eye and make them trust us that we can make a difference. the ethier turns in the joy. .. >> these programs have been incredibly successful, and i want to point out almost everyone that comes to these clinics have insurance, i'm sorry, they have jobs. many times they don't have

insurance they have jobs. these are hard-working people who have for one reason or another not been able to get access to care they would have envisioned it. it takes five minutes to give you the numbers that life health and ten minutes to educate you on those numbers but for the rest of your life you know more about the major drivers of longevity. i'm going to cover some of those for you today because i want to give you the highlights of what messages we offer because they are simple, elegant, seamless, and they make it easier again to do the right thing. what may shift from access to tobacco usage. this is a charge of the amount of total tobacco we consume in this country. you notice we made it are not 2002, 2003 we are climbing back up in part because we have other sources of tobacco. this is something i know many of you struggle with. but this is why talk about one disease. this is a healthy normal lung looks like to get its fluffy and pink and you can see that vitality that would come into it. it is sustaining oxygen pouring through it. when you tell a smoker to stop

smoking, and this has been looked at many times, the reason it feels is because you are reminding them how incompetent they are. you are reminding them why they don't value themselves because people who smoke generally got addicted when they were teams, generally want to stop by the time they are 30 and when you tell them it's bad for them you remind them of the fact that they couldn't control their own destiny so they get anxious and what do they do, they smoke it's they're coping mechanism. but in the trial at columbia university sponsored by the nih and they made sure we don't have depressed people in the trial we have to cancel the trial we couldn't find a single smoker who wasn't clinically depressed. now the fundamental insight you have to gain is what you do to help these folks and i would argue you have to take a couple different attacks. one is show them what is happening. this is what a smoker's lung looks like today if you can't hide from that. you know it's bad. you see that little of

appearance that is emphysema. the deposits are pretty evident as well from the cigarettes. when you see that you have a visceral awareness and understanding of why is matters to you but the second insight you have to offer them is that there are certain times you can change people's minds. as a heart surgeon i don't have a lot of control what people do after the surgery. i've already done my work and they are on their way. i long ago pledged i would never operate on smokers, and i don't. and i don't say that because i dislike smokers. i say because i care about them. but i tell them is when you come to see me if you don't stop smoking you obviously don't value this process we aren't going to go ahead. but i can work with you and we can get you to stop. now is our moment of change. i don't remember feeling in that endeavor. people don't realize the success rate for stopping is about 5% if you do it on your own, cold turkey. you can do it but it's 5%. if you use appropriate mechanisms including medications, it's closer to 45%.

and smokers begin to think that it differently. the key message -- and i'm going to come back to this because it's important for us -- the reason they do this is because you need to care about yourself the way we care about you. that changes the dynamic of the message energetically people are hearing. it's not a finger wagging issue. it's because we care about you we have to make it difficult for you to smoke. why does that matter? dutrow cost -- this is cleveland data -- the true cost is $35 a pack. that's what it really costs. forget about what is charged, its $35 a pack. smoking increases absenteeism and decreases intelligence and the work force. people who smoke have to leave their job to go smoke. they recognize, you know, they have these beliefs like they will stay thin if they smoke. it's true, you won't gain weight if you smoke. that's not the right way to lose weight but it works. they will accelerate their path of the corporate chain if they smoke. you know why they think that? it's true. people that smoke bond with executive smokers and they get

accelerated up the path. all of that said and done we have to make it kunkel to smoke and it's a huge economic drain and a quality treen of the work force as well. not hiring workers that smoke would reduce your health care budget by about 15% within five years. so, once you have that and go, and the question becomes what are you going to do about it and i would argue one smart thing to do is let hospitals have been able to defend 21 of the 50 states can be done now, which is force people to hire smokers. it's an uncomfortable conversation, but i do think it gives you the clout to be able to dramatically reduce the amount of money you spend in your standard health care and one day this would be true for the state employees as well that they won't be able to smoke because it is expensive to cover those costs. let me shift gears to another area. it is unfortunately is a major crisis for us and if this is in fact what the classics look like maybe they wouldn't be popular but this is a modern version of what would have to have been crafted if you're going to focus on this. let me start with the ravages of obesity and why i care about

them. this is an a or dhaka, the courses on the back that curious what your body those are the two kidneys. the kid me on the right is big and blond and robust rate of the kidney on the left is shriveled like a raisin and the blood vessel going to remember this clouding, that is a dead kidney. you don't know this by the way when you get blood tests because your body only need one kidney but we see this progressively as a sign of sclerosis a hardening of the artery but what they bring those up in a different context because it happens in the kidneys and in the male organ which is one of the reasons this came up yesterday in the conversations with espouses by the way. issues of intimacy. but also because this is for the male's the dipstick of health to give that part of your body isn't working it isn't because you don't care it's because the other parts aren't working either. and is also happening in your brain but as it is specially happens here this is the major blood vessels in front of a heart. that starts in your 1820 years

of age from corrine and war data from killed jihadis until you're 35 or 40 -- see that yellow plaque now you have an open sore on the inside of the major blood vessels feeding your heart. you're body has to heal that so it forms a scab on top of it, a blood clot. and right there, boom! you just witnessed the leading cause of death in your states. that might be intimidating initially the thought that it could happen so quickly. the good news is the most common time for a heart attack is monday morning. we sorted through that already. [laughter] the other bit of good news is that once you recognize that it wasn't a plaque that killed this person, it was the scab on top of the plaque you then begin to appreciate that you can control your destiny. literally but you have for lunch today and who you fight with this afternoon can change the audit you have any major cardiac arrest tomorrow we and when we began to appreciate that we can

make a dent in how we take care of folks. the major drivers of this are very predictable. i mentioned blood pressure early on blood pressure is such a major driver of beijing because it causes holes in our arteries that we have to repair. and repair it with plaster. what's the bodies plaster cracks its cholesterol. if you have high-quality cholesterol, you get a nice thing spackling. you make lousy cholesterol and it's cheap stuff that pours out and crumbles and you have to form a scab like i just showed you and it kills you. the ideal blood pressure, the optimal blood pressure is 115 over 75. jot that down. the blood pressure most of the panic over is on 40 over 90. the life expectancy difference over the two is ten years because blood pressure is the number one cause of aging. cigarettes come behind for the same reason, nicotine damages the the arteries, the plaster has to heal and so on and so forth. that's why this is so important. this is an image of our expected health care spending at the

national level. the 19.6 number is what we estimate is the average growth rate over the next eight to ten years. the obesity, the belief that increase is 24% plus. i guarantee you jack didn't mention this but i also went to the school when i was in medical and i studied health care finance. i guarantee you that there is no way that our budget will increase at that rate unless we deal of the mental obesity pity because that process of dealing with cardiovascular crisis and cancer rates and all the other things that go with the way we are carrying as a nation dramatically to of the health care budget and we increase it at least 5% more than you think. this is a national security issue at a certain point if we don't deal with this. so, what works? why can't we lose weight? what conventional willpower people think i'm going to muscle my way through that. there are a dozen redundant systems in the body that force us to eat. how many, put your hands up, how many of you can hold your breath indefinitely under water?

none of you. not one. it's impossible. it violates the basic understanding of the physiology. likewise, you cannot lose weight by trying to lose weight because your biology will always beat your willpower to read second thing we do is we don't measure the right stuff. it doesn't matter what your weight is, it matters what your waste is to read your waist, which is a better predictor of your risk is greater than half of your height, that's a problem. complications start to occur. let's look through the math. at my - 6-foot 4 inches tall, plus 173 inches about my height, divided in half, 36 and a half inches. if my waist is more than 36 and a half inches and at risk for cardiovascular disease. the problem is that men after the age of 40 never buy a new belt size coming today? they just put it beneath the fast and they walk around like this and so they actually mislead themselves thinking that 32-inch waist is still what they are carrying around the age of

45 when truly it is significantly greater. now why is the waste more important? because of this? see that in the upper left-hand corner, the green thing is the gallbladder. you had breakfast and the food is moving towards your stomach to the intestine and it will mix with the bible. it washes the food and as it watches the food breaks on the particles that allow it to get absorbed in the wall of the small intestine. where does that go? it goes up to the portal vein and that carries the nutrients to deliver, high-quality nutrients your liver loves it, it will convert to when you need but if it is junk, if it is simple curves especially it turns your liver. as your liver gets fat which one-quarter of the population has come you begin to do something else that becomes toxic and releases toxic cholesterol and fat yellow pad momentum without the m. it gets large and gets pulled across the stream. that's why i care about believe that. it's not the fat beneath the

skin, the giglio arms for the fight is that will cost folks some dates but not what causes the disease. what kills us is that delhi fat beneath the mosul that is uniquely placed there because our ancestors needed to store fat in times of famine. stress is the number one reason that we accumulate fat and the reason that's true is because historically chronic stress was a fan to read we didn't have enough food in the environment, you turned on hormones that force you to eat, the tehran cannabinoids. how many of you have smoked pot. any pot smokers? i didn't think so. [laughter] when folks smoke pot the reason they get the munchies is because it turns on the same receptors and they're blaming. so the things that are the like and they eat lots of them. your constituents are doing that day in and day out and they can't understand why it's happening. we have designed foods very specifically to happen to that. when you add sugar to the bliss

point, it's like crack cocaine for the brain. it gives these feelings you ought to have and also helps with that warmed over taste people don't like. there's all kind of things that have been added to the food supply, sold as the best example because it is magical. it makes everything to still little bit better than it really is and these are properties that force us to do just that. now, stress is not just from the outside. there are many things that cause stress. food for a particular cost. you may not remember this, but without any question, your ability to lose weight is linked to your having breakfast. but, pop tarts, you know, sugar cereals, they don't count. and actually has to be a high fiber breakfast because you have a valve inside your intestines that literally squeezes down, that shuts down the food flowing through the intestinal track that allows you to hold on to food longer periods of having fiber for breakfast works. it turns out that liked and is important. you've never heard of that but he will from now want to get

leptin is the chemical you're fat sent to your brain to say i am here. you don't have to keep eating. interestingly, some foods don't turn that on. high fructose foods do not seem to. it's one of the reasons we believe, we don't know for sure, but we believe that when you drink a soft drink, soda, you will not only have the drink that is 160 calories that he will meet independent of that, not counting that an extra 125 calories. the entire obesity epidemic is about 100 calories a day. think about, 100 calories a day is 12 pounds a year. you can multiply that by two years and that is how overweight we are. so these are simple insights that you begin to remember. the biology of blubber is supporting the use of these kind of simple carbohydrates especially if there of the trade. we make this mistake all the time. yogurt. a lot of people think i'm going to be healthy i'm going to drink on fat yogurt.

big mistake. if you take the fat out of yogurt what is left? sugar. it's a sugar drink if it is very. instead, you want the fat in the milk. it was made that we further reason. the milk is satiating. it seems independently to call your fat cells so you don't accumulate fat. there's been trials on this interesting over and over again. the 2% fat or low-fat milk seems to be better if you want to lose weight. that's like giving people diet soda doesn't work. every single trial ever done on a diet soda show it they don't help you lose weight. why? because your brain size you gave me sweets but you didn't give me calories. i'm looking for the good stuff, nutrients to seóul you are doing is reminding yourself to eat. the system is simple to understand and once you appreciate that you have to change that. this is one of the best examples. adrenaline, it's a hormone that makes your stomach growled when you are hungry. if you wait until you are hungry to sit down and eat, you will probably have over the course of

30 minutes three times more than you want to eat and it takes 30 minutes for the grueling to naturally come back down to normal. well, you know, 30 minutes you can do a lot of damage said you should never sit down and you are hungry to the bible are due every one of you as busy as you will use it never walked out without notes in your pocket. keep them in your desk drawer, your car, if you always have nots and a few minutes before you go anywhere you have to eat something for them in your mouth. those 100 calories will cut down when you sit down to eat and you won't be craving the foot in front of you anymore and the things you to speak at and attend the are of the best anyway. they are simple ways for us to get nudged to biology of the right direction. what we move to another category. in the first slide i talked about half of our budgets are changeable, fixable, sedentary lifestyle. if you are sick for every hour you said i should say at your mortality rate increases 11%.

now, that's a pretty big penalty to pay. it turns out that the center lifestyle is important on because you get to move around but it's also important because it avoids realty which is a major a jerk. if i get rid of all the cancer in america in each of your states got rid of all of the cancer we would live on average 2.8 years longer. that's it. a little more than two years longer. why? because what kills people is not the cancer per say. it's that they are too frail to either whether the treatment or recovered afterwards, the same for heart disease. so we go round the world in places people live a long time and find that over and over again so what you do about it? you have to build muscle mass and to do that by pushing yourself. look at what happens. when you don't push yourself you end up with problems like osteoporosis which is shown here on the right and you all have medications for it but it's expensive and they do not work nearly as well as resistance training which is what we ought to be focused on in our communities, getting people to recognize this means reminding them what they used to do.

pure is the cheetah, looking how powerful as it chases after its meal. now look what happens if you can go full speed as well to get its very doable. [laughter] ask yourself when was the last time you went at full speed? when was the last time you gave it everything you had? our average fitness age 70 and is the same as age 65. i'm going to say that again. although we begin our physical ability at age 27, we jumped the highest, left the most of the ability to endure activities, running, jogging, but never come age 17 is the same at 65. our species hunted its prey not by offering them, we endured then. we have the ability to sweat and breathe in a way that could catch up when they look at how humans use to catch antelopes

after two hours it fell over from being exhausted. we come up behind it and eat it so we have a devotee but we forgot about and that delays energy know. we have bought that holds us back. what have you done about this? what i think there's a best practice to sure we have about 200 people that work on the program and we have a big medical unit so we spent time pulling together what states are done. i'm going to go for best practices and give you the thoughts i think might be actionable but you could take home and began to use and we will ask questions if we have time. texas had a texas round up initiative, the fitness festivals and races, these big competitions organized where one company or one school would fight against another company or school and they will compare their ratings and all of this is don longline and online training opportunities are huge. now, when we started the show, we started a web business with it and that website gets about 100 million page views amount now and part of the reason i mention that is there is a

voracious appetite for the unadulterated health information. if you are not trying to hawk something to somebody, trying to sell something to somebody, that is the way to do it. get them the information the trust. of the department of defense approached us and we are now building the fitness persian in the army's website, this is what all of our veterans will be using to the employees of the mother of three to be able to benefit from a slew of different tools to read again, no advertising, it is the service the veterans get. these are buildable endeavors. the infrastructure exists here. if you do nothing else, go home tonight and take the test to tell you how old your body thinks you are because frankly no one cares about your chronological age. that's there for the biography your physiological age that matters. as of the age test based on 30,000 articles helps us find that 25 million americans have taken it. every single individual i think curious about their health needs

a barometer, a scorecard of how they are doing. these are tips we have to raise giving recommendations. very sophisticated social media tools to give you advice because when you get sick u.s. your friends how to manage it. these are tools available, they're scalable and inexpensive in the military is building them for the soldiers we can use them for our state employees to start with and may be further on down the road. california has a let's get healthy task force designing a long-term plan. i mentioned them because they built their own - board of health, of indicators. i think you ought to think about this for each of your states. how we assess calfee we are and the numbers we are going to play against so let's figure out how we are greeted and then start to keep score so that dashboard is a model for many of your and other states have done this as well but i think it is a very clever way of being able to agree on the unified set of ideas and we do those in fatima's of physicals we agree on five members. your blood pressure,

cholesterol, blood sugar and how your waste is. we know those numbers and be treated a biopsy on the community. a punch biopsy that can then give a report card back to the mayor or the governor of the states. that's why we do them and then because they care about the people in the state and appreciate the bigger scale of the issue when you're not healthy they can use that as ammo to push through changes like how affordable or accessible fresh fruits and vegetables are people so in california was a big issue because disparities are costing them a lot of money because they were uncovered individuals. in new york it's more of the city of new york and the state for the most part on the slide, but the smoking bans, which didn't hurt restaurant business, transnet being removed, but once everybody knew the rules, all of the restaurants shifted over to the launch trans fat services. and again, we have to often socialized expenses and privatized profits. if this allows i think a more sophisticated way of dealing with those socialist costs so we can share them more easily to get because, again, if you

create rules that everyone can follow, then they will do the right thing otherwise people will chair retek and profit accordingly. the calorie counts and the avoidance of large sodas are good examples of those. i personally, you know, think each state is going to have to find their own way of going down this path. that's why i started presentation between the role of the public sector and the individual responsibility. but i think it is worth putting this in the document and if you ask michael blumberg was this good or bad, he will say does it matter? people are talking about it. if we are talking about the impact of large sodas, did it in itself is worth the risk publicly to the conversation going. there are many other states. the fantastic improvements in the major urban areas like philadelphia, massachusetts work, these are the bones in the world where we live the longest and when you go look at these places to find out what makes them live a long time there are simple things done well. real food, wholefood. the activity that i mentioned

earlier, the social infrastructure when i was reading michigan got to will and oregon has the best coordinated care plan in the nation. and that allows of course to avoid the unnecessary care. one little ticked to all of you with messages to consumers, it ought to be about second opinions. it's not about them making mistakes or the doctor is not being good. only 10% of americans get second opinions for medical care, but over and over again, we've seen that roughly a third of the time, one in three times a second opinion will change the diagnosis or your therapy. think about that. the difference between instances of preoperative back surgery in boston and houston is tenfold. hawken as an operation began ten times more often in one place than in another? lady the number is five. maybe it should be ten or one. who knows but it cannot be tenfold difference. second opinions -- why don't people get second opinions?

is a minor procedure. why would i bother? a minor procedure is a procedure to somebody else. it's a procedure on you it's not minor. and i think that's the mindset and the message about that people are keeping in mind. one of the things that allow the states is health for the children of education foundation. it's in 14 states now the district of columbia. it's basically the peace corps. in fact, tammie shriver has been supportive on the board of the entity and california when maria was and still is a big supporter of the program. the peace corps was created by shriver and if you take energetic college kids, give them of one or two of training and put them off in botswana to build the dams the same energetic college kids want to give back and there are lots of them and we put them through a month course about how to teach and how to teach about health and we put them in school systems around the country. and you know what? they teach kids about what to eat and share with them how to get better exercise habits. but what they really do is give

the kids mental resilience. that is what is all about. you should be caring about health. if people can control what is happening in their bodies they can change the world outside of their body. if they cannot even take care of their own habits how can they think they can make a difference anywhere else? when kids hear that message it resonates with them. it's cool for them. it's about a kid a couple years older than them during insights about the world. all of a sudden the big conversation happens in the hallway and the change what they are going to do. we touched the lives of 40,000 kids every country. it's a very expensive program that costs about a dollar per year of life per kid. i encourage you all to look into health core.org. the content, it's free, it's a 51c3, primarily private funded with a lot of private partnerships we have major states i mentioned here but it allows us to thrive and play a role and gives you a model. it gives you an army of young people who are going to go home to their parents and they're

going to fight with them any way of the open the fridge and say mom, but gives? you have high fructose corn syrup and hear or dad, you're not going to walk? simple things that allow the conversation to take place instead of the kids being the achilles' heel of society to become the backbone of the or the future. we take organs in the school, real organs and i don't care if it's the gym class or regular class system and we work with the teachers' unions and systems to get these volunteers to play an active role and they are in the schools for the whole year as they take these kids three life changing awakening of how critical, how vital the temple of the soul is. the most valuable thing bigger ever given. how do i drive this home? there's a couple ways of driving at home. let me leave you with a couple steps that i think might be helpful. the first is when to be a little more fun to read this is a playful pat to health to - 30 rockefeller center's across from jimmy fallin and downstairs from saturday night live so we have been put on, the issues. change your state song to a

workout routine, trade the 5k for parking tickets. i love this one started a potato chip buyback program summer to lay down this wall. i think this could be big. pasted income tax refunds and organic vegetables and pass a constitutional amendment on marriage requiring a minimum number of situps. so i think there are many ways of messaging this. but there are some simple tips that i do think make sense. one is i will copy your colleagues to read in this room the brightest people that know how to change the way that we deliver health and our states and that is where we win the battle we are not going to win the battle for help in washington we will win in the living rooms and bedrooms, that's where we are going to win. i think you ought to have your own dashboard depending on what your state specifics are. businesses want to play a role and i never forget when i read health court of leadership of new york. the first sort of question was about the logistics how to get

the private sector involved and they don't tell how to get involved. think about the biggest states and one of the biggest business leaders do want to help the health care system or fix the school system how do they get involved? it's really hard because business counselors give people a pathway to help if they want to help and they are out there. i want third to use your dmv. we've asked by the governor christie to use the new jersey state dmv to message organ donations so we are creating psa to go out in an elegant way and more celebratory way getting folks to realize their organs can go to heaven with you. god knows we need them here and get people to donate. it's a symbol for concept and i don't want to focus on that the default on balmy that the dmv is a unique ability to message to people you have all the information coming to control it, people open their mail, you can give them tips that actually are valuable to them when you are giving them other critical information. that even if it is health lines might be helpful and we can

extrapolate from the messages that we are going to get organs which by the way i'm helping any state the desire is that as well but we can move past that and to other musical scenarios. junk food free zones ought to be part of this and the governors olympics. i'm not talking est. event where you have the best athletes competing to refine talking abut schools. tenth grade at once will compete with a tenth grader at another to see who walks the most in that month for that calendar year. simple things like that allow teachers to have an excuse to talk to the kids about health and how this can happen in businesses as well and when they submit themselves having walked and we do this by keeping the schools competing so intent grade teacher will get their kids to wear speedometers and over the course of a month they learn a lot about this for a dollar, more like capital reinvestment per cade you have a program that seems to make sense. when you go on today, what should you do? you ought to think about 15 as it physical site for hospitals will find these. they are incredibly inexpensive.

you can screen thousands of people for almost nothing and allow a conversation to take place in a festival setting. it's not scary and i mentioned earlier almost everybody that comes to the physical has a job. give them a way of crawling back out of the abyss of darkness and year over not having the help they need and give them an opportunity because they don't have the right to health but to access. health car is out there. i just taped a show with her its winter air on thursday for the let's move program coming you know about these but it's a version of this that's an expensive and should be your program in your state modified as you need it to be and that's why we built it. you can insert a i don't think you ought to hire smokers. i know it's hard to do, 21 states in the country allow private companies not to hire smokers. i.e. appreciate you all been through this conversation. it is in my perspective indefensible for us to spend 15%

more money at the same time many people hurt themselves. we have to be smarter than this. for every complex solution. we have a solution that can't be complex to find out ways of making it at least legal and every one of the states in america for employees to be to employers not to hire a smoker and it is the message write i care about you i am here for you i will pay for your smoking cessation i want to hire you but i can't do it if you are doing this i think that message will resonate as opposed to the fear that many have come and finally, keep not in your pockets -- keep nuts in your pockets. [applause] >> questions. >> i know we can do this for a long time. it's absolutely tremendous but we have to get moving in a few

minutes. is there one or two questions? >> i will start calling on people. >> you want me to tell you what i tell your spouse's? , of the women asked about the single important thing about longevity and i say it's more sexual what to the and they start asking pointed questions about that so we start delving into the reality of 80% of the time of this erectile dysfunction its physical, not mental, and these are tasking me about what the numbers are so i said the average american is into met once a week. if we can go from once a week to twice a week which is very achievable for this type of individuals, we can increase your life expectancy by three years and would be a lot more fun. so that is your goal when you go home but to go from once to twice a week. it should be very, very sustainable. thank you very much. [applause]

this morning president obama met with congressional leaders at the white house to discuss solutions to avoiding the sequester. the $85 billion of automatic spending cuts scheduled to take effect. no agreement was reached as president and lawmakers began to shift their focus to the march 27 deadline when the government funding is set to run out. after the meeting the president spoke with reporters inside of the white house and responded to a question about the impact the

cuts would have on american families. >> decided that as a formula or secret sauce degette speaker boehner or mitch mcconnell to say you know what, mr. president, you are right, we should close some tax loopholes for the well-connected in exchange for >> serious entitlement reform and spending cuts in programs. you know, i think if there was a secret way to do that i would have tried it, i would have done it to read what i can do is i can make the best possible argument, and i can offer concessions, and i can offer a compromise. i can negotiate, i can make sure that my party is willing to compromise and has not been ideological or thinking about these just in terms of political

terms. and i think i've done that and i will continue to do that but i can't do is force congress to do the right thing. the american people may have the capacity to do that in the absence of a decision on the part of the speaker of the house and others to put middle class families ahead of whatever political imperatives he might have right now, we are going to have these cuts in place. but i'm hopeful about human nature. i think that over time people do the right thing and i will keep on reaching out and seeing that there are other for meals or ways to juggle this into place so we get a better result. >> she said, "i want to make clear that any solutions will be done through the regular order with input from both sides of

the all in public debate. i will not be part of any backroom deal that will i was fascinated by her feminist view. i'm paraphrasing obviously, but she warned her husband including what women want and what women have to contribute this is the 1700's she is saying that. >> abigail adams on this new series first lady's influence and image called mrs. president by her detractors she was outspoken about her views on slavery and women's rights as one of the most prolific writers

of any first lady she provides a window into colonial america and her life with john adams. joining the conversation on abigail adams life monday nine on c-span, radio and c-span.org. next an overview on the case is before the supreme court during its 20122013 term. speakers include former solicitor general theodore olson and former acting solicitor general walter dellinger irk. they spoke of the national association of attorneys general. the meeting was here in washington and they spoke for just over an hour. >> it is a tremendous honor to be here. is the mic on? let me try that again. it is a tremendous honor to be here once again with walter dellinger and ted olson, two of the real leading rights of the supreme court bar.

they've become good friends and the on the need for a brief introductions before we get going into what the supreme court has been not to. walter dellinger is a partner in the intelligence supreme court practice. she's a former solicitor general in this united states and has argued many cases in the supreme court. ted olson shares the supreme court and appellate practice and also is a former solicitor general of the united states and head of the legal counsel. >> as of the end of next month to an estimate let's start dieting and. it is another sleepy year here the supreme court. [laughter] >> well, before we get into domestic relations ted has a domestic relations cases.

before we turn to those on important issues on same-sex marriage and the voting rights act and affirmative action, let's briefly odontoblast term. it's been about eight months since the court issued its decision in the health care case. perhaps a little too soon for history to have made its judgment, but long enough to have maybe gotten a little bit of perspective on what the court has done. so, ted and walter, any thoughts, eight months removed. >> i will talk a little bit about the obamacare and the affordable care case, obama decided now it's okay to call it the obamacare case. >> now that it's constitutional, i want to thank you although it is a new venue that you've put us on the these little stools i thought to the obamacare decision was really interesting and with dan and walter's positions i rode down a few

notes about some of the ironies of the decisions that i thought i would share with you. it was a 187 page decision. i found several ironies in the decision legal and political ironies in the decision. we will see if walter agree is. [laughter] >> i took these from what you said last year. >> you changed your mind. >> foremost among the irony is the majority conclusion that the individual mandate to purchase health insurance or pay the penalty is a legitimate exercise of the congress power to tax during the legislative debate the president and his allies are adamant that the mandate was anything but and so with full and not. it'll certainly wouldn't have passed there were no votes to spare. so the supreme court saved the

signature legislative achievement at the obama administration precisely because it was with the administration said it was not and was not with the administration said that it was. early in the litigation in the case the administration invoked the federal antiinjunction act which bars the suits for any tax the government then argued that it was a tax. the suit would be dead on arrival. but the supreme court held that the mandate was just what economists call it, a penalty and not a tax. it cannot control as to whether the law is constitutional, but it does control as to whether the antian junction statute applies. this reminded me of lewis carroll when i use the word. it's neither more nor less.

now the magic of this dueling i call it taxonomy means that because it is a penalty, the court can go for the to consider its legality but because it is a tax and not a penalty is a lawful exercise of the taxing power and not on the power to regulate commerce come and a related irony is that the five justices concluded that the congress did not have the power under the commerce clause that is to say not buying health insurance but five justices, only chief justice in both camps held that congress does have the power to impose a tax for doing the very same nothing. the president insisted that obamacare was constitutional was right all along. but he was right because he was

wrong. he was right that is constitutional because he was wrong that it was not a tax. walter is getting warmed up i can see. [laughter] just a little bit more. the rejoicing by president obama supporters over this decision may be another irony and may be short-lived. their version of the federal power was vindicated, but only if they want to propose politically unpopular taxes. on the other hand of the majority opposed the doctrinal limit on the power to regulate commerce, and in another part of the decision, to exercise the power under this bending clause. these authorities under the commerce clause and the spending calls are much easier and politically easier to exercise in the congress. unfunded mandates are the preferred ways to taxing so the court's decision while affirming

the authority that is hard to use, restricted authority that is easy to use, which looks an awful lot like a trojan horse. now the government barely argued that it was a tax. the solicitor general consumed only eight pages during the three days of argument to address the subject, and only at the end of the argument when prompted by justice sotomayor who said can you please turn to the tax clause, justice ginsberg's concurrence with the chief justice completely ignores the subject and for justice dissent eviscerated the analysis about whether it was a tax so the only defense of the taxing authority rationale is in the 14 pages of the chief justice opinion a full five of which is devoted to explain why if it is a tax it doesn't violate the competition or other direct tax provision under the constitution in short, for the far reaching and the and litigated conclusion, it pronounces the chief justice opinion has very

little reasoning to back it up. i will skip ahead to what i thought would really sum this up because this decision came down about the same time the launch of physicists in switzerland discovered something. it did occur to me that the decision of the chief justice about whether this was sustainable as a tax it isn't clear what it is. you can't see it. it disappears as soon as it occurs and it is called the god particle because it is the answer to everything. [laughter] [applause] step in the spirit of collegiality i will begin with the point that you made that is accurate. [laughter] and praise you for it, and it is

an important one and a sobering one for those that supported the constitutionality of the affordable care act. and you see the possibility of the congressional power to ameliorate any quality that is important, too the the court did in front of the individual mandate. as a doctrinal matter, the justices held that the subsection which provides that every covered person shall have minimum health insurance coverage that is an exercise of the commerce power that's in a valid chief justice roberts joined the other of the conservatives on that point to in zelaya that and on the current spending power are the two major doctrinal conservatizing doctrinal points. for the rest of the comet would

be better if you watched more than one newschannel4. >> msnbc is the only one we get in my home. [laughter] >> the point is a trivial one but i will respond come on abc this week with george stephanopoulos, white of the bill was pending, stephanopoulos said you're promising not to increase the middle class. isn't this the middle class tax increase and the president said no it's not a tax increase. that is the sum total of the notion that obama went around denying that it was a tax. i thought this was the day before the decision came down after hearing the argument on the tax injunction act to the chief justice roberts fully understood that there was nothing remarkable about this constitutional. nothing remarkable what all and you've done a wonderful job of sort of covering over the fact that it's sort of embarrassing if this was seen as the end of liberty and the western world. when all of the vision and

question provided was that if you don't have adequate health insurance coverage, you have to pay an additional 2.5% penalty if your federal income tax. this was an amendment to the internal revenue cut. it provides every april 15th when you calculate your tax if you don't have minimum health insurance coverage you have 2.5% this is in the country when you go to work in the economy and your money, you are told you to be 7.5% for social security to take care of your old age assistance. you have to pay another% for your medicare tax to care for your health care until you are -- after you are 65. and if you don't have the alternative of private health insurance, you have to pay an additional 2.5%. no one in the world as we look at that and say the first to refine the the third is the end of liberty and the western world. that is all that it ever was, and the one thing that the solicitor general made clear to my great satisfaction in the government's final brief was that you are not in violation of

law if you do not comply. if you choose not to comply with a provision that you have minimum insurance coverage you are not in violation of the law pity the they said that in the brief, they said it in the oral argument, as long as you choose the alternative of taking the 2.5% penalty. so what is the big deal? we have managed to extend the of the germans coverage to an extraordinary number of americans who are without it and who is in position on the system was dysfunctional. the idea that the regulation of 1/7 of the national economy slows a bit and there are arguments on either side for that bit the iud is it is not within the scope of the national government regulation, regulatory authority is -- there are lots of things the federal government does to incentivize the beater. in incentivize people to provide for a college education by giving you a tax break for the funds that are set aside for the college education.

it does incentivizes having the margin by taxing it. >> we are running into problems with wisconsin now. >> i think this was completely constitutionally of remarkable. there is a technical argument -- the idea that u.s. district of the legislative action of this magnitude because of free technical argument, i think technically the chief justice didn't have the better of the argument in the sense that the subsection says you have to maintain minimum coverage, subsection be says if you don't comply with subsection eight you have to pay for 2.5%. they thought i was fully valid as the tax power. and in a technical sense there is nothing new tax in the provision that is -- >> you got into this, didn't you? >> i did, i thought i was fun. so i think stepping back from it, nobody is descending in black helicopters and forcing people at gunpoint into their insurance agency and forcing

them to sign up for anything. it is an interesting theoretical question whether the government could force you to do it. the answer to that is the negative. but can it provide a modest tax incentives and it's critical because it leaves you with a real choice. you don't have to buy health insurance if you don't want to. you just pay an additional 2.5%. that may be a good idea or bad idea. it was always a conservative idea and a republican idea. don't have the single payer government provide a system giving it incentivize people to use -- incentivize people to use the private market. that is what happens. it's a modest tax incentives. it is to be a remarkable that was upheld, and some of remarkable that there were four people that were hysterical about it being upheld. five accounting ten. >> seek, walter takes the somewhat more seriously than i do. but you have the 2.5% what are the odds that that will ever go up? i rest my case. [laughter]

>> that is designed to which there are many people having the court make -- this court is getting more enmeshed in order decisions on the public policy. and that is a policy choice. at some point, if you said if it became so onerous but no one would pay the penalty and you're forced to buy insurance, then you have an argument that you are being coerced out of the inactivity which is maintaining the out insurance coverage and you have a constitutional argument as long as it is a genuine choice. it's perfectly rational to pay the 2.5% for most people 2.5% of their income and a discount for the really rich people you don't have to pay 2.5%. >> a lot more than 2.5%. i don't know what i'm getting for it. >> i thought you are on medicare stat now that we have reached agreement on that. we will turn to some of the cases for this term and i think

we should probably start with a same-sex marriage cases, and i guess we should begin with the case that ted it filed along for years ago. when you first filed the case it was likely to end up in the u.s. supreme court. what you may not have expected is that when it was going to be, by the time it was about the course, the state of california would no longer be defending the statute, the proposition, and what it to be a party to the case to the and you might not have expected that the defense of marriage act case would be argued the next day. now, having those two developments affect -- >> the supreme court when it granted review in these cases made the point of saying that they wanted to consider arguments and have briefings on the question of standing in the article freestanding case work controversy and the in both cases the proposition 8 case which we are calling hollingsworth versus.

, you are right it was almost four years ago it was may of 2009, the attorney general, the then attorney general and the governor of california agreed with us that the challenge to the proposition, which was a constitutional amendment, which added to the california constitution provision that said only marriage between a man and a woman would be dealt with or recognize and california. that was to overturn the california supreme court decision that had struck him down something called proposition 22 before that which was a statute that basically said the same thing. the california supreme court struck down proposition 22 and the family code provision that went with it on the grounds that under california constitution under the due process clause and equal protection clause of the constitution that was on are unconstitutional invasion of those rights of california

citizens. that was and may of 2008 and then proposition eight was already in the works and was put on the ballot and was enacted by the citizens of california on november 5th of that year which then changed the california constitution to eliminate that california supreme court decision. in the interim, 18,000 same-sex couples got married in california. the first challenge was to whether or not proposition eight was a revision of the california constitution and had to go through the legislature that california supreme courts had said no, no it is an amendment to the constitution. so, challenge -- a challenge to proposition 8 under the california constitution isn't going to work because it is an amendment to the constitution. so, my clients, for individuals, to gay men and a lesbian couple brought suit to challenge

proposition 8 under the federal constitution, equal protection due process clause we filed suit in the federal district court in san francisco. i could go on for a long time about this, but to get to the nuts right away, the governor and the attorney general of california determined that in their view, proposition 8 was unconstitutional, and they were going to enforce it as they were required to do wonderful law they felt, but they were not going to defend it in court. so, the proponents of proposition who had put it on the ballot and raised $40 million to get it passed in california intervened in the case. now, at that point, the attorney general and the governor was still parties to the case, they were defendants in the case said there was a case for controversy labor in force in the law and the intervenor therefore could piggyback on the standing of the actual party. when the decision came down, and we had a 12 day trial with evidence from all kinds of

experts and the plaintiffs and other and vegetables the district judge found proposition 8 unconstitutional on the grounds that we have a specified at that point neither the attorney general nor the governor decided to appeal to the ninth circuit so they were no longer parties in the case as far as the appeal was concerned. the proponents did appeal to the ninth circuit and they argued in the ninth circuit and claimed that they had a standing. we argue they didn't anymore. they were no more than any other citizen who wanted to see this measure upheld in the courts to the ninth circuit lateral to the court said with a law in california? do proponents of the belt proposition have standing to defend this on appeal where the state itself is not defending it? the california supreme court said yes they discovered something in the california constitution i have not seen before that under these ballot

propositions of the state does not defend them in court, then the proponents of the initiative have standing to maintain that case. so that is one of the issues in the proposition 8 case that we will be arguing on march 26th. .. or whether they won't. if they do, what kind of an argument will they make. we'll find out on thursday. in the meantime, there were 40

some amicus briefs filed on the side of the opponent in the perry case and at least that many filed this thursday sporting our -- supporting our position in the case including there was a new york "new york times" story a former republican party office holders who signed up in supporting our position in the case, which is a bit of a man bytes dog kind of a thing. [laughter] at least some people think that. we have a brief that so far has over sixty major corporations. saying that proposition 8 should be struck down as unconstitutional as damage together employees, damaging to the workplace and that sort of thing. there are a lot of interesting amucus briefs filed. that's a short summary.

i hope it's short enough on the standing and merit of proposition 8 case. >> at this event three years ago, i had something unfortunately rare for me, that is my mind was changed by an argument made by ted. at least my position was moved. it was a first time we had met before the attorneys general since ted and david had brought the california litigation. and i challenged ted by reading to him from justice david's final opinion as a justice. in the case had to do with the reopening criminal convictions with new dna evidence. completely inappropriate to that opinion, was a full page about a caution by david about when you should ask people to change their traditional ways of thinking, and the need to go slow and the need to give people

institutions, citizens, courts, times to adjust to a change. that a person is not a stick in the mud, he said, just because it takes someone time to get adjusted to new ways of thinking. and i said, i had first identified this as a clear message in a bottle from justice david. a message that i read to be about gay marriage and go slow. and i read that to ted, and ted began to tell me why he would not accept that admonition. he talked about his client and the fact that one of his couples, two women, had children who were in school and ted said the children told him they want their parents to be married by the time they graduate from high school. and ted said, i could not look them in the eye and said you need to wait. and i thought at that moment,

that that was so powerful and watching the reaction here no matter what people's political persuasions were, i think they saw the power of that. i think that moment at this event changed my thinking on it. you know, one of the things that is quite dramatic about the movement is some of you may have done the count, you know, there are forty odd states that don't allow same-sex marriages, but in the brief supporting proposition 8 side of the case, only twenty states joined that brief compared with the all the states that joined in a maryland v. king. at least marty of georgetown noted there was silence there it has been noted there were so. states that did not join, did not join that brief when usually if a state law at stake they will. i still think it's worth making

a -- ted, i think, whatever the outcome of the case, i think ted's advocacy has changed a major role in shaping views on this issue. whatever happens in perry -- i am filing a brief on thursday on standing that takes the position that i have advocated that the california marriage case was over, and that ted and gay marriage and his couples won when the state attorney general and governor declined to appeal and the time for appealing ran. you may want to take a look at that. it has some implications for your role as attorneys general. the question whether the attorneys general makes a decision to settle a case, not the defendant as applied challenge, downtown road whether people who have been proponent of a referendum have article 3 standing in federal court to

raise constitutional issues. when they are not subject to control, that, you know, we can see that the state of california, of course, is a proper party or would be if they choose to appeal. the issue is whether these four individuals, four of the five who were the proponents whether they actually can come in as a state of california. the california supreme court said they represent california, but i still believe strongly that does not end the matter. there's a minimum article 3 criteria. a state can't simply say though on some particular statute some states said something like this, any citizens or person doing business in the state can represent the state's interest in court to enforce a particular statute. if a state decided to -- federal government won't say we don't allow people to come in with generalized grievances who are not actually harmed by the provision in question.

and that what california supreme court never said is these people are agents. they are enough of the -- there's no fiduciary. unlike legislators who get standing to represent the interest of state. they can be voted out of office. in one case they were in the new jersey case. but if someone vote as applied claim, if the case didn't resolve the issue and seven years ago now they can be married in canada and it's irrational to prevent them from being married in california. you go down tack the remaining proponent at the retirement home and let them come in and give them the right to litigate on the behalf of state california? the thing will resonate came at the end there's issues we don't need to resolve.

the issue is who will pay the attorneys fees. [laughter] who will pay the attorneys fee if california loses? i'm telling you without telling any secrets you talking about saved -- david and ted olson. you're not talking small change. the court said we don't have to resolve that. that makes no sense. if the proponents are there as the agency of state of california, of course the state of california would be responsible for the attorneys fees. which i think proves the fact they're not agents of the state. and i don't think it's a hard quo they don't have an interest. they had an interest in the defending the passage of prop 8, which they did successfully in the california supreme court against state law and constitutional challenges. this was a valid amendment. they accomplished that. this was an issue of federal constitutional law. the interest not others. it's not that have others.

i don't think it's technical in this case. the reason why it's hard to find someone who has standing is it's hard to find someone who is injured. if there were finite number of marriage licenses available, so giving them the gay couples meant that married couple like me had to turn ours in, you know, -- [laughter] >> let's not speculate about how many will be turned in. [laughter] >> for the cause, you know. [laughter] in that case, the simple matter is no one is standing because nobody is injured by someone's happy pes. that's why i think it's hard to find some withstanding and why that's an exit ramp. they have a lot of momentum doing. the standing argument is one of first impression in many respects. i think it depends on whether the court wants to take a deep breathe and wait for a more concrete case or not. let me say a word about the case. the defense of marriage case is

up. i think this is an interest to say to attorneys' general as well. i think it's a major breemp of federalism and the right of the states. we have what eight states now, ted? >> nine. including d.c. there are nine of our jurisdictions have chosen to recognize marriage and the federal government which has more or less with minor and separate exceptions, always recognized the state central role in decides who is married. federal government said we're not going accept your marriage as vailed for national purposes. dough doma is serious. as long as dough ma is on the law no one is truly married in their state if they are not eligible. you have a dramatic case you have edith she and her partner were a couple for forty years, they got married in canada, moved to new york, when she died

she left her estate to edith to whom she had been married since 2007 in new york and the federal government said the state does not pass to a spouse because you can't be a spouse under federal law. the $362,000 estate tax the government won't pay that unless and until they are or ordered i be a court of final juries jurisdiction. in -- the president decided that the united states would not argue that doma is constitutional. i think that's a legitimate decision. we have argued cases as solicitor general on behalf of the united states and we weren't crazy about the argument. >> i remember one or two of them. [laughter] >> but in this case, when it was

a matter of first impression whether to use heightened scrutiny that involves two questions that are not narrow questions with logic. they are the life law has been not logic but experience. those questions are, has there been discrimination based on sexual orientation that continues to have an effect? secondly, is there a criteria which is normally related to a ability to contribute? and where do you have discrimination unlike age or mental capacity is not related to ability to contribute. there's reason for heightened focused. >> be careful about the age part. >> that's true. we are up here. we may need that. >> but that -- those are determinations where a president can say i believe there's been continuing discrimination and i believe the criteria is not normally related. i think the the courts ought to take a hard look and not accept

a administrative convenience. it resonates before the other case like the affirmative action case from texas. first of all, in fisher, the court is giving height end scrutiny to white students in the university of texas. it ought to make the court crvelg they're willing to give abigail fisher heightened scrutiny. and quite properly so. think about this, right now think about with what doma does in those nine jurisdictions that recognizes the do not preclude same-sex couples from being married. they no longer ask in the jurisdictions about gender. you show up and get the marriage license and the name may be porter jones, ashley johnson, your issue -- so you're issued a

marriage license. normally if you apply for the federal benefit you show you have a marriage certificate. it doesn't say in any of the state what the gender is of the part. under doma the federal government has to make some determination of who is what gender instead of accepting the state own's certification about who is married. >> johnny cash had a song about this. >> "a boy named sue." >> i think on race the court is heading in the distribution of say d -- direction of saying for they're not invalidate look with harsh scrutiny on any system of admissions that requires a state to make an official determination of a person's race. if you look at everything about a person who their grandpas were in the vai navy and think that enriching your class. that's fine. if you say you have to get five

points -- i think it is the court will say that's one of the things we don't allow. and what doma is going to require the federal government to do is make an official determination about gender in order to validate the decision made by a state to confirm marriage status, which has been an area of central state concern for a couple hundred years. >> one more point about the case is there's a challenge to the standing, the -- it is being defended by an organization called blag. you could have thought they could have called themselves something better than that. [laughter] like chile sea bass or something. >> it's a flakey white fish. [laughter] >> it's a bipartisan committee of the house of representatives are defending this. there's a question about their standing too and the supreme

court pointed to a harvard professor to argue the case. the supreme court held in an earlier case that a member of congress, even though in the statute the legislation gave members of congress a standing to bring the case, that did not give individual members of congress the ability to challenge that. even though it had to do that legislation had to do with powers of congress. and powers of members of congress. so this is not a member -- this is a group of members of congress. it's not the house of representatives it's not the senate, it's not the congress itself. it's a group of members of congress in the house of representativeses who are bringing the case and it will be interesting to find out what the court thinks about standing there. >> i would bet a lot of money it's not going hold three members of the house outvoting two members of the house to litigate on behalf of the united. one of the rhetorical points being made represented by the

bipartisan legal advisory group said the justice department doesn't have standing because they agree with doma. of course the justice probably doesn't have standing. the united states does. and the attorney general represents the united states and they have an interest. they say we have an interest in, first of all, the money. and we have an interest in applying any statute that turns out to be constitutional. we're going give the court our honest opinion about whether heightened scrutiny should apply and the consequences of that are. and we're going facility and urge the court to give full argument time not ten minutes of the usual amicus amount. so they will hear a full thirty minute argument. i think it's probably appropriate. let me tell you if the affordable care act come before the the court and obama administration i think it would have been appropriate for the

solicitor general to take an appeal from the adverse decision. tell the court that in the government's view this is beyond the power of congress, but that you're letting the democratic relationship have a amicus to argue for. i don't think there would any -- in the government in the rare case where you have a major policy decision and where i think the president is about, i think when you don't defend a law at that level, the president needs to be involved as he was here. and if the president said i -- constitutional policy judge that we don't want to defend this or do want to defend this, i think that is a . >> in the buckley case the campaign finance case in 1974 has gotten a lot of the campaign finance stuff going. the government filed three briefs. the federal election commission filed a brief, the justice department, the government on why the justice department filed a brief, and there was a

solicitor general's brief. and i always thought as solicitor general that was a crazy thing to do. and i promised the justice in the supreme court as long as i'm solicitor general you're only going get one brief on behalf of the government. it gets in to that sort of thing when there's a dispute within the government whether or not some laws is constitutional or not. and i guess we're spending at love time on standing. it's for geeks like us, you know, it's fascinating stuff. it will be fascinating to the justices. it will be very interesting. >> let me add one point to justify the amount of time we spend on it. i think it's critical to the role of courts. in my view berry v. madisonen stands for proposition the court has the authority out of all the institution, the state within the president, the congress. the court have a authority to make a definitive resolution. for one reason only. they have a job do. it's resolving disputes between

litigants who come to court with a real lawsuit. in carrying out that responsibility, they have to apply the law and the constitution is law. that was the key part. the law -- by litigants not like the star spangled banner. in cases like -- taxpayer challenging expenditure in support of religion turned on the head. because we have to declare the law the ?iewtion we have to find or make up case. i think that distorts the proper role of the the court. it's important decide whether there are really litigates with the stake in the outcome. >> and today the supreme court decided 5-4 hotly contested decision that media groups and other groups challenging the surveillance under the foreign intelligence surveillance act of non-u.s. citizens abroad whether certain media groups say we

communicate with the people and some 6 our communications are going to be picked up on warrant and they wanted a declaration that the allows the program to go forward was unconstitutional. and the supreme court decided 5-4 there was not standing. it was too speculative to grant standing but hotly contested consent by justice briar. very interesting. it's current on their schedule. >> let's turn to the other incredibly important case the court will hear this term on the constitutionality of voting rights act of section 5. walter, first congress passed the voting rights act 47 years ago. a lot has changed since then for the better. is it still necessary? why do you think it's necessary for 16 states that are fully or partially covered jurisdictions under section 5 have to go to the federal government? before they can make a voting change? >> this is an enormous question. it's unable that times have

changed since 1965. i think the 1965 voting rights act may be the single most important act of the national congress, perhaps ever. and it was strong medicine that required in the setting aside all expissing tests red the jurisdictions to go as the say had in hand. to washington, d.c., before the laws can go in to effect. it's extraordinary. it was actually the proposal that james madison made and fought for across the board. he thought all state law should be submittedded to congress first. he was truly a nationalist. it's a partial instannation of that. it was strong medicine. i think it was doubtful in that kind of very dramatic

infearing's to what the court thinks is the sovereignty of the dignity of the states. that was become more routine for the jurisdictions do this. there is pretty good evidence that the the court puts in the record of a continuing problem of legislation that our local acts or ordinances whatever the cancellation or waiting periods of early voting, ettle, that have an effect on voting that is dis proportionate in the racial impact. >> all of the jurisdictions? >> it's really two questions. can you justify the burden for anyone these days? and that is revisiting the 1965 decision. i think probably the more serious question one more hotly debated is what about the fact they didn't update the coverage formula from 1974. they used the same exact coverage formula, which was based upon voting statistics, registration, et. cetera from that period of time.

the attack in the defense of the quote out of date formula, without a graduate seminar in political science. it could be that l better political science or method duelings grade go to throws critiquing the formula too far off. but the congress of the united states is not a graduate seminar in statistical methodology. the reason that it was a very strong enormously practical political reason why congress didn't reopen and redo the coverage. and that is it's much easier for coverage jurisdiction to accept the fact that you're covered because there was a history, everybody knows about the history including in the jurisdictions, live in one of the counties covered, north carolina. everybody knows about the history. it's not a present accusation that to use the historic

formula. and to reopen it, and to decide today who are the worse discriminators would have crashed the whole project. history has the claim, and when we in the south now all have civil rights tours, the idea that you're covered because that's part of your history and to redo it to make it better and refine it so one or more justices approve more of the breach of the coverage formula seems to me awfully school marmish of a court in relationship to the congress of the united states, who made a political judgment that you set up -- i think the way to defend it to say look, the default is we're going use the historic formula we always used because, you know, we have an -- we have a bail in for jurisdictions that can be added to it because they are found to be disimented and we have an opt out or so much

not the opt out is yearsier. if you start with the default and say that was the best practical political solution. to me the best defense the court shouldn't be getting to the business of micromanaging what is really a large basic fundamental decision of the best political way to resolve this problem going forward. >> well, this is going to be argued tomorrow. right. >> that is correct. >> and the last time it was the before the court was a couple of years ago in the northwest austin case. and the supreme court sounded from the argument, i think i was there. they were going toss out section 5. at the last minute the last day of the term they rendered the decision in which they ducked the issue, and the chief justice wrote the opinion ducking this very question, and found a way around it by construing the

statute in a way that was a bit of a stretch. but he ducked the question. the question is why was it ducked then when it sounded so much like they were going to face up to it as a result of what you heard during the oral argument? well, maybe there was one vote that slipped away or something like that. you never know about these things. in the chief justice's opinion he talks about the fundamental principle of equal sovereignty among the states, and that may or may not be something that comes back with respect to this, but it is underlying question. of course states get treated differently under the commerce clause. it's try here, -- dry here, wet here, there's all kinds of reasons for that sort of thing. from a political stand point to pick out certain states and impose in a sense a continuing badge of wrongness, discrimination forever and ever because it's not politically

easy to change or politically easy for the court to get in to that raises that question of equal sovereignty. i came up against that same principle in connection with with the case i'm handling involving something which is congressional statute that prohibits states from permitting sports gambling. you probably all know about this. but what that statute does, not only does it put the burden on the state to regulate something that the the court is chosen not to regulate by putting the burden on the state which raises a tenth amendment issue. it has an exemption for a couple of states but particularly exemption for nevada. and the the question is should michigan be the only place where cars are made? should nevada be the only place where you can bet on the outcome of the super bowl? and is that discrimination against the dpait h state in i'm not trying to answer this,

although i'm in an advocate on one side of the issue or not. that's an important issue here to agree to which congress can pick out certain states for more favorable or less favorable treatment not connected with actual geographic facts on the ground that justify the discrimination. >> okay. why don't we take a quick detour to criminal law. an issue here. earlier this morning probably the most important criminal law issue of the term was argued by maryland chief justice. the fourth amendment is violated when a state taking a dna sample a cheek swab usually from people arrested but not yet convicted. >> i was involved a little bit. i filed a friend of the court brief on behalf of the individuals in the field and feel that maryland is right and states have the ability.

you arrest someone, none of you have been arrested ever. but you probably have heard about being arrested and having to submit to the fingerprints, and things like that. the argument in defense of the dna statute is that this is a way of identification. it records what happened when you were arrested, much more elaborately than thing the fingerprint do but it's not connected with the -- person arrested for assault, and the dna was taken not because the need to connect the dna or his identity with the assault, i think it was clear he did the act chevre he was charged with. it was used to identify him in connection with with a sexual assault that or sexual crime of some sort that had taken place some years before and he was arrested and connected of that -- convicted of that. he was saying that was an innovation of fourth amendment. there was no warrant.

you don't have any just reasonable basis to without a warrant to take that identification from me. it is intrusive. it was argued today you getting a report on that, i don't know how it's going come out. i thought the state had the better of the argument. but where there is interesting, it seems to me, we talked about this last year or at least in another forum, we talked about that gps device that was attached to the drug dealer's car here in washington, d.c., and there was a warrant at first, but the warrant expired and the tracking of the alleged drug dealer, which the alleged drug dealer on trial for the third time last month. >> i know. i represent him. >> so he helped keep him out of jail. [laughter] but the interesting thing about

this and the supreme court decided 9-0 to overturn the search in that case, but justice scalia saw it as a tremendous pass, i think -- trespass i think walter helped get there on this. they attached the device to the guy's car and justice scalia said that doesn't work, you know, you can't imagine the different ways had in which the science is keeping up. so you to have a reasonable expectations of privacy. that's going to work. and it brings to bear all of the technical that we have now and none of which was handled in the wildest dreams -- when the fourth amendment was put to place. we have the heat sensing devices that can tell whether you're growing something you're not supposed to be growing in a house. you have the going through the toll boothe that track every move you make on a lot of highway.

you have the cell phone thing that tells where you are and cameras in the street record red light violaters and speeding. we all of these technology now that is challenging the conventional wisdom with respect to the fourth amendment. it's creating fascinating law and the justice are struggling with it. it's fun to talk about it. >> the gps case i was involved in from last term and the maryland case and the two dog cases from florida. herein after known as florida, the canine state. looking at the two florida cases, in this context is quite revealing. the first case, the first in the florida cases involved the dog that, you know, in a traffic stop the police were already entitled to make. the dog signals ab alerts -- an

alert to the car, twice is wrong both times. there's no contraband of the kind -- al do is trained to alert to. >> maybe the guy was rolling rolling in or whatever. >> they found other things. >> tennis balls. [laughter] >> but the court o- of course that doesn't mean you have probably cause just because you may well have probably cause to search for a gun and find gambling paraphernalia in the house. what is interesting is the supreme court because of the two faults and the fact that no record was kept by aldo's handler of the false positive and negative. know lab rate record was kept it threw out the search. they rejected that 9-0 by justin

kagen. there was a lot of arguments made by the state of florida how the cog was well rained and there was probably cause to believe it. what struck me. the dog had a great nail. aldo. yeah. >> '. >> a-l-d-o. aldo wins. frankie is in more trouble. the thing that struck me the part the supreme court didn't rely on of the physical constitution. i think the states have been lucky that the state supreme courts that have the split in a approach with the u.s. supreme court don't rely upon their own state constitution. florida has something that says that this right to be secure against unreasonable searches and seizures shall be cointreaud with the fourth of the amendment of the united states constitution as interpreted by the united states supreme court. let me be the answer -- didn't go off on the own. i wouldn't be surprised if

states decided to inlate this by making their own state constitutional decisioning. i'm surprised. this is the other case. he did a terrific job of arguing. the court was hostile. unlike the 9-0 approval of the police activities in aldo's case it came down. l oral argument showed extraordinary hostility to the fact that the police officer goes to the car of the house with -- door of the house with a dog no reasonable suspicious or anything. goes up to the house and the dog is trained to sniff and the dog alerts to drugs inside the house. the court is angry about this. >> what was the dog's name? >> franky. i thought it was tillly or

something. >> what is interesting about it is it's hard for the justices across the board. it is briar and scalia. they don't have a good theory for what is wrong with this. the state of florida kept saying terrorist no no trespassing sign. anybody can walk to the door. if you're selling something, or going door to door to canvas. you are free to have a dog with you. there's no sign that says no dogs allowed. if there was one saying this is a do you grow house. it's understandable, you know, at the one house on the block that said no drug sniffing dogs allowed. as in jones the court can -- to ask him some question and berger

came down in the bathrobe with a shotgun to meet the reporter. they can see someone coming to the front door of the house. it's just like in jones because of our trial counsel was arguing for jones, we had done the briefing with steve. iferlt a little more comfortable doing preargument interviews. the morning it was interviewed. i ended by saying, that is the government's position is upheld any law enforcement office state or federal within in the greater washington area can put a detection device on the underside of the car of any justice of this supreme court for any reason whatsoever. no reason at all because they want to know where the justice go when they leave the court at the end of the day. i know, they would use that clip. she did. michael arguments for the united states and said may it please. waiting with please, before you go, is it your position that any officer -- [laughter]

of the justices and -- we learn two things. the chief justice listens to npr on the way to work and michael does not. [laughter] he said justices of this court? and he said, yes. justice of this court. there's no expectations of privacy. so the answer is yes. >> the answer is yes. the case was over. [laughter] [laughter] at that point i turn to my counsel and said, be cautious when in your argument. we're home free on this one. i think there's something in the cases about whether the justices can perceive themselves or almost have em with the situation. and the court that has been permissive of police practicing of dealing with drug dealerring on the street corners on allies

where they are unlikely to be be. [laughter] walter found a new way of doing an aamuse cuss brief without using paper. talk to nina on the morning of the argument. [laughter] that's why the cases are interesting at this juncture. it's becoming hard are if the government and the justice hasn't been a regular friend for the government as shown in the jones case. he also was with the majority in a recent case of the united states with the government lost 6-3 in a fourth amendment case. i gather he was giving a maryland a hard time today. it's going to be a close case. it could be that the state government prevails. if we pick up justice briar and ginsburg. and the general there at the argument. i think i may be getting it

roughly right. and we'll see. i think it connects both to the concern about -- well, i don't think they expect to be arrested and subject to the this. but i think it connects to the high-tech concern you are concerned what is done with the dna information or bringing the high devices. >> the mistake that maryland did an excellent job in the case general, but i thought i looked the amucus brief which everyone took the lead on that. it's an excellent brief. when you read the briefing in this case, the case for having a larger dna d.a. bank is powerful. eliminate rape. it's our choice. you had relatively universal dna you would in 24 hours be able to apprehend anyone who engaged in

rape who had has the sea semen how effective we want to respond to battle the assault and particularly sexual assault and what price and privacy were willing to pay. there's an powerful argue pmentd. we have to realize that it's a choice. and the fact of the case, ted, and the briefing you did for the februariesic people that use it make the case powerfully for what an important law enforcement tool it is. i was persuaded by the briefing. it's a younger court than six or seven years ago. it's still not really young

people on the court who are more familiar with all of the electronic devices and all of the things that all of our grandchildren know about. it's kind of computer cases and stuff like that. they -- and franky, the dog of the door case. and just a dog. he's using the smelling capacity of the dogs at the time and memorial. there's nothing new here. of the technology cases it's very familiar. >> you have to be able to teach police officers to smell as good as dogs. [laughter] , i mean, to sniff as good as dogs. [laughter] >> there are many cases i want before we give them a round of

applause. let me first give them both a token of our appreciation. thank you so much. [applause] [inaudible conversations] tonight at 8:00 eastern president obama and house speaker john boehner talking about the automatic spending cuts known as sequestration. on c-span2 actress and activist ashley judd talking about women's reproductive health. ..

transcendent. mr. rein. >> mr. chief justice, and may it please the court? almost four years ago, eight justices of the court agreed to 2525 year extension of voting

rights act section fives plead clear and obligation uniquely applicable to juristic since reached by section four b. antiquated covered formula raise the serious constitutional question. those justices recognize the record before the congress in 2005 made it unmistakable that the south has changed. they questioned whether current remedial needs justify the extraordinary federalism and cost burdens of preclearance. >> may ask you a question, assuming us that your premise and there's some question about that, that some portions of the south have changed. york county pretty much has it. and there. we are talking about, it has many more discriminating, 240 discriminatory laws blocked by

section five objections. there were two litigation, maybe the wrong party bringing this. >> this is a challenge, may i say, justice -- >> i would devote in favor of a county whose record is the epitome of what caused the passage of this law to start with? >> i don't agree with premises, but number one, when i said the south has changed, that's a statement by the justices in the northwest austin case. >> congress said that nobody dares anybody on any side of this issue has to admit that huge progress has been made. congress itself said that. but in line with just out of mailers question, in the d.c.

court of appeals court of appeals, the dissenting judge they are the israelis say if this case were about mississippi, louisiana and alabama, the state has the worst record in application six and i.t. that might be okay. >> justice ginsburg, judge williams said that as he assessed various measures on the record, he thought those states might be distinguished. he didn't reach the question whether those states should be subject to preclearance. in other words, an absolute basis of sufficient record to subject them. >> at the state your rep resenting is about a quarter black, but alabama has no statewide elected officials. if congress were to write a formula that the to the number

of successful section to soothe per million residents, alabama would be rash. unpublished section two suits,àa if he is section five enforcement actions, alabama would be the number two state on the list. i mean, you are objecting to a formula. under any formula congress could devise, it would capture alabama. >> if i might respond because justice sotomayor had a question that is why should that be approached on race? going back to catherine back in the cases address the voting rights act requirements have all been addressed to determine the validity of imposing preclearance under the circumstances and the formulae because shelby county is covered up by an independent

determination of congress with respect to shelby county, but because it falls within the formula as part of the state of alabama. so i don't think there's anything left turns. >> challenges are generally in our law. so the question becomes, why don't we start a formula as justice kagan said, which under any circumstance the record shows to remedy with the conqueror, proportional, rational, whatever standard of review we apply to other than what happened. >> two separate questions. one is whether the formula needs to be addressed. this report address of formula and circumstances they are were very small jurisdiction as a course at approaching and a big question. it did the same in katzenbach. so the formula it felt is the

reason why shelby county and commerce the burdens and by the court needs -- >> interestingly enough, the court can do which are asking us to do, which is to look at the record of all the other states or counties that basically concentrated on the record of the two litigants in the case. and that extrapolated more broadly. you're asking us to do something to ignore your record and look at everybody else's. >> i don't think that's a fair reading of katzenbach. what the court did was examine whether the formula was rational and dissent theory. of course that we don't have evidence on other jurisdiction reached by the formula, by devising two criteria, which are predictive of or discrimination might buy, the congress could then sweep in jurisdictions to which it had no specific

findings. we are not here to parse jurisdictions. we are here to challenge the formula because in and of itself it speaks to a data. it is that with respect to the discrimination congress is focusing on end is in appropriate vehicle to sort out sovereignty of individual states. i could tell you an alabama the number of legislators are proportionate to the number of black voters. there's a very high registration turnout of black voters in alabama, but i don't think that really addresses the issue of the rationality in theory and practice in the formula. if congress wants to write another hypothetical statute, that would present a different case. we are here facing a state selected by a formula that is neither rational and theory nor in practice. that's the hope. >> i suppose the thrust of the question so far has been a few

would be covered under any formula that most likely would be drawn, why are you injured under this one? >> we don't agree with be covered. >> that's a hypothesis. if you could be covered under most adjusted formulas, why are you injured by this one? i think that's the thrust of the question. >> if congress has the power to look at jurisdictions like shelby county individually and without regard to database beyond with other counties, other states, what is the discrimination among the jurisdiction and after thoroughly considering each and every one, comes up with a list and says this list greatly troubles us. that might present a vehicle for

saying this is a way to sort out the covert jurisdictions. >> everyone whose last name begins with a shall pay a special tax of $1000 a year. to say that taxes challenged by somebody whose last name begins with a. would it be a defense to that challenge that for some reason this particular person really should pay a $1000 penalty with people with a different last name do not pay? >> now, that is the date to whether anyone might amend the statute which has a formula -- >> i was about to ask a similar question if someone is acquitted of a federal crime, with the prosecution be able to say he didn't commit this crime, but congress could have enacted a different statue? wish he would've violated.

you would listen to that, which you? >> now, i agree with you. >> it's obvious that starts with your predicate that the application has no basis in any record. but there's no question alabama was rightly included in the original voting rights act. there's no challenge to the reauthorization act. the only question is whether he formula should be applied today in the record is replete with evidence to show that you should. it's not like there's some made up reason for why the $1000 is applied to you or why a different crime is going to be charged against you. it's a real record as to what alabama has done to earn his place on the list. >> justice sotomayor, the question whether alabama was placed in the act 1964 was answered in katzenbach because

it came under a formula deemed to be rational in theory anthrax is. there's no independent determination by the congress that alabama assembly should be covered. congress is readopted the formula that covers alabama. >> of course part of the formulates back to what happened in 1965. are your jurisdiction that did engage in testing and had the registration? that that isn't true of alabama today. so when congress and backed reenacted this in 2005, it knew what it was doing is picking on alabama. and understood it is picking on alabama, even though the indicia indicia -- given that they're not engaged in that particular thing. the underlying evil is the discrimination.

so the closest analogy i can think of is imagine if the peasant plant disease and in 1965 you can recognize the presence of that disease, which is hard to find a certain kind of service movement or plant growing up. now it's evolved. so by now when we use that same formula, i'll were doing is picking out the estate. we now went to. the disease is still there in the state. this is a question of renewing a statue that in fact has worked. so the question i guess, is irrational to take out at least some of those states and to go back to justice sotomayor's question. as long as it's rational in some instances, directly to pick up those states, at least one or two of them, then doesn't the

statute survive a facial challenge. that's the question. >> justice breyer, a couple things important in northwest austin, current means have to generate current burdens. so what happened in 1965 in alabama that alabama is so said was a disgrace doesn't justify current burden. >> does it justify -- this is in a question rewriting statue. this is a question of renewing statute that by and large has were. if you have a statute that sunsets, you might say i don't want to sunset of his work as long as the problem is still there to some degree. that's the question of rationality. >> it be based on the findings of 1965, which follows along that line. we had a huge problem at first passage of the voting rights act and the court was tolerating

that had not yet been heard. so when i look at those statistics today a look at what alabama house in terms of black registration and turnout, it's no resemblance. we are dealing with a completely change situation. >> he's emphasizing over and over again in your brief registration. he cited a couple times this morning. congress was well aware registration was no longer the problem. this legislative record is replete with what they call a second-generation devices. congress set up front wing of the registration assigned. that is no longer the problem. but the discrimination continues in other forms. >> i think that highlight one of the weaknesses here. on one hand, justice breyer's questioning, could congress

continued based on what was found and renewed and your question shows a different conversation. congress is not continuing effort in 1975. >> the reason section five was created was because states are moving faster than litigation permitted to catch the new forms of discriminatory practices that were being developed. the court struck down one form. the states or find another. basically, justice ginsburg called the secondary. i don't know that i call anything secondary or primary. discrimination is discrimination. the congress had if it continues not in terms of voter numbers, but in terms of examples of other ways to disenfranchise voters like moving about