customers and strikes the right balance. we have been supportive of it and continue to support it moving on to the senate. >> thank you. i hope you will come back. all of these topics affect each one of us and each is complex. paul kirby, thank you for your time. >> thank you very much. >> c-span created by america's providers 35 years ago and brought to you by your local television service or satellite provider. >> the head of the epa announced new rules to cut co2 obmissions. jenna mccarthy offered blunt defense on criticism: a quote

reads given the price we pay for climate inaction the most costly thick we can do is to do nothing. here are some of the remarks as she announced a plan today. >> as our seas rise, insurance premiums, property taxes and food prices. temperatures could rise 10 degrees and seas by four feet. climate change will continue to affect credit risk worldwide. this isn't just about disappearing polar bears and melting ice caps although i like polar bears and i know about ice caps. this is about protecting our health and our homes. this is about protecting local economies and it is about projecting jobs.

the time to act is now. that is why president obama laid out a climate action plan to cut carbon pollution and build a more resilient nation and lead the world in the global fight against climate. >> you can watch the entire announcement at 9:15 eastern time on our companion network c-span or you can watch it any time online at cspan.org. >> also the supreme court through out a conviction beige based on the ruling of carol ann bond who was accused of talking her husband's lover with chemicals. the court rules cannot rely on

the treaty. roberts writing the intent was to prevent mustered gas in wars not to prevent an amateur attempt by a wife to injure her husband's lover. that again from the associated press. here is the oral argument in the case from last november. >> we have argument first in case 12158 bond verses the united states. mr. clement. mr. clement: mr. chief justice, and may it please the court: if the statute at issue here really does reach every malicious use of chemicals anywhere in the nation, as the government insists, then it clearly exceeds congress's limited and enumerated powers. this court's cases have made clear that it is a bedrock principle of our federalist system that congress lacks a

general police power to criminalize conduct without regard to a jurisdictional element or some nexus to a matter of distinctly federal the president's negotiation and the senate's ratification of a treaty with a foreign nation does not change that bedrock principle of our constitutional system. justice ginsburg: but, mr. clement, you aid that -- that the treaty is valid and the implementing legislation seems to largely copy the words of the treaty without adding anything. so, it's a >> it is true the convention in the statute used similar terms

but there is one important difference between the convention and the statute and that makes this case different. and that is that the convention doesn't regulate individual conduct at all. >> but the convention tells the state parties go regulate individual conduct in exactly the way this convention regulates state parties. and then what the legislature does is as justice said mirror the convention as the convention thought about it. >> to be quite precise, this is article one section one, says that each nation state that signs the convention agrees in accordance with constitutional processes to pass penal laws that make it unlawful for individuals conduct that would violate the nation state. and i would suggest that making

that translation between what violates the convention if you are a nation state or individual conduct isn't obvious. when the government does that through penal legislation there is no reason -- >> why not? there can be no doubt that chemical weapontry is at the forefront of our foreign policy efforts right now. look at the syria situation alone. it would be ironic we have expended so much energy cri criticizing syria that this legislation would implement this was unconstitutional. but putting aside that, if is okay to regulate the possession

of marijuana, a proven local crime, why it is unconstitutional to regulate the use of something that can kill or mane another human being? a chemical that can kill or mane another human being? i don't understand where the disconnect is in terms of our federal and state system? >> i think it is down to the difference of ratio and lopez on the others. it is classic to prohibit things from commerce. >> there is no dispute the chemicals were transported along interstate lines. that is not even disputed in the case. >> but i don't think it was dusputed in lopez but the firearms had to cross state lines but the problem in lopez

wasn that the statute wasn't structured -- >> the government didn't even assert it below. it asserts it now but as we took the question the issue was rather the treaty supported the laws. >> that is right. we do think the government like a private party can wave a constitutional argument. we are not concerned about the commerce clause argument because we think it has the same basic defect as the treaty power argument. >> do you think and this goes back to the question -- could this treaty regulate individual conduct? could the treaty be self-executing? >> that is an interesting question and i think the court

need to answer it. i would take the position if there were a treaty that tried to propose criminal violations i would say it violates the constitution for the same reason this implementing legislation does. >> where would you find that into the constitution? if you go go back to the founding history it is clear they thought about all kind of subject matter limitations and james madison and others decided not to impose them. so where would you find that limitation in the constitution? >> i would find them in the anumerated power of congress. >> that is the treaty power. so you have to find a constraint on the treaty power. where does it come from?

>> if we had a self executing trety that reported on a state level you could call it a 10th amendment objection there might be an objection to that treaty. >> don't you think the word treaty has meaning? it is certainly true that going back to the beginning of the country there have been many treaties that have been implemented in ways that affect matters that otherwise would be within the province of the state. one of the original purposes of the constitution was to deal with the treaty power was to deal with the issues of debts owed to british creditors. there have been cases about the property rights of foreign subjects and the treatment and you hear about things moving across international borders. but until fairly recently, until

after world war two jergenerall that was the foreign state. can't we see something in what a treaty meant when the constitution was adopted? >> i think that is right justice alito and i didn't mean to answer the questions saying there is no limit on the treaty power whatsoever. but it is important to recognize there is an opportunity to leave for another day the question of whether the treaty itself is valid. sometimes it is non-self executing because the senate recognizes -- >> if you had been the president's counsel would you advise him it was unconstitutional to sign this? >> absolutely not justice kennedy. by its terms it doesn't do

anything do directly regulate conduct. i would have said mr. president i don't think this acquires us to have any law. but if we need that, the states are absolutely ready and able to shoulder that task. there is no state in this country that doesn't have a general assault statute that would be covered by this conduct -- >> look at the irony in what you just said. you said the victim -- many times went to the state police and said please, help me. and they turned her away a dozen time. they finally said go to the post office. this doesn't -- you are arguing that this comes on the states domain. in this case, it wasn't till the state referred her to the post

office that she got any attention. >> just gillsbourg, i don't think the government said that put us in violation of our treaty obligations. our treaty obligation is to make sure we have a law banning this. not to make sure that every use of chemicals is prosecuted. >> let me make sure i understand your test. you are saying with respect to every prosecution under this treaty a court has to ask whether the prosecution has a nexus to national or international concern. is that your test? >> no, that is not my test,

justest kagen. as i look at the statute, it can be saved by creating a jurisditional element from the phrase peaceful and non-war like. or if it has this character it should apply to the dual use chemicals it can't be constitutional. >> i am looking for a test. and i thought that was from your briefs. give me the test we are supposed to ask with respect to this case or other as to whether the prosecution is constitutional. >> it is whether the federal statute exercises a -- >> that sound like a factual challenge. i thought you said this was an applied challenge. >> the only release i am seeking

is to have my clients positivac. it may suggest this is unconstitutional but our claim -- >> you are saying if the statute extends to things we have generally thought of as police power that is sufficient? >> i would say if a federal statute exercises the police power, i mean it criminalizes conduct without a nexus of federal concern that statute exceeds power. that was the case in lopez. >> let me give you a hypothetical. tell me if your test makes is. let's say it is the same

convention but it relate to serin gas. there is a chemist out there making this gas. i take it is easy to make. and sends it through the ducts in the house and kills everybody. does that have a national concern? >> as i understand it applies to things on schedule one substances those things are always unlawful. what is particularly unusual about the statute application to something like the potassium or vinegar or whatever you is that in most of its possessions and uses it is lawful. and what makes it a chemical

weapon is when it is used interstate in a malicious way. >> this is my -- and you didn't run away -- in my hypothetical it is a domestic use. the chemist didn't like this neighbor and used the gas. you are saying the difference is the treaty makers found a category of chemicals more broadly. i want to know you are imagineing a world in when judges try to get in the head of treaty makers and saying we under there is a national interest in regulating this gas but we don't think there is an interest for this couple. it seems not very determinant and would have judges taking the place of the treaty makers in

deciding what is in the national interest. >> i would say our case avoids judges being put in that decision because we distinguish from and asked for court to do what they do in every other context which is to check and see if that implementing legislation is consistent with the basic chartering document. their theory is if the treaty is valid than the implementing legislation is somehow valid. think about the convention before this case on counselor notification. puts on obligation on any arresting official to provide information to the consulent about anyone arrested.

i can see how would have a force so every arresting officer is fully enterprised but it would not be consistent with the constitution. that same valid treaty could be validally implemented by chartering the state department to work with police officers on a state and local level. >> do you think it would be difficult for a judge to ask is there any possibility that there is any other country in the world that has the slightest interest in how the united states or any of its subdivisions deals with the particular situation that is involved in this case? >> justice alilo -- >> that would be beyond the ability? >> i don't think it would be

beyond ability. i don't think it would be bad to say would congress have the power to pass the statute and if the answer is no you should wonder why the treaty adds something to the power of the government. i think this is a different c context than holland where they took a bird out of the area. they violated conduct that was prohibited by the individual. >> is it too unfairly confining to your argument that you are suggesting something like a clear stating rule. like the states have their own

rights at a minimum they say so and we come to the question of saying if they can do it. >> this is the anti-clear statement case because the one place this convention talks about imposing obligations on individuals it is a promise by the nation state to pass penal legislation. it is very bazaar when the only way we reach conduct is a united states promise to pass legislation to say that the convention allows us to pass legislation that doesn't comport with the constitutional process. >> i don't understand how you distinguish the gas difference from the vinegar. why is it different? >> because i think the gas is more equivalent to something

congress would try to deal with like they did with marijuana in ratch. i think with the gas, put aside congress and the treaty, it maybe even under the war powers, the federal congress could say that is a chemical weapon and we will prohibit them from having that. the only thing that makes them chemical weapons is their malicious ways. if the federal government wants to regulate and prohibit the unauthorization of those i don't see why they could not do that

with or without the treaty. but these chemicals, rat poison, vinegar whatever it is, these are perfectly lawful and we don't think of them as chemicals weapon until used in a malicious way and then they become classified as such. it operates in a way that is not consistent with the fact congress doesn't have this police power. >> is the chemical used one listed in the annex to the treaty? >> i don't believe so. there are 43 chemicals and neither are on there. there is an important difference and perhaps an odd way of doing this but this is trying to regulate nouns: chemical weapons. it makes since to say gas is a chemical weapon but with respect

from harmless chemicals the only thing that keeps them from chemical weapons to chemicals isn't a verb. it is a noun and their malicious ways. if congress said there were ways that are weaponized they would have done better. >> we permit that in all kind of definitions of the criminal code. a dangerous weapon is anything you use to inflict harm on anything. i don't think my car is dangerous but if if use it for purpose that is dangerous it turns it into a dangerous weapon. i am having a problem with the

noun/verb difference. why isn't the intention burning of a human being using chemicals the senessence of what this tre is doing. you want to add on the war-like purposes. but the treaty permits perceptions for peaceful purpose. >> you might be right the criminal law takes objects that are otherwise innocence and say they can be used in a malicious way and criminalize it but that is mostly state and local level and at the federal level you need something with a distinct federal concern. >> the treaty power. >> i don't think the treaty power especially with the disconne disconnect between what the

treaty does and the statute. i don't think that nation states attempt to commit suicide and get rodents out of their house. any work that is done in the statute by drawing that aanalogy is done by the statute. >> if the terrorist took these chemicals and put them on doorknobs in washington -- would that be regulated? >> we would say under our construction that is covered. >> because it is war like? okay. >> we would point out that same conduct would be covered directly by federal statutes that target terrorism directly. no matter how you decide the

case it would be covered by two statues. if you don't accept the conduct is still covered. when you think about what the convention is after it isn't ms. bond conduct. i don't think anybody said there has been a deployment of chemical weapons in pennsylvania and i hope they step up and prosecute the deployment of chemical weapons. >> it is clear that the treaty was after enforcement as to individuals with respect to all prohibitions. the treaty said go enforce this as to individuals and do it consistent with your constitutional process and congress passed a law that is

consistent with the constitutional processes. >> neither of which will surprise you. one is -- >> i am still trying to figure out why. h holmes dealt with this saying there was a necessary and proper clause that functions to allow congress to give effect to that tra treaty power. this was a case where there was a prohibition on the states and sharing that power and he says it is invisible radiation you think come from the structure of the constitution and he rejected this argument. the same one you are making. >> justice kegan, i think you have to read them in the context the treaty had before it and the

argument it had before it. missouri made a state argument against holland that no modern litigant would make. they identified a treaty between state law and federal law and said we won and holmes said the treaty under article six is supreme and not the other way around. but he said this other sentence saying if the treaty is valid than of course the legislation is. he had a treaty that enforced prohibition with penalties so in that case it was right that the treaty and the implementing legislation stood or fell together. that is not the case here if i could reserve by time. >> thank you, council. >> mr. chief justice and my i

appease the court. the framers gave the federal government control to be sure it could knit the nation together as won and allow it to be fully sovereign in the foreign affairs. this can't be squared with what the framers made or this court's practice and it would compromise foreign affairs and national security interest of the first order. >> let's suppose there is an int international convention to insure that national legislatures have full authority to carry out their legislation and congress passess the statute saying we have the right to enforce local crimes pursuant it

this. any problem with that? >> there maybe. let walk through this. it seems not imagine that a convention would be ratified by two 3rds of the system. >> it always doesn't seem imagineable you would bring this. >> i don't know why you would look to the national legislature to say we would not do that >> the framers thought the 2/3rds was important to protect the interest of the state. >> at a time when the senators were elected by the state lea y legislatures. >> beyond that this court has said that there is an increase and never held a treaty exceeds the federal government's

constitutional authority and never held a provision exceeded this authority. >> if that should happen, it will be okay. >> no, my answer is this. the court has said there is an investigation into whether it is a proper subject of a treaty. ...

and i think the nations will say we don't want treaty parties to deal with weather whether it's somebody in the state or somebody in that province who has the authority so every signatory must have the authority. it doesn't strike me as not reasonably related to national obligations. see here mr. chief justice this is a valid exercise of the treaty party and there's no daylight between implemented legislation in the obligations. >> i know. >> and therefore that may be a question that the court has answered and different case with this case doesn't present --. >> the purpose of my hypothetical is to find out if there's any situation in which you believe the erosion or intrusion by the federal government on the police power could be a constraint against an international treaty. >> there may be an out of bound

but this case is nowhere close to it and it can't be a too local exception to the treaty power. >> that you say there may be an outer bound but this case is not one of them you are subjecting yourself to the same criticism that is leveled against the other side that you are posing a case-by-case evaluation with respect to each treaty. >> i think your honor the question here is whether this legislation el-adly implements a valid treaty. the treaty is valid and the treaty is valid on its case. >> i would like to explore your proposition that there's no daylight daylight between the treaty itself and the implementing legislation. it seems to me there is a lot of daylight between it so let's take and i give this example not because it's controversial but because it relates to an area where the federal government has never been thought to have

authority namely in family law. there is no federal marriage, federal divorce, federal adoption. it's all in the state law. let's assume that an international treaty is approved by two-thirds of the senate and the president which requires the states to approve same-sex marriage, all right? now if that were a self-executing treaty, same-sex marriage would have to be approved by every state. if it is not self-executing however, it will be up to congress to produce that result. congress would do it or could do it at least by having a federal marriage law. and then you would have to have a federal divorce law and i suppose a federal adoption law. i think that there is a big difference between just doing it

through a self-executing treaty and dragging the congress into the areas where it has never been before. i think there is daylight. between the treaty and requiring the treaty to be implemented in the fashion that you assert is necessary here. >> i would like to make a structural point and that is specific point about the case. the structural comment is this. if it is the case as your honor's hypothetical conceits and ice believe the petitioner concedes that a self-executing treaty that requires the president to negotiate and two-thirds of the senate to ratify it can impose their treaty of that kind and has to be the case that a nonself-executing treaty that has the same approval the same two-thirds ratification and the additional structural protection of passage of legislation by the senate and the house and being

signed into law by the president can do with a self-executing treaty can do. has to be the case. >> i don't think it has to be the case. i think there's a great difference between requiring the states i self-executing treaty to permit same-sex marriage and dragging the federal government or allowing the federal government to intervene in this whole field of marriage divorce adoption and family law where the federal governmengovernmen t has never been. >> now with respect to this treaty with all due respect i don't think there's any daylight with respect to this treaty. section 29. eight does what the treaty obligates united states government to do in the notion of the treaty obligation can be satisfied by relying on the states to enforce their salt laws which is i think the core is my -- of my friends. >> that's the part.

i can get my mind to these dramatic questions here at the local police and some inherently state power to make a treaty be on the of the federal government it's a very big question. i'm not there yet. the reason i'm not there is because there are some works in this treaty called other peaceful purpose. we have to interpret those words in the same words are in the statute. my question to you is what reason is there to think that those matters fall within back? it's infinitely law. a few things on it are in homes opinion and a great case on attempted murder where he talks about being a small boy to move the barrel of kerosene with a candle in it and a lid so it

will burn down the barn after a few hours. the kerosene is a chemical. it talks about a case where a person went to a racetrack and gave a horse a poison potato. he talks about a case involving somebody else trying to light a match which is a chemical and setting fire to a haystack. we can all think sadly of athletes, lance armstrong at least accused of unlawfully taking drugs. i mean why do we think matters of list a fall within those words outside the words other people -- peaceful purpose even though their unlawful and by the way can anyone say to the drafters of the convention i found nothing in this brief on the point or did anyone tell congress that poison potatoes performance-enhancing drugs, the

example that justice alito used last time you give a vinegar to a goldfish? i mean these are all chemicals not in the annex and they are absolutely nothing to do with chemical weapons and why do we think that we have to get beyond that fact? >> that's a very important -- important point and he gets to the heart of what the national interest of is in this case with respect to this implementing legislation and the harm in the process of line drawing. the petitioner is asking as a constitutional law or statutory construction that courts on a case-by-case basis after-the-fact ad hoc judgments. >> there's an easy way out of that. the chemicals involved in the annex but you are not prepared to say that i guarantee you. i guess once we get outside the annex we either have to draw lines or we have to say this

encompasses the poison potato the poison goldfish the small boy with the candle. the performance-enhancing drugs. i would say judges are here to draw lines and throwing all those things into it or drawing lines it's better to draw a few lines. >> we can talk about hypotheticals but the key point about them is that they are hypothetical. >> no these are really cases by the way. the poison potato and a vinegar for the goldfish. >> they are not real cases because you haven't prosecuted them yet. [laughter] if you told ordinary people that you were going to prosecute ms. bond for using a chemical weapon they would be flabbergasted. you know us so far outside of the ordinary meaning of the word.

the statute has an enormous breadth. anything that can cause death or injury to a person or an animal. would it shock you if i told you that two days ago my wife and i distributed toxic chemicals to a great number of children? [laughter] >> your honor. >> we gave them chocolate bars. chocolate is poison to dog so it's a toxic chemical. >> there's chocolate all over the place. >> with all due respect this is serious business. with all due respect the line that the petitioners asking. >> i want your answer. my questions is the question of your answer and the question i want you to address yourself to is the problem of once you depart from the annex is in defining the chemicals you throw into a list of thousand miles

long and you can tell joke after joke but it's not a joke. it's so easy to make up examples that seem to have nothing to do with the problem of chemical weapons like the syrian problem. >> i understand at your honor. >> so what is your answer? >> if you permit me answer the question this way, the line that the petitioners asking the courts to draw is whether the particular use is war links or whether it constitutes a peaceful purpose under this convention and under them fomenting statute. one of the very things we are trying to sort out right now in syria under the chemical weapons convention is where the line is between peaceful uses and warlike uses. this phrase peaceful uses is not

only in the chemical weapons convention. it's in the nuclear nonproliferation treaty and we are engaged in sensitive negotiations right now under the nuclear nonproliferation treaty trying to draw exactly the same line and it would be terribly unfortunate i would submit if the court were to announce in the context of this case as petitioners asking the definition of what warlike constitutes it could have an unfortunate bearing. >> can you tell us what the line is? >> the framers of the convention and congress in implementing the convention made a judgment that there needs to be a comprehensive ban and he can't be drawing these kinds of lines. >> general can i ask why that is i mean because this convention and implementing legislation is very broad in its broad because it applies to a very large category of weapons and it applies to a very large category of uses, of conduct.

so what were they thinking about about why it's not more limited with respect either to the chemicals or to the conduct? >> with respect to the chemicals i think they made the judgment he cause you can't predict in advance how chemicals are going to be used and how toxic they will be in particular combinations and how dangerous they will be and therefore you need it comprehensive definition. >> also you are telling me i am attempting to draw the line. that's just what is going to do and if you are saying is against the national and security interest which is the first time i've heard that that's against the national interest of the united states for me to attempt to draw such a line then i guess the state department had better file a brief explaining why or why you want to push this case. is that what you are telling me that if i write the opinion that i think a lot of requires that i'm somehow hurting the national

security --. >> i think there's a real risk in defining a line between warlike and peaceful purpose. >> when the convention is purposefully drafted broadly and there are additional risks in terms of the very act of bringing this process of line drawing to bear case-by-case ad hoc judgments about what constitutes a violation what doesn't is going to undermine the ability of our negotiators to make treaties in the future. >> that you did not give a line to the justices question whether the treaty and intruded on the federal structure and the treaty where the president has set aside any state law that is in his view contravening the national interest. you have given us no principle the other way. >> what i think justice kennedy would suffice in this case for

the court to conclude that the two local limits that the petitioners advocating here as applied case-by-case to a local limit is not one that is inconsistent with the constitutional structure because if you go back to the framers it is clear from the era of the framing that the framers intend to give the national government the power. >> isn't the precip and that a treaty cannot be inconsistent with their our constitutional structure? >> this court has said, this court has said that the question in the treaty power case of whether the subject matter of the treaty is a proper subject for the treaty. that's a question the court can ask although i'm not prepared to draw specific line today there may well be a line to be drawn. but here the petitioner has conceded and i think all of us would agree this is the proper subject of the treaty. >> but there are a lot of

treaties as justice alito pointed out after the world war ii era where you have international conventions affecting everything. we have international conventions on the abduction of children, international conventions on human rights. they cover a vast swath of such a matter and it seems to me the only thing you are saying that is a limit on what the treaty power can be a source for some determination. no less arbitrary than the lives of the paper -- people are asking us to draw in was appropriate under the treaty power and what's not. i would like a fairly precise answer whether there are or are not limitations on what congress can do with respect to the police powers. authorities asserted under treaty, is their there power to intrude upon police power unlimited? >> the way i would answer that mr. chief justice is the treaty is valid. >> okay the treaty is valid.

implementing legislation that doesn't go beyond the treaty is valid even if it addresses the subject that would otherwise be within the police power of the state area that was the judgment the framers made and that's this case. because the treaty is valid this statute implements the treaty word for word implementation of the obligations. >> so you would rather have the court determine if you're concerned about the intrusion under these powers whether treaties are valid or not whether particularly implementing legislation is found or not. >> i think your honor because it's conceded in this case that the treaty is valid and the petitioner has not elaborated any argument in principle that would allow this court to make a judgment about when an exercise in the treaty power is valid and when a distance you have to take as a given in this case. >> the point of the hypothetical

is in trying to get your general principle. i can imagine treaties if you would say within the treaty power particularly in the post-world war ii era but that could give rise to amending legislation that i think would be extraordinary from the point of view of the framers and the power that he gave congress to intrude upon state authority. >> there is a structure limitations with as i said earlier that two-thirds ratification requirement is real with respect to one of the treaties your honor just referred to the convention on civil and political rights. of course when the senate ratified it did use its power to make reservations to preserving our federal system so that operated in exactly the demand of the framers intended to protect the heart of federalism and there are about a thousand ratified treaties on the books right now. we don't have the congress using the treaty power to usurp the role of the state.

>> the whole point is that some people think we do have exactly that in this case. usually when we have a case that implicates significant and serious bilateral concerns we get a lot of creeps from our treaty partners. is there any concern that has been expressed in any concrete way by them about whether mrs. bond is prosecuted blacks we are not saying, don't think anybody would say whether or not ms. on and is prosecuted refers to an international incident. the question is whether congress has the authority to pass a conference of dan and there may be applications on that combines a band that don't advance the national interest in it for found or poignant way and we understand that but the question is whether congress can pass a ban implementing a treaty. >> do we have an amicus brief from almost all of legal counsels of the state department republican and democrat talking

about how if petitioner's argument were except that it would severely damage the united states ability to enter into and to negotiate a treaty? >> that's right and that's certainly true. >> the people that have worked them in national brands of government would like to have as much authority as they can get to negotiate treaties. we are concerned about limitations on others. do we have any briefs from state legislators or state authorities concerning intrusion on their prerogatives? >> your honor this convention is a convention that all the nations on earth have signed. the legislation that we have a knack did is not a legislation that over 120 other nations have enacted as well this court has issued decisions in recent years holding that there are some limits on congress's power cases like lopez and morrison in the

tourney. there have been legal commentators have written articles saying that could be circumvented through the use of the treaty power. do you agree with that? >> i don't think there's a yes or no answer to that. because i don't think the question would be what of the treaty power encompass? would it be a circumvention? >> back to the word circumvention. could you reach the opposite result, could congress regulate the possession of a gun within a school zone by entering into a treaty and authorizing such legislation? >> the question that case would be whether the treaty is a valid exercise of the treaty? >> it's and underlying -- i don't mean to cut you off but at some point you seem not to see a problem that i think i see and the problem underlying it if you get into the treaty area is this. given the power as there is in the majority perhaps some

self-executing treaties in principle your position constitutionally would allow the president and the senate, not the house, to do anything through a treaty. it is not specifically within the prohibitions of the rights and protections of the constitution. that's missouri v. holland and i doubt in that document the framers intended to allow the president and the senate to do anything. now you ask us now to say whether the answer to that question is yes or no. we still have a democracy in other words in which the house is part. if you are carrying it to an extreme that's where you are and i'm worried about that and i think others are too read so i ask you isn't there an easier way to deal with this case? and you tell me, no, no because it will interfere with some problem of foreign affairs that was never mentioned in any brief

or at least for the first time. now there you have an expression of uncertainties at the moment and anyway you want to reply to that would be helpful. >> i understand the point justice breyer. i do. i understand that there something that seems attractive and trying to think about this is statutory construction but i'm trying to point out that it's not as easy as it seems, that there are real risks to trying to draw the line at that kind. and guess i understand that. that does raise the stakes some and i understand that but i think that is real and that risk is real. the risk that the state state department legal advisers pointed out is real. >> before the time is out you have an answer directly why the bill of rights does constrain

the treaty power and implementation of it. why is the bill of rights different from the federalism concern expressed in many cases? when you say yes there is a check. the bill of rights as is a check but not the 10th amendment. >> there's historical answer to that justice ginsburg which is that is how the framers understood it. i think that's clear from what hamilton said and we have in our brief and others of the framers understood that is where the line would be and i think the reason for that is that the treaty power is itself a greater substantial independent power of the national government and it is not constrained by the local limitatiolimitatio n. that's the lesson of the air of the framing that there is no local limitation on the exercise

of the treaty power. >> do those quotes pertain to self-executing treaties? yes, there is no limitation on what the president and the senate can impose as a self-executing requirement namely that the states must give back to british citizens property that they confiscated or whatever else but it's a different question whether a treaty can expand the power of the federal congress into areas that it has never been before. that's a separate question and neither hamilton nor any of the other quotes you refer to address that question. >> so long as the treaty is a valid exercise of the treaty power if all you do is implement the treaty in hyperbola is a valid exercise of congress's power and i said earlier that this is serious business. i understand the principles of

federalism are serious business also that federalism is a two-way street with respect to the exercise of the treaty power. the framers made a judgment that this power was going to be exclusively in the hands of the national government and it needed to be exclusively in the hands of the national government in order to ensure that the united states could need a full sovereign world stage. now it is true that subject matter is different now than it was at the time of the founding but the framers understood that. they were careful not to impose subject matter limitations on the treaty power because they were wise enough to know that they could not foresee what might be important for the united states to be able to negotiate on a world stage nor to participate fully as sovereign. the chemical weapons convention is a deep illustration of exactly why the framers were

wise in showing that there were not subject matter implications on the exercise of the treaty power. chemical weapons convention and the united states leadership in the chemical weapons convention has made a big difference and showing that this norm which is in our national interest are our foreign relations interests and our national security interest is a norm that the nations of the world could agree to and we are then in a position to have leverage to insist that the nations of the world abide by it. this is leverage we are trying to exercise right now is critically important and i respectfully submit that the line of the petitioner is asking this court to draw is not consistent with the intent of the framers, with this court's president or with the national interest. thank you. >> thank you general. mister clement you have for

miniature may i. >> thank you mr. chief justice. just a few points in rebuttal. first of all this and its role the ratification of treaties cannot read a sufficient political check and one reason is that sometimes the precise role they play as a check is to make the treaty nonself executing bond take justice scalia's hypothetical example in an international treaty that purported to regulate marriage rights one thing the senate might do is to use their spending power to get the states on board but we are not going to impose a national solution so it doesn't make any sense to say that a nonself-executing treaty even if it's valid guarantees the validity of enacting legislation because some of the reason they make the treaty nonexecuting is to preserve federalism. a second is to respond to the argument which i i think i've already explained why it's not correct but the suggestion that there's no daylight between the convention and the statute.

there is huge daylight in the daylight is precisely whether it affects individual conduct in and how it affects individual conduct raid with all respect everything on justice breyer's list a at is not stuff that i think of bill gates the convention at all but yet under the government's unwavering theory that you can't make any limitations on the statute that is all covered by the statute. there is your daily. i respectfully insist that are argument is when we had at this. you have to understanunderstand the way the peaceful is used in this term of art. that's not the conduct we would condone but i don't think we have violated our pledge to reserve an arctica for purposes and that's the same way we would like you to interpret the statute. the government says you can't do that because that's going to mess up is going on in syria. with all due respect i assume that the issue in syria is whether or not the nation-state of syria is doing something that

would violate the convention if in fact they were signatory to this convention. if you want to make clear you are only talking about individual conduct i think you can solve that problem right there but if i'm wrong and the only way is the government assures you that you could make this legislation work is to have it be an exercise of police power well then the answer is that the legislature is. >> can i ask you mr. clement and this is a variant of the hypothetical i gave you before but it quizzes on your statute tory pointed peaceful purposes. suppose that ms. bond use sarin gas and sent it to the docks of the house would you say that the peaceful purpose? >> i think it has to do more with the particular quality of sarin gas the fact that it's on schedule a and possessive for any lawful use or what makes a difference is what puts it over the ledge from being an ordinary chemical to a chemical weapon is precisely its use.

just as kagan you have to great question. what was congress thinking when they did this? with respect the congress wasn't issued -- focus on this issue at all. when you look at the legislation the chemical industry and others put in front of them the possibility that there was a fourth amendment problem with the inspections of chemical production facilities authorized in the convention. when congress have the constitutional problem in front of it they had all sorts of provisions to deal with the constitutional concern. the future miss bonds of the world didn't have the resources that the chemical industry did so they do never to that. that is precisely why some kind of clear statement rule would make perfect sense to make sure congress doesn't exercise police power when all it thinks is doing a simple meaning at treaty. the last thing is to say about the state department. >> your statement about the treaty? >> i'm sorry. >> thank you council. general. the case is submitted.

>> next missouri senator claire mccaskill holding the second several roundtable discussions aimed at finding raben sexual assault on can't college campuses. we'll hear from represents that the justice department college campus officials and victims advocates. this is two hours and 15 minutes. >> thank you for being here today. i'm pleased that we have a great group around this table. i expect that senator tester and

senator blumenthal will join us at some point during our discussion and we will break from what we are doing at that point and make sure that their questions are answered and they have an opportunity to put anything on the record that they would like. i want to start by welcoming the participants here today. this is the second roundtable in a series of three focusing on the complex and various issues that surround sexual assault on college campuses. two weeks ago we had a really productive discussion on the clary act and the campus act. in june 23 we will be holding the third roundtable discussion on something that i am very concerned about and that is the interaction, coordination, working collaboration between law enforcement and university campuses in terms of holding perpetrators commonly accountable. i am holding these roundtables in order to bring together diverse group of stakeholders to hear about what is working and what is not, what we can do to

improve the response of sexual violence on college campuses where we may need to legislate and maybe where we may need to unlegislate. in addition to these discussions we are working on analyzing the data collected through a survey afforded and 50 colleges and universities launch last month. we hope to have the results of that survey which will be statistically valid, to share with my colleagues in the senate and the american people in the coming weeks. today's roundtable will focus on the world that title ix place in addressing sexual violence. i know that when many people think about title ix they think about the in the context of women's athletics. but it is so much more. it is part of our federal civil rights scheme that ensures students have equal access to educational opportunities, free from sexual discrimination. this also means an educational environment free from sexual harassment and free from sexual violence. under title ix in the

regulations that have been developed and implemented there are numerous compliant enforcement -- compliance and enforcement tools available to school students in the government. i concern is that either due to a lack of training inadequate resources and little proactive enforcement which may directly be related to resources these tools are not being used to their fullest extent. even when they are being used there is always room for improvement. i'm hoping the discussion today will bring some new ideas and perspective to the table and ho ho ho help inform the work that i and my senate colleagues including senator gillibrand and senator blumenthal are doing on these issues. i am very pleased -- there is senator tester. senator tester would you like to make any comments as we began? this is the part i was going to say since they are present asked them if they would like to make any any remarks and your any remarks in your presence so would you your presence a would elect making a remark? >> first of all thank you for

being here. this is an issue that unfortunately we shouldn't even have to be talking about. it should be something that's handled in a way that treats people with dignity and obviously we had problems at the university of montana. i think that is squared away but we have to remain diligent. my daughters are both out of school. i have grandkids that will soon be teenagers. >> your really old. >> i know i am. and hopefully we will be looking at furthering themselves in society by getting a degree, a four-year degree i hope. the last thing i want to have to worry about or have them worry about is what might happen on any of -- university campus. i look forward to hearing what you folks have to say and as i came in you are talking about

solutions and claire was talking about solutions and that's what i'm here to talk about so thank you. >> also the department of justice it's important for the public to understand that the departments role in enforcing title ix. i think for too long the enforcement process has been shrouded in mystery and we really need more accountability and transparency if we are going to ensure that colleges and universities understand their responsibilities and are in compliance with title ix. i want to give a few more ground rules for today's discussion. i know that the department justice has ongoing investigative work that they are doing and to protect that process ms. jocelyn samuels cannot answer questions about ongoing cases hypothetical fact patterns or speculate about the applicability of policies to particular situations. i know that ms. samuels would like to take a moment to introduce herself and provide background. i'm so pleased that she is here today. this is extraordinary that she is participating along with all

of you in a way that we can be collaborative and corporatist and it really signifies how serious this administration and particularly the professionals at the department of justice how much they care about this issue so thank you so much ms. samuels for being here today and why do you take a few minutes to speak to the group and then we can continue. >> thank you so much senator. i'm so pleased to be here today with you and with senator tester and with my co-panelists. i'm so grateful to both of you for your commitment to this incredibly important issue and to all of you at the table for your commitment to doing something to really address the pervasive and horrible problem of sexual assault on campuses. as senator mccaskill said today, i am not legal to address individual fact patterns or hypotheticals because we want to ensure that we are able to conduct investigations of complaints and cases with the

kind of independence we need in order to be able to ensure we are respecting the court system but i'm delighted to be here today to talk generally about this problem and to answer whatever questions i can. i don't think i need to tell any of you that sexual violence is a form of discrimination. refers to physical acts that are perpetrated against the persons will or where a person is incapable of consent. it can include rape sexual assault sexual battery sexual abuse and sexual coercion. i use the term sexual assault to refer to all of those those. there are obviously a safety issue but importantly for the department of justice and the department of education there are also a civil rights issue and we have tools that we are committed to using to the utmost extent in order to ensure that people's civil rights are protected on the nation's campuses. we enforce a variety of statutes that have relevance to the issue of sexual assault.

one of course is title ix of the education amendments of 1972 which we enforce in conjunction with the department of education and other agencies that fund institutions of higher education. we also enforce title for of the civil rights act of 1964 which bands among other things sex discrimination by public schools and public institutions of higher education. in addition we enforce section section 14141 of the violent crime control act and the safe streets act. those two statutes enabled us to take a holistic approach to addressing sexual assault because it gives us jurisdiction over sex discrimination by law enforcement agencies and a senator tester knows we worked cooperatively with the university of montana at missoula the office of public safety there are and the missoula police department to

enter into agreements to address the handling of sexual assault complaints by students and members of the mozilla community using all of the statues. i think our hope is that those agreements will be a model for other universities around the country to be able to adopt the kind of proactive steps that are necessary to really address these problems. so just a word on what those proactive steps are and the provisions with the university and the law enforcement entities in montana one thing is a requirement that universities have clear and accessible policies that comply with the law. it is critical that students know their rights and that students, faculty, staff and everyone on campus know their responsibilities when it comes to dealing with sexual assault. with inclusive policies, without inclusive policies too often

schools treat victims of for example same-sex sexual assault or dating violence as if they're all the same, perpetuating stereotypes that sexual assault is only perpetrated by men against women or it's necessarily a product of stranger rape. it is neither of those things in schools need to have the kinds of culturally inclusive policies that enable them to deal with each individual case on campus. they have to properly disseminate these policies so people are aware of them. the best written policies in the world are not worth very much if students don't know where to go when they have a concern. that's something that the university of montana has not done very well. when we did our investigation we discovered they had a different policies that referred to sexual assault and sexual harassment in various capacities and it just wasn't clear where students were supposed to go or what the processes of the university were supposed to follow were.

pursuant to the agreement they have now created a policy that provides for uniform and clearly disseminate way to address sexual assault. training is also critical for school officials, for students, for anyone involved in an investigative work disciplinary process. people really need to know how to understand, how to investigate a complaint of sexual assault, how to treat victims with sensitivity and respect and what kinds of remedies they need to institute when they find that sexual assault has in fact occurred. in montana we train law enforcement on investigative techniques. our office of violence against women and the deputy director allison randal is here with me today does extensive amount of technical assistance to campuses

across the country which includes training on various ways to address sexual assault, domestic violence, stalking and other forms of sexual misconduct. ensuring a prompt and effective response to complaints is a critical part of an effective way to deal with sexual assault. we look at how campus law enforcement and campus officials respond to complaints of sexual assault, how they treat the victims and how they treat the perpetrators as well. again at the office of violence against women the violence against women act provides programs that are applied for training for sexual assault response teams for sexual assault nurse examiners, for training juan forstmann on trauma and the special investigative techniques that they need to take with people who have been subjected to this invasive than truly horrible form of assault and again i'm happy to talk more about those

programs. finally if they find sexual assault universities need to take affect of correct action. that means stopping the assault, preventing it from occurring again and limiting the impact of that assault whether it's on the individual victim or on the campus community as a whole. individual relief can include enabling students to change their course schedule, retake classes without penalty, additional time to prepare for exams, expunging grades that were reduced by the trauma that they were suffering. institutional and campuswide responses can include improving training, changing policies, increasing monitoring of spots on campus were sexual assault has occurred, ensuring that everyone on campus knows their rights in their responsibilities with regard to addressing sexual assault. just two of the things that i wanted to mention that we do. one is that in addition to working directly with universities we filed amicus

briefs in federal court to address the legal standards that apply to sexual assault and i think those have been effective in shaping the way in which the law has been applied. we also work great closely as you know with the office of the civil rights the department of education both on investigations and enforcement actions and on development of policy guidance and anticipate that we will continue to do so. in closing i just want to again thank you so much for the opportunity to appear. thank you for your commitment to this issue read i really look forward to today's discussion. i'm not together we can come up with effective solutions to this ongoing problem. >> thank you. we appreciate you being here. senator blumenthal has joined us. he is someone who has worked in this area. he is our day at a series of roundtables in his state similar to what we are doing but all on different connecticut campuses and he and i are working as

closely developing legislation going forward. would you like to make a few comments center blumenthal? >> just to thank you senator mccaskill for your leadership on this issue and for convening a series of roundtables that we are we are having and thank you to everyone of you for being here today. i have a number of questions. i'm going to wait until we finish with some more statements but thank you for all your great work on this issue and coming together in this way. i think we have a tremendous opportunity, huge potential to really achieve some lasting and vitally needed progress in this area so thank you for all your great work. >> thank you senator. why don't we go-round the table and start over here with katie and go clockwise. if you would identify yourself and where you are from and take a moment to explain your involvement in this issue and

what capacity you serve. >> my name is katie eichele. that is our sexual assault stalking program on our campus. i also had seven years of being a judicial investigator for the university so i have the unique perspective of being student conduct officer examining and writing publicity investigating cases and now i'm in more of an advocacy role and so working with our campuses on policies and prevention efforts. >> to be clear katie were you investigating title ix complaints? >> i was not necessarily investigating title ix complaints. >> good afternoon. i am deborah noble-tripplet from university system and i'm here today leading a task force or my president tim wolf who is very passionate about this topic and would like to ensure not only

that are for campuses and our system are campuses that are safe and have the appropriate communication policies, the appropriate prevention programs and the appropriate training but also that we have a culture of respect and driving much of the work on the task force that was formed in february for our university is an effort to evaluate all of our policies all of our practices and all of our investigatory practices as it relates to both mental health issues which we know can either be on set from the trauma of a sexual assault but also to look at what we do for not only victims but those who are alleged perpetrators to ensure due process. so we have been extensive in our efforts and are looking to become exemplars of best practice in the months and days to come.

>> hi. thank you for having me. i am anne hedgepeth. e. w. is a national organization with 170,000 member said supporters 1000 branches in 800 partners across the country. in addition to the advocacy work that we do including issues like title ix campus safety access to higher education we also support women who are pursuing higher education by giving out $4 million in fellowships and grants every year training in working with women student leaders on college campuses and also conducting research on topics like harassment and violence on campus. >> thank you. >> i am jocelyn samuels and i wonder if i could introduce my colleagues who are here with me. dan goldberg is with the office of legislative affairs allison randal is with the office of violence against women and becky monroe is also in the civil

rights division. thank you. >> i first want to say thank you so much for having me here and for your leadership on this issue. it means so much to survivors to see you taking this on. my name is dana bolger and i'm a recent amherst graduate and the founder of a grassroots student led campaign to educate students about their civil rights under title ix to an education free from sexual violence and harassment. >> hi there. my name is john kelly and i may senior at tufts university and the special projects organizer. i work alongside dana. i -- finished up a rulemaking committee on the depart and of education with cats here and i'm a trained rape crisis counselor for the state of massachusetts. i my name is cat riley and i'm according for the university of texas medical branch.

i have been working with student conduct sexual assault cases hearing those for nine years now. i've worked at five different institutions. a new career was really worn april of 2011 and that's the title ix coordinator. my role became that at that time and we have been pursuing the educational pieces, training, victim advocacy all of those issues in each of the schools that i've been at so trying to be very inclusive in that process. >> i'm horrible at technology i will say that right now. i am lindy aldrich. i bring a unique perspective to this. we are legal aid provider massachusetts and we have a second office in oregon. we serve over 400 victims of rape and sexual assault the year and we specialize only in rape and sexual assault. we are generalist lawyers are given the population is so young

education became a massive part of our practice. and the managing attorney as well so i hear almost every case that comes through our doors. what we realized after 11 years of being open is a we have a huge amount of education knowledge because we work with victims in the disciplinary hearings. we asked for combinations and vital -- file complaints really found this instead of sitting on basically her strategies we could go out and teach them so the last four or five years we have been working with campuses. we also work closely with violence against women and the teach with mississippi coalition and sexual assault. we do a lot of work with them and working with campus grantees and i do consultation with schools all over the country. i bring kind of a varied experience and not only education but the training on the higher ed site as well. >> great. i have got far more questions than we have time but i also want everyone to feel very comfortable jumping in. this is a discussion. this is not a formal hearing so

please contribute when you've got something to say. the worst thing that could happen is for us to finish a couple of hours of this and you walk out of this room saying boy they need to know this. we are here to listen and learn and not pontificate. i will start with a few questions and i will turn it i will turn it over to my colleagues asked questions that you should go comfortable asking each other questions along the way as long as we are respectful that ms. samuels probably can't answer a lot of them and you may want to ask her about specific cases or hypotheticals. let's start with what institutions are doing now. what i have been surprised about as i got into the weeds on this is how different every campus is and how they are handling this issue. and that -- now i know there was a i think a very competent set of guidance besides the two dear colleague letters that have come

out from justice. the q&a that came out of -- at the end of april i thought was remarkable in terms of how conference of it was and to me it gave a lot of guidance on a lot of different topics. but what i want to try to chirla down on today is what are the things that we should legislate about how institutions are handling this and what are the things we should avoid legislating on because not every problem lends itself to a legislative solution. sometimes we have universities checking too many boxes. meanwhile they are not really getting at the essence of the problem which is how much do students know and do we have counselors? we have got to manage so but my start first with this.

right now universities have 60 days to complete an investigation. is that long enough? do we need to look at the 60-day time limit on an investigation in any way? >> i would be glad to speak to that. 60 days in terms of the hard work of the investigation is adequate. i've done cases that involved 45 men and 60 women and they facilitate that within 60 days. one challenge that has been done respondent is how far up the ladder needs to go. can it be handled that your particular school or does it need to go to general counsel at the higher level and then how much longer that takes so that's a bit of a challenge. in terms of the investigation itself but never had a problem with the 60 days. >> anybody else have a problem on the 60-day requirement? >> i would add one of the things we often hear is that there is

confusion as to when the investigation ended when they have moved on to the next step in the process and that's something that has been made clear in guidance to communicate that with everyone involved it at the end of the day, 60 days can feel like 90 or 180th communication lines are not open about the way the investigation proceeded and what stage that processes then. so beyond your initial question but i do want to emphasize clarity would step in the process you are and can impact what 60 days means and looks like to a student involved in the process. ..

more adequately, but the unfortunate reality is right now there is not a lot of guidance about how the policies can be the most inclusive. i think that women are talking about households, we should come up with policies that are truly gender neutral, policies that would be able to correctly adjudicate a same-sex sexual assault the swing to women are two-man. i think that is something that

more guidance on would be really helpful. >> i wondered -- i'm sorry. >> go at. >> just a couple of things. i would love to claim credit for the q&a that just came out and for the prior policies. those actually were drafted by the department of education. we consulted on them and have a lot of input, but i think that they deserve the credit for their release, although we certainly agree with the inclusive of the point and with many of the others. the one thing i say about legislation just globally is, i do think that there is a value to uniform standards, but what we believe is, universities have to engage in a process that is the wrong with their communities , with their stakeholders to address the kinds of campuses that they are, the kind of communities that they are and, the nature of the problems that they find. and that is why, for example, i

think it is very difficult to have a model sexual harassment and assault policy that works for every institution because not only does it not take account of the particular needs of a campus, but it is also, by virtue of the process of engaging that i think university officials can learn what needs to be done and really ensure credibility and buy yen at the end of the day. >> i would love to build on -- that is a great segue into what i was going to say. i think modeled policies, but checklists and protocols have been, i think, well received as a part of the not alone launch. there are resources that are little more hands-on. as a cue was incredible, useful, a detail. i hope schools are reading it because it really does bells some things, but it came along with a confidentiality protocol. i think there will be a model and now you were suggestions on how to develop one with local

law enforcement and service providers. those are tools that when provided on a national level, i think, make a big difference to administrators. students feel empowered when they can take that. at the end of the day, getting that information to schools is key. we probably have good actors at the table, but we also know -- for example, we have block -- have not collected the names of coordinators' until it will start happening this coming year our we getting this information to schools? a really hope that we can figure out if we are going to develop some of these things and talk about the right things to develop the we also talk about how we get that information to schools to use. >> it is incredible to me that we require k-12 to report the title ix coordinator, but not colleges and universities. shouldn't we require colleges and universities to report the name of their title ix

coordinator? should that be something, at a minimum, we should require? is there any disagreement about that? >> absolutely agree. at think it is important, especially without victim worked. many of our clients have no understanding of whether you're supposed to go. communicating out that policies are massive piece of the problem. there's a lot of cutting and pasting and schools, and they are not necessarily take a strong and deeply invested look at who they are. what does their institutions say, their value system, how will they fuse that and the policy? also like to make a push for sexual assault response teams. i go out and train all of schools and get a lot of blank stares. all lot of, well, we have two people on campus to do that. there should be 22 people. and i want to -- helping us to understand the benefit of having in multi disciplinary approach the problem. yes, it is sometimes hard to

figure out whose lines began and where, but if we don't have that discussion and start getting this initial arguments and discomfort out of the way we cannot build a strong reinstitution. i definitely think that telling victims to the title ix coordinator is, having a better policy in creating larger teams to do those and then forced them this huge. >> i would agree with that team approach simply because you can write as many policies as you can. when they are tested there's a lot of complexities to various sexual assault cases. and so having those meetings, those conversations, the case study, how would this individual or partner, together and work through this process, and then when the gaps that the policy of protocol, but also having it written down because transitions , more and more things than to have that preservation, this is what this office would do, what this department would do, help to provide longevity.

>> ask my colleague to jump in here. i can go on forever. >> i guess this kind of dovetails on what we have been talking about. you have done work in montana. i feel good about the work that has been done. things that congress should do to make your job more timely or to get to the point. >> so, one of the things that we were able to do in montana that we are not able to do in all cases was to launch a title ix compliance review of our own. our title ix jurisdiction can, about in multiple ways, but the only way that we can initiate a

title ix investigation is if we directly from the university. the 74 effectively follows federal funding. and so we had -- have authority under title four of the civil rights act of 1964 to investigate public universities on our own and to initiate enforcement proceedings there, but under title ix, if we do not find the institution then either we await a referral from the apartment of education or intervene if they're is a private lawsuit. that is one thing about montana that enabled us to proceed more holistic we command in the absence of an individual complaint which is, i think, very useful. the university, as you know, was exceptionally cooperative. we were grateful for the president's interest in becoming

the model campus and taking the steps necessary. we similarly have very good and cooperative relationships with the head of the office of public safety and the muzzle of police departments. >> let's assume that people are not cooperative. see you have the tools to be able to do your job? >> one thing that begin not have the authority to do if we cannot bring a title ix investigation ourself is to require universities to provide documents or witnesses. now, we have found that many universities are interested in resolving the problems on their campuses, and they are either unaware or do not know how to fix them, but in situations where universities to not want to cooperate, and we are proceeding exclusively under

title for and not under title ix , then we don't have any kind of civil investigative demand authority for ability to insist on their providing the information that we need. >> what percentage of college universities and campuses in the country get federal funding? >> virtually all of them. >> so you can start to title ix and all of those? >> no, it is only if the department of justice funds them directly. so they can start title ix investigations and any university because all universities get department of education funds. many of them -- >> change? >> you know, title ix can be enforced by every funding agency for example, if universities get money from the department of energy, and many do, the department of energy would have authority to mount a review. if they get funding from the part of agriculture, the

department of our realtor would have that authority. because the department of justice -- we do find some universities, but it is not as uniform more universal as other agencies. >> if the department of agriculture performs an investigation, and their request to -- >> we do have coordination authority under title -- title ix. in that capacity we give advice to other federal agencies that have title ix enforcement authority to make sure that they are applying uniform standards and understand -- >> how was it done practically? let's say something happens on the campus and someone comes fort, how would the department of agriculture even know? -- it seems to me, having one federal agency responsible for

follow-up and potential action under title ix makes a lot more sense. i mean, i cannot imagine the department of energy or agriculture has the capacity, were with baltimore, frankly, would even know anything have occurred on campus. >> every federal funding agency has an office and have a complaint procedure by which individuals to feel that their rights have been violated whether under title ix or the rehabilitation act can go to file a complaint. one thing you may be interested in is, number of years ago, maybe 2007 or 2008, senator widen included and the appropriations bill for various science funding agencies the requirement that they undertake a certain number of plans to reduce of the application of

title ix to the stemed disciplines and higher education , and the department of justice supplied extensive coordinating ability to nafta, the department of energy, and a couple of the other science science-funding agencies so that they could jointly look at the ways in which stemmed apartments treated women both on the faculty and student body. >> and you said you guys to research, conduct research. did you research -- are any arrows pointed toward the department of justice lack of authority to -- i think if they're is a violation, by the way, the department of agriculture not all they probably would not recognize it, not to speak about -- alia of those folks, some salmon that business, but the intrusive the department of justice its retention of more.

title ix coverage so many things is what is important. we see the interaction with the department of justice and department of energy when talking on sexual-harassment and sexual violence, with the example of having to find whoever is providing that funding look and equity in the programs really is there purview. we all would agree that this something they should look at. in this situation that coordination law with the department of justice is incredibly valuable to identify what this would look like and how they can proceed, but really it is nsf who is identifying that they are supposed to be reaching the students or professors who are in these fields and we're not providing the opportunities. i think bring it back to sexual violence and harassment is really what we want to talk about. that, i think, as well this interaction with the department

of justice could be more or whether of coordination is already happening either on the schools are getting funding or on a regular basis because that is being asked for. whether that has enhanced the process or is a problem. i think we always call for compliance and compliance reviews when it comes to equity in education. when we talk about harassment really that role is key. >> you know, if i may -- >> go ahead. >> i would like to come back to something that senator mack asko said at the very outset about the diversity approaches and responses. as she mentioned, i held round tables around our state, you know, couple of hours long, not quite as formal as this. by the end of it many more people, survivors as well as administration officials, law enforcement, the gamut of people who are affected.

what i found this, around our state, there are some very good educational institutions. there's a breath their responses will from the form and the energy and the substance was devoted often depending on the commitment that the intense to be more commitment. the set of protocols was not a good idea. navy and misunderstood, and i agree with you. the process is important. universities working for

college, working through with the community getting to the end result is important, but you want them to get to an end result. my question is why shouldn't there be some kind of set of standards, protocol, expectation for what kind of services will be offered, what kind of advice will be given. and i want to ask also about legal services. but is in that a good idea to have some kind of policy protocol expectation about what will be in effect. >> maybe i could just start by saying, i don't think model policies are inherently bad ideas. what i do think is critical is having each university engaged with its own community to develop the policies that are going to work for that community

what i think we don't want his university's just cutting and pasting from some boilerplate the works in one place but would not be applicable. one of the things that was included in the material put out by the president's task force on sexual assault is a checklist of the elements of a sexual assault policy that every university should have. in addition and as noted there was model language for confidentiality which is an issue that has generated a lot of attention and concern because we want to both protect the confidentiality for victims in need that while insuring that universities are able to effectively respond when assault occurs. at it that there will be additional language emerging from the task force and mou with rape crisis centers or law enforcement agencies. i do think that there are places where models can be very useful,

but we do want to ensure that each university takes this seriously and really customizes whatever is out there to its own situation. >> can you give us three, five models for what you found to be effective? maybe you cannot do it in this setting is because of what it -- it would take too long. if there are some model approaches depending on the size and the makeup of the college university committee can describe that briefly now. >> one of our hoaxes that the university of montana will serve as a template for other universities so, for example, in conjunction with our findings letters which describes some of the ways in which we thought

that montana could do a better job of protecting of its students and the way it was falling short of title ix compliance. so, for example, as i mentioned earlier, there was a profusion of policies, the school disciplinary policy, the eo policy that apply to employees, the conduct policies for students, that all address sexual harassment in some measure and created a real confusion about where students should go for the different kinds of problems that they might encounter. one of the things that montana has done is to create a unified set of policies that make clear what the processes. another thing that a lot of our consent decrees and agreements with schools provide for is engaging in expert consultants. there are people who know what works on campuses who have had lots of experience in helping

schools to a structure policies, providing training materials, conducting a training and ensuring that they have an adviser for home this is not the first time and can provide that expertise. montana has also a grantee of the office of violence against women. that grant comes along with technical assistance that can enable them to mount kind of all listed responses on campus. another thing that i think is quite important is data collection and reporting because a university can only get a sense of whether it has a problem by keeping track of the problems and the complaints and the reports that receives. reporting, to us, in cases in which we have agreements also enables us to do any kind of follow up, work with them to ensure the provisions of our agreement are being respected.

>> aren't required to do that under present law? >> the clear reactor requires them to report campus crimes. one of the things that there has been a fair amount of discussion about is the overlap between perry and title ix. the to do not fit together exactly. >> let me just jump in. i would love it if you would help us with language that would unify the requirements on reporting of title ix. when we have this overlap that does not fit well, then when it does not work -- well, we were following title ix, and you have an ability to avoid accountability for failure for accurate data. i would love any advice from both you and the department of education about how we could put those two together in a way that would make sense of the statute.

>> great idea. or anyone else who has ideas about that. one of the suggestions that we have been talking around changing the penalty structure to make it more effective, more realistic, more practical, any thoughts? does anyone else have any thoughts? the penalty structure under title ix so it is not all or nothing, it is draconian and can be adapted to the circumstances of a particular situation. >> the technology. one of the concerns i have about the penalty structure which, i'll be honest as a victims' attorney, it feels good. i liked the idea. when i have worked with some many different schools @booktv that think a penalty structure would affect some schools -- just an enormous difference. and my concern is that it would be the goal. where are we going and how would we be able to really get the

desired effect of what that penalty is supposed to do? there are some schools are just have so much money and so many resources that, frankly, those would be like swatting at. i don't think that it could really affect change. on other schools it could be incredibly damaging and would obviously get someone's attention. don't want to throw the baby out with the bath water, but at the same time and not sure it gets to where we need to be. >> i would love to add that i think there are values. one might be to ramp up enforcement's. we have noticed that when the public attention that comes along under compliance or investigation, schools often to want to work with the department of education. that process may need changes, but at the end of the day if we could do more of that, i think

we might also find a systemic change without necessarily changing penalties or while also changing the penalties. i do want to bring us back to the fact that we have along on the books, and many schools are not even complying with it as is, i am interested in how we could find out where the of schools are and what we could do about it. schools would have to disclose the standard of evidence they're using. we won't know if schools are using a preponderance of evidence standard. >> can we legislate that? it is important to remember, it is a lot of the land and in -- >> that is not along. >> i won't ask ms. samuels to comment, but i will tell you this, there are some hardheaded folks. i won't look at jon tester when i say that, but there are some hardheaded folks of would say guidance is not necessarily

persuasive if they want to follow a different path. i mean, we need to codify it if you wanted to be enforceable. >> i agree, especially if we want it to last forever on not change. that don't want schools to get the message that there are accountable to the apartment of the administration of the the proper the justice. i don't want us to lose sight of that, but at the end of the day, anything to make sure that it remains the standard sounds like a great idea. >> and here is the problem -- and we have gone round and round about this. we are struggling with this. i know that the department of justice, the apartment of education carry a big stake and when they are responding to a complaint there is always media attention so that the university campuses are under a great deal of pressure to rise to the occasion and show the community that they will do the right thing and will try to fix the

problems that have been pointed out and that that cooperative nature is could. at the end of the day if someone decides not to cooperate it is unlikely that we are going to pull all of the federal funding that the school gets because it punishes way too many innocent young people. that is just not something that ultimately is realistic. you know, i said at the last round table, it is like me saying to my kids, if you do that again on never speak to you again. they didn't mean that. so i struggle with how -- and, how can we get an all these universities and college campuses that are not being investigated by the department of justice because there has not been a complaint on there has not been anything that has brought them to the attention of

the apartment of education of the department of justice. how do we begin to impact change on the thousands of campuses out there. the title ix coordinator named does not even know they have been named or even worse to not have a title ix coordinator. shouldn't we be focused on something that we can do that is simple, the punitive for something less than refusal to the region a cooperative for agreement with the department of justice on something that is large and comprehensive and reaches into so many nooks and crannies like the agreement with the university of montana and other police agencies. >> that is where i think we need to be going. if we can figure out a way to do it that is not going to be draconian and meaningful to a larger universities. >> i think this something that has been coming up more and more as more students have been filing complaints, the goal is not the full removal of federal

funds. that is a huge thing that is going to negatively impact students. of those students that it will negatively impact include survivors. that is not anything that people i'm looking to have accomplished . however, something that i think of as say, through their clear compliance division has been doing really well is levying fines that send the message that the school is out of compliance, letting everyone know using sort of the bully pulpit to a knowledge a school is out of compliance or doing something wrong without doing it in a way that damages the students experience at that university or they're right and. that think that is something that we can talk about, this idea of intermediate sanctions as a way indicate the schools are out of compliance, to indicate that these are schools that keep messing up, schools that are messing up a starkly. i come from a university that has had for title ix complaints and the last ten years, three of

them indicating the exact same administrators who are still employed, the administrators who victimize me personally, and i know of students that they have victimized since my time. these are people who are, you know, being referenced in multiple title ix complained to are still there. and so we need to be talking about what we do when schools are not following the voluntary resolution agreements, when they're having multiple complaints. there are a lot of schools that have had none, but there are also problem institutions. we need to be talking about -- we cannot remove all federal funding. that needs to be away with the federal government to acknowledge that a school is not doing a good job. they have started really reaffirming the need to change policy. calling for it for a lot wonder, but unfortunately sometimes it is the