>> op mix they will get oil drilling in the arctic national wildlife refuge. 1.5 million acres of protected land on alaska's's northern coast. washington congressman doc hastings chairman of the house natural resources committee alaska congressman don young have introduced a bill to permit oil exploration in

anwr. this hearing is just over an hour. >> the committee will come back [inaud to order. the chair notes the presence of a quorum which under rule three is to members. the committee meets again to sad resume its september 21st 2011 hearing on anwr jobs energy and deficit reduction. under the committee ruled for f1 ill go straight forward to the, witness' testimony is and we thi have that panel hour distinguished list of witnesses mr. douglas brinkley of history at rice university and of themsa steering committee. mr. eric pica and ms. ormanfrie pagel policynd director for earthworks. for the record of our first hearing we heard from the two

panels, and those panelsded concluded governor parnell,mur senator mark begich from alaska,, boozman don young from alaska, mr. fenton rex furred, tim sharp of - 42 in alaska i anink it was fairbanks.fairb kerry called who is an ice road trucker. david jenkins, a republican for anvironmental protection and jean karpinski from the league of conservation voters.r for those of you that have not le had thage privilege or the d opportunity, which a way you want to say it towh testify, yor full statement will appear in the record, and i would ask your to summarize your remarks and the lights in front of you when you start the green light comesf on that means you have five minutes. when the yellow light comes on

it means you are down to au minute and then when the red yo light comeurs on, that means you wore in trouble. ro but i'd ask you to keep youru t remarks as close as you possibly can to that and once again your full statement will appear inwip the record. so mr. brinkley, we will startc. with you and you are recognizedt for five minutes. >> to a microphone, please. >> press the button.nderl miami historian writing now andg multiple volume history of the american conservation movement. my first volume was the wilderness warrior on roosevelt and gifford and others at thete beginning oft the 20th century.h my second volume is out now c called the quiet world savinget alaskas wilderness king about 1879 to 1960 so i recently spen

quite a bit of time and alaska including going to the arctictht refuge camping, and i might addf that i was also the director of the eisenhower center, and we would collect world war ii orall history of our veterans i've written on the battles --n working on the marines etc.. my father served in the curry i the war as a ski trooper in al alaska and i am very glad to se mr. udall behind me, one of the great figures, congressional figures in american history onge wilsderness in alaska's protection. i was hoping to get to meet to e mr. young, but i don't think he's here right now. he is thereby the door, by the exit time and mo udall is behind me because mo udall had the right idea to protect our alaska as to dwight eisenhower.

the arctic was saved by ike 50 years ago. he was not a son of her great precedents per se it is a fiscal conservative. he pushed for alaska statehood very briefly because that red state in the first two senators were democrats. i went forward and not in the arctic refuge for creative at fairbanks daily minor for the arctic refuge. it's become eisenhower's great reserved. which is celebrated the 50th anniversary of the arctic and it is like yellowstone super great smoky mountain rebate then, one of the most treasure and landscapes in the united states. i am here and the reason i threw it today if my family three kids back in austin, texas. i came here to propose that these kind of eating properly to

start. i think where to point out that president bush nominates two use the act of 1906 at the powerless without you so effectively to see the grand canyon from congressional people who wanted to minotaur is a copper and put the coastal plain, what is called turnouts here, the biological heart of the refuge from the great polar bear area and a key cornerstone of our ecosystem of america's arctic coal alaska and create an eisenhower national monument and have an executive order. i suggest we bypassed congress on this as it is done consistently. in fact, george w. bush to create the largest national in hawaii executive power. we live in a time of climate change. the arctic refuge is the home of

our charismatic animal, the polar better. it's also a place that people get them solis in this noisy, hyper industrialized world. how do you put a price tag on solitude? for thought at this moment in time in 2011 that we look at the reserve and talk about opening up to -- oil companies and british oil companies, there are people right now trying to buy uranium under the grand canyon. this seems to be backwards. we have to move forward. i grew up for a long while in new orleans. petroleum dollars are important. we need to be using the gulf of mexico is an industrial zone that we are. but we have to have treasured landscapes in cases like chesapeake in my opinion and the alaska have earned the designation of being a fanatic with an american conservation is. eisenhower not only save the

earth take refuge 50 years ago, but also as the person in charge of demilitarizing and not having antarctica developed. why do we want to call the eisenhower national monument in the coastal plain is the country finally do something for eisenhower and sunday just highway signs and parkway center would be a fitting monument. i could anchor a generous and eisenhower sat to, but the role of the u.s. army played in alaska's history of world war ii and the current u.s. troops and their incredible role the federal government played in alaska, our countries with theodore roosevelt in the badlands. we should have an eisenhower monument in the arctic. >> thank you for your testimony. next time please to recognize their agnes james. you're recognized for five

minutes. >> i'm honored to think on behalf of this committee from this nation, which is gwich'in nation and i feel honored to be here. and this is my second language so addressed to you back to english. i speak gwich'in in english as a separate language. [speaking in native tongue] [speaking in native tongue]

i said we came a long ways. we still have a long ways to go and the elders -- we had the authors that cannot be here today on behalf of the children were my people have been traveling all over the country and trying to tell a story about a special place in the world, which is a sacred place where the life begins and we do that for a future generation. back in 1998, it is aligned to our nation, there is going to be a development of gas and oil and the coastal plain of the arctic national wildlife refuge. the elders of the nation called

it gwich'in gathered outside his hand. they came together because that's what they did before and they haven't got back together 450 years because there was a year between the u.s. canadian border. and when i got there, there was very weary head tilted e. here just about as oracle i.t. has about as, but it's 15 chiefs on 15% villages came up with a resolution and said the only way the world will know and this is in black and white poster passé revolution toupees the national refuge in the first case of the

porcupine caribou live life. it was a hard decision for a time because i will pray for a lot of people in the interest to. but they have to make that decision. and they also note that it cannot do by themselves decision. and they also noted that cannot do that by themselves decision. and they also noted that cannot do that by themselves save a few two directions to do in a good way and teach the world is good way why we say oil and gas development. even then, this part of the conversation that went on. the way of life of the caribou is our way of life, just like the buffalo is to the plains

indians. it is our song. it is our dance. it is our story. even today, 75% of our diet is wild meat, which is made up of baby caribou with small animals and birds and ducks. we call that place out there the coastal plain the arctic national wildlife rescue, a secret place where life to begin. and for that reason under the customary and traditional abuses at the porcupine caribou we trapped international porcupine river caribou commission agreement, so that is -- to ask

him that it a human right. we believed that we were put there by god to take care of that part of the world. that is our responsibility as gwich'in people. and we didn't come from anywhere. we are not going anywhere. climate change is real and alaska and we have to make this permanent protection for a future generation. thank you very much for listening to me. >> thank you for my testimony. >> i recognize mr. erich pica. i hope i said that correctly. president of the friends of the earth. >> thank you, chairman hastings, ranking member marky and members of the committee. i appreciate the opportunity to testify today.

i mean is erich pica and friends country and president of the friends of the united states coming national nonprofit organization member of friends earth international, which is the largest federation of grassroots environmental organizations with number groups in 76 countries. and i have authored or written multiple reports on tax and environmental issues, including our grievance report. the joint committee -- the joint select committee on deficit reduction has been passed with coming up with $1.5 trillion in budget savings on top of the $900 billion of cuts that have been made this year. while i believe the super committee process is deeply flawed, natural resource committee has the opportunity to do something positive for the environment and taxpayers. instead of facing the challenge head-on, i believe the committee

is myopically focusing on increased drilling in the arctic national wildlife refuge with the hopes and promises of increasing federal revenues. from a federal revenue side of the equation, drilling in the arctic is largely state dave, largely equivalent. this is either subprime mortgage or dare i say the creek that. the congressional research service estimates that revenue is simply unrealistic. the $191 billion over 30 years projection assumes a 50/50 cost split between the state and federal government. current law says that 90% of that goes to alaska and 10% goes to the federal government. crs also sent a 33% tax rate for oil and gas come means. according to citizens for tax justice and the companies he looked back, nobody paid that

way. in fact, exxonmobil with $9.9 billion in pretax profits only paid .4% tax rate over the last two years. finally, the estimate is over 20 years, which begins in 20 years, which is highly speculative. a better bet is simply have been existing on gas tax giveaways, which would save taxpayers over $300 billion in the same period. without damaging the art date. other tax breaks and tax credits fall outside of the jurisdiction, increasing royalties followed in the committee's jurisdiction. submitted legislation to the super committee to fix a rookie creek oil and gas in the gulf of mexico could raise more than $53 billion. simply raising royalty rates and taxes on oil companies could raise an additional tens of billions of dollars. the u.s. currently lags behind countries like norway, china, australia and nigeria in capturing taxpayer revenue for

the resources -- oil and gas resources. but this committee's jurisdiction is not limited to oil and gas resources. as the 272 mining law for which more will testify. this is 140-year-old bob that allows corporations to take minerals for free off of publicly and, gold, silver, copper, some of our most valuable resources. the committee can also in the $100 million or less in the program by an in the programmer simply charging with states and other private ranchers do, which is a fair market value for grazing. and finally, we still pay for money-losing timber sales. to say the from or evaluating natural resources in getting federal government's fair share are just the tip of the iceberg. this august, friends of the year is a lot of taxpayers sense, public citizen and the heritage institute and libertarian organization released the green

scissors 2011 report, which identifies $380 billion in savings over the next five years. i want to commend congressman markey for his legislation introduced yesterday for taking a sum of these subjects. and in incentives that are destroying our environment is an important step this committee can make it a great contribution to the super committee. these are not the root problems, though. we're problems towards environmental destruction occurring on a public land is the fact that our government simply has given away resources to corporations to do with what they please. this has to end the super committee can do something about this is a natural resource committee. thank you and i welcome any countries that come along. >> thank you for your testimony must we will go to ms. laura pagel. is that correct? policy director at. turning your mac or phone.

>> thank you midshipman hankey and members of the committee for the option to speak about the importance of ensuring that mining companies pay their fair share to reduce the deficit and create jobs. folks of the national conservation organization dedicated to protecting communities and environment from the effects of mineral development here in the u.s. and internationally. these are direct quotes from the 2010th annual report of the top five hard rock mining companies. record underlying earnings, record cash flow, record revenue, record financial results. the best financial results in our company's history. right now we are subsidizing record-breaking profits and allowing the lucrative well-established industries to the basic taxpayer to millions of dollars while externalizing environmental costs. the antiquated 72 mining that the circumvention take minerals

from publicly for free with no royalty paid to the taxpayer. unlike the core oil and gas industry that pay a royalty, gold, copper, silver, uranium are taken from other lands by both foreign and domestic tiny companies with a return to the federal country. really a full refund of the 1872 mining my is needed to protect taxpayers in the environment. this reform should include harry turned to taxpayer is operating at reclamation standards and ability to balance with other uses. companies should be required to pay what other was tracked to pay cut 12.5% royalty, which is an the legislation that mr. markey introduced recently. it would generate about $300 million a year. in addition to free minerals, mining companies receive additional subsidy called the percentage depletion allowance,

which allows foreign and domestic companies to deduct their corporate income taxes six percentage of their specific income. for companies that mine on public lands, this is a double subsidy because minerals were purchased to begin with. so minerals taken for free receive an additional tax deduction on that. the depletion allowance is an exceptional tax break for u.s. mineral producers and industry has something similar and it's beyond what is granted to private industries. repealing for hydride mining would save the taxpayer almost $800 million a year. we also support at reclamation fee on all hard rock climbing. we must find a way to begin a tremendous task of cleaning up the hundreds of thousands of mind that but for the western united states. but the 50 billion shot price tag for cleanup and 40% of the headwaters of western watersheds polluted mine waste, dedicated

source of funding is long overdue. a $209 reclamation fee similar to the one that is in mr. markey's legislation, h.r. 3446 what cleanup minds and also create at least 13,000 jobs. a steady stream of funding will allow us also to stop spending money generated by a call industry to cleanup the mess of the hard rock mining industry makes him a saving taxpayers an additional hundred million dollars a year. unfortunately abandoned mines are not the only liability held by u.s. taxpayers in the mining industry to existing mines are likely to produce even more polluted streams and scarred lands and billions of dollars in inadequate financial assurances have been identified. professional water pollution is one of the most serious consequences of large-scale industrial operations in one of the most costly post closure expenditures. the problem is exacerbated by two loopholes to allow mining

companies directly into streams, wetlands and lakes. by closing loopholes they can prevent long-term pollution problems. this coupled with affirming the way assurances are calculated, we ensure mining companies pay for the cost of doing business and american taxpayers do not. it is past time for taxpayers to stop directly subsidizing multibillion dollar's mining companies with royal free mining and massive tax breaks. we need to stop the indirect financing of these companies by allowing -- that allow them to waste environmental costs of extraction onto taxpayers and communities. american taxpayers and communities with pollution issues each day deserve better. free minerals, subsidies, loopholes from environmental laws have created an unsustainable situation in this country. it's time to repurpose billions of dollars and put that money towards deficit reduction, job

creation and cleaning up our nation's polluted land and waters. thank you. >> thank you for your testimony. this pagel, i want to take this opportunity to clarify the topic of the hearing for you and the public who may be watching or listening to the broadcast of this hearing. our invitation to you another witnesses indicated the topic of the hearing and i quote, and more jobs, energy and deficit reduction, end quote. the other testimony we have received albeit some more than others, at least -- i could never say it, related to the topic at hand. however, other than the hatter, i know your testimony doesn't even mention and why a single time. at best a question when the pertinence of doing testimony of the subject matter this hearing.

so that being said, i'll remind the witnesses and members to stand the topic, which of course is and why jobs, energy and deficit reduction. and with that, we will enter into the question. by recognizing the gentleman from massachusetts, mr. markey. >> thank you, mr. chairman very much. but i might interject at this point that i heard this pagel, as i did mr. pica endorsed the legislation, which i introduced with mr. holtz calls for a larger collection from the oil industry and from the mining industry as an alternative to traveling in the take refuge. and i think that is directly pertinent because they both offered an alternative to the proposal, which the majority has before the committee. i think that's right on point on trans fat.

we heard upwards of $300 billion can be collected from that route was only 600 million can be collected from the route that the majority is proposing over the next 10 years. so i think that's right and the money in a kind of just the oil industry as they write now get away without paying their fair share of the dues to live in our country while putting the burden on others and asking for sacrifice to be made in this instance of an area of our country often compared to the african fan giddy. so i think is right on point. maybe professor brinkley you could put this in perspective for us. this question of what it is that we receive because we would try to preserve this area from having oil and other natural resources be drilled for on this

location. >> well, you know, i come at this as somebody who loves america. we sang the song america the beautiful and choose treasured landscapes in this country and protect them with their lives. theodore roosevelt used to say europeans can keep the loop in westminster alley, but we have redwood california, we in the grand canyon. arctic alaska is a very significant landscape to safety of the american people when you study u.s. history, wilderness and some need to be treasured and preserved, particularly a 20th century because it reestablishes the american spirit. many soldiers, people veterans from vietnam go up to the arctic refuge with backpack on a hike. recreation dollars for the arctic refuge. people myself included camping up there. ecotourism with people at finale

lodge. note that people would come to not mechanically. no one thought they would see glaciers of the passage. ecotourism is a huge industry for alaska to talk about saving of the tickets to talk about the money of the arctic. more and more as the world shrinks, you are going to have people looking for true wilderness is, the arctic refuge is called the last wilderness. incidentally it's been called the arctic refuge until they started calling it an war because it sounds like an orthodox or some country in the middle east. do you want to molest eisenhower's great wildlife reserve? now. so it is the way the issue is framed. what i have found odious over the past 50 years are people that i've been saying there is no biological heart to the art take refuge, that is a wasteland. heirou c tothing there. ..against pipes.

.. >> when we have our nation's crown jewel of 500 wildlife reserves and to be suggesting in 2011 in a time of climate crisis that we're going to drill, drill, drill the arctic refuge, it's a political issue, and i think it needs to be taken out of the committee, taken out of congress, and i think president obama needs to sign an executive order creating a national monument for further federal protection within the arctic

refuge. >> thank you, professor, and thank you for raising the name. the first day he was here as chairman was my first day on the committee, 35 years ago. >> they're a great american family, the udall family. >> thank you for raising his name and memory because it means so much. >> the time expired, and in response to my friend, i just remind you, an extension of an earlier hearing which was anwar, and the gentleman could have correctly brought up what he brought up in his remarks this morning with a subcommittee hearing with energy of mineral subcommittee, where, in fact, that testimony would have been pertinent, but this is a testimony about an j war. >> if i may just to say i felt we needed the hearing so the deficit reduction aspect of the hearing had was properly up certed into the record. >> well, just tell the gentleman the hearing, one can read into

whatever one wants on a direction of where developing the resources would go, but the hearing was on anwar. >> deficit reduction. >> the hearing was on anwar. >> thank you for the hearing, and i will tell you if you ever want to see an exercise in utility, it's this hearing. that sides already made up its mine. this side made up its mind, and the -- i call it garbage, dr. rice -- >> dr. brink brinkley, rice is the university. >> you just be quiet. >> why? >> you don't know me. >> i can tell you now -- >> you don't know my salary. >> i'll remind members -- >> i work for the private

sector, you work for the -- >> mr. brinkley, you are invited here to testimony, and we look forward to the testimony, and you got the time to say what's -- >> call me mr. rice? i needed to correct the record. >> mr. brinkley? >> okay. >> we see a lot of people here and from time to time, we make faux pass, and nobody is perfect here. we're going to have disagreementings here. you saw that. >> you called me mr. rice from -- you used garbage in the word -- wow would do that if somebody said that to your name, too. >> i've been called a lot of things. >> i wouldn't call you that. >> do you want to continue the panel? >> yes. >> then please, follow the rules. >> okay. >> what i'm suggesting, mr. mr. brinkley. you say you camped one time? >> yes. >> how many people visited the

range last year? >> not many. >> not many, so we have an elitist group going up there? >> no, i have been all over that area. >> i know you have. >> i know what i'm talking about . the arctic plain is really nothing. it's not the heart. des not the heart. it's part of the most deficit part of the area, and what hurts me the most is you sit there in the rice university, when the people support drilling for their good and for the good of this nation as a college professor in an ivory tower, you can camp and spend your time, and i hope you spent the money, but the reality is this area should be drilled. i fought this battle for 39 years. it was set aside for drilling, not by the oil companies, but by henry scoop jackson, ted stevens, by the administration because they knew the potential was there, and we did put the safeguards in and congress has the vote on it. now, you can do what you want.

the refuge is 19 million acres. 19 million. we're talking about less than 3,000 acres. a little tiny thing that's like the hair on your head. you pull one head, you're not going to miss it, and this country is starving itself because we buy foreign oil. now, say that we don't need the arctic wildlife range is wrong. i listen to the people that live there, not the people living 400 miles away, not the people living in fair banks. not the people who represent a certain group when nay do not. i'm not saying about that. listen to the people that live there. 76% of alaskans support t and everybody that i know of on that coast other than the small group of people say it's the right thing to do because they know it can be done. it's 74 miles to the pipeline. 74 miles of pipe. mr. chairman, again, thank you for the interruption. i made a mistake saying mr. rice because i heard rice university, and that was in my mind.

we're here, we the are ones that ask the questions, and you answer the question. you may not work in the private sector -- >> i do. >> i'm not asking you a question yet. >> okay. >> you may not, but you made a comment about me and i'm pissed now because you said i was not here. i was here. >> i know you were. >> okay. then don't mention my name. >> i was mentioning the portraits behind me. >> the chair recognizes the gentleman from new jersey. >> thank you, mr. chairman. ms. james, can you tell us, again, the name that the called the region, the wildlife region with the translation, please >> it means sacred place where the life begins. >> where the life begins?

>> uh-huh. >> i think that highlights the significance that this is more than a local issue. there's more that derives from this than the entertainment of a few elite people. i think this is a national treasure. we heard it over and over again, and as recently as a few minutes ago that this area is visited by so few people, and it really should be a local issue. what do you have to say to that, and maybe it helps to keep in mind what mr. brinkley said earlier about the so few people

visiting yosemite and so few people visiting -- you know, just a little over 120 years ago that anybody went through the grand canyon. it was so few people that visited glacier and on and own. would you comment, please? >> these are federal lands, and the federal taxpayer and the federal government has a right to preserve these lands and protect them how the majority of americans feel they need to protect it, and there's some places in this country and globally that should not be exploited for natural resource extraction, and that includes oil and gas. everywhere where oil and gas drilling occurs, there's spills, leaks, significant damage that occurs. the arctic national wildlife refuge is one of the places where i think we can say we don't need the damage anymore places. >> i'd like to give both you and

mrs. pagel to address this concern that somehow you are off topic. isn't what we're talking about here whether lands that belong to the american people should be given to private exploitation without royalty, without recon pence? >> precisely. if i look at the royalties of the state of alaska, it exceeds what the federal government gets now. if we want to talk about what's fair for the taxpayer, we have to talk about what the federal government is getting for those areas that are currently open for exploitation and exploration, and it's far below what even the state of alaska's getting. >> i agree that there are some places that just shouldn't be mined or drilled, and this is one of those places, and that, you know, my testimony was about -- there are alternatives,

you know, i want to redews the deficit and create jobs for this country just as much as anyone else, and there are ways to do that that don't necessarily involve exploiting places that are sigh cred to some -- sacred to some. >> mr. brinkley and ms. james, earlier today, this committee considered an alaska energy bill that would allow -- well, 10,000 acres of impact to the coastal plain of every 100,000 acres of leased land to the refuge. in other words, the -- and maybe you're not familiar with this, but perhaps you can comment on it -- the question is just how small is the footprint? how much environmental damage would be done if this place -- if these treasures were allowed

for private exploitation? >> for my people, any technology in the world is not a safe for any in the first place, and second place where the life begin. that's how we see it, and when there was an oil spill in prince william sound, one of the elders said the water is dead, and it's been happening, and from that day, we call that day the water has died, so we are very cautious about those things that happen and what we see and what we hear and what's doing and we lived there for thousand of years with caribou, and caribou is like, you know, they are in our heart, and we are in their

heart, and we care for each other for thousand of years and there's no place in the world that's safe as that place. >> thank you. i'm sorry, my time expired. >> the time has expired. the gentleman from maryland, mr. harris, is recognized. >> thank you very much, mr. chairman, and reading over the testimony, i kind of share your pessimism that the testimony is pertinent to anwar, but since the testimony opens the door for such kind of questions, i'll ask -- i know we had a state senator in maryland very well known by the same last name. i find your written testimony very interesting because it actually the first page sounds like a manifesto against american capitalism, so i suppose you take position against it, but the last

sentence of the first page in the last decade the influence of big business expanded to such an extent that the civil and political systems have been captured by corporate lobbyists and campaign donations. now, is it nor opinion or opinion of the friends. of the earth that solydra absolutely epitomizes that relationship and corporate donation connections and things like that? >> i would think that friends of the earth oppose that program in 2005 and predicted the process would be open for manipulation regardless of which party -- >> even if it's an administration that promised a change and we're not going to let lobbyists do anything? i guess you share the opinion made on this side of the ail that solydra is that problem? >> i have not seen all the testimony, but i do believe this was a bad program to begin with, and this was the 2005 program when it was created. >> sure.

but the loan was administered in 2009; correct? the loan guarantee? >> yes. >> the 2005 program greatly expanded by the stimulus plan, and, in fact, as a result of the stimulus plan that the money was eventually guaranteed. >> i'm not familiar with those. >> next paragraph in your testimony because it says today functions that we're once the domain of the public sector to the provision of services to protection the commons to the fighting of wars are taken over by corporations. you really think that our soldiers and sailors overseas fighting wars are taken hold by corporations? you think we fight wars with corporations and not young americans going overseas trying to do the best they can? you realize the implication of the words you put down on paper here? >> i do believe that the black water incidents that occurred in the middle east is a prime example of where we have had a

privatization of what should be the state department security forces. >> well, thank goodness you don't imply that's our soldiers and sailors. you also say that the -- that the -- in here you say congressional research service estimates on what to gain from this is not worth the environmental destruction it would create. don't say could create, might create. there's one is 100 chance of a spill or something. can you briefly outline because i don't have much time, what the environmental destruction would be that it would create because you used the word "would." >> yes, every pipeline we know leaks. the keystone one pipeline, a new pipeline leaked over a dozen times. >> how large are the leaks? >> substantial. >> compared to the natural leaks of oil in the united states. >> i don't have those

specifics. >> can you look into that because you bring that up in the testimony? >> sure. >> can you look into that and just compare those two? thank you. let me get to another -- because you bring up the keystone excel. what's your opinion about that pipeline? project? >> i'm, the president made the right decision in delaying that pipeline. the process of the environmental review flawed. >> because it was done by the state department or three years was not long enough? >> i think the documents that friends of the earth exposed with the state department demonstrated the relationship between transcanada, the company cardinal, actually violated the intent of the environmental policy act. >> friends of the earth going to oppose the pipeline built west ward so the oil can be shipped -- >> just for a moment, the keystone pipeline is not subject of this.

we get off track. >> i know, mr. chairman, but your point is, you know, i was led there. i didn't wander. i was led. friends of the earth going to oppose that as well? >> yes. >> you don't want the oil to be extracted anywhere? you have to ship it somehow if it's extracted. >> the tar sands, the royal forests in alberta are a bilogical rich area and one of the most rich areas compared to the tropical rain forests in brazil and south america. >> they are rich, and oil is part of the biology, and canada's lucky they're using it. >> thank you, mr. chairman. >> thank you, mr. chairman. mr. pica, a couple quick questions. i was not terribly disturbed by that paragraph, but the cr's

projecting more revenue from taxes than loyalties. why is that? >> because the crs1 looking at the corporate business tax rate at 33%, and we just know through studies and through the amount of tax deductions and loopholes in the tax code that's gist not a realistic estimate from the congressional research service. >> and the oil and gas industry for how long? >> it was created in 1911, about two years after that was when the oil and gas industry got its tax credit into the tax code and a completion allowance. for 100 years, the u.s. government provided subsidy to the oil and gas industry for exploitation and exploration of oil and gas resources in america. >> despite the claims made by

drilling in the refuge about the revenue that would be generated, the congressional budget office projects that taxpayers would only see $3 billion over the first ten years, and in addition the alaska state officials said they would recover 90% of drilling revenues if it was open. that means that they were successful, the taxpayers would receive about $600 million. i think, you know, not that -- it's not just subsidies, but other things at stake here, but if that's the main argument, it's full of holes, and there is no net return for the taxpayer if it was to happen. does the industry, given what's happened need subsidies to drill, and that's the question, if you don't mind. >> i would say begin the multibillion in profits, they have about a trillion in profits

over the last ten years. they don't need the incentives to drill. >> one general question for all the pammist, and i -- panelists, and i appreciate you taking the time. this committee recommended that drilling in the refuge to be part of the supercommittee's recommendations for revenue generation. your reaction to that recommendation if you don't mind. >> well, it's an awful idea. again, i need to correct the record because c-span is covering this, and there was a misstatement made by the congressman who left, doesn't stay, blows smokes, and leaves. ted stevens was for the creation of anwar in 1960. he was a lawyer for the creation of the arctic. it's only when oil was found there -- >> the gentleman -- >> i'm on the clock. >> the gentleman suspend.

i'll give the time back to you. >> okay. >> i just want to say, mr. brinkley. people come and go from this meetings all the time, and so suggest there's not a reason that one member leaves for a good reason that you don't know about, i think is disrespectful. >> okay. i was disappointed. >> disrespectful at best. i would appreciate that you just respond to the questions members are giving you. you will see members walking in and out of here all the time. everybody has their own schedule. >> i was trying to correct the record. >> you referenced a member sitting here. >> because he misstated. if we don't correct the record now, when does it get corrected 1234 >> you made the observation rather than elaborating on the where abouts of people. be respectful of people. they come and go all the time. >> okay. >> the gentleman had, what,

three and a half minutes or so -- >> five. [laughter] >> nice try. [laughter] i'll give you -- >> appreciate it. >> another two minutes in the red when it goes. >> the general question was the majority of the committee recommending to the supercommittee that drilling in the refuge would be a revenue generator that they'd like to see the supercommittee make as part of the recommendation, dr. brink lee, as an awful idea. >> it's our nation's number one premier wildlife refuge. just because we hit low economic times is not the time to start opening up treasured landscaped. >> okay. >> this happens in history time and again. there was an effort by congress to mine the grand canyon for copper when the economy gets bad. we have to be a tougher people

than that. >> let me give your fellow panelists a chance. ms. james? >> yes, thank you for asking me that question because to us, sigh cred place where the life begin is no other place in the world. we have to be protected. it's a special place that needs to be protected, and there shouldn't be any gas or oil development there. >> okay. >> because it's belonging to all of us american, and so far since 1988, american have spoken loud and clear repeatedly, battle after battle spoke out very clearly that they don't want no gas and oil development there. let's give those american a chance of what they wanted, and that's what the land is for. >> thank you. >> it's a public interest land for the people.

>> if i'm not mistaken, there's over a million comments, and i don't think those should be ignored going through this process. mr. pica if you don't mind. >> absolutely not. if the supercommittee wants revenue, it's drilling into the tax code. there are tens of billions of dollars, i think, we have $100 billion in tax breaks if they were repealed. >> absolutely not, and i think that the -- there are better ways, and those are the ways we need to look at. you know, my testimony, i laid out at least a couple billion dollars a year in savings, and the legislation hr3446 that was just introduced lays on another couple billion, and we need to think about the long term and fairness and there's industries that are not paying now that can afford to, and we need to look at that first. >> there's other issues with that environmental, cultural,

that are critical, and i should not be ignored, but i wanted to concentrate on the money side because that seems to be the primary argument, and one could surmise that i don't know if this has as many to do with energy independence and economy as it does with the timing of the political expediency because of the times we're in, and just for the record, mr. chairman, thank you. there's more private contractors in security in iraq and iran and afghanistan than there are of uniformed men and women. >> the time of the gentleman this time did expire. [laughter] gentlelady from massachusetts is recognized for five minutes. [inaudible conversations]

>> thank you, mr. chairman. as i'm listening to the debate, it's bringing back a lot of memories because i remember in 1980 when my president -- my husband was a relatively newly elect the united states senator, he was proud to work on the alaska land's act working with then senator ted kennedy -- ted stevens, and i remember so clearly when finally that agent was voted on and signed into the law. it was a moment to celebrate, but we also knew we were not locking the door on alaska, the beautiful landscape there that's been protected and here we are in dray mat ceoic -- dramatic economic difficult times in the country, and we have to deal with the debt and deficit, have to deal with the dependence on fossil fuels and foreign oil in particular, and so alaska is, again, at the fore front. as we hear this testimony from all of you, how you value so

much the extraordinary landscape, the sacred place that you call it as well, we're faced with trying to find a balancing act, and it comes with whatever we get out of it in the near term, it comes with great cost, and so one of the issues i think we have to ask and think about is as we also have to wrestle with climate change, and we know that there has been a warming there, just what the impacts would be there, too, again creating extraordinary costs that we would have to confront in the coming years if we're not sensitive to this, so it is not just about jobs today or access to oil which we know will take many years to really come to fruition. it's about sacrificing an extraordinary landscape and perhaps also exacerbating another great challenge we have which is climate change, so i would welcome your thoughts who would like to say something

about it. >> yeah, no, absolutely. the debate over the arctic national wildlife refuge, you know, we talk about jobs, we talk about subsidies and royalties and how much money could come into federal government, but what we have to be thinking about with climate change is the ability that these natural resources are going to be dramatically impaired by what's already occurring in the atmosphere, and that drilling into these resources by erecting wells, pipelines, we will be impairing these and we will be making it more difficult for these ecosystems and the wildlife that thrives on these ecosystems to survive, and that, to me, is a risk we should not be taking at this time nor in the future. >> anybody else? >> i just think that both democrats and republicans know we are in a time of climate crisis, and the idea after the bp spill of drilling in the arctic refuge, our nation's

largest wildlife refuge created by a conservative republican president at this moment in time makes zero sense. there's a lot of other issues. if we're going to go -- we would have no park system, believe me, no national forests because the extraction industriesment to take, make money, and go. they like to gouge. we've got to have groups to keep eyes on them, but to hear a congressman today say there's nothing in his district, it's boring, it's flat, it's not exciting. i don't know a representative who doesn't love their district. every state in america's landscape's beautiful if you love it, but some people love money more than their homeland or where they live, and i'm afraid that that's why this fight has to keep coming up 50 years later, still trying to tell people the arctic refuge is real, it belongs to the american people, all of us, not just the people of alaska.

>> it's a nation, we call that place, you know, i repeatedly saying that it's the birthplace, and any birthplace should be protected, and to us, we've been there for thousand of year. we're healthy. i'm 67 years old right now, and i'm pretty healthy, and i live in aville laming, live very -- village and live a very healthy life because most of our food is from the land, and it's good for us, and make us who we are and be proud of who we are. i'm proud to be gwich'in and caribou people, and any of the resource or any of the things that we use that make us healthy and powerful is that -- there's no price on it, and taking care of the caribou's always been our

job, and we're rich in our heart that way, and i just can't see that be taken away as human rights protection of human life to me and to my people. thank you. >> time expired. chair recognizes the gentlelady from hawaii. >> thank you, mr. chairman. thank you, members of the panel. i come at this from a different perspective just so you know this up front, and the reason is because i represent hawaii, and we have indigenous people as well. when we were first in -- i'm new here, but in my first exposure to anwar, it was in terms of the -- congressman young is not here to correct my pronunciation, but it's the -- >> cacktovic --

the coastal plain? >> yes. >> my first question for mr. pica and ms. pagel is have you been to anwar? >> i have not, but we have members in alaska that we represent in washington, d.c.. >> i understand that. i haven't. i'm interested in those who have. that's ms. james who lives in part of anwar, and mr. brinkley who recently visited there. first of all, you are, of course, a member of the gwich gwich'in, and when we talk both the rights of the natives, my first question is are you part of the settlement? >> our village, and we went with

ira now as free title and got 1.8 million acres of land. >> where are you in relationship to anwar? located -- >> about 75 miles south of coastal plain. >> okay. so you're actually -- i saw pictures of it. there's the coastal plain and the mountains. are you in the mountain section? >> oh, the brooks range is a natural -- this one is gwich' in. one of the interesting points with all the tribes coming before us is the fact that the federal government after entering into this and normally retains the subsurface right to the regional corporation was

able to secure the sub surface rights unlike other tribes because of the fact the government took other parts of their land. it was conditioned upon congress giving them the right to drill, however, but they have the sub surface right that normally flows to the regional corporation, so to me, this is an issue of the rights of the native people, and as you know, we bought alaska from the russians, and part of the compact when we entered into that agreement was we agreed that we would not interfere with the rights of the native people. now, i'm not talking about energy or the supercommittee and maybe the chair rules me out of order, but that's what i'm concerned about. i want to know how, when you know, that we are talking about rights of native peoples that we, as a government, have given them the rights to the sub

surface as well as the surface rights and what they look at here is really to execute on those rights. why is that something that you find to be such a travesty and something that's unacceptable? i know you're in a different position because you are relying on caribou, and relying on wheals and seals. this is an issue, to me, of native rights, and this is an agreement and contract that was entered into when we bought alaska, and now we're in this position. why do you think -- >> there was similar up in northern alaska in the 1950s and 1960s when edward teller discovered the hydrogen bomb, went to alaska to detonate nuclear bombs amongst the native people which would have contaminated all the tundra, poisenned all the caribou. there's always projects up in areas like that where people

don't have a lot of power or rights, and the arctic refuge is a home today for native people. >> mr. brinkley, that's before we entered into these agreements, and i do not believe that the regional counsels or the tribes are not well remitted by -- represented by their respective attorneys. i do not believe they are in lesser bargaining position. that's the issue. i'm out of time. i'd appreciate if you all respond to me in writing. thank you very much. >> the time has expired, and i would say as usual with hearings like this, after the fact, there's questions that come up, and we would like when you do get asked a question, obviously, that's a serious question, and she wants a response to. that should come to the full committee so we all have that response. with that, the panel is now dismissed. i want to thank them very much

for being here today. if there's no further business before the committee, the committee stands adjourned. >> thank you. [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations]

>> there's a story i was told from inside the administration when obama was given the first budget, and there was some 6,000 earmarks in it, his first instinct, he said, was to veto that budget, and he was told by his lobbyists for capitol hill that there's no way to do that. you can't cut dies with democrats. had he vetoed that, he would have been the tea party. had he signaled his fundamental desire to change this system and to change the way that washington works, he could have continued to rally the reform movement that now breaks out all over literally the world because of its frustration with the current way that democracy doesn't function. >> harvard law professor on c-span's q&a sunday night.

[applause] >> thank you for that kind introduction and warm welcome. i'd like to thank project go pink for the opportunity to be with you this morning. i appreciate the contributions that each of you make to mobile mobilize, support, and elect republican women across our country. your continued support for conservative policies and strategies are necessary to ensure that our nation remains a beacon of freedom for future generations. as you probably know, my husband, newt, is a republican candidate for president of the united states. [applause] the last few weeks have been

very exciting for our campaign. one of the best things about a presidential campaign is the chance to meet so many wonderful people across america, and to learn about their concerns and hopes for our future. newt and i are determined to run a positive, issue-oriented, and solutions-based campaign. we know and think of the other republican candidates as friends. many of us have bonded along the campaign trail as we go through similar, life changing experiences. we are all in this together, and believe that what we are doing is in the best interest of our country. our only opponent is barack obama, and we're committed to removing him from the white house. [applause] over the last few months, the polls have been wild. in june and july, newt and i were told that our call pain was

-- campaign was dead. that was hard. recent polls show he's surging ahead. candidly, this is better than being dead. [laughter] newt and i are engaged in this race because we believe america is at a crossroads and care deeply about the future of our country. we believe that america is an exceptional nation, and most remain so. today, i would like to share with you why i believe our understanding of american exceptionalism and american history will be a pivotal factor in determines the direction and the survival of the nation as we know it. over the past several years, newt and i had the privilege of working on several documentary films and books exploring various events and individuals in american history that have helped make america an exceptional nation. throughout the course of our

work, it is become increasingly obvious to me that america is facing an identity crisis unlike anything we have ever faced before. this crisis is most evident among our youth who are taught that pride and our national heritage is in appropriate, and that there's nothing uniquely special about being an american or about the values and principles upon which our country has been built. we are currently in a great debate over whether america is an exceptional nation or just another country. it's up to us to decide which version of america our children will learn about and believe in. over 20 years ago in the farewell address, president ronald reagan called upon america to return what he called an informed patriotism warning that those who "aren't sure that

an appreciation of america is the right thing to teach modern children." president reagan underwhat is at stake, and it's not simply an academic or abstract debate. our understanding and appreciation of what we are as a nation determines our policies, oh values, and whether or not we teach our children that we are a special nation. as for me, everything i know about the history of our country and our core values has led me to believe that we are an exceptional nation and people. growing up in white hall, wisconsin, an all-american mid western town, it was impossible not to be instilled with a sense of pay patriotism. we said the pledge of allegiance each morning and then sang a patriotic song. in junior high and high school,

by band celebrated national holidays by singing and playing pay patriotic music. as a girl scout, i truly believed in the pledge to serve god and country. in fact, today, i find myself living out that pledge in ways i could have never imagined back at sunset elementary. as a young person, i was surrounded by people who believed in the greatness of america and were unapologetic about those beliefs. contrast this to today. when the ma majority of 8th graders can't explain the meaning of the declaration of indense, and high school seniors can't explain how the three branches of government interact. most high school students graduate without coming to appreciate what makes america unique.

the united states was the first nation to be founded in an act of rebellion against a colonial power. it was the first nation to be established on the premise that the rights of man are inherent, and that government derives power from the con september of the people -- consent of the people. it was the first nation to be based on a separation of powers and recognize that the existence of the state is solely to secure the rights of the people. finally, it was the first nation to affirm all of this in a publicly debated and democratically accepted constitution. all of these things make america unique, but, in fact, as i've become more involved in studying our history, i've realized that american exceptionalism is rooted in something even more fundamental. five years ago, newt and i made a documentary film entitled "rediscovering god in america."

this film introduces the concept of american exceptionalism through a walking tour of washington from the national archives to arlington national cemetery. at the national archives, the source of american exceptionalism is displayed in a single document, the declaration of independence. the key in this document is our founding fathers' assertion that we hold these truths to be self-evident, that all men are created equal, and that we are endowed by our creator with unalienable rights in which our life, liberty, and the pursuit of happiness -- it is this assertion that our rights come from god that makes america truly exceptional. we are the only country in history to assert each of our personally receives our rights from god, not from bureaucrats,

politicians, or judges, but from god. this means that each of us is personally sovereign. this is why our constitution begins, "we the people." we the people loan power to the government. government never loans power to us. [applause] this unique endowment by our creator is why americans are citizens while other governments often treat their people as subjects. in many countries, the government and political bosses reign. here in america, the people reign. because our founders understood that their freedom was based on faith and that no government could come between god and man, our form of government was grounded in the rule of law, structured to recognize and protect the dignity, intelligence, and value of every

individual. these protections have allowed patriotism, individualism, and entrepreneurship to thrive here in america as they have nowhere else on earth. because our founders rejected the notion that government had unlimited power over individuals, property rights were protected in the constitution to a degree they had never been protected before. the founding fathers wrote a patent office into the constitution to protect the intellectual property of invenn tears -- inventers giving america the ability and up sentive to invent and recognize a better future. there's a number of inventers who have the spirit of innovation and belief in progress. benjamin franklin invented the lightning rod and glasses. a few years later, robert fulton

invented the steam boat. samuel morris, the telegraph. henry ford invented mass produced affordable automobiles. the wright brothers discovered how to fly. all of these inventers illustrate the very best of the american experience, of hope, opportunity, and entrepreneurship. they chose to be courageous, to take risks, and to follow their dreams without bothering to ask the government for money, permission, or approval. in doing so, they changed the life of every person in this room who has ever turned down a light, watched a movie, or flown in an airplane. they demonstrated that success is truly possible when a nation unleashes its god-given creativity.

modern inventers like bill gates of microsoft and the late steve jobs of apple are part of this long tradition of creativity and invention. our lives are changed by pioneers and inventers. now, for a moment, forget about history, forget about the existence of the declaration and the constitution, forget heros like jefferson, franklin, martin luther king, jr., and john f. kennedy who testified to america's uniqueness, forget the fact that we are all children of immigrants. among academic elites, the claim that america is an exceptional nation is viewed with skepticism and even scorned. they apologize for the ways in which america does not look like other nations. for such elites the word

"exceptionalism" is criticism, not praise, a myth born of self-right arrogance, and nothing pinpoints you as a conservative more than promoting and believing in american exceptionalism. as i became more concerned about the danger of losing sight of what makes america truly acceptional, i decided to write a book to 4-8-year-olds titled "sweet land of liberty" with the goal to highlight the wonderful achievements of our country, to arrows a love for america and communicate why america is a special nation. to do this, i knew i needed a unique character to capture the interest of young children, to guide them through the defining moments of our nation's history. i considered many animals, incoming bunnies --

including bunnies, giraffes, and hippos. i have to confess -- i didn't consider a donkey. [laughter] in the end, i couldn't resist an adorable elephant, politics notwithstanding. when i began thinking of a name for our elephant, ellis came to mind. my grandmother had come to the united states from poland through ellis island in 1907; therefore, i thought ellis the elephant was perfect both as a phrase for children and symbolically as we are a nation of immigrants. in "sweet land of liberty" we first meet ellis at the library. an avid reader like me husband, she reads about history and shares it with others. ellis introduces children to the first thanksgiving, the boston tea party, george washington

crossing the delaware, and many other historic moments. it is my hope that these stories will help young people feel proud of our country and enable them to begin to appreciate the courage, service, and sacrifice that has made this country an exceptional nation. today, america stands at a pivotal moment, not only economically, but socially, culturally, and politically. it is important that each of us do our part now to advance and defend the pillars of freedom. our civilization is a learned civilization which means that anyone can learn to be an american. it also means that each generation is capable of forgetting or failing to learn and recall what it is that makes america a special nation.

pulitzer prize winning his historian said, "a civilization without memory ceases to be civilized. a civilization without history ceases to have identity. without identity, there's no purpose. without purpose, civilization will wither." when we know who we are as americans, the way forward to defending and advancing the cause of freedom becomes increasingly clear. it is my prayer that together we may work to ensure that liberty and freedom prevail and that america remains an exceptional nation. thank you and god bless. [applause] >> thank you so much. [applause]

[applause] >> thank you, sue. hey, it's great to be here in washington. the women working for change conference. you know, when conservative women gather together for a common cause, it doesn't threaten men the most. it threatens the liberals the most, but because when it comes to ending politics as usual, conservative women are the real change. from haley in south carolina to martinez in new mexico, to mary fallon in oklahoma, conservative women win office all across the country in 2010. you know, i think sometimes it's worth asking the question why voters have gravitated to conservative women in recent years. affirm their judgment in various life decisions that women make.

from running the board room to running for office to running the household, we are all about empowering women of all backgrounds rather than just putting us all in one little box, and we remain sympathetic to the plight of middle class families and women who wear the hat of mother, wife, employee. we know many women who toil to provide the best environment possible for raising our children. we get our children ready for school. we put in long hours at the office, and then we make those pta meetings, those soccer game, those baseball games. who, at the end of the day, are too tired to take their shoes off? we know those women because we are those women. many ofous have done double duty without twice the pay. we do it out of love and

devotion to our families. as a texas woman said, liz carpenter, roosters crow, but hens deliver. [laughter] that may be the best democratic line i heard from a woman, a democratic woman. the issue facing our country today is not gender based, but jobs based. it's about giving our children a better country than the one we inherited. there are a lot of great candidates out there running for president. i happen to be partial towards one, just a little bit. here's why. no one is more committed to the merit system than rick perry. he truly believes in america's blind side to one's background, gender, or creed, and an america that provides opportunity to any and all who work hard, play by

the rules, and never stop dreaming. he's provided a blue print to the pathway in our state of texas where he has cut taxes 67 times, signed the first state budget that cut state spending since world war ii, and signed the most sweeping lawsuit reforms in the nation including just this past spring, a new losers pay low. rick perry believes the best welfare program is a job. he believes that the best economic stimulus occurs in the private sector, and he believes that the best hope for the world is a strong america. he served his country because he loves his country. during his tour of duty in the united states air force, he developed a deep and abiding love for our nation's freedoms.

he recognizes what is wrong in america is not that americans are lazy or soft or they lake imagination -- lack imagination. it's washington that's broken, and he has put forward a bold plan to overall washington ending business as usual in ensuring the federal government puts the american people first. he will fight to end lifetime appointees for future appointees to the federal bunch because he doesn't believe those who legislate from the bench should be rewarded with a black robe for life. he wants to transform washington by creating a part time congress, cutting their pay in half, their budgets in half, and their time in washington in half. he believes the concept of the citizen legislature works best and keeping lawmakers better connected to the people.

finally, he wants to overhaul the permanent bureaucracy, eliminating the departments of energy, education, and commerce, reducing and rebuilding the epa so it no longer torments job creators, and ending the passenger harassment of the tsa by returning transportation security to the private sector. his bold plans for washington coupled with his 20% flat tax, represented most comprehensive change of any candidate, and that makes sense because he is the only candidate who is not part of the establishment. he is the true outsider who will bring a breath of fresh air to the beltway. with reck perry, you don't have to wonder whether the president you get similar to other candidates you see because he knows who he is, and he knows what he believes..

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the supreme court recently heard oral argument in a case involving a child born in jerusalem to american parents. the parents of the child's passport to list israel as the

place of birth. state department policy is to not recognize israeli sovereignty over jerusalem. this is just over an hour. >> mr. chief justice may i please the court. in its recent decisions this court approved and applauded the familiar tripartite scheme justice jackson articulate it in the seizure case. when the president takes measures incompatible with the expressed will of congress, the

power at its lowest in that instance said justice jackson, his claim to a power so conclusive and pre-close of may be scrutinized with caution to preserve the equilibrium established by our constitutional system. >> what power is congress exercising here? >> justice kagan, conagra's exercised its power over passport, the issuance of passports under the immigration, naturalization and foreign commerce powers that congress has. it has enacted a passport legislation back in 1856 and 1926 it can control what the content of the passport ought to be, with its duration of to be, how the application is to be made and how we say this is an identification. >> do you think it is relevant that title of section 214 is

united states policy with respect to jerusalem as the capitol of israel? >> we think and we cited in our brief and number of recent cases in the court that had said you take each statutory provision independently and determine its in constitutionality. true, congress has a broad view with regard to the policy of jerusalem being part of israel than the executive branch has had since 1948, however, that purpose is not determine if a for the is a section d. >> i would say, mr. lewin you are not planning exclusivity in congress. you say foreign relations did this shared power. so if it is a shared power, why

does congress trump these executive? >> precisely because under the standard of the seizure case and this tripartite extreme if congress determines what the president has done and this is a statute which is very narrow and deals with past conduct by the executive branch it doesn't hobble the president in terms of future foreign policy. what determinations are for the president alone to make. >> for in relation determinations are not left -- >> are there any foreign relations determination's for the president alone to make under the case. and those are? >> diplomatic communications and the president makes --

>> who gets the telegram? >> issues the communication to the foreign government who determines certain things the president alone does because he's the one who implements foreign policy. there is such an interpretation of the president's foreign power. >> with all respect, just as we don't think that. that is exactly what justice jackson was referring to and what the court said in the case and been hamdan croswell. >> of the jackson tripartite division in this famous division he had i think assumed the validity of the congressional statute at the first step of inquiry. >> and here that's the whole

question. i don't know whether it is limited to the assumption with regard to the congressional statute. if congress says as it did in this case we disapproved of the state department's view contains the the navigation of israel for people who were born in jerusalem that is congress disapproving of what the state department and passed state department policy -- >> you were cut off earlier when you were saying this reading doesn't hobble the president in the future. this is anybody born in jerusalem can have this real listed, correct? any sovereignty over jerusalem? is the president free to start listing is really a passport and

for congress to change the law you are hobbling the president with respect to is situation is that occur frequently sometimes overnight. >> it may in some way in a very remote possible way i think under those circumstances if there was a peace treaty and jerusalem handed over to a palestinian state i think congress would repeal a statute has the authority under the constitution to enact the law and it is congress that makes the decision even with regard to the foreign policy issues. >> the constitution requires ambassadors to be appointed with the consent of the sun at.

>> why have we let congress express its approval and disapproval and the mechanism set up by the constitution to do so meaning if the president recognizes that congress doesn't want it to recognize it can withhold approval of an ambassador it can refuse to fund the embassy and do many other things. but what has entitled congress to trench on presidential power that's been exercised virtually since the beginning of the country. >> that is simply not true, that in fact congress has had equal recognition it is a power rather than a ceremonial duty. we have a number gone through the fact that presidents monroe,

jackson, tayler, lincoln and even at the time president mckinley, chris said we have the authority to be recognized. >> this gets back to the question of what the congressional power you are basing your argument are. you started by saying you're basing it on the passport power which is a function that controls over immigration issues. now congress has a call equal recognition with power which is it, is it both? >> it is both. we submit first of all there is no exclusive recognition power in the president if there is a recognition power and a spell that out. >> if the congress passed law that says the united states recognizes jerusalem as the capitol of israel they must be

designated as the capitol in all official documents and everything your position would be yes, congress has that authority i have to add, justice ginsburg, congress has been very careful in the past and we believe it will be in the future to the broad authority congress tried to do that the president can waive the moving of the embassy to judaism because congress recognizes one of these situations where congress has said what the president has done and what the state has done is simply is wrong. >> it seems to me. you are arguing for a superior congressional power whenever you

see the congress to comply with, now that's quite different from saying they would have authority in the field and if they both have a for the infield and thir exercising it in different fashions i would not be inclined to intervene i would conduct the usual winter branch and rustling that goes on which means congress cares enough congress will win because as you say it has and innumerable number of plugs with which to be the executive so if the power is a coequal power and exercising it in a different way why don't we just let them go at it why is it any of our business which is the better foreign policy position? >> the court is not being asked to determine what is it the better foreign policy position. congress is determined but

commodores has coequal of 40 but congress is supreme there are two aspects to this. one is the recognition power as to the recognition power if it exists conagra's has it together with the president but with regard to foreign policy and with regard to the question of whether congress can trump the president this is not a new proposition, the court determined that in the seizure case the court more recently in an approaching justice jackson in the tripartite scheme approved for -- >> the president exercised authority change domestic law and not simply domestic law but the domestic state law. it seems to be to be quite a distinguishable circumstance. >> would justice jackson said is

that when there are the two incompatible then you look at the court looks at and scrutinizes those words are in justice jackson's standard scrutinizes the president astana and resubmit in this case if the court were to look to the answers to the interrogatories in this what is that the basis for the president's policy. if one scrutinizes we say in our brief recall that trivial because what happens is the department of state has said, and again this is important in terms of this statute, all that happens with this statute is the 50,000 american citizens have the same passport as 100,000 other american citizens who were born into the aviv or haifa. it just says israel, it doesn't say jerusalem it just says israel, and the state department says that's justified because

the arab countries or palestinians may be upset if they misperceive -- >> secure suggesting the outcome of the case would be different from your perspective if the congress said you have to say jerusalem is real. >> i say it is a different case. absolutely. in this case the important thing about this case and the statute is that it is the individual passport holder a choice. >> why is it a different case? >> it's a different case because if it were to say jerusalem is real -- israel i wouldn't be here in acknowledging that is impermissible but there would be more of an argument that it appears to be some official approval. islamic there would be a greater concern. the concern on the part of the executive would be adverse public reaction would have a greater degree of credibility. >> somewhat greater degree.

>> so we're supposed to decide whether or not the executive is correct in saying it is a significant problem and he says he says that what we know foreign policy better we don't think it is going to be a big deal. >> i don't think the court is being asked to decide a question of foreign policy. congress has decided that saying israel alone does not present a foreign policy issue. congress recognized moving the industry there might be a foreign policy, so they said the president can waive that. with regard to this provision congress has said no. there's not likely to be any foreign policy harm. all the court is being asked to do is to enforce the congressional conclusion which is we submit exactly what the third level under justice jackson's test is that if in fact conagra's decides with the

president or executive branch has concluded is wrong it me, and it has the constitutional power to say with regard to foreign policy, we can exercise our determination. >> i don't see justice jackson's analysis what he's saying, and i guess i don't think it is as controlling as others might. he's saying when there is a conflict is a harder case. when they agree it is an easy case. when you can't tell it is a metal case. i don't see how that is helpful in resolving the dispute for us. >> he said when it is in the third category the court has an obligation under those circumstances if it is going to keep the equilibrium of the balance of power to look at the president's justification is. the word scrutiny is in there. it isn't simply and if you scrutinize and in this case

there is another to become nothing other than the possibility that there would be the misperception by palestinians. that is what the state department -- >> what we were scrutinizing in this case? >> i think in the steel seizure case the court was scrutinizing whether notwithstanding the fact conagra's did not give the president the power to the steel mills and none the less whether there could be some justification that even in concrete the president would be able to exercise the power. >> what presidential power would have supported that? >> possibly the claim that as the commander in chief in the time of the korean war claiming victory in war the companies remain in business but i guess we did scrutinize that. what did we conclude?

>> the court concluded that it did not justify the exercise of the president's power. >> but that wasn't the case in which the congress said you may not seize the mills and that is what your case is. >> it is a situation, justice kennedy, if congress didn't even say you may not see the steel mills but simply because they didn't give the president the authority to be used to make it is if you assume the statute is out. >> the statute in this case -- >> if it is in a statute we are in category one. >> it is an identification. >> it seems to have everything

to give congress the creation of a foreign policy as opposed to congress's exercise of power relating to immigration control. convince me that i am wrong on that. >> i think you are wrong on that, justice and let me explain why. because it is clear from the history of the line on the passport that it is purely an identification of the individual. it is not an exercise of any foreign policy. indeed the passport statute itself says that a passport is any travel documents issued by competent authority showing the identity and nationality. and in this case the history of this line on the passport demonstrates i think conclusively in this department has acknowledged it as a means of identification and congress has said with regard to these citizens we will permit them to

identify themselves like congress permit to the time knees to identify the enacted this because of a thought if these individuals passports simply send jerusalem that would be an identification problem it's not because caribbean and the navigation problem but congress recognized with regard to the 50,000 people there being denied a certain sense of self-respect that they feel they should be able to have with the ratification that's not designed to create some political brouhaha to make foreign policy statement is a statute that frankly sits in with the state department does in any of accommodating individual passport officers. you don't like seeing israel and

the passport we will allow you to eliminate israel from your passport. >> into better have an argument of the statute said if you're born in jerusalem you can take anything you want in your passport. >> the statue to try to doesn't say that. you can pick israel. so why isn't that a statement of foreign policy with the recognition that jerusalem is the capitol of israel with what you're characterizing it which is the freedom of choice provision. what you said the statute doesn't say, is it is exactly what the statute does say what a passport can choose to say israel or can keep the esters of and if born before 1948 you can say palestine.

[inaudible] [laughter] it's my generation that fits into that exactly that's all the statute does. the statute is a means of permitting self edification by an american citizen who says my berth in jerusalem indeed west jerusalem which has always been recognized as part of israel i want to call -- i want my passport to say israel. >> it's recognizing the principle only with respect to a particular jurisdiction. an american citizen born in northern ireland doesn't have this option because he thinks it is part of ireland.

as the mcginn american citizen born in taiwan apparently does have the option even though the united states says we don't recognize taiwan as an independent country. >> and your friend on behalf of the united states says that is because the judgment that in one situation it's significant and the other it's not. >> it's not just because this it's because what happens is there is a recognition in both cases that it is a personal identification choice with regard to what goes on the passport. sure in that case the department didn't to get to litigation although i submit had they chosen to litigate that case they would have a stronger position. >> a personal item education choice can also have significant foreign policy implications, cannot? is that can either or situation with the state department is allowing is this particular personal identification trace

may antagonize some foreign nations we don't want to antagonize what if they gave the trace of saying israel, the only democracy in the middle east, that's their choice. they can have that on their passport. would that be okay? >> given this court's view about the congress power with regard to passports, and again i go back to the fact that in the all fees' passport cases the court said we look to see to what the president does is authorized by congress whether implicitly or otherwise so i submit with regard to passports you need the congressional authority whether it is complicity or expressed and with regard to your question, justice scalia, yes, congress could exercise its passport authority and say here

is the passport has to say. it would be foolish statute but this court has said, and i think that you have said many times it is not the court's job to determine whether the congress is foolish or not. if congress decides that, look, somebody born in israel with a passport can say the only democracy in the middle east congress can see that. congress has passed port authority. >> you are skipping over the question of what the d.c. court decided to read it is your view it is not a political question on the marriage. >> it's not a political question because it is like many other questions that affect foreign policy and the courts said not every decision that touches on foreign affairs or foreign policy is a political question that can't be determined to

regard to a plea according to the government this affects foreign policy. we say it is simply congress having passed the statute which eager is unconstitutional, we say it is constitutional, either unconstitutional or the court should simply enforce it like in the japan whaling case the court rejected the claim that the outcome of a determination by the court might very well affect foreign relations and it's not a political question. >> i would like the remaining time for rebuttal. >> thank you, mr. lewin. >> general? >> mr. chief justice and may i please the court. the executive has determined that the passports it issues

should not identify israel as the place of birth for people's born in jerusalem. petitioner seeks relief on section 214 that would kill countermanded executive judgment but under the constitution, that is an exercise of the executives are exclusive recognition power the constitution commits the power exclusively to the executive and neither a court nor the congress can override that judgment. >> your friend document contrary history at some length in his reply brief where from the beginning as he says in the administration the two branches acted as if they had a call equal authority. >> mr. chief justice if i might spend a minute or two on that because i don't think it shows what my friend suggests that it

does before getting to the starting point of that story which i think is the monroe administration i would like to point out that in the washington administration the president confronted the question with respect to reporter to recognize the revolutionary government and the president consulted with the cabinet and the cabinet included jefferson and madison, hamilton and they decided that this was a power that was exclusive to the president to such extent they didn't need to send a message to the contras that they were going to recognize the new revolutionary government in france. the second is there isn't a single piece of legislation that has passed and come to the president to recognize the foreign nation or territorial

boundary. >> there is an instance the president has recognized a foreign government over congress's sustained objection. >> i can't think of an instance of the sustained objection. i think probably the closest we would come is the revolutionary garment of mexico which president willson first recognized on the defacto basis of 1915 and of 1917 congress indicated displeasure and present wilson sent a message saying this is an exclusive function and congress back down. >> what are them the reasons? because it says this is -- all of these words every time the word exclusive power has appeared in any stores i think that's what you are saying it is meant the president can act without support and authority from congress but there never has been a case or the

suggestion that the president can act where the congress has legislated. i think that is the argument and so i would like to hear what you have to say. >> i will answer that directly. it is true that the court has never before with respect to the recognition power confronted the question of whether the president is free to enact the manner of congressional command because congress never purported to issue a command. that does not mean however about my friend is correct this is a situation in which congress hills authority to counter man or direct the decision of the president. this is we submit even if one thinks about this as the category three case this is a category three.

the kind of case in category three and which the president's judgment can prevail even over the country which the president has exclusive authority. the question is what leads you to that conclusion. there are very few cases i can think of where the court has said the president can act contrary to a statute and so the point of my question is to get you to talk about why -- i think would be helpful but if i could return to the chief justice's question about history moving beyond that recognition by washington that this is an exclusive power is quite significant when we get to the monroe administration there is a fight between clay and monroe about whether the president has exclusive authority to recognize

the new south american republicans. now, a couple of points there. i think that the only thing that one can point to as an action by the congress that even implicates the recognition power is one house of power passed an appropriations measure for an ambassador. with the global treaty is that my friend sites on page 133 the very page he cites is the the effort to contest the exclusive authority came to an inglorious end. he then goes on to say a year later when president monroe sought to recognize the asked the congress to join him on it what he asked congress for was

appropriation for an embassador it wasn't the sending of ambassador to the republic of colombia it was the recognition, it was when president monroe received an ambassador from columbia that constituted and that was an explosive packed undertook without consultation. >> to examples given in the brief one in texas where congress recognized and the president acquiesced and the same thing with taiwan and then the president implemented its so the congress thought it had the recognition authority in those measures and the president acquiesced. >> i would like to address texas because that is probably the most sick of the good example my friend identified but if one looks through its history they will find it is an explicit sex to get powered president jackson in his letter in 1836 to the congress says essentially i hear you you think we should

recognize texas and then he says it's an open question as far as i'm concerned whether there is exclusive authority or not it's not been something the legislature ever studied but as a matter of expediency we don't need to resolve that question because i want to work with you he then goes on to caution the congress to not move too quickly for fear of precipitating war with mexico which is functional now. then i think what's important is what congress did next was to pass the appropriations measures one in the house and one in the senate. each appropriates funds for an emissary but each includes language that says at such time president determines it is appropriate to do so. if one looks of the page in the

globe my friend cites one will see that was added because as originally introduced the appropriations world directed by mayors of congress if the infringe on the president's exclusive recognition of for the. >> if i could have you address the political question you say this is exclusively committed to the president and therefore it is a political question. how does that differ from saying it is our job to decide cases and then you can answer to the to argue the answer is exclusively committed to the president. i don't understand why labeling it advances much. >> we agree mr. chief justice that there isn't a great deal of difference. we acknowledge that in this and not less assiduous for the court to decide whether there is a textural commitment and for the

court to decide the scope we think that is with the united states stands and the power of mccormick says and then answering your questions we think he will have gone a very long way to determining the question of -- >> if the court decides the constitution commits itself exclusively to the president then it's all over. does the president have this authority? said the political question label seems to be kind of a centrifuge that because if there is a commitment to the president that's the end of the case. >> i do think that with respect to the textural commitment is a factor that the court has

indicated is one that can lead to a political question. i do think the court has to go through the analysis so at the end of the day there might not be much of a difference. >> it depends what the question as to decide whether it is a political question you have to identify the question. if the question is whether the president has exclusive authority with respect to the formal recognition of the country that might be one thing but what if the question is whether the president has exclusive jurisdiction with respect has authority with respect to anything the president thinks has a bearing on the question of recognition. if that's the question is that committed exclusively to the president? >> no, justice alito we think power against mccormick says not just scope but also for the court to decide. we do things with respect to the question here that even though it is for the court to decide it

is with a very significant measure of difference because when the decision by the executive with respect to how it's going to handle the status of jerusalem is a very sensitive and delicate matter. this position was arrived at after careful thought and is enforced very carefully and that should come from the lesson because the executive believes that the statement on the passport has to be understood as a manifestation of the president -- >> suppose the statute in the section that's there now and then there was another section and the sections said the recording of israel as a place on the passport shall not constitute recognition of israel's sovereignty over jerusalem would that the constitutional? >> i don't think it would change the analysis i think it of

course it has a title which says united states policy with respect to jerusalem as the capitol -- >> it says are identification of persons >> the libyan the scope to decide because the content of the past part in so far as the executive believes it constitutes an expert - enough an incident of recognition is a judgment that the executive makes. the court can review that but the review should be done with a significant measure of difference as suggested. >> what is meant different and the rationale? >> it seems you are not defending so there is no jurisdiction and for us to tell the council what is in their best interest but it does seem to me that your position would

be much stronger if use of the various jurisdictions and the president wins. >> we do think if jurisdiction the president wins but we do think if they acted appropriately finding -- >> if this remains blah, blah, but, then you have the constant of legislation legislative determination not clearly invalid and that seems against with all due respect not in the best interest of the argument made stomach the statute said if

israel horovitz were disputed which would seem to take care of your objection people are going to look of this individual false conclusions. >> i don't think that changes the analysis mr. chief justice, because i think that the -- the would be again seeking to direct a judge of -- >> it is the position of the administration that the status of jerusalem is disputed. >> that is correct mr. chief justice, but with the united states has about that and an official communication and remember a passport is not a communication by the passport holder. it is an official united states document that communicates the position of the united states. >> what if congress says in the place that you have it, this person has the trace of whether

or not to put jerusalem or israel. this doesn't affect whether the united states recognizes jerusalem as part of israel or not. it's just history. same problem? >> same problem. >> i thought the argument once someone is going to get out and say -- was the foreign policy instance in which to give hypothetical nobody could draw that conclusion and to say the same thing. >> i think this is an area where the executives have to make the judgment because it is of paramount importance the nation's speak with one voice. >> you are taking the position that this isn't a fair authority it is exclusive there is no role for congress. and i write --

>> the recognition power is -- >> of the recognition of a breakaway by the united states would provoke a war with that country would congress have the power to decree the president shall not recognize the breakaway province? knowing that if he does recognize a that country will declare war on the united states. spirit of the president addition to the to exercise that. >> no, no. we have a foolish president contrary to our history. [laughter] i just don't think that in a

situation like that the president would exercise a recognition power but if he did is the president's judgment to make. our cases say repeatedly that the president is the sole instrument of the united states for the conduct of foreign policy. but to be the sole instrument and determined the foreign policy are quite different things to say that he is the instrument simply means congressmen traveling abroad or globetrotting x presidents, nobody except the president of the united states pronounces the foreign policy but it doesn't necessarily mean the president determines everything in foreign policy.

there is room for saying that congress can say what the country's instrument is supposed to do. >> with respect to the question of recognition, justice scalia, that is a power that rests with the executive and in addition to the history and what we do now with actually exercising their power and i think in addition to the history there are good functional reasons why this summer and i think justice breyer answering your first question those are significant. the exercise of the recognition power depends we think on three things to make it clear it needs to be exclusive. gerstein, second as expertise. >> i didn't hear third. >> the need for secrecy timing is i think the example shows of critical importance but it's not just speed of course congress can act with the dispatch needed

in the situation like the recognition of israel, but apart from that, the recognition that occurs too soon could send evens in the direction that could be disadvantageous and a recognition that comes too late could squander an important opportunity in the national interest. >> is it a basis for your argument the president has exclusive power, alone or something else because there was surprised your brief put so much weight on that investors clause which arguably was meant to give the president. we do think the reception clause is the source of the recognition power. hamilton identified as the

source of the recognition power in the washington administration. fighting kits now understood -- >> if you have a cast a mount for something i don't suppose i don't know what else you would land upon it is there. >> is there. >> i would say in addition the court described as the vast share of responsibility the constitution to the executive. we don't think all of that for

being in control of the executive, yes we would. >> there are many things congress could do to frustrate the president decision to recognize another country. would use the all of those are unconstitutional in forms of the president exclusive recognition of for these cracks the president decides to and conagra's refuses to appropriate any money or refuses to concern. those would not be constitutional, right? >> record covered be a difference petraeus -- >> congress has authority over the appropriations and the ambassadors to have the authority and its exercise even if his intention with the president's recognition decision. it is the position of the executive there could be circumstances in which congress could preclude them from making

that power and the executive would in some circumstances believe it has the authority to move ahead despite those actions by congress. but of course this is not a situation in which congress passed a sense of the resolution about what it thinks. it's on to a situation rummage to regulate and contemplate a passport which the court recognized is a core instrument of the diplomatic communication. do you think that is say hard time i know congress exercise of. >> we don't think the entire passport is an exclusive power. i would come in by will explain where we think the line is but before doing so no one to push

back on the notion, russ. the first was 1856 but the court said the enactment of the statute merely confirmed the power everyone understood to be inherent in the executive. that statute did not regulate the passport it said passports shall be issued under such rules if the court to conclude this was the executive of farby. i would like somewhere a few words about the political question which you don't believe and from reading it much. my question on the public local side.

it's an area of recognition. we know that. never has this court or anyone else how congress can go ahead in this area over a law passed by congress but it is passports which would regulate and the real problem is these are words that artificially said and they are detailed words and those words may disrupt coherent foreign policy. there are billions that might have the same affect and to know that these words wouldn't vote, no, judges don't know that and therefore when you get into this area the best thing to do is avoid multifarious pronouncements by various departments of government on one question do not respect the views of other branches and judges, stay out of that. let them work it out by themselves.

i just want a word from either of you on that. >> the ann curry for the question is to the relief and if the relief the petitioner is seeking would invade the kind of judgments the constitution commits and the reason that commits to these kind of judgments exclusively is this is a situation in which multifarious voices are inimical. estimate the that is a determination. the whole question is who has the authority and whatever we to put on that you decide the president has as you just said the exclusive at the end of the matter it's not leaving at as justice breyer said to the political branches to fight it out between them. this saving the president is exclusive authority.

>> and justice ginsburg in the absence of section 214i think would be clear from belmont but the judgment on the recognition is explicitly committed to the executive and would be a political question of the party came and said i want my passport to see something different about your does a woman and says. >> detention i see here and i think it is what justice breyer is getting out is the label is important because if we call this a political question and don't address the merits of the outcome is that the president is saying that he is entitled to ignore the congress. i don't know what kind of message that sends but it is a little unsettling that a court charged with enforcing the law passed by congress we are not going to determine whether this

law is constitutional or unconstitutional. let's switch your definition of the political question is becoming. where does that stop? what situations, only in foreign policy do we decide not to. senator think justice sotomayor is actually quite narrow and the problem isn't a significant win because in reaching the conclusion as a political question the court of those have to decide whether there's a commitment to the executive the accord would resolve the question on whether the issue is within the scope of that commitment so the court would issue those rulings. >> but that's not the circuit did. >> you told the justice kagan it didn't depend upon the commitment that your position would be the same if you received the ambassador squall's not in the constitution.

>> i didn't mean to suggest it wouldn't be a commitment to read it would be a commitment that one would read as historical gloss on the power. >> it sounds to me like the text read >> and think it is the power to function of the equivalent of the specific commitment of course we to have the specific commitment here. >> it applies when somebody comes to the court and asks for the court to make the decision. if they would come without a congressional statute to rely upon and had said it is wrong for the state department not to let me say israel on my passport then we would say committed to the executive, but this is a situation where you have a dispute between the two branches and where that happens i find it hard to say we can't get into

it. why? because it is committed to one of the branches. it seems to me we have to resolve that question. >> as i said earlier, we think that the announcement of the political question was a very long way towards answering that question, justice scalia. we do think this could be seen as a case like gilligan in which looking at the relief that the petitioner is seeking with the plaintiff is seeking leads the court to conclude that entertaining the claim would embroil the court in decisions supposed to be made by another branch and that in fact i think you can understand section 214 is precisely that an effort to try to drill the court into this dispute between the congress and the executive over whether jerusalem should be recognized as a part of israel.

>> i wanted to follow-up on matt. does that mean that you are content to have this court not say whether it is the exclusive executive power or some congressional participation we could say it is none of our business. >> that isn't what you're asking us to do. spec that is correct. >> to decide the question is exclusively the presidential power. >> that is correct. >> it doesn't sound to me like abstaining because it is a political question it seems to me like deciding the case. >> we think whether the court is looking at it as a political question were looking at it as a judgment on the marriage the issue is textual commitment. there is a textual commitment this is a situation in which the country has to speak with one

voice and the executive is determined with the country should say. >> thank you, counsel. mr. lewin, we will give you six minutes. >> let me begin by equine what justice alito said during my colleagues's argument. the question is whether anything the president thinks berzon recognition as forecloses this court or any court from making that determination. this is not a recognition case. this is a passport case. the question is what goes on the passport and make somebody self identify. this is, again, as one looks of the statute, if one even looks of the foreign affairs manuel, a passport is not today consider diplomatic statement. it's an identification of a person in order to enable them to travel abroad. ..

>> people born in jerusalem can have their passports say jerusalem or israel. that's their choice. congress has not said it has to say israel, and then the department of state can issue as it did in the case of taiwan a public statement saying this is not official american policy. nobody's asking this court to decide what is official american policy. nobody's asking the court to

decide what as justice scalia said would happen if there's no congressional statute. in this case, it would be a political question. if my client had decided he wanted to have his passport say israel, and he had no congressional statute, and we brought the case to a court, the court could say, no, you're asking us to decide what the president should decide, what the department of state should decide, but other than that, congress has enacted the law. the fact is with regard to this legislation, it is a statute which determines personal choice with regard to a passport. the case can be a vehicle for an authoritative clarification of the roles of congress and the president conducting the nation's foreign affairs. if so, then we submit justice jackson's statement, which acknowledges that congress has

the final word in the third category, is one that should control, but there are narrower grounds for enforcing section 214d that do not implicate separation of powers issues. it's a passport law, it's within congress' constitutional authority under cases that recognized that the president may not deny or restrict passports without the express or implied approval of congress. that doesn't involve the recognition of foreign comps, and the state didn't's justification for a policy that congress disapproved does not sustain scrutiny. the court merely has to look at the record in this case in which the state department has said, look, we're concerned that there may be a misperception of what this means, a misperception, and

it's extraordinary that under the basis of the fact there's an alleged misperception, american citizens, who have been authorized by congress to say identify themselves on their passports as born in israel will now find that statute -- >> could you tell me -- let's assume that a dozen nations said this designation on the passport er we view as an act of war. if the united states is going to do this, we're going to view it as an act of war. would that, then, percent the president to ignore congress -- >> i think congress has to weigh that, and if congress determines that in any event this is what the passport should say, then that is -- >> so it's not the misperception at issue. >> well, in this case -- >> perception has nothing to do

with your argument. >> i don't think that's true. >> you're going back to justice scalia's point where congress dictates foreign policy in the end. >> in the end, if congress determines that what the president has said in this context is wrong, yes. we live in a system under which congress passes the law and the president has the duty, and i think justice scalia said, has the sole instance for the foreign policy, and the president speaks to the foreign policy that when congress authorizes him to do it, he may formulate it, but when congress disapproves of what he does, then under justice jackson's test with the steel case, congress prevails. the fact that there is victims in cases and kurtis wright and

the opinion in the wright case speaking broadly of the president as being the sole organ of foreign policy, one has to say that the harvard professor, thomas reid powell, who told his students just because justice writes clearly, you must not suppose he thinks clearly, and we submit that really -- [laughter] >> i have just one question on washington's revolutionary friend. you cite in the brief that the administration was following what they deemed to be a dictate of international law. do we infer from that he was not exercising real discretion there? >> correct. historians who studied that determined he was just following

mr. vitel who said you have to recognize any country that has de facto control, and therefore, since the french revolutionists were de facto of the government, washington had no choice. he was not exercising any kind of discretion. >> thank you, counsel. >> the case is submitted.

>> next, hying lights from question time in the australian parliament. prime minister julia and cabinet ministers answered questions about the decision by australian airline to ground all flights due to a labor union dispute. other questions related to immigration and the recent g20 meeting in france. this 40 minute program is curtesy of apac, the australian

public affairs channel. >> i'm david in canberra. we have the latest highlights of the australian parliament. they grounded their entire fleet of aircraft, and the political debate that followed over the workplace laws dominated the parliamentary session. the government made unhappiness with the decision quite clear. the prime minister also returned from the g20 talks in france urging european leaders to take more action to address their financial problems. the constant issue of immigration and boat arrivals of asylum seekers also dominated a parliamentary discussion with the government urging them to embrace plans of malaysia. here's the highlights of the latest session. ♪

>> any questions? the opposition. >> thank you, mr. speaker. my question is to the prime minister. the 48 hours of airport chaos that they would have prevented, and why didn't she immediately terminate this dispute without reference to a tribunal as she could have under her fair work act there by avoiding so much damage to hundreds of thousands of australians and soop damage to australians' national standing? >> order, order! order! order! prime minister? >> thank you very much, mr. speaker, and can i say, i'm surprised by the leader of the opposition leader's question coming as it does the leader of the opposition showing his usual negativity and playing politics

over the last few days as the government disputed the national interest and ensured throughout -- >> order! >> that the planes are returning to the sky today, and that industrial action is at the end and the parties will be brought together in conciliation, and if that conciliation is unsuccessful, then an arbitration, a determination by fair work australia will occur. sorry, mr. speaker, what the government ensured by its swift action is that industrial action is over -- >> order. the prime minister will resume her statement. [inaudible conversations] the prime minister will ask the question. the mime minister is responding to a question. it is not an up vitelation for on the -- invitation for those on the left to canvas everything under the sun, and the member is warned.

the prime minister. >> thank you very much, mr. speaker. so i again make the point that the course of action the government embarked on has given us the results we wanted to see, which is an end of industrial action and qantas planes taken back to the sky to proceed with travel plans with certainty. i'm concerned about the circumstances of stranded passengers as i said publicly and happy to repeat in this place, i view qantas's action on saturday as extreme. i view it as extreme because they stranded tens of thousands of people around our nation and around the world, and with the industrial action -- >> order. >> now at an end, those passengers can start seeing qantas planes fly again and be able to resume their journeys. now, during this period that the government has been acting and attending to the national interests, of course, the leader of the opposition has been playing his usual negative

politics, and in particular, the leader of the opposition is seeking to make political points about sex 43 # 1 -- section 431 of the fair work act. as usual, the leader of the opposition grabbed on to the politics, but never does the work necessary in order to actually analyze the situation and act in the national interest, the leader of the opposition never bothering to turn his mind to the national interest. let me, for the purpose of the record anded to leader of the opposition explain the workings of section 431 of the act. this is a section of last resort that appears in the fair work act and appeared in earlier legislation. it has never been used. a minister cannot use it. a minister cannot use it until a minister is satisfied about a high threshold of significant damage to the national economy. the same is that fair work

australia directed itself to. the leader of the opposition's claims that the minister could have used this section prior to escalation of the industrial dispute on saturday is unholy true, and anybody who provided him with legal advice to the contrary would be providing him with the wrong advice. when the dispute escalated saturday, then i would say to the leader of the opposition the power under section 431 by a minister is capable of judicial review. it's never been used before. it would have taken us into wholly new legal terrain, 10 we determined to use section 424, which has been effective to get the result we wanted which was to get planes back into the sky. i would also note for the completeness on the record that we were advised by the relevant department that in these circumstances, the appropriate section to use was section 424. the leader of the opposition obviously wanted to get the nation on a journey of

potentially never-ending litigation. i wanted to get the dispute resolved, and itch done so. -- i have done so. >> order. the leader of the opposition? >> supplementary to the prime minister. once the prime minister was aware of what was about to occur five o'clock in the afternoon, why not just pick up the phone to alan joyce and ask him not to ground the fleet? was this too hard for you, prime minister? >> the prime minister? order! order! [inaudible conversations] the prime minister has the call. [inaudible conversations] order! [inaudible conversations] order! [inaudible conversations] prime minister? >> thank you very much, mr. speaker, and i thank you for the question because it enabled me to clarify here on the public record, some of the things that have been claimed by the opposition which are wholly

untrue. let me make sure 245 the leader of the opposition actually understands what happened with these industrial relations disputes because he's too involved in his cheep politics against the national interest and analyze the circumstances and analyze the law. the only thing the leader of the opposition ever new about workplace relations was word choices and to the leader of the opposition, if he actually wants to, instead of playing cheap politics, analyze the national interest, absorb the following fact. fact number one -- >> prime minister has -- order, order, order! the leader of the opposition with a point of order? >> yes, mr. speaker. it was a simple request. why not all alan joyce and ask him not to ground the fleet. >> the prime minister has the call. prime minister? >> thank you very much, and i

know the facts are always very inconvenient for the leaders of the opposition, but these are the facts. friday, qantas was indicating publicly that-still involved in negotiating disputes. saturday at two o'clock qantas advised government agencies particularly that qantas was grounding the planes at 5 p.m. -- [inaudible conversations] >> order! dixon is warned. [inaudible conversations] the member is warned. >> thank you very much, mr. speaker. the qantas advised particularly the minister of transport around two o'clock that planes would be grounded at 5 in preparation of a lockout. the ceo of qantas made it clear to the minister that he was not requesting that the government do anything, that he was not -- >> order! order! >> that the decision had been

made by the qantas board, and the decision would be implemented so in the face of that advice when i received it from relevant ministers what i did was rather than talk, i acted. the leader of the opposition, a man given to things like -- [inaudible] might have spent endless days chatting as thousands of passengers were stranded. he might have done that. what i preferred to do was act, mr. speaker. i determined immediately that the government would act, that we would intervene in this dispute. we made application to fear -- >> the member of kappa is warned. >> we made application quickly and urgent here saturday night that hearing accountanted yesterday and concluded in the small hours of the morning with a decision that industrial action be perceived, and with industrial action now finished, what this means is that the

substance of the qantas dispute will either be addressed by the industrial parties through a conciliation or it will be arbitrated by fear work australia if the parties within a 21-day period do not sort out the dispute. now, i know the facts don't suit the leader of the opposition's cheap politics and has many positions, but the only thing that is ever motivating him is cheap politics and working out how to justify a return to work choices and that is all this is about. >> the member? >> thank you, mr. speaker. my question is to the treasurer. will the treasurer update the house on the economic impacts of the recent actions taken by qantas? >> the deputy prime minister, the treasurer. >> thank you. as members are aware, qantas did take the extraordinary action on

grounding its entire international and domestic fleet on saturday afternoon, and this was an action which posed very significant risk to our economy and very significant risk to employment and very significant risk to the business community more generally, and that is why the prime minister took immediate action, mr. speaker. decisive action to get fair work australia involved and the consequence of that is that plains are going to be back in the air because we understood the seriousness of this situation, mr. speaker, even those opposite do not. they might think they can play a political game with this, but these matters are too serious for the politicking of those offices. we took our responsibilities extremely seriously, and i want to explain to the house why we took our responsibilities so seriously. in august, qantas carried a massive 1.5 million passengers,

smas something like 50,000 pages a day, and in the same month, it carried half a million international passengers so this decision of qantas to lock out the work force, to do it without notice, posed a very significant risk to our national economy, and the decision by fair work australia was a significant breakthrough in resolving this difficult dispute. a significant breakthrough because what we would have seen if this was a protracted dispute was politics through the economy. in queensland, understand the importance of aviation to the tourist industry, but it's not just the tourist industry. we understand the importance of aviation when it comes to our miening industry. for example, fly-in, fly-out miners. all of these immediately affected, and that's before you go to the tens of thousands of

businesses in the tourist industry and elsewhere and everybody else right down the supply chain who would have been affected if this dispute had gone on, so the prime minister acted decisively and immediately to deal with the dispute, but what we're hearing in the house today is the game playing and politicking of those opposite. the leader of the opposition is all opposition and no leadership. he would rather see the country filed in -- fail and the government succeed, mr. speaker. when you get to a difficult national issue like this, what you have to do is put the national interest first, and this government will always put the national interest first. we did it during the global recession, and the global financial crisis despite the opposition of all those who didn't want to stimulate the economy, but for this side of the house, we'll always put jobs first. we will always try to do everything we can to keep the doors of small business open

because we're committed to the national interest. committed to their own selfish political interest the side opposite. >> the member of north sidney. >> my question is to the treasurer. i refer to the treasurer to the morning's analysis, and i quote, "the impression left on foreign investors is a poor one. the perception of union militancy increases equity risk premiums while the fact the incumbent government did nothing about the rolling strike until it was forced too also reflecting poorly on australia." >> order! the member for north sidney has the call. the member for north sydney. >> treasurer, when were you first made aware of the grounding of the qantas planes,

and what did you do to prevent it? >> the treasurer, deputy prime minister. >> mr. speaker, the most important thing to do when handling an industrial dispute is put the national interest first. >> mr. speaker? >> that's what the government has done. [inaudible conversations] >> order! >> mr. speaker, when the board of transport was informed of the decision, which they said was non-negotiateble, mr. speaker, he rang me! i then spoke to him, subsequently spoke to the prime minister, spoke to a number of ministers to bring them together and put in place this possible action that we could begin the threat to our national economy, so we acted as soon as we possibly could. we acted within the law of the land, and we acted with a genuine desire to resolve this dispute. now, i know those opposite want to take sides in a dispute, mr. speaker, they just take one side

when talking about industrial relations. we know they never take the side of the workers, mr. speaker, and they never take the side of the wokers. what we will do on this side of the house, mr. speaker, is that we will work in an even-handed way within the industrial system to make sure that both the employers and the employees are heard, mr. speaker. we'll do that in the national interest. >> mr. speaker, this question's for the prime minister. i refer them to the embarrassing record. it's failure to put pink bats in routes without starting fires and ripoff after ripoff, and the biggest budget deficit in history, failure to protect the borders, the only economy-wide carbon tax that has promised would never happen, and i ask, mr. speaker, given the prime

minister's failure to act on saturday to prevent 48 hours of avoidable chaos, how can she expect the australian people to have any faith whatsoever in this divided and directionless government? [inaudible conversations] >> order! the prime minister has the call. prime minister? [inaudible conversations] >> thank you very much, mr. speaker. to the leader of the opposition, i say a bit embarrassing for you now, isn't it? there he is with his negativity coming in here every day and he's clinching to his negative slogans, and he's done that with a piece of december per ration today because he didn't -- he does not want to be talking about qantas. did he know an hour before the planes were grounded? did he know 24 hours before the planes were grounded? did he know 48 hours before the planes were grounded?

did he ring up qantas and asked if the planes should be grounded? who knows what role the leader of the opposition played in this dispute because he is in coffer up mode. having slain the truth yesterday, having the truth, he wanted to know every word, every telephone call, every piece of legal advice, what was said to every minister in every meeting, screaming for the truth, yelled for the truth, wanted the truth, and then confronted with questions about his role today, stunningly silent, stunningly silent. in the midst of that stunning silence, he's obviously gone to the, you know, the break glass in case of emergency, and he's gone and got all of his old negative slogans out and knitted them it together as a question, truly pathetic. truly pathetic. i'll say this to the leader of the opposition -- this government will continue to do the following things -- we will

continue to have the fair work system, the leader of the opposition believes in work choices. we will continue to ensure that these are strong national economy that works in the interest of all. the leader of the opposition wants the miners to pay less tax, take money from other people, make them pay less tax. we'll ensure they have the benefit of new technology, the national broadband network. the leader of the opposition wants to rip it out of the ground. we'll ensure australians have a clean energy future at the lowest possible price just like he wants to give money to big miners, take money off families and give it to big polluters. we will ensure that we continue to reform and invest in our education system. the leader of the opposition is committed to ripping money out of schools and out of apprenticeships. we'll continue to ensure we invest in the future of australian hills.

the leader of the opposition is a man whose only achievement as health minister in the nation was taking a billion dollars from the hospitals. we'll continue to ensure -- we will continue to ensure that working people in this country can see an economy that's being managed in their interest, and that they are receiving the services that families need. the leader of the opposition would never manage the economy in their interest. we can tell that from his conduct over the last few days, and certainly, he is dedicated to ripping away the services that they need. we will ensure that the budget comes to surplus next year. the leader of the opposition sits there with the $17 billion dollar black hole slashing services to working families. i thank the leader of the opposition for his question. it was an attempt at