we have got to be active and make sure that all the federal policies we are emboldened, we have to make sure everyone knows exactly how it is going to impact our states, state budgets. it is going to bankrupt us. obamacare will be the biggest job killer ever into juice with the country. we have got to go through every thing we can to stop these implementations. we have to repeal it, but the way to do it is to educate everybody in our state and everybody nationwide about the problems with it and then do everything we can to get government out of the fall of our health care decisions. tonight on "the communicator's."

>> "washington journal" continues. host: richard wolffe joins us, the author of "survival." you set up a dynamic between the

people that you call revivalists and survivalists. who is in each camper? -- camp? host: -- guest: looking at it now, particularly at the start of the year, i wanted to look at the messes that they were in and how they got out. campaigns are a means to an end. you make a list of promises, you get to washington, then you kind of undo them. in this case it is a 21 monthlong journey. it was not just the process, it was where they forged their identity. transitioning from campaigning to governing was much more of a challenge than it has been four previous presidents and white houses -- more a challenge than

previousen four previouor presidents and white house's. this idea of being a transformer, that c-span pledge, televising of debates. it became emblematic of how they wanted a transparent approach. revivalists are on that side of it. survivalists are on the washington side, saying do what it takes to get washington done. make the deals you have to make, grease the wheels, that is how it works in washington. that battle between the ideas has been happening in the white house for the last two years. host: does it happen in the mind of the president as well? guest: exactly.

how pragmatic and realistic he is, but revivalists call him an mp sir. -- appeaser. a few weeks before the former clinton chief of staff had this dispute with campaign folks, that they talked about getting lobbyists out of the administration, but then they said they wanted to work around it. then they said that the candidate meant it. that it was true. what happened? they held the line but there were a couple of exceptions. host: we are talking about rohm emmanuel, survivalist. how many of them will carry over? guest: it is important that the

replacement for rohm emmanuel is the leader of the survivalists. a congressional liaison, with people like larry summers on the economic team. some of them have left or are on their way out. the most interesting character that was not part of the coming in white house, getting other people involved in communication, like dan piper or david axelrod, shifting from campaigning to governing. what they did not understand was that technically the other side have a soft campaign. they were transitioning into this washington mode. they expected republicans to come with it? but it never happened. host: what about this notion of getting through the campaign and then having a couple of years

instituting legislation and changing the culture? what does it tell you? guest: they thought they would have a window, maybe a few months, maybe a year. but there was no window. not in washington. every administration, it seems to actually get much worse and more exaggerated. the culture, especially with the technology and the media and the influence of cable, the influence of all of these things together means that people on capitol hill making it much harder for a long-term policy.

host: the numbers to call, for democrats, 202-737-0002. for republicans, 202-737-0001. for independents, 202-628-0205. you talk about how emotional president obama was in the health-care bill, something that many journalists did not really pickup on. he was viewed as a stomach president. how emotional was he? did you get a glimpse of that? photographers have a strange sense of what is going on. what i noticed was that there were very few moments when this president as a candidate showed emotions that he could not control. i have always been very aware of them. even after his grandmother died

, he actually spoke about her and gave a stump speech and started to cry than. -- then. this is a moment, as the vice president was introducing him, where the vice-president was his normal and hyperbolic self. everything was literally the greatest ever. it was all very excessive. i think that people were very focused on him. next to him, the president was released groveling. his face was all contorted. it was extremely striking. just in case i did not get it right, but would check with his senior staff.

he was released troubling to hold it together. he has such a polished performance, it makes you wonder that when the mask comes off, what is really going on? that is what took me to the critical nature of health care and why he had risked so much. it was the memory of his mother and her experience with terminal cancer, struggling with insurance, almost every single case besides that campaigning for health care, almost every piece of this legislature was campaign -- tailored for people in her situation. that was a focal point for him precisely because of the experience of his mother. host: you wrote in your book that "obama it is giving up his most emotional moments in his political career into his

personal life." guest: right. that. asked him about it is striking as well, but his senior aides were trying to tell him not to do a thing because it would cost him politically, he would talk about his mother. which is why he wanted to risk so much. revivalists really refers to him digging themselves out of a whole 10 months ago when people said that health care was dead. host: you are talking about one year into his presidency. guest: we are all showing pictures of 1 million people on the mall in saying that he had

78% approval, now look at him. having lost the senate race, the start of my time line here, it ended up as two months. starting out as the ted kennedy's seat. that shock and surprise of the republican victory where everyone said that the president was doomed and finished. it reminded me of several points through the primary where people declared him to be over, finished, and dead. two months later, he gets health care done. a dramatic turnaround. i wanted to see how he did it. how they responded to that kind of pressure in failure. what do they talk about now? everyone says that the president is finished, that he is gone and that there is nothing else that he can do.

we will see. at some point, you do not know. he will cling to the edge of the cliff. hillary clinton thought that he was finished. when sarah palin was nominated, democrats said that he was finished. .

independent voters want to see a change in the way washington works. and the compromises that really mattered, that nancy maybe was referring to, are the things like transparency . the backroom deals, signing earmarks into law. those were things that said to especially independent voters maybe this guy wasn't straight with you. and that's where it comes down in terms of the bad compromises they made to washington's way. they were unnecessary.

they didn't actually give them much. when it comes out to the public option, it is what's addressing. i hear this from progressives all over this president never talked about public option. he didn't even agree with the individual mandate as something he was going to support. and that's actually now law. no serious democrat suggested that there should be a government plan. not since the clinton's effort in the early 1990's. and the way -- as i describe in the book, the way the public option took on the life of its own was a real barrier to getting health care done. recount a scene where chuck grassley, the only -- has a final confrontation with the president, or rather the president confronts him. they say, listen, senator grassley, this is your plan, this is essentially the policy that you've advocated all of these years. if we give you everything you want, can you still support it?

and he said, well, no. but he asked for something in return. he says, mr. president, if you go out publicly and say no public option, then i'm with you. and the president couldn't do it. even though there was never going to be a public option, he couldn't say no public option because he would disappoint people like nancy so taking it off the table meant meant that everyone's political options would have been constricted. so the public option was a distortion. nobody seriously advocated it. not john edwards, not hillary clinton in the primaries. and i would argue that it actually cost the white house politically. maybe chuck grassley would never have been there. but it distorted the debate. host: let's hear from patty in minneapolis. republican line. caller: good morning. i'm one of the few people that watch msnbc. you know, it sounds like the same thing here. that they do all day long on msnbc, praising president obama, making excuses. oh, he's got the two camps, and

one's telling him to do this and the other is telling him to do that. the guy can't make a decision for one thing. he's never won anything. and you folks didn't do your job when he was running to back him. and all his communist, socialist friends, terrorists, got a who wrote the book about wish they had done more even in the light of 9/11. the other thing i want to say is, why don't you talk about all the czars, van jones, why don't you talk about that? your first clue with premeditate people have when he said he wasn't going to take public donations, when he reneged on that. he says, no, no, he's not going to go with the government funding for the election. that was your first clue he was a big phony. host: you have a lot of points. let's get a response. guest: i'm surprised she can be that uninformed after watching

msnbc all day. you need to check the dictionary. if you ever have known a communist or socialist or even a terrorist, you'd know that that's just ridiculous. so you made a lot of points -- you suggest that i'm making excuses. i can tell you there are plenty of people in the white house who have not been happy about what's been in the book. we just talked right now about how the president awas conflicted. the interesting thing, there's no question that he had this different decision making process from president bush. however, if you look at what has motivated people in this last election, it's not a lack of doing things. it's that he's done so much. so can you challenge whether or not he makes decisions quickly enough, but -- weird for a terrorist, patty, he has this

health care legislation through . and credit card reform, financial regulatory reform, $800 billion of recovery money. that's not someone who doesn't make decisions. you may think he's done too much. you may think he has taken too throng get to his policy positions. but the question about whether he has had any experience, we've used lots of different models for presidents over the years. president bush was a managing director of a baseball team. does that make him a great executive? that wasn't the model people were looking for then either. host: during the campaign -- of course all sides in political campaigns use rhetoric. but sarah palin, the v.p. take on the republican side, talked with the president paling around with terrorists after the president won the elections, sarah palin criticized him as having death panels as part of the health care bill. was the obama team surprised by how much traction buzz phrases

have gotten even if they have not actually been legitimate parts of the obama campaign? >> right. and they shouldn't have been. because in the campaign this was not unusual. remember, there was all of the rumors that he was a muslim, and they spent an extraordinary amount of effort and time thinking about how to deal with that, putting up websites, doing targeted ads online to try and marginalize this kind of stuff. to say we know we can't stop it, but we can at least make seem to the extreme because that's what it is so they put up the birth certificate and everything else. in terms of now, their attitude was, well this stuff will take care of itself. isn't it obvious? and it wasn't obvious. and in the current media, technological environment, things can go viral extremely quickly. so death panel talk goes from a facebook posting to something that pops out of the mouth of a senator or congressman. and it's played all day long on

cable. a different environment, would they had been far less nimble dealing with than during the campaign. host: our line from missouri. hi, brent. caller: good morning. thank you for not -- richard, i've not read your most recent book, but i can't wait to based on the subject matter you've been talk about today. guest: thank you. caller: pretty much a long check list, i'm sure. i'll throw out as many as i can. the primary thing is the debate between the revivalists guest: survivalists. caller: whatever you want to call them. and now with so many people like rahm and others leaving and others coming in, do you see that maybe him coming back and getting exclusively a little more on the revivalist

point of now that he's lost the house, etc.? and if could you also address -- as someone that voted for him, first democratic president i've ever voted for, and still supporting vigorously to this day, i was utterly befuddled leading up to four months before the mid-term elections as to why did he not -- you made an excellent point just a moment ago about how it wasn't that he hasn't done anything, it's that he's done an astonishing amount in two years or less compared to as many presidents as i can remember back to 1980, perhaps earlier.

the places that a million jobs are saved just by not legislate g.m. go under -- host: talking about that p.r. campaign. guest: yes. it's interesting. he's done a huge amount. the basic assumption is the people would understand this stuff. they came to see how a lot of these things got mench the together. -- merged together. people thought that the recovery act was confused with the top bailouts, the wall streets. and that it self, was also confused with the carmakers' bailout. they've got to spend the next two years unpacking all of this stuff. because they have done this huge amount. and it didn't tell its own story. one of the problems they've had with the recovery act is that it did so much, they said politically -- and, again, -- politically it would have been much more sense dwroible break it up. you had tax cuts, infrastructure pieces of it. then you deal with the state budgets and teexers' jobs and

everything else. -- teachers' jobs and everything else. they couldn't do it like that because it would have taken too much time, or at least that's what their economic and political advice was at the time. in retrospect, it's hard to tell a single story when you've got everything lumped in there. now that the g.m. has had its successful public offering, part of the money has been -- tarp money has been substantially paid back. the carmakers aren track, at least in terms of obama, they're on track. there is a story. but they have to go out and do that. campaigning, revivalalist spirit, it's something that would naturally happen as they gear up for election time. but campaign does force them to tell the story about what they've done in a way that you just don't when you're governing, when you're trying to do deals with members of congress. if you are worried about how each vote will play -- if you are trying to get a small

circle of republicans instead of a broad section ofment in -- independent voters on your side, then you're very cautious about what you say. you don't want to exclude any options. i don't want to say something in case that triggers a bad response in the vote you're trying to get. that's the essential dynamic they've had. and moving into campaigning, talking to a broader base, especially independent voters, not just republican members of congress that allows them to tell the story much more vigorously in the revivalist sort of spirit. host: richard wolffe. let's go to faye in chicago, democratic caller. welcome. caller: thank you so much. i'm so glad to be on c-span. i've been trying forever. i'm so pleased that richard is on. i'm a little bit nervous. i can't believe that the survivalists -- revivalists -- i'm not a revivalist.

think -- i'm now a revivalist i think it was a natural progression because over the summer i wanted the health care debate to be over because i got so sick of hearing susan collins, chuck grassley, olympia snowe just keep going over and over and over. i just wanted to get it done. want it to be so over. and now at this juncture, i'm more of a revivalist in the regards that i want to see more of the essence of what the president campaigns on. as a support ofer and tremendous supporter of -- as a supporter of the president, i want to see if he can get back to those principles and put that out there. i think we'll be better off. guest: that's a great point. think everyone wanted health care over.

it was sort of like the pennsylvania primary. if they just did one more thing and just gave one more compromise, they'd reach their goal. but along the way every single compromise made it that much harder for them to cling ton what they stood for in the first place. it was one more deal after another deal with ben nelson in nebraska and louisiana with senator dran drew. -- landrieu. so it was a sort of desperate letterch to the finish line. en that killed people terms behalf it stood for, about what they could talk about. you know, it's interesting, people wanting him to get back to the reform, changed spirit of 2008. i don't think it's just a question for democrats wanting to be more popular here. here's a guy who campaigned saying that he was going to approach these problems, these massive problems the country faces, in an honest and grown-up way. when you come to tax cuts and the deficit, he's got an

opportunity there to say if we're going to have an honest discussion for people on the left and the right, then we've got to deal with everything. that's a real opportunity. one thing we all know, congress cannot actually deal with is a big debate in a grown-up way. look at how people reacted to the deficit pro polesals. social security, we can't touch that. he has an opportunity to say, come on, we've got to be real, honest and serious here. host: are there lessons learned that trying to work across party lines does not work for this white house? when you talk about their effort to try to bring some republicans onboard, getting shut down, things not quite work out, what is the takeaway? does that still leave room for compromise in working across the aisle? guest: it depends where you draw the line. they have worked extensively on the recovery act across party lines with republican governors. many of whom the vice president pointed in and out my book, many of whom are going to be rung for president. -- running for president.

so when you see governor barber out there against the president's economic plans and policies, you've got to remember that they've also been very happy to take recovery act, the administration's money, the people's money through the administration -- they've been taking that money to prop up their own budget. which republicans are you reaching out for? and what do independents think out of all of this? there's some interesting polling that show independents and democrats in general want to see compromise, want to see people reaching out across party lines. republicans in general don't. that's a very interesting dynamic. so see where the president comes out. if he's just trying to reach out to republicans and congress, i think we've got ample evidence to say he's not going to get anywhere in the next couple of years. but if he's saying to independent voters, i'd like some republican ideas, i embrace them, can i work with republicans when they work with me, that's a very different proposition. host: we'll cover the 2008 campaigns from the obama camp's

perspective. he's with "newsweek" and an msnbc commentator. we're talking about his new book, "revival." let's hear from jeff, republican in florida. good morning. caller: good morning. please allow know make a few points here with this gentleman. first and foremost, sir, the hope and change that obama talked about was never really clearly defined. during that time it was all about just get rid of bush. many republicans felt the same way. so he really did not define specifically what it is that hope and change was. it was pretty much a fixation of individuals' imagination. the main issue dealing with this country at that time was the economy. it was almost like having a car that needed a paint job, maybe new tires and all of a sudden the motor falls out and blows up on the car. that's what folks wanted him to deal with motor that blew up which was the economy and the housing market at the time. now, the tarp and the bailout and all of those different things were something that they did that does not impact the

people. the stock market could be at 15,000, the average person that's not -- does not partake in that. yeah, maybe perhaps retirement. so the president has done a lot of different things. but all the things did he was not things that needed to be done at the time. thank you. host: a response? guest: it's an interesting point. the economy was the central point in the general election. that's true. but this president talked about a number of different things. health care, foreign policy. it was a very long campaign. you couldn't get by 21 months by just talking about hope and change. how does it affect real people that the financial market didn't, in fact, continue its collapse? well, you know, a lot of banks collapsing even more than they had then would have affected the real economy much, much more than we even thought. so you take the stock market, the stock market doesn't directly affect jobs, but it does affect everyone's 401k's, everyone's employers because employers largely in the market in one way or another, whether

they are listed themselves or the trading listed kches. and the stock market has gone from a low of, what, 6,000, 7,000 in march of 2009 to about 11,000 now. that's a huge change. and it's a signal that confidence has come back at least in the financial market. if you don't have the financial market, if you don't have a financial sector, we don't have a functioning economy. so the expectations, quite rightly, are high in terms of where unemployment should come down. but in dealing with the economy, number one, he spent $800 billion on the recovery act that as i point out in "revival" is as much as president bush spent in iraq and afghanistan combined. fact that people think that it had no impact is it self, curious. it tells you how badly this white house, this president, this administration has spoken about its own record. but you can't spend $800 billion and have nothing to

show for it. there are teachers who have jobs. there's money that's gone into people's paychecks. again, come back to vice president biden who told me he's the guy who passed with selling the recovery act and managing it. he said people didn't know they were getting a tax cut. they thought they were getting a pay raise from their employer. if the vice president, the man tasked with selling this stuff says we did a terrible job of telling people what happened to this money, a third of that $800 billion was that tax cut that people didn't know where it was coming from, that's a giant mistake. host: can it be corrected? guest: they've got two years. host: as far as p.r. is it too late to rewrite the public perception of the stimulus? guest: it is extremely hard. can you tell a story through repetition is in the clearest model for them is george bush in 2004. there were no weapons of mass destruction in iraq. iraq was spiraling into a civil war. the economy was actually

slowing down. and yet they won a big victory in 2004. as an incumbent president, admittedly they had a weak opponent. who knows what opponent the president will face in 2012. but through discipline, through repetitions, through coming up -- even in a disastrous situation that iraq was in 2004, a sitting president managed to barrel through it. not easy. not easy at all. but can it be done? he's got two years to talk about health care and the economy. it's not going to be any different. host: let's go to ty in kentucky, independent caller. good morning. caller: good morning. thanks for taking my call. the part that i have to make and a question that i have is what i see what happened with this election in 2010, was that it seemed to me the political ross yes, sir now is fought and won over the television now. and a lot of people are getting their information or misinformation from the shows, the people who do not support the president or support the

president whether he's right or wrong. and me as an independent voter, that's where i got turned off. i'm not someone who gets my information from the television. i believe in the old-fashioned political process of nonging on my door, how is it affecting my local neighborhood? i live very close to cincinnati, ohio, so that major city's policies breed right over to my city. so i'm very active in both states' elections. but what i saw in the grassroots was what people needed and wanted. that's not what was presented through the media. so people who get their information solely from the media, they're not being informed properly. guest: that's why c-span's important. one thing again, back to 2004, people found that vorte contact, face-to-face contact, at the grassroots was really important. that was the skill of the 2010 campaign. in 2010 they found that in states where they had a

machine, democrats could actually help themselves. and many people in many districts didn't have that. so the door-to-door direct information is a very effective way for campaigns to operate. host: ty was just talking about the power of the media, these new shows, cable shows. you're a commentator on msnbc. how much do you think about that as you go in to work at msnbc and talk on the shows? there is this idea that a couple of callers have brought up now that it's a very powerful medium. and the message really affects people's view points. guest: it is powerful. there's no question. i try and deal with it by rooting my analysis on what i say in reporting. so that's one way you deal with it, to try and ground things. rather than saying, you know what, we're just going to have a competition to sort of enrage and inflame people if it's a race to the extremes, it's not helpful for anyone. it's not in keeping with what i want to do as a journalist or

what i think these cable networks should be doing either. having said that, i think the real influence is what goes over your shoulder here. what happens there in terms of what they're watching. that has been the big shift. they are focusing much more on these cable shows, and those debates, rather than a sort of broader audience. rather than even newspapers or anything else. things people congress used to care about has shifted over time so if their competition is to appear on those shows, i think you see the whole public debate shifting to the extreme that are more sensation over the approach. that's what's shocking. the people that get on cable tv over there now are of the most extreme voices. they used to be the least flngsal. but because of that projection on tv, they're becoming more influential. so i don't know that that's helpful to anyone to debate. host: let's hear from nelson, democratic caller in st. louis,

missouri. caller: good morning. thanks for taking my call. host: you're welcome. caller: first, let me ask you, who really does create jobs in america? when you have a national election, they blame the president. i've notice -- i've noticed in missouri people blame the democrats all the way down to the local politicians get blamed. another thing, john mccain had 58 million people vote for him where obama had 66 million i think the republicans did a better job of keeping their people engaged. i didn't hear a lot of people like yourself coming out over the last two years talking about some of the successes of the obama administration where you would see john mccain out almost every other month on those sunday tv shows. guest: i've been criticized for a lot but being quiet is not one of them. you make a serious point.

who creates jobs? it's clear, private employers create jobs. and one of the extraordinary things about this recovery is the big corporations are sitting on giant piles of cash. they're very cautious, still, about spending that money. i think this is a classic point in a recovery where there needs to be some extra confidence. that's why the stock market numbers are important, because there is a sign of confidence, of investors' confidence, and what these corporations are likely to do. if they see investors putting money in, the numbers going um, then they tend to feel freer about spending their own money. and how do they spend snn they buy equipment and they hire people. this is not unusual given the scale of the collapse, the recession, and the length of an expected recovery. but presidents do get blamed for unemployment just as they get disproportionate credit for low unemployment. that's just a fact of life.

you can't vote out c.e.o. you can vote out politicians. it's very interesting looking at this mid-term election because, yes, people voted out democrats, but the republican standing has also been extremely low. people are unhappy with politics across the board. they're also unhappy with employers across the board. but they can't do much about that. host: sticking with the economy for a moment, the director of the white house economic council, you paint him as a very divisive figure in the white house. guest: yeah. by the way, this is -- among my reporting of people in the economic team, the team that he was supposed to run. a very interesting dynamic there. he told the president, at least in his own account when i interviewed him for "revival," he said i'm not a good manager, if you're lookinging for a good manager i'm not your guy. but i can run an honest policy process. well, he turned out to be a bad manager. it's true. but he also, in the view of the people working with him, turned

out not to run an honest policy process. he wanted the job as treasury secretary. but, again, according to rahm emanuel, who i interviewed several times for this book -- tim geithner, the current treasury secretary, played hardball. geithner said i've got a good job as the head of the new york federal reserve. if i don't get treasury serget, i'm staying in new york. -- secretary, i'm staying in new york. and they felt at that time that they really needed both of these guys, that it would be reassuring for the markets, send a good signal to have people with experience. remember, whatever the debate now, at the time nobody knew where the bottom was, how many banks would collapse. so having confidence in these two people was very important. so geithner gets the job that smors wants. smors has a job that's ill suited for. and the tensions between the people on his steam extraordinary.

the turf wars got so petty, so intense, that people couldn't function anymore. that did directly impact -- we talked about the communications, what stories they could tell. how can you tell people what your combheck policy is -- economic policy is if your economic team doesn't agree? they couldn't agree on the volcker rule to limit the activity of the wall street firms because larry somers blocked it for one reason or another. he was deeply skeptical about lending to small businesses. he's been a roadblock along the way. and the fackshussness of that -- fractiousness of that debate has been remarkable it really does come down to the president, too. this was not a secret inside the white house it may have been a secret to the rest of us, but that's why i tell the story in "revival." host: let's hear from the republican in san diego. caller: hello mr. wolffe.

guest: hello. caller: how are you today? guest: i'm good, thank you. caller: i used to watch the fox news, but now i watch msnbc because fox news -- guest: congratulations. it's a good choice. caller: they distort the truth. guest: i agree. caller: my question is, why isn't the republican party getting onboard? they want -- [inaudible] the problem as i see, they say we're going to do this, that, this but when you come down to the last two years, they didn't do nothing. they're worrying about the election in 2012. people need jobs now. it's just like the three young guns. get in office and say we're going to do this, do this. all they want to do is say, no. no, no. guest: you know, it's going to

be an interesting dynamic watching that play out. expectations are vee high -- very high, especially for the grassroots, the republican level, that they can stop the spending, stop tax raises, you know, bring down the president. and, of course, in the broader election, especially independent voters, are looking to them to do something about the economy. if it gets, as we all expect to gridlock position very quickly, we'll see how the enthusiasm shapes up. they're going to have to make compromises. one of the first votes they're going to have to take is on raising the debt ceiling. there are a lot of grassroots, tea party folks who want a no vote on that. a no vote on that would send this country into a tailspin in terms of the financial market because it would suggest this country will debate on its debt. you know that really would make the last crisis meltdown look like the tea party. host: one last quick question. as you mentioned, you chronicle

a pert in the whide between when scott brown won election, through the signing of the health care bill so -- and then the diss, as you call it, the moment of victory with the health care bill. right now you've mentioned we're in another dip here. we're seeing the white house in another trying time. would what would be a sign to you that they are once again having a revival that the obama team is pulling back up? will it be getting legislation through congress, will it be polls among the american public? guest: polls don't mean a whole lot two years out from an election what really matters is can they reclaim that reformist spirit? and at this moment can the president do one of his signature moves, which is to call out the sort of political gimmicks? one of the ways he signaled he was a different kind of politician was to say to people through the election, you know, they want to talk about a gas tax holiday, it's a gimmick. it's not really going to affect the cost 6 gasoline -- of

gasoline very much. people are not being honest with you or straight with you. i'm the kind of the grown-up in the room here. i'm the one in the middle against these extremes. he has an opportunity to do that now so let's see how well he positions himself, how well he tells his own story. if he's just another washington politician, i'm frayed we're going to have four -- after 2006, 2008, and 2009, 2012 looks like it's going to be the same kind of thing. people are going to want more change. if he is the incumbent president s? and

promote the vitality of the constitution and the fundamental values it expresses.

individual rights and liberties, genuine equality, access to justice, democracy and it will fall. the case under discussion today is a challenge to the legal arizona workers act which imposes sanctions on employers who hire and statutes words unauthorized aliens. and the question poses is whether the state law is presented by federal immigration law. as such, the case of the delude to the possible court of another controversial arizona law the recently enacted sd 1070 which criminalizes the failure of non-citizens to carry immigration documentation and is currently the subject of litigation pending before the ninth circuit court of appeals. it seems appropriate therefore to mention today we released an issue brief on the constitutionality of sb 1070 for the three professors at the university of arizona and copies of the issue are available with the registration table or on the web site. to start off to the it's my pleasure to introduce the moderator of our program, neil

kinkopf pure neil teaches constitutional law, legislation and civil procedure georgia state university college of law which he also directed the center of state legislation and policy. he served as counselor to senate democrats during the impeachment trial of president clinton and was a special assistant in the department of justice's office of legal counsel, where his practice focus on issues of presidential power. we are also pleased that he co-chairs the issue grew when separation of powers and federalism all of which make him the moderator for today's discussion. please join me in welcoming neil. [applause] >> thank you, kara, for that. and i think what really makes me and at moderator for to this panel is i love preemption. i love teaching -- it makes the a lot of other things. [laughter] but when i teach the constitutional law i love to teach preemption. in some measure because it is a really hot issue in the constitutional law. and in some measure, and this is

why when i teach i teach me to last. it scrambles of the settled rooting interests in the constitutional law. by the end of the class of the liberal conservative divide is settled in the classroom on issues of division of power between the federal and state governments to decide is roughly conservative like the states and liberals like the federal government but with the hot issues that have been coming up recently and have been a staple of the court's docket over the last few years their rooting interests get upset because what's three often been happening is states have more progressive rules with respect to consumer protection with respect to business interest and so business interests seek to have federal law preempts state law so conservatives in those instances tend to like the federal law and liberals tend to like the state laws and celebrities all confused and the

degree to the constitutional law class i've found. so here to further scramble the matter and the rooting interests with a chamber of commerce which has kara indicated will be argued in a few weeks. it involves first federal law which is expressly exclusive and being expressly exclusive that would settle the matter. federal law is valid, it pre-empts state law if it means to be expressly exclusive problem is the federal law includes savings clause allows states to maintain licensing and similar law. arizona has said that articles of incorporation our license so if you violate federal law and arizona the licensing rule is you lose your articles of incorporation. it's a little more complicated than that but it is the business death penalty that the governor mentioned on assigning the law. and so the question is whether

the federal law pre-empts that. the state law also includes a requirement that businesses use the federal e-verify database to verify worker status, and several law makes the e-verify system voluntary so we have a question of whether that is pre-empted. the resolution of those issues could have important ramifications in two areas. one is in the area of federal preemption of business law, the area that has been hot and i think the next few years at least will remain hot on the supreme court docket. the other is state immigration law. over the last five or six years the states have enacted thousands of always related to immigration and the overall tenure of those police has been to make immigration law stricter, tight, more draconian on immigrants and people whose

citizenship status might be in question were to impose more exact enforcement regimes. and so whether or not those are pre-empted and sort of preeminently we might think of the arizona law as the 1070 the issue briefed about today. this case may have important ramifications in that area aspinall. so we have assembled a terrific panel to discuss these and more questions. i am not going to go through all of their qualifications because if i did, they would make my list quite pale, going to leave that as the one that's out there. we are going to pretend to be to begin with the professor visas and speed from drexel university who will wield a framework for addressing these preeminent issues negative we will turn to jennifer chang newell from the aclu who's going to talk about issues from the immigrant's

right perspective followed by sri srinivasan who wrote one of the amicus briefs in the case and who is calling to talk about as the amicus brief business interests at issue in these cases and finally we have david from the cato institute who's going to not talk about the state interest in these cases. anil? >> verso would like to thank the acs for inviting me to participate in this forum. let me start by giving an overview of the federal of the issue arising. the federal law has extensively regulated immigration for a very long time going back to the 1880s and increasingly over the 20th century developing a rather comprehensive regulatory scheme governing innovation and national depue yet until adoption of the immigration reform and control act in 1986, there was no federal provision

on the hiring of office voice immigrants. it came after a decade of public and congressional debate over the issue of the legal immigration and it marked a major policy shift by expanding federal immigration regulation into the interior of the country and physically into the private workplace and one reason that took so long is that in setting up the employer sanctions regime which will talk about in a minute congress sought to balance a number of different and in peking policy of objectives. on the one hand congress obviously sought to prevent employers from hiring unauthorized immigrants but on the other hand congress sought to minimize the burdens and disruptions for employers who after all were now being enlisted of leased by the federal government for the first time he essentially as immigration enforcement agents

in a sense. congress also sought to address another set of concerns that an overly severe or burden regime might lead to discrimination by employers against employees who appear foreign in some sense if that were easy or less burdensome for the employers to do that in fact going through the of verifying authorization. so it requires employers to examine documents and complete an online form for each employee to establish their

>> if it satisfies the federal definition of what licensing and other similar laws actually means, than those provisions would not be displaced no matter what arizona chooses to call them, and if they are not preempted, they might be appliedly preempted with the employer sanctions regime. what does the arizona law require? there's two sets of

requirements. first, it's a state law offense of knowingly or intentionally employing an unauthorized alien that purports to the definition under federal law of unauthorized alien, not the same thing as an individual who is unlawfully present and 9 elements of the prohibition of unauthorized aliens in order in an attempt not to prevent any conflict. the ways in which the law operates independently of federal law is what raised the preemptive issues at issue. the panel will talk about them as well. procedurally the law operates through state and local institutions without requiring a determination whether an employer has employed an unauthorized alien. in terms of the penalties, the

law authorizes the revocation of the employer's licenses within the savings clause, but what constitutes a license under arizona law, the statute uses a broad definition which is different from how other parts of arizona law use the term and how federal law uses the term, and including, for example, articles of incorporation, the law defines those as licenses, and arguably operates as a regulatory system more than as a licensing law. now, the lower courts have upheld this law against the preemption challenge, and the other panelists will talk to the details of that. a couple of issues to think about here is how do we actually characterize the arizona law? is it in fact an immigration law? is it a law regulating the workplace? is it a licensing law? they may be overlapping or

related or subtle, but in terms of how the preemption arguments play out in the supreme court, those characterizations might be relevant. there's other thoughts, but i'll leave those for a moment for the other panel. >> okay. thank you. >> hi, i just wanted to thank acs for inviting us here for the important issues. i was asked to address the immigrants rights perspective on this issue and why the 9th circuit got it wrong when they upheld the lawfulness of the arizona law. ..

that issue, the essentials question is whether a state can mandate e-verify when the federal law means participation in that program voluntarily. you know, we argue that conflict -- the mandate is being self evident to conflict with federal law on the ninth circuit didn't think so. we think the ninth circuit was wrong for many reasons including the statute, the relevant statutory provision said multiple times and lawyers have to have a choice and whether they want to enroll in e-verify, that e-verify is a voluntary program, voluntary and shlaes

are repeated throughout the relevant provision and in taking away that choice, arizona is negating what congress is trying to do. in addition i think it's relevant to think about as anil mentioned from mandating participation and e-verified. congress has -- there have been several proposals to mandate e-verify and congress and none of the proposals have yet passed or in other words congress has repeatedly declined to make it mandatory. and if you think of noted it's quite obvious. if every state or every state or locality did what arizona is trying to do, then congress's intent of making this program voluntary would be entirely

negated so that is what our argument is. ast has been mentioned, there are numerous problems with the e-verify system. non-citizens who are authorized to work into the united states are many, many times more likely to be erroneous to get an erroneous result from the system saying that they're not actually authorized and one of the main concerns here is discrimination against non-citizens, employers, and it's already been documented even under the federal employer sanctions regime that employers have a tendency to discriminate against non-citizen in the employment process the sanctions regime have caused the terrapin congressional studies and many other studies that have well-documented this issue. so moving to the other half of

the case, which is about whether the employer sanctions regime that arizona has established is either expressly or implied pre-empted, so that question would be quite simple if there were not the seventh word parenthetical because as has been mentioned eight pre-empts states from enacting or imposing civil or criminal sanctions on those who employee amount of resilience and then there's the part and to see that except for licensing or similar law and that has been the cause of a lot of consternation and that is the big question and it's a complicated question. what did congress really been? who we think the congress was thinking of the time is the following. at the time it was enacted and for several years before hand, so it was enacted in 1986 there

were numerous states that had formerly were contacting laws and they were licensing laws that licensed farm contractors, the regulated the fitness of the labor contractor to do business, they imposed requirements that the labor contractors had to meet to do business in the labor contractor. these laws often also included other kinds of the agricultural workers including forestry workers, and there were several steve laws at the time that expressly required that farm labor contractors refrain from hiring undocumented workers, and if they did so, the licenses would be sanctioned. so was the state of the law at the time when it was enacted,

and as the audience probably knows, at the time and today, farm labour is a context in which undocumented employment is a special concern, and what we think the converse was thinking of when they sit licensing or similar law is they were thinking of these farm labour contractor licensing laws they were not always called licensing laws, sometimes they were called registration laws and sometimes the end of forestry workers so that is why we think they were really talking about. getting back to the statute says, the statute says licensing or similar laws pumas we are thinking what does that mean here, what does that mean for us? as it has also been mentioned, the arizona law basically defines licensing in an extremely broad way. if it doesn't end the licensing scheme, it doesn't establish a

licensing scheme, it basically says all of these things that traditionally are not licensed as we are going to call licenses, articles and a corporation licenses and what that means is your existence as a business in the state of arizona we are now calling that a permission in a license and we can sanction you if you do certain things under this and we can in the existence of your business if we find that you employed, also employed unauthorized workers at some time. and our argument is you can't just take things that are not licensed and deem them to the licenses and then call it a licensing scheme. it is and what congress intended. at minimum, it has to be a bomb site licensing scheme and what a bonafide licensing scheme is a scheme that regulates the fitness of a business to a

particular thing. i see that i'm running out of time here so i guess i will just say a couple more things quickly the bottom line is stepping back a little bit about what arizona has done is arizona licensing scheme is it really fits within that parenthetical than the exception swallows the whole rule because any state can take anything and, with a license and say we are going to sanction your license therefore it's covered in the exception so i can basically have it any employer sanctions i wont even though law says you generally speaking states can't do that and to illustrate that quickly the state of south carolina actually did, they passed the law be in which they decided what they would do is they would in butte licenses.

but they did is they decided they would impute licenses to every employer in the state cities in the employ years in south carolina don't actually have an employment license they decided they are going to suddenly based on this law and hit a license to you and based on that sanction you if you employ of christ workers. if that fits within the exception the there's basically no limit to the principal and the entire preemption provision a self expressed preemption would be negated. i was also asked to talk about the implications of this case for cases like sd 1070 and i think i've run out of time so maybe i will leave that for -- >> thank you, jennie. >> thanks, neil and acs for putting on this panel and my fellow panelists. it's a pleasure to be here. also thanks to whoever made these brownies because they are really tasty. [laughter]

i am a partner at my years and become a brief on behalf of a consortium of business organizations. of course the chamber of commerce is the main party in this case, so we know the business interests have a strong stake in what happens in this case and we have supplemented that on behalf of other business organizations including state and local chambers and a variety of other business organizations, and i think one thing that's interesting about this case is one of the rare cases in which you get a coalition of forces on one side like a business organizations and then coupled with organizations like the one jennifer represents, this is not something you see every day. of course there's the competing perspectives and the goodwill of line that, but i argued in an immigration case last term and was on behalf of an individual had been deported and wanted to get back into the country and the chamber of commerce was nowhere to be found. understandably because they didn't have an interest and conversely we have been involved

in business cases where civil rights groups and immigration groups haven't been involved because they don't have an interest of this case of a confluence of circumstances that bring together that coalition and i think it is going to be interesting to see what role at any that has in the litigation because it is clear that you see this kind of coalition come together and it may be the justices who find themselves empathetic to different perspectives along the spectrum might come together in this case anyway their instincts might not ordinarily bring them together. ..

>> what you've seen in recent years is a real, i think, explosion in state and local efforts to weigh in in the immigration arena, and the employment arein in in particular directly at stake here, but in the immigration arena more generally, and it's the sort of patchwork resulting from that that gives business groups to file in a case like this and put meat on that bone, and immigration laws generally, according to this 2010 report, in 2005, there was 300 immigration related bills introduced in states and localities. in 2006, that downled to 570 bills, and in 2007, it tripled to over 1500 bills, and in 2008,

another 1300 bills, and in 2009, more than 1500 bills. these are bills introduced, not enacted, but you see the sort of activity we talk about in this arena that gives rise to these concern, and many were enacted, 30, 38, 240, 206, a en222 along the years. you see the activity in the arena. the extent of the employment arena particularly at stake here in the employment sphere, 244 unemployment bills introduced in 45 states in 2007. in 2008, 13 states enacted 19 more employer related immigration laws, and in 200912 states enacted 31 laws, and six other laws were vetoed. 24 is a real -- this is a real explosion activities that gave rise to this brief, and the concerns cut across both issues that have been raised so far.

with respect to the first half the case that deals not with the mandate to use the particular system, but the sanctions imposed on employers who hire unauthorized workers. the concern is really that the uniformity that is evidenced by the federal scheme is compromised if states and localities come together and impose a bunch of competing alliances. that is one set of important considerations at stake here, and the other stake of considerations at stake deals with the system of e-verify that jennifer described is a voluntary system. if you impose a mandate on businesses to use that system, it has its own set of burdens because there's startup costs and ongoing monitoring costs associated with that system. it's unlike the paper driven process mandated by federal law

where the burden of compliance is fairly minimal, and there are standards that come into play that make it much, much easier for employers and owners requirement, and puts the owners on the federal government to enforce them, where as the e-verify system puts a greater degree of burden on practices on businesses to come up with the computer systems necessary to comply, and those burdens are with respect to nationwide businesses, we have information in our brief just to add specifics to it about the burdens imposed on a nationwide business like wail mart given the -- walmart given the number of applications they get in a year, and they are quite substantial. one thing i think we can talk about if the time permits later on is how this case fits in to what neil identified earlier which is the broader scheme of business preemptive cases

because two terms ago you saw three very important decisions. last term, there were none in the preemption arena, and now you see three or four, so it will be interesting to see how this fits in with the others. perhaps we can get into that later. >> okay, great, thank you. >> thank you for having me and thank you all of you for the opportunity to speak here today. i'm here to present a minority report of sorts, but it's a very half hearted one. in this particular case, i think that the state is within its powers, and i think that the 9th circuit get it right, but all the policy concerns pushing the other direction. i just smazed my -- summarized by views as follows. i think they got it right, but

the i think the arizona law gets the policy wrong, however, and really it's not so much arizona's immigration policy, but our national immigration policy that's in dire need of an update, and to talk about some of the unexpected consequences and what i think are some of the things we don't talk about that we should. first, the 9th circuit got this correct. the clause saves arizona's statute. the -- as previously mentioned, it allows licensing or similar statutes. that's a very, very broad category, and business licensing is an area traditionally occupied by the states. i think that language from the locke decision in 2000 will basically give the tie to the state, so where there's an assumption that the historic police powers of the states were not to be superseded by the act

unless it was a clear purpose of congress. i think where we have a mixed record, i think it's a vague part of the statute and mixed record on what exactly did congress intend? i think the tie is going to go to arizona, and use of the federal system as opposed to a state level immigration registry clearly preprepreempted. there's the good faith compliance provision of the law and the licensing situation as opposed to the narrow one in the brief is the essential reading for what is clearly established as congress' intent. i think that's more of the fault of the historical record than anything else. i think the presumption towards state in this case carries over to where arizona whether they make e-verify mandatory or not,

they could, but they do not do so, so that's the only time i want to spend defending arizona's case in this. but, the second, i think arizona, the law, gives us the wrong policy outcome, and i think that's true not just with arizona's case, but at the national level. we are in need of an update, and i think a larger temporary worker visa program really is where we have to move the public debate toward, and a lot of this is on a lot of false assumptions. we're not economically weakened by having immigrant workers in the country. my colleague at cato has written a book "mad about trade" that makes the case that the united states economy is strengthed and not weakened by a free of exchange not just of goods, but of laborment i think that the public has business statistics that will make that case more

effectively, and the socials driving a lot of conservative furor based on myth that the claim that imgrants equal violent crime, and while there's been instances, there was a rancher killed by an illegal immigrant in march that was a rally cry of 1070, but the statistics don't show this is a dangerous bunch of people who want to do anything beside come and get a job. in fact, the people of arizona are actuallily less likely to be victims of crimes than they have been for the last four decades, and according to the department of justice figures, the violent crime rate in 2008 was the lowest since 1971 and the property crime rate was the lowest since 1966, so imgrants remain a more a low abiding citizens with regard to those crimes than those who reside

here legally. yes, phoenix has a crime rate with any urban center in america, but it's not out of proportion from similarly sized cities in the country, and detroit, a city not known for being a mag innocent for illegal imgrants, has a crime rate three times that of phoenix, so i think other social factors drive crime and not immigration. third, i want to touch on the up expected consequences of our current immigration policies. now, i think the best thing coming out of this lit cation is that -- litigation is that enough people are unhappy with the litigation that we have actually have a real comprehensive move towards immigration reform at the federal level. i think that debate includes fb1070. so, arizona understandably frustrated by the lack of federal process in changing federal immigration laws passed

laws that in some respects went too far. this needs to make legislation a priority and not a electoral weapon. we need to secure the border and increase the law, but it's like revising our drug laws after we won the drug war that we cleaned up the supply for drugs. that's cry city. there's consequences of people affected by it in the rule of law that it's time to rethink the policy. the obama administration has been a disappointment on this point. reforming our drug laws may help immigration to the extent it cuts the economic legs out from the cartels in mexico, and finally what i deal with with immigration law is the national security angle of this. i bring this up because it's a corner i work on and this is

foreign terrorism and the market to facilitate this. the routes created and maintained by drug administration policies are a threat to the terrorism context. if i was a foreign terrorist and didn't want to go through officials to immigrate, my task is easier by the market for border crossing capability. the economic incentives are now so strongly encouraging north and south infiltration, that the minisubmarines are disposable. they don't even drive them back anymore. this is what happens when markets are driven under ground to have a class of contraband, this is a human contraband. i think the u.s. policy of ignoring the basic economics at work on our borders has actually made us less safe and not more. with that, i'll close and leave it to the questions. >> thank you, david. first, do any of you want to

respond to the comments of the others? anything anybody said give each other heart burn? okay. good. only the brownies are giving heart burn i guess. i had a question before turning it over to the audience. my question is, i wonder -- you've each done a nice job of doing what you were supposed to do so as mon ray tore i'm very pleased and in presenting your own perspective or not merits of the case. i'm curious why the supreme court took it? it's not an obvious circuit split. they didn't strike a statute down and upheld it, and the panel of the 9th circuit has democratic and republican appointees, it's not something we expect the supreme court to watch closely, so the supreme court took the case. it might be that it thinks the -9dth circuit is obviously wrong, but it's not obviously

wrong having read it. i mean, there's arguments to be made, but is there a trap door here somewhere? if so, what is it? what is the court thinking and why did they grant cert in this case? >> well, i think one thing to keep in mind in terms of just wrong procedure is that this case was granted after the court asked for the views of the solicitor general, and the one tried and true strategy to get a court interested in a case is to try to pitch the case in a way that they will ask the government for its views because the statistics are quite clear. in the cases in which the court asked the government for its views and the government chimes in and recommends the court takes the case, the court ordinarily takes the case. this is one where i think the battle was largely won by purr sueding the court to ask the government for its views, and when the government weighed in, and the government said take the case, at that point, the court

is hard pressed to deny it. i thought it was interesting what the government did in terms of the cert recommendation was that the government cert recommendation arose around the same time, and i can't remember the exact sequence of events although other people probably would. around the same time on litigation on the other arizona law commenced, and there was three questions presented in this case by the face of the petition, and i think it's important for the preemption to keep distengt expressed preemption and applied preemption. this law preemptions and defines the subject matter to preemption. applied preseemings says we don't care what is says, but as an inherent matter allowing the state common lawsuits to survive conflicts with the federal scheme, even though nothing tells us it has to be so.

this case before the court now and the broader case before the 9th circuit is that in this one, there's an expressed preemption claim and an applied preemption claim. around the same time the government filed suit against 1070 that is a applied preemption case, that they take it only on the argument, and it didn't recommend, in fact, it recommended that the court not take the case on applied preemption, and i don't know why that happened, nobody does, but it's interesting that at the same time that litigating implied preemption on 1070, they recommended the court not take this case. now, the court went ahead and did it, it took the case. one thing that's interesting to see in terms of gauging what the implication of this case will be for the other immigration debate going on is whether the court touches the applied preemption issue. if if does, it dpil --

fills up the preemption in 1070. it will have lesser implications for the other lit cation. it's not to say it won't have any, but the overlap will be less significant than it otherwise might be. >> okay. >> one thing to add to that, i may be recalling incorrectly, by i think the solicitor general because the applied issues on the two different halfs of the statute, and i recall that at least part of what they opposed on the cert was the e-verify issue, and on that issue the court unless they decide it's granted on that issue, the court can't -- there is no expressed preemption, and the court has to address applied preemption with with respect to that part of the

arizona law. i think the federal government may have had slightly different competing situations with respect to something that could have driven why they recommended against taking cert on that particular issue. >> thank you. we have any questions from the audience? yeah? back there. >> thank you very much. i have two questions. one for ms. new and the other for mr. rickers. on what e-system you talked about, this may be wrong, but there's not a clear enforcement mechanism for the e-verify system, it's and even if there is a system that a lot of employers # are not using e-verify in arizona and they are not prosecutorred in any way. does this make it mandatory in

name only. the law tries to tell employers that it is mandatory, and does that concern you given the arguments you said with licensing and licensing is mandatory and not truly mandatory, and i appreciated your comments about the misperceptions about illegal imgrants in terms of the criminal acts, and i think there's similar speculation on both sides about health care costs or education costs, and i'm curious about your theories why there's so much speculation on empirical questions that could be easily resolved and camps say they are increasing violent crime and why this could be seemingly statistics. >> on the question about the e-verify mandate, i think there has been some lack of clarity

about exactly what the enforcement mechanism is. i'm not aware there has been any actual prosecution of any employer at this point, but i do -- my understanding is that there has been some enforcement activity in the form of investigations and i don't know if raid is the proper term, but there have been employers who have had their premise investigated, let's use the term investigated. you know, even that kind of enforcement activity presumably can, you know, create an incentive for employers to comply that there's no dispute that on the face of the law, every employer in the state of arizona is required to enroll in e-verify. >> wrpt to the statistics and

where i guess do the bad numbers come from in public debate, i guess the motivation is political gain. there's people getting into office running on campaigns, you know, that sort of have it as their bread and butter, those claims. i know it gets tossed around how much illegal immigrants cost or don't cost society. i think actually a lot of that is driven not in narrative but in fats. when you have an underground labor department property tax and state taxes deal with this better than progressive income taxes. you have to pay your rent to somebody so it gets passed on via the landlord where the income taxes don't deal with that. i think texas because they have property driven tax base, it's better than california, not that it makes the debate any more sense sensible.

>> yeah, right here. >> i'm mark from press associates, a news service. a couple questions. first of all, talk more about the wide ranging coalition that has cited with the -- sided with the chamber of comes with the arizona law, everybody from the chamber of commerce and the aclu to the service employees to the yet the immigrants rights projects to, you know, you name it, how they call came to the, and what particular points do they agree on. second, and this was luning through my mind as you were giving your presentations. does the 1986 act expressly have a prohibition against states going beyond its boundaries. there are other labor laws, and we can call this is labor law since employers are barred from

hiring undocumented workers, that allows states to use the federal laws, things like fair labor standards agent. does this one say that this is a floor and the states could go beyond this or not? >> well, on the question of how all these groups came together, you know, i think as has been acknowledged, there's some strange fellows here. my recollection is what initially happened was, you north korea the im-- you know, the immigrants civil rights group including the aclu, the immigration law center, and i can't list them all, but the groups that originally sued the civil rights and immigrants rights and religious rights sued together in one lawsuit, and i hope i'm remembering this correct, and the chamber of

commerce, i believe the business groups sued in a separate lawsuit, and those lawsuits were consolidated, and so what you really have before the court now is two or, i think it's two, but possibly more, consolidated lawsuits, and the chamber of commerce and carter phillips is now the counsel of record for all -- well, is arguing the case, and we wrote our brief together. we submitted, you know, a single brief of over round of briefing. that sort of how it all happened. i don't know if that answers your question. >> can you talk about their points of commerce? are they in agreement on everything or disagreements? >> i think, i mean, just to give a couple of examples, i think, you know, i think everyone is in agreement that this law is a bad

law, that it's, you know, preempted, that there is a huge problem with having a patchwork of, you know, 50 or 100,000 different laws across every city and state in the country, and that's a problem that, you know, both immigrants rights groups and business groups are equally concerned about. i think one of the areas of tension at least from the immigrants right perspective is, you know, we talk about immigrants and unauthorized workers who are noncitizens facing discrimination, and you know, the people causing that discrimination, you know, in the context are businesses and employers, and so that's always a little bit tricky to talk about because, you know, i think that the business per sperktive is, you know, we don't discriminate, and the immigrants rights perspective is, but, you know, our constituency does face discrimination. that is one example of an area of tension. >> this context going babe to

the original enactment of the 186 law. at that time the employer groups were concerned about the burdens that employer sanctions would have and immigrants rights groups were worried about the intention of discrimination in particular. at that time organized labor and some community groups were on the other side of the employer sanctions debate and concerned about the effects that imgrant workers would have on wages for u.s. based workers. those groups have shifted their position a great deal. one of the interesting things to see coming out of this case in congress is now the con stin went sighs -- con stin went sighs are more in favor, and at the same time in the congress debates, there really isn't any significant proposal to repeal employer

sanctions even though there's questions about how well it worked. on the question of the preemption clause, the text the clause in the statutes says that the federal law preempts any state or local law imposing criminal sanctions upon those who employee or recruit unauthorized ail aliens except for the paraphernalia thet call that jennifer gave with licensing of similar laws. there's not a lot of room for -- i mean, the argt here that the -- argument here that arizona is making is this is mirroring federal lawing a federal definition, it's basically a mirrored provision, so how strong this clause is whether it leaves room for tougher penltds at the -- penalties at the state level is one of the questions here in addition to the question how much room does the savings

clause leave? >> real quickly i wanted to mention one another other key counsel groups representing plaintiffs on the civil rights side is maldf. >> one of the other groups that bears emphasizing is the united states. the fact that the united states comes on one side of the case matters a great deal especially with implied preemption cases. what sort of impact does it have on federal enforcement? when the federal government comes in and says one thing, that carries a lot of weight, and so you have all the groups that the question referred to plus the united states on one side which seems significant. >> i guess a couple of just things to add to that that because of the federal government was involved through the solicitor general office and justice kagan refused herself in this case, and another quick thing i was going to mention is

now leaving my mind, so i will not mention it. . [laughter] >> right here. >> i'm just wondering how you think things height turn out if the state goes in the other direction? obviously it's the antiimmigrant direction now, but what if a state passes a law that says states may not answer e-verify or a law that says we're going to offer free food to people who came here illegally, and i know they came here illegally, what would happen then? >> i guess one thing in response to that is that state passed a law saying employers cannot participate in e-verify at least until the error rate in e-verify falls below a certain level, and that was the state of illinois, and what happened in that situation, that law 1 no longer in effect because it's

invalidated under the exact same, you know, preemption arguments or closely similar preemption arguments at issue in this case, and the bush administration sued the state of illinois in that case. i think in general with proimmigrant laws, it really depends on what the context is. you know, i think your question really highlights that preemption that leaves the civil rights perspective is a neutral legal doctrine. you know, whether it helps our had hurts depends on if federal law is good on the issues you're concerned about or whether state law is better on the issues you're concerned about. there is, there is a very, very fine line that we walk as immigrants and at the aclu between proimmigrant policies we don't think are preeveryoned and

antiimmigrant policies that are in court every day saying they are preempted. municipal ids an example and various cities in the country enacted mew municipal id laws available to residents of that city regardless of immigration status and groups like the immigration reform law institute sued over laws like that, and the aclu helped defend those laws in court. >> yeah, in the back. >> hi, i was just wondering what do you think that congress had in mind when they drafted the savings clause of licensing? what made the legislative history or law or whatnot, what

type of legislations would fall under that category? >> i think i mentioned earlier what we think congress really had in mind really was a quite narrow situation involving farm labor contractors, and the legislative history there is not a lot of legislative history on this issue unfortunately, but the little that there is does support that view, our view. this -- the expressed preseemings provision i believe mentioned that this was debated on for over a decade. there was hearings and the legislative record on irca in general is huge, and the expressed preemption provision was in there for quite some time before that paraphernalia --

par renne thet call appeared. it was really late in the game, and there was really not a lot of information out there about, you know, about why that par ran thet call was there, and what was in there does support our position. i don't know if others want to comment on that. >> i would just say that it's like a three sentence chunk of a clause that jennifer was talking about, and it's unclear the way the sentence is structured whether the form laws are supposed to be the proper scope of what that's applying to or whether they are just an example or just to do business more broader, generally within the state so it's hard discerning exactly what they were trying to get at. >> right. i should at at most we think you have to be talking about a

genuine bone fied licensing scheme, and that means a law that regulates a business to conduct a certain kind of activity. >> yeah, right here. >> i can speak loud. >> it's recording. >> okay. several of you have touched on this, and i'd like to go back on this and hear more about what effect you think this has on the 1070 litigation or what correlation you think there is between the two of them? >> i'm happy to answer first. i don't know if others have thoughts on this. i think, you know, one thing i should mention before i answer your question about 1007 is there is another case and that's he has lton out of the third circuit involving an employment provision that's very similar to the one at issue in this case, and then is also involves a

housing provision that prohibits landlords from renting to undocumented immigrants essentially. the third circuit invalidated both halfs of that law, the housing and employment piece and they reached the direct opposite conclusion that the 9th circuit reached and the deadline for cert on that case may be the day of argument nation. -- in this case. it will be interesting to see what happens. i think the defendants expect they will file a cert petition, and what happens after that nobody knows, but the employment issue obviously is going to be controlled by what happens in this case, but the housing issue in that case is there's numerous other laws in the country at the state and local level, mostly the local levels that are similar to the housing piece. that's another type of antiimmigrant law that's out there, and then there's sb1070, that is another kind of law, but

that one deals more with the question whether into what extent state and local law enforcement authorities can directly enforce immigration law sort of independently of, you know, the permission of or the specific program for cooperation with the federal government. that's sort of the big picture question in the sb1070 case. i think, you know, i think that the strict lawyer answer is the legal questions in this case are very different from the legal questions in the sb1070 case even though they both generally involve preemption. you know, the court could say something about preemption doctrine to impact the 1070 case, and i think it was mentioned earlier that 1070 is pending in the 9th circuit. they just had argument in that case a bit ago, and the case that's pending is actually a suit filed by the united states. that's the case pending in the

9th circuit right now. you know, the court could say something about preemption doctrine to impact 1070. the court could say something more generally that would serve as a great deterrent for states or an inacceptabilityive for -- incentive for states to enact these laws in general. i think that would be the closest things that would impact 1070 other than something that has to do with preemption doctrine. i think it's entirely possible that the court may not say, you know, the court may be pretty harmonious on what it says, and that would not really impact 1070 that much because the question in 10 70 is not about, you know, irca or the immigration reform and control act, it generally has nothing to do with employment of unauthorized workers and the question is what can arizona state and local police do when

interacting with immigrants and can they enforce civil immigration laws. >> i think upon the distinction earlier on preseemings and implied preemption. if this is expressed preemption, then its reach is limited because it will focus on the employment based laws. if the court resolves this case on an implied preemption ground, there could be other implications for all of these other areas in a more significant way. >> which will determine what way they roll. my sense is because the party focused first and foremost on what the preemption clause means and what licensing me, if they strike the law down under expressed preemption ground, they don't need to go on to implied preseemings. if they don't, then you have to address the implied preemption part of it in which case it could have greater spill over in

consequences. >> any questions? no. well, with that then -- oh, sorry, one more. >> i'm greg store with bloomberg news. i want to clarify what you were saying there. i mean, i know that the implied argument is different than the two provisions. are you suggesting that if the court gives to imply preemption on the employer sanctions issue, that's where it's really big, but a ruling, they have to get to implied preemption on e-verify, that is likely to have less impact on 1070 and other laws? >> yeah, exactly. jennifer made that clarification earlier. there's two preemptive issues in the case. there's the employer sanctions part of it which is salient if the court doesn't strike it down, and there's a question about e-verify which as you say

is only an implied preemption challenge. the point we're making is that the implied preemption argument is the one that could have salience for the 1070 debate. e-verify case the court will get to it, but the nature of it is it is bound up with e-verify, and it's likely that would have spill over than a implied solution on the employer's part of it. >> there it does depend a little bit -- the nature of the claim is essentially that congress set up a voluntary program, and the state is making it mandatory. it also could be -- if it comes out the way the 9th circuit did, it will depend on how the court regards the policy objectives that underlie federal law. the court wants to say that the congress' objecteddives are to, you know, expand enforcement in

a dramatic way, that could have consequences, but not to the same extent on the other claim. >> okay, great, well then, join me in thanking our panel. [applause] and class is dismissed. [laughter] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations]