happen. katy. >> thanthank you, ed and sara. so i'm going to start with just a brief introduction of who legacy is, how we are navigating the system and how our patients are navigating the system, what the interest level that we've seen, what are successes and opportunities have been, and what are our next steps. legacy is a federally qualified health center. we are in southeast texas in both harris county and jefferson county, which is houston and beaumont. we have 11 clinics, and clinical locations and seven school-based clinics. our clinics are located in historically a neighborhood, hispanic neighborhoods, an african-american neighborhoods. we are a certified application counselor organization. we have 28 certified application counselors, and we see, this you will see approximately 60,000

individual patients through 200,000 visits. so also i would be remiss if i didn't say texas as i'm sure all of you in this room know, this is not medicaid expansion state, so, therefore, only children, the elderly and disabled are still eligible for medicaid. we are also a, on the federal run exchange we did not object to a state exchange. our marketplace and how people are accessing it, they are coming into our clinic, making appointment or walking in. they meet first with a certified application counselor who starts the process by getting them to walk through the consent. this causes a lot of anxiety for some people, and because they've heard a lot of bad publicity. declared about identity theft. there's also been several groups in houston that have been fraudulent groups out collecting information from people, and

basically stealing their identity. there's been a lot of publicity around it. we have to get over some of that anxiety. then we have to determine the client's knowledge. and this has been interesting. we need a people didn't really understand insurance but we've had a lot of education around just even the terminology and insurance. the majority of people coming in have never had insurance. a lot of them have low literacy, to begin with, and low health literacy. this group, especially the people have really not, are really uneducated on insurance, a bit information overload at this point. many times they leave, they take information and make another appointment to come back. if you have other information with them, we go through their household information, what subsidies they might be eligible for, the different ways you can apply. we get from all their documentation in the design which means applying is the best

for them. is the online application or the paper application. one thing that has surprised all of us has been also about a third of the people who have come in have never used a computer. and another third have a computer but have no internet access. and then the of the third, they have a computer and have internet access them so some of our folks are taking time now to help you get e-mail addresses and also connected them with resources in our community where the low-cost internet access and low-cost computers. and then we assist them in getting on and getting an application in the marketplace. and then work with them to determine what's the best plan for them. the other part, about half now we are doing and paper application, and this is largely because of the language issues. we are a very diverse community, and online is only available in

two languages and we try to do everything in the languages of origin of our clients because they understand things better. there's 11 languages on paper but only to online. and it takes longer to do it on paper because of the length of time of submission. the next part if they haven't had information overload again, which most have by this time, or if they have to submit my paper we ask them to come back with their eligibility. so then it's determining which plan is the best and making the application, and this again becomes very complicated especially for any of our clients have chronic illnesses such as hiv, diabetes, congestive heart failure, asthma. because they had to look not only at often times the lowest cost plan on the premium is not the best plan for them. and it's not easy on the federal exchange to go through and compare medications, formularies, to compare what doctors, what hospitals are on

different plans. so you have to take all those things into account, and explain what all those things mean to people. eventually though they get through the application process and will choose a plan. so who are we seeing and he was asking? just to our location we've had about 3000 inquiries sense, that we've been tracking since october 1. we've seen about 1300 individual people, most of them, the average number of visits has been three visits with our folks. we completed 89 applications and have 18 people go all the way through to enrollment. majority of the people coming in our our existing patients. so that a high level of trust with us and they're the ones that are really getting through the process much quicker than the ones who are coming to us from various outreach events, from finding us on the internet. we're also seeing a very strong mix of age and race across every

age that we've been seeing. we have seen quite a few people coming in who are 65 and over. just wondering what this is all about. we end up helping them a lot of times choosing the appropriate medicare part b plan for them. so we're helping on that site also. -- part d. we were surprised how many young families were coming in. host of young families coming in, the children are already on medicaid and the coming in for care for themselves or other family members. so our successes and challenges, so what's working? the system is improving. the awareness level is increasing and good publicity, bad publicity made people aware of this is out there, the marketplace is open. so it's about more people in. most people are surprised when they come at how affordable it is. i think there's a preconceived notion by especially people who

have sought some of the high-risk pools are people with chronic illness in the past have been unable to really afford it. but as with the d.c. exchange, there are trees prices and people are really surprised that it is affordable. we are doing a lot of advice in a committee. with a couple of organizations that do free and low-cost tax services, filing services for people of low income. so we're doing a lot of that. we are collaborating a lot with other groups and with other nonprofit organizations. so what are the barriers or opportunities? trust. trust is a huge issue. again, the majority people who come in do have a lot of skepticism in the system. a lot because of the publicity that there's been. online access in letters he has also been an issue, and learning insurance terms, understand what

a co-pay is, what coinsurance is, and just what a premium is. homeland security is very large in our community, and there's lots of people are fearful that while they may be a citizen and ineligible, their people in the household or families who are not citizens and they are hearing from the irs, so it is very real. also hear from other law enforcement. the information will be available to other law enforcement agencies. setting up e-mail accounts but lots of people don't have e-mail accounts. that was a big surprise for all of our staff, and also the other issue, inability to compare easily a different plans on healthcare.gov system. what are our next steps? were doing a series of town hall meetings to encourage both our patients and people in our neighborhoods to get educated

and doing large education sessions. we are setting up in our lobbies of our computers online access for our patients so that they can come in and do some exploration on their own or get comfortable with the computer. we're doing actually some more computer literacy classes, and assistance with that. we are continuing to do all of our outreach and engage potential enrollees. and then we are starting in january going to be doing a lot of health literacy for our patients after of the members in the community. because once again just because you have insurance doesn't mean you know how to use it. and what our goal is, at our health center is to make sure that so they get insurance, that doesn't mean to go to the emergency room when they get sick like they've been doing and they are in the habit of doing. but they learn if they have a health care home and how to use the insurance at that health care home. thank you. >> thank you.

all right. well, we are into the part of the program where we give you a chance to check out the questions that might have been raised by the presentations you just heard. i would also encourage the panelists if they have heard something they disagree with our want clarification about from one of their colleagues on the panel, they should speak up at any point that they would like to. and, of course, sara is in a position to ask very informed questions. if you did go to the microphone i would ask that you identify yourself and try to keep your question as brief as you can so that we can get to as many of the questions as we can. and you had the honor of the first question. >> thank you. bernadette with congressional resource services. i a couple of researcher question. the first one to my love. your initial -- mila.

gravitate to plan is a question about what you to be the to? are these folks uninsured with pent-up demand, are the kind of tied with the over 65 but maybe just are looking for more generous coverage? that's my question to you. and into the broader group, kind of looking forward beyond broad david and premiums, is there any plan to put additional information out there such as enrollment by demographic categories as well as additional plan features like cost-sharing requirements? >> thank you. so i wish i knew, is the short answer. and i should caveat all the initial numbers i gave you by saying, i don't think it's a prediction of anything. it's just looking at the first

120 period. i think it's interesting that pretty much every age category is represented. including the younger population, of course, enrollment you want to make sure that you are targeting everyone and you have a healthy risk mix. and i do not know anything about the short status of enrollees. we actually, unfortunate, did not bill that data element into our application so we are not collecting it. we do plan to do a survey in 2014 of all of the enrollees to ask them whether they were previously insured and what kind of coverage they had. and we do have plans to closely examine our data, probably early to mid-next year, once all of the dust settles and we have good data to look at.

and we will be making all of our information, the demographics, enrollment statistics all public once we have good data to share. >> have others on the panel experienced the same sort of platinum coated enrollment phenomenon that milo was describing? >> many of ours have been silver vessel we are seeing. but we don't have 18. [laughter] >> not a representative sample by any means. >> also on the data availability, i think that's a really excellent question and really i don't is looking at this carefully wants to know who is enrolling. the caldwell fund will review our survey that we did in october in december just to get another snapshot of what's happening in the marketplace. hopefully we'll have a little

more sample so we can have a better idea at least in a very broad way of who was coming in, and then go in at the end of the open enrollment period again with a little bit larger sample. in terms of a national data that will be available, national health interview survey data i think will be the first national look at, at least at a broad individual market level perspective available starting in september. we will know what the first quarter coverage look-alike in this year. so i think the state reports, my list report just now is so important, so interesting and in california, other states that are recording, demographics this division are going to be really important to understanding what's happening. >> all right. go right ahead. >> i'm a legal intern at hhs.

i've a question that's mostly directed for katy caldwell spin could you step on little closer to the microphone and? >> canyon me now? wow. i'm illegal internet hhs. my question is directed to katy caldwell. how is your health center responding when you encounter people who fall below 133% of the poverty level? and also, do you help people realize if they're eligible for subsidies? >> on the subsidy question, yes, we do help people determine whether subsidies are. that's the easy one. the hard-won is telling people they're too poor to get a subsidy. and it is difficult and we haven't people coming in now looking at that, that i fall into that category. if we had expanded medicaid they would be eligible. so we're talking to them about

just when we do, whic which is e your options if you come here to care, we do everything on a sliding scale. we will help you in any way that we can, but it's still using our grant funds and other funding that we have to help care for them. and what our goal was then is to educate them again like we do it all of our patient, try to keep people out of the emergency room and keep it in routine care. >> and just to put a data point on that, too, the size of that coverage gap population, kaisers number is right about 1 million people in texas. so that's a considerable number of people your. >> hi. my question is for mila. are you concerned that there's over 100 plans to choose from, people will be overwhelmed by the choice, or they would just

choose based on price? it was a problem for part d. it's still a problem for part d. people are reluctant to go back in and make another choice. and i think kaiser has shown that they don't make the best choices? >> thank you for the opportune to clarify. so, on the individual side we have 34 products. 31 our meta- levels, and three are catastrophic. so on individual side there are fewer options, fewer choices. on the smoker decide, on the shop side, 267 different products. we know from experience that small businesses themselves are like a choices. if a $15 co-pay is right for one small business, another small business wants a $20 co-pay. so we know that from the

massachusetts connector experience in small group market and we know that based on the commercial side of the market. and i have a private board that made many of these decisions with a lot of input from policy stakeholder workgroups. so we decided early on that we wanted, that we didn't want to limit products. we wanted carriers to be as innovative as they wanted to be. the one early decision that we made, which was unanimously recommended by all stakeholders including consumer groups, providers and carriers was that we would not allow benefits substitutions to the central health benefits package. and so that products could have additional benefits like acupuncture as an example, if not one of the core benefits. so the variation in product is really additional benefits on top of the essential health benefits benchmarked and the

variation in your out of pocket liability. so the co-pay, coinsurance, et cetera. >> thank you. spent thank you. i also work in coalition with many asian-american organizations. so my question has to do with the language barrier. have you seen the problem cents we have not only on paper? you said 11 languages on paper and only two languages online for the application. so does that pose any problems? in virginia, we have a high percentage of asian americans in virginia and its rising but virginia still not choosing the american expansion decks i don't know if you have any number from healthcare.gov, from the federal site. how many asian americans coming

in and giving problems about it is anything that you think the committee should step up and work with you? because as i understand we'll have two mitigating in virginia. and with tremendous amount of asian americans, small businesses and many of us are not inhabit at that insurance. i can talk from texas. it is a problem we have the largest been in thi in these coe in the country in houston, and we are pushing to get the third language to vietnamese for us. and, but it is a problem and we're just glad that there are at least 11 languages and we run across people that it is not that we don't have the appropriate language. in those documents. it is an issue. because it is much easier for people to understand in the language of origin and so we are

working with everyone to try to get better access. but yes, the answer is yes, it is a big barrier. >> so in the district our biggest immigrant population is spanish-speaking, and the next largest is ethiopian community. and then we have also a nation population. for asian and pacific islanders we a partner with our mayors office, and our partners are essentially doing on the groundwork. we found with working with different culturally different groups, that having a working online portal is not relevant, and that many people, many immigrant communities, small business owners and individuals really like the one in one

interaction with a trusted voice. so we actually have focused a lot of resources into the on the ground people in the community who can work one on one with a small businesses and individuals, with all of our the first populations. >> what kind of relationship do you have with the insurance brokers in the district? >> so, from my perspective, excellent. we actually have the brokers involved very early and we build a broker portal. so there's a consumer portal and there's a separate broker portal that's designed to help it, help make it easier for brokers to place business to shop at. we have very good feedback from brokers and, in fact, we're doing some enhancements to our

portal based on some feedback from not only consumers but brokers using the portal. the other point i just want to add, we also partnered in a formal way with the national association of health underwriters and they did all of our broker training. which also helped a lot. we also have partnership with all of the, most of the business associations like the d.c. chamber of commerce, the restaurant association and the hispanic chamber in d.c. and that is held a whole lot in terms of not only educating people about the affordable care act and all of the opportunities, and also being trusted messengers, and now those business partnerships, they are helping us with enrollment as well. >> him david helms. more to this discussion, i led the robert wood johnson's health

care for the uninsured program when we tested voluntary subsidized products for the working uninsured, and i am interested, mila, and those who have had a chance to look at the plans, the "washington post" of course discovered that maybe some of these plans will have to have narrower networks that may exist in the rest of the market. and i would report that there are no easy ways to make health insurance affordable. and we tested a lot of these from purchasing cooperatives to subsidies, the narrower networks. and from those early projects reported in health affairs in mending the flaws in the small group market, note that the uninsured were not unwilling to use narrower networks. they wanted the range of care from hospitals and ambulatory and so forth, but i just wondered if you were hearing any or seeing any evidence that

looks like this will be the next issue people want, not everybody's going to get him the same choice of health providers maybe they had before. >> i can say that in the district, the products that are being offered are very much, in terms of the provider networks are very much the same as currently in the commercial space. and so about half of the products offer nationwide networks. and the other half very robust local and regional provider networks. i don't think there's a single product that was filed to be filtered that has what we would consider a narrow network. >> i might add that i would say that from a macro perspective, narrow network company, it connotes different things. it doesn't necessarily mean bad quality.

there's a lot of providers out there. i don't know that we want to be with. and i think it is an inexorable move in the insurance industry in this country towards narrower networks. selective contracts. obviously, ideally you want to do that so you've got a high quality low cost providers within that. but let's not try to pretend that's necessarily a bad thing. >> and i would refer you to the briefing we did last week on reference pricing for a number of private sector entities were moving in that direction in a very large-scale. >> i believe you were next. >> hi. hello? does this work? on monica from gao's office of general counsel, and one of my practices is and how flaky an aa question for dan and mila about the bells and whistles you refer to -- >> get a bit closer to the microphone.

>> sorry about that. those of you refer to bells and whistles in the cms federal system and you pointed out that one of the things that led to the successful design and implementation of the csm or the other state systems we scope and requirements and to cut out the bells and whistles. in comparing that to the federal system that has to interact with the hub and the carriers and make that, make the decisions for the applicant come what are some things you can scope out? >> like what are the bells and whistles? >> so just for the record i did not say we scoped out anything. we actually write should be. so we still intend to do everything that we plan. we just couldn't do it before october 1. so it's just been right shifted to 2014 and perhaps a few years but it's things like the provider network. ideally we would have a button, a consumer could click on and

have access to the carriers network right there. we couldn't build in the provider network feature into the portal, and so what happens now is a consumer has to click several times. and actually from our site, click into the carriers aside and go straight into the provider network that they carrier maintains in their website. so that's an example of a bell and whistle that we just could not do. for october 1 launch. we plan to do and we will do. it's just going to be sometime in 2014. >> my name is dan brown. i'm with the american occupational association. the lowest cost option is not always the best option for consumers. katy mentioned it's difficult to access information about

provider networks and drug formularies. we've also found that is difficult to access information about coverage services, unlike in d.c., and most a substitution of benefits is allowed even if the consumer is aware of this benchmark plan and those was covered by that plan. there could be variation in the marketplace. i'm wondering with all the i.t. problems and enrollment challenges if d.c. or other state run exchange is are actually looking at the consumer experience making sure that all the information that ideally would be available for consumers to make informed choices is available? and a related issue that is accurate, we found some information that's available on the marketplace interface that is not the same as the summaries of benefits and coverage for the plan. so i'm wondering if any state

run marketplaces are looking at the availability of that information and the accuracy of that information? thank you. >> yes, yes, yes and yes. so we found early on that it was very difficult to find the formularies, and so we worked with the carriers to make that more prominent and easier to find. but again, that formula is not going to be in our portal until next year so consumers still have to get a few clicks to get to the formulary. the consumer experience, so let me just say, the most important part of all of this is the consumer expected because if the consumer has a bad experience, then it's hard to convince the consumer to sign up, get coverage. so we are very interested in consumer feedback.

any feedback we get, whether it's constructively phrase or not we take seriously. and we have a long list of improvements and add-ons we plan to make to improve the consumer expense. we do updates to our system on a regular basis to add in enhanced features to help with the consumer experience. in terms of the contradictions and information with us benefits and coverage and what the plans actually cover, just like we build a portal for brokers, early on we built a portal for carriers. and so this summer carriers have to load all the rates in the plans and we did significant back and forth testing with the carriers so the carriers would come in to their portal to check everything out to make sure that the summit of benefits in coverage actually matches the

plan that was approved for sale and there were no discrepancies. and that's how we are able to address some of the discrepancies that the plans and identified early on. so hopefully a consumer shopping in d.c. does not find any discrepancy and if they do i want that call personally so we can address that. but i just want to invite think the consumer experience in improving the user experience is critical to me. >> office of personnel management. the federal employees health benefit program. i have two questions actually. first one is for mr. simon but i hope i pronounced that correctly. on the medicaid expansion, with large font of soldiers coming home, how these offerings for that large population transitioning even though their state may or may not be offering

it because the job may or may not be there. income is cooler. how are we setting buffers? and the other question is for the state. excess of health care now we have that. what are states proposing to deal on the clinical provider side so that we can provide services for those people? >> that's a great question. on returning soldiers, returning veterans. i confess, i'm not sure. this is not traditionally a job that medicaid takes on to try to look at. i think the court of the issue you're getting at is employment opportunities for returning veterans and i think it's a really, really important issue. i know a lot of states pay a lot of attention on the. that's not something that we focus on. so i can address that. but to the extent that there are

issues there that we will take a look at that and we can get back to you. >> matt, you have one of aspect of the gentleman second question about the adequacy of the provider networks being one of the other question cards that we have up here. someone was wondering whether there is any state that has decided to hang on to the primary care increments in medicaid that was included for the limited time at federal expense in the aca. >> so i guess the question there is, because when the things the aca did was that the increased medicaid payment rates to primary care doctors to the medicare level. which is great. but it did so for two years and then some said it. and, in fact, it was intentional

-- it was intended to improve access although the first year that went into effect which i to 2013 for the expansion started and it is at the end of 2014. which i think is a terribly cynical wit about going federal polls. the framers of the law assumed a future congress would come in and extend it and would have and medicaid doc fix just like we had so much success with the medicare doc fix for ever now. i think it's way too premature to say what are we going to do when that goes away because i think this is very much in congress is core to figure out, do they want that to just go away and in what will that get access? i think that's a question for congress and not for us. we not going to try to answer that at this point. >> i have a question for matt and a question for mila if i

can. i want to ask met come in your snapshot you said you think medicaid data may be taking a want to get a better sense of that. are using different people enroll now and you saw previously? given that the enrollment data has not been, didn't come it's been delayed because of account transfer problems, are you concerned about how solid hhs data might be? you expressed some concerns that some people who enroll or people who applied were i could already enrolled in medicaid. so how solid is the hhs data, and for mila, i'm wondering, something people here might be carries about is, do you envision any way at all people who have been assigned to go to help link to be able to go back if they want? >> so, to the first question, in terms of the data and you're

right, the inability to actually do account transfers is not yet fully functional. it will come. not sure win. i don't know that's a catastrophe. i don't know that's a crisis. the issue i think you're getting at a ransom the data which is also the batch files that are common across, it's really more of a system hhs of here's who we think will be coming to you. and here's some information about this so that states can kind of better prepare some of the workload, do we need to staff up a call center? you know, and yet, so we've seen some challenges there. you know, there's a lot of challenges with everybody's data at the onset, so i'm not care but concerned about any of that. it will get cleaned up. it's not going to be huge problem i don't think. >> yeah, i would just refer you to a pm. as you know, the affordable care

act has a provision that says that certain designated staff and members can get or have to get their coverage through the exchanges. and the final rule that opm issued as a source for qualified coverage that is eligible for the employer contribution. so i welcome all congressional staff and all members and look forward to serving each and everyone. >> yes, go right ahead. >> hello. i'm with the national association of social workers. my first question is both on a micro and macro level for katy and matt. are either of the agency level or at the association level collecting data about the turn away rate in the not expansion state? katy, you mentioned there about 3000 inquiries after clinic in the last two months.

if there's any data as to how many of those were people below the poverty line, who could not get coverage because you're in a not expansion state. >> we are collecting that. i don't know the number of the top of my head but we are clucking and we are seeing quite a few. and we know that we're going to be seeing a lot more. we are an hiv service provider and we have about 4000 hiv patients, and we know just by our data that about 1500 of those patients will not qualify. would qualify for medicaid expansion but not the other. but we are tracking it. the short answer is yes, we are tracking it. spent the at -- and the short answer is no. we are not talking. we represent the medicaid directors. we've got a third of our staff here today. you know, we try to prioritize,

providing information to the members to help them better implement, so the snapshots we've been doing is really to help level set, to help states figure out are you struck him with this issue or that issue? are you the on one or is anyone struggling with that? so we don't have the capacity to dig down and really, really be a data warehouse for everything like that, unfortunately. >> thank you. >> someone else have a question related to the. wanted to know if states that were using alternatives to the traditional or the medicaid expansion under the law, whether the states might see differences is enrollment. different approach. >> i don't know that we've seen much in terms of different enroll a. at this point we're really only talking about arkansas at this point. when the aca had the medicaid expansion and then the roberts

supreme court declared it unconstitutional, it turned to medicaid expansion into a state option. as your slides appointed a, but have the state said yes, about half said no. in large part because largely guilty choice they had was yes or no. then we had arkansas come along, very, very interesting singer we have a democratic governor and the very conservative republican legislature and governor bp went to secretary sebelius and said, i need to do the expansion. i can't get it through if it's just medicaid. let's figure out a third way. and together they worked out a plan to essentially expand medicaid but to take the vast majority of those individuals essentially and roll them by the exchanges, via the marketplace. through premiums of technique called premium support. at this point arkansas is really the only state that's been approved to do that. and i think what they are going

to see is, you know, you're going to see by definition the figure, frailer, the more disabled individuals as part of the expansion will be in medicaid. the younger, healthier, and better health risks for the pool will end up in the exchange, and quite by contention according to their calculation, their proposal, that in and of itself is going to sustain and save the exchange markets by having that bolus if you of younger, healthier lives in that pool. i think you're going to see a lot of folks in there. >> i guess this is actually a sort of same question and i was going to address to you. i just wanted to know, if you be seeing more states who have opted out of the medicare expansion who will be using that model. i think wisconsin is using that

same model. i think i heard that it's going to take off this enrolled people off of medicare and put them on exchanges and then to make way for new enrollees to i guess i just wanted to your whether or not there are some downside our upside to using that kind of model. and you think other states are going to do the same? >> so, in terms of medicaid, i would say the wisconsin issues different. wisconsin, it's funny, the wisconsin folks say why do we keep getting labeled as a non-expansion state? we expanded a decade ago. they already cover all of these people are and so it's, i think the wisconsin situation is very, very different. but i think it's a very, very silly question to talk about, what does arkansas mean for -- salient question, for the other

states that are currently either leaning know or are at no. and i think, i know for sure that the vast majority of states who are currently in the no category are i would call them in, they are in the know, but looking for a way to get to yes. and what it is they look at the options that they have. in the options they have are expand the program as is or nothing. they keep coming back and saying, there's got to be something more on this. it's got to be another option. arkansas has got one. is there another option for us? and i think would at the end of the day it's all about whether or not those individual states because of you all ask for slightly different things, pennsylvania and michigan and iowa, they are all asking for slightly different things. it's really going to come down to is the administration going to be willing to work with them to come up with a fourth option,

if this option, a way to get there? i think the arkansas model, was the conservative flavor of the private sector approach, and as a way strengthen the exchange market the potential to be a big win-win for everybody if the cards so of on. >> this also raises the question that dan brought up earlier about the states on the exchanges also on the marketplaces who are doing plan management, there are about 14 states that are doing a little bit more than just, than some of the other states. whether we will see a shift in that responsibility, taking on more of, states taking on actually the market place operations. maybe talk about that. >> allowing states to transition from a partnership model or a fully federally-facilitated marketplace over the next two

years. states were anticipating filing a blueprint on november 18 that, the states that were interested in doing that transition and we'll have to see how many states actually filed a transition blueprint. but they have until the end of 2014 to make that decision. so again, we think there's a lot of into this for many if not all the partnership states to transition over the next two years, and some of the ethics in states that will just have to keep an eye on the state and see which ones do. -- ffm states. spent as we going to last 10 minutes or so, i would like to ask you to pull out the blue evaluation forms and fill them out as we get to these last few questions. i would like to ask you to ask your question. >> hi. i've got to question. the first one is just about the enrollment data that's been released in terms of young people, so maybe sara and mila

you guys can answer this. is that data on target as far? does it represent a lot of work left to be done, or is a good sign? and then secondly, how is that data in forming study specifically for reaching out to that group? mila, you were talking about data is simple to adjust outreach strategy. what is the data telling you this far in terms of what's working and what needs to be done? either going to be specific things to sort of try to bring in those procrastinators that it been talked about? >> just in terms of the data that's coming in, i think this week we saw in states that are going to own marketplaces that are reporting it, significant shares of young adults, about 20% of those who enroll were ages, 19-35, in terms of what cbo is projecting, of the seven

many people expected to come into the marketplaces next year, about 2.5 million or so are expected to be with, between the ages of 19-35. so about 30% of that total. in our survey data in october, we did see about 21% of those people who visited the marketplaces and these are people who are uninsured or eligible to come in were 19-29. about 32% were 19-34. we also found a high percentage of young adults, and there was really no difference across the age groups in terms of people who say they're going to come back to the marketplaces or go to the marketplaces like the end of the open enrollment period. and just in terms of the massachusetts experience, young adults have waited somewhat longer but the uninsured rates among young adults is 21% in the year prior to the passage of the law in massachusetts.

that rate dropped to 8% in the after. i think it does, the experience, the survey research that we've done, the experience in massachusetts does suggest young adults will come into the market places, the numbers will help do what we're hoping they would do not only helping them but also stabilizing the market. spent so, we used all sorts of information sources to, on a weekly basis, hit the restart button. i had a meeting with my senior folks every week, looking back at what we know about enrollment, what we know about folks who were on the ground. so if we know that holding an event in the evening results in five people showing up versus launch, you get 50 people to show up, that's where our resources go. so we look at everything that's happened to not only the data we're seeing but also what we're hearing from our sisters.

orienteering from brokers in community groups or on the ground. end of the week we slightly shift our strategy. and i can tell you week one at a lot of events planned, educational events and what i would call show until comic indication people have a fancy term for it. but essential have to use our web portal, the range of prices, products. we found that consumers are coming and ready to enroll. so the following week we make sure we had a assisters and brokers at those events to help people enroll. so we learned a lot about the needs and demands every week, and we we tool to make sure that we are right there and available to help people whatever they are in their decision-making process. >> so are there any specific strategies to reach out to young people? >> it's a big outreach program for things that are yet to be unveiled. so some of our d.c. assist

including young invisibles and groups who have worked with university population. and they're doing very creative things. one of our d.c. alpha link assisters is going to bars to provide information. so they're very creative are and the one thing that we're not doing is kind of door-to-door or going into people's homes. we have essentially said for a number of reasons were not going to allow assisters to do that. but they can be as creative as possible and ask our daily and weekly updates. and we share that among the assisters. what's worked, what hasn't worked as well and how to retool. spent can ask just one last thing? just i think a few minute ago we learned that deadline to sign up for coverage for january 1 is

actually been moved back a week to december 23. and i was just wondering if it has an effect on what any of you guys are doing or will have any kind of ripple effect in general. >> no. we are pushing for december 15 to enroll in fully paid for coverage to be effective january 1. >> we have time for just a couple more questions. and one is directed specifically to you. your mention of the direct enrollment option, that is direct by plans, the questioner wonders whether that raises technology issues firstly? and what potential with this option ever increasing enrollment? >> that's a great question. i don't think hhs ever intended for health care that got to be

the single channel for enrollment. and they don't think they ever anticipated they would be the single channel for enrollment in 30 plus states. so there's a provision in the law that allows carriers and web brokers like e-health and get insured and others to direct enroll consumers directly from their platform into the exchange. and when i said to enroll, enroll in a plan that the carrier is offered or a plan that the web broker is offering. there's been a lot of confusion in the media about this since the president sort of announced direct enrollment has been obscure and has been a lot of information about it. so really how it works and hhs is providing the technology to the federally-facilitated marketplace states and these technologies are called apis, and allow the carriers and the

web brokers to plug into the ffm and to direct enroll. there's been some confusion and misrepresentation in the media saying you can't do that because the only way to get a premium subsidy is directly through healthcare.gov. you can get a premium subsidy through direct enrollment if the technologies allow the. somebody would go to a carriers website or web brokers website, they would take a plan and then you would be securely transferred to the federally-facilitated marketplace, or a state-based exchange, to calculate your premium subsidy. you would then be taken back to the carriers website or the web brokers website to complete your enrollment and the plan that you have chosen. as of today, only carriers that are working directly with the federally-facilitated marketplace or healthcare.gov can do direct enrollment. and while those technologies have finally been completed,

they were supposed to go online october 1 but there were a lot of issues just like they were with healthcare.gov on october 1. a lot of the carriers and web brokers are still trying to complete the final integration to make that work. i'm not aware of any state-based exchanges, and mila, correct me if i'm wrong that are facilitated direct enrollment this year but i know that there are some that intend to do that next year. but to answer the question i think it was the intention of hhs to provide multiple channels to consumers to enroll with state-based exchanges, healthcare.gov and through direct enrollment. it's a little plate in the game to speculate on how well directed moment is going to work considering the technology wasn't completed until just a couple days ago. and again, many of the direct in rowley's are still working on integration issues here. >> any final observations by any of our panelists? sara? >> i just wanted to add one more

thing for people have been concerned about consumers in this process of direct enrollment. health plans have to let people know that there are other options available to them on the marketplace sites, and also about the other range of products, other health plans that the insurer might offer. but clearly this is a way that enrollment might increase over the next few weeks to get towards the end, not that december 23 date. >> that's correct. they need to inform the consumers there are other options on the state exchange and they can opt out of direct enrollment anytime they want to go directly to the state exchange, or the federally-facilitated marketplace if they so desire. >> i just would like to make a plug for tomorrow. we have a citywide enrollment event at mlk library. we're going to have zumba and health screenings and bring your whole family and i encourage all of you to come out.

>> okay. well, what an appropriate way to come to the conclusion of this discussion. we may come back to this topic sometime in the near future, in case there might be a few remaining issues we haven't quite tied up in neat bundles yet. but at this point i think we've learned an awful lot, at least i have, and reminding you as we finish up to hand in the blue evaluation forms after you filled them out if you would. i want to thank our colleagues at the commonwealth funds for their help in planning and, obviously, making a big direct contribution to the success of this briefing. thank you for some of the best, hard and microphone questions that we've had in a long time. and ask you to join me in thanking the panel for a really enlightening session. [applause] ..

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state and discussion about changes proposed nsa surveillance and foreign intelligence gathering practices with wisconsin congressman jim hensonbrenner, one of the leading authors of the patriot act. the event was hosted by georgetown university law center. you can watch it at 10:00 eastern on c-span. tonight new jersey governor chris christie and chairman of the joint chiefs of staff martin dempsey at the wall street journal ceo council conference held earlier this week in washington d.c.. there remarks at 9:00 eastern on c-span. earlier this week president obama awarded the presidential medal of freedom to 16 people at the white house. the nation's highest civilian honor. recipients include former president bill clinton, oprah winfrey and gloria steinem. we will have the ceremony sunday at 10:35 eastern on c-span.

>> this weekend booktv is live in florida for the miami book fair international. coverage kicks off today at 10:00 eastern on c-span2 with dave barry, brad meltzer, continues with appearances by lawrence wright, doris kerns goodwin and scott burr, plus call ins with cheri thing, peter baker and susan herman. sunday's coverage starts at 10:dirty and includes marc halpern, bill payers and chris matthews. the miami book fair international live this weekend on booktv on c-span2. don't forget to weigh in on our november book club question, what e-book are you reading on jfk? post your thoughts on our book club chat room. booktv.org/bookclub. >> this week in american history tv looks back at the

assassination of jfk and its aftermath with eyewitness accounts, scenes from the president's trip to texas and commemoratives events from the jfk library and museum. also your chance to talk to lawyers and historians at 5:00 eastern with dallas 1963 co-author and at 5:45 november 22, 1963, coverage continues with lyndon johnson's number twenty-seventh address to congress and your questions live with lbj biographer robert caro and presidential historian timothy naftalee and nbc coverage of his state funeral. remembering jfk on american history tv this weekend on c-span3. >> david barron is one of president obama's nominees as a judge for the first circuit court of appeals. he testified before the senate

judiciary committee earlier this week for his confirmation hearing. he is a harvard law school professor and works in the justice department as acting assistant attorney general early in president obama's first administration. this is an hour. >> good afternoon. today we welcome david barron, professor of harvard law school and president obama's nominee to the court appeals, and i had hoped to include the five nominees for the judicial emergency vacancies in the district of arizona in this hearing, and have not received. slips from the arizona senator. and because we include them,

before we start the hearings, i would note one of my heroes is here, justice john paul stevens here on behalf of david barron, former law clerk, and if we were a couple minutes late it is a because justice stevens and i got caught, the telltales for justice was great to see but thank you for being here. >> are you ready for me? >> you have a statement. >> i assume some of his time. today we are handling the 17 judicial nomination hearing of the year which we considered a total of 58 judicial nominees, this is the fourth nomination

hearing in four weeks, republicans are engaging in unprecedented obstruction ignoring cooperation that we republicans have shown and i as ranking member trying to work with and the co-chairman. compare the record to hearings for president obama this year, in the fifth year of his presidency, in 2005 the final judicial nomination hearing was held on november 15th. that wasn't the seventeenth hearing of the year as we have done this year but the sixth hearing on locklear and judges. during those 6 hearings we heard from 58 judicial nominees, 15 districts and circuit nominees. how are we doing this year compared to last year? 2012 was a very productive year for judicial nominations. in the 112st congress president obama had more district judges confirmed that were confirmed in any of the previous eight

congresses. are working committee contributed to that accomplishment when we held ten hearings for 41 judicial nominees. in addition i would like to have everybody be reminded we have now confirmed 38 lower-court articles iii and digital nominees this year, more than 2 times the number confirmed in president bush's second term when only 14 district and circuit nominees have been confirmed. in total the senate has confirmed 209 lower court articles, this includes a significant number of women in the nominee's. we could have confirmed more judges over the last couple weeks but the senate majority leader decided to take diversionary political exercise rather than confirming additional judges. as i explained earlier this week, the other side has been working diligently to manufacture a crisis in d.c. circuit in order to support

their claim that the republicans are obstructing nominees it appears the other side is doing slated hand on the data as well. one of my colleague stated the senate republicans filibustered 34 president obama nominees so if you pay attention, you wouldn't know that republicans filibustered only a handful of nominees. what are the facts? how does the other side gets 34 to begin with? half of these cloture participations were filed by the majority on day one as a procedural gimmick and were totally unnecessary. none of those 70 in cloture petition required a vote, every cloture petition was withdrawn and every single one of these nominees was confirmed. that was just another part of manufacturing a crisis so that leaves 30-17 of 34, but republicans have been filibustered anywhere as close to 17 nominees so again the real

story is of the remaining 17, six of those were also withdrawn. only 11 nominees who have faced a cloture vote. one of these nominees had two cloture votes for a total of 12 yet six of those 11 nominees were confirmed. that means only five nominees who have failed to see -- achieve closure. to some of vote majority claims earlier this week, the fanfare that republicans had filibustered 34 nominees, one was actually stop five nominees and of those five, three are still pending in the senate leaving only two nominees defeated by a filibuster. i suppose that is what one is required to do in order to overstate the record established during this administration compared to what it was in the bush administration when senate democrats truly were unprecedented in their use of closure against judicial nominees.

they forced 30 cloture votes on judicial nominees including a supreme court nominee. that is a factual record. 30 cloture votes in the bush administration, 12 cloture votes during president obama's term. of those 30 cloture votes faced by president bush's nominee senate democrats have struck nominees 20 times so to emphasize the point during the bush administration, 20 cloture motions failed, senate democrats continued to obstruct judicial nominees 20 times. i think it is clear which party holds the record on remain or obstructing confirmation of the number of cloture votes demanded by senate democrats on president bush's nominees is 2.5 times the number of cloture votes on president obama nominees. the number of times senate democrats refused to end debate, three times where republicans have done. democrats clearly hold the record of the lane and

obstructing. we have treated president obama in a fair manner and he enjoys an outstanding record for his judicial nominees. one final point on this charge that republicans obstruct has left the federal judiciary with high vacancies and the fact is president obama's delay in nominations was a primary factor in a lower number of confirmations during the referenced term resulting in a high number of vacancies. 42 of 93 vacancies have no nominee, 45% vacancies with no pending nomination before the senate. this percentage recently has been reduced, it was a case where the obama presidency the majority of vacancies had no nominee. of the 38 judicial emergencies, and 18 have no nominee, 47%. the senate can't be held responsible for these vacancies where half of the seeds have no nominees. having set the record straight let me address today's

nomination. i welcome the nominee, family and guests. the nomination has been pending in the senate 55 calendar days. i will note president bush's circuit nominees waited an average of 246 for hearing more than four times the weight of this nominee. david barron has an excessive record, has written on a wide range of subjects. it would be fair to say i probably don't agree with much of what he has written but that is not necessarily the standard for my review of his qualifications to sit on the federal bench. i'm interested in hearing his views on executive authority, his work in the office of legal counsel, his judicial philosophy, particularly what he calls, quote, progress of constitutional outcomes and on a variety of other things i expect to address some of these today and will likely have a significant number of questions in writing. thank you, mr. chairman. >> this is so fascinating i had almost forgotten we were here to

david barron's nomination, but i do share ranking member's concern about the number of vacancies on the federal bench and would know there are 17 -- 17 nominations pending on the senate floor waiting for clearance by the republicans, and we can lower its that vacancy number by 17 this afternoon just by allowing them to be voted on. david barron, please step forward. diaz where the testimony is the truth, the whole truth and nothing but the truth so help you god? >> i do. >> i have had the opportunity to meet your family when i came in.

sunday in the david barron family archives when they go back and find the transcript of this hearing, you want to know who is here. would you please tell me who you have with you? >> want to make sure i don't forget someone. >> if you do, you are the one, not me. >> i want to express my thanks to you for chairing the hearings and ranking member grassley for convening and senator lee for being here and the president for nominating me and i would like to introduce my family to you. right behind me is my wife, julia, and next to her my three children, my daughter, cecilia, my oldest son, leo, my youngest son, jeremiah, told me he had an awesome jim class, i appreciate his sacrifice. mallory he helps us with the kids but we hope not this

afternoon and over here is my parents, that is my father, jerome, constitutional law for over half a century, much of it at george washington, just retired last year. my mother, attorney, in her own right. and then back this way, in-laws are enthusiastic. my father in law, robert, my mother in law nearly, my sister-in-law, her husband, james swapped, my brother in law, john. and one other guest i would like to say something about, justice stevens, who i had the honor of working for has come here today, he instilled in me as he instilled in all of his to be awkward to the edge federal judiciary. a particular honor to testify before you today with him present. >> might note the very first

justice of the supreme court's i had to vote on, john paul stevens, that was a difficult confirmation confirmed on one day or the next, passed out in the senate, not quite that much but wasn't much longer, just two days and i know that during president ford speak of his pleasure in appointing him, he was also confirmed unanimously. do you have a statement you wish to make? >> i am fine. >> you spend much of your career at harvard law school, a career that by every report we have was a very distinguished one. what is going to be the most

difficult aspect if you transition to federal court of appeals judge if you are confirmed? >> thank you for the question. it is a difficult job, the role of an epidemic in peking has certain attributes to it. that are relevant. they teach you to be open-minded, to consider the weak points, and to learn to see arguments in their best light and to teach students that. the role of an academic is to think about broad patterns of law in more abstract ways. i know from my experience in the government, legal questions when you give advice on them is to think of their particular area and president and the role of precedent and so going to the federal bench will call upon those skills in particular. >> there is the obvious

precedents of your own circuit, the first circuit, that you would agree to be ignored only -- reversal with the most extraordinary circumstances ridges that correct? >> it is correct and never by a member of the panel. >> if it is a decision by the supreme court, as the circuit court you are bound by it. >> absolutely. >> i am constantly in reading as we all are, looking at the extraordinary wisdom of the founders in this country and the three branches of government, two of them political and so forth. the judiciary is not, and

democratic in that sense. and in the federal judiciary in state courts. like many on this panel i have argued a lot of cases, a lot of different courts of appeal. i always thought whoever the litigant is, if they look at the judge and figure they are not going to be the occasion is going to ride on who they are whether they are republican, democrat, plaintiff, state, respondent, whenever, rich, poor, so on. obviously any judge has their own feelings, their own opinions on things, personal opinions. but can you tell us, the panel,

whether anybody outside you, to take it out of the realm of my argument, and lever is arguing, no matter who the two sides are, no matter what the issue is, that you can take it squarely and say i will make this on the merits? >> absolutely. the reason the rule of law system works as well as it does is because the judges people appear before to set aside and set aside solely on the law. and pledged to do. >> you also have to decide when you have a conflict of interest, we had differing views on things became good friends, an area that i disagree is chief justice william rehnquist, prior to

becoming associate justice on the court, served as assistant attorney general of the office of legal counsel. after being confirmed of justice, he participated in a case where he cast the deciding vote in a 5-4 decision, the latest claims regarding domestic surveillance program. the reason i mention this, he refused to recuse himself even though he testified before the senate judiciary committee defending the program as constitutional while he is the head of the o lc. he worked on this for some time, testified in defense of it but decided the case whether it was constitutional or not. and republicans or democrats, this was a violation of judicial ethics. i know you can't disclose all

the issues when you worked at the justice department. what type of case are you going to recuse yourself from? >> standards set forth by congress and i will set forth in the judicial ethics and the standard is not just that there be no conflict but there won't be an appearance of conflict and that would be the standard that i would honor in making these decisions on executive branch lawyers privilege to have the trust of making a variety of difficult decisions on gary is sensitive matters ended is incumbent on people who have those rules to make seriously if they have the honor of becoming a judge to consider and precise factual circumstances whether an appearance of conflict would a rise and if it would reduce one's self from the case. >> the main circuit, about all

the cases they worked on, nor will we ask you but we have to look for the most transparency as possible. there was one high profile and it was gone over by discussing this with senator grassley. the legal counsel of the justice department with metal odds rising, targeted killings of u.s. citizens, i have some serious concerns about the legal justifications. what is your view first of the legal and constitutional grounds of the targeted killing of americans overseas using a drone? how eminent must the threat to national security posed by such an individual be to justify such a strike? >> thank you for the opportunity to address the questions you have asked.

on the advice that may have been given by the justice department because of classification issues and confidentiality obligations i don't feel free to discuss that but in terms, and because of the issues one has to consider, i have some things i would like to say in that regard. it is as weighty an issue as arises in a system. the issue concerns the use of full force. added general level are critical. and a source of authority the president is relying on, and relying on an authorization by connection with the armed conflict, the operation would be directed not against a u.s.

citizen abstractly against the person who was thought to be an enemy in the armed conflict, it would also be critical to see whether congress had any measure limited in scope of that authority through other statute pursuant to their broad war powers that they may have an accident in construing those would be important to consider the laws of war that inform the statutory grants of authority that have been given to the president but only on the authority has signed. there's a question of constitutional guarantees. in the countries with guarantees there are substantive due process and procedural due process, fourth amendment concerns and all of those have to be considered as to how they may apply in that circumstance. in considering those questions there is a variety of things that are going to be relevant.

it is and overseas operations in a circumstance you are talking about, where it happened. you would want to know all bunch of factual circumstances about the nature of circumstances on the ground, who the actor was, who might be the subject of such an operation. i cannot stress the last point enough. the type of question you are asking about can only be answered with a full understanding of specific factual circumstances at issue. the decision about it can't stray from those factual considerations, of all the authorities and limitations that i mentioned one has to take account of the president and body of precedent that developed in shape and content, the

meaning of those provisions. >> thank you for your usual courtesy. >> thank you very much. my first question is approaching the issue brought up just from a different standpoint, out more from how it got public and i don't expect you to comment on the fact that i happen to believe that this administration isn't meeting its most transparent in history but it seems ironic that in some accounts the administration has pursued the media that publish classified information more aggressively than any other administration in history. at the same time the administration seems to selectively declassify certain information based upon some argument on political considerations. i have some questions about the

office of legal counsel memo on targeted killings, october 8th, 2011, dan savage, new york times, extensive article discussing the memo, february of this year the chairman sent a letter to the president suggesting access to the memo. the chairman noted in april the administration made the memo available to members of this committee according to the times, you authored the memo, the times article was highly detailed and makes it clear that the author had access to classified memo. one, enter pointed out mr. savage access to each discrete agreement, new the principal authors of the document are and even new the memo's page links. please explain how mr. savage came to have access to this classified memo. and i have a three part called line.

who gave mr. savage access to the memo, whether or not any administration official to grant him access. and whether any administration access without authorization. >> i have no idea what source the reporter in question may be relying on. >> i don't believe what you just told me. mr. savage or anyone from the new york times before publishing this story. >> yes, senator. >> did you discuss any part of the memo with him? >> no. >> have you spoken to anyone from the new york times about this memo at any point before the new york times published this report? >> no, senator. >> have you ever spoken to any

reporter about this memo? >> no, senator. >> have you participated in the way on the unauthorized disclosure of the memo? >> absolutely not. >> one criticize the administration for, quote, refusal to -- refusal to say anything about it, meaning the memo and at the same time essentially conducting foreign policy by leaked journalism. what is the justification for giving this information to a reporter but not to the general public in redacted format consistent with national security. >> i am not sure i am in position to answer the question exactly as you posed. >> why don't you ask the question of yourself and answer and we will see. >> i appreciate the chance to do

that. transparency is important value as your question suggests, classification is critical value as well. as an attorney giving advice to the executive branch, the authority to decide when to declassify something when to waive a privilege that doesn't reside with the attorney it presides with the executive branch itself and i respect the process by which they make those decisions as you suggest they should be made with integrity. >> as i study the response you just gave to me i may have a follow-up question. i want to go to another issue. you have been highly critical of previous administration approaches to the war on terror. in 2006 radio interview you were asked whether john q. who worked in the same office you did was a war criminal. you say, quote, people who take positions saying it is legal for u.s. personnel to engage in torture have to expect that

they're going to be raising questions about whether they are authorizing war crimes and went on to say, quote, is not my place to say whether anyone committed crimes. in 2006 you suggested he may have authorized war crimes yet according to the new york times you authored a memo authorizing targeted killings of u.s. citizens abroad without due process. how do you distinguish between the two scenarios from a constitutional standpoint. >> since there's a reference to this memo coming up repeatedly that because of classification issues in attorney/client privilege and other forms of privilege that apply i don't want to take that to be confirming the existence of the particular memo reported in the new york times but i say that only to make it clear. on the question you raise, i am

familiar with the interview in which i said that i had every reason to believe the professor was acting in good faith when he offered legal judgments that he did, but i was objecting in particular and did a number of occasions to one particular form of constitutional argument being made in that administration, and review of the president's power to act in violation of a statute that congress enacted restricting rights or authorities of the president during wartime, and i thought that claimed the president was entitled to make those decisions, was an overly broad claim and the position ultimately was withdrawn and a limited by attorneys within the george bush administration itself. >> what i heard you say is what you said is distinguishing between your position as you stated in a radio program and your memo versus what you said.

is that what you just told me? >> i can't speak to the merits of the memo but what i am saying is the particular concern that i was racing was a concern about the president acting in contravention of a statute on the ground that congress could not limit his wartime powers. >> this very date do you believe professor yough potentially authorize war crimes? >> i don't quite know how to answer the question in the following sense, i do not believe even though i disagree with his arguments that professor yough did anything unlawful in any respect and if there's any suggestion that that was what i was suggesting i regret it and don't take that as my position. with respect to the question you ask and the way you oppose that i am hesitant to ask because it is hard to answer without taking a position as to what the particular meaning of a criminal

statute is in a particular case. i think given the position i am before you seeking a i don't think it is appropriate for me to take a view on whether party to the conduct was or was not criminal in the specific circumstance. >> over the time that you use, i will stop when i think it is two more minutes. you have written about progressive and conservative constitutionalism. explain those terms and which describes your own view. >> i am glad to have a chance to address the question. i review the writings, i confess it is not entirely clear what content those terms have. it is fair to say in academic circles they are an attempt to give some level to the understood divergences on the supreme court over a variety of

issues and what decisions often come out side, i know in those articles and others have that accrued split, justices do not invariably line up in any particular way. as i reflect on those labels i don't think they are particularly helpful in articulating anyone's who is a judge or what their philosophy would be. it is not the role of a judge to come in with a preconceived vision. what you are supposed to decide individual cases consistent with the fact and the law and the presidents that apply to them and that is how i would approach it. >> i will stop with this last question. you have written that you were concerned with decisions that only looked to prior supreme court opinions, statutes and regulations. you said this decisionmaking, one without looking to law review, literatures, treaties and stuff can be quote at copley

cramped and technical and that, quote, lost in this approach is any sense of a broader legal culture that produces all 4 -- authoritatively go statements or the way in which such legal statement in turn shake the culture and. what role would law reviews, literature have in your judicial making if you return to the court? >> not as much as law professors would wish i am sure. i wanted to clarify on that comment. the writing you are talking about, a blog post and making an observation, very early observation about opinions from a justice and i noted in the same post that there was much to be said for what i call in the blog post just the law approach. it was to raise that issue rather than take a position on it.

certainly as justices sometimes do, treatises can be relevant in the sense that they organize the material but they are not the authority of sources of authority. the authority of sources of authority of the texts of the statutes and regulations and constitution itself and the material that gives insight into the meaning of those when they were enacted. the presidents, circuit court precedent that binds the circuit court judge and the supreme court precedent that binds all judges. >> i will submit questions or answers in writing. >> without objection. >> thank you for being with us today. i want to start by picking up where senator grassley left off. you would agree the only authoritatively go statements generally speaking if you look to as a judge would be those that are actually produced by one of the three branches of

government and yet that is not at all what you were saying in this blog closed. you were saying lost in this approach, lost in the approach taken by chief justice roberts whose opinion you were critiquing that particular day is any sense of the broader legal culture that produces authoritatively go statements that you were comparing and contrasting those and i understand you were saying you were raising a question and you made some arguments for both sides but i read through the post and you made more arguments on one side than the other. regardless you did indicate you had your suspicions regarding this kind of practice and i have my suspicions that this practice is intentional. do you have -- do you approach this with suspicion? >> i have supplied the published opinion that i signed at the office of legal counsel. among them is the best practice

memorandum ligate to the attorneys who worked for me, career attorneys in the office and deputies in that document, and made clear that that did it -- traditional sources of meaning of what one looks to when dealing with the statute that protects and traditional tools of construction of that text, the constitution is the text and purposes that underlie it and the opinion that i signed when i was in that office those were the sole sources that i relied on for authoritatively the determination. >> that is the approach you would take if confirmed? >> absolutely. >> i want to turn to an article you wrote in dissent magazine in 2005 called reclaiming federalism. on page 66 of that article you wrote as follows, there is precious little in the constitution's text or history of its adoption that compels the particular conservative allocation of national and local powers favored by the rehnquist court. tell us what you mean by that?

as i see it is not just a feature but the single most important feature of the constitution and the generations that adopted it and drafted, that ratified it, was that we would have a national government whose powers would be few and defined and those reserves to the states would be numerous and indefinite. this seems to suggest precisely the opposite. >> the reason that motivated me to write that article was that a number of professors were taking the position that the so-called federalism reliable were inconsistent with the constitutional structure and i do not share that view and part of the reason i was writing at that time was to make claims that it did not seem to me that one could just dismiss the mores and lopez argument. there are limits to the scope of national power and in my riding i try to make sense of what those limits are under lopez and morrison and the importance of them. >> you did satyrs precious

little in the constitution or its history or adoption that compelled the party conservative allocation of power between federal government and state and local government. >> i did write that. if i could clarify that for one moment. the precise allocation, part of the point that i made it in that and another writing was the shape of the limits that the court has imposed have changed at times. the national league of cities approach is different than the approach that was set forth in lopez and morris and and i don't think you could read the constitution that i was arguing and academic writings, i don't think you could read the constitution to make it clear that national city's was wrong versus lopez was wrong. that is the deck, trying to make about the shape of the doctrine would look like. as to your basic point, to my belief, my personal belief would not be the guide for me as a

judge and my belief is federalism is a critical component of constitutional structure and any judge bound by the president's the court particulate. >> that is not consistent with the statement would just read but let's move on. there's a different statement in the same article that sheds further light on it. you conclude that federalism is what we make of it. rehnquist and his conservative colleagues made the most of the for more than a decade. time for progressives to do the same. is federalism that which those wearing black robes happen to think that it ought to mean? if it is a means by which we achieve a particular outcome? >> i do not believe -- in that same piece i made a point of saying it has to have integrity as a document and it can't be

with good policy outcome judges should not be deciding issues, with their obligation is, to enforce what is manifest in the text of the constitution and the presidents of the court that developed and that is what i would do as a judge. >> we have time for another round? >> we may have to come back this evening but yes. >> could i have two more minutes on this round of questioning if we can't get another round? >> you are. >> thank you. >> we have but very benevolent chairman. >> a recall petition on me in a vermont. >> thank you. >> there is another document in which you have written that it has long been a precept of the progress of view that the

constitution is not frozen and recent conservative judicial nominees seem hesitant to challenge that notion. provisions are important to, too open-ended and forward looking for that not to be the case. the deficiencies of peer or regionalism are too well known. wouldn't you agree, professor, that the whole point of having the constitution is having some law that is in some important meaning for respect frozen? frozen to significant degree taken off of the table, rendered indian from the vicissitudes of changing public opinion, separated by a couple of degrees from changing public opinion and the way voters vote? isn't that the whole deck of a constitution, to have something that is frozen? >> i do agree with that and that is true of the constitution like ours which is a written

constitution. >> and yet you are saying that an approach that focuses on text, and focusing on what the language itself says and how it was understood at the time it was drafted and ratified, you are saying that that is sort of a cramped, overly inflexible sort of approach? >> if i can just elaborate on it, there are many instances in which the original intention and the text of the constitution compel an answer and when it does a judge has no warrant to go beyond them. even when it doesn't clearly compels it because the framers themselves seem divided on the issue, precise technology they were talking about is a different from the technology that has developed. the obligation of the judge is to use the foundation point of the analysis, what evidence there is of what was the purpose

of the intention of the framers. there are circumstances in which the court itself has made clear in which the practice of the branches over time with respect to an open issue can be determined in a legal decisionmaking. that was made in the war powers context many times. did doesn't mean the original intentions don't matter. it just means that when there is a general provision and purpose it is hard to know from looking at those forces if justin jackson said in a wartime context they can be as hard to figure out as the dreams of joseph. we have no choice but to see how the branches themselves of operated overtime but the particular aspect of our constitutional jurisprudence and the presidents of the court guide judges went to use that analysis as opposed to the original that you are discussing. >> thank you and i thank the

benevolent chairman. >> senator cruz, you are next. >> thank you, mr. benevolent chairman. and professor david barron, thank you for being here, welcome. you and i have known each other in long time, went to law school together and we have always gotten along well. and i would note then as now that you have always been a man of the left and you have emphatically and effectively advocated positions very liberal positions both as a policy matter and illegal matter and i respect that consistency. i would be less than candid if i did not confess that i have concerns that that life of advocacy is not consistent with the role of all lifetime federal judicial appointment. so i would like to spend some time discussing that. i would like to start with a

general question. do you embrace the notion of a living constitution? >> as i said to senator lee what i understand the constitution to be is a written constitution, the words cannot be changed by a judge and are in that sense frozen. to the extent the original intentions are noble in certain contexts or can't be resolved clearly, the court and precedents of the court make clear in some instances it is appropriate to look a practices of the branches to give shape and meaning to them. >> is that yes or no on a living constitution? >> i think it is a note in the way that if i am understanding you are asking if i agree with what a living constitution is. >> you have also written in defense of what you characterize as a progressive view of the constitution which is altogether appropriate view for some of the

academy to advocate. but you have discussed the progressive view of the constitution not from the progress perspective of an academic the perspective of how courts should enforce it and indeed you have written that in favor of what you describe as progressive potential of a significant wielders of power, the courts. you went on to embrace the notion that the courts should, as you described it, quote, conscientiously arrive at progressive constitutional outcomes and i would like to ask if those are still your views in the few think it is appropriate for courts to conscientiously arrive at progressive constitutional outcomes. >> if the idea that the task of a judge is to come to that outcome because it is a progress

about, disagree with that position. and the outcome that is reached has to be based not on progressive or conservative impulses of the judge that they may have had in a life before they were judged, the only thing that can be determined is the legal position and if i may, to give you some confidence i truly do means that. i would point to a couple things, quality and content of the opinions that i wrote when i was entrusted with making decisions as a legal adviser on sensitive matters. in addition i was gratified by letters in support of my nomination by people who quite clearly reject the idea of a living constitution, who know me from a variety of circumstances and believe the way i conduct myself as the judge is in accordance with what i am saying to you today. >> i would note that one criticism leveled at you is you

were highly critical of executive power when it was administered by republican george w. bush. and then, very defensive of executive power when it was exercised by democratic president barack obama and some have suggested that suggests less than consistency or the impartiality of the we would hope to see in a federal appellate judge. in your view, are there instances in which president obama has exceeded his executive authority? >> senator cruz, i don't feel i am in a position to comment on that the on the circumstances in which i gave advice about the particular questions that were presented. >> let me help you. setting aside your time when you had the responsibility as a lawyer i am asking your view as an academic and commentator.

when george w. bush exceeded his legal power and ordered state courts to abate the world court i spoke out loudly against that and mitigated a position against the president before the supreme court. i am asking have you publicly criticized president obama in your capacity as an academic forever acceding executive power? >> i have not written about executive power since returning to academia. can i did just answer the thrust of the question? i do think this is important. there was a lot of criticism lodged against the prior read ministrations by academics. the particular criticism that i lodge was one in particular. it concerns the authority of the president of the united states as commander-in-chief to act in the conduct of war and restricted by statutes. that was the subject of constitutional analysis, the academic writings that the

devoted buzz of to figuring out what the answer to that question was but i triage to be tailored to the lie felt -- >> let me ask one more question. what is your view of the critical legal studies movement in the legal academy? >> i don't -- i haven't thought about that in a long time. in all honesty it is a movement that by the time you and i were in law school, probably and an attractive word in the eyes of the people who did that but i have no view of it. >> thank you, david barron. >> i have two questions. >> i want to put it into the

record, a lot of letters supporting david barron's nomination. among those were some from former reagan administration, associate general charles fried, george w. bush administration heads of legal counsel jack goldsmith. i just note professor goldsmith writes david is one of the finest lawyers i know, deeply learned the law and has a great lawyer's capacity to see a problem from all angles, obvious connections between legal principles and understand the second legal decisionmaking, these are all important qualities, successful judging and without objection will put those letters and others in the record, senator grassley. >> on may 16th, 2003, e.u. and

other law professors wrote to bill frist and tom daschle usin other law professors wrote to bill frist and tom daschle using the filibuster in that letter, it respects minority views and underscore is the unique role of the senate as part of american democracy. you also wrote that, quote, with regard to nominations to independent branch of government like the judiciary, the filibuster encourages the president to find common ground with the senate on nominating individuals who garner consensus. do you still agree with your assessment in that letter and explain your answer. >> i do, senator. >> thank you. i guess i had better leave it there. >> perhaps it give some confidence the i'm willing to

make statements against interests. >> i will begin to something you think i'm going to ask your opinion on what some other judges have said. that is not my motive. i don't want to give background for a question. in 2011 the d.c. district court ordered justice department to release e-mails regarding solicitor general kagan's involvement with obamacare litigation. solicitor general kagan wrote you when you were acting assistant attorney general for the office of legal counsel. in that particular e-mail she asked whether you had seen former judge michael mcdonald's, quote, piece in the wall street journal. she was referring to a march 15th of bed in the wall street journal in which judge mcconnell discussed the constitutionality of a proposal by house democrats to avoid any additional votes on obamacare legislation.

the idea was to circumvent the vote on the exact language of the bill as passed by the senate. in response to that the alien replied, quote, yes, getting this going. presumably that was in caps. what did you mean by that, he is getting this going? >> i want to just be hesitant in answering you for the only reason that i am not sure if that e-mail has been publicly disclosed and i would hate to say anything that might waive a privilege i am not in position to be able to wave. one possibility is -- >> it is public. >> i could give you an answer in my written in a written follow-up if i could see the e-mail i appreciate that. >> on the same line to you provide, did you provide political guidance for legal

counsel either formally or informally to anyone in the pending obamacare legislation? i am not asking you to disclose specific advice or opinions you may have offered but do you identify what issue you may have addressed, specifically did you provide formally or informally any advice on the following topics, constitutionality of obamacare, assessment or judgment regarding possible litigation based on proposed or actual procedural event that occurred in any chamber involving obamacare? >> i appreciate the question but i can say is this. is an ordinary task of the office of legal counsel to review legislation that is pending in congress but as to the substance of any information or advice i gave when serving as executive branch lawyer i don't

feel i am at liberty to say is that without wading a privilege that is not mine to waive. >> thank you. on the question of the affordable care act, the supreme court has ruled, has it not? >> it has. >> you are bound by that rule, whatever you thought one way or the other by the time of that? >> absolutely. >> no further questions. we stand recessed, thank you. [inaudible conversations] run

[inaudible conversations] [inaudible conversations] >> i thought it was fun to have a little view of history, of but time in america that wasn't instructional, first and foremost, was a little more anecdotal and actually a little more archaeological, meaning random. you take a look at them and see bunches of weird photos and the captions explain them. i had a vision of high school

students flipping through demand living history if they flipped through it. >> josh sapan with the big picture sunday night at 8:00 on c-span's q&a. .. >> but i feel like that is a growing number, you know, that is a kind of woman that there can be