>> your stature example has to do with a battle, not a vacancy. [talking over each other] i'm asking you for an example with the word vacancy. that's what i'm having trouble with. >> well, a vacancy is an enduring state. on the perspective of -- >> i'm not talking about -- i just say could you find an example, and i'm gathering from and to, you couldn't. and i couldn't even. >> maybe the language in the constitution looks unambiguous to you know, but it has been the subject of contention, and has been thought to be ambiguous from the time of george washington to the present. with respect to the question of the practice and they're being, i don't think it's correct to assume that because there are a certain number of identified examples of pre-existing vacancies being filled in our appendix, that that's the sum total. i think this is far, far less than the sum total. ..

>> one flaw with your argument is t makes the words it may happen superfluous, that the clause would mean exactly what you say it means if you took those words out. and your response, the only one i could see on the reply, your reply brief, page 13, is that those words were put in there to, quote, confine the president to filling vacancies that actually exist at the time of appointment. now, is that -- did you really think they put that language in

there because they were afraid the president would fill appointments that don't exist? >> i don't know why they put the language in there, mr. chief justice, but it doesn't -- it isn't superfluous because it does serve that function -- >> one reason is because they were afraid otherwise the president would have the power, simply, when somebody died two or three years before and they've had a big fight in congress to save up all the controversial nominations and then put them through as recess appointments. that could be one thing they didn't want to happen. i don't know.b same problem. >> you do have the one that you relied on in your brief, the misunderstanding goes back to at least 1823, and the -- [inaudible] on the wording maybe on the wording the case is not strong. but the purpose, he said you

would be following the letter in defying the spirit. that was the, on the question of the vacancy. >> and we don't disagree with that. we think it's just what the word said. it does no violence to the language, and it's consistent with the purpose of the clause. and from the perspective of the purpose of the clause, the office is equally vacant whether that vacancy arose the day before or the day after the senate went into recess, the senate is equally unavailable to act because they're dispersed, whether the vacancy arose the day before or the day after, and the public's need that the office be filled so that the laws can be faithfully executed is the same whether the vacancy rose the day before or the day after. you do have very established practices that is completely in accord with the purpose and the structure. >> see, we sort of drifted away from the new practice, the pro

forma session. and you were asked suppose there was nothing in the resolution about they will conduct no business. it was an informal understanding that they wouldn't. but there is no expression agreement that they're not -- express agreement that they're not going to conduct business. then do you lose on that part of the case? >> i think that's a way harder case for us, i would agree with that, justice ginsburg. but two things. one is, the formalities do matter, and two, going back to what you said earlier, justice kagan, i think the act that there's no business order in place, that's what gives the senators the protection to know they can leave town without -- >> suppose this was the exact same business order, but the single senator ol' was there got up and asked for unanimous cop sent to name a -- consent to name a post office, and every three days he got up to say unanimous consent to name a post office, the post office is

named. so they can do, you know, trivial business in each of these sessions. would that make a constitutional difference? >> well, i think if they did business each of the three days, then you wouldn't have a situation in which no business was conducted, and you wouldn't meet the definition of a recess. >> but that again suggests that the rule you're asking us to establish so easy to evade that why bother establishing it at all? the fact that it's so easy to evade suggests that this really is the question of how to define a recess really does belong to the senate. >> no. i think the problem with looking at it that way, justice kagan, is that that's the end of the recess appointment power. you write it out of the constitution if you look at it that way, because all the senate needs to do is stay in pro forma session until 11:59 a.m. on january 3rd when that term ends and the next term starts, and the -- >> i totally take your point on that, but what i'm suggesting is they could just come back and by naming post offices have the same effect, that they would write it out of the constitution

as much as you say this does. >> well, this does. this does. and whether something else might or might not, i guess, we could try to fight that out if the senate were ever to do it. but i assume if this court were to hold pro forma sessions of this kind were not real and they don't defeat the president's recess appointment power, that maybe the senate would think twice -- >> what is significant is whether they're available to confirm nominees, isn't that right? >> yes. >> so suppose instead if they say no business will be conducted, no nominations will be considered. >> that would be a different case because -- >> i know it would be a different case. >> the point is, the question is whether they're available to consider nominations. so if they say we'll do other business but no nominations will be considered, why isn't it exactly the same for purposes of the recess appointments clause? >> it's not because the recess or the definition of recess is when no business shall be conducted, and that's exactly what the senate said. if i may reserve the balance of

my time. >> thank you, general. mr. francisco? >>i mr. chief justice and may it please the court, the advice and consent clause imposes an important check on executive power. each of our three arguments preserves that check and provides a separate and independent basis for affirming the court below. the government's position in contrast would eviscerate that check, creating a unilateral appointment power available for every vacancy at virtually anytime with advice and consent to be used only when convenient to the president. >> but your argument would destroy the recess clause. that would be under your argument it is totally within the hands of the senate to abolish any and all recess appointments. >> yes, your honor. and that reflects the fact that the recess appointment power is a contingent one. it arises only when the senate chooses to trigger it by ending its session and beginning its

recess. so the senate always has the power to prevent recess appointments. the constitution, however, gives the president corresponding powers. if the president thinks that the senate is being derelict in its duties, he can convene an emergency senate, and he can force the senate to consider his nominees. and if they refuse, he can subject them to withering criticism for being derelict in their responsibility. the one thing the president may not do is force the senate to act against its will, nor should the president be permitted to do it and run around the senate's refusal to act because that conception of the recess appointments clause is at war with advice and consent itself. >> can i ask you a variation of the question that justice scalia asked general verrilli, suppose there is a 200-year-old consistent practice, agreement by the president going back to washington and by the senate that the language actually means something else.

what would we do in that situation? >> your honor, i think that the language has to govern. and i would like to address the issue about the consequences of a ruling in our favor in this case. of course, if you were to rule on the third question presented, it wouldn't call into question any past recess appointments at all given the unprecedented nature of the appointments at issue in this case. but frankly, if you ruled on the first two questions, i don't calling into question the decisions of past appointees. justice sotomayor, to take the article iii courts, for example, since 1960 there have only been four potentially improper appointments to the courts, recess appointments. each of them served approximately a year or less, three to the court of appeals -- >> mr. francisco, i'm sorry, but could we go back to justice alito's question? because i really have the same issue with your argument. you know, suppose that on one -- let's say the happens argument, that your, is at least the most

natural reading of the statute at least the way we understand the word "happen" today and maybe a compelling reason. but the history points so much in the other direction. and that history brings with it a whole set of practices and traditions and ways of dealing with each other that has grown around a certain interpretation of what happens means, right? the idea that we would wake up one fine morning and chuck all of that because all of a sudden we happened to read the clause, i mean, that at least needs to be defended. >> yes, your honor. and i believe the relevant history actually supports us; that is, the history at the time of the founding -- >> i know. but now again, i mean, assume that there is a 200-year-old established practice, everybody has agreed to it. but the text when you really look at it points the other way. >> yes, your honor. i would dispute the premises, but i'll accept them for the

purposes of the question. the political branches of the government have no authority to give or take away the structural protections of the constitution. they don't exist to protect the senate from the president or the president from the senate. these are liberty-protecting provisions that protect the people from the government as a whole. so if the constitution is quite clear as to what those structural protections are but the political branches -- assuming for the sake of argument -- have con fire spired to deplete them, that is illegitimate, and it should be rejected -- >> but that assumes something, which is let's go back to the "happening" word that is so unambiguous that they knew it was unambiguous. but7] 200-year history starting with president washington who filled two vacancies that occurred before the senate broke to almost every president thereafter has done the same. so why should we conclude that today's understanding is the

same as the understanding of the founding fathers? why don't we take their unbroken practice as giving us that definition? >> yes, your honor. a couple of different responses. first of all, we dispute the government's historical account of president washington's and the first four presidents' position, actions. but even putting that aside here, everyone who actually spoke to and addressed the issue at the time agreed that the text means precisely what it says, including president madison who refused to make a recess appointment to andrew jackson, the hero of the war of 1812, precisely because the vacancy had arisen during the senate session and in its recess. second, we also don't have an unbroken and never-contested practice. indeed, the senate has regularly resisted n. 1863 the senate passed the pay act which prohibited pay to any appointee to a pre-existing vacancy. so you don't have a kind of uniform and -- >> well, let me ask you this:

suppose that we were to conclude that the history is simply too overwhelming to rule in your favor on the "happens" problem. could we still use history to say that -- or overlook history to rule for you on the inter/intrasession point? >> yes, your honor. >> how do we do that? >> from the time of the founding -- >> is it because of the 80 years or -- >> i think it's longer than that. from the time of the founding until, i would say, 1948, there was a uniform understanding that the recess and the session as used in the clause were interchanging periods. you were either in reis access, or you were -- recess, or you were in session. so an appointment during the recess lasted until the end of the next session. now, in 1921 attorney general

muddled things a bit, because he assumed if you took a long break in the midst of a long session, it broke that break into two recesses for purposes of the recess appointments clause. but you still had that dichotomous view subject to the arguable and quite am wiggous exception of -- ambiguous exception of andrew johnson. what you see was until the founding until 19 61 there were breaks all longer than three days. so all recesses under the government's definition. yet during that entire period with the arguable exception of andrew johnson, no president ever attempted to make a recess appointment. >> mr. francisco, tell me if i'm wrong about this, but it seems to me that intrasession recesses really only arose in the 1940s or so, right? there's the period with andrew johnson, and andrew johnson used intrarecess, intrasession recesses to make a lot of appointments.

other than that, intrasession recesses of more than three days that are not christmas simply do not exist. so that as soon as intrasession recesses came to be, presidents started making appointments in them. >> let me address it this way. i'm not sure i agree with the factual understanding, your honor. there were intrasession recesses longer than three days prior to 1867. i think there were some ten of them prior to 1867 including seven that were longer than ten days. and bear in mind -- yes, they were christmas recesses, but so were the ones issued in this case. they were recess christmas appointments. but i do take your point that intrasession recess appointments did not become very common -- i should say it this way, appointments did not become very common until really they started with truman, but then they broke off for a long time with three presidents -- johnson, kennedy and ford making no mid session recess appointments -- then

beginning in the carter and the reagan administrations is when they became very common. and particularly a very common way to do an end run around advice and consent. >> what happened in that period around 1970 is that's about the first time that you have recess, it's longer than an intercession recess. and so now if we look from 1970 on, that's fairly common. so all that's happening is the presidents are appointing recess appointees during periods where they're out for a longer time. thousand, how are we -- now, how are we supposed to go and say this to thousands of people on the recess part is unconstitutional? i mean, it isn't unheard of. what about the due process clause? does that easily cover the language, substantive due process? what about the interstate commerce clause? the doctrine of, you know, the implicit clause there. i mean, it isn't unheard of that over time language in the

constitution takes on a somewhat different meaning. >> yes, your honor. >> so how do we, i mean, probably different judges have different approaches. but if i'm concerned about the basic practicality and the basic objective here, why would i agree with you? >> yes, your honor. i'm certainly not going to attempt to purport to resolve this court's differences on those issues. [laughter] >> well, well -- >> you're not going to let me off the hook, your honor. >> the two examples justice breyer gives are two examples of where we gave it a different meaning than what it said. [laughter] we don't have a case involving this issue yet. >> that's precisely correct, your honor, and it reflects the fact that the recess appointments clause and the appointments clause and all of the structural protections, again, are not -- >> if i do place more weight on this, should we -- i do agree and believe to this point this is basically a heart of politics -- a matter of politics for other branches, basically.

that doesn't help me resolve this. but it does lead over to this possibility. congress did pass the no-pay act, and then they passed the pay act. and in that pay act on this "happen" part, which i think is very strong for your side, but it defines the vacancy in terms of 30 days prior to the recess. and that would take care of most of these. you see? a vacancy could be defined as something that stretches because congress says it stretches in terms of pay for 30 days. >> right. >> what do you think of that? and -eyp love to know what the g thinks of it. >> yes, your honor. a couple of different responses. first, of course, first question calls into question the -- >> the third, by the way, i just put in your mind if you digress in your answer, put in your mind what would have happened in 1830 if someone when they had a nine month recess, close to ten months --

>> uh-huh. >> -- some would have had the bright idea, well, you live near washington. go show up at wherever we're holding our sessions and sit there for five minutes, and we'll stop president andrew jackson from making recess appointments. what would we be saying then? >> sure. i'll put my finger on that question and answer your first question as to the pay act in 1940. the pay act of 1940, in our view, clearly repudiates the government's intercession view for the reason you put your finger on. it ties the appointments being made either right before or after the session ends. so most mid session recess appointees can't get paid under the pay act. with respect to the second question presented, at best it creates three exceptions to the general rule against any pay to any pre-existing appointees. so you've got somewhat of a compromise. i would say that's no more senate acquiescence than the president's position than the president's acquiesce seven to the senate's position when he

signed that law. so to me, that's a jump ball. coming back to your historical example, i think it reflects the fact that the recess appointments clause is not about timing, it's not a temporal issue, it's about procedure. what it does is it creates a contingent power that arises when the senate decides to trigger it. back at the time of the founding, the senators wanted to trigger that power. it was important to trigger that power because when they were gone, the president needed to be able to act unilaterally unless they wanted to be subject to a recall in emergency sessions every time he needed to confirm nominees. they obviously didn't want that. today the situation has changed. not the principle, but the historical context. and today the senators can get back to washington, d.c. very easily. they are -- >> suppose, suppose we had an intercession break. days. and you're reading the recess clause in that three days the

can fill up vacancies. >> yes, your honor, because under the is second question presented there would not be very many vacancies in that context. >> well, we have this second question just on the first question. because it seems to me the rationale was when -- [inaudible] was out of town for six, nine months, of course the president has to be able to make the government work. and now you're saying that in that time it's only three days, they're going to be -- [inaudible] it must take somebody, somebody dies on day one. the president puts in an appointment on day two. you'd say that's okay. >> yes, your honor. first of all, i'd say i don't think you can really separate it from the second question presented because that explains why it wouldn't have been much of a problem. very few vacancies would arise during a three-day break, so

there wouldn't be that much of an opportunity to make those kinds of appointments. let me assume you reject my argument on the second question presented, then you're really in the 1905 senate report where they were dealing with president roosevelt's midnight recess appointments where he made them in between gavel drops. if you reject the argument on the second question, i do think you may need to confront the notion that an intrasession recess is too short to make recess appointments. not at issue in this case because here the appointments came on january 4th, so by anyone's definition this was an intrasession recess appointment. and all of this really reflects the fact that the recess appointments clause is a contingent power that arises only when the senate triggers it, which is what gives the senate the power to prevent the president from making recess appointments. if i could turn back to the consequences -- >> well, before you do so, i mean, is the senate's power, in your view, so comprehensive that

if they passed an order saying we're actually never in recess, people can be reached, you know, we can call people back, so for purposes of the recess clause, >> your honor, under the first question presented, i think the answer is, yes, they could do that because it really the senate's ability to trigger the power. in a sense, the recess appointments clause is of a piece with the inferior officers clause. the senate always has the power of advise and consent. but what the president can do -- what the senate can do is authorize the president to act unilaterally in certain circumstances. it can authorize the president to act unilaterally with respect to inferior officers, and it can authorize the president to act uniharmly in certain time periods where it ends its session and begins its recess. so it's always within the senate's power, and that's precisely why advice and consent serves as an important check. on the third question presented where you're deciding whether or not a session is a real session

then, no, i don't think the senate could do that. i think it's for the court to look at the senate's journal to see what the facts are, and those facts must be taken by this court as undisputed. if those facts show a senator gaveled them into session each day and during that period they were capable of conducting business as they were here at every session that they held every three days, then this court would have to take those -- >> could you, could you tell -- let's go back to this. what's your definition of a recess? when the senate actually says we're taking a recess? >> yes. with or without the consent of the house or not? is. >> it's when the -- again, it depends on which question you're talking about. on the first question presented, the recess of the senate is the period between when the senate says that it is ending its session through an adjournment sine die and when they begin the next session -- >> does it have to do that? by what command does it have to do that? >> sine die? >> no, sine die or any --

>> it does not have to adjourn sine die. that, though, in this country is the way that the senate has traditionally signaled to the president that it was ending its session. and i think that's what it would have -- >> does it need the concept of the house to do this? >> -- consent of the house to do this? >> yes, your honor, it does. >> so does it have to do that in between the two congressional sessions? >> i don't -- i think -- no, i don't think it has to. i think the senate caçxñ adopt s own rules for determining how it ends its session and how it begins a new one. i think the important point, though, it has to communicate that to the president. so, for example, during president madison's time the tradition was the senate would dispatch a committee to the president to inform the president that it had ended its session. is the president now knew that it was in recess, and the powers that imbue upon the president during that recess have been triggered, the recess appointment power. here ruling on our, in our favor on the third question would, of

course, call into question no past appointees, but i would like to -- >> on the first question, does your argument depend on the fact that, on the assumption that the possibility of a lengthy intrasession break was never even contemplated by those who framed and ratified the constitution? because if they had thought about that, there's a real chance the senate may take a two month break -- >> right. >> -- over christmas. would there be any reason why they wouldn't have wanted the recess appointment power to apply there as well as at the end of the session? >> your honor, our argument does not turn on that because, to us, it is not a temporal question, a procedural one. back then the senate had the power not to trigger the recess just like today it has the power not to trigger the recess appointments power. the difference is not in principle, it's in historical context. at the time of the framing, they wanted to trigger the recess appointments power because when they left during long periods of time, they wanted the president to be able to act unilaterally

since it was very difficult for them to act, and if they didn't trigger the power, the only way the president could act unilaterally -- the only way the president could confirm nominees would be by convening an emergency session. highly inconvenient. the historical facts have changed today. not the principle, but the surrounding facts. and today it is very easy for the senators to get back to washington, d.c., and so they don't want to trigger a unilateral power. they're perfectly willing to be hailed back if necessary. >> well, i'm not sure i understand the answer. if the purpose is to permit the president to fill vacancies when the senate is unavailable to consider nominations and the country would be harmed by having these offices vacant for a period ofçkñ time, why would t not apply to any lengthy break whether it's at the end of the session or in the middle of the session? and so if you're arguing that it only applies at the end of the session, doesn't that depend on

the assumption that they never thought about the possibility that there would be a lengthy break in the middle of the session? >> your honor, it is possible that they never thought about it, but i -- even if they had, i don't think it would matter because i think that the you were that you've laid out is not quite the full purpose of the clause. the purpose was also to insure that the president could not easily do an end run around advise and consent which, after all, is the principal method of appointment. so what they did as they did with respect to inferior officers is they vested with the senate the power in certain circumstances to authorize the president to act unilaterally. with respect to recesses, that authority was triggered when the senate decided to end its session. the senate did, for example, take seven mid session breaks of longer than ten days prior to 1867. it is inconceivable to me that the senators at that time believed that they were entering into a recess that would have empowered the president to make

unilateral appointments during those 10,11 or 12-day periods. and that reflects the fact that the recess appointments clause is a contingent one that arises when the senate triggers it. >> mr. francisco, can i ask a question about the second question presented, the "happens" question. >> yes, your honor. >> if you put aside all the history and you look only at our own modern view of what "happens" is, that surely seems to favor your position. but, you know, given all the statements in the founding period itself about how this is ambiguous and it might have two meanings, if you look at the dictionaries of that time -- so i went back, i looked at the oxford english dictionary, and one of the definitions of "happens" there is chance to be. essentially, the exact same definition that thomas jefferson said made this ambiguous. and we will never use "happens" in that way now.

if you look at the examples that they give,úo they're laughable. nobody would ever say that now. but it just suggested to me that maybe what we think is pretty clear is only pretty clear because one meaning of "happens" has, you know, over 200 years -- >> sure. >> -- lapsed. >> well, your honor, i actually think the word "happens" had the same meaning then that it does now which is why at the time of the framing everyone who studied the issue -- madison, hamilton, randolph and charles lee -- agreed that it meant what it said. >> no, i don't think so. essentially, thomas jefferson says it could mean one thing or the ore. and the other thing that he said which is happens to exist is sort of exactly this old definition which is happens means chance to be. >> and then jefferson in his other letters conceded that the recess appointments clause, as it stood, was going to frustrate his ability to make appointments and he, therefore -- >> i think happens continues to

mean chances to be. we still use it that way. but we only use it that way when it is followed by an infinitive. i happened to see him. it means a chance that i saw him. or, you know, 9/11, the destruction of the twin towers happened to occur on 9/11. but you wouldn't say, you wouldn't say it happened on 9/13 simply because it continued to be destroyed. i don't know what the oed examples that justice kagan referred to were, but i bet they used happened followed by an infinitive. and i think we still use it that way. >> you know, i don't remember them exactly, i just remember kind of laughing at them. [laughter] >> actually, i think i remember what they were, and they were 1483, and 1490 something, and

then there's an asterisk that said obsolete. and, in fact -- [laughter] i couldn't figure out what they were talking about. [laughter] >> and, yes, your honor, in addition there's not just the word "happened." it's preceded by three other words. "vacancies that may happen." and the only purpose that those words serve is tote constrain te universe of vacancies that are eligible for a recess appointment. >> well, the constitution as it first was, it's now been amended and it's no longer part of the constitution with reference to the appointment of the senate uses the word "vacancy" in much the same way as the clause we're discussing here and, i think, favors your position. because if a vacancy happens by resignation during the recess of the legislature, then the governor can make the appointment. and you certainly wouldn't think that could happen over three days or -- >> exactly. >> i should say occur over three days. >> and it's even percent than

that because at the time of the framing, a governor try today appoint somebody to the senate pursuant to that clause where the vacancy had arisen during the legislative session, that rather than during the the legislative recess, and the senators actually refused to seat that individual. so, yes, that further supports our position on that. >> do you want to say anything before -- about the, the language on the "happen," i support you. but the practice and in particular practicalities. because you say, well, the president can make an acting appointment, make a recess appointment even. i mean, you know, they have much less authority, somebody appoint inside that way, much less than a person who's been confirmed by the senate. so if the government won't grind to a halt, it still faces a problem. what do you want to say about that? >> that's a consequence of advise and consent. that arises not just when the senate takes breaks, but when the senate is in session. the senate could show up every day for an hour, sit at their

desks and announce we're not going to do anything, no nominations, no legislation because we don't like what you're doig, and by the way, the only way we're showing up and sitting here for one hour a day is because we don't want you to be able to make recess appointments. nobody would claim that the senate was in recess during those sessions. well, that is effectively what it was doing here. i would, though, like to address the practicality issue. i talked about the appointments potentially invalid since 1950. i likewise don't think if you were to rule in our favor on the first two questions that it would be particularly disruptive to the executive branch either. if you look at the government's appendix, i would hazard to say of those oy don't exercise much, if any, agency rulemaking or adjudicatory power at all. but as to those who do, going forward the government can solve the problem through agency ratification of past decisions. going backward, there are a variety of doctrines that would limit anybody's ability to actually challenge those past be

actions -- past actions, including, for example, the apa's six-year statute of limitations on challenging final agency action, finality rules that would prohibit a party from raising an issue that they could have and the -- [inaudible] doctrine like mootness, standing and, your honor, the de facto doctrine at least outside of direct appeal. i think the this constellation of issues probably explains why this is the first time this issue has reached this court in 225 years. this is not to say that a ruling in our favor on the first two questions wouldn't have any impact. it would undoubtedly have some. but it's this court's decision in cases like booker and blakely which made clear this court has never shied away from enforcing the strictures of the constitution simply because it could have impact on prior cases. the constitution exists to protect the liberty of the people. they were clearly transgressed with these unprecedented

appointments and, therefore, we believe that the court below should be affirmed. i'm happy to answer any additional questions that your honors may have. >> thank you, counsel. [background sounds] >> mr. estrada? >> thank you, mr. chief justice, and may it please the court. as justice kagan recognized earlier in the argument, in this case fundamentally is about who gets to decide whether the senate is in recess. the senate or the president. our submission today is that the senate gets to decide whether the senate is in recess. >> mr. estrada, you said in your brief that that was true within wide limbs. what are -- wide limits. what are the wide limits? >> this is all about how defendant chooses5÷ to arranges

affairs, justice kagan, under the rules of proceedings act. and what the court said in the -- [inaudible] case was that the exercise of rulemaking authority by congress was almost absolute and beyond the challenge of anybody or tribunal unless it usurps some independent constitutional authority. the only possible offer here that the solicitor general has as to how the constitution could have been violated by the actions of the senate in arranging its own affairs is the notion that this has invaded the purported recess appointments power of the president. and the reason as we say in our brief why that is completely insubstantial is because as the solicitor general recognizes in the closing two pages of its brief, the senate by the sign of the constitution, the appointments clause, the primary method of appointment, has an absolute veto over nominations. the framers could not have been more clear that the power of appointment was a joint power of

appointment and, therefore, the solicitor general is forced to concede that this appointment power, this right that the president is asserting here as a stop on the exercise of the rulemaking authority is a subsidiary power that only arises if the government, if the senate, excuse me be, chooses to recess. >> is the chief justice's example before, if the senate just said we're never in recess for purposes of appointments, would that be permissible? >> if the senate says we're never in recess and the senate then is not in recess so that it can exercise duties of its office as it does here, yes, it would be. if the senate says we're checking out and going to hawaii, we'll never again be in washington, very nice this time of year, that would not be permissible because, a, the -- [inaudible] clause requires the consent of

the house for the senate to be not only gone for three days, but to be in a different place and, second, you know, the senate cannot leave, you know, out of concept of the house -- consent of the house. and maybe if the senate has effectively given up the business of legislating, in that case maybe the president could say that it is, quote, a recess. now, the fundamental problem with the president's position here is twofold. we have senate records. there is the journal clause of the constitution directs each house of the congress to have a journal of its proceedings. the journal of the senate, which is a relevant part printed in our appendix, shows that on each of the disputed dates the senate was called to order and then adjourned. it is an official record of the senate. it says the senate was called to

order and then adjourned. it doesn't say two guys who happen to be senators met at a bar -- [laughter] and had a beer. the official records of the senate say the senate was called to order and adjourned. and under the rules of proceedings clause, that could be conclusive full stop. >> ended exactly the same if this all took place during the nine month intersession reis access in 1835. -- recess in 1835. >> it would be the same unless the senate chooses to -- >> no, no, no, same facts. >> right. >> and, therefore, in your view the clause -- even if they were all scattered to the winds in 1835035 -- 1835, it would have been not possible for president andrew jackson to have that right to make the recess appointments. >> justice breyer, the executive at the time could have attempted to construct the same type of argument --

>> your view would be that the courts would reject it. >> yes. but here it is even a weaker argument because one of the oddities of the case is that as the senate has, and the country have all moved into the modern age, the rules of the senate tend to provide for the senate to be available at the drop of a hat. if you look, for example, at rule nine, you can always get, you know, the communications from house, from the house or from the executive. if you look at rule 26 of the7dr senate, committees can meet whether or not the chamber is actually in session. you know, the business of the senate is ongoing. and, therefore, this the modern -- in the modern world it is even much, much, much different than even the hypothetical. >> you say anything that would, on this if you want to that would turn it back to the practice t callties --

practicalities. imagine hypothetically that i would have thought president theodore roosevelt acted unconstitutionally when he tried to make all of his appointments, dozens and dozens, during -- >> in 1903. >> yes, intersession -- yeah, yeah. and by converse reasoning, the congress would not have been able in 1835 to prevent recess appointments simply by having a nearby senator show up for one second once every three days over a nine month period. it seems to me what goes around comes around in this -- >> well, let me take that as an opportunity, because i think it does raise, you know, the question to speak to the implication that the solicitor general makes in his brief that the senate as a body doesn't have a view on whether it was in recess or in session. for the reason that i started

out by outlining it, excuse me, the senate's official records do show that the senate was in selling on each date and, therefore, the senate does have an official view. but from the practical point of view, we do know that the senate has a view on these things. and how do we know? the president's party controls the senate. if the senate wanted to recess, rule 22nd of the senate says that's not a debatable proposition. if a majority of the senate wants to recess even before the abolition of the filibuster, an undebatable proposition. so the senate says -- which is controlled by the president's party -- says we want to recess. we want to go away. we don't care if the president has power. they vote for that. house79v says, no. what happens then? article ii, section 3 of the constitution defines those

questions, and it is in that event that the president gets to adjourn them until such date as he shall see proper. so if the senate had any view that it wanted to recess, they could have had a vote, and the issue would have ended up in the white house in the lap of the president. he had plenary constitutional power to give himself an intersession recess by terminating the session and have a real recess appointment power if he could find somebody whose vacancy had actually arisen at the time. but this is the cock eyed way of going about the instruments of the constitution. there is no power in the constitution to use the recess appointments clause to overcome the opposition of the senate to the president's nominees. and for all that we hear about today which has to do with how the heaven will fall and the parade of horribles, there is no parade, and there is no horrible. the only thing that will happen is that the president, heaven help us, will be forced to comply with the advise and

consent that the appointments power -- excuse me, that the appointments clause actually calls for. that was not viewed as an evil by the framers, that was what the framers unanimously agreed was going to be the principal means for prime appointments foe principal officers of the union. >> mr. estrada -- >> there is a three-day recess between sessions, then your argument is that is a recess, and the president can make, can make appointments in that time. >> justice ginsburg, that is a very interesting and somewhatz difficult question. on the facts of this case, there is a substantial question which no one really has litigated as to whether there was, in fact, an intersession reis access, whether -- recess, whether the first session of the 112th congress ended on the morning of january 3rd and, therefore, we have the same teddy roosevelt situation or whether by

adjourning on december 30th and contemplating no further meetings until january 3rd, whether that in effect, in effect, was a sine die adjournment that ended the first session of the congress. if the president had the same view about the nature of the pro forma sessions, he could have taken the view about the sessions between december 17th and january 3rd. and could have had a better legal argument in attempting to claim that between december 30th and january 3rd there was at least an arable inter-- arguable intersession recess. and he didn't do that. why didn't he? because by waiting for the convening of the second session of the 112th conference, by making an appointment on january 4th instead of january 3rd, he gives an extra year to his appointees to serve.

that shows that this is, indeed, the bottom of the slippery slope under the appointments clause. it is a complete abuse of the process. it is being used for no other purpose than to overcome the senate opposition or the senate disinclination to agree with the president's nominations. what the framers contemplated in coming up with a joint power of appointment was you have to act jointly. you have to play nice. and in a country of 300 million people when the president wants a nominee and the senate does not agree, it is always possible for the president to come up with another nominee who is even more qualified and acceptable to the senate. the key here is acceptable to the senate. he has to be able to proffer someone to the senate that the senate is÷xç willing to engage a joint power of appointment. >> mr. estrada, in your earlier

example you said that if the senate decides to recess and the house doesn't approve, that the president can then do it. is it your belief that a recess is only something that both houses have agreed to? a break in business that both houses have agreed to? >> i don't think so. it is usually the case, justice sotomayor, but not necessarily. >> so what do you mean? why does the president have to adjourn the house in your example? >> no, i think -- >> if the senate votes tomorrow to recess -- >> yeah. >> -- can the president appoint, at least in your view, any vacancy that occurs during that recess? >> if the senate has been recessed without date so that the session of the senate is over even if the president under article ii chooses to leave the

house in session -- >> why do you need a date? what, what, in what rule makes a recess defined as something without date? >> this takes us back to the first argument, and i think the contemplation was that the recess would be the period of time that intervened between the ending of a session of the congress and the beginning of course the next. here -- >> we've always had a date, because we knew january 3rd was a new session. >> well, that wasn't true until the 20th amendment. you know, the tate was a much different -- the date was a much different in the original constitution. but to answer your earlier question, it is usually the case that a recess is going to be longer than three days, but it needn't be. if the senate finish all of its legislative business, for example, in this year on december 30th, 2011, and then voted to adjourn sine die and did not again meet until the beginning of the second session of the congress on january 3rd,

that would be an intrasession recess each though it would not be one that would require the concept of the house. but in the -- consent of the house. but in a usual case where a recess is takenqbé for an extend period of time, it would be the type of break that the framers contemplated would need the consent of the house, and the reason should be obvious. we have a system of a bicameral legislature. the houses, too, are supposed to work together to accomplish the business of the people. if the house is working on something and the senate wants to go away or vice versa, they need the consent of each other because they may need each other to frame out ongoing legislative projects. and if the house in its own judgment thinks that the senate is sufficiently available to the house in our bicameral system so that it has been in full compliance with the -- [inaudible] clause it is very difficult to

see that the senate is, in fact, effectively available, that it's there with its full power of unanimous consent every third day. if the house thinks that that is adequate for the discharge of its constitutional funks and the constitutional functions of the senate, it is very difficult to see how the president gets to second guess that. one final point that has to do with the solicitor general's insistence on the no business language. rule 51 of the senate, may i finish? >> yes. >> -- makes very clear, it's also in our appendix, that any business may be conducted at any time without notice by unanimous con consent. and so effectively, what we have here is merely an announcement by the senate that between december 17th and january 23rd only unanimous consent business would be agreed to. >> thank you, counsel. general verrilli, six minutes.

>> thank you, mr. chief justice. let me begin with a couple of points on the intrasession recesses. with respect to the question that justice alito raised, it would have been perfectly familiar to framers that a legislative body could take an intrasession recess. jefferson's parliamentary manual, written while he was vice president and provided -- presiding over the senate specifically refers to recesses adjournment that occurn a session, and the session resumes when they're over. the adjournment clause itself contemplates the need for approval by the other branch for a period longer than three days during the session. i think it's difficult to imagine that if, as justice alito's hypothetical suggested, that the senate had in the first years under president washington decided to take a two month intrasession break, that president washington wouldn't

have been able to staff the offices of the fledgling republic using are recess appointment power. >> if we agree with you on the first question, then there needs to either be a number or a functional test, and i don't know where the number would come from, and i don't know how the functional test would play out. maybe you could say just a word about that. >> we think the number should be the number in the adjournments clause, three days or less. presidents have exercised restraint, and there haven't been recess appointments of periods below ten days, but we think that would be the -- >> the presence of that in the germans clause by but the absence of any number in the recess appointments clause. how do you explain that? >> well, i think that there isn't really a need for an explanation. a recess is ap suspension -- a suspension of business, and what the clause says if you're gone for three days, unless you're not really suspending your business, but if you're gone for more than three days, you are.

now, with respect to the history on intrasession recess appointments, really if you look at the congressional directory which is a document that we cite in our brief and you just look at the column that says intrasession recesses, you'll see page after page of blank, of blank space until you get to the civil war era when intrasession recesses become more frequent. and intrasession recess appointments really just precisely parallel the increasing use by the senate of intrasession recesses. >> >> and you argue that the senate sort of acquiesce inside that and everybody's come together, but what would you expect a senator to do? >> well -- >> you know, the president appoints somebody during a recess contrary to the respondent's view, what's the senator who objects to that supposed to do? >> well, a couple of#/e things about that, mr. chief justice. the pay act, of course, was first enacted in this period, in the 1860s when the first intrasession recess appointments

occurred. in fact, even in its original form and since has never said anything about trying to restrict intrasession appointments. if the congress really felt that these were improper, they could have done what they could in the tenure of office act and passed a statute making it a crime for somebody to take one of these appointments, but they didn't do anything -- >> but you would object to that, wouldn't you, on the same grounds that you're -- >> well, we would. >> well, then that's not something that's effective for the senate to do. >> but in terms of an education presentation of -- an expression of agreement, it didn't happen. >> the senate says we don't agree with your recess appointment, and you say, well, that's too bad, the appoint the tee's still in office. >> but they didn't -- >> well, some of the senators did. senator -- [inaudible] famously objected to the -- >> yeah. but he famously objected to it, mr. chief justice, by saying the intrasession recess ought to be 30 days or longer. i think that's just haggling

about the length of the recess, not about the existence of the power. now, if i could move -- no, no. i just want to make sure i understand. your idea is that a senator should do what? >> we don't have a historical record of objection to. we have a historical record of acquiescence. >> suppose the senator says i object to that, but what can i do? the only thing i can do is impeach the president, right, for violating the constitution. and he says it's not worth it for one of the officers on the nlrb. >> well, if the congress as a body thought this was inappropriate, they could take legislative action, and they never have. >> you say that action would be totally uneffective. >> well, we certainly agree on the criminalizing point, but in terms of the pay act, for example, they just never in their original consideration of the pay act and subsequent, they never tried to address this. now, if i could turn to -- >> and people object all the time to things that, in fact, they can't do anything about, right? >> yes, your honor, and that's

an individual objecting. it's not the senate objecting.jv >> [inaudible] >> pardon? >> reports -- your six minutes couldn't be up. [laughter] >> no, take a few more minutes. >> i was thinking the same thing here. [laughter] >> there were a couple of committee reports, but i believe those were on the "happen" issue, and let me turn to that, if i could. now, your honor had pointed out the number of appointments. as i said, don't take that chart as comprehensive. we said in our brief it's not, we think there are many more, and, of course, 3d presidents have made -- 39 presidents have made those appointments. now, the purposes of the clause, as we discussed earlier, are far better served by our reading. jefferson gave a reasonable textural reading, and your honor asked about the pay act. it says if a nomination is

pending -- >> i'm, 30 days and the reason i'm doing this is it seems to me, hypothetically at least, a real matter for the political -- [inaudible] to resolve among themselves. now, we have to decide this. so i thought, well, why not look and see what congress objects to the least. and i got that 30-day thing from the pay act, my analogy, so i want to get your view on that. >> yes, of course. what i would point out by analogy also is there is another provision in the pay act, the very same statute that says so long as a nomination is pending, the same expression of congress' views about what's appropriate, what they care about is that -- >> well, that was that senate. i mean, that's not the senate that's sitting now. you're attributing the views of one senate to a senate over time. >> that's an expression of the law of the united states -- >> i'm really interested in how you think the 30-day idea, if practical, plays out in terms of your concern. >> well, i think it, as i said,

i think there's an equilibrium here, and the 30 days doesn't fully capture it. and let me just talk about that, if i could. >> briefly. >> yes. thank you, mr. chief justice, briefly. the vast majority of appointees are submitted for advice and consent. that was true historically, it's true now. the vast majority of recess appointees areyç subsequently confirmed. so it's just not the case that this is an end run around the advice and consent rule of the senate, and there are powerful reasons, of course, why presidents do that. they don't want to have temporary appointments if they've got to deal with vacancies again. they don't want to necessarily create interbranch friction. if you go with responsibilities on the pro forma issue or under, on the two underlying issues that the d.c. circuit rules on, you really are writing the recess appointment power out of the constitution, and that's antithetical to the liberty-enhancing properties of separation of powers that massey

described in federalists 51 because ambition counteract ambition. you shouldn't disarm one thing. thank you. >> thank you, general, the case is submitted. >> the homeland security department's 2014 quadrennial review outlines the department's priorities over the next four years that will shape planning operations and acquisition decisions. here on c-span2 we're live at the center for strategic and international studies for a conversation on that report which was released last week. they will hear today from assistant secretary of homeland security alan cone, he covers strategy, planning and analysis, and this should get under way shortly. [inaudible conversations] ..

[inaudible conversations] [inaudible conversations]

[inaudible conversations] >> here on c-span2 we're live at the center for strategic and international studies waiting to hear from assistant homeland security for strategy alan cohn will be laying out the department 2014 quadrennial review, which focuses on planning and operations and acquisitions over the next four years. looks like it will be a couple minutes before they get under way. we will show you the homeland security secretary jeh johnson, he testified before the senate judiciary committee. in his opening comments focus on

the increase of unaccompanied children immigrants crossing the border. crossing u.s.-mexico border. we will show you that as much as we can until the csis event get started. >> as you noted the numbers are rising from 2011, or proximate 6000 that year. this year, there will be multiples of that. this correlates with an overall rise in illegal migration into the rio grande valley sector, principally from what we refer to as third country nationals, those from guatemala, el salvador and honduras, approximate three quarters of the population. to meet this surge we had to search resources that are normally dedicated to things such as border security. i saw the situation differently myself on may 11 when i visited

mcallen station processing center. it happened to be sunday mother's day. i approached a 10 year old girl and asked her where's your mother, and she told me, i don't have a mother. i'm looking for my father in the united states. i returned to washington the next day determined to do something about the situation. undeniably there is a problem of humanitarian proportions in the rio grande valley sector that we must deal with. so here's what we're doing about it. number one, on monday may 12 -- >> our international degree program includes the homeland security program, security is one and i'm very pleased today to be able to introduce and then fall on end the conversation with assistant secretary alan cohn from the department of homeland security. allen is relatively new expanded

tell of responsibilities is for strategy, planning analysis and risk of not sure what's left out of their but there are other people at dhs, so presumably the escaping of the people employed be on those areas. in addition to leading the qhsr, both the last one and this one, the first, the last one, he's also critically important for what comes after the qhsr and what hopefully will talk about that today in terms of linking strategy and the department processes for executing strategy. alan and i have known each other quite a long time. we are fellow travelers on quadrennial reviews. might are the quadrennial defense review's of the past, but also for together on interagency reform efforts both here at csis and private security national reform. alan is a member of the career executive senior executive service and he has been since 2007, and of note he has also

served plenty of volunteer time as a first responder. he responded to the 2005 hurricane season september 11, 2001 attacks. and the 1993 world trade center attack. so with that let me turn the mic over to alan and let him provide us an overview of the qhsr and then we'll have some conversation. thanks very much. [applause] >> thank you so much, kathleen. i appreciate that. thank you all for coming today but it is a privilege to be here. as kathy notably worked together on many different issues and it's nice to be or to be able to talk to all of you in this environment and this forum about the review that we released. so what i wanted to do was take the opportunity today to talk to all of you about the review

itself, some of the findings and also how it fits into the larger initiative on the unity of effort within the department of homeland security that secretary johnson initiated soon after he arrived at the department. so for those who don't know what the quadrennial homeland review is it is a mandated review that the department undertakes every four years and it really has two dual purposes. number one, is to make recommendations regarding strategy, long-term priorities of the nation for all my ticket. so looking out nationally across homeland security. second, is to articulate guidance on the program's assets, capabilities, budget, policy and authorities of the department of homeland security. the department of homeland security is one part of a larger enterprise of the federal and

state and local, territorial and tribal private sector, international, partners of all types as well as individuals, families and communities that all have a place in keeping the american homeland safe and secure. the first qhsr we deliver to congress in early 2010, and that qhsr, that first qhsr really answered the question, what is homeland security? it establishes a series of concept, laid out a vision and a set of goals and objectives for homeland to be. some of the key things that were taken in the first we do, number one, homeland security has a forward-looking vision and mission and responsibility. it is not a question of sitting and waiting for the next bad thing to happen. it is ensuring a safe, secure and resilient american homeland, and doing that together,

partners and stakeholders of all types. following on that homeland security is carried out through an enterprise. again the department of homeland security is just one piece of the larger national puzzle looking at responsibilities and authorities, competencies and effective actions, wide variety, organizations and individual. third was homeland security deeply rooted in american history. we think about homeland security. we think about the attack of september 11, but the concept of homeland security is really about the intersection of traditional governmental and civic responsibilities with new and emerging threats and challenges. we think about things like civil defense, customs, borders, law enforcement. these are things that go back in many instances, decades if not all the way back to the founding of our republic as they are

foundational elements of any nation's ability to keep its population safe and secure, and resilient. we articulate in the first review under want to talk more about how we furthered in the second review that homeland security is essentially about managing risk to the nation, not, and every secretary from secretary ridge to secretary chertoff, secretary napolitano, now secretary johnson have highlighted that we face a range of threats and hazards, that they posed different degrees of risk, and that we need to look at managing that risk to a level that is acceptable to the nation. that is our charge at homeland security. fifth, domestic security is part of the overall national security establishing that this is something president obama articulated in his first national security strategy, and it's been a theme ever since.

and that you see a code in both quadrennial reviews. then the last thing of note on the first review was the articulation of cybersecurity and national resilience, going all hazard emergency management. at its core homeland security management missions. all of these foundational elements, all of these key concepts carry over to the second review and carry over to today's conception of homeland security. the purpose of the second quadrennial review, therefore, is different. it's not to repeat this exercise but to build upon these key concepts, these key principles and look deeper and more extensively at challenges. so we did three things in this review. first, we describe changes in the overall security environment that occurred since the last review. that's looking extensively at the strategic environment,

looking at trends, future uncertainty and in particular looking through the lens of risk, strategic, national level homeland security risk. second is to update the goals and objectives that fit underneath the five homeland secret emissions. those missions into her but, of course, changes over the last four years as well as changes we can anticipate in the future advised us to update and renew that five mission framework. and then the third, this review takes the opportunity to articulate a set of ships mr. henke specific areas to best address the changed security and arm. and again in doing that the review reflects a more focused, more collaborative departmental strategy planning and analytical effort. and in that what takes an important foundational step

towards the secretary security of efforts initiative. so just a word on that. secretary johnson saw very quickly that enhancing departmental unity of effort was going to be a key element of the success of our department and, therefore, needed to be a key element of his time as the leader of the department. in april, secretary johnson released a memo internally within the department on strengthening departmental unity of effort, outlining his priorities for how the department will manage itself in a more effective way. how the department will build upon the successes that we have had and the capabilities and competencies and unique perspectives and authorities of each of our entities, to build an organization that is truly greater than the sum of its parts. and so that unity of effort initiative really takes, not only a more disciplined and focused look at the development of policy and strategy, but also

creates linkages and how we drive strategy and policy into execution, both on investment side with respect to joint requirements, capabilities, programs and budgets and major investments, but also in operation. how do we plan jointly for operation, how do we conduct our operations, individuals enjoy. ultimately, all in the service effectiveness that results for the american people. and so the quadrennial review provide some of that guidance and independent analysis, a set of clear and strategic priorities to inform the department path over the next four years. the process in conducting the quadrennial review will look familiar to anyone who's conducted a large-scale review

or if you followed large-scale reviews conducted across the international security space. but it basically has three phases. first was the preparatory phase where we assess the environment, and got guidance from our senior leadership. we can carry out studies in terms of reference, a set of study groups and meetings and discussions to evaluate decision analysis and make decisions. and ultimately resulting in a document that hopefully all of you have had a chance to see, to download, and look through. we are fact sheets on the table as you exit the room that would give you some us of the report itself and some of the key findings. so let's talk for a minute about that examination of the strategic and private because this is one of the things that was a priority for the second review. .org best assess the strategic environment from the homeland security perspective and draw

conclusions about drivers of change and strategically significant risk. we did a series of examination of both current and emerging risk, looking at trends, future uncertainties, systemic relationships as well as threats and a current picture of risk. we synthesized that into a set of risk and such, not just missed insights about today because of course looking at risk insight today comes up to think about too much about what has already happened and not enough about what may happen going forward. but to synthesize our current understanding of risk with our view of trends, future uncertainties, systemic and also relationships, to understand what made the risk picture look like going forward, what might pose the most strategically significant risk going forward. and this resulted in our

examination and our articulation of homeland secret strategic environment that you see set forth in the report. there's also an important nesting of the quadrennial review, the five homeland security missions, and the risk mayor is in the overall national security priorities and inheritance of the u.s. government. if you've read any of the national security strategies going back through administrations you see a repeated emphasis on for entering national interest, security and resilience the u.s. homeland, our economic prosperity, the living and advancement of our values, both here and abroad, and a strong and secure international order. each of these interests is reflected in the activities and missions of homeland security, and each of the nation responsibility of homeland security ultimately works to advance each of those interests.

and that leads to the set of homeland security missions again were first established in the first quadrennial review and carried over into this review. preventing terrorism and enhancing security is the cornerstone of homeland security, managing our borders, enforcing and administering our administration loss, safeguarding cyberspace and ensuring national preparedness and resilience. as well as maturing and strengthening the broader homeland security enterprise. these are enduring emissions of homeland security. but this review recognizes that there needs to be a deeper look at the strategic prioritization within the missions. and we are asked from time to time what is the prioritization of the nation. but again the nation's all serve those national interests. so how do we prioritize our activities?

and create priorities within those missions. and again the statements of every secretary going back to the first secretary of homeland security, gave us direction on the. we need to look at strategic national level homeland security risks to understand what those strategic priorities, those priorities over time need to be. what are the threats, the hazards, the challenges that face us as a nation within those mission responsibilities? what are the likely and consequences in each of those? and how do the trends and future uncertainties in the systemic causal relationships impact not only the threats and hazards and challenges themselves, the likelihood and the consequences with directionality to those trends and future uncertainties and systemic relationships suggest. this is my favorite slide. what we've tried to do is to distill down the strategic

environment into a set of six e. drivers and six threats, hazards and challenges that pose the most strategically significant risk over the next four years. so what are those drivers, and much of this will be a surprise. you can observe many of these things in the strategic environment now, and you know there are emerging issues in each of these areas. first, the terrorist threat is evolving. we know that the terrorist threat that we faced on 9/11 is not the same terrorist threat that we face today. the world is changing. the environment in which those who wish to do a message and it interest harmed our change. solvency ii needs to address adapt to those changes. but there are other drivers of change that are important for

consideration in the strategic environment. information and communication technology. when nine 9/11 occurred, there were no iphones. there were no ipads. there were no -- the interconnectivity and the speed of the transfer of information, were nowhere near where they are today. and the pervasiveness of information and communication technology and the way that it interconnects all things in the world had advanced dramatically at the time of the first quadrennial review and it has advanced dramatically can between that review at this. as we look forward into the environment, we see more of the interconnectedness of machine to machine, of a broader conductivity, and automation. we see that change will continue to happen in the area and driving that only threats

hazards and challenges but their likelihood, consequences, and vulnerability. natural disasters, pandemics and climate change your we know that these drivers have great impact on the strategic and private. we can see from events over the last few years increasing not only severity of natural disasters but the unpredictability of their consequences. as our world becomes more interconnected, as disasters happen in different and unpredictable ways, and as a cause cascading impacts to our communities, to our society, through our infrastructure. if you look at the homeland security strategic risk environment, the risk of pandemic stands out from even among those of the risks that we see. and we will talk about that in a moment, but a key driver of

concern about threats and challenges, vulnerability the strategic environment. interdependent systems and networks. when 9/11 occurred without the primary threat to our infrastructure was kinetic. individuals wishing to do us harm, could bring harm to infrastructure through kinetic means. we now know the infrastructure is just as vulnerable to weather, to cyberintrusion, and to its own age and consequent vulnerability. and so both the interdependence and age of our systems and networks provide questions and challenges force going forward. they also provide opportunities. as that infrastructure is updated. gives us the opportunity to build in more resilience, more security, more forward-looking emphasis on the way that we construct and think about our

infrastructure base. the volume of people and goods transiting through the flows that come in and out of the united states. if you look at the speed and the blog of flows coming in lawfully through our ports, our borders, that's increased at a dramatic pace and it is only going to increase. and so we need to be postured in a way that we can keep up with effectively with that flow of people and goods which is so critical to our economic well being. the same time increase flow of people and goods on the lawful side can also mean it'll of people and goods on the unlawful site. transnational from our physicians and others who exploit local pathways and to create their own unlawful pathways for the introduction of dangerous or illegal goods and items. and then finally budget for

drivers. fiscal environment, the overall national fiscal environment puts pressure on all elements of the homeland security enterprise. not only the federal government that state, local, territorial and tribal governments. most parts of the private sector, many of our international partners, and most individual families and communities all feel the pressure of the current fiscal environment. and so how do we effectively assured security and resilience of our nation in that environment. so those six key drivers which we have represented in what we call any city u.s.a., some of the key trends and the key statistics that you see on the slide drive us to a set of strategically significant threats hazards and challenges. so what are the first, the character we talked about is

evolving to remain significant as the tax planning and operations become more decentralist. the united states in its -- particularly in the transportation sector remain persistent targets. second, growing cyber threats are significant increasing risen to critical infrastructure and the greater u.s. economy. third, biological concerns as a whole, including bioterrorism but pandemics, foreign animal diseases and other agricultural concerns and/or top homeland security risk because of the potential likelihood and their potential impact. nuclear terrorists. through the introduction and use of an improvised nuclear device, while unlikely, remains an enduring risk because of its potential consequence. transnational, criminal organizations are increasing in strength and capability driving risk through human trafficking, illicit drugs and other illegal

flows of people and goods. and, finally, natural hazard are becoming more costly to address an increasingly variable consequences driven by trends, due to climate change and aging infrastructure. so i look at the environment, identify the set of drivers and that allows us to discern a set of strategically significant risks, threats hazards that pose the strategically significant risk over the next four years. some of the guiding principles that we articulate in his second review. first, again, the cornerstone is preventing terrorism but homeland security must be multithreaded and all hazard. we talked about in the first review how all-hazards emergency management was a fundamental element of homeland security. in this review we recognize

again what i really that everyone in this environment knows, is that homeland security is multi-threat as well. second, something equally a parent on its face to the operates in this area, homeland security supports economic security. through ensuring a safe and efficient movement of a people and goods through lawful means across our borders, in service of our economic well being and health of the nation, homeland security and economic secure to our intertwined. homeland security requires and network committed in the first review we talked about the homeland security enterprise. this review recognizes we must strive to network that enterprise together. to share information, to share best practices, to build capacity so that we can all work together towards a common end. fourth, that homeland security relies upon the use of

market-driven solutions and innovation. we must recognize as a market niche are some of the threats and hazards and challenges that we face, and recognize that vast potential of market solutions and partnership across public and private sectors in addressing threats hazards and challenges. fifth, and though it should need no repentance is, we do so, homeland secure uphold civil rights and civil liberties. think about the national interests that have been articulated and success of manchester strategies. our homeland security activities serve all of those interests, including our values here and abroad. and sixth again, homeland security is national risk management. so this review makes the effort to evaluate the entire become articulate those threats, hazards and challenges that pose the most strategically significant risk, and articulate

strategies either new or ships or great emphasis the things already done to address those most strategically significant threats and hazards and challenges. with apologies for the chart, this is again the mission framework for homeland security. the five missions that we discussed and there some elements and maturing and strengthening the homeland security enterprise. this review emphasizes this mission framework and structure and updates the goals of objectives underneath reflect changes over the last four years and changes that we foresee going forward. so what did was look at in this review as a result? there were five studies, links to findings of the strategic environment, guidance from leadership, and then we

emphasize the approach you're taking to other challenges, hazards across the homeland security environment within this review. so this review talked about how we will secure again the evolving terrorist threat, how real safeguard and secure site yesterday. it articulates the homeland secure strategy for countering biological threats and hazards, building on all of the work that has been done before but recognizing not only the enduring nature of the threat by the increasing nature. the review articulates and risk segmentation approach to securing and managing flows of people and goods. what does that mean? it means that different types of threats and challenges that face the country through the flow of people and goods are different, that just the point and speed of lawful good is different than the profit motivated actions of transnational criminal

organizations is different than the ideologically motivated or naturally occurring challenges that can come through the flows of goods and people entering and exiting our country. and, finally, that the review examined and articulates the basic way of thinking about executing our mission through public-private partnerships. again building on all of the work that's been done, not only over the last four years, but since the inception of the department on public-private partnership in a number of different venues. based on the strategic environment, our mission responsibilities is to review also the approaches we are taking to countering nuclear terrorism and using an improvising nuclear devices to our approaches to managing the challenges and opportunities of immigration, and the approaches to national preparedness and our whole community approach.

okay, so what does the review say about each of these things? with respect to the terrorism threat, again, the nature of the terrorist threat to the united states has changed dramatically since september 11, 2001, attack. just in 2009 in the publication in the counted of the first quadrennial review, we've seen a rise in al-qaeda affiliates which is al-qaeda in the arabian peninsula, which has made repeated efforts to export terrorism to our nation. that's one challenge the extreme challenge come into our homeland, but we also know that we face the threat of domestic base, low defenders and of those were inspired by extremist ideologies to radicalize the files and commit acts of terrorist violence against americans and the nation. answer the second quadrennial review outlined an approach to focus on countering violent extremism and help to prevent attacks, building again on the

strategies and policies articulated by the president and by the department in this area. the approach to counterterrorism is shifting and evolving approach to preventing terrorist attacks, prioritizes identifying, investigating threats as soon as possible, providing support to international partners, to increase border management customs integrity, and law enforcement capabilities and capacities, and use information received in advance, based on risk waiting for, rather than waiting for a viable in the united states. these are concepts that has been substantiated in our approach to terrorism over successive administration. we reemphasized these areas and articulated new and evolving ways to use these types of approaches to counter the terrorist threat as we see it today, and as we see it evolving in the future.

safeguarding and security cyberspace. each and every day the united states faces a myriad of threats in cyberspace. from the theft of u.s. international property, the cyberintrusion come to denial of service attacks in public spacing website and intrusion of u.s. critical infrastructure. to address these threats we've identified four strategic priorities. strengthen the security of the site is of critical infrastructure by leveraging the work being done pursuant to executive order 13636 on an prepping cybersecurity critical infrastructure, and presidential policy directive 21 on critical infrastructure security and resilience, each of which builds on previous efforts, u.s. government and national efforts to strengthen, safeguard and secure cybersecurity.

securing the federal civilian government information technology enterprise by helping agencies managed cybernetwork, dancing law enforcement incident response and reporting capability. with close good nation with our partners across the law enforcement, response and the reporting community. and strengthening the broader cyber ecosystem by collaborate with committees domestically and abroad, standardizing information sharing practices, developing a skilled workforce. with respect to biological threats and hazards, as noted again, the strategic and private assessment and this is a strategic significant risks continues to point us towards biological threats and hazards. not just bioterrorism but emerging infectious disease, foreign animal disease, agricultural concern are the top risk we currently face and the risk that is only growing over

time. so how can we best build on the work that's been done to date? the lessons had been learned and implement from previous events, reviews exercises, our approach is to stop instances from involving priority threats and hazards before they escalate while ensuring that those partners have the capabilities and capacity necessary to manage and respond to midrange biological incident. and so what does that mean? prevent those biological incidents from occurring were possible to improve risk informed decision-making, identify biological events early, improve confidence to act not just within our department, not just within the federal government, but across the whole homeland security enterprise. respond and recover effectively

from biological incidents, maintaining vital services and functions during and after biological incident, maintain our ability to continue to function not only as a societal structure, our critical services should an event of this type occur. with respect to managing flows of people and goods, again the movement of people and goods around the world has expanded dramatically in recent years. as the bottom of global trade and travel increases the potential for illegal just for the people and goods across our borders also increases. the department of homeland security and our partners continue to secure and manage flows of people and goods to ensure economic prosperity and minimize risk. based on an in depth look at the flows of people and goods, we see three distinct but interrelated types of flows, each of which requires a different risk based approach by dhs on our part, different but

inherently interrelated. first the legal flows of people and goods, how do we stay ahead of increasing flows come increasing volume, increasing demand and not only safeguard but expedite the flow of lawful, unlawful flow of people and goods into and out of the united states. second, market or profit-driven unless the flows of people or goods. transnational criminal ordinations and others, to bring illicit goods into the united states and read profits from those activities can but they do this for profit. and so how can we tailor our approaches to best approach those activities, different to lawful challenges and given an ideologically driven judges. third, terrorism and other nonmarket concerns. ideologically driven threats and challenges are naturally occurring threats and challenges. how do ensure that these neither

disrupt lawful flows of people or goods, nor exploit them for ill purposes. segmenting flows of people and goods in this way permits more focused strategies, more efficient allocation of resources. strengthening the execution of our mission through public-private partnerships. many of you are probably doing with the national infrastructure protection plan and our overarching framework of cooperation and coronation with our private sector partners through the 16 critical infrastructure sectors and a network of sector specific agencies across the federal government and sector coordinating council's made up of our private sector partners across industry. this is a very strong and important set of public-private partnerships for homeless if you do but it is not the only set, whether it's the coast guard captain to port relationships with shippers from state and local law enforcement, our partnerships across the movement

of people and goods across the u.s. government with the private sector and with other partners. there are many examples across homeland security and across the u.s. government of governmental relationships, agreements with private sector partners to enhance security and safety and ensure national resisted all that each emerge from unique circumstances and specific challenges they are important, knows, models, lessons learned and best practices that can be applied to a range of other homeland to be challenges. the qhsr provides a structure where think about partnerships that focuses on a couple of key things. first of all what is the partnership aiming to do? second, what are the interests that are at play come what are the public interests, what are the private interests, and how do they align? where are the shared outcomes?

what are we together trying to do? whether that's on a day-to-day basis, whether it's in the event of a contingency or crisis, or whether that's meant to be a relationship that can spam through both that we use on a day-to-day basis and can scale up to work effectively in crisis here and thinking about shared outcomes, aligned interest, what are the models, the archetype, the ways we might structure public-private partnerships to do things. obviously, information sharing sits at the heart of public-private partnership, but there are other models that go beyond information sharing. and end the review and a companion document seem to be released, we talk about the different models and archetypes, the ways of think about interests and outcomes and aligning them under common

archetype and models. and we do this as a toilet only for ourselves but for the entire enterprise to think about how we can use public-private partnerships, most effectively, to reach our common and. in addition to these areas, we also emphasize again our continuing approaches, our renewed emphasis on countering terrorism using an improvised nuclear device, on advancing rational commonsense, comprehensive immigration reform, and advancing national preparedness and resilience. under the mechanism of the national preparedness system, the post-katrina emergency management format, the presidential prepared as directed, all of which set up a comprehensive national preparedness system for prevention, protection, mitigation, response and

recovery. a key element of the quadrennial review and every quadrennial review is engagement with stakeholders. in the first review we engage with stakeholders through a variety of manners it in this review we sought to strengthen and deepen the engagement with the homeland security community in informing come in informing the studies and the conclusions of the review. to that end we conducted extensive engagement with three sets of key and critical partners. first comment we sought to use this exercise as an effort to bring greater unity within the department of homeland security, so reaching across all of our component, our offices and our directors and leveraging subject matter expertise from across the organization. but that's only the starting

point. we looked also across all of our federal partners, even with congress, entities within the executive office of the president including financial security staff and other offices within the executive office of the president and, of course, our key and critical partners across the federal interagency, whether that's the department of defense, justice, state, health and human services, and a wide array of others in discussing and arriving at conclusions for how we address homeland security threats and challenges. and then beyond that homeland security communities of interest. again, we wanted to deepen our engagement with those people in the kennedys are products, those people on the frontlines of conducting homeland security activities day after day -- communities, and receive their input and advice. and we did that primarily

through to online venues, a platform for so many ideas called ideascale, and the first responder.gov committee of practice administered it to our science and technology directorate. and through al all of that, not only that enable us to gain greater input from the broader homeland security enterprise, but it allowed us to ask hard questions come to gain input and provide the opportunity to comment, to agree and disagree, add new ideas. through that engagement we had over 2000 unique registrants on the ideascale and community of practice. we have submitted over 200, nearly 250 new ideas come again over 2500 comments and over 11,000 votes on different targeted questions, issues, comments and other issues raised on the site. and that input and analysis,

those questions, ideas and comments track, brought back into her studies and incorporated in the analysis that led to the final decision-making. so where do we go from here? again, a strategic review is an important thing, a strategic review of vows and organization and partners to examine its principles, its missions and its goals to look at the strategic environment, to engage together in a discussion, sometimes difficult, about priorities, about approaches. and a way to communicate that to the broader committee as a whole. in particular to our homeland security communities of interest. but it's only as good as the execution that follows it. again, secretary johnson through his unity of effort initiative laid out a number of different ways to which the department will be taking steps and is

already taking steps to improve our ability to survey the strategic environment, to set policy, to define strategy. and then to take policy and strategy and drive it into execution come with the way we do investment. again, the examination of capabilities and requirements through a close examination of our programs and budgets and the ways and manner in which we invest and make our major investment. and also in the ways that we operate, the ways we communicate and coordinate with our partners, in the ways that we plan for operations, both individually and together, and the way that we execute our operation. ultimately homeland security as an operational activity. it is about the execution of activities to keep our nation safe, secure and resilient. and so this quadrennial review forms an essential element and an underpinning element of the secretary's unity of effort

activities. so in conclusion let me just say thank you for the upper today to walk you through what we've done in this review, to talk to you a bit about the findings that we have reached, and open to you the opportunity for dialogue come for discussion. i know that we will have a discussion about questions and then you hear from and outstanding panel of individuals who have a long history in this area, and we will have deep insights for you on the findings of the review and other thoughts about homeland security. so with that let me conclude my remarks. [applause] >> thank you very much, allan but as he said, i neglected to make at the beginning that we do

have a fantastic panel following. so we will try to get you out on time but i know you have to leave your right around 10, and into the audience has some questions but i do want to raise a few myself. the first is from your perspective having done the first 10192010 and now this one in 2014, what do you think has really changed the most inside the department homeland security or across the broader homeland security sector that really affected the way in which this review was put together or its applications? >> that's the excellent question, and i think that the second would be reflects a maturing in a number of ways. number one, that the homeland security enterprise as a whole is a greater understanding itself and of its threats and hazards and challenges that it faces. as we conducted an analysis and evaluation of trend, uncertainties, systemic

relationships, risk, we were able to draw on not only the subject matter expertise across our department and across the federal government, data and analysis, collected across the homeless to get into price, and that only strengthened our ability to look at ourselves and ask these difficult questions. second, is the ability of our department to wrestle with these questions are self. i think that this review reflects an enhanced ability of our department, not only are subject matter experts but our leaders to really grapple with these issues together and to look at shared and joint approaches. and i think you see a maturing of the way that the overall homeland security enterprise can grapple with these issues. obviously, as we talked about with the strategic environment, the environment has changed. the threats and hazards and

judges havchallenges have evolvo we need to be in constant dialogue with each other about not only what is changing but how we change our approaches with respect to those. >> and i did want to get very drunk at the next question is about th the changes and the threatened by the, some of which you walk through. one that sort of popped out as we look at here at csis is that the increased emphasis and reframing on the bio threat. some interested on how that's a bald any thinking of you think the threat has evolved or think about the threat has evolved. and more generally, you know, given the rapid evolution of the threat environment and the changing nature of how the risks lay out, how challenging do you think that is to have a risk framework type to an annual budget process with a rapidly changing environment that something the entire national security team grappling with? and to give lessons learned from

the work that you'll have done on risk management it would be great to hear. >> well, i think he, i think a using a risc linz and conducting national risk assessment is absolutely essential to thinking about homeland security. again homeland is an exercise of national risk management. and exercise we all engage in, it is a thought process that we all go through. conducting the strategic national level of risk assessment is one element of that and we are aided in that by lessons learned from some of our international partners have been conducting these types of assessments and finding very similar results. in particular, finding similar things about the risks of pandemic disease and biological challenges. we are also aided by the growing network and ability of localities and states and regions to conduct threat and hazard identification risk assessment processes on their own with assistance and support

through fema as part of the department of homeland security. insecurities all over the country, states and regions are conducting their own threat and hazard identification and risk assessment processes, can be married in to the strategic national look at risk. risk isn't the only way that we prioritize our actions but it can help us from a strategic national perspective identify strategic national risk. but those aren't the only types of priorities we need to grapple with. the art shorter closer in challenges, emergent issues, but a risc approach allows us to set strategic priorities and to look to reach in overtime. and specifically with respect to biological challenges. i do think that the challenges posed by biological threats and hazards as a whole are things that are known by the committee, at different times since the inception of the department we've grappled with challenges

posed both by bioterrorism events, in particular anthrax, but also with a series of different naturally occurring events that the potential to cause human pandemic, whether that was stars or different varieties of influenza -- sars. we took the opportunity in this review to look both from a risk perspective and a strategy perspective as those challenges as a whole. because we understand that while the motivations and causes may be different, in many ways not only the ways that we would detecdetector otherwise known ah an event was occurring and steps that we would take to address it as a nation are largely the same. and so the quadrennial review gives us the opportunity to do things, not only to be able to identify such a risk by to lay out a strategy that we can seek

to implement overtime as part of a larger set of priorities, to address that risk and not have to wait for an event to occur for us to take action to address the risk. spent okay, thank you to in the interest of time because we are running short, what i'm going to do is have a couple of people ask questions, collect those for alan. he can answer them. i do ask that you make it a question because we really are short on time. no statements, please come and give your name and your affiliation. we have folks with microphones so go ahead and raise your hands if you have questions. we have one here. we will keep going after the question. >> good morning ladies and gentlemen. [inaudible] thank you very much for your presentation. looking at this how are you working with international public and -- with the government, private sector and communities?

because when it comes to traveling, transfer people, you know, and food, maybe from africa -- [inaudible] how do you work with international communities to make this priority of homeland security? protect the country. >> other questions? there's one right here. spent thank you. i am with the minis america's. in the assessment of the threats would you tell us which one, how percentagewise the state actors and nonstate actors, and also have you been able to utilize all of our network, including congress, you know, the department of state, department of defense, all that together to share information? prevention is important and have

you seen the relationship between our foreign policy inside the country? thank you. >> and then i have one back here. then we will stop. >> you made mention of our aging infrastructure. just in case another huge earthquake would happen, especially on the pacific side of the countries like california all the way up to alaska, because our infrastructure our aging, just how resistant our infrastructure? that's it, just in case the country might be strong children of quick happen, think he spent so the three questions are essentially how well are you partnering internationally, presumably also in your outrage for stakeholders on qhsr, the threats of state versus nonstate, the relative threats, and also how well are you sharing information on mitigating threats across in the

agency, and then infrastructure. >> those are an excellent set of questions. on our international partners, ma this is something that was recognized early on and that each of our secretaries has emphasized, together with her other partners across the federal government, is that, in state and local level as will w, engage with our international partners is a critical to addressing these threats and hazards and challenges. and we have a wide range of cooperative relationships with counter bashing entities across the globe as well as relationships with nongovernmental organization's and civic organizations aimed at addressing this wide range of threats and hazards and challenges. ..

it's difficult to put a percentage on those things. what is most important to recognize is that threats and hazards and challenges emanate from all of those different sources and that can fluctuate over time a strong trends and uncertainties and other types of drivers so it's illustrating highlights the importance of looking across the strategic environment as we think about the range of threats and hazards and challenges. to build on the