, there are signposts of progress. the shadow of world war that existed at the founding of this institution has been lifted. the prospect of war between major powers reduced. the ranks of member stakes -- states has more than tripled and people live under governments that they elected. hundreds of millions of human beings have been freed from the
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prison of poverty with a proportion of those living in extreme poverty cut in half. the world economy continues to strengthen after the worst financial crisis of our lives. today, whether you live in downtown manhattan, or in my grandmother's village more than 200 miles from nairobi, you can hold in your hand more information than the world's greatest libraries. together, we have learned how to cure disease, and harness the power of the wind and the sun. the very existence of this institution is a unique achievement. the people of the world
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committing to resolve their differences peacefully, and to solve their problems together. i often tell young people in the united states that despite the headlines, this is the best time in human history to be born because -- for you are more likely than ever before to be literate, to be healthy, to be free to pursue your dreams, and yet there is a pervasive unease in our world, a sense of the very forces that have brought us together have created new dangers, made it difficult for any single nation to insulate itself from global forces. as we gather here, an outbreak of ebola overwhelms public health systems in west africa and threatens to move rapidly across borders. russian aggression in a europe recalls the days when large nations trampled small ones in
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pursuit of territorial ambition. the brutality of terrorist in -- terrorists syria and iraq forces us to look into the heart of darkness. each of these demand immediate attention from but they are also symptoms of a broader problem -- the failure of our international system to keep pace with an interconnected world. we, collectively, have not invested adequately in the public health opacity of developing countries. too often, we have failed to enforce international norms when


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