we need this thing to work at hh s, and we are counting on you to make it work. thank you. [captions copyright national cable satellite corp. 2014] [captioning performed by national captioning institute]

>> attorney general eric holder has announced that the new justice department initiative aimed at building trust between local law enforcement and the civilians they serve by providing training. he said the effort is a response to what happened after the police shooting in ferguson misery last month. the attorney general discussed the new initiative at the

justice department last week. [inaudible conversations] welcome to all of you including the members of the media. it's good to see you all. i am delighted to convene this meeting of the sentencing disparities working group attorney general's advisory committee. this is the group i'm charged

with examining sentencing disparities and developing recommendations on how we can address them. i want to thank all the leaders who have taken the time to be here particularly the united states attorney carter stewart and all they been doing to advance the work that i believe to be extremely critical. i look forward to discussing their ongoing efforts with them later this morning. before we move into the formal agenda like to take this opportunity to make an announcement that i think is extremely important. as we saw all too clearly last month as the eyes of the nation turn towards ferguson misery whenever discord mistrust and growing tensions are allowed to fester just under the surface interactions between law enforcement work -- law enforcement and local residents are more likely to escalate into confrontation arrest and even violence. as i have often said i believe forging strong bond and establishing trust between

america's law enforcement officials in and the communities we serve is really critical to maintaining the public safety gains we have achieved in recent years. director ron davis of the office are providing critical leadership. we cannot allow tensions were present in so many cities across america not just in ferguson but many neighbors goods across the country. we can't allow tensions to go unresolved leap issues intentions to go unresolved unresolved. a fun person leaders each of us has an obligation but we also think we have a unique opportunity based on what happened in ferguson to ensure fairness to eliminate bias and to build community engagement.

establishing a substantial and focused effort to foster review trust and credibility and today we are anointing the formal launch of the national initiative for building community trust and justice. to kick off this work the justice department is awarding a three-year grant totaling $4.75 million to form a new partnership with a consortium of criminal justice experts from the john jay college of criminal justice along with the yale university center for policing equity at ucla as well as the urban institute. we are fortunate to have these experts with us here today some of whom i work with over the years. each of them has extensive experience working with the state and local police departments as well as the communities that they serve to address these issues and they have assimilated evidence-based models that they will refine and

expand in communities facing an array of challenges stemming from suspicion as well as from distrust. together we will undertake five major activities testing strategies and providing training on equal justice bias and racial reconciliation creating a central information clearinghouse that will offer technical assistance to the field. expanding knowledge through research, developing material to help carry that research into practice and promoting public discussion of issues around race and policing. now this is going to be an enduring partnership, one that is made possible by leveraging the resources from our office of justice programs as well as the office on -- these experts will inform that at the justice department will collaborate to amplify its effects. going forward this is an issue

that will be advised by the national board of law enforcement practitioners and community and faith-based leaders who work in close collaboration with the justice department. after all at its core this work is about far more than the steps that law enforcement can take to bridge the divide of trust. it's also about the responsibility to community has to engage constructively with police. the national initiative for building community trust and justice represents i think a major step forward to resolving long-standing tension in many of america's communities and it will allow us to build on the pioneering work with the justice department and our law enforcement partners across the country are already doing to strengthen some of our nations challenged areas. i look forward to everything that we will achieve together as we move forward and i want to thank again all the experts who have gathered here today as well as the united states attorneys for their service and for their leadership in what i think is going to be an interesting and

productive project. we will make law enforcement better in this country and we will bring together communities that have distrust of law enforcement today but i hope in the future we will see law enforcement as a service that we all are and bring together communities as well as law enforcement. so thank you all very much. >> in the new supreme court term beginning october 6 the court has agreed to hear cases relating to congressional district gerrymandering religious freedom in prison and freedom of speech on the internet. attorneys specializing in constitutional law preview the upcoming court term at an event hosted by the federalist society. this is an hour and a half. [inaudible conversations] >> good afternoon welcome.

it's the season of the federal court review and this is the -- this is also the season where we have two kinds of cases before the supreme court. they have granted a lease 40 cases some of them quite interesting and you'll hear about them today but also on the horizon there are some real blockbusters that could really transform american life including seven petitions the justices will consider at their first conference of the new term on september 29 concerning the question of constitutional rights and same-sex marriage and not far behind at far behind that challenged another aspect of the affordable care act and perhaps also on the horizon conceivably this term affirmative action and abortion say you have two things going on at once as is often the case with the court. we have today with us a very

distinguished panel. i have never been to a panel that was not introduced as a very distinguished panel but this one authentically is that. with us today are oren kerr from george washington -- he is quite plausibly to say the nation's leading expert on the fourth amendment and it's a pleasure to have him here. he was a clerk to justice kennedy. will consovoy a partner at the wiley rein firm and clerked with just clerked with justice clerked with justice time us. virginia sykes has gone back to her practice at sibley and often after service as attorney general in the office of counsel at doj. she was a clerk to justice brennan. adam white counselor boyden greene associates and well-known to a lot of us as a frequent contributor on legal matters to

"the weekly standard" and "the wall street journal" and other publications. carrie severino chief counsel and policy director of the chief counsel network and also a frequent voice in the media. she clerked for justice thomas. i should have introduced myself. i am adam liptak and i covered the supreme court for "the new york times." what we are going to do is set up maybe a dozen different cases mostly granted, couple on the horizon moving from panelist to panelists with maybe just a little bit of exchange between us. if someone has an insight and something to have been a brief discussion among ourselves and we will turn to your questions. we are going to start with oren. >> thank you adam and thanks to the federalist society for the imitation here that i'm going to run through free cases in five minutes so it's going to be really fast. just introducing three cases and of course we can come back to

them later if you would like. one of the interesting cases this term gates versus the united states raising the question which i know is on everybody's mind which is are red grouper fish tangible objects under the sarbanes-oxley law? this is a case involving criminal statute that makes it a crime to knowingly destroy altar or mutilate any record document or tangible object. the question in the case is whether a tangible object means a storage device for some sort of record or document or whether it means just anything that is an object that is tangible and the facts of the case are drawing a lot of attention, i think properly so. it's involving an individual who allegedly or was convicted of ordering his employees on a fishing boat to throwback red grouper that were undersized facing an investigation of a

civil violation of harvesting fish that were too small. the question is whether the fish are tangible objects. it's really a statutory construction case involving how broadly to construe the sarbanes-oxley law and i should also add that i joined an amicus brief on the defense side arguing that the statute should be narrowly construed under the rule of levity. that is gates versus the united states. alanis versus united states is the facebook wrap threat case involving a question of how to construe the interstate threats statute section 875c involving transmitting a threat. it involves an individual who posted on his facebook status updates involving what could be construed as threats against his life. he at one point threatened to go to an amusement park or go to a

school and perhaps commit a violent act at the school. he argues that it was simply, he was joking around. he's an aspiring rap rap artist in effect during a status update two is was talking about true threat jurisprudence and he's first amendment protected, sort of an odd situation. what is the true threat and individual posting about what is a true threat to the first issue in the case is whether there's a subject requirement. you know what he was doing was not a serious threat if you interpret was a threat based on a recent portion would think or select individual subjectively believed. kind of can you have an accidental threat is the question. a big issue i think on line because you read something on line and you don't know what the person was thinking. are they intending that is a serious threat or was it just a joke wexler to tell from context and then if the court construes the statute as not requiring the

subject of their apartment the next question is whether the first amendment allows that, whether the first amendment prohibits negligent threats statute. the first first amendment question if the court does not resolve the case on statutory grounds and i should add that i gave a very small amount on the defense side for that case. the last case i want to talk about is ryan versus north carolina a fourth amendment case involving reasonable suspicion to stop the car in which drugs were found. it involves a north carolina traffic law that says you have to have an operating stop lamp. the individual in the car was stopped because they had a tail light out. the officer pulls over the car for having a tail light out. the north carolina court of appeals construed the statute is requiring a stop lamp. that is you'll need one operating tail light. this was a traffic law that was

drafted a long time ago. so the court says well there was no violation actually. it's totally lawful in north carolina to drive with one taillight out. >> news you can use. >> news you can use in the question in the cases in the case is whether you can have reasonable suspicion to stop someone under the fourth amendment based on a mistake of law. that is a reasonable mistake that you would think that that's unlawful but but actually it's not unlawful or whether you have to sort of hold the government to the law as it is actually construed by the courts even if that construction happens later and it's counterintuitive construction. it's really a question under the fourth amendment about how you interpret reasonable suspicion, probable cause and if there is a counterintuitive reading of the law that happens later they hold the officers to that interpretation. so that's a quick run through. >> you are the rare panelist who

was told to spend five minutes and spends many fewer than five minutes. let me ask you a question about this last case. in general you have avoided giving a kind of take on the right answer or a prediction about what the court might do. i wouldn't mind all three cases that let me ask you this on the taillight case. am i right in thinking there would be a gap or in between the criminal defendant as i understand from all the cop shows i have seen can't say i didn't know that was the law therefore i get off. the cop saying i didn't know the law but yet i can search your car. >> yeah, my own view is that the defense should win the case because the maximum ignorance of the law's note excuse should apply as much officers as a dozen individuals and also i think it's very easy for the government especially the traffic content. it's hard to drive without

violating a traffic wombats including one mile an hour over the speed limit. so it's not like the executive branch of the state or federal government lacks the power to go to the legislature and say okay we should have a law, should be on lawful to drive with one broken tail light. this is something that is easily fixed by the legislature and ultimately the court was right in its construction of the statute which i would have to assume they were, the individual who was driving was doing absolute nothing wrong and shouldn't be pulled over for it. >> what do you suppose the court will do? >> is hard to know. what makes the case a little bit tricky is that you could interpret this case in two ways. the case is not handling the remedies aspect of this case so you could say there's no exclusionary rule. it would be the same result as if he said it's lawful. i suspect that the court have exclusionary aspect of this tin they would say the exclusionary

rule doesn't apply so they might kind of say, it may be a case that ultimately makes no difference and makes it conceptually interesting but may not have a whole lot of ratification. >> let's turn to will consovoy. >> i have two cases to cover here today. the first is pulled versus cost. and once as it comes across as a straightforward question of federal law under the religious land use and institutionalized persons act of 2000. the statute grants religious freedom to people incarcerated in state prisons when the state prisons except federal funds. arkansas does accept federal funds and they restricted an inmate who are religious reasons wanted to grow a half bench board instead of only growing a quarter-inch beard. the question directly presented here is was that the least restrictive means available to advance what the institution claimed was a compelling government interest?

there was an extensive hearing the district court. the prison warden largely based on deference to administrators. before the last term you might have thought that is the likely have a case would have come out. think what has happened in the interim was hobby lobby and i think a lot of people are seeing this as a direct follow-on. there was a different federal statute ripa but they are seen as companions statutes to operate the same and the harder question now is given with the court did in that case why is not the inmate have broader religious freedom here at? what you're going to see in this case is a real tension between the court's historic deference to administrators running a prison. there is a lot of evidence in the states brief which demonstrates and illustrates some of the things that could be hidden in a beard. weapons, contraband, more than you might think and a half inch

beard. at the same time, there were lots of alternatives offered up as two ways to accommodate the inmate to meet the safety needs which the eighth circuit rejected predicting here you are dealing with the situation of the inmate having a very strong case in terms of their right to religious freedom and the right to practice it as he sees fit. the second case, really two companion cases involving alabama redistricting one brought by the alabama democratic conference and another brought by the alabama legislative black caucus. this is about as complicated it is to case you're going to find that i will quickly walk through the various issues going on here. essentially what happened was after 2010 alabama faced a problem in the problem was they had majority minority districts that were underpopulated and so when you cut through all of the legal jargon, when you get down

to is the fundamental question if you have to move people into those districts or you were going to move minority citizens into those districts or are you going to move white citizens into those districts? alabama was facing four different legal regimes that they had to navigate in order to cite that question. one, they had to meet one person, one vote which means you have to roughly have equal publish in each district the second they have to do with section 5 of the voting rights act which says you cannot retrogressive minority voting power so if there was an argument which which they believe that they'd move white people and those districts that would reduce the minority voting strength in those districts. however if they move minority citizens into this district they ran into an equal protection problem because they would be accused in the war in happen in this case of packing minorities into districts to create safe minority districts but then in

their broader representation in other districts would violate the fourth amendment. finally they had to do with section 2 of the voting rights act which creates arguments both on equal protection and section 5 ground so what alabama what did was focus on one person one vote and in their argument the exclusion of the other issues. they won 2-1 before the special three-judge panel. the second judge said they did not have strong enough arguments and they were packing and that was the grounds for which the court has accepted. >> i welcome comments also from the other panelists that let me ask you a question about each of these cases. will do think it makes a difference in the present case that 444 states in the federal government seem to think there's no security problem they're? >> i do think it makes a difference and i think it will bear on the case. i think we see the increasingly integrated cases where the court does care about the other states

on issues of inmate rights. >> on the voting rights case without getting too much in the weeds you all recall that in 2013 the court effectively struck down a key feature of the voting rights act, section 5 which required states with a history of discrimination to obtain so-called preclearance to get the permission of the federal government either the justice department are according to washington before it could make changes to its voting procedures and section 5 was the reason offered by alabama officials to do with the plaintiffs said was packing. now the section 5 is gone away to set change the contours of the case? >> you know it's a really complicated issue. i think the answer is yes. it i was one of the lawyers on the legal team and it's a very strange place because you have

it being a center issue of the case when it was decided in the district court and now if the court do with the district attorneys office asked which is they can send it back for a better analysis you are going to be making a case on the ground that no longer may have any pertinent -- pertinent to the case. i think it's very strange in the real question is how much capital as the court going to want to invest in interpreting the substandard statute. it's been in the briefing. >> virginia. >> i too have been taught past to talk about two cases. a case that involves a between the president and congress in the very controversially difficult setting of middle east domestic and international politics. the foreign relations authorization act directs the secretary of state on request to

record the birth country of american citizens born in jerusalem as israel on that person's u.s. passport. president bush signed a law that said that this requirement is not consistent with the president's constitutional authority to conduct foreign affairs and more specifically with the president recognition power. the state department has issued to the passage of the statute and refuse to grant along the ground that it's incompatible with the government established neutrality on the status of jerusalem as part of palestine or israel. instead it was the birthplace of u.s. -- again the child was born in 2002 so that just demonstrates the statute has been controversial since the beginning and in fact this is

only one in a procession of the statutory provisions that create conflict between the executive branch and congress. congress pushing the u.s. policy towards the recognition of israeli sovereignty over jerusalem. the supreme court is seen as case before. a couple of years ago the d.c. circuit has held that they conflict about whether the statute had to be observed or whether the state department could rightly resist was a political question and that issue when after the supreme court in the supreme court said no its not a political question so now they are going to reap what they have sown which is they are going to have to decide the question whether the president deed has exclusive recognition authority or what congress has done is within its control over passports and the regulation of immigration and is his knights and encouragement

and amount to an official act of recognition. i think the court is going to find itself in a very difficult question of having to resolve this power question between the executive branch of congress. the d.c. circuit below held that the president's authority was exclusive and plenary and in fact that this requirement that congress imposed would infringe on recognition power. in part i think the statute itself creates the problem here. the statute itself says that it is the policy of the united states that jerusalem is the capital of israel and so this is one of the things that creates a significant infringement upon the president recognition authority rather than opening up somebody's passport in seeing the word israel instead of the were jerusalem. but it doesn't change the practical reality of the situation from the point of view of the state department which i think is that if the supreme court were to reverse and say that the statute has to be enforced there would be a

perception at least the state department in the middle east that the united states had retreated from its long-established policy about neutrality on the status of jerusalem. so they're sort of a practical problem of perception presented to the supreme court in this case as well as the difficult constitutional interpretive question about whether the president recognition authority as exclusive as has been taught since the time of george washington and whether this particular statute is an abridgment on that exclusive recognition authority. it's an extremely difficult and important case that creates theoretical and practical difficulties for the court. from that i'm going to discuss my second cases in a much more normal area which is the unemployment law. the courts at this point granted five labor and employment cases. for them involve traditional issues of statutory interpretation. a question of whether certain time is compensable under the fs elliott -- flsa under title vii.

a very important case under the pregnancy discrimination act about exactly how that prohibition for pregnancy discrimination should be to terminate a plan not going to talk about any of those cases. i'm going to talk about the labor case it was granted which is a case called tackett. it seems notable to me because for 10 years people have been petitioning the court to grant this issue and it's very difficult to see why now after 10 years of conflict along the sixth, third and seventh circuit about this issue, it's been going on for decades. i used to represent the steelworkers and the steelworker contracts include health care for retirees. a couple of decades ago health care costs begin to accelerate substantially. employers were offered under increasing burden of health care costs and started to think about

things like using hmos instead of other kinds of plans thinking about cost contributions, co-pays and as they would change the plans which are tired to retirees, retirees would sue and say look my health care benefits were vested. i acquired a vested right to lifetime benefits once i retired and at this collective bargaining agreement. the sixth circuit and important case called -- yes when you think about what retirees presumed at the point of which they retired almost any language in the collective bargaining bargaining agreement attacks that duration should be interpreted with a thumb on the scale that retirees have lifetime benefits. fast-forward a couple of years health care costs continue to accelerate. the third circuit gets a hold of the nation they say no. there's not a clear statement to the benefit beyond the duration of the collective bargaining agreement and the benefits are not tested for life in the seventh for life the 7th circuit ended up coming down somewhere

in the middle thing we need some language that's indicative of continuation to find vesting of lifetime benefits but we don't require a clear statement the way the third circuit does. i think there have been at least 12 circuit petition since that conflict stabilized raising this issue with the court and i've been racking my brain thinking about why it would be granted this grabovo. i think some of the explanation is in the increased public attention to the availability of health care and to possible increased public interest in what kind, where and how you obtain a legal right to certain types of health care coverage. again that's pure speculation on my part and it's been a long-established area for employees who retire with a reliance on the fact that they now have health care coverage for life and for employers who face increasing health care costs that they simply don't know how to manage as they negotiate new contracts for

their unions. .. >> thank you.

i am going to talk about two cases and discuss the relationship between congress and the courts and the administrative state. these are both cases that the supreme court has agreed to hear and furthermore both cases in which we have filed numerous briefs in both cases on the side challenging government faction. the first is amtrak having to do with department of transportation. the basic issue is a than in 2008 congress and the president pass a law instructing amtrak jointly with the federal railroad administration to probably new regulations regarding the standards for performance on these tracks. the catch is that amtrak is basically a competitor with the other trains are going to be regulated by these rules and they have passengers. the other trains are mostly great but they are competing for scarce time on the tracks. needless to say the freight rails were none too happy about suddenly being regulated by one

of their competitors. after amtrak and the fra promulgated regulations, they sued in court saying that the statue highlights the nondelegation violation. super, and you might think of the intelligible principle for agencies administered, this is a slight variation on that. back in 1936, the courts decided a case called carter coal and that congress can't delegate rulemaking power to private entities and there is a challenge in this case that says this is a direct application of that case and amtrak is private and therefore it cannot exercise this power and that is pretty straightforward. but that leads us to the second issue on the case, namely is amtrak private or the government a good friend. and if you have any doubts, good

friend of mine said just try the food if you have any doubts of government. [laughter] so there are many that say that amtrak is not part of the government but it's operated as a for-profit conversation corporation. so there is a big situation in this case. the second point is perez versus mortgage baker's. this is a case about what circumstances does an agency have to go through before it changes the interpretation of its regulation. we know how a bill becomes law and we all know how when you promulgate regulations for the most part you go through rulemaking and what happens when the agency changes its interpretation of this. in this case, the labor department had interpreted overtime pay for administrative employees and the question was our mortgage loan officers,

administrative employees exempt from the overtime, that will not originally -- but in the past, they have said that they are exempt from the overtime rules and in 2010 they reversed that interpretation from their regulations but they are entitled to overtime pay. and so the mortgage bankers association challenge that will saying that because the legal department made a significant change to a definitive or authoritative interpretation of the rules, and needed to go through rulemaking for making that change. but under the administration procedure act which sets the standards, there is an interpretive rule that they are exempt from the requirement. there are a couple of old precedents, alaska hunters and paralyzed veterans and say that when an agency makes a so called

certificate change to a past authoritative interpretation, they have to go through rulemaking because it is an effect changing the rules. so this sparked no small outcry, 70 of them urging the court to hear the case, saying that the dc circuit standard is wrong and at odds with the administration procedure act, they compared it to the vermont yankee's was a sad the courts repealed cannot add onto the standards already set forth in the administrative procedure act. so it's in a interesting case. they may seem like they are very narrow issues, but there has been this interesting series of cases in the supreme court about the relationship between the courts and congress and agencies. and 30 years ago justice scalia

gave thought to interpreting their own education and it is an interpretation of the agency's own jurisdiction. last year there was a regulatory group about the extent and the interpretation case and that the heart was epa's effort to substantially interpret and some unsavory right the street forward part of the clean air act. and i think that that in a case, in a similar vein we can talk about that. but it's interesting to talk about this little by little as they test the boundaries of deference of the separation of powers and the way that it does the things different cases. >> does that divide the court ideologically? >> let me start with the second question.

it cuts across the justice system in interesting ways. and we have seen this with justice scalia. he started to question deference to agency interpretation but then in the city of arlington case he says the court will continue to defer to agency interpretations of the agency's own jurisdiction. but they often say very interesting things in this case and chief justice roberts as well. in terms of the theme, maybe i'm over thinking this, maybe they are taking this one at a time and they really stand on their own but for me i do think that there is a broader, not really broader rethinking but much more thoughtful reconsideration of a relationship between the courts and agencies in terms of deference and in terms of congress. in terms of separation of

knowledge. >> so giving you an overview on the docket already, you can judge for yourself how big they are. i would suggest that the end of june they are not going to be on the front page of the newspaper. but a couple looking forward is going to discuss this as well. >> that's right. i have a challenging job to look at what is coming up. if the court is sitting on this on monday, there are a huge number of grants, many of them talking will be considered so. much of what i'm saying could be moved within a week or incredibly important. so we will see what happens. at any rate, it all of the issues that i'm discussing, even if they are not considered by the court this term, they are something that the court will decide at the end of the day. if not this term, probably next term. so i will give exactly the same talk next year. if they invite me back, simplify things for everyone. so the first thing, these are

really the next big challenge to the obamacare regime. and the challenges get the affordable care act enforced according to how it was done. so people are trying to enforce it against an irs regulation. there is a provision that the subsidies provided for our available for planned purchase quoted as an exchange established by the state under section 1311 of the act. and they did not establish this in 46 states, but many of them wanted to make sure the subsidies were available nationwide and not really in the minority of the states. so they interpreted it. going back to our question of agencies interpreting the

statutes and what we we they have, they interpreted in a way that is somewhat a mismatch in a set in exchange it would also include exchanges established by the federal government. in case they didn't establish us, the federal government did so instead. what we have in these cases is we have a group of individuals who sued and argued in violation of the law and in this case the implications are not only that the people and the states were not good subsidies but millions of people in the states will also not be subject to the individual employer mandate as a result of the subsidies being unavailable. some numbers i have seen about

5 million people if the irs is incorrect and about 5 million people were there to get subsidies and 57 million people would not be subject to the employer mandate. and so there is a huge implication for a lot of people in the majority of the states involved. what we have seen in these two cases is the fastest circuits but probably in american history. the morning of july 20 i can, the dc circuit was an improper interpretation by brs. and by early afternoon the fourth circuit has held contingency for the well but it was fine and it was okay in the irs has the authority to do that. that's normally a number one thing that the supreme court is looking for is that they have this right there and they wasted no time in filing their petition

instead of the normal 90 days, they turned around and nine days and then it could have almost been considered by this first conference but because the government was given a 30 day extension, it was considered maybe in october and possibly very early november by the courts. in the meantime, the government asked them to take this case so that the possibility that the court with a 74 majority, if they vote as many have predicted, kind of a long party lines and they will overturn the decision of the panel and the race this. the question is whether the court will even take this case given the fact that this is in question and i think that a lot of arguments as to why they would thus consider cases that are major in question when there is not a circuit split and it's also a good argument that even if there is a split at the time

that the case is argued, there's a good chance that there will be some point down the road. these 30 some states are intended and circuits until all of the circuits have decided the issue and it will still be a question causing huge uncertainty for everyone who wants to buy insurance and all of the employees in the state are not sure whether they need to offer it would their employees, making it possible for them to continue not offering health care have to fire people who make it impossible or impossible for them to before the health care. and for the states themselves know how to be regulating. so it is a major issue and we will have to see. this is another case that could push back on the chevron deference. there is question because doesn't even apply here because the erez is implementing a health care loss and it may be a tax. it may not be attacks.

these villages are not coming we might get into that question. whether that statute is ambiguous and whether that interpretation is reasonable. there is that and it's also putting really well and to the theme of the growth of federal government and the growth of the administrative state and pushing back the courts in some of these constitutional limits on government and in particular on the constitutional side with the issues that we have had with this president having less respect for the separation of power on his own authority by the constitution, as far as he got his phone and his pen. he is taking a less serious viewed in some would think that he should and i think the courts have definitely pushback on that. historically in the last couple of terms. and so we have seen that the solicitor general's office has had a pretty dismal success rate and this may play into it. the second set of cases is the marriage case. and this is even harder because

there are a slew of circuits that is on monday's conference per the fourth circuit, the seventh circuit, they all have multiple cases that have petitions out there and there are also decisions that can come without any point in the fifth circuit and ninth circuit and one challenge is that there is not actually a split right now. in those cases it is a split. and in this case there is not a split. all the circuits consider the issue have looked at it in the same way and they have all overturned areas state laws and constitutional amendments that limit marriage to a man and a woman and the laws, finding it that way in many cases. so how the court will take the cases is hard to predict. we had just as ginsberg said, that we would kind of wait for the sixth circuit to figure out

what they're going to do and figure out what will happen. she was suggesting why rush into these cases and we will wait until one occurs and i think it's reasonable to think that there may be one. in which case they considered for different state laws with michigan and ohio and tennessee. in favor of upholding those lost and that will create the first witness issue and there's also the fifth circuit which is seen in one of upholding the state laws and that has not been scheduled for oral arguments out of texas. we had one in louisiana that was one of the rare district cases. i think it's a lot of very complicating things with vehicle issues in terms of problems in the various cases. some of them, like the fourth circuit case in virginia.

actively supporting the law, coming up with questions much like the supreme court taste face when you defend the law and whether they are allowed to petition for appeal, it is the seventh circuit case in the 10th circuit case out of utah that is called many of the western and there are so many interested in supporting the laws and we have interesting companies and combinations and we have a clear question of licensing.

and i believe it was only two days after they all filed for this and every one seems to want to hear these cases and they have responded saying that please take our case anyway and this is a rush to who gets to be the case that decides who's name is going to be on it. and i think that that could also affect how the court views it as well because everyone is making slightly different arguments and all of those generally are part

of this. so in terms of some of the issues, i think they will be similar in either this case or in other. it is an important issue and affecting a large number of people. maybe not the 57 million that are affected by the health care mandate, but they are certainly many people. and the court will definitely have to deal with the case eventually. >> chiming in a little bit, taking them one at a time, i don't think the set directly but if the challenge succeeds, it's very hard for the law to be sustained. >> i think having the subsidies unavailable in those states will be a severe blow.

not as severe as original commerce clause. >> if there is that fear, how likely is it to understand that the plane taxed is very supportive of the views that you laid out? how likely do they want to put a timebomb in section 1311 and one praise? >> i think that, actually, there is contemporaneous evidence that they did know what it was. they didn't think of it as a timebomb because i didn't think they thought they could really go through with not establishing these exchanges. they thought of it as forcing the state to play ball and be part of the exchange going forward. but i do think that at the end of the day what congress

intended, you have hundreds of individuals to look at and i think that for the same reason it isn't actually what the court should be looking at. and we will not have the irs going back or the supreme court going back and if we were going to maintain the accountability, we don't just throw something on paper. we really need to do the homework upfront. >> sticking with the aca, on either that or the other and none the nonetheless likely to grant us on this important question in this case.

>> you are a heck of a group. [laughter] >> don't get me wrong. >> i wrote an op-ed that this was pending walking through the dc circuit history and not reviewing cases and it seemed to me that the dc circuit has been a part of this over the last two years and obviously i got that one wrong. but while the debate was going on, we have extraordinary importance. in the administration supporters say that on and on again. ..

dramatic and really a big difficult case internally and i suspect they wouldn't be eager

to jump back into this unless there was a split which would be kind of the traditional criteria for jumping in. >> with me ask you a counter scenario which is a couple of years ago when they decided the last last case there were four justices who are pretty unhappy and pretty eager to take down this love. it only takes four to grant served and those justices might be eager to jam up the chief justice or at least that's one way of thinking about the court but that's probably too cynical. >> even if that cynical view is right which i'm not saying it is, if that view are correct i think if the case is seen as sort of a way of getting back at the chief justice were forcing them to take it on again then presumably they would fall along the same lines they did last time. i think especially if you favor the challenger looks a lot more

credible coming from a split than it does if there is no split. >> in addition to the four justices in the individual mandate case there were five justices last year who voted against the epa's front-line argument in the clean air act case. they said no some of the greenhouse -- you can't just claim they were the results of a contrary interpretation are absurd and substantially rewrite the statute nor to maintain the program. seems to me they are very strong echoes of that epa case in the health care exchanges case and there are five justices baer and i think was that the other epa case last year were justice ginsburg said the job isn't to promote policies they think would be best but to apply the statute that is written and that

works in the case as well? >> that may well tell you something about where they come out on the case and less about whether and when they will take it up. any thoughts on the aca case? let me move to the marriage cases which are very likely to be the centerpiece of this term and turn it into whatever else they have taken. if they take same-sex marriage as they are likely to do in the coming weeks that's going to be huge case but let me not get ahead of myself. as kerry pointed out what is her thinking about whether this is the kind of case where the court cares about the circuit bearing in mind it's no small thing for federal judges around the country to be striking down state laws and provisions of state constitutions. is that enough or should they wait for the circuit court?

i will start calling up people by name if you don't. >> i will start. i mean it's a very unique posture which is they are not getting any briefs telling them not to take the case. i do think when you saw how the california case came out last time and then you see a comment that justice ginsburg has made that cuts across party lines or jurisprudential lines but at the same time they are backed into a corner and i think the undercurrent which may translate into having a state request which are very complicated and causing real difficulties in terms of the lower courts. one judge said i understand the court has demanded that the cases that they are not issued to explain why they are making the case.

i think there's an institutional capital here in terms of how can the state request the court to deal with the case? >> i think the importance of this case is so great that they take cases of much less weight just unimportant grounds. i think they will take this ca case, one of these cases. >> one other factor that got talked a lot about my marriage cases were up a couple of years ago even justice ginsburg kept on talking about the aftermath of roe v. wade and the way that the courts took that case and her description and went taking a step-by-step view went broad on the case and as a result has served for you -- heard for years of pushback and people marching on the capital every year. it is totally transformed the way we look at judicial. i think in some ways the courts

may be able to avoid looking at issue but that's something the court is concerned about an part of the reason she was suggesting maybe you want to wait as long as we can before getting involved in this case. the challenge as will pointed out is that we do have almost a fever of lower court decisions rushing as fast as they can to overstate -- overturn every state law that they can find so what did the supreme court gets involved or not you certainly have courts that get involved so you still have the case of courts overriding democratically-elected positions in the law. it may be possible for the court to involve such a complicated issue. >> i wonder what justice kennedy's thinking is this place out. the supreme court preview pane panels. [inaudible] but in the marriage cases it's especially so.

the president is the windsor case and that justice kennedy wrote in a wrote about liberty and state authority and federal and it wasn't clear to anybody at the time where he was going with this. what we have seen in the aftermath is a lot of federal courts focus on the diversion of liberty with really much less care for state power and federalism. maybe justice kennedy is happy to watch this all play out in on the other hand maybe he's looking for an opportunity to clarify what he previously wrote. >> it is the case though is met that justice kennedy is the author of all three major decisions and likely it will be his legacy. it would be a little bit surprising if you would take a turn now when the polling numbers and the court in so much of the nation is moving in one direction or do you disagree? >> i'm not going to make any

money betting on what justice kennedy is going to do that justice kennedy has written a lot in his career about federalism. he's written a lot in his career but individual liberty liberty. oftentimes it seems for him in rome as a means to the end of liberty. it's not quite clear how it's going to play out and i think he takes these two lines of justice kennedy's thoughts and pits one against the other. i think it's going to be fascinating. >> there's a recent poll showing support for same-sex marriage has dropped and whether it's a blip i don't know but you could wonder if it's a little bit about the comes back to you people who feel like the courts are jumping and usurping territory that should be worked out in the political and social spheres. maybe him making the decision would undermine it being viewed as a positive legacy or would at least create the conflict. i don't know if justice kennedy

wants to make that but if he wanted to he probably would have made a last time. >> you are quite right. >> the core issue that came before the courts last year not the doma case, it was plain as day that justice kennedy didn't want the case to be beforehand and did not want to grant search and was delighted to see it go away. i don't think anyone predicted that windsor would be perceived as it has been with everyone focusing on one of the two theories in the case, the liberty theory and whether the court wants to or not does seem and i think this is probably something like consensus that is going to be hard for them avoid getting into it. so let me ask one more general question that i will turn to your questions. at the end of the last term it was hard to write the newspaper term wrap-up story partly because reporters like conflict

and there were substantial conflict at the end of the term in hobby lobby and harris versus but it was also a term that had an extraordinary amount of unanimity. the largest in the modern era, about two-thirds of the cases were decided unanimously. not all of them unanimous on the rationale but many of them. and i'm wondering whether there are thoughts here about whether that's testimony to the court trying to get together whether it's testimony to the chief justice playing a role in getting the court together or whether it's the nation of the docket on some of the statutory cases we have been talking about which may be areas in which the justices are less apt to disagree? >> adam i will take the dash we

have only seen the trend over one term and there's nothing specific about the term that would have suggested an overall broader shift. the personnel of the court are going to change within a year or two probably or at least for five years and so my guess is that it's just a one term events, and maybe a two-term event that we are not going to enter new period of unanimity at the supreme court. >> i tend to agree with one caveat which is i do think the chief justice avoidance is in major cases has led to more unanimity than we otherwise made scene. justice kennedy has been with him on most of those in most of the court has come with them. if you look at northwest austin in other cases of that kind for the court was on the brink of a major constitutional ruling and step back and everyone close to round the statutory question.

i do think that's part of what's going on. >> i'm in broad agreement on a method of statutory interpretation that will cause at least some subversion to make interpretation cases. for example the fair land -- fair labor standards act case. i believe they were would unit be unanimous in. unanimity. there's agreement, broad agreement on the method of looking statues and you might see more agreement in those areas in the hot-button issues that have more interpretive play. >> it ebbs and flows. other panelists know these cases better than me but in cases involving the voting rights act and affirmative action or campaign finance the court and justice it brought robbers was able to achieve near unanimity only to find issue basically returned to the court a couple of years later when the court fractures deeply over the

constitutional role. i think some of the justices were not pleased with how things played out in the long run. the dynamic changes over time. >> i agree with some of the legal cases does factor in. people get lawsuits by the frustration but when they take extreme positions that causes the unanimity as to some of the cases they were considering. they tend to unanimously be able to return them so sometimes you get a good rash of serious air. plus i think there are certain court cases where it's absolutely ideological managing to come together together on our soul but not a reasoning and that means sometimes you'll see cases where that kind of unanimity can survive and adam pointed out once that's the case

who will break apart eventually. >> one thing i forgot to ask about, personnel changes. what's the outlook and assuming there were to be a resignation in this administration, what kind of chances with the president have to appoint someone? let me ask it this way. justice ginsburg in suggesting that she's not going anywhere said words to the effect that who we are going to get better than me? i don't think it was a statement of an egomaniac that it was a statement of a realist. >> certainly in terms of who's likely to step down next it was justice ginsburg in part because there's no sign of anyone else as far as i know having any likelihood of that anytime soon. of course you never know what

might happen. in terms of what would happen if justice ginsburg did step down obviously it depends on which party controls the senate and that's going to be the big question. we will now more about that shortly. it's a political process question that all depends. >> i think it's 100% what happens especially now that we have already seen other judicial nominees and while technically they are still available for supreme court nominations i think it would be very naïve to believe that harry reid would not get the ability there was any pushback at all. the democrats maintain control of the senate. i think the president has a wide-open field and could appoint others. i think he could easily get 51 and i think that is all he will need when he takes the next

level step there. >> the chief justice said the chief justice a day or two ago decried the partisanship or around nominations reminded us that scalia's was unanimously confirmed and if breyer and ginsburg got a handful of votes and now at the last four nominations we seem to be in a different climate what accounts for that? >> i don't think it's alas for nominations. the whole system has really changed from what significant deference the president has 21 in which there is a lot of pushback. honestly from my perspective i think it was clearly started by the democrats making a huge deal out of justice, and this nomination and we are now for better or worse that is how nominations are dealt with. i don't think we can step back

from that now because you are not going to get unilaterally disarmed simultaneously. >> although kennedy and breyer and ginsburg didn't change every single member. >> i think we are now in the world and i don't know that anyone thinks we are still in that. i just want to see if the other panelists think there is hope. >> don't think there's any doubt we will ratchet in this process. i think it can get worse and when you think you can't get any worse, it does. >> an interesting question is what happens when you have the opposite party control of the president. up until now the last few nominations we have had the senate controlled by the same party as the president so everybody is voting on a party line the nominee will sweep by. it won't be pretty but they will sleep by. things get much more complicated if the other party is

controlling the senate because then of course everybody goes on party line and they reject the nominee. the president comes back to another nominee and they keep keep having partyline rejections over time. the president will move more towards the center in terms of the nominee or say okay if you're going to reject my nominee on party lines i'm going to get more ideologically towards my and every time. that's the reset button questions and nobody knows how that's going to play out. >> i was 1968. there was johnson not been able to get any of his nominees through a republican congress. it was messy but we survived. in terms of confirmation it's important to separate two things. we can all be against character assassinations of judicial nominees but to say character assassination is not to say we shouldn't have very strong fierce political and

intellectual debate over supreme court nominees. the republicans would have advanced orrin hatch would go with ginsburg breyer. what we lost in those debates was real thoughtful discussion ahead of time about what the american people want the court to look like and what officials want the court to look like to at least have their say at the beginning of the process. the good lord knows we don't get a say after the process. >> another point also is more social policy has moved over to the court i think you are seeing more invested in making sure that the benches go to people who share their approach to law. i don't think it's an accident.

>> we are so divided on the proper outcome of that and did it -- intellectual debate and political debate that really there can't be anything but this kind of harshness and winner takes all and the loser go homes until the next time they win. i just don't see any end to the process playing out the latest now. >> isn't justice ginsburg will critique of roe v. v. wade that officials in my case the courts stepped in to a early and thought they could sell the political debate once and for all and political debates don't end. bill buckley said there are no internal victories and no internal losses when things continue on and on not enough probably though it should be. >> cigie decided 30 case is hopeless or just really bad. [laughter] >> we will move to your question. who would like to go first? or would you like to follow the

paddle? we will give you discretion. there is a microphone for you. >> cari severino seems to treat the statutory question to the aca questions as cut and dried but the fourth circuit reasoned that references to such exchanges included federal exchanges and therefore the statute construed in toto, supported the irs interpretation and i wonder what you and others might think about the viability of that argument with the nine justices all of whom say it's important on the statute.

>> we filed a brief in the king and albert cases on interpretation as well some the plaintext is pretty clear. it's clear what the plaintext is and the irs interpretation. the question is exactly that whether the exchange created by the state can mean exchange created by the federal government. sure i think you can argue both ways on comment to that position. actually you might not fully get down to that because some of it does determine -- get determined by your purge to discretion and deference. a lot of it may be determined by this earlier procedural point do we have to give deference to the irs interpretation? at if the court decides yeah we have to give deference they might not think it's such a

great interpretation but they will have to go to it and that if the state decides they don't want to again i think there's a lot of room for plaintext where it doesn't say that. it's an open question. i think the text is clear enou enough. it's easily the same thing with unambiguous text. >> any other thoughts on that? >> it's so quiet in here. >> yes, lee. >> hi. i guess it doesn't seem quite as clear to me that the court has settled on approach to the statute. i think it's clear in ordinary cases that that's so but for

example and bond i think there's a pretty good argument that there was no statutory interpretation. they never got around to figuring out what the statute was exhibited in reach this case. if it had reached this case they would have had to figure out the constitutional question and we don't want to do that. so i guess i would worry if i were you now thinking about what's going to happen with the statutory approach, the textual approaches the statute holds up. it is under real pressure in my wonder about that as a possible way of understanding the situation. >> i agree. think bond tells you more about this court's approach to the constitutional interpretation than the statutory interpretation. everything was driven by the

effort to avoid the question. i think that is the hallmark and by the u. of agree with it or disagree with it is a pretty consistent approach. we saw it in the affordable care act and we saw it in austin. you are worried that it raises the issue of constitutional pressure but at the same time i filed the brief supporting the challenge. i do think the administration's case is fairly complicated because sometimes they are arguing it's an intentional gap of the statute and other times they are saying -- macrocosm both so i think they are trying to figure out which argument is going to be received better but will ultimately have to choose which one they like better. >> the issue will come up again because looking at the statute,

there is a very strong statement from congress that the united states policy on jerusalem is this. the remedy of the litigants that people who want passports in that case what they're asking for a smaller. they're just asking for a passport to israel but i followed this case quite a bit. i think it does show a tough challenge between congress and the person in their powers but at the end of the day the family just wants a passport and at the end of the day the president can say we are issuing this passport that u.s. policy remains unchanged and at the end of the day the courts can construe the statute narrowly to sidestep the question of u.s. policy and get to the more ministerial question about what something says on a passport. maybe there's a policy in another case where the court will go for minimalist -- is hard for me to see what the real substantial infringement of the

president's recognition of powers. nobody is actually saying that the u.s. policy on the statute says that but in that case i don't think anybody saying u.s. policy is different. it's just a passport which is important in this family. >> i guess that's severing the statement about what the u.s. policy would be that is reflected in its ability to have something in a the passport. the president a judgment of this administration and previous administration actually would have a damaging effect on the president's ability to control foreign policy and his recognition of the sovereignty or not to recognize in a sovereignty so you have to both reject the president's judgment and sever the statutory statement about what this means u.s. policy is from a notation on a passport. i think those are big things to do. if the court is willing to say

where it does -- going to discount the president judgments and we are going to ignore what the statutory language says and means i think that's a dramatic step for a court to take. >> in terms of the judgment issue is congress's judgment of what something should stay -- saying the statute. earlier referred to align that the president's -- he's trying back from when marshall was still in congress and if you look back on where the line comes from it was taken i think what marshall was saying is once policy is defined by power suppressants is sold or getting carried out. maybe he's the instrument of foreign-policy but somebody has to decide what the instrument is going to play. baby the senate and congress should have some say otherwise we will defer to the president's judgment of what will and will not affect policy.

>> be anything that is adjusting here is its holding that long-standing institutional judgment to acquiesce by congress over the long-term like unilateral recognition. the president should get some deference. i think it's an interesting and difficult case but i think there are powerful arguments that the president has and the judgment could be very damaging. >> adam does make the intuitive point that seems kind of trivial. who's going to get upset a border guard at the turkish border? >> it will be read in a particular way in the foreign relations setting and the question is do you just give up the back of your hand at risk having -- some international relations are not?

i think it's a difficult question. >> there's another thing at play here. the presentation a signing statement saying i'm not going to treat this as is mandatory and i'm going to treat us -- back in 2000 present upon the skimming his famous interview where we quote now we are not going to use signing statements to nullify or undermine congressional construction enacted into law. understand you as senator ben and he's the president now and he is change but at this point somebody needs to remind everybody about where we have been on these issues. >> it sounds like adam in this particular case you think the constitutional avoidance move might be right. >> at the end of the day i'm just very curious why we can avoid the bigger policy issue

and decided narrowly on the basis of what's written in a passport. >> yes sir. >> in terms of temperature of social events where rangers are collecting people what he thinks the temperature will be for these cases? will there be a trend like football players have pink day and what do you think will be the temperature for this term? >> keep the microphone because i'm not sure we fully have a question yet. >> my question is how will be issues affect the citizenship? will there be more violence in writing in the street? >> i think that facebook case will probably not result in writing or in a significant backlash. let me ask the question in the most salient way. a assuming the court establishes the right to same-sex marriage which i think is more likely than not and more likely than

not this coming june how do you think the courts will react to that? >> what makes the question difficult i think if there is a sense of attitudes are changing so quickly. i think we could answer that 10 years ago or five years ago and maybe even last year but there is at least a sense that statutes are changing quickly enough that it's hard to venture a prediction. it may make a difference whether it comes down a year from now or two years from now. it's just very hard to know. >> i think particularly it may have the effect of occupying the lines that they have now are deepening them in some cases. the feeling of these are not the result i would have come to. it will affect how it will go. could work both ways. some may jump on the bandwagon and say it's the direction that

everyone is going or could backlash. i don't think the court is stepping out of line out that it's an unconstitutional question that i think it should be decided democratically and there could be pushed back. i think it would be different if the court decided this year versus next year. who knows? >> how much do you think the court should care about the reputation of its authority and how much should he care about backlash? >> a little bit? >> i think it's human nature for them to care about how their decisions are being received in terms of the effects on the other branches and their own credibility. of course it's critical that they and not pay too much attention. he would want a supreme court that is just following what is various popular or not it not paying attention to the history and the traditional legal sources. probably they pay a little bit

of attention. >> this gets back to our earlier discussion about judicial nominations and confirmations. if the justices now matter which way they go on this case no matter which way they go it will energize some quarters of the political world. we will feel the effect of future judicial nominations so no matter which way the court is going to be controversial. that's the reason why i find it hard to take too seriously the complaints about should the public be fighting over these things. the court ultimately makes the difficult decision for which the public only gets a voice after-the-fact. >> let me answer the question in a slightly different way. one of the issues in terms of how the court will affect statutory interpretation and a

criminal law context in particular the u. of this case raises issues about criminal statute. the court is going to be referring to the statute in the context of criminal justice with interesting changes. we have lower crime rates than we have had recently. we have had a drop in crime rate over the last 25 years or so. i think eric holder, attorney general holder recently announced that they federal federal -- prison population is dropping for the first time since 1980. if you look at the fact that some of these cases the yates case in the facebook threat case there's an aspect of facts. the fish gate case fish fish gate case is probably lead example. sarbanes-oxley, it's such an odd context.

the compelling government interest and the interesting question is whether it's the facts of the cases or the dropping crime rates in general changes or have some influence on the statutory interpretation. the contracting data point would be in the 1980s when it was a political pressing question. crime rates were high and we had politicians talking about crime a lot and in that window of time we had at the supreme court cases especially in a white-collar context describing federal criminal is very broadly. basically it's up to the justice department exercise statutory of discretion and the court almost got out in a statutory interpretation game pursuing these statutes very broadly. i wondered now we are seeing a shift towards narrower statutory interpretation whether that's reflecting crime rates or some

other shift in the laws. >> other questions? let me ask one that occurred to me as we were talking. the court seems to think in i don't know if this is right that the public is going to accept the unanimous decision more easily than a closely divided one which is why earl warren worked so hard to make brown versus education a unanimous case. does that actually work on the ground? do you people actually care whether hobby lobby was 5-4 in the abortion protest case was unanimous? do you people care that the marriage case is likely to be 5-4 in a not man must? the court -- do these differences that the court seems to care about make a difference

on the ground? >> i think to some it does because those that follow the supreme court closely or using proxies for what's right and what's wrong. for example if you are are in a conservative site you might say all right i'm going to follow justice scalia and justice thomas and whatever they do is where i would come out of rerun the liberal side you might follow justice of the lie are follow justice out of ir or justice ginsburg. if they are important something you'll probably say well it must not be that problematic or if you think of a scalia's dissent where he ripped the other side that's something that can influence people. i suspect it really influences the 35 legal authority sitting around around. >> many of them are here. >> that's the inside crowd that has a strong sense of i like the footnote in that opinion. i suspect the public is not really influenced by any of that. there is a debate out there but they are not -.

>> i think the question is who are we talking about? i think how the case can interact in their own life is what matters to them. you often have cases that are less talked about here. some of the other cases were very interesting but don't affect people's everyday lives. i think is additionally some of these nine have these 9-0 decisions i think to matter. you talk about the appointments clause challenge and the fact that there was unanimity on the lead issue i think it does matter in terms of when i come back to the court to position themselves. >> i think to illustrate its not all perceived by people the latest they say bush v. gore

was a controversial case and in fact the reset was 7-2. people have the perception and there is one decision that is 5-4 and another was 7-2 and peoples see it is a large dividing line. there's two parts to the decision. at any rate controversial decisions are going to have controversial opinions. when you have something like the nlrb case at least it does diffuse to a certain extent when you have for example justice kagan and justice amaya are. it makes it hard to make the ideological argument. you can still say it's the wrong result but it makes it a little harder. >> keep in mind people who have the business and the people ended up governed by these decisions and 9-0 decision

doesn't say much at all and sidesteps the question the very minimalist position. there is a lot of clarity for people have to comply with the law wears a 5-4 decision might cause an uproar but at least everyone knows where the court stands on these broader principles but the very narrow decision so it cuts both ways. >> if we have run out of questions, halfway? i think we will call it a day. thank you so much and we thank the panelists. [applause] [inaudible conversations]

at georgetown university conference on the able outbreak have been health and human services secretary sylvia burwell on implementing the affordable care acts. later house oversight hearing on the privacy and security of the healthcare.gov web site. >> this campaign season c-span is bringing it debates in governor's races from across the country which combined on our web site c-span.org. here is part of one of those debates between pennsylvania governor tom corbett and democratic challenger tom wolf responding to a question about the state's pension fund. >> the governor has been calling attention to crisis. the legislature hasn't been able to come to terms on some kind of a pension plan. you think it's a crisis or is it not? if you do why and if you don't why not? >> i'm not sure the crisis

problem is a semantic one. a semantic poem. labor problem if we don't did something about it will become a crisis. we need to make sure that we do with the governor said we now need to do which is to adequately fund our pension system. we have not done that over the past 10 plus years. governors of past and present have not done that. >> i take exception to that. if we keep up with that pattern, if we keep up with that pattern we will have a huge crisis because just like a credit card bill the balance goes up every year we do not fully pay off our debt. we have not been paying off our debt over the past 10 plus years and therefore that balance has been going up. we have got to stop doing that. it's not just talking about plan design. what we need to do is pay the bill that we didn't pay for the past 10 years and we have not paid adequately. if we find a way to do that but doesn't burden the taxpayers we are going to have a solution to this problem. what i promised as i'm not going

to kick the can down the road. >> governor corbett a 1-minute rebuttal to that. >> i'm surprised because we are actually talking about the same thing. we are disagreeing on how to do it because i'm looking at budgets growing. i'm looking at the cost of the budget growing because health care, because of medicaid, because of contracts that we have in pennsylvania. and just the cost of business continues to grow. we have revenues growing but i have yet to see any country that has grown the economy by taxes. so i guess i'm inquisitive as to where mr. wolff wants to spend the money, how much he wants to spend and how he's going to get to the revenue. i heard him say 9.9% is too hi high. we agree and i think everybody in this room agrees an infected think we could be tracking a lot more business coming to

pennsylvania to get lower that just like we are about to eliminate the inheritance tax on the family farm in the family business. that's a start but you have to control your spending first. >> c-span campaign 2014 debate coverage continues thursday night at 9:00. >> the world health organization has said the ebola virus will affect -.

>> good morning and welcome. thank you john and jim for the kind introduction and i want to say it's an honor to be here with you this morning. we are in for a very long battle against ebola. not only in west africa i'm afraid that other places in the world quite possibly in the americas. we have four speakers and we had 10 minutes but we are down to nine minutes each now. we will move quickly. we have dr. jesse boehm from georgetown university and dr. beth cameron from the white house. i would like to show just a few slides from the time i spend in august and sierra leon and slides with strongly held opinions based on the experience of everything i've learned and

done over the last 35 years in clinical medicine and research and public health and what i think is happening and what needs to happen to the response of the ebola crisis in west africa but soon may be elsewhere. this is a sign from sierra leon that sierra leon that you find everywhere come the signs and symptoms of the ebola virus. the early clinical verse of the illness are nonspecific fever and. that means they are very much imitative of common diseases, much more common diseases like malaria or typhoid or gastroenteritis so it's hard to know if someone has ebola or a much more common diseases such as malaria. perhaps you can see it but the symptoms are fever and which may be bloody and which may be bloody. the bleeding hemorrhages very

late in the disease. it's a problem to differentiate ebola from some noninfectious diseases. these are signs you see everywhere not only in sierra leone but in west africa. you see it in hospitals and clinics found buildings on the street and airport so there's initially a perception that ebola is not real and it's not a virus that causes a contagious infectious disease and rapid death in the majority of people who are infected with it. from yesterday's w.h.o. organization update on the number of people with a mechanism minimal estimate the people with ebola liberia has found more than 3000 sierra leon

2000 guinea is more than 1000. everyone is hoping they're there won't be an outbreak in portable eras. there is one patient who traveled from guinea. this is a map from yesterday's world health organization. this is a map of three countries in west africa where the outbreak is the most intense. in the north in sierra leone and the capital of freetown and liberia printed out here and where morobe as which is the most impacted impacted and the most devastating part of the epidemic right now. the outbreak started at the confluence of the. [roll call] area in the confluence of the three countries and unfortunately it's spread through multiple areas. almost every district except for one in sierra leone and one not

having any cases as well as most places and liberia in the majority and guinea. also the capitals conakry freetown in monrovia. in a 25 outbreaks of ebola in the past in africa it's always always been in always been in rural areas never in big cities and certainly not capital cities but it's different now. but this is a herb and the ebola. yes it's a urban and rural but it's not just ebola that you have known for 25 plus years since it was discovered in 1968 in sudan. it's something different. it's different in terms of our way of controlling outbreaks in the past which were very effective. isolation of people who are ill and quarantine of people who have been exposed always effective in stopping the outbreak in humans and back into the reservoir where it lives with gorillas and chimps and

african envelopes. this time the methods are not effective and in my opinion they are not going to be effective in monrovia and freetown and perhaps other cities. yesterday's numbers from w.h.o. greenert 48 health care workers in west africa have become infected with ebola virus in more than half have died. i want to emphasize that almost half have survived. people who have survived have been cured of ebola to their own immune system and the help they have received in terms of rehydration is very important and very under precise. people who are survivors once they fully have recovered can provide care wearing personal protective equipment potentially donate antibodies against the virus from their own blood and most of all they should be no longer stigmatized as as having ebola but they should be honored. in terms of personal protective equipment i'm going to have to wrap up. personal protective equipment, this is what you need to wear

and perhaps even more. doctors without borders, it's more complete than what we adhere. this is a training exercise i was privileged to be able to participate in as a trainer along with colleagues in sierra leone and from the u.k.. we train each morning and afternoon for three and a half hours each in this type of personal protective equipment. this is the largest ebola isolation unit in the freetown hospital. it's one of the three most precious and memorable hospitals i have ever worked in. this is the one large pediatric hospital in sierra leone in a closed. everyone is discharged in the patients were discharged to home. children were sick with typhoid. some people were exposed and

they decided to close it. many children and adults don't have access to medical care for diabetes and for malaria and complicated childbirth because of the ebola outbreak. this cascading effect is that the devastating effects across the society. it's beyond the virus itself. i was tested on as i was leaving. this gentleman is taking the temperature. people were tested place. but i came into the airport and when i was leaving and i had to fill out a questionnaire that i didn't have any symptoms. this is just a few of many that could be shown but it's very important there's original campaign across west africa where the virus is to stop it. we can't only stop it in one country and expected to be stopped in the region. it won't happen. control methods as i mentioned

quarantine and they're not working in monrovia and freetown. there's a lack of enough good high-quality personal care. i can't emphasize to survivors is very important. there's an op-ed or document in the post two days ago with regard to the situation in sierra leone and he's he is an alternate besides the importance of survivors. the many important aspects of survivors they should be transformed from being stigmatized to being honored. they can provide care to people who are sick including young children of whom there are many. they can offer antibodies from their blood against the virus and they are living proof that ebola can be cured. my last slide in my last-minute ebola crisis looking ahead, i

think it will be a long time, more than a year before we have sufficiently large amounts of effective ebola vaccines and anti-viral vaccines. this epidemic is likely to last until her greater than 2017 will spread to more cities outside of africa. that's my strongly held opinion. it's important to act now because these are going to be faxed the near future. we have clinical trial units. for ect is based on 30 plus years of clinical trial experience for anybody's vaccines and drugs against the virus. if theo poll book becomes endemic in west africa and that's a real possibility in my opinion that in my opinion we need is a campaign like the global smallpox eradication program which dr. joe bremen

sitting in a car or participated in as was the first ebola outbreak stopped in 1976 in zaire by the drc. also i would ask if i have in multiple media interviews last week and i will continue to do for my own experience i think there's a huge gap that can and must be filled soon. in other words we need to have an authoritative ebola expert in a global health crisis leader someone who is very experienced in both for the health crisis outbreaks and ebola outbreaks outbreaks. the rapid what i call command-and-control like the success of the world had against sars in 2003. the person who read -- let that global response against sars and has extensive experience with ebola outbreaks who is now head of public health england was with w.h.o. for many many years and prior to that with the cdc dr. david heyman.

he would be my first pope my first vote that certainly there are other candidates. i would like to stop here. i'm out of time. thank you very much for your time. [applause] >> or next speaker is live. there was the director of office of counterterrorism and emerging threats that the fda. she also leads the fda's medical countermeasures initiative. a key component of a broad u.s. government program to previous capacity to respond quickly and effectively to outbreaks such as this. louis lewis instrument on the fda's response in 2009. she has also been very instrumental in more recent responses for examples to the middle east respiratory syndrome in the middle east and the recent bird flu that has become a major concern in east china and will be back soon in

november and december as the weather gets cold. please welcome dr. lou borreo. [applause] >> thank you and thanks for inviting me today to discuss these actions to respond to the ebola epidemic in west africa. takes a special person to bear witness to these devastating diseases as you do and make a big impact in its management. needless to say this outbreak is the most heartbreaking and tragic we have witnessed. in recent history. there are many complex challenges we are facing. specifically the minimal health care and public health infrastructure within the countries have made this very difficult. as ben just mention the primary approach for containing epidemics like this is the

standard tried-and-true public health measures. they are not working. it's just very difficult to implement them in such a large-scale in the setting of this limited infrastructure. we are talking about identifying patients, confirming patients, taking care of patients, learning about their contacts, providing equipment to health care workers and burial teams, educating the population about transmission being able to detect transmissions in the timeframe they can contain the outbreak. all of this has been extraordinary -- extraordinarily challenged. limited health care infrastructure has been -- electrolyte replacements things that we take for granted in most of the world. like they say in ebola kills twice. it kills people who are infected

with ebola and it kills everybody who has other diseases and i cannot access medical care. women die in childbirth in people die of a broken bone and they die of so many other things. the other complexity here is that we have no specific treatments or vaccines that have been shown to be safe and effective for ebola. needless to say as to say safe and effective vaccine will be a total game-changer. we know from history that the vaccine can really change the way infectious diseases evolve. smallpox is an example. one of the struggles we have with malaria is the fact that we don't yet have the vaccine for widespread use. so i think a lot of energy needs to be developing a vaccine to roll it out to countries.

i'm here to tell you that oftentimes fda is depicted or perceived to be a barrier to responding to situations like this. people think, they talk about fda's regulatory hurdles, which delays product development and causes unnecessary delays to the investigation of products. in fact i would like to tell you that fda is a catalyst for product development. we work to facilitate the development to facilitate manufacturing to scale up manufacturing to facilitate the ability of and medical products. we have a very large professional staff with unique scientific expertise in all aspects of product development and we provided expertise to all of our colleagues in government agencies that are working to develop products with the private sector. so we support hhs agencies and

the department of defense agencies and work very closely with them in tandem as they move these programs forward. we also work very interactively with the medical partners to advance their products including manufacturing to make sure that the products move as fast as possible. this is a very resource intensive process that the fda staff is highly committed to this. we don't want to see any unnecessary delays in product availability. we also begin to review data in a situation like like this as it becomes available. the companies will submit it to the fda and reviewed in real time. we don't want any unnecessary delays. prior development is often seen as also a very rigid and linear process because that is how is depicted in textbooks that many aspects of development can be

done in parallel and that's where the fda plays a big role. we can guide the developers to do things in parallel and where can i expedite studies again with the idea of moving things quickly, as quickly as we can. we also called w.h.o. under international counterparts health canada ema, the german and bigotry agencies as well as the u.k. and all of the west african regulatory counterparts. this is really crucial because fda is seen as a leader in product development and regulatory developments others in the two exchanged information. ..

and the announcement that my colleague is going to talk about not only for the ability to improve patient care but also to begin to study the effect of the countries. so, we do hope it would be possible to conduct