those of you who got the afternoon ticket i hope you enjoy that as well. thank you. [applause] [inaudible conversations]

>> host: it was in 2010 the federal communications commission issued and approved the open internet order prohibiting broadband providers from discriminating against internet content. here is former chairman of the fcc julius genachowski talking about that. >> today we are adopting a set of high-level rules of the road that strikes the right balance between these imperatives. we are adopting a framework that will increase certainty for businesses investors and entrepreneurs. the inky respects the interests of edge innovators, the entrepreneurs creating internet services and applications they they are addressed and the interest of broadband providers and that american consumers are aligned.

innovation at the edge catalyzes consumer demand for broadband. consumer demand spurs private investment and innovation faster than broadband networks and sparks ever cooler innovation at the edge. i believe our action today will foster an ongoing cycle of massive investment, innovation and consumer demand, both at the edge and in the core of broadband networks. our action will strengthen the internet job creation engine. our action will let fans are goal of having america's broadband networks be the freest and the fastest in the world. >> host: and that open internet order was the topic of the court case heard this week in d.c. verizon versus the fcc. former republican commissioner robert mcdowell who is the top republican on the commission in 2010 joins us by phone. commissioner mcdowell, what

was the argument that was heard at the commission about this open internet forum? >> first of all peter thank you for having me and this is a very important topic and you are covering it at a very good time. so, the court arguments earlier this week went on for two hours even though the original schedule i think was about 45 minutes. so that shows you just tell interested the judges were in the subject matter at hand. and it's complex. it's complex legally and it's complex factually. one of my concerns is that here we have a roomful of lawyers. i am a lawyer so i can say that, that will determine the fate of how the internet internet should you it fall than that could be a little disheartening. we have had the internet grow and prosper in blossom because of engineers and academics and the free market.

so what is really at the heart of the court case is whether or not the fcc has the legal authority to do what it did and there are lots of different legal theories there for, different layers of contentions. an essential question for me back in 2010 is what is broken in the marketplace that the fcc was trying to six? the fcc did not do a bona fide peer review of market study of the broadband market before leaping and i think that was a mistake. first of all nothing was broken to be fixed and second of all i didn't think the fcc had the legal authority to do what it did. having said all that i will conclude this part i saying there are plenty of other laws on the books that will protect consumers. there is -- that the internet should be open and freedom enhancing and a place for all of us to improve

our lives. in an unfettered way. but there are antitrust laws and consumer protection laws and the potential for class-action lawsuits should internet service providers ever discriminate in an anti-competitive way that harms consumers. so i think there are plenty of laws on the books but congress needs to address this in the fcc can't do what it tried to do. >> host: commissioner mcdowell how did -- how long did the fcc grapple with this issue of net neutrality? >> even going back to the early days of the bush administration when fcc chairman of the time michael powell came out with his internet freedom statement. because academicaacademica lly or in theory people could see or contemplate whether or not there would be an economic incentive for internet service providers to discriminate in an anti-competitive way against applications. i think as you have seen in

broadband in the higher use in wireless rock band the fastest-growing segment of the broadband market and the multiple screen is quickly becoming the screen for consumer , i think that we have the new market and a new era here and those concerns really hold up the way they did 10 years ago. >> host: that was robert mcdowell former republican commissioner on the fcc. thanks for joining us on the mitigators and now joining us at our table here at c-span is randolph may who is president of the free states foundation and gigi sohn president and ceo of a group called public knowledge. ms. sohn back first of all what is public knowledge's involvement in position with regard to the verizon versus fcc case? >> guest: public knowledge is a nonprofit advocacy organization that represents the rights of internet users and the

desire of internet users to have an open unfettered internet that is not controlled by gatekeepers like the cable and telephone companies that provide internet access to the world of the internet that we have come to love, the one that drives economic growth free-speech democracy innovation and creativity. we were interveners on the side of the federal communicacommunica tions commission in this case so we were supporting the fcc's determination that there was a concern with these bottlenecked companies controlling who are the winners and losers on the internet and that they have the right both the legal authority and the authority of the first amendment and elsewhere in the communications act to protect consumers and protect competition by prohibiting these gatekeepers from favoring certain content services and applications over others. >> host: and randy made the same position the states

involvement. >> guest: peter thanks for having me peter thanks for having me first of all peter thanks for having me first of all n. gigi and i are longtime friends even though we disagree a lot we always enjoy discussing these issues. the free state foundation is a nonprofit educational and research institution as well. we are bipartisan. we are free-market oriented organization. we primarily focus on communications policy and internet issues. we do a few other issues as well but that is our primary focus. i have been involved at the net neutrality issue since the very beginning as commissioner mcdowell said. that goes back a long way so our position has been to oppose the adoption of net neutrality rules on both policy and legal grounds. i think as commissioner mcdowell said, and this is a very important points just in terms of the policy issue, there was really no evidence and the

commission itself didn't make any findings that the internet providers actually have market power. gigi already several times has referred to the bottleneck but that is really inconsistent with the mission's own findings were lack of findings regarding their market powers. i really start from a proposition as well, if there is not a market failure and if consumers aren't being harmed competition there's no demonstrable evidence of consumer harm then there is no reason for the commission to regulate in an anticipatory fashion. now as to the legal question i think the commission lacks legal authority. i think we also were interveners in this case and we argued that the commissions rule even

violates the first amendment that aside from that i think the court will hold in our position all along that the fcc doesn't have the authority to regulate internet providers essentially as common carriers. that is what the commissions rule actually does. i think the court's decision will turn largely on the fact that what the fcc has done is say we are going to regulate you just as we regulated common carriers back in the old monopoly telephone era. >> guest: there's good news and bad news about what happened on monday. let's talk about the good news. to the extent that the telephone telephone -- verizon in this case and people like randy and commissioner mcdowell said that congress never gave the federal communications commission, that the fcc, the power to regulate

rock band internet access. there didn't seem to be much question that they did have that authority and they did have that power. that is good news because if they were to rule otherwise and i just want to make the caveat that you can never tell 100% from an oral argument in the court with the ultimate outcome is going to these. >> and i will agree with that right up front. >> guest: i was in the courtroom and it appeared that the judges basically stick is a given that the fcc had the authority to adopt these rules under a particular provision of the communications act. so that is the good news because that question doesn't just go to whether they can adopt net neutrality rules. it also goes to whether the fcc can protect the privacy of consumers of broadband, whether they can promote universal

access to broadband among all americans so it really was a core question of was the fcc relevant at all when it comes to the education system in the 21st century. that argument foreshadows what is to come. what is not so good is what randy is talking about, that two of the judges judge tatel and judge silberman seemed to be very concerned and they were very concerned that the fcc by prohibiting this discrimination against edge providers was treating internet access providers like telephone companies, like common carriers. so under the law, and carriers have to serve everybody indiscriminately. they cannot discriminate in their rates and their conditions and their terms and the judges felt that this is exactly what the net neutrality rules did and the communications act says

point-blank, you cannot treat noncommon carriers like common carriers. the fcc has classified broadband internet access for common carriers. let me tell you i think the judges shouldn't go with their concerns and why they should allow it. let me just finish this one point. why they should not find that these regulations are common carriers. for two reasons. number one the common carrier relationship is formed when an internet access provider has a customer, all right? i under the net neutrality rules let's say i'm verizon and you you are for raising customer. i can refuse to serve you. i can absolutely just say peter i don't want to serve you or i'm going to charge you more than i charge randy but that is not what the net neutrality rules do. there is no customer relationship between the edge provider and my internet access provider.

with the net neutrality rules do is say internet access provider of gigi's you cannot charge the edge provider twice. there is no relationship between the edge provider and the internet access provider. that was very complicated so let me make an easier point. easier point and in fact judge tatel has set himself when it comes to determining what is a common carrier and what is not the expert agency should get difference from the court. that is what was so shocking about the oral argument. when two judges are telling the fcc general counsel no, know this is not how common carriage works. this is how it works. that is in flat contradiction to its precedent and a flat contradiction to common sense. you have to let the agency determine what common carriage is and what it isn't. >> guest: there's a lot to unpack there. i'm happy that gigi found some good news in this oral argument

because most people walked away from the oral argument myself included, thinking and again just the caveat that you never can be sure for thinking that the fcc is going to suffer probably an important defeat here and here here's the reason why. gigi asserts that it seems like there is not a question that the court will save the fcc has some authority over broadband internet providers. that is probably true. i think they might well do that but i think the more important point is that this net neutrality regulation that the commission adopted under chairman genachowski was really the fcc's central effort to

exercise that regulatory authority over broadband providers. sure there are some other things that made to like enforce transparency rules with regard to internet providers but the whole thrust of this regulation as gigi alluded to us to prevent discrimination. that is really at the heart of it. but the reality is that it's that discrimination prohibition that in effect converts the internet providers and the common carriers i think as gigi recognized or at least she recognizes the court seems to believe and as i believe, so with the court writes a decision which strikes the antidiscrimination part of the rule which most of us took to be the central part of the commissions rule compact it's

really eviscerated and as a practical matter apart from source if parsing theoretically what might remain as a legal matter. it has eviscerated a good part of the commission's authority. it's one pink to say the commission has some authority but if the most important thing the commission is trying to do is held unlawful from my point of view that is the good news really. let me just say and i think this will introduce another part of the conversation. a good part of the argument during the court argument had to do with whether the fcc's rule which the fcc said prohibited internet providers from charging what are referred to as edge providers, the content providers in and the googles and the

facebook's, charging them a price for reaching their customers or sending traffic to the broadband provider, whether in fact that was illegal. the court you know, go with it the fcc camber habitat. i think it's pretty clear that the court is going to say that part of the rule is unlawful and strike that down. i think from the point of view of the internet providers, what they say they want to do and what verizon said it wanted to do in the oral argument, you know that rule against so-called two-sided pricing is probably at the heart of what this whole battle is really about. i think gigi may well agree with that. >> guest: i definitely do

agree with that and i also agree with randy to the extent that it would be somewhat of a pyrrhic victory if the fcc lands in the authority but it can't actually exercise that authority in the most meaningful way possible. verizon admitted, verizon's counsel who is fantastic and a friend of mine helgi walker basically said for eyes and wants to force edge providers to pay a second poll in order to get priority service or better quality of service. so that is what they want to do and that fundamentally changes with the internet looks like. if i could address what commissioner mcdowell talked about. antitrust can solve all because because -- it's not such a new name at the new name of the telephone and cable companies. the "washington post" had a story about it today. we don't need the fcc to deal with broadband. let the ftc do it and let the

antitrust abilities do it. let me make a couple of points in that regard. number one when it comes antitrust consumer sent unfortunately your supreme court precedent they don't have a lot of rights to bring antitrust pieces. it's all about the competition so maybe google which way -- by the way could pay for the priority could ring an antitrust lawsuit that consumers are very constrained. an antitrust law is very constrained. it doesn't get to basic consumer harm and let me give you the ideal example of where antitrust law would not apply. in the kevin martin era the george bush fcc air of his fcc found that, was locking bittorrent peer-to-peer traffic for no good reason. and they founded illegal and that led to a court case where the fcc was not found to have authority. that kind of case would not be

one where antitrust would reach it because it was not a competitive issue. it was just an issue where they felt that bittorrent was full of pirated movies, was a bandwidth hog and so they just blocked it. so that is the ideal case and the case which could come up again and again and again and by the way the fcc did have evidence that internet access providers were favoring or walking or discriminated. there weren't a lot of them but there were a handful of them. they were still evidence in the agency left the fcc have the right to make predictive judgments. those are the kinds of judgments that courts are supposed to differ too. antitrust is not a strong enough rule and the federal trade commission in particular the laws that operates under would not get to a lot of the concerns that organizations like mine care a lot about. >> guest: you know, two gigi's

point and on the phone want to address whether the fcc should have absolutely no jurisdiction over broadband going forward or whether you now as gigi says some people want all of that over the antitrust realm. it may be that ultimately that is where should be but let's put that aside for a moment. a fundamental problem with this whole proceeding and i think the difference between gigi and i is certainly myself and the fcc compact despite four isolated instances that could be characterized as potential net neutrality violations have the rules been in place, there really wasn't evidence, widespread or even nonwidespread consumer harm. the problem with the -- and that's a fundamental problem with the way the fcc approach this case because it didn't say

in second paragraph 78 it explicitly acknowledge that these rules would be put in place regardless of whether any of the isps had market power, of regardless of whether it had market power findings. this goes to judge silberman's conversation that he had. right in paragraph 78 it said these net neutrality rules art good and in and of itself because we believe in openness. that sounds good, openness per se sounds attractive and it make us a nice slogan. the fact is right now the internet and i think we all would agree is basically open. the other side of that is, and the problem with the way the fcc of roach didn't, when you put in place a regulation that has the

flat prohibition as discrimination again which was at the core of the fcc's regulation you have to read nice that there may be cost to that in there may be trade-offs. we can even talk about balancing the benefits of openness against the cost but you have to recognize that. the cost you know can be real and it can go to the deterrence to new business models, to innovation and the willingness to invest. if the broadband provider believes that the only thing he can offer is going to be just like the next broadband provider , the fcc really didn't wrestle with it at all with these trade-offs because it's that openness is good in and of itself. so you have to be willing to have knowledge that there is some trade-off and you have to understand regardless of how you balance it there could be a deterrence to innovation and investment.

>> guest: number one i think the fcc did recognize it. you heard what the former chairman genachowski just said. he said when edge providers thrive and that is good for the network and good for the consumers and that virtual cycle cycle -- virtuous cycle excuse me, the growth in these apps in the content and the services and that helps make consumers want to buy internet access. it makes the comcast and verizon's and the at&t's of the will vary wealthy. comcast is 97% profit margin. these rules have been in place since the beginning of 2011. not has a fall apart for internet access providers, they are investing more. at&t announced it would invest $21 billion in its broadband so these companies are not suffering. they can do innovative business models. there's just one business model they can't do and that is one

that picks winners and losers over the internet. it's not the fcc saying you can't innovate, that you can do new things. the fcc is not even saying you can't have your own content. if verizon wants to have their own content and comcast obviously has its own content but they are saying in this one place you can't have that two-sided market that doubled toll on the edge providers. >> host: we are almost out of time. very quickly randolph may when and what will be the decision? >> guest: well predicting -- my guess would be three or four months would be my best guess and i believe that the fcc is going to suffer a defeat that will be meaningful in the sense that will i believe eviscerate the core of the net neutrality rule which was this antidiscrimination provision.

there may be something left of the fcc's authority but i think the fcc will suffer defeat and let me just add that i hope that if that is the case the fcc will not rush to try and reinitiate another proceeding to put in place net neutrality rules again , that i will just engage in watchful waiting and see what happens the marketplace. >> guest: if your argument is any indication the fcc's authority to regulate broadband to protect consumers and promote competition will be preserved. the antidiscrimination rule -- part of the rule will be sent back to the fcc and i fully expect the fcc to try again to make sure that it doesn't have common carriage that the court may be concerned about. the antiblocking rule which says the internet can't block edge providers will probably be maintained but i do hope and i do pray there is one judge we didn't talk about, judge rogers

who is likely to uphold the fcc's jurisdiction and also the rules and deferred to the fcc on their determination of common carriage. i'm hoping we can convince judge tatel. >> host: it may come as though come as though surprised when i better better to guess her lawyers. gigi sohn better law degree at the university of pennsylvania and randolph may got his law degree at duke. this has been "the communicators" on c-span.

>> helen taft was a woman of firsts. helen taft was a woman of combinations and this to me symbolizes all of that. this is helen taps inaugurate down. she marked this occasion not only her entry into the white house but really then added it as a mark of first ladies on the united states. one she became the first first lady to donate her not girl down to the smithsonian institution. she is really the founding patron of first lady's

collections and she established the tradition that first ladies would donate or not girl down to the collection. every first lady after helen taft to heaven and not girl ball head and a not girl down has donated it to the smithsonian institution. >> the new supreme court term begins on monday october 7. next constitutional law professors and attorneys talk about the major cases on the docket this term including presidential recess powers. congress's power twin force laws based on treaties and contraception coverage under the health care law. this event hosted by the american constitution society for law and policy is an hour and 35 minutes.

[inaudible conversations] >> hello everybody. welcome to the american constitution society's annual supreme court preview. i am caroline fredrickson the president of acs. many of you are probably familiar with acs but in case you may not be, we were founded in 2001 and we are a national network of lawyers, law students, judges and policymakers who believe that the law should be enforced to improve the lives of all people.

acs works for positive change by shaping the debate on vitally important legal and constitutional issues such as the ones we are here to discuss today. so i think we all know that the last couple of terms in the supreme court have seen quite a large number of extremely high-profile cases. so while the 2013/14 term may not quite rivaled those previous terms we are ready know that there are several important cases on the supreme court's docket which are reflecting ongoing national debate. the court will again examine the constitutionality of campaign finance laws. affirmative action in public universities and the validity of buffer zones around abortion clinics. a closely watched case will examine the president's power to make recess appointments.

in a year when we marked the 50th anniversary of the march on ching 10 the court will take up a case that could determine the future effectiveness of the fair housing act. to lead today's discussion with our very distinguished panel we have a dear friend to acs and a true expert on the supreme court , pamela harris. pam is currently a visiting professor of law at georgetown university law center and the former executive director of the supreme court institute at georgetown. she has served as principle deputy to the assistant attorney general for the office of legal policy at the department of justice and also in the department's office of legal counsel. she has been a member of the supreme court and appellate practice. a lecturer at harvard law school and codirector of harvard supreme court and appellate

advocacy clinic. pam also clerked for justice john paul stevens in the circuit for judge harry edwards so as i mentioned we could not be in better hands for today's discussion. please join me in welcoming pam harris. [applause] >> thank you caroline. thanks to acs for having me here today especially to karen who worked so hard to organize this event. i couldn't agree more with caroline. i think this has the potential to be really significant term and i think it's a little bit under the radar for right now. as caroline said we had so many high-profile cases in the last year or two that i think people have sort of missed the potential for this term to be really just as important as those last two. an unusual number of cases i think going right to a lot of

hot button culture issues, apportion religion of affirmative action. i would add to that list the scope of federal congressional authority versus state authority which used to be of interest only to academics and now has cultural resonance of its own. i think when you add this envelope it's going to be a really big term. the rulings in these cases will have very significant practical effect and doctrinal and spillover effects in other cases and i also think people should be watching for how these issues are being briefed. we are seeing some really notably aggressive briefing on the more conservative side. the willingness to ask the president be able role to push these positions unusually far i think and it will be really interesting to watch how this plays out and how this kind of briefing shapes with the court will do and the narratives of the court where it will be putting forward when it decides these cases. i'm going to turn things over

now to our extremely distinguished panel. the downside of it being such an interesting term is that we have a lot of pieces to go through so we will move pretty quickly and save some time at the end for questions from all of you had to save time at the beginning i'm going to do introductions that will not come close to doing justice to our panelists. forgive me. i hope you all have biographical material in front of you so you can get a fuller picture of how lucky we are to have these panelists with us today. in alphabetical order we have randy barnett who is the carmack waterhouse professor at georgetown university law center in addition to an extremely distinguished academic career randy is also a very regularly engaged with the public writing opinion pieces and appearing on television. he has also been very active in litigation from the supreme court where he has argued cases and most recently played a significant role in the challenge to the affordable care

act. next we have joshua civin who is counsel to the director of litigation at the naacp legal defense and educational fund. he plays a key role in lbf supreme court matters and just last term he helped to lead the efforts in fisher the affirmative action case from texas. he is probably her most recent supreme court clerk for justice ruth bader ginsburg. next we have andy pincus was a partner in washington d.c. where he specializes in supreme court and appellate practice. he is also co-founder and codirector of the yale law school supreme court at the seat and again is argued over 20 cases in the supreme court and is has filed briefs more than 150 which is a stunning number. he is a former assistant solicitor general and a member of the acs board of directors. finally we have david strauss a distinguished service professor of law at the university of chicago law school and is also a

former assistant to the solicitor general and also an attorney advisor at the office of legal counsel at the department of justice and special counsel to the senate judiciary committee. he has has written vary widely has written very widely unconstitutional law including his book the living constitution and he also is a member of the acs board of directors. i'm going to hand things over now and we will start with two big cases you might think a business structure government cases. noel canning on the presence recess appointment power and the treaty power of more specifically commerce's authority to enact legislation that implements treaties which again may sound a little bit dry but this is just the latest in a series of cases considering the power of the federal government as opposed to the state. i think this will actually be a pretty big case. david would you start us off? >> pam thank you very much and thanks to all of you for coming. thanks to caroline and all the

work they do for acs. as pam mentioned my case is about the recess appointments clause. it's the cases started out as a pretty important case and has become actually quite a remarkable case at least potentially. let me tell you what's going on. as you know the usual way that people get appointed to executive branch commissions officers of the united states is that the president nominates them and by devising consent of the senate they are appointed to the position. that is the usual way. there is also a clause in the constitution the so-called recess appointments clause that roughly speaking provides when the senate is in recess the president can make an appointment without the advice and consent of the senate and that appointment lasts until the end of the senate's next session. i say roughly speaking because the exact language of that close turns out to be --

but first let me tell you how the case got started. what happened is in this started in this administradministr ation and under the previous administration has continued to this administration, the senate in order to prevent the reason for making recess opponents have adopted the practice from time to time that they call a pro forma session which means the session will meet twice a week for literally less than a minute that's senate will bang the gavel to call the senate into session and dang the gavel immediately afterwards to end the session and the thinking was there would be no recess in which the president did make appointments. if you are wondering why the senate is doing that with the democratic president the reason is the constitution provides either house can adjourn for more than three days without the consent of the other. they ask representatives if they can enforce the senate to adopt that pro forma practice. the case arose because president

obama acted on the advice of the office of legal counsel and took the position that those pro forma sessions did not interrupt the recess that the senate recesses and adopts a resolution in this case meeting twice a week in the resolution action says business will be conducted in that session. the recess is longer than the three days in between the pro forma sessions long enough to make a recess appointment. he made a couple of appointments to the national labor relations board. noel canning is affirmed at most a proceeding before and i'll are the unchallenged and dollar b+ order. one of the basis for the challenge is the court of appeals that these appointees were not appointees because they were appointed during a pro forma session. it looked as if the case would resolve this question about whether these pro forma sessions really to interrupt the recess

and disable the president from making recess appointments. it's a difficult question. i think everyone even let me say it this way, to even people who believe the president has that power. the opinion is quite candid on this opinion and their counter arguments that are quite sufficient. what happened is the d.c. circuit when i got this case didn't reach that question about making appointments in a pro forma session. instead the d.c. circuit took a step back and said well as we have read the recess appointments clause it doesn't apply to recesses that occur within a session of the senate at all. that's the first thing in here is what is going on with that constitution requires the senate in both houses of congress to meet at least twice a year so there are at least two sessions in the senate by virtue of the 20th amendment.

there is a recess that occurs in between those sessions when one session ends and the other begins. sometimes that recesses literally infinitesimally small. that is the intersession recess. in addition to that the senate takes breaks at various times during the session. with the d.c. circuit said was the president can only make recess appointments during the intersession of recess between one session and the next which as i said sometimes is not a recess. if the senate rakes for thanksgiving or breaks for the summer or for an election day that is not a recess within the appointments clause and the president can make appointments. the pro forma question doesn't even arise when it pro forma session is in recess. whatever you think about that the d.c. -- can make appointments them. that was a remarkable rule.

not content to stop there the d.c. circuit went on to say what's more not only can the president only make appointments during that intersession of recess but the president still has to arise during that recess. if you have situation in in which there's there is a vacancy in the president nominates someone in the senate does not ask the senate recesses the president has to wait for the senate to get back in session and until the senate is back in session the president can only fill vacancies that arise during a recess. why is this a remarkable thing? sits remarkable because there is a very consistent long-standing practice contrary on both counts. since 1921 the executive branch has taken the position that intersession recesses count as recesses of the recess appointment since 1921 opinion of the attorney general.

the solicitor general told the supreme court that by its estimate 500 recess appointments have been made in those circumstances including cabinet officers and cia directors and court of appeals directors. those appointments would now be invalid. what about the d.c. circuits ruling that the vacancy has to arise during a recess? swell, the history on that goes back to 1823 when attorney general word ruled the opinion for president in a row saying no whenever the vacancy arises if it it persists in to recess you can make the appointment. congress has a pretty good argument and congress has acquiesced in the executive branch interpretations. sometimes explicitly in its own writings in ways that the attorney general of the congress and also by the ewing -- being willing to pay people who

are appointed under those circumstances. the d.c. circuit raising questions about it what it relied almost a language of the constitution that said recess appointments clause says the presidential have the power to fill all vacancies that may happen during the recess of the senate. it said okay that may happen during the recess and that means the vacancy has to begin during a recess and it can just be who was around during the recess and look at the article that precedes the word recess. it's the recess. not just any old recess. it must mean the recess between sessions. now as a matter of straight forward language that is not a crazy argument. as a matter of history is a little bit unclear. there is some murkiness in history. it's not 100% clear. there other places in the constitution where the constitution uses the word be

too mean any and there are other circumstances in which during a made process drinks of the linguistic argument is far from airtight. but it's an argument. what is remarkable is the kind of what you might call fundamentalism that the d.c. circuit engaged in and we basically don't care what the consistent practice has been. they didn't quite say this but this is very much the flavor of the opinion. we don't really care what the consistent practice has been. we are going to look at the text of the constitution and as we read it is very long-standing practice that the executive and congress have engaged in is not constitutional. other cases before the court bond which randy will talk about is a little bit of this flavor and that this is a particularly dramatic instance of the confrontation between eight -- this is we don't need the

presidents. we have got the text and we are going to look at the text and what we take to be the definition of the text was adopted. a very long-standing practice that was understood to be in viable. as far as the actual outcome of the case the solicitor general asked the supreme court just to decide these two questions in knots to decide a pro forma question that was originally in the case. in other words the supreme court did not agree in specifically address the parties to address the question about pro forma appointments. there is a bit of a bind here. you would think the temptation for the circuit court would be to say well we don't need to reach these questions and. the d.c. circuit will atop the medal as a pro forma is no good. supporters can can see this and argue the question and we will resolve that is not resolved the other questions. that would be sort of the prediction one would make and it

might very well happen. the problem is the d.c. circuit opinion now cast doubt on the president's ability to make his appointments and essentially disables the president for making an appointment except during the possibly nonexistent intersession recess and except for vacancies that might arise during the possibly nonexistent intersession recess. the d.c. circuit has put the president in that position and is not going to make an appointment on the official only to have the action invalidated because the appointment was invalid. i think will be difficult for the supreme court not to reach these questions and to come to grips with what i said is a really fundamental difference in the way you think about the constitution as something that was essentially frozen in time or whether it's evolved over the years on the basis of current understanding. speak to any of our other panelists want to add any thoughts to that? >> i think i do. i think it's pretty much all of

david's summary the case in laying out the parameters of all what was at stake and how the case came about. i suppose the one thing i would disagree with is the statement he made it very and where he said the position of the d.c. circuit and the form of reasoning being used is we don't need to history. we just go with the text of the constitution. i don't agree. i don't share that reading of the district court judge sentelle reading of the circuit. david points out attorney general dougherty and the coolidge of administration had an opinion on this subject and the attorney general worked but the court relies on the opinion of the attorney general randolph the first attorney general of the united states in his opinion so that is just one of many examples in the the opinion were they to rest on the history but as the earliest history as opposed to later developing history. at that point i would say the real divide here is not about the use of history but which period of history matters the most. on the one hand there's the

period surrounding the adoption of the text which is what the d.c. circuit focuses on what you might consider necessary. not just the text alone but the texan like this historical context and the other approach to history is more of a traditional evolution approach to history where the court looks at how our traditions have evolved over time. that's also historical inquiry that picks up from the time of the enactment and carries forward through to today and at that point you to pick up practices like for example the first intersession recess appointments made after the civil war some 80 years after the founding but it's a long time ago for today but a long time after the founding. i think the history is being used on both sides. it's just a slightly different use of history by each side. >> i think it's also worth stepping back and taking a look at what's really going on here. i think all of us who have had children or who have children have had the experience of saying don't push the envelope

because you milieu -- loose and privileges. it's clear what happened here is the executive branch pushed in and blow. there had been as david says this sort of accommodation which was we don't abide by the restrictions that the d.c. circuit has imposed but the intersession recess has to be a long one and there have never been any second-guessing of the senate's on determination of whether or not it was a recess in the administration went past that and said well i am the president and i cannot decide whether or not the senate is really an recess and i'm deciding that they are even though they say they are not. i think to some extent that determination pushing past with a history established but everything else in play because of the stab back and look at it from the view of the judge is it easier to say gee there's this hard and fast rule intercession only or do you really want to be in the situation of saying well

some intersession recesses are long enough but we have to now decide is three, five, 10 days enough? does the senate have to do business? one should go past those hard lines there is a lot of flexibility although one is to say we take the senate at its word and that's the end of it. if you were not willing to do that some of these rules that make up back to the language and may go back to the earlier history seemed more judicially adoptable than something that is a lot mushy earth. the other thing that i would say is if you look at the practicalities the president presented the court with almost eight -- situation because the president's perspective basic rate is interested should recesses find them by the way i get to decide whether to recess essentially means i can use the appointment power at any time but the position adopted by the

d.c. circuit as david said is i can't use the recess appointment hardly ever. if you were stepping back and looking at the original purpose of the clause which probably was in those times we couldn't get people together instantaneously. which of those two options would you pick today one that overrides the advice and consent whenever the president wants wants to or one that basically says we are not going to do that. to some extent there's an a practical impetus to say we are not going to write out of the constitution this significant authority preempted into the senate. >> just let me say a word of defense of the administration's position following up and i'm not sure how much of a disagreement i have with him or with randy. there are two ways you can think about the recess appointment power. you could say this is just a

practical thing to deal with circumstances in which the senate is not around and the president has to fill a position and it's just to deal with that circumstance. when the constitution was drafted when congress left town for long periods of time when transportation and communication were very slow that could be a real critical problem. you could see it as serving that function or you could say no the recess appointment power is actually a weapon in the president's arsenal. the branches have different weapons against each other and this is something the president can use. if the senate is recalcitrant about confirming a nominee for president can say i'm going to make a recess appointment and it will only last for a year plus and only lasted the end of the senate's next session. i get something and this is a way of dealing with the senate to confirm nominees and something the president can use in those complex.

that i think is the basic issue. for a long time at least sense 1921 in arguably before then the understanding was this was something the president could use. that was what was going on. it wasn't just a practical thing to fill a vacancy or a position. if you think that is what it's doing and if you think it's a weapon and a weapon in the president's arsenal the best way to understand the administration's position is it doesn't make any sense to allow the senate to nullify this to have someone in and gavel every three days. if it's a legitimate weapon for the president to have the president should have it in the senate shouldn't be able to take it away from him. with the d.c. circuit essentially said was no that's the wrong -- wrong way to think about it and i think randy is correct in saying they looked at more than just the wars all of that

history -- there are letters that people wrote in letters that other people wrote that say the opposite of the usual thing when you go back and reconstruct the issue that they weren't thinking about. the d.c. circuit effectively said no this is a practical problem. someone has to fill the office and that is solved this is for. as i said it's not totally impossible view about what is originally meant to do. it is however way inconsistent with the way both branches have understood it. i think there's a very good argument and actually the better argument in the case could be made in favor of the administration's understanding. >> i will move us on the one minute but i want to say one more thing following up on what randy said about pushing the envelope. i think that's an interesting and important way to think about the case and a kind of works in both directions because the other people who are pushing the envelope would be the republicans in the senate with

the increased use of the filibuster circumstances where it hasn't been used as -- at least as regularly as before. i think the century long understanding, the recess appointments powers as a weapon for the president has been a safety valve for these filibusters. we filibuster into a recess appointment and it all works out in the end. if the recess appointment power goes away i think will be interesting to see what happens with filibusters and whether the senate will decide, will reconsider whether the filibuster is a tool that it ought to have if the president can do his half of the dance. i think the political and practical implications of this decision are going to be enormous and a little bit hard to predict. i got the last word now. randy if you would move us on to launch please.

>> i just want to add one other thing. [laughter] this is just for the people who want to know more about it. there's a great law article review by michael rappaport on the original meaning of recess power. the d.c. circuit relies on this article. it was an article published by the bush administration and there's much more elaborate treatment of the history in that article. i don't have the citation of the article but it's in the opinion itself so if you want to find the article you can pair also want to say the attorney general dougherty they have been talking about. those of you that watch the empire there's a character on boardwalk empire. is the same airy dougherty so if you watch the show you will know what that means. so i am supposed to talk about bonds. not james bond but a woman named mrs. bond and you were going to be when i tell you the facts of this case you'll be surprised at what happened.

she is a woman whose best friend had an affair with her husband and her husband impregnated her best friend. she went on amazon.com and ordered some chemicals on amazon that were toxic in the sense that if you touch them they would create irritation to your skin. and she created this concoction and put it on various items at a friends house, hurt car handle mailbox and/or handle. it wasn't a very effective way at striking back at her friends because the chemicals made an orange quite physical appearance so it's quite easy to avoid and which are neighbor did except when one instance a thumb touch the chemical and earned her thumb. that is basically the facts of this case. you will not be surprised to learn that she was prosecuted under the chemical weapons

implementation act which was a law enacted by congress to criminalize domestic chemical weapons used as chemical weapons of mass destruction under a treaty that the chemical weapons treaty that the united states was a signatory to. rather than persecute mrs. bond under numerous criminal laws which she could've been prosecuted she was prosecuted under federal law that carried a mandatory minimum of seven years in federal prison for this act. this is not the first time this case is gone to the supreme court. with a second time the case is gone to the supreme court's it's amazing amazing which cases actually go to the core. the first case was a significant case and the harbinger of the mlb sebelius affordable care at case called wanda versus united states in which the federal government challenged mrs. bond standing to argue that this

particular act of congress was beyond congress's power to enact because they said that is really an argument the states can make it not an argument that individual citizens can make in the supreme court unanimously upheld in an opinion by justice kennedy that no -- the idea that the congress has limited powers and the residual powers are left to the state. federalism is not only something to protect states, it's really there to protect individuals and the idea that you have this divided power as a means of protecting individuals. every person if they are in fact harmed by the prosecution under a statute like this that she clearly was because she is facing a federal penal wrap any person may argue that the statute was the on the power of congress to act me that got remanded down to the lower

courts to decide whether it was within the congress's power to the question that is returning to the court is not whether she has standing decision. now the question is whether this is within congress's power to enact. what power was congress asserting when it passed the chemical weapons convention implementation act? it was not asserting the power over interstate commerce. the u.s. has denied it. that is not what the solicitor general says and that is not the power being served here. the power being asserted here being asserted here is the power to implement treaties. back at the improper clause which is why this case turns out to be significantly potential case pitted congress and the power to make all laws necessary for carrying into execution the foregoing powers which is list of powers exist in article i section 8 in in all the powers invested in the government of the united states. that is what they proper clause says.

one of the powers that the congress president of the united states has in consultation with the advice and consent of the senate is the power to enter into treaties with foreign countries. the president did enter into a treaty with the chemical weapons weapons control tree that they entered into with foreign countries in this treaty was ratified by the senate. now the question is does congress and this includes the house does the senate and house have the power to implement this treaty in this way by rendering all chemical weapons including this one a violation of federal law even though it's acknowledge by everyone that congress would not have this power under its conventional theories in lhasa was to assert the congress clause power. it's really only about whether congress can and a sense of large its powers beyond that

which you would normally have under its enumerated powers ability. when it enters into a treaty with another country. let me explain to this a different way. imagine congress enters into a treaty with another country that says for example that -- i'm sorry suppose the president enters in a treaty with another country that says all weapons all small-arms shall be banned within a particular country, within the signatories to this treaty's country and this treaty is ratified in the senate. would that then give the congress the power to ban firearms in the united states which is a power that otherwise they might not have under federal law under congress's power. one of the problems with this is the role that the bill of rights might play or -- we know as of the heller decision the supreme court has held the right to keep and bear arms is a protected individual rights or of rats that will

constrain the treaty -- the exercise of the treaty power. with this case raises and infected is settled law that the bill of rights or the rights enumerated in a constitution does constrain the treaty power. it does constrain the ability of congress to make laws to execute treaty. they cannot make laws to execute a treaty that protects the bill of rights of that has been established. now the question presented by this case is there is a comparable restriction on the ability of congress to regulate activities that would violate what we might call the structural principles of federalism? in this case the principle the kind of offense that took place here which was engaging in this awful behavior in which resulted in your good friend and neighbor from getting burned is actually the kind of offense that is not something that is within congress's power to breach. it is the kind within the states

power to reach and this question is can congress have a broader power to reach this activity that wouldn't normally have xhosa senate has ratified the treaty that the president has entered into. that is really the issue. now let me just say a little bit about what's going on both sides of this issue because they think it's a very interesting question and the reason why think it's potentially significant is it's another opportunity to revisit the question as to whether the limits on congress's power is something that the judges or the supreme court will enforce for a very long time. as of 1995 with the lopez case the courts start to do that and his continued to do so through the nlrb versus sebelius case. it's a case in which the courts are being called upon to express an opinion about whether congress has acted within its powers. let me discuss a little bit

about what the arguments are on both sides of the question. the argument against the constitutionality of this is that congress may not -- the president in cooperation with the senate may not simply by entering into a treaty with another country expand congress's domestic legislative authority. .. a way that the senate and president can expand congress'

power beyond that which the constitution allows. on the other hand, the necessary and proper clause is one of the e numb rated power and allow the exercise of that power. i believe that the response that is going to be made to that argument is that this is may be an necessary exercise of power to execute the treaty power but not that the argument is not a proper exercise in power. that you -- law not only has to be necessary, it also has to be proper. until recently the idea that the word proper carries an independent way over necessary is something that many law professors denied and many courts didn't pay close attention to; however, it was exactly the issue that was presented in the nfib case in which the argument was even though it might be necessary to impose an insurance mandate on all americans in order exfect wait the congress is doing under the affordable care act. it was not a proper thing for congress to do.

it was not proper to force everybody to buy insurance. doing so was going to viement the fundamental structure limitation that separate the federal government from the state government and protects rememberty of the people. that was the argument made under the necessary proper clause. that was the argument accept bade majority of the court in the case. including by chief justice roberts in his opinion which was the fifth vote uphold the affordable care act around saving construction, which basically said it was unconstitutional because it was improper to impositive an insurance mandate on the people. did turn -- turns out the lawyer in the case is paul clement. who was the lawyer who argued the nfib case. it may not be come as a surprise in his brief he relies heavily on the nfib case and chief

justice's roberts reasoning on the clause. it gives you the land of the lay. like most cases on the supreme court, there are strong arguments on both sides. neither side, in this particular case, ought to be dismissed as frivolous. they are both strong arguments. i think it may well give the court the opportunity revisit the issue of structure limitation and revisit the issue of what the content is of the necessary and proper clause following closely on the heel of what happened in the nfib case. i think the case will share in common with the last case we heard about an emphasis on the -- on the text of the constitution and secondarily, an emphasis on the original meaning of the text. the question will be raised does subsequent practice as well as subsequent rulings by the court that may be somewhat at odds with original meeting. does it come to super seed the original meeting or does the original meaning governor?

i think that issue is going to be in front of the court this term. >> david? >> on the question of history. i worked on the brief with some of your georgetown colleagues an other law professors that go to the history. and it's interesting because there's one case called holland where there's a debate about how much attention it got, it's the pretty clear that the supreme court squarely held that congress has the power. i think most observers agree the case has been overruled for the court to do what the petitioners, mrs. bond, would like to do in the case. it also presents a question of adherence to the precedent. there's a lot of history, interestingly, in the early day of the nation about two questions. first of all, a sort of anteseed

end question. what the treaty is self-executing. what if the treaty -- not get in to that. [laughter] you'll find out why. >> what if the treaty didn't require implementing leg as some treaties don't. but automatically imposed -- it's pretty clear, i think, that self-executing treaties have not been found to have the limitation. and this is a rather odd situation where because the treaty is self-execute. it's not just the president and the senate deciding. the house is brought to the equation, by bringing in the house, the part of the government closer to the people, the government's authority is sort of lessened which is sort of an odd dynamic. again stepping back and looking what is going on in the case. it seems unlikely the framers might have had it in mind.

it's also a reason why the kind of law might be proper, it's something that could be accomplished by a treaty. why wouldn't it be proper to be accomplish bid a law. also, the brief we filed goes in to detail. there are early camps -- camps both in the early period and example prior to the holland case that i mentioned. in which members of congress, justices and others quite clearly assume that congress has power background assumption for a lot of legislative debates and other supreme court decisions that prior. there's a lot of history that will have to be, thrown under the bus. >> i forgot to say one more thing about the case to be useful. to figure out the possible outcome. i forgot about it. that is, as i told you in the nfib case. in a sen, i was one of the lawyer for the national

federation of independent business. we included me. -- our arguments were accepted by five votes. then what chief justice roberts did was adopt a saving construction he said he was going to redo the statute to not violate the principle. we objected. i object to the move he made there. however, in this case, paul is arguing there's a saving construction that can be griffin the statute. it's a reasonably plausible. he said there's a examination in the statute now that said activities like manufacturing agriculture and other medical research are exempt from these or other peaceful activities or peaceful activities such as these. there's an other. he's arguing that his -- in the u.s. code, when the -- word peacefully or peaceful purposes is not typical used. where it is used it's used in opposition to war of the purpose

of war. what actually the treaty is about trying to prohibit states from engaging in the war-like activities using chemical weapon. it's trying to prevent private parties like al qaeda and other terrorists private parties from engaging in the war-like activities. what it's not about is peaceful activity. apieceble activity. if the exemption is given that saving construction, then the constitutional issue will be avoided. what you might end up having is a similar opinion to that which you saw in nfib, which would be a ringing endorsement of the challengers' view of the treaty power that then says, but we don't have -- because of that, we are -- because there's a constitutional problem, we are now going to save the treaty by giving it this saving construction in which it's limited to the use -- to the peaceable use of toxic chemicals. >> yeah. just two things. the case andy mentioned,

missouri against holland is a case drawn in to question by the argument that congress cannot -- in implementing a treaty congress continue exceed the powers otherwise in the constitution. missouri against holland said it's a independent power. doesn't matter whether congress could have done it under the bankruptcy clause or any other clause. if it was pursuant to a treaty lawfully entered in to that's what we need to know. it's a big-deal opinion. it's an opinion that uses the metaphor of a living constitution very central in the reasoning. for it to come in to question and overruled, that would be a big deal. that's what i thought and randy concurred. something in common with the recess appointment case. randy is right that the congress didn't rely on the commerce clause and the government didn't rely on the commerce clause blow. the solicitor general make the

argument in the brief. he acknowledges the point randy made. it's not what congress invoked. we are making it here for the first time and asking the court to accept the argument. the significance is the following, after the affordable care act case and five justices agree that the affordable care act exceeded congress' power and the commerce law uptheld. if you took the logic of well, it's not clear what the logic of the opinion is. one way you might understand the lodge sick to e vif race -- e e viz rate. it was closer than the connection between a million things that are accepted that congress does, and interstate commerce including one rehab i did attacked consistent with his

case. the session of marijuana. but he lost that case. the court said no. a person growing marijuana on their own property. that has enough -- [inaudible] >> [laughter] seriously one question do they mean what they said in the affordable care act case? in which case the federal government is really not going to be able to do a lot of things that currently think it is can be do. it is the affordable care act case a little bit like sort of happened and now going disappear from the scene in this case could shed light on that. it if they address the commerce clause, the solicitor general suggests. it's okay under the commerce clause. it would suggest that the affordable care act case is one of those things that will disappear. if they take the affordable care act case seriously. who knows where this will end. the reason i say that is because the law enforcement things are

sort of where the rubber hits the road. if you are serious about pairing back the power of the federal government, law enforcement, federal criminal law enforcement is one of the areas where you're going cut it back. i think a lot of justices on the court will be reluctant to do that. >> thank you very much. i want to move on involving religion, church-state issues, establishment clause, freedom restoration act. andy, can you get us started? >> i'll start with the one that the court will hear us. it's the town of greece case. it brings us back to the world of establishment clause and prayer. the case involves prayers at the beginning of the town board meeting of the town of greece. they use a list of clergy that the chamber of commerce created to invite people give prayers. laypersons were also permitted

to give prayers. but as with all of these establishment clause causes, the particular facts are really -- david's phrase, rubber meets the road. let me just throw out a few. the majority and in some years the overwhelming majority of prayers contained clear sectarian christian references to jesus cris, for example. the prayers were made on the behalf of the town, the the court of appeals found using we and us. there was an invitation to audience members to participate, stand, or otherwise participate in the prayer, and no guidance was given to the people giving prayers which has been sometimes true. in term of can you make your prayer to the consistent to the original religion. broad and inclusive rather than more focused. the court of appeals found that the prayer practice associated

the town with the christian religion and violated the establishment clause. the relevance supreme court is mar are issue against chamber. which involved prayer in the state legislature. the court upheld the practice of having prayer there given the long history especially of prayer at the beginning of sessions of the house and senate. and in doing so, in marsh the court said two important things. there was no impermissible motive in selecting the prayer giver. no claim of discrimination. and the prayer was not used in -- i'll quote the phrase. -- advance any one or disparage any other faith or belief. here there is no claim there was an actually permissible motive. for the challengers, really try to distinguish their case for marsh on two separate but related grounds.

one is coerce. they focus on the fact that the public in the state legislative session are voluntary observers. nobody has to be there. they have no part in the proceedings. they are just -- they can walk in and out. they are typically in a gallery. town board meetings are different. they more acib to public hearings. there are people participating sometimes given awards. sometimes they are making arguments directly to the town board. they're being questioned by town board members. one difference is people have to be there. unlike in the state legislature context, the use of the prayer giving here is cohearsive. and therefore fits more in the approach that the courts have used, for example, in high school graduations, and other situations where the conclusion is people have to be here. they can't --

[inaudible] would would be difficult and; therefore the use of prayer is per missable. the second argue system a lot government can't prescribe prayer. that's pretty clear. all of the secretary -- really made this a situation with the town was putting its imperm or it on a particular kind of religious prayer. as opposed to just acknowledging religion in general. for example, all of the things i mentioned before, the fact that most state legislature do have guidelines and ask for exclusiveness. no kind of protection -- obviously this is not a court

very receptive to establishment claims. i think most people have to say the plaintiff are going have a tough row to hoe than the defendants in this case. there's a lot of underlying concern. this was present in marsh about government supervision of prayer. the establishment clause prohibits government endorsement of religion. we don't want government creating an government-endorsed religion or government-endorsed prayer. how much should court be looking at the content of prayer and making the establishment clause decisions? so i think the underlying questions are is the marsh test it in this kind of prayer situation? if there is no discrimination, disparaging of religion the end of the inquiry? is there some additional test to see whether based on the circumstances the government is associating itself with the particular religion.

and more generally, there's been a concerned effort for many years to water down eliminate the that -- traditional test they used. one what reasonable observers perceive. and department in this case ask to get rid both of test. if the court goes further saying the marsh standards. interest imply the sg filed a brief. saying the marsh standard is all that applies in the town here. >> anybody have anything to add on this? >> okay. i'm going say a word or two. i think it's such an important and interesting case. really, really important. for me, kind of the central question has been lurking in the the court law for so long.

as an i did alluded to. it's not a court. for many years hasn't ban court particularly receptive to establishment clause claims. instead it's a court receptive to claims there needs to be more room for religion in the public square. that sort is where we're heading. and i think that is people say that religion in the public square. it's sort of instandpointly raises the question. which -- okay. who is religion? which religion? once you say you're opening the public square to religion. the questions come right up. and question the court has for a long time managed to avoid them. i think this -- people when they say more religion in the public square, it's easy to think of religion as kind of generic thing. it's religion. not the way most believers experience religion. it's very specific. people's religions and their religious commitments. and so i really think this case is going force the court begin to grapple with how it will answer this question.

which religion? whose religion? majority religion? minority religion? judea christian or all religions? it's going to be a difficult role that the court has set for itself in the prior cases. i think this case is going to be one where it has to confront some of the questions. >> yes. i think that's interesting. the easyoff ramp for dpowrt in this case would be to say government prayer and government meetings is different. we have the test in marsh. it's okay. we're not saying anything about anything else. that's possible. but as i say, there a lot of broader questions sort of lurking here about their entire jurisprudence that could dmom to play. >> the second religion case deals, at least in part, the

free exercise clause. not a case at the court yet. it's on the express train. a number of cases around the country. i'm sure you have read about them. that raise the question whether a for-profit cooperation can challenge the requirement of the new health care law that insurance plans must cover birth control on the ground that providing that coverage of violates the religious belief from the companies owners. the health law has a requirement that birth control be provided. one of the things in this the required section is that the plan cover the morning after pill. some people have a religious belief that the morning after pill is interfering with conception or terminating a conception that is already occurred interfere with their religious belief. the question is they own a

company. the for-profit business. we're not talking about religious institutions. can they be required to provide the insurance or either the institution or the religious freedom restoration act require there be an exemption. they not be required to provide insurance with the requirement. let me step back and talk about the underlying law. because it gets complicated. free exercise clause oivelt protects individual's ability to exercise their religion. the court, in the initial construction of the free exercise clause theald it covered claims by individuals that generally applicable government law burdened their free exercise and look to see whether it was appropriate whether the government had a compelling interest for not creating an compensatory damages -- exemption for those people. more recently the court sort of

revised that jurisprudence and said if the law is generally applicable we're basically going to hold the free exercise clause doesn't require the creation of any exemptions. in response to that, congress and the administration passed the religion freedom restoration act. which was intended to return the law where it was before the court adopted the approach of basically saying generally applicable government law of free exercise challenge. the court would have to show compelling interest in order to apply the law to the specific person. there are claim under the free exercise clause and difficult given the current jurisprudence. what is wrong essentially not creating this kind of exemption is a discrimination against religion. but i think the more focus challenge is this argument that

if i own a company, and this interferes with my government requiring the company to do something that interferes with my religious belief. i have a challenge and the standard has to be able to meet for the government enforce that law. ooze i said cases pending all over the country. the third circus 2-1 held reject ing preliminary injunction sought by a challenger. the tenth circuit sitting on -- about 1565 pages worth of opinions largely accepted the claim of the challenger. remanded for determination and preliminary junction. you have different views and just sort of tick off the issues there are a lot of interesting ones. first of all, these are for-profit businesses. that's the free exercise clause

protect for-profit businesses? intuition might be, agree, free exercise clause you think of an individual actual religious practice being burdened. should apply to a for-profit business. certainly applied to religious corporations, churches, and other corporate bodies. but that have religious purposes. and the government created an exemption from the requirement for religious entities. not-for-property religious. should a for-profit be treated in the same way? it's easy maybe to be for some believers to be skeptical here, but would you have a different reaction, if, for example, a company operating a chain of kosher butchers to sell pork or slaughter animals in a way inconsistent with the practices required by kosher procedures.

people might have a different reaction. then the next question, if you conclude that the company is covered, is this a substantial burden on religious belief? is that a subject objection of test. before the court switched the free express injuries burns. the court found great difficulty in second-guessing somebody's claim to do what they're trying to do with the government wants to require them to do. ask a burden on religion. how do you get somebody's belief. second guessing somebody's claim it burdens my belief it's inconsistent with what i believe. it's difficult it thing for the court to do. on the other hand, one you grant leeway to the belief. it seems know, then you have to

think about what kind of compelling interest do you require in order for the government regulation to prevail. allowing great leeway for claim of burden opens the door to a whole multitude of possible challenges. to government regulations. that apply across the board. should you -- mean that the compelling interest test is going apply differently in those situations. should apply differently in a situation like this one where there's an effect on third parties? obviously the dispition by the owner of the company not to provide the insurance has an impact on the company's employee. is it relevant to assessing the compelling interest of the government or not. lots of really interesting issues here. there was a case decided before the court changed the free exercise jurisprudence which involved a claim by someone who was a men mennonite playing to

social security. he needed an compensatory damages the court found it was a burden that requirement was a burden on his religion. but gave short -- didn't take long to decide that the government had an compelling interest to maintain the breadth of a social security system. it's not a perfect analogy. it's an interesting decision as the court continue to grapple with the issue. >> and just to add, if you have the coacher butcher on one side in term of example. thinking broadly about labor standards act. civil rights clause. what are the implications if they can assert religion exercise here to brief in a religious perspective not

complying with the fair labor standards act or civil right act. [inaudible] religion belief. women shouldn't be engaged in certain kinds of duties and on the other hand, men shouldn't be engaged in others. regardless of what the applicable title vii rules would be. >> yeah. an observation in the regime andy was talking about before the supreme court changed the law and the regime where constitution the court interpreted it forbade -- the interests thing about the people making religious freedom law almost always lost. the case about paying social security taxes was typical. there were a few. three or four.

and there were a series of cases involving -- as you can imagine. there a lot of people that made various claims. including i can't have a social security number. it will steal my soul. [laughter] that person lost too. [laughter] people in the military didn't want -- religious reasons to wear certain head gear. they lost. in that time nominally the law was the constitution was interpreting -- it seemed fairvelt to religious exercise and practice it wasn't particularly favorable. if the regime carries out. it shouldn't have chafns exceeding. extremely opened issue and what count z an compelling interest. >> given it's an blank blag

would withstand free exercise challenges justice scalia. >> one thing to parade of horrible you're talking about. and this isn't the -- it's the next guy in line. it's a gay rights case. we had the same-sex marriage cases last term. it's the next gay right issue. state and locality pass antidiscrimination law that cover sexual orientation. there's already bubbling up quite a number of cases with people presenting businesses presenting religious objections to compliance with those antidiscrimination. there's a case coming out, i think it's new mexico, a commercial photographer wants an exemption from a local public accommodation law that would allow the photographer not to photograph same-sex marriage because of religious objection. not do business with same sec marriages. this is really -- there's a parade of horribles. i think next in line is this

issue. i think a lot of people are going to be watching this case very closely for a number of reasons. move on to josh. we'll talk about two big civil rights cases which carolene mentioned earlier which are on the docket for the term. >> which would you like me to start with? >> you pick. >> i'll start with not mount holly. it's a case out of new jersey. the fact of the case deal really with strag story interpretation -- focus and crystallize when it got supreme court. the town of mount holly wanted to redevelop a neighborhood. it's a town about 60% white, and there's one neighborhood in the town that predominantly minority. it's holly gardens. they want to redevelop the neighborhood. its a neighborhood that was

military housing back in the '50s, semidetached, red brick houses. a lot of homeowners. lots of families that are close-knit and have been there for awhile. the town decided they were going to demolish just the entire neighborhood and replace it with houses that primarily couldn't be afforded by the people who currently live there. and so members of people who live in the neighborhood. member of the community challenge the township act under the fair housing act. for decades, really, it's been assumed in all court of appeal who looked tat have said that the fair housing act has a desperate impact provision. if you have a policy or practice of a town, that a private corporation that unjustified impact on a protected class.

whether it be on race or disability or family status, the town or the business has to come forward with a pretty good reason to justify that. and if it can't come up with a pretty good reason, or if there's a better way to do without creating the same impact. the entity is liable. gets to the supreme court, and the town of mount holly said that this type of claim are not able to bring them under the fair housing act. and so as i said before, it's a consistent interpretation of the federal government including a regulation passed in active in 2013 to confirm the long standing practice. the fair housing as part the coverage. so the township, though, argues that the statute was pretty

clear when it was passed it didn't have a desperate impact cause of action, and i think this is where the challenge has been joined. the township also said even if the statute is unclear, because desperate impact raises constitutional concerns, you have to interpret the statute as saying that it doesn't have the celebrate impact cause of action. a history to situate it. it's a 1968 civil rights fair housing act passed in wake of martin luther king's assassination. it was an act interpreted by the court in several cases to really extend all the way to the full scope of congress' power under the constitution. to try to eradicate housing discriminate and promote truly inclusive communities. you have a town that is say we shouldn't be subject to this not we may have a way of otherwise

avoiding liability. i think that is important because what is happening here in a desperate impact claim like this, that the question is in a common sense way is doing something that has a disparity on family status or race. is there a good reason justifying this? or is there a less heavy-handed way of doing it. the community member said that rather than dis-- dismantle all the houses in the neighborhood and rebuild the houses that the community members couldn't afford. there are less heavy handed ways, rehabilitaion, the mole -- whole manner of things they didn't consider. worse, the township decided to acquire and demolish it. they took down so. houses while the case is going on. if you have semi detached houses making the other ones not

structurally sound and make it less a place to live. one of the interesting things about the case a brief was filed in court of neither party by the institute for justice, which is an libertarian organization that didn't take a position on the desperate impact cause of action. rather said it shows the abuses of imminent domain going back to a case several years ago. it's interesting to see to see the strange bedfellow the imminent domain claim coinciding with claims about what is viable desperate impact claims. and how do they work here? >> they are brought against economically deprived areas. that's both the people who are politically powerless or

politically ineffective enough to stop it from happening to them. .. >> it impact the cause of action that will preserve constitutional concern because it raises this thinking.

make no mistake, this is part of a larger effort to undermine the fair housing act and also under title vii. this is part of the voting rights act and a part of the effort to sort of turn what used to be the required effort to minimize effects on minority communities into a command that you can't do that with. and that is a very aggressive way. and another you have another case. is that right? >> yes. so there are's two sets of plaintiffs. there is a full disclosure and we represent one set of plaintiffs. so i will try to represent this and you can try to criticize the leader. so the important thing about this case is that it is not an affirmative action suit. that's one thing that you remember, it's not an

affirmative action case. so what do i mean by that? unlike fischer versus the university of texas case, this case does not deal with what is a constitutional permissible way to promote diversity or other interest with university admissions. rather this is a case about a law and a ballot initiative that michigan's past right after the court said that there were plans with the constitution for the university to enact, making sure that the voters come in and there was an electoral slate for that. and that they said that these sorts of policies, even the ones that are constitutionally permissible cannot be enacted by the university in the state of michigan. so after it passes on behalf of

students and faculty, but this way -- this ballot initiative violated the constitution because it was an effective way to weigh the political system against the advocates of race conscious proposals that are otherwise institutionally permissible. they really did create an uneven playing field. so if you want people from the upper pencil to get special consideration that gets wagering admissions process, you can go to the board of regents. and you can go there. but if you want to say that you would like to enact a constitutionally permissible affirmative action policy, you don't just have to do that. you don't have to get a ballot measure repealed and then go through the process of being the

board of regents. it is effective that we have a two-tiered system that inserts a racial classification that makes it much more difficult as opposed to a unique feeling of advocacy. hunter versus ericsson in washington and seattle. you know, an attempt to really tilt the playing field. it just says that it is permissible except for addressing desegregation. and of course from the court said that that rejected a racial classification into the further system. so the sixth circuit upheld this challenge, struck down a ballot initiative by a narrow vote.

and now comes to the supreme court. and there are a variety of ways that we try to distinguish that. including by saying that the board of regents are not really a critical process at all. even though the board of regents have said, oh, wait a second, this is the epitome of politics in our state and there are people that are actually for or against affirmative action. there are various other ways that they have attempted to distinguish this. but they also act as a similar scheme in many of these cases for the overruling of those two presidents. so if we take a lot of effort to say that we counter the notion that these two cases are allied, i'd rather say that this doctrine of, of saying that

political structuring like this is unconstitutional, it really goes to the core of equal protection. because the political process when raised becomes a predominant factor in how you allocate on how this is situated on to describe them. you get a different approach for race and everything else. including the town of tuskegee, it redid its distressing so that all black voters were outside of the town just as blacks were finally getting into a position where they can have some political power. if you trace the line, you can see that their concern about concerned about classification creates a link and a thread that is critical here. the other thing i will say, and i know we were running close on time, these bands have had a significant impact in california as well as michigan already.

in terms of promoting the types of diversity that the court said was constitutional and including the michigan case. that is not to say here that there wouldn't be -- that there would be any constitutional problem, at least under this theory with university saying that we do not want to enact a permissible policy or even with the state going about in all sorts of other ways, deciding that it doesn't want to pursue that. it is just as two-tiered structure that creates consistently a lot of constitutional backdrops, a big problem that we believe that it was designed to counteract. >> we would like to just create time for this. >> a quick thought. and it is a difficult case. i mean, despite josh's great

advocacy, it's likely to be reversed. i think. but it is a chicken come home to roost. in 1975 the court decided a case called washington against davis. it explicitly classify this and the basis of race under the constitution, they have to show a discriminatory and stand and whatever effects coming have to show discriminatory intent. that standard is hard enough to apply if you deal with discrete decision-makers. but in principle, the question in a case like this ought to be the voters of the state of michigan when they outlawed affirmative action, were they acting with racial animus? how do you answer a question like that about a statewide electorate? well, maybe they were to some degree i'm not. to a large degree, how do you figure that out and what kind of evidence do you take. it is a crazy inquiry, but an inquiry that washington would

like to force on the courts. instead of doing that, they have this situation and josh described very well, were creates a political blockage on the system that it is somehow racially changed and that makes it suspect. that is not a bad circuit for the on implementable washington against davis test. so that makes this line of cases very vulnerable. and the vulnerability is what counts as a racial issue. there are plenty of things are not overtly racial. and quality and racial equal mass, the tax code, this really is a problematic area and it's a tough road to hold for unjustified. it was created with a very limited interpretation to the sort of great principle against

situations of racist madness is a conflicting view of a political divide about race and what role race plays. it just brings this case of raising the same issue. on one hand you have those who think the use of race for any purpose is highly suspect and we need justification to justify remedial use of past discrimination. on the other hand you have people that say it is the insidious use of racial categories that is profitable. but the use of it to help people as opposed to hurt them is something that is not only constitutional, but it's a good thing. so you have this another example of these two visions of how race plays. that is why each side thinks that they are right. each side thinks they have the moral high ground and then both sides disagree with each other and i will just mention, as perhaps an indication of where

this case may come, or may go, the u.s. did not file a brief in the case, and so it is understandable that they might not think since it is a state lotteries. nevertheless, the fact that the o'gorman administration chose not to get involved in the case talked about what the outcome of the case may be. >> although history instructs the political restructuring likeness, i think that our point is allowing either side of the debate to help create these problems and increases raise rather than consistent with a lot of what the court said, the idea here is to reduce the polarization of the process and there is interesting evidence in terms of looking at the vote in michigan and this is a far more polarized issue than what can be polarizing. but this though because of the

way that it injected raising the one off ballot initiative was another order of magnitude in terms of political polarization. >> just to add one last thing. i did a briefing in this case for a number of legal historians it is again interesting to think about the use of original intent in history. if you look at what is relevant is the 14th amendment, and the framers of the 14th amendment were not shy in expressing their concern. they were in an era where exactly what states were doing to make this a political process so i think it will be interesting to see when we see the argument here. you can so the pending hearing history makes its way into any of the opinions.

>> we have run out of time and i particularly apologize to david and randy who were sent to talking about to free speech cases. one was about citizens united, whether it was permissible under the first amendment, one is a follow-up to hell versus colorado into which we upheld, buffer zones around abortion or reproductive health clinics in order to protect patients of those clinics. this is a different law that challenges are trying to distinguish. also that the court to overrule this. if we have time for just a couple of questions if you're interested in those cases. maybe we can talk to you about that. >> just? >> oh, thank you. coming back to andy's case, i think one of the things and

anyone can comment, one of the things that is most interesting is that it is really a case but what if the corporation. certainly a question of huge interest. citizens united has great direct bearing on how you think about that case. and it's an even bigger case for that reason in the political area and it's a huge impact directly. >> yes? >> obviously the citizens united was about first amendment speech rights to the extent which corporations can invoke them, although it is pretty subtle that corporations and the free speech under the first amendment, i agree with you. i think it will play into this political debate about

corporations and their roles and the protections that they get. >> just? >> hello, my name is henrygreen. do any of you know if the court had accepted anything that would cause it to let the confrontation clause and how it is applied in trial courts, mishmash. it has been very difficult for both trial judges and practitioners to deal with. does anyone know about that? >> i am not aware of any confrontation clauses. >> i'm sure we have not seen the end of that saga. >> going back to the ballot initiative, doesn't this case potentially nullify and

eviscerate this by institutionalizing the majority, a racist majority? >> okay, so that is definitely a way that you can argue about this case. but i think to focus more narrowly, i think that the court and others have said that as a general matter, it can be a direct democracy that has its pluses. i think there are a bunch of political science bases that are friends of the court to make arguments about why we want to be particularly concerned. without saying that overall the target racial minorities or targets civil rights initiatives. again, that is not to say that the constitution is the only one that can target minorities. if using waste into the process

and then selectively is something to be of concern. so i think that that is a way to go and i appreciated that as a way to go. i think the argument is framed more that way. >> okay. >> hello, i am beth scott, with the university women. i was wondering if any of you would feel interested or qualified to speak about the oklahoma coalition for reproductive justice. the usual track is requesting additional medical information and things like that. as i understand it, it's very unusual for the court to request this after the case but was wondering if you have any insight on that and what that may be for the courts taking. >> i can just say a few things about it. we did not cover it because it is unclear whether the supreme court will be able to just these cases. but there is this very big abortion case and as the

questioner said, then sent the case back to the oklahoma supreme court. i think maybe not so much as medical information as authoritative stance on that state statute. on its face, the point of the state statute would be to constrict and limit access to medical abortion versus cervical abortion for early term patients. on its face, and i won't get into all of the details with the particular needs of the drugs involved, but it actually seems to have gone further than that. and to make all abortion permissible in the state of oklahoma. the state is more or less conceding that if you read the statute that way, we have a constitutional problem. but don't read it the way that it seems to read, read it the other way. it is this sort of construction.

when it heard this case, it didn't really talk about this. if the oklahoma statutes that that we think that the statute is fairly right to prohibit all medical abortion, i think that that will be one case and a different case than if the court would've said, oh, no, it is limiting the circumstances in which you can have a medical abortion. but it doesn't outlaw it entirely. that is a different case and a little unclear to me how the supreme court would respond to each of these meetings in terms of wanting to keep the case or not or whether it will ultimately issue a ruling on the merits of this issue. it is a huge big case, no question about it. >> we are out of time, but i would like you to join me in

thanking our wonderful panel. [applause] [inaudible conversations] [applause] [inaudible conversations] >> tonight on c-span2, a look at how the federal government is helping states implement health exchanges. that is followed by a senate judiciary committee hearing examining state and federal marijuana laws. later, the american constitution society for law and policy previews the case expected before the high court this term. >> treasury secretary jack lew is speaking tuesday at the economic club of washington dc. topics include the state of the economy and the obama administration's proposals to improve economic work. as well as challenges the white house faces with congress. see his remarks followed by an interview at 8:15 p.m. eastern on c-span2. later, oklahoma governor and

national governors association chair mary fallin delivers remarks on the organization's education and workforce training initiative. see that live at 1:00 p.m. eastern, also here on c-span2. >> this weekend look for bookies live all-day coverage. featured authors include kay bailey hutchison, scott berg, and rick atkinson. >> they say how can you be in the congress, you got arrested. you violated the laws. and i have said that they were bad laws. [laughter] they were customs, traditions, and we wanted america to be better. we wanted america to live up to the declaration of independence and live up to our creed. make real our democracy and take

it off of paper and make it real. so when i got arrested the first time, this book is saying that i feel for you. i feel liberated, and today, more than ever before, i feel free and liberated. you know, abraham lincoln, 150 years ago, he freed the slaves. but it took the civil rights movement in the modern-day to free and liberate a nation. >> congressman john lewis will be our in depth guest on sunday, september 6. he will take your calls and e-mails and tweaked for three hours. and december 1, kitty kelley. january 5, radio talkshow host must begin.. >> next is part part of the kaiser health news on how states

and the federal government and groups are working to enroll in-state exchanges. this is 40 minutes. >> we continue our series looking at the affordable care act of 2010. our partnership with kaiser health news. trying to update you on the law of what is happening. as many of you know, there is an october 1 deadline, meaning that jenny gold is here to tell us about that. so we are two weeks away from this lineup time and what do people need to know? >> well, first of all they need to know that while you can start signing up on october 1, you actually don't have to. as long as you sign up by december 15, you will have coverage beginning january 1. so the deadline is really december 15.

and he any likely qualify for medicaid if you live in a state that tactic, and if you earn up to 400% of the federal poverty level for an individual, you will qualify for some sort of subsidy about private insurance on exchange. >> host: who will be required to sign up starting on october 1? who will not be required to sign up? >> guest: pretty much everyone is supposed to get health insurance. there will be an individual mandate and if you don't sign up there is a penalty. but if you already have insurance through your employer, this doesn't really apply to you unless you are have insurance that is so unaffordable that you really can't pay. one thing it really doesn't apply to, and this is very important. his medicare beneficiaries. so those mostly seniors.

you can even sign up on exchanges, it's not legal. you will have an open enrollment period every year if you are medicare beneficiary. there's a lot of confusion there among seniors. >> there is a story today from one of your colleagues, seniors caution health-insurance and as susan jaffe reports, after showing seniors that this is not part of the new health-insurance marketplace of, officials have a warning for anyone who may have ideas, selling marketplace coverage to people who have medicare is illegal. >> that is right, we don't want seniors to try to buy something they are not eligible for and something that they don't need. >> host: explained then what happens october 1? >> guest: that is when exchanges go online. everything will have its own exchange. that is when a consumer will go to buy coverage. you can go online, you can go

through what is called a navigator, someone who hopes to purchase insurance. you can go to a local community health center. that is another way. and then i think they're just going to be people sort of all over the place to get you coverage. a health fair, a music concert, people will try to sell you coverage. >> host: according to kaiser health news, to find these, go to health care.gov and click on see your options so people can see what sort of options and explain what options they will find her. >> guest: so health care.gov is a catchall site for obamacare. what you are going to do is go online and you will pick your state. if you live in a state that is running its own exchange, that tends to be more democratic than has decided to go along with obamacare. california, for example. they will be sent to where they

will not stay. so california is called cover california. they will spit out options for you. what plans are available and what kind of subsidy can you get to help you pay for it. if you live in a state that is not running its own exchange, a state like virginia, for example, the federal government is running on exchange and that will be a health care.gov-based site. we will send you to the virginia portal and they will do the same thing. >> host: there has been a lot of talk about navigators. who are they and what will they be doing? >> guest: they are the folks in your community that can help you sign up. the federal government has given $67 million in grants to the federally facilitated exchanges. and in those states, there is a limited pool of funds. it's not actually that much, but what they will do is, it will be your local soup kitchen, you know, any kind of community

center. clinics, anything like that, those that have been given grants to actually employ people whose sole job is to help consumers sign up for coverage. you can go to them, they can help walk you through the process. what sort of information you need and help you determine the differences between the plans that you might be eligible for. >> host: if you need help signing up, there will also be held at ces, rite aid, other retailers, health insurance companies, hhs. are these places giving money to help sign people up? >> guest: air community health clinics that will help you get a navigator groups and those giving money to sign up as well. you know, all of the companies, insurers, hospitals, pharmacies, it is in their financial interest to make sure that as many people sign up for this is possible. so they are jumping in. they are seeing in short is

doing more with direct to consumer advertising than ever before. they want people to help. hospitals in particular. it is in the financial interest. >> host: we are talking about partnerships with jenny gold. october 1, on that day, is when the federal government wants to start signing people up. so those that are uninsured and required to get health insurance, we have divided the lines weights today. if you are insured, call our line listed on the screen, and if you are uninsured, call that one as well. we would like to get your personal stories about what this has been like so far. any questions or comments that you have so far about signing up for these exchanges. the aca gave states the ability to decide whether to open their own programs or offer a federal program. what have the states decided?

>> guest: many more states than were expected decided not to run their own exchange. that has caused a lot of financial problems in terms of doing outreach. i think that is why you are seeing some of those come online so it late in the game. people really don't know what this is, they really don't understand, even the people who are uninsured. they will get the most benefit from this. so you have so many states with a fairly small amount of money, all of those states that decided not run their own exchanges. the states that did decide to run their own exchanges, we have a ton of money to do it all meant and sign up and advertising, states like connecticut, california, they are doing a ton of outreach and have what essentially amounts to an entitlement programs worth of funding from the government to do that. >> host: is that the problem within the confusion? we were showing viewers polls that show americans are confused about the law. they don't think it's going to help them. is that at the crux of the

confusion, is that the states that went with the federal program are not helping to get the word out? >> that is certainly one program, but i bet if you pull states in their own exchange, there are many that don't know that much either. so i think that there is just a lack of action on that part of the administration to sell obamacare. i think they sort of shirked away from that. here we are two weeks away and consumers really need to know what to do. and they don't know, and even the people that it is going to benefit don't know what it's going to be about how they can benefit. it wasn't about medicare part b where there were years of preparation and groups going out to senior centers for a very long time explaining what this was and how people can sign up. that didn't happen this time around. so far we really haven't seen the administration go out with a megaphone and try to let people know. there is a wonderful story about how lbj, president johnson sent dogs was out through the tundras

of rural alaska to let people know about medicare when it launched. well, we haven't seen anything like that. i think a lot of that counts for what we really don't know. >> host: what about some of the efforts to educate the public. >> guest: there have been some pretty funny ads are out there. one of my favorites is the minnesota advertisement. they decided to have baby blue ox sort of be their mascot. they have pretty funny advertisements. oregon has taken a much more hokey view of things and they have a folk singer out with a guitar, they have a great ditty that goes along with it. so there are states that are sort putting it out there. and they are trying to appeal to a specific target audience. and that is young people, young and healthy people. so that is the part of the population that this administration desperately needs

to sign up. if the young and healthy people don't sign up, you will see really high premiums and exchanges, and it's going to be mostly older and sicker people. people do have a lot of health costs. that is when you're going to see premiums really high. if they can get enough young and healthy people in the pool, that will help to bring down premiums for everybody. because they don't have a lot of medical costs. we know some important things about this population. first of all, they tend to be part of this great so i think that you're going to get a lot of targeted advertising. in connecticut, they are planning to go out to conserve. they are arguing that to try to get people there to sign up in oregon. they are planning to put their advertisements on coffee cups, drinking coffee, maybe you can sell it to them, again in connecticut during the summer, they were handing out free sunscreen which said that get covered on the beach and having

planes flying overhead. so that they are actually getting pretty creative and having mostly young men enroll in insurance programs and then having them see a doctor. does that help the overall program? if you have young and healthy people? >> guest: yes, i think that we do want them to be going in for their annual preventative visit. so it's not like we don't want them to see the doctor at all if you have a problem. if you have a problem, see your doctor. but the point is that young men and women don't tend to have as many health problems and they don't tend to cost as much money. >> host: let's hear from viewers. john has been hanging on the line. john, what is your association with va health care. is that right? >> yes. i am enrolled in the headquarters in atlanta,

georgia. i have not heard anything about the federally required sign up before we were getting va health care. >> guest: absolutely not. if you are to have health insurance, that will affect your great deal. that is the answer, and i think that has been a little bit confusing. the va health coverage, you're good to go, you meet the mandate requirement, the big change here is where the individual market and those are people that buy on their own that aren't getting it through their employers or any other way through the va or through the federal government. those are the people that this really applies to you. >> host: let's go to john in maryland. he's an uninsured. >> caller: hello, i belong to an association that had for many years been a part of this. unfortunately i was totally disabled. when i bought my policy i had a waiver of so that the insurance

company would pay the premium. the association had lobbyists and other people go and i'm pretty sure it was before the election and they had all this and all sorts of things. so this put us in a hard spot because i purchased this premium and now it's gone. >> guest: so you are someone who would absolutely be eligible to purchase on the exchange. if your income is under 138% of the federal poverty level, you'll be eligible for free insurance through medicaid. i don't know what state you're in, it varies based on your state. but if you earn between 100 and 400% of the federal poverty

level, you are at eligible for subsidies to buy a private plan on exchange. it's a sliding scale, so if you get up to 400%, the subsidies will honestly taper off. >> here is an e-mail from paul in chesapeake virginia who says please answer this question, which no one has. of those uninsured, many choose not to buy insurance through their employer because they want expendable cash. how are they going to make monthly insurance payments now? don't they subsidies because that is not reimbursed until the end of your tax returns. will the total cost be deducted from the tax returns if they cannot make monthly payments? >> guest: i'm sorry, i don't know the answer to that question. i was under the impression that you do get your subsidies on a monthly basis. so i believe you would only actually be paying your share of the premium. so that covered 60%, you are only going to be paying any given month that 40%.

>> host: we have kerry from massachusetts. >> caller: yes, i had original medicare with a policy that i bought in the open market. does obamacare effect that at all medigap policies? i have never heard any discussion about that. >> guest: no, i don't believe it does and i don't believe that they will be selling them on the exchange. you have medicare, this really does not affect you, even if you have a medigap policy. >> host: here's an e-mail, it says that this is being forced out before it's ready. money spent so far by insurance companies and leaders trying to implement could've been spent on a national low-cost clinic for the small percentage of citizens that are not covered. people are losing jobs with aca in place and having their hours reduced. >> guest: this is all part of the conversation we're having. the republicans are having in terms of the debt ceiling. here we are two weeks out and there is a tremendous amount of

debate over whether this is actually a good thing or not a good thing. regardless, it seems to be moving forward and this is the way it's going to be. and i think what is really important to weeks out is that consumers know what to do. >> so on that, on the first part about whether or not it's ready, when these exchanges go live on october 1, what have you heard about them being ready to go? >> guest: they claim that he will be ready to go october 1. to be fair, i think there will be a lot of bugs in there. it will take a little bit of time to work them out. they are expecting 7 million people to jump in to the subsidized exchange plans in the first year. there is a six month period for open enrollment that begins october 1. but they have six months. and i think they are expecting a trickling in a people. and in some ways, that may be better for the administration because it gives him a little

bit of time to work out the kinks and exchanges. but as far as i know, those exchanges are going to go online live october 1. that doesn't mean that there are going to be some in a certain state that have some problems in the beginning. >> host: on the role of navigators there has been some concerns from the attorneys general people on capitol hill. they will be asking for personal information. what kind of information, if someone is going to use a navigator, what kind of information could they expect and where does this information go? >> the information goes into the exchange portal. it will help you fill it out and i actually brought the short application. so this is for individuals, not for families. a family plan is a little bit more complicated. but it's three pages, so it's not actually as much. things you need are your name and address and social security number and your income information. the income is going to help the government determine whether or not you are eligible for a

subsidy and whether or not you are eligible for a medicaid plan. if you are offered employer insurance, you may have to provide additional information, showing whether that plan is affordable. if the plan is over 9.5% of your income and premiums, it's not considered affordable and you can go right into the exchange. but if it's under 9.5%, then you have to stay with your employer plan. but when you are going with your navigator, you need some basic information. statement, a pay stub, that should be adequate. definitely concerns about security. i think certain states have even passed mandatory background checks and fingerprinting and so forth. people are definitely wear and trying to make the navigators as save as possible. while at the same time, not discouraging people from being navigators, because they really need a lot of them. obamacare is on the ground.

>> you know how many they have hired for that role? >> i know that in the federally facilitated exchange, there are 104 navigating groups. that means 104 groups that we mentioned, community centers, advocacy groups, all sorts of folks. those that are getting these exchanges, they are working with various other on the ground organizations and they are hiring navigators. it depends on the ground how many they will have. >> host: gennie gold is a correspondent with kaiser health news. it is a nonprofit news service, independent from the kaiser foundation. they have partnered with us here at c-span2 update you on the affordable care act. we have divided our lines by those that have insurance and those that do not.

cheryl a in virginia is uninsured. go ahead. >> caller: hello, i live in georgia, not understanding that this is by trying not to participate in the obama program. >> guest: okay, sure. >> caller: my other question is i am retired. but i also work part-time in that market, up and down. so how will we determine my income, because my income is the same every year. >> guest: this is a good question. first of all, i believe that in georgia, they do not have their own exchange. so they are one of these situations that i have been talking about, the federal government has come in and is running the exchange for them.

i believe that they are not expanding medicaid. and i believe means that if you earn under 138%, you will be eligible for medicaid. if you earn over 100%, you can get a subsidy, if you earn under 100%, those are the very poorest people, there really isn't any help for you. and that could really be a problem. in terms of your particular situation, if you have a fluctuating income, that is going to be a difficult thing. you're going to have to guess what your income is going to be. and your subsidies will be based upon that. if at the end of the year turns out you made more than you expected, you're going to have to pay back some of those subsidies. if you know that your income will be lower or higher than expected, you should let the government know as soon as possible so they can adjust your subsidy according. because you would have to pay that back.

>> host: we have another caller from asheville, north carolina. please go ahead. >> caller: i have a lot of questions from an accounting perspective. a lot of things are bothering me about this bill and the passage of it. i'm wondering how the cost comparison is between obamacare and medicare and how we can justify the medicare costs and giving someone subsidies that makes 15,000 and a lot of those people do not make $2000 a year. that is one point. then, if you get medicare, if

you own an asset such as a house that no one will purchase from you, is medicaid going to come in there and take your property? because in some states, they do take your assets. so i have a lot of questions and these questions are not being answered, i do not think. >> guest: okay, so i think you are confusing a little bit of medicaid and medicare possibly. but in terms of medicaid, i don't believe that this is going to be -- basically few earn under 138% of the federal poverty level, you are going to be eligible for medicaid and the state where you live. that is not based on your assets but your income. this is this new expansion of medicaid. if you earn over that again, it's not going to be based on your assets bet on your income.

so as long as your income is under 400%, you are going to get help with health insurance. unless you have medicare, in that case this doesn't apply to you. >> host: will the feds be verifying income? >> guest: i believe that that will be in the first year that there is some sort of delay. a double verification. they will be checking it against your irs income. >> host: savanna in new york. go ahead. >> caller: hello, i have the insurance and my wife doesn't have any insurance. she works two part-time jobs, and then she works for a factory and she has had insurance for about three years now. she had to go to the emergency room last weekend because she had double vision and they

figured out what happened. my question is will there be some sort of subsidy for her. >> guest: absolutely, she will be eligible as long as you as a couple together in less than 400% of the federal poverty level. your wife will be eligible for some sort of subsidy. i'm sorry to hear about her trip to the emergency room. in the past, whatever happened, and she had some sort of condition, that would count against her. so she had been diagnosed with something, her premium might be higher and that is no longer true. there are no more pre-existing conditions here. so where ever you are, when you go online to buy health insurance, you call the hotline and whatever you do with, you

are going to be able to get a premium that is the same of other people her age, and her pre-existing condition, whatever it is, will not affect that. >> host: do you have a follow-up? >> caller: she has had a problem with your wisdom teeth as well. >> guest: to either coincidental coverage but i'm not sure. >> host: someone who hasn't turned in salem, oregon. >> caller: good morning. i'm one of those people are calling him in the 35 to 40,000-dollar per year range. once obamacare was implemented, they were going into effect starting a couple of years ago. and i have a plan through the teamsters insurance and i was paying zero per year but i have

a lesser insurance policy about $1600 per year and as far as i have been told by my company, that we will be taxed on the exchange. and i really hate that. but the question that i have is several of the people that i know have an interesting condition. so will these rates be paid with considerably higher rates and i was wondering what kind of rates can i look forward to? >> guest: if you have a pre-existing condition that won't count against you. but your rate will depend on what kind of put anyone under age. so there is some age ratings.

so it is a three to one ratio, that means older people can be charged and that is three times what younger person is charged. so you really have to go online on october 1 and check your state and find out what they are going to be. one thing to keep in mind is if the plan that you have for your employer was cheap, although plans are now going to have to have a mandatory set of benefits, things like hospital care, doctor care, preventive services, those sorts of things. you have to make sure that you're really comparing apples to apples. it may be covering a lot more than what you previously had. another important point i think is that you will have a lot of choices on the exchange. and that will be hard. i think it's really going to be hard for people to pick a plan that they want. the navigators can help. we can have a broker help you. but it is really tough to decide

which plan is right for you. for example, there are different levels of plant. some plans, the bronze plan is progressively cheaper, than the platinum plan being the most expensive. each of those has a very important difference. they have different cost sharing. once you hit your deductible, the bronze plan is only going to cover 60% of your medical costs. the premiums are going to be low, but if you get really sick, it won't cover all of your care. that goes all the way to 90% of your care and you have to decide for you what kind of risk you're willing to take and if you think you're going to have medical expenses, it might make sense to get more of your cost-sharing taken care of. >> if you live in a state that does not include medicaid expansion, can you get it from federal government? >> guest: this is going to be a

problem for a lot of people in states that aren't expanding medicaid. whatever the state is currently offering in terms of medicaid will stay. if your state offers coverage up to 70% of the federal poverty level for mothers and children, then you will continue to get that. but you will not get the coverage of 2138% that was promised because the supreme court declared that requirement unconstitutional for the states. if you earn about 100%, and that is an interesting group of people. if this person earns between 100 and 150% in a state where medicaid is not being expanded, they will be able to get a significant subsidy to buy a private plan on the exchange. this, however, they earn under 100% of the federal poverty level and they are a childless adult, chances are they're not going to qualify for everything, and it will be very hard for

navigators in those states to have the poorest people come to them and say, sorry, you are too poor to get help. >> host: west palm beach, florida. steve is uninsured. >> caller: good morning. i wanted to do a quick story. i lost -- i didn't lose anything. i had insurance up until the time i was 40. i paid out of pocket and i took care of myself because i happened to work for myself. i paid out of pocket. a 40 years old, my premiums nearly quadrupled. i was the picture of health, a dancer. from the age of 42 now, i will be 53 the end of the year, i paid out of pocket for my health care. i spent more than two or $3000 per year. i did not complain about the

insurance companies are complained to the government about why my premiums have gone up. i negotiated with my doctor that i never went to the emergency room. last i went to the emergency room once. i paid out of pocket for that. i am screwed because i am the one that is going to have to pay for all this. i am the one that is going to see my rates skyrocket they have pre-existing conditions like everyone my age. i am above the poverty level. i can envision my premiums going to 6000, 8000, 10,000, $12,000 per year. so who is going to pay for this? people like me, and for all the people out there like the fedex employees would have their

spouses drop from their coverage and all those please let working 40 hours a week, welcome to socialism, password, you got it. thank you, c-span. >> host: throwing this article out for you and others, usa today's money section has this headline. he lifts his cup to health care. he said he refuses to cut back because it will send the wrong message to employees even as the likes of ups and delta airlines ticket hurting profit ability and job creation. >> guest: i have heard a lot of concern and anger here. i think it's too early to know what this will be. you mentioned you have pre-existing conditions.

if you go to a planet in the individual market your plan will be very expensive. you are actually one of the people that is going to see a potential of the premiums going down. i cannot guarantee that. i don't know what the rates are looking like, but i think that is likely. i think in terms of getting young people to sign up, people are called young, but a lot of them are concerned about not having coverage and do want to get that. so i think that will be especially true after the first year when you see the mandate penalties go out. it will suddenly make more sense to actually get a plan than to pay that penalty. in addition, i don't know how much you are earning, but you may qualify for a subsidy. >> host: aj is insured in russellville, alabama. >> caller: great, thank you so much. i have been watching this thing about the obama plan for years. and a quick history, i have been

doing so for years at extremely high rates. we did the math ones and we would have to spend $100,000 of retail insurance before our insurance company actually empties that pocket. my concern is we are putting more people on insurance and were people that buy this, we saw this and everyone was required to have automobile insurance. premiums are very high in automobile policies. my concern is that there is not any retention of the price gouging is going on in the medical field. we have insurance companies paying 10 cents on the dollar for all of this. and then the people who don't have insurance, they are having to pay full retail and hospitals, doctors, because they

are getting hosed. you know, why isn't that a level playing field. i'm sure you have a doctor, a hospital, they shouldn't be able to charge someone without insurance anymore than they can charge 90% of the people -- >> guest: there actually is a rule that addresses that customers without insurance, i believe that it limits the cost, the lowest costs of what the cost of sure is paying. so there is this qualification and you make a great point. a portable care act is a law about insurers, far and away. insurance products and changing the way that it is price. and it did not have been nearly as hard. and there is a lot of charging

insurance and americans in general, charging them a very high rate for procedures and visits that are costing much less than other countries. and that is something we'll have to address perhaps in another piece of legislation or as we get further along. that will continue to be an issue. it starts to address that, but it tries to change the way doctors and hospitals get paid. to pay them based on how well they do and quality of care that they give. rather than just the sheer amount of procedures that they do. but we will see how effective that is in putting down costs overall. in last couple of years we have seen cost, the health care costs go down a little bit, but it's not enough. it will have to continue going down over the next two years, if the health care system isn't going to eat the entire country's capital for less.

>> host: we have david on the uninsured line in pennsylvania. >> caller: hello, to be honest with you, i have not put a lot of the tension into my health care over the last few years. so i would like to know if i give you information about my situation, if you could enlighten me a little bit. >> guest: folder you? >> caller: i am 51 years old, relatively healthy, except my bmi index. i have applied for insurance and have been turned down. three times. the fourth time it so that i could get insurance that is turned on at the regular level. because of my bmi, i could qualify at a higher rate, and then it was going to be $300 per

month, $900 per quarter for the insurance that they wanted within a 30 day period. i am still in the process of that. my weight is not going to be considered a pre-existing condition or that would hinder or raise my rates. i'm a full-time worker, they are not cutting my hours or anything, but i don't have access to insurance and there are benefits to the company that i work for. and my situation, what would be the best thing for me to do? >> guest: i think you are exactly the kind of consumer that you will benefit the most. you are 51 years old and you said that you have a high bmi, i can understand that in the past insurers would refuse to give you coverage. charge you a high rate. that is no longer the case. they cannot refuse you based on your bmi and they cannot charge you more based on your bmi. you will be charged as any

other, i think, you said 51-year-old individual. you're going to go on to the exchange and buy the coverage there. you're going to receive a subsidy if you earn 35 to 45,000. i'm not sure how high it will be. they will help you pay for coverage and you will have to decide. first of all, which insurance company do you want to go with, in most states are going to have several options and then you're going to have to decide which plan level do you want. you want to have a low premium and goal at the bronze or silver plan that assumes quite a bit of cost sharing if you do have a medical event, or do you want to go -- do you think he will have a significant mental cost in the coming year or do you want to go with a gold or platinum plan. or you may end up paying less money in the end. another important thing to think about is you have a doctor that you like, a hospital that you like. a lot of these will have what is a pretty narrow network. in order to keep costs down, they don't have all of the

doctors and hospitals covered within the plan. so you need to know what is important to you, is it just the premium costs, or is it getting to stay with the doctor that you have seen for 20 years. if that is the case, you will make a decision based on that. if your questions and issues, i suggest that you call the hotline. there is a hotline in individual states and the federal government where they can call and they can help you be walked through the process. if you go into a local hospital, if you go into your local cvs or write it, although those have places that can help you walk through picking up a plan that is right for you. and that will be really important. >> host: asking a question about young people, what young person making enough money not to have subsidies won't have insurance from their employers. in other words, how many young people in the administration

counts on to join these exchanges? >> guest: just an example, the administration believes that 7 million people are going to join the exchanges this year. they are desperately hoping that 2.7 million of them are going to be young and healthy. 19 million people aged 18 to 34 are uninsured. that's a large group of people. 8 million of them are quite qualify for medicaid. 9 million will it qualify for exchange subsidies. those people are hoping to jump on board and get a policy that is robust and purchase on the exchange. that said that individuals that are buying on the individual market right now, who may be earning more than the poverty level, therefore they would not qualify for a subsidy, the men may end up paying a higher rate. that's entirely possible.

right now you can get a catastrophic plan, one that doesn't offer you a lot of benefits but costs a very small amount of money if you're young and healthy. you may be paying $70 a month and that is very little. if you don't qualify for a subsidy, you could see a higher rate. also because you are not getting such a big benefit from being young and healthy. but that means that people who are older and sicker will see things go down and it means that those may see the premiums go up. >> host: for more information or kaiser health news.board. jenny gold is a correspondent and you can follow her on twitter at jenny gold. >> on the next "washington journal", with our guest talks about the middle east reaction to the situation in syria. and its impact on u.s. foreign

policy. when political magazine, susan glasser, discusses the united nations role in syria during the days ahead. the recent u.n. report confirmed the use of chemical weapons in the country. and bill richardson looks at the possible replacements for federal reserve chair ben bernanke, whose term ends in january of 2014. "washington journal" is live at 7:00 a.m. eastern on c-span. >> next on c-span2, a senate judiciary committee hearing examining the and federal marijuana laws. after that, the american constitution society from law and policy. previewing the case is expected before the high court this time. and later, the american institute of certified public accountants.

look at the economy and housing market. >> tuesday on c-span3. steny hoyer of maryland is the guest at the political playbook practice but that's where he will be interviewed by ben white about the continuing resolution and the federal debt ceiling and other issues facing congress. that is live at 8:00 a.m. eastern. >> c-span studentcam video competition is underway. this year we are doubling the number of winners in prize money. create a five to seven minute documentary on the most important issue that you think congress should consider in 2014. entries should include c-span video, varying points of view, and are due by january 20, 2014. visit studentcam.org.

>> in august, the justice department issued a memo saying they would not challenge colorado in washington's marijuana laws, as laws they implement the correct prescription of the law. next, we examined the federal and state marijuana laws. this is one hour and 40 minutes. >> i mentioned to the witnesses while they are delayed. because they are talking with senator grassley. they will be joining us shortly. a very important meeting with the president on the situation in syria. now part of the senate republicans, it is a gravely serious matter, as i'm sure all

of you know and we have mentioned this to the deputy attorney general. today's hearing also deals with this issue and the members here will act accordingly. i want to know that note at the outset that the rules of the senate privet outburst or demonstrations of any kind either for or against a position that i might take what anyone else might take, that includes a block in view of people around you and this hearing can accommodate as many as we possibly can. and we have overfull rooms that we cannot accommodate. we have to remove anyone that does not follow this. last november, the people in

colorado and washington voted to legalize a small amount of marijuana. how marijuana is produced and distributed in the states. in these new laws, there is a growing tension between the states and we -underscore the persistent uncertainty of how this is resolved. including how it may be in full compliance with state law. the federal government should take a federal hands off approach and let drug laws and policy developed on a state-by-state basis. or is it some program that considers both the national interest and including the rights of voters with their own individual states. so the committee is going to hold these hearings since the new law was passed and it

present an important opportunity for those focusing today on what is happening in colorado and washington. but the focus of the question and answers will have implications for the rest of the country. marijuana in this country is nothing new. but the way in which individual states deal with marijuana usage continues to evolve. some are allowing the use of marijuana with debilitating medical conditions. as a result, many suffer from different conditions like cancer and aids, and in some states they are allowed to treat with these conditions. ..

>> the question i have what role does the government pledged where it is legal? there is broad agreement to a and common ground for go for a sample the federal government is to have legalized marijuana we don't