communications act which would, essentially, make it treated like a utility. of course the broband industry groups are fiercely opposed to this. there's a lot of pressure on chairman wheeler to go that route. so we'll see in theirst few months what happens there. and then even once the rus are on the books, this fight's not necessarily over. then there's going to be lawsuits almost certainly from the industry groups like verizon and comcast, especially if chairman wheeler does what the president wants and uses title ii. and then the republicans in congress will probably also have aresponse. will they try to repeal it, put forward their own proposal? this is going to be a fight that goes on for a long time i think. >> host: mr. fong? >> guest: well, i think all that's absolutely right, and there's going to be a lot more to come when it comes to congress, i think. you know, the chairman isn't expected to unveil his proposal until february or march at the earliest which give withs an opening for republicans in congress to introduce a bill of

thei own. what will the chairmano in response to that is that going to force him to move more quickly, or is it going to put him in a position where hel have to do some horse trading with congressional republicans. that's not clear yet. that's something we'll be watching early in the year. >> host: and youe written about this ho quickly do you expect a bill? >> guest: i think we're looking at next month. early in the year yes. >> hos in january? kate tam ril low, net neutrality. >> guest: we're also talking about net neutrality against the backdrop of the communications update which is this big, multi-year that republicans in congss have undertaken. they kind of have that working as well. the rpublicans in the house have said they want to get pen to paper starting in january, so we could see some movement on that very soon, and that's a ol for the congressional republicans to kind of push back to thinkn any net neutrality rules they think are an overreach on wheeler's part. >> host: how much groundwork has

been done on a rewrite? >> guest: we've had a lot of hearing, a lot of white papers touching on these issues. it seems like telecom is very hot in congress right now, so they've definitely had lots of opportunities to talk about these issues and three things specifically about the commerce update which is kind of the moniker they've been using for it so there's definitely been a lot of groundwork laid. we haven't seen drafting any kind of language, but they've had a lot of time to talk about it. >> host: how much of a change is it going to be with frank pallone as the ranking member of the enc committee mr. thune take over commerce over in the senate etc. >> guest: well, i think we know where senator thune stands on a lot of these issues because he'd been the ranking member so he made it pretty clear where he stands on things. the communications act update for example is very importan to him. he's also taken a look at tv regulations and how broadcasters deal with cable companies, so there are some ideas we have of

whether senate thune stands on these things. i think frank pallone's a toss-up. he hasn't been as involved in these issues as anna eshoo who he beat for the position for ranking member. anna eshoo will still be on the communicions subcommittee, so it's unclear how much say she'll have vers pallone, but again, they're going to be in the minority still, but at the end of the day it's still up to congressmen walden and upton to decide these issues in the house. >> guest: i think it could be interesting to see how pallone interacts with the majority on this. you know with eshoo as the ranking democrat, you would have seen a lot of back and forth between republicans and democrats on tech issues that would have made for some really interesting fireworks. here i think, with pallone leading things you might see a little bit more consensus, a little bit more cooperation. again, we don't really know a whole lot about pallone, but some people have said to me, you know, pa loan's from new

jersey -- pallone's from new rsey, new jersey is where at&t had a lot of its roots going back to the, you know 40s and '50s when it was a big monopoly. pallone might be more inclined to work with industry. that's a direction that he could go in there. but, you know in general we probably won't see the kinds of fireworks that we might have seen with eshoo as the top democrat. >> host: what's ott issue -- another issue that the fcc's going to be looking at with regard to net neutrality? >> guest: i think one thing they'll continue to work towards is spectrums and incentive auctions. you know, the fcc is still working through a tremendously successful auction of government airwaves right now and one big question is does that set up telecom companies to spend more in an upcoming auction for broadcast airwaves, or does this mean that they've depleted themselves and now won't be able to spend as much? and that's going to be one big

question moving forward the fcc will continue to be working on developing how it holds the auction the broadcast auction. i think that's going to be one big with area moving forward. >> guest: well, i think another big issue's going to be the moriers and then, you know -- mergers, and in 2015 on whether to allow comcast to buy time warner cable whether to allow at&t to buy directv. those are major decisions on the way we watch television the way we access the internet. those e decisions that are going to have to be made. if they allow the mergers to go forward, there will be conditions. so what sort of conditions will be placed on the companies a lot of interplay with the net neutrality proceeding. i think most people expect at&t and directv is getting a lile bit less pushback. time -- comcast and time warner cable is more controversial so that's going to to be the big decision that chairman wheeler

and the fcc and the justice department will have to make. >> host: brendan sasso when do you see the time frame for decision making? >> guest: i think we're saying the first part of 2015. there'a timeline that the fcc's supposed to stick to, but of course, when there are disputes, they pse the shot clock. but we're sll expecting the first part of 2015. >> host: kate? >> guest: you'll see a lot of reactions on the hill especially. there have been some members who are pretty vocal about this stuff for and against so that'll be an a interesting kind of how that all plays out in the backdrop of the net neutrality process and the com act update press. >> host: what's tom wheeler's relationship with the hill, especially now with a complete republican congress coming in? >> guest: i would say tense. he's very personal, and kind of i'm sure he is charming at hearings and stuff bute've definitely seen him come in and, you know republicans are not afraid to really a drill into him, especially when they don't

like what he's doing. there's a lot of, you know, tension over how wheeler treats the republicans on the commission. commissioners pai and o'reilly say ey're not getting a fair shake, they don't get to vote on things they want to vote on, wheeler doesn't care abt consensus. he would push back with, obviously, but i would say the relationship is tense, and no matter what he does he's going to get called down to the hill for hearings and kind of get grilled by these people. >> host: what's his relationship with the president in. >> guest: also a little bit tense, especially in the wake of the president'snet neutrality statement. the sense that i thk a lot of people have is the chairman feels like he was thrown under the bus by the president when it comes to reclassification of broadband as a title ii service. and then on top of that, you know there's just als a sense that net neutrality's a much more complicated issue than plans the white house will -- perhaps the white house will let on publicly. there's a lot of legal back and forth that has to go on lot

of political tussling that goes on. and for the white house i think a lot of it is political but in the context of congress mainly. and this is a populist issue th they can rally the base around, you know set up a confrontation with congressional republicans whereas, you know, at the fcc their job is to actuallyreate the rules that everyone has to live under which is a much more complicated procs. >> host: carol tunnel ril low -- kate tam ril low, we haven't talked about cybersecurity and congress. >> guest: that a has been a hot topic aftethe sony hack which you know, apparently came from north korea. so cybersecuty is definitely going to be an issue everyone's mind, especially as this congress picks up in january because this is also recent and kind of shocking in a way we haven't seen before. past hacks whether it's target home depot, it kind of made sense we wanted financial information.

it wasn't this censorship of free speech and the arts. so that's going to be an iss that's on everyone's mind. this has been something we've be talking about for years, will the sony hack what pushes us over the finish line? we'll see. >> guest: i think the hack definitely increases urgency. it puts pressure on people to push forward a bill. i don't know that it necessarily alters theort of fundamental calculus of getting cyber done. there's still a big privacy concern. you know the white house, you know issued a veto threat twice on privacy issues related to the cybersecurity bill, and so that hasn't gone away. there's a big question as to, you know, whether, yes like the cybersecity incident does increase pressure, but does it actually change the terms of debate? >> guest: well, i think, you know everybody is onboard with the basic id that they want informatn sharing, they want

companies in the government to be able to do a better job sharing the sort of data about the attacks, what sort of viruses are coming at us. so the question is how much privacy protection do you put into the ll? that's the debate that's going on. i don't know if this incident necessarily changes that but with republicans in control they might be able to set the debate. if they send a bill to the president and he's not thrilled with the privacy protections but will he veto it if this is the cybersecurity legislation that comes forward? i don't know. will there be a filly buster in the senate with the democrats still being able to block leslation? i think things are different now with the republicans controlling the senate. they've been pushing a lot of sort of smaller scale cyber bills. there have been a number recently, bu they're all sort of minor, putting, you know, codifying certain programs and trying to address the quality oryou know, the experience of the workers in the federal government on these issues. so they keep passing bills, but

they're all sort of the smaller issues, and the question is whether they can do something bigger or more subantial. >> host: kate, what's another issue we're going to be looking at in 2015? >> guest: we will see surveillance reform debate pick up right off the bat which is, obviously, something that any company that deals th communications are watching for. key parts of the patriot act are set to expire in june, so can the reform add slow dates -- advocates get substantial reform new or is it going to be done last minute? that's a debate that's raged on since the edward snowden leaks. so this has been happening for a while and, you kn, we saw a lot of movement and then stop with surveillance reform last year. it passed the house and then nothing happened for months, and then we thought we were going to see something in the senate but it couldn't, ultimately come to the floor, it didn't have the votes. so now we're going to see this kind of urgency pick up because if they don'tass something the u.s. government will lose the sur surveillance authority

starting in june. >> guest: and that's a boon to folks who are defenders of strong surveillance programs, right? the closer you get to the deadline, the more of an argument you can make is, hey, this iabout to go away, we need to ramp things up here. >> guest: i think it could play for both sides. we have to protect the country, we have to get this done, but ere may be some in congress who are willing to go with nuclear and say we're not going to pass it if it's not substantial reforms. that will be a very intense game of chicken when it comes down to it if that's what happens. you're also seeing a lot of companies who really wanted usa freedom, the last bill to get passed and were very disappointed when it couldn't. i think they're going to be more willing to get a little riskier and say we're not going to back something we don't like and, you know time's on our side. it'll definitely increase the tensions on both sides, i think. >> guest: i think there were some people on the privacy end of the debate who are eager to see us go towards this cliff,

people like rand paul. but, you know, my opinion is i don't know if that was really the, if they'll really have more leverage. look who in charge of the senate now mitch mcconnell. the statement he put out was this is going to help terrorists kill americans. so it's hard for me to see him voluntarily push, you know, real sweeping reforms. i think he's probably going to do as little as possible. there'll be some kin of reforms, but that'll force the reformers to try to block that. they do, again, you need 60 votes to pas anything, so can they muster enough to block what mitch mcconnell is pushing? you know maybe but i think that theyrobably they probably missed their best shot in 2015 and now thisis going to be -- 2014, and now this is going to be -- and the faher away we get from the edward snowden's leaks it's fading from people's minds. there's concern about isis and terrorists, so the momentum is on the side of the people trying to defend the nsa. >> host: so when you talk about reformers, mr. sasso, what are

you talking about? >> guest: right. well, patrick leahy the chairman of the senate judiciary committee in 2014 was the author of the usa freedom act. the main issue is t first leak that came out of edward snowden's documents which was this mass collection of information on all of our phone calls. so that's, you know, the time, the phone numbers, the duration of the call. and so that sort of mass surveillance of americans was, i think, the most shocking revelation. that's been the main debate is how do they address that curb the nsa's authority in that area? president obama took some voluntary step toss change how the nsa handles that data, but ultimately, they want to move the reformers in congress, so leahy, senator ronyden and others would like to remove the nsa's control of that vast database. >> guest: short of large scale, comprehensive nsa reform i think one thing that could be prepared to move is reform of

the electronicommunitions privacy act which was, got a tremendous amount of support this past year in the house. it's a bill that would, essentially, update the nation's laws when it comes to e-mail privacy and requiring potentially warrants for law enforcement to get access to e-mail files. you know, this is something that i think a lot of pple would potentially support. and on the senate, in the senate as well. you know, if we can't get something like comprehensive nsa reform bill done perhaps something more could be palatabl >> guest: i think if that could get to the floor, that would definitely have the support to pass. the question is, could it get to the floor? it had a majority of the house supporting it this past year but never came to the floor. i think some people in congress are hesitant to bring it up because could change, you know the same arguments we have with nsa reform, it could change law enforcement's ability to go of after criminals. but, you're right, it is hugely

supported, and if it ever got to the floor i have to believe it would have the votes to pass. >> i wonder now with a governing majority that republicans are very interested in getting things done and making it look hike they can actually govern -- like they can actually govern instead of being the opposition party, if there's appetite for that. perhaps this time it could come to floor. >> host: is there an area of agreement between the republican congress and the president on this issue? >> guest: on the electronic communications privacy act? >> host: rht. on privacy issues. >> guest: right. i think pretty much everyone is supportive, just for the idea of changing the way that the sort of warrant that police would need to accs e-mails. the administration -- the justice department was sort of resistant at first but i think they're on board. it has broad support so the question is why has it not happened? this came up before the edward snowden leaks even happened,nd it's gone nowhere. what i've heard is there's some resistance from some certa key

lawmakers. they might not oppose this generally, but if we're going to give to it the privacy side, we're not going to just support this without any court sort of -- any sort of, if you're at the bargaining table, what are you going to giveus? like kate said, if it goes to the floor i think there's prod support. question is if there's enoh pressure or attention on this particular issue to the actually force it throughommittee. >> host: well, kate, what about piracy? do you thi we'll see anything done with piracy in 2015? >> guest: i can't imagine lawmakers are too eager to touch piracy aer the stop online piracy act protests. but the hse working on a copyright review so that's been goin on for a while now, and they're going to continue with more hearings and kind of looking to decide what they want to do with the review, and picy's easily something that could come up there. you know we've seen a lot of just hesitancy to touch anything involving online piracy that could even ignite a sopa-like protest.

and i think we've seen google more recently come out against the idea that anything to change dramatically in terms of what people can access on line to prevent piracy from happeni so that's all fresh in lawmakers' minds, certainly especially in walk of the sony hack which brought to light some e-mails that some members of the hollywood industry send about this -- sent about this. so we'll definitely see lawmakers lk about copyright broadly. i can't imagine there's a huge hunger to push on something that's been so controversial in the past and cluding the past couple days. >> host: gentlemen, anything to add to that? >> guest: well, kate's really the expert here. [laughter] >> host: okay. well, she also mentied google, and google's had some issues with the european union especially and some of the regulations there. are these, are these ankle biters for google? are these serious, complex issues? >> guest: well think antitrust is aig issue for google. i think there was this

resolution in the european parliament which suggested maybe they ought to tear google apart which, obviously got a lot of attention and, you know, split the search engine off from the rest of the company. i don't think many people think that's what's actually going to happ but does put pressure on the european commission to take a harder line on google. of course, we hadthe same debate in the united states on the same issues, and ultimately the federal trade commission decided not to do anything. so i think google really won that fight in the u.s., so now 's still sort of fighting that ineurope. there's a little bit of a different dynamic where i think there's some resentment to an american company that's so successful in europe, and they don't like the way that it dominates people's access to the internet. there are issues about the nsa and this resentment about the usa having access to europeans' information. there's a lot at play working against google. ultimately, i don't think they're going to force google to split off its search engine, but

could there be restrictions on the way google organizes its search results? yes, i think that's probably going to happen. so we'll see what happens there. >> host: brianung, another international issue coming up in 2015 icann. >> guest: yes. that's a big issue moving forward. you know, at this point it's kind of unclear as to whakind of steps need to be taken. there's, you know, the folks that i talk to say there's a lot of -- people are kind of in a holding pattern. you know especially when it comes to this idea of transitioning u.s. authority away from the internet naming and addressing system. you know, in the, you know, republicans approved a proposal that would basically prevent obama from funding any kind of prect to move, devolve u.s. authority away from thatystem. but, you know as we've seen

that process has already been kind of, been moving along of its own accord. so it's not clear, you know, what republicans really gain by doing that. and then at any rate, you know there's a lot of discussion that happens, that has to happen on a multilateral basis before any further movement can happen. >> host: would it change fundamentally howhe internet is regulated? i mean, would it, would it -- would we see change here in the states? >> guest: for the average consumer, they probably won't notice a thing. there's -- a lot of what this discussion is about is about the future of who has authority to determine changes to the internet infrastructure. which is srt of by definition a very political kind of debate, you know? how much authority should china and russia have to determine outcomes, you know, how much authority should the united nations have to determine outcomes. a lot of the pushback on, you

know, the united states devolving authority for ia has sort of focused around well the united states is sort of this bastion of free speech, and if we can't insure that the internet remains free and open, then, you know the internet will be harmed. well, you know as i sort of said, that process has already begun. you know the united states has by devolving authority officially, actually takes the moral high ground by saying, you know we recognize that this is an international, multistakeholder process. we're going to sort of officially recognize that and acknowledge that the internet is a much more diverse place than it was when it first began. >> host: kate, how much of an outcry in congress over icanning, the changes to the regulation of icann? >> guest: huge outcry from congressional republicans, you know? they considered a number of

bills, and like brian said one more got attached to the overall spending bill. so there is this limit on the obama administration right now. however, that expires in september, and while the administration had said it wanted to begin this transition process in september, ve heard from many people who think that's just not poible at this point. there isn't a plan in place there isn't consensus in place to to put a plan in place so i n't imagine, like brian said the bill that mnaged to get passed as part of the funding bill will have any huge consequence on the administration's plan. but whatever happens next will certainly provoke some anger from hill republicans who think this is opening up the internet to russian control or chinese control. we will see. i can't imagine that they'll be quiet when this all kind of starts to move forward, but i think that's a while out. of. >> host: brendan sasso, when you're covering telem issues, do you beat a path between the hill and the fcc? where else do you look?

what other agencies or areas are important to keep an eye on? >> guest: well, obviously, i mean, like any sort of regulatory area, what the industry groups say is going to matter a lot. in terms of within government the federal trade commission is also important. it's also possible that if the f, cc -- fcc reclassifies broadband under title ii, that'll remove some of the ftc's authority. they sort of regulate in the areas that other agencies don't, so if broadband is considered a common carrier service and it's under stricter fcc control, that would remove some of the ftc's authority to police consumer protection issues. that would all sort of go to the fcc. recently the consumer financial protection bureau sued sprint on the issue of putti, you know bogus charges on people's phone bills, so that was an issue that i think, that's an area that the consumer financial protection bureau has not gotten involved

in before, so that's a pretty new agency. it was part of, created in the dodd-frank wall street reform bill, so now it's sort of, i think, a question of how much how vigilant is the cfpb going to be in this area? their theory there was that sprint was sort of acting as a payment processer by putting these charges on people's phone bills. that was the first time they'd acted against a phone company, but we'll see if they're me active. >> host: all right, we're going to p you all on the spot here 30 seconds each, what's something we have not talked about that we need to talk about? brian fung? >> guest: one thing we haven't talked about yet is patents and we'll probably see much more renewed efforts to push through a patent bill in the new year. you know,here's a lot of talk about how patent we form advocas are going -- reform advocates are going to talk up the covered business method which is something they wanted to do last year but ultimately

had to back down on for fear it would kill the bill. there'a lawsuit right now that deals with the first covered business method petition, and if it turns out poorly for the patent reform advocates, you can expect to see a lot more effort and ierest being poured into expanding cbm. >> host: brendan sasso. >> guest: i think tv issues will be a big one that could happen. th would be retransmission issues, how much the broadcasters pay the cable providers. that's something that could get addressed as part of the communications act. there's a lot of attention there. a lot of people think the broadcasters are charging too much. and then also as sort of part of the broader tv regulation issues, there's what the fcc is looking at which is whether to give more protections to online video services sort of treat them the same way as cable companies. that would give them the same protections to get access to broadcast content whichould allow these online video services to more directly

compete with cable. so that's sort of, i think a big set of issues, a complex web of regulations but could get addressed in a lott of ways. >> host: kate. >> guest: i'm going to go with immigration issues. a lot of the tech companies are worrd about filling the high-skilled jobs they have, and obama took some stepsarlier year to address a lot of the problems of the immigration system but high-tech got left out, and they're going to make sure they don't get left out next time, you know? there's going to be a lot of talk about the fact that high-tech immigration reform is one of the few areas where people agree in congress and kind of the white house is onboard too. can it remove on its own? that remains to be seen, but it'll get a lot of attention. kate politico, brian fung, washington post brendan sasso, washington journal. thisis "the communicators" on c-span. >> c-span created by america's cable companies 35 years ago is

and brought to you as a public service by your local cable or satellite prider. >> the association of american law sools holds its annual meeting today in washingt. the event begins with law professors discussing the obama administration's use of executive orders and whether the action upsets the balance of power between congress and the executive branch. live at 9 a.m. eastern here on c-sp2. >> the 114th congress gavels in this tuesday at noon eastern. watch live coverage of the house on c-span and the senate live on c-span2. and traffic the gop-led congress and have your say as events unfold on the c-span networks c-spanradio and c-span.org. new congress best access on c-span. gregory olson flew to the

international space station in 2005. in october the entrepreneur and physics professor spoke to the explorers club in new york city about a his training, his trip to outer space and what it's like aboard the international space station. this is a half hour. >> okay. so for our next presenter today it's going to be a straight-up talk. want to introduce greg olson to you. he was the third paying person to fly to the international space station. greg wen up via soyuz rocket in i think it was 2005 or 2006? >> five. >> 2005. he reportedly paid $20 million or more or less -- [laughter] more than my virgin galactic flight. but greg did some real experiments. he's founded a company called

sensors unlimited. bought it, sold i want, made a n of money. but this guy is a real science geek as well as a businessn. and io want to say he's also a ham radio operator. he has contacted earth from the space station himself which we're going to do the opposite of in about 40 minutes up in the trophy room. and i just want to say greg is a nice guy. his capsule that a came back from -- that came back from space, the tuneny little soyuz -- tiny little soyuz capsule with three guys is in the intrepiduseum so if you ever want to see it and see how small itas wow. anyway, greg olson. >> thank you. [applause] thank you. i realize i stand between you and lunch so i'm going to try and bow through the presentation -- blow through the presentation and then, you know do anyquestions, and then we'll get to eat.

people ask me where'd i get the idea to go into space? i'm not a professional astronaut. i'm not even a military pilot. i am a scientist/engineer, and i had a lot of training in that area. about 11 years ago i was sitting in a starbucks princeton, new jersey, and i read a story about now how the russian space agency would take private people up into space. and it was just one of these wow moments. and i think most everyone here has that same thing. you're not a big planner thinker, you're wow, you want to do something, you go and do it. so that's what got me to go into space. now, as you know the original idea of this shuttle was to take average person up and let them experience space. but because of the accidents that was cut out. so the only way a private person like me could go up is via the russian space agency. now, even though i'm not a trained astronaut, you know you just can't hop on a rocket and

go up. there's a lot of training required. so i spent six months in russia outside of moscow training for my mission. and, you know, here are some of the things -- it was a pull-time deal. it was like -- full-time deal. it was like being a college student again. i was in star city russia which is the russian version of johnson space center training grounds. the hardest part for me by far was trying to learn russian. i mean, when you're 60 years old trying to learn a foreign language, you know not easy. let's see, the can we yeah. all right. good. okay. some of the training, you don't have to be an olympic athlete but you do have to be in reasonable shape. you know, this is me in the middle of this astronaut bill mcarthur who went up and our russian commander. so we trained a lot and got to know each other.l stuff.

we did have to go over to jsc for about a week and a half as part of our training, and the nasa folks gave us these, like, rorschach tests, and, you know the sort of things where you went in and say how can i get out of here with the right answer, you know? [laughter] russians didn't do any of that. and yung they paid -- i didn't think theyaid any attention to the psychology. but what i found o after my training was that every week they would get together with the instructors and their psychological people and say hey, what about this guy olson how does he behave under stress? is he angry does he get along with people? you know, it may have been a better system. i don't know. but anyway, you know, as they say, a fir amount of physical training. what else we got here? testing my space suit. i don't know how nasa does it, but in rusa what they do is they stick you in a bathtub, and

they fill it up with foam, and when the foamardens they pull you out with an overhead crane, and that's the format for the space suit so it's custom fit like a bride is at a wedding. and this is ju to make sure it doesn't leak. world war i gas mask, another russian thing, but it's very effective in case of fire or toxic leaks. the bottom absorbs carbon dioxide and gives off oxygen and gives you about 45 minutes of prottion. also survival training. soyuz is designed to land by parachute, much like the apollo capsule. but russia doesn't have good access to the water, so if they land in the desert of kazahkstan. but if we went off course,ou know, you could have mountains desert 70% of the earth is water, is we'd practice surviving in war.

one of the fun parts which you can do for about $5,000 i think, is cald zero gravity training. there's a company down in florida, zero g, that does this. but we didit during our training. it's where you go up in a plane and you freefall for about 30 seconds, and then come up and do it again. you get to experience weightlessness. you know this just gives you the feeling and like i say check out if you're going to get violently ill or something like that. but i seemed to make out. we mentioned fear earlier, d that's a question i often get asked about, is fear. the fear i had always from the benning was that i was going to be afraid. [laughter] fore i got onto the solution, 76i'm walking up and i'm saying god, am i going to do okay in this? am i going to get sick in this plane? that was actually my fear part. when i actually got to do it, it was all right. just like when i was chiming up

the soyuz -- climbing up the soyuz rocket when we were about to launch, i was saying, god, i feel okay now, but what if i get up there d i freak out? fortunately, i didn't. my fear was always before the eventnot, fortunately, during the the event. i'llet you read this about the iss. i think most of the people in this room know this stuff. just that, y know, the space station is roughly 240 miles above the earth, it varies a bit, and al that you orbit every 90 minutes. soou get to see 16 sunrises and sunsets every day. this is what a soyuz looks like being pulled out to the launch pad. i had 30 friends and family come over and you can see ross cosmos they're a little less formal about the whole deal than nasa would be. they actually let people get up and touch the rocket while t

being towed out. being my a and a lot of you, can you imagine saluting a ruian general? [laughter] and that's, you know, growing up in the '50s and '60s? heresy, t there i am, you know just before our launch. russians, the more kind of- they're more kind of ceremonious about it. as you're going out a lot of little traditions that they employ. thiss what it looks like inside soyuz. we had to sit there for about two and a half hours and i was stupid enough to ve two cups of tea before the launch -- [laughter] so i'm not ashamed to tell you we all wore huggie diapers, and we all got to use them. [laughter] right here in this section there ain't no facility. here's the actual launch.

october 1 2005. and we're sitting up on the top. [background sounds] >> it takes less than ten minutes to get into orbit. so you're going from zero to over 17,000 miles an hour less than ten minutes. we had about three and a half gs three and a half tons of force of gravity in order to get up there. you know our launch went pretty smooth and as others have described, you feel like you're being pushed back and you can hardly lift your arm and all of a sudden you sense this freedom where everything is floating. and that's when you kno you're in orbit. it only took us ten minutes to get into orbit, but you can't

just smash into the space station, so we had to do 34 additional orbits and slowly eak up to get the same exact altitude and velocity so we could dock. nowadays i think they'r doing it like four or six orbits because they have much better guidance systems. you know, once we're in orbit and everything checks out, we could take our glovesff and open up the visor. i'm carrying a sony video camera that's still up on space station now. i took a lot of the video that you'll see here. bill engels, who's here, also took some of the material -- >> [inaudible] >>o. but some of the photos that you'll see here. i actually, i had a little pocket camera that i was able to slip into my space suit which is a who long story that you need to tell over a beer.

but i had a great view. you see i had a window, and the first 50 mile or so we had a shroud surrounding the soyuz, so i couldt see anything. and all of a sudden i hear explosion, this boom. i look out the window, and i just see this big, blue sphere slowly receding. that was my aha moment. here's our docking at the space station. remember we're doing over 17,000 miles an hour at this time. >> [inaudible] >> soyuz is highly automated, an as walter said, they don't leave much for the commander to do. if everything is nominal as they say, you pretty much just sit in your seat and watch things happen. people ask what was the best

part of being in space and, you know, other than saying imagine you can, tt to me is it. just floating back and forth. it was such a great feeling. i got to experiencet both on soyuz and on the iss for ten days, and it's just a great feeling. here's the view looking out. like i say big, blue sphere is what i remember. [background sounds]

>> ah. now, we're going to do some ham radio afterwards. i was a ham operator in hi school. i think there's enough gray here in the audience that remembers. i did a presentation at my high school in richfield park in new jersey yesterday and there re 300 kids in the audience, and i said how many have ever heard of ham radio? three hands went up. i mean, it's just, you know it's disappeared. but, actually, richfield park they did have an amateur radio club, and i got to do a ham session with them. also did it with princeton high school where with i live and hamilton high school in brooklyn where i was born. how do you drink water in space? well, here's how we did it on the iss. [laughter]

>> you can understand now why there are no showers and no sinks on the the i is s iss. the russians actually tried to use a shower a on mir. they had, like, i guess with a plexiglass cylinder, and from what i heard, it didn't work all that well. we used wet wipes and cleaned ourselves off every morning. yeah. how do you eat in space? we had eitherred goods or dehydrated foods. i think it's improved a lot since walter was in space.

this is sergei krikolev, russian cosmonaut. he spent 803 days of his life in space. i think that's still a record. yeah. [laughter] >> watching you open your slim jim. >> that's astronaut phillips in the background. he brought up slim jims as snks. that was his special food. so -- >> [inaudible] >> even astronauts can't use

video cameras. [laughter] >> [inaudible] >> we've been trying without success to sell this to slim jim for an ad. [laughter] oh, is is -- you know, almost everybody has some medical issue in space. i had some small copd issues. even though i can run and do all the other stuff. so i was required to take medication during my flight, and this is just showing how you use an inhaler. and i bring tough like this into schools to show kids just because you have a certain handicap or a disability, you know, it doesn't necessarily limit you, nor should you let

it. th is for demo purposes. ah and here's some e-mailing. >> [inaudible] >> yeah sure. took me about three takes to do this. [laughter] because you keep bumping into

the sides. and, again newton's law of inertia, a body in motion tends to stay in motion. the thing i point out is notice there's no shoes, because when you're weightless, y don't need shoes. the space toilets that everybody talks about. here's astronaut john phillips in the flowery shirt. he's about to leave, so he gets to show and bill mcarthur he gets to do the install. >> [inaudible]

>> john didn't like my comments. now, you see this hose with the yellow funnel. that's the urinal that both male and female astronauts use to collect urine. it's basically a vacuum cleaner hose. and if you like procedures, you turn on motor m, open valve v and then use apparatus. the space toilet, i'm not going to get too graphic about describing it, but i'll point out two things. number one, the diameter is smaller than you're used to. all right? so you have to think about ceering yourself. [laughter] and when you're bouncing around weightless, that's not so easy.

the other thing is gravity isn't helping you out here. so you want to slam that lid shut as soon as you're finished up. and it's something you really n't train for onearth, so the first time i used it there's this little curtain, and all i heard was snickering outside. [laughter] sleeping, you know, sleep i any way you want -- sleep any way you want. had a sleeping bag. the cosmonaut i commanders, they had their own little booth. it doesn't matter how you sleep, the important thing is you confine yourself. my case can i tied up to the wall so you wouldn't bounce around while you're sleeping, maybe hit your had. i had a company sensors unlimited, that made near infrared cameras that does night vision for the military and this was a video down link to our princeton facility so all the engineers could get to see

the cameras. >> [inaudible] >> and here are some of the chips that we make at sensors unlimited. you know, i took up -- i actually made cuff links out of these for all the engineers that built the camera. and i'm se many of you know who that guy is, yuri gegarin, the first human to orbit the earth. ah a little more physics. this demonstrates moment of

inertiwhich is kind of the resistance to rotation. you see a book, you can do this at home yourself. it doesn't like to rotate about this axis. it tries to go back and rotate about the other two. see, this is the smallest moment of inertia. and that's the intermediate one. that's the one doesn't like. it wantsto go about the largest or the smallest moment of inertia. of -- these next photos i got from nasa. this is what the iss looked like in 2005. it's a lot different now. but this is the soyuz tma-7 that i launched in, and that's going to stay there with the crew for six months. i came down in a different soyuz, tma-6.

so t fir thing i h t d en we docked t key spacsu and sea and move i up to the soyuz that was here since thatas gog to be my meanofgrs in case of any rt ofmergency. so we sloly bk awa and we do about an orbit and a half. now remr,his is a vcu and we're taving ov 17,000 miles an hour. butwhen we g down to that yoknow 100 mile or 60-mile layer we tked aboutarlier you're going to eounter frtion. so what we do wjettison t engine and also that habitat modu, that spherica section yo saw. and that'soaded with l the garbage d uf that we wt to throw away. we're in this desct module which ha a heat se on p. d as weetnto the atmosphere, ofouhis are going to heat to ounds of degrees,nd anhing without the heat shield is going tourn u

now, in order for us land in kazahkstan, have to ter the atmosphere somewre over arntina. an oce you're in, you have t veryittle contl. once y argetting into the atmospre. we had littl bitf tumbling. we had aaireak. we lost 3 of our air. i didn'thi i was that big a deal at the time because it's the sort of thing you rehearse, you know during traing they rn the radioof and you have fure out whether it's the tranitter, receiver, power supply, and they also show, you ow your airupply goin down, atre you suppod do. so it's aostlike traing. d what i was suos tdo was keep my mth shut and my nd off until the commander said oon- [inaudible] icis oxygen. d atth time i openedhe emergency oxygen valv and, youknow typic ssian thing, they have aotof spring foe,o you dot accintally open thi tng.

so to ho this thing open for two minutes with a space glove it was excruciati. t i just kept tling myself, you n' let go you n' let go. an y know frtately, the leak stilized and we did okay. you know, in answer to tt astronaut's prayer the thing i remember is wen we finally laedn kahta i just id whew, thank god i didn't screwp. [laughter] that h i felt abhe thing. so we come down b parachute. ce yo get below a thousd miles an hour. yo can se i don't owf this is o ofours, bl, but ere's a big indentatn t groundhereoyuz lnds. at why you have the char. don't remember our landing being all at rough. now, i we to the landing of arthurnd tokarev, and ey claithey d a rgh landg, and iealized lat the

difference was they hadin theyad a sideind which we di'tave mh of. so we we thegrndor abt ten minut. the srch and rescue team came and got us. wh you've bee weightless for my ca n days, in ei case six months, you're pretty diy en you come back doto earth. so they treat you like a medical paent. and even though i cld walk i think maybe six hours later after lndg t desertf kazahkani was back in my dormitory i star city. every minutomeone wod come in and jab a needler give me a cup to fill, and that's how i pent t next -- i spent the xt three days. butmy ssn went well as jim ntioned. my caule is w on display in the intrepid along with the shuttl i mean, yocan really see se goodtu thereyou kno forgetbo my capsule there's the shuttle and t

concord and the sr-73. i mean, that's back when we really had tako ris. and i personally feel like i think most of you it's unfoune we're not taking those kind of race bs to answer- ris to advce n just spe, but aviation in gera and t go in a place like intrepid, it remin youof how bold and innate we once were. so, you know a couple comments. would i do itgain? in a heartbeat. i loved it. and if you wt to read anymore i've gt thehis book on the inteet calledby any means ceary," and ihk you can dolo it mostly fe. thankvery muchand i'll do questionor you canat. [applause] >> tig on he communicator"hreeechnology rerts review the big issu of014 and th key communications and technology

issuesacing the new year brian fung with the washington post, brendan sasso th t national journal and kate tunnel ril low wth polic >>he chairman isn' expected to unveilis proposal uil februa o marcht the early ich givesn openingor republicans in congrs to introduce a billbout net neratyf their own. what will the chairman don response to that? is thatoing to force him to mo me quickly orsit going to put him in a posion where he'll have to do some horse trading and negotiation with congressnal republics, at not clear yet. i think that's somethingha we'll be wating ear in the year. >> ixpti t fcc will come out with final rule on net neutraty. president obama, o course, came out in spport of reclasfyg broadband srve unditle ii of t communications act wch would, esseially,ake it treated li utility. of urseroadband industry groups are frcelypposeto this. tre a lot of pressuren chairman wheeler to go that route. soe'll see in the fist few

months -- first few months what happens there, d even on the rules e on the oks,h fit' notessarily over. then tre's going to b lawsuits almost ctaly fro the industry groups likeverizon and comst especially if chairman wheeler does wha the pridentants. we're also talking about net neutrality against the bckdrop of the cmmunicationsct update icis this bigultiyear efforthat republicans in congress have undeaken. and w that theepublicans control the senate, we're goi toeet there to. sohey kind of have that working as well. e republicans in the house have said they wantto g pen toaperstti in january, so could see som movement on that veryoond that's a toolorthe conessional republicanto u to kind of push back on any net neutrality rules theythink are an overreach on wheeler' part. tonight a eig eastern on "t communicators" on c-span2. ..

>> the idefothe program wa born out of our own wo as immigration scholarnd in response to the conversation over the leality and legitimacy er president obama's executive ask in immigration, particularly those ed to efer he erse of the removapor ait certain domented imgrt uthf also known as thdreamers.

aipated that by ear's end present obama would lily act a second time without congress to atempt t address in so ways t persistent prlems of the verybroken imigrati system in the fe persistent faurof congress to adopt immigration rerm in over a deca. is indeed happened on november 20 your you probably hear about hat when preside amannounced cases of executive ask thatou not only xpand the deferred action program but asoexnd it o domentedparents of childre and/or other measesess novel shall be discussed as pa of this program an surrise lakethis move has proven extremely controveral and potical, leadi to denouncements against ongress, and lawsuits challenng the gallery of the a. includinone binary half of th state jo in the ltition

so in this programe wted to ha aconvsationmigration ecive action to a broer context and include other areas of lsuch as health, environment, gay rights national security with the present has also en accused acting as an imperia preside. what make tay pgram particularly exti therefore, i that is bring together scholars writingsn issues of separation of powers federalism, administer l a gislatn, and writes cross various areaf w to examine whether and how the critiques waged against president obama have an erit. so as yo kno thi is a aylong program. thank you so much for showing up in the morning. it consists of four different panels the morng pogra considered the constitutional stuctural ises raised by president obama's mintrations li on his executi aintrion power govern the first in icwe moderatedby the

professor, csir separation of powers and the sickan whic weoderated by me ill conser issuesf deralism. in he afternoon a you'll be having lunch oyour own and we ho y come bak from he nvsation turd a righ-bed assessment of some of prident obama's issuance of sole executive prs. to test the 10% of the obama adnistration haslargycted withoucoress to expand gh. jennifer wl moderate a panel anthfial pane we could no dothis, we ar going tobe loing at the mmigraton example a cse study tke and expand t conersation to engage both th structure and the righ-based critique of programsikthe producti and daca, e cent eansion of progm. so we hopeou stay for the entire program or as much ayou n. finally, let me say h pleased

i am tht many ofthe papers prented ey wilbeublished in both he chicago ready an amican uversity la review. thank you so much for coming da [applause] >> welcome everybodyhank y to t orgizers for their precedentsn organizing this conference. we want to begin obssi with a lo at separaon ofpowers. rent uses ofxecutive aion have trigged accusations tat e presenis acting imriling like a king or a lawbaker. that can trigger political environment in whichcongress has fled alsuit is o present an ecti overreach in health care. states are trying to it as an oma's executive aio in immigration law silar prison has been leveled against oba' environmental pocies. this panel wl amine

president obama's administration thugh the len saration ofows in order to assist the major scope ofis executive actions. our sakerswill explore tse issu through rightf policies cling immigratn, health care and tax plicy. i will intduce our speakers brfly an then hae them share theiparsn the order in which they are seated. first e ave professoprofso professor children whose a ofessor atwideer university hool of law and also the rector of the law and vemenstitute. profso from is known internationally for her holarly wo on immigrion or scholarship exameshe governme rocedes n deciding who may e it may remain in e uned states. she's especiallysud immigration ncy posing naked tionship between three branches fgovernmt an settinimplemting and terpreting immigtion law. our work draw on dminister law,onstitutional law and viprocedure as wl as comparative sty of procere inth cntries.

she receiv the 201excellence inactycholarship award and was elect as a fellow for the national administrative law judiciary an t abs or talk it i entitled and unexceptionaaspectf the battle betweenresident obama and congress over immigratio laws. next wh professor chd deveaux ascie professo at concordia universitschool of law. professor vex cus on federalism and the separatio of we and theruleof nstitutional law and private law litigation s work addresses theroleof the diciary and the system of ecks and balans. he teaches constitutional law and contracts or whic he won n award at concordia. his talk is based on --do debt ceing st in congress and is entitledthe four presideial power come analyzinghe debt ceing stand up through the prm. next will have professorlliam marshall who was the professor of law at thuniversity of

north carolina la schol. presr rshall hasubshed extensely on freedo of spch, freedom of religio federacourts pesnal power, federis anudicial selectiomaer he teaches classes n all of these ubjects. was deputy hitehe unsel and deputy assisnt to the president of the united states during the clinton admistration. he has ao rved as th solicitor general to t ste of ohio. his talk will be based onecent publication entitled actually we shld wait, evalting the obama administration's commitment touilater executive branchaction. adolescent baker wilbe professor jph laau who is an associate professor at fordm universy hool of law. presr landau writes in t areas of t ministry of law national securit i immigration laand teach courses in those areas as well. professor landau hsecived the teacher ofheear award in 2013nd he'sbeen named one of

the best lawyers under 40by the natialgbbar association. his talk i enttled immigration pert imitation an his sdies the role anc credit includg imigration law forward. thout further ado will turn er to our rsspker, pressor jill family. [applaus >> thank y s mh. it's my pleasure to staoff our sessn todaand be a rt of ths pan. in fact, hold a iscussion. and the toc of pation of powers certainly has been getting a lot of attention lately and the push and pull between president oba and congress overvarous issuesin my opinion tenqckly bls down to simple descriptions tha hit the presidenand congrs in the pick yur m bow toard death matchf he century. while ther is muh to discuss and coopation between the executive and egislativ

branch istrang to say the ast, i wouldlito start our discussion tod by oc on an aspect of the recent high profile separation of powers dispute that on fuher examination isno really very novel or very notewort. you y be thinki gee its about a data sucture talk by telling the audience what yo outo talk about is not very notewohy or nole, but the poin is the highmay not always accurately flect e reality the situation so as has beenmentioned, president obama ecently noced actions afcting immigratiolaw. he proos to estblish a process to allow for t parents of u.s. citins r children or lawful permanent resents are children of tose ith geen cards a proce tallow for te rents to apply forsomething lled deferred ati which is omise not to deprt for a

erin period of time it. so if the government issaying, wee saying ith youare not an enforment priority for and weill issue documentation that shows that we prosed not to dport you. th ds t ovide the individualitlel stt. also pposed expand derr aiofor childhood arrivalsroams which was mentioneearlier and tt alloindividuals tright without statuas chiren to apply fothatme proisot to deport. he also calls for new enforcement priorities more generally, indeed proposed to study changes to improve the efciency of imgration buaucrac angomotr things. that is a ver briefsumryof e subsnce of wht president obama woul ike to see accomplisd,ut produrally eaking what actlydid he do? that day in november. he di n issuany ecutive order. d iueo presidential

meraa, hat those addss ly to never ss o a thsutae. the ony addressed improving immigratnreaucracy and ominbetter integraon of immigrants into sociy. the most conroversi iem establishmt of prsurs question theartiesomg nouncent of u.s. citin children andawful permant chdr couldpply frthat eaca extension, those are all actually in the fo of agen gdance doments. so the ctul documents are silyemoranda from the crary of homelan surity to lower level agency officials directingte agency serve certain prosecutorial discretion or establi amethod for parents to apply to thepromise to n dert anso i hav i ll showou real quick, thiss th vember memoranda that

establishes program for pants of u.s. citizen ildren just s leterheadon ssemanm for eor of-- it is fromseetary fo mend security. sohat's all is. at extly is this? what exactly is this pcef paper? it's an agency guidance document, and they a noegislative rus thatre ed healy throughout admistti l. in adminttive w the term rule is usedvery broadlyo include thlegislative and nonlegislative rule your legislative rules e leally nding, thiegation, while nonlegslative ruleslike these memoranda, or t. lgislative rolemust follo either the fmal or informal rulemang prvisonsf t adnistrative rocedure at. former rulekings much more common an in fmal rulemakin t

generatais that thegency publishes a notice propose rule in th fedel regster and thllows the public opportunity to comment on the rule, and then the publication of fal rul follows. e admintriveprcedure act allowexceptions to infoal lemaki for guidance domes like polcy mmoranda d interpretive rules. policy moranda, for example, are notsubject t the tice of commonequirements of the administrative pcedure act. t as a consequence of the predalhortcut, you are not legally binng on the pubc. that means a regulated party may argue that a different rule other than the one tis contained in a guidance cunt should aly in any enrcement. w, all typ of aencies use nonlegislative rues. aot. noeglative rules are al the workhorse the executiv bnch.

th is dr.insel agncso move more ickly d commice more frqueny it gulated parties. pocy memanda, r example, e e shedusmply prses an agency's enforcement plan. th plns to go abot enforcing e w. agency guidance documes e controveial, but that has thg dwith predent obama o current ongress. thusof nongiate ruls has been ntroversial for decades. there've been forts to rform ency use of guidance documts in the 190s, in the 170s the 1980s, inhe990s and in the 200s. so wh are agency guidance documentcororsial? theyre ontversial because in an agencyexercises the por deleged to it through t proceduralechani of the noegislative rule th concern is t nleslativrule bin

prtically without th preduralrotectns of tice and coent rulemaking. even though a plicy emoranda not legal by te on the public, regulatedparties obably wilconform with he morand ss becae the agen iexpressing its enforcemt plan at the path to least resistance,ust d wth a guidae document says. so the fear is that the rule has legally bidingffc despite that itisot t subject of thosef commt rulemaking that it is a egislative rlas a nonlegislative voice. so, for example the d.c. circuit held that e fedel communications cmission should usenoice f mment ruleming insadf an attribute vehle introduce new requirement that allowedanine telephone numbers btransferred to relesscrriers. you probably l remember when this was goingn. cae the new requirendi more than quote pplycrisper

and more detailed alliance, then authority being iterpreted, th d.rcuitheldhe sec id noproperly invoke an excepti tootice of comment ulemaking. and the d.c. circuit alo sort of regulating hears caseswhere people achallenging th us of rul and a pol memoranduman the court usually looks t e langgef the licy statent and the agency behavior to the site, although i suld say that this d.c. circuit -- on ts bject is anythg but cer. if t ument does not use binding language in thgency do nreat theruleis blind, th rul makes wi be nonlegiative. so, for exalein the imgratiocontext, a policy memondum addressinissues affecting juicionor specic immigration benef which iso be true n-gislative roleth's the

procedure used to match what the agency was tying to accopsh. because the guance document was not nding on its face. e mem tself statedthat i onlyntende to prid guidnce to lower level adjudicators, and the ur wa ab to pot to adjudation tces thaevidence tt e build an applicaon just this term i wouldbe remiss i didn't mention that the supreme courisonsidering a challenge to a d.circt doctor and recmends at an agcy may nothange a long-staing interpretive rue le it us notice and comment ruemang to change the long-standing iteretive rule. so as aexamples show, it's, in administrative prede t for a regulat party t chalng an agey's enorcem action, as based on an invalidly formulated nonlegislative ule. that it sulve been suect to notice of comment rulemaking. aninhe loss of tho

mentioned were a groupof stat has raisedhis exac challenge ina lawst challenging prident obama's rece immigration execivacon. so in addition to othe challenges such as aassertive olion of the takcare clause, the statesre also rtg ocedural violation de the adinistrative procurac d the gornment hasrgued response thatthe memoranda trulare a properly formulate nonlegislative rue. this administrativ aw aspect of presdent obama's immigrioexutive acti, my point is is nothing new. it'snot nique the presiden to thtis or to migration law. now there is trend in migration w to ce up with names that sybolize the immration lawitother areas of aw ght, the mosfamous ing riinal ageson. the merging the criminal la and immigration la this name is iportant becau it represents weretwo seemingly

dirse ars law have intertwined. as much as i would love to coined t term -bad acti don' ally fit y talk toay because whatmy pint is and what iope i leave you with s e idea that one of be talking abt day is realy just a plain the ministrative w topi at eastthisconrn abouexecutive wer and th obama ministration is not exptional. in conluon i do nmean to sath president obama's recentexecutive actons ise no neswort issues that adnistrativeawssues e t impoant. in fact, i think tt the predures usedby th ecutiv an ienrcing immiation law an area tt is right for holarly inquy. we need o exame comprehensivelthe procedures that a company executiveower inmmigraonaw ani inthat's immigration law scharhi rowto

separateut the constitional roles ofhe predentand congreswhen icos to immiatn law we will initably conder the exnt ofhepridt'snherent authority overmmigration law. and e queson hat ihave to just leave with mething to inkbou is i e president s herent autrity over immigratio law wha is e ur o any of proedra we strength against the president action? doeshedmistration oceduract become rrelevant t pest ercises inhere authority those think our newsworthy estions, t whether a agecy pbay formulated a nonleglative rule is not. thk you. [applaus >>ha you jillhe ext we have pross cd veaux fromonrdia university school of law.

>>o my per, whih recetl was pubsh ithe cneicut lareviewocesn at think iste most tay those exem example of legislati dysfunctn during tobama yrs. e reoccurring debt ceiling andoff between conesand e ite hous as a w bkgund coress preribe the edeal bud through a panoplof propriation laws tothe statestck the trac have the ederalo suidize a mega projects and prorams d since e undingf the repblic congssas passed these acts with full knowlee of funds and build in federal coffers to tax revenue will prove inadequa to cover theeqre expndures. enhis happens, other law direct th president to periodically broenoughoney to cover the shortfall and tis includes the mner in which subsidized paymes the naonaldebt. but congress apropriation laws stand in conflict withhe debt

ceiling law, which cps he nth of debt the governmt n go aany one particularime to since nactinthe statute in 1917, congress as routiny presib budgets maintainin spenng that so aly exceed ojterenues that ey willnetay require the treasury to borrow funds in excess othdebt ceiling to make good on our bligatios. anfor dedescongress has proved increases to thdebt ceiling virtue as a matter of course every time w crept clos tohe borrowi limit and all and all this ia very good thing bause of the largest borrower in e word a default by the uted states government would iall likelihoodf trigred a worwide economic depression. all th changed inthe summer of 2011 whenthe reublica majority in the house of representativeelteto weaponizthe debt ceiling, d use it se e threatf a federal default and the resultineconomic and socia camies i would resu to

tort political concessions from the white house. he repated ths gabit again in 2013, and a lesr degr la winer,nd despite representation frothcontra by majority lader mch mcconnell,t is quite e that this summer wn the del, when e available pree, en the treasuries funds dwindle we may ace another debt ceiling standoff. today the seminal acadic analysis othe standoffs was ovidedn an artic in the connecticut lottery to my professors nei bhaan and chael dorfwho i ou point out haveeen ve hpful in my ow research. they refer to the situatn an inipient constitutional cris. they refero tetrilemma. dasically ifthdebt

ceilinis ever, ithe debt ceilg is ever rached, the esident wille forced to choose beten three options all wch wouldbe directly ntradicted the statute. he will be foedo either unilateral ccel federal programs, boowon in exss of the debt ceiling or unthinkabl raise tax bond the levels presibed in the internal revenue code and professoeg and dorf posit th any of these would have a furth consequence, that the present woulbe ford viatthe costitution becau whatever optn he chooses will be iriic contradictnto statute and therefore, he would've fleto execute a duly enacted law of the united states. i attempd and was the resence tis in t debt ciling stndoff under the tas esib by justice jacknn his opinion in te youngstown steel seizure cae. i'm sure most people t gym are familiar with thecae,

youngstown stel invoed president trum's uilater izure of t amerin steel industry wh abor dspute threatens production durinth heht of e rean war. justice jackson offed his concurringopini which this up inourt later unanimoly dorsed as e appropriate andardo analysis for qutionable ces f xecutive exerses of eecive power. justic jackson asserted esidential powers are no fixed but thefltuate dendg on the disjunction or conjunion with as congress. heffered his aous plsed don't emplate,o alyze exerses of predeial power. in th first zone the predent acts pursuant the explit or implicit ongressiona explicit or implicit congressional thization. in this zone the president's power are at teir apexbecause all the powers artic to al the powers artleo get him and althe pors that congress has authorized to delegateo

them under artle one. in the second zne we deal wi situations where congreshas choseno main senon the bject of ts is another world, a zone of twilgh i which the powerto the dispute are between theprident and congress are uncertn. justice jackson advised us in isn congressional indifference or acquiescence may generally be seen to invite inpendent measures measures on depdent psidential responsibili and jtice jackson goes to great ins to intout thatthe motiv and alis or went in and come when you exercise thpotential power is appprte often dends on thimrative o events in oth wds, real-wld consequences oa failure to ac zone three inf situationwhere the president acts in theface of explicitor implic congreional rejection of the exercise of power but in thi zone his per is at its lowest to the pwer cannot be sustained

if it llwithin a propulsive esidential pwer uthrized by article ii, fr example, if congress tried to trestrict the president to issue pardons or something of that so. justice ackson concudd the steel seizure thse inthe third soecuse enainwhat bame the taft-hartl a, ngress had consired a version of bill that would authori t president to seze the industries in emergency situationssuch a stel seure, but the versi of the bill tt ltmately enacted omitted sucha langag and from this justice jckn inverted impcit congreional negation of the exerciseof su we further, because seizing american indtries could not be regaeds a preclusive execute power offered by article iitteel seizure waconstitionallyillicit. so wha i the present to do? what is the youngstown steel tell us about the debt ceiling

andoff at first blush it'in which all three of t presence options fall ino the th zone becausthunilateral canceltion of programs, raising,borring mony raisintas are always mostly prohibited by staut and certainly th powe to tax and spend lie t psenot powers exercis bthe pren irresptive othwill of congress. the youngsto an i progeny tedious en multiple stages. on the resident's powersth scope of his athory cannot b glneby looking at any single law insotion. out we mst com the crrect analysis requires cafu consideration quote ofhe general of allongresses coands used colltively, not inisolation. i contend u collectively the debt cli, the situatio faced the pse into th of the debt ceings everreae would t all whin any of the

the zones. becaus each of the threeon ntemplates coherent congressional instruction congress can explicitly and imicitly ahorized the night, oo remain lent, or it can explicit or implicit indicate the ercise of wer. the debt iling stanoffnthe tuation ever ceso fruition, thpresidt lle faced with paadoxically face with ctradictory instctns. you must intimate these programs to build a idge, th aircrt carrier, et cetera butou may not have the mon tdo so. short of multiplying come it would iosblto comply with both commands. thprident must choose one of the three lawsto break in order to save the other tw i would suggest thisequires expansion justice jackson's to include a urone cin so that will do wi stuations that quite frankly d never happened before,here congress issues conadictory ommands to the presiden

so what standardshod apply inhifourth zone? justice ckn himself knowledged th congrsional aciescence in tes inpeent mac -- invites indepeent measur o presidential responsible. ordinari th line f asoninonly alies in th zone of twilig because ordinarily when congress ells the president to do sometng or not to do sething, that such a command comes without confers noiscrio thpresident must obeand executth cmand isued y congress. so when congss has issue inconsistent contradictory coands, and has steadfastly refused o clarify or prioritize which ommand shou poce the other in evenof a colic i fact has refud to knlee at a cflict exists, in my view that ct by

definition, that acquiescence invites independt measuresn presidential repibilities. and empowers the presdent invest therent with the direon to coose -- to choose cozza jusa whicof the commands must be sacficed. the pofso comparebasically sert the president and the situation is faced with sophie's oice. you musthoose onef e three laws to suck vican noted to save he other two i don't arrive at t conclusion easily. in fact, i argd mypape that this sort of abdication of oor legislors want to go to the esidt an existential threat to the ongerm stability ofour democ and i wish i'd more timeo talk aboubut i draweavilyn e work of juan lynn tlate yale potil scientist who talk out how trpartite goverent often face these conflics.

and, but i thnk, know, as the mam goes anything fase of a contradictionand there's nothing in the statute that priotizes one command over the he now, hinsaid that, i'm not here, i'm not su sggesng the president should unilaterally rae xe i thini would ben at of politil suic but i think t constitutna stdpnt congress abdicion has uthorid -- at lest som illegal vntage point. to conud i just want to leave you with he words of warning that justicejackson ended youstn eel with. you said the thinking of the is faced in th korean war and particularly cohesive power to legislate for emergencies belongs in the hands of congress. but only congress can prevent power from slipping through its fingers. by engaging on these standoffs and possibly doing so in the future, congress potential about core legislative powers to slip

from its grasp by forcing the president to confront an emergency of coness' own creation. thank you. [applause] >> is >> thank you chad. next with professor wayne marshall wo is taking a professor the university of north carolina law school. >> thanks all for coming up today and thanks to the organizers of this whole program for putting on a really good program, but of that is going to be canceled because i w reading in the paper that mitch mcconnell is decide who wants to work with the president in the next couple of years, and so does speaker boehner. however, congressional dysfunction over. we don't need to be a good we

can all get together and just move on. the interesting thing about presidential power over the long run as opposed to other constitutional issues people's ideas evolve and change on constitution. with presidential power you can usually pick the exact date where it changes. on inauguration day, on inauguration day in 2009 a lot of people who really loved presidential power that it was the worst thing imaginable. a lot of people who really hated president apartheid was the greatest thing sin sliced bread. that's the kind of background we have to deal with when thinking about president obama's exercise of unilateral executive action. i happen to support immigration reform very strongly. i happen to support a lot of e other substantive goals of president obama, but it what you think as we're going tough and talking to some the issues today, imagine a republican president who cat get through a repeal of the capital gains

tax and decide your letter i don't want to enforce any more swing makes an announcement that nobody has to file schedule d. anymore, and you don't have to declare any money he made from capital gains. would that be constitutional as a collateral enforcement decisions? we have so many othetax issues to enforce, as the president i don't really have to bother to enforce the collection of capital gains tax. let's think about something like that as background when we're talking about unilateral presidential action. let's also tnk about the questionof come and participate as the congressional dysfunction but exactly what is congressional dysfunction? what does thatmean? maybe i'm thinking back to seventh grade but i thought the design of the constitution was to create dysfunction, was to create checks on things

happening too quickly as the court said, to create friction. the idea was that things should happen to easily an too quickly. that's what separation of powers was all about. it would take look at history, we note even from the very first congress, oppositiooppositio n was in need of the raise to a lot of the president's initiaves. martin van buren's administration was met wth folks who started off by saying we need to do everything we can to make this presidency fail. i want to step back for a name. this articular congress is one of the most irresponsible in history. i have no doubt that that's true. mitch mcconnell starts off in 2009 by cink's going to do everything imaginable to make sure that the president's agenda was not passed them and deployed rope-a-dope on health care for the first two years, saying let's keep putting it down the

line let's come to compromise when there was no strategy to compromise. but even all of that as background, does that mean congress didnything wrong? there is a reaso after all while an out of the message party would want to do everything to obstrt the party in power. and that's because they know that the party in power will build on its successs for the next election, if it's a reelection of a current president or to increase its power, congressional authority in the midterm elections, or to elect a new president of the same party. this is called the permanent campaign. thphenomenon that we currently face for each party is consistently looking forward to the next election. so the idea that an out of power party is going to do everything they can to to cause some

breakdown in the other party's agenda and should not be unexpected. is inappropriate? why should the party try to help the current policy rtain power? and finally with respect there'another particular example i think is really out of place to suggest that congress is trying to block a president agenda on legislation, it is being obstructionist or of the legislation was supposedly the provin of the congress and not the president. so there's a reversal there if we switch that around, sthat's a little bit of some of the reasons that i'm so but skeptical as to this notion that there can even be something called congressional dysfunction in the sense that it is a just and that congress is acting somehow unconstitutional when it doesn't enact or follow through with the president agenda. there are areas of suport

giving the present power. one of the national spirit of the present is the only nationally elected office, and so therefore, when the presiden is elected and that means that he is is invested with the power that regional officers do not have. david posner has a brilliant article coming out in june back, i guess it's out now saying that the president xi should have the power for self and self help. when congress acts badly the british government step in a drop what congress is doing to make things, to be able to accomplish his agenda. but in the short moment some have left i want to think we really want to add to presidential power in her current framework? the president already has amassed far greater powers than the framers of would've envisioned by a number of circumstances that are just a natural evolution of the office. one is that the president can

act exponentially when congress cannot. that is invested the presidency in power. the second is the media, and the focus of the country is often on the white house and not on the capital. because it's easier to take a look at one person as the embellishment of the nation as a whole and that is invested the presidency with power. the president has more information at his or her disposal than congress has. the president has enormous resources of the administrative state and all that it can do, and after chadha the congress can either put some other kinds of limits on the president stability to manage that state for the president own medical purposes. and, finally, and going to come back to this in a moment, there is a one-way ratchet with spect to presidential power. unless you do with a case like noel kenny were presidential power is subject to judicial

review, that's not often the case. often the legality depends on what previous presidents have done as the argument that the office of legacounsel looks at, and that just keeps on increasing. so whether we need to actually create and invest the presidency with more power than it already has seems to me to be pretty controversial. what exactly are the harms of suggesting that the president has extraordinary power? with respect to vid posters three, for example, to say when congress acts to obstruct the president should have additional power to be able to overcome that obstruction. that is what checking is all about. paul wellstone was going to do everything he could before he died in a plane crash to sp the iraq war. that would've been congressional dysfunction or ould've led to congressional dysfunction had he succeeded in doing that. does that make it improper or is

that exactly the kind of thing that we want to congress to do when it isfacing a president with which it disagrees on matters of substantive policy? second, the interesting thing about congressional dysfunction and using that as a reason to advance presidential powers is actually, encourages the president to short-circuit the potical system. because the esident come instead of money to kansas and into montana and going into texas and going into all the places of the state with which there is opposition, he can just say, they aen't letting me do anything, i need to take these powersn my own. you don't like that example imagine a publican president who does want to go into michigan or minnesota or massachusetts and say that i just want to be able to do anything i can because that congress isn't anything on its own to be. think about the predicament that

puts congress in. if congress opposes to strong what the president is doing, the president can ay at this point i can now just circumvent their opposition. or if congress is okay will do some of what you want to do but i want tocurb our enforcement powers in one manneror curb your authority in this particular area, the president can sign a law to a sign state which has he' not going to abide by any restriction on the president's authority. this is a centering of continued power into the presidency think we all should be concerned about, no matter how much we agreed with the substantive policies involved. we do have a choice here. one is and they're not good choices. one is between a dysfunctional federal government and the second is with increased centralized power. i think that the structure of

the constitution suggested that we should live with some of the former, the dysfunction, in order to prevent too much power concentrating in one branch. leme go back to the middle, sorry, back to my beginning, and talk about senator mcconnell in speaker boehner. times do change. adjusting constitutional law to deal with for our six years of history isn't necessarily the best way to construct a constitutional law to take us through other types of times. thank you. [applause] >> oh,. spent thank you, professor marshall. nick smith professor joseph landau who is an associate professor at fordham university school of law

>> going to switch it up so i can reach the mic. thanks so much and thanks so much to raquel. so i'm also going to be talking about the presidents recently announced defer action programs and am also good to be talking about separation of powers. but i'm going to be talking about it from a slightly different frame and with some of my co-panelists are using to address the issue. unlikeill, not going to talk about the horizontal separation of powers, relationship between the president and the congre unlike folks on the panel after this one, i'm not going to be thinking about a kind of vertical separation of powers between states and the federal government the lens of immigration federalism. things that come up we talk about state and local immigration enforcement policies, sanctuary cities et cetera. i'm going to try a different ame. this is a work in progress and the id of this frame is to think about vertical agency relationships within the

executive branch. my thesis is that change comes not only from the to, not just from the president, cabinet officials and policy officials but also from the bottom and from the middle, and that these relationships provide an important set of checks and balances within the agency that both accounts for the polls full list movement of immigration law, immigration extreme edition immigration, but can also provide normative support for maybe not all but i think certainly some of the types of presidential actions that we are talking about on this panel today. so there are two core features of this kind of vertical agency relationships, what i call immigration expert imitation that i want to talk about. the first tested it again with prosecutorial discretion but not discretion at the top. the kind discretion that lower level officials within immigration and customs enforcement, thin citizenship and immigration services within

cbp, within the executive office of immigration review, the kind of day today, traditional enforcement that these officers and limit. they can exercise that discretion favorably at the backend of the immigration process. how did do that? they do that by dropping a deportation charge, by dealing in or by not instituting removal proceedings in the first place out of respect for the harm that the deportation would cause to a particular individual where the equities are especially strong. and can do so for reasons that can eventlly become policy bases across the board in and of themselves or whole categories of individuals who fit within that particular kind of profile but that's the idea that i'm pushing today. that enforcement decisions are made with certain policy rationes in mind, and when this happens them when this happens time after time, when this happens enough,those policies, those policy choices can begin to percolate within the agency and later become

reflected in th kind of across the board directive that we're talking about today. this can happen a number of different times and ways of looking at a few different case studies and going to talk to one or two with a time that i have. the first involves the situation that was faced by numerous binational same-sex couples, couples in which he have a u.s. citizen and a foreign national in a same-sex relationship where those couples were not eligible for traditional family-based immigration benefits, the kinds that many couples routinely use as a way to get an adjustment of status fr four national partner for the four national spouse in the relationship at the reason for this of course is the never states that don't respect the rights of gay and lesbian couples to marry. that remains to be an issue but also for many years the issue of section the of the defense of marriage act which although is no longer good law, but both of these prevented numerous cples and been living together for a long time for being able to go through the ordinary adjustment

process. now, the position of the obama administration for even -- for many years was to do nothing about these customs. you could think of this as a horizontal issue. you think we're going to go into court and sue the obama administration or embarrass the obama administration over going to try to get the very same kind of presidentl directive for the couples as we see n the context of the dreamers with respect to daca and with respect to the recent transfer program there that would be a horizontal with thinking about this but the vertical dimension is different. in the vertical dimension you ago, trying to persuade invidual line officer to exercise favorable discretion in one case after another. how to do this? in removal cases you try to get immigration judge to delay or close, g a long continuance in the removal case or maybe get a dhs attorney to drop the deportation proceeding or maye

try to make sure go to usis to prevent a removal proceeding from an institute in the first place. this actually work. lawyers were able to do this for their clients in case after case and time after time where government trial attorneys agreed to exercise discretion like incenting to administer the closure of an immigration case of the deportation case u.s. benefits administrators within citizenship and immigration services agreed to defer action. and cases in which the four national partner of a u.s. citizen or lpr wan't even in removal proceedings yet but was afraid they would fall out of status and potential be subject to removal proceedings. immigration judges within the cio are willing to do the same thing. one case at a time still going. about the larger lawsuits against the administration just the constitutionality of section three of doma wre still in a briefing we were beginning to see a kind of culture kind of time after time almost administrative common-law type

decision-making among these agency bureaucrats. because of this policy reason. eventually after enough of these cases ve been decided this way can we ask we saw a directive from the administration directing lower level officers to grant prosecutorial discretion favorable discretion for long-term same-sex committed couples. so that's the first feure of immigration expert imitation that i'm talking about. there are oter examples of this is will that i will get to any minute but i first want to talk about the second feature which has to do with the separated and overlapping jurisdictions among the various subunits of the executive branch that handles immigration matters. there's a lot of jurisdictional overlap. a foreign national may be caught up in a particular kind of immigration problem that more than one agency can solve. and if you're not able to get a reprieve from what agency you may be able to go to another and get the agenc to give you a different ruling on your

particular issue. these are the kinds of internal checks and balances that i'm interested in in which an agency will place a modest check on another agency, exercising a rm of interbranch of oversight if you will. so we saw this in a binational same-sex couple context between oftentimes it's a dhs attorney wasn't willing to grant a farable exercise of discretion, the immigration judge would agree to it, or uscis wod agree to defer action. another example has to do with th is a kind of treaty investor visa whh the department of state and the legacy ins both shared jurisdiction over interpreting the actual requirements or retained the visa, developing competing interpretations until evtually one interpretation won out over another but another example has to do with mandatory detention programs that were piloted der the george w. bush administration in which line level officers refused to comply with the idea that you should

mandatorily detain someby after the issuance of a final order of removal. so these two features, line officer discretion on the one hand, and positive redundancy, jurisdictional overlap within the agency i think helps us to see the change can come not just onfrom the top but from the bottom as well. it also helps conttualize and provide normative support for some of the kinds of a broader prospects will discretion programs that we are talking about today. from this perspective presidential action is not so much aut starting from scratch and creating a new policy out of nothing but rather trying to take policy reflects what is already a long-term agency practice a kind of administrative common-law. what presidential action does in this scenario is rectified in consistencies come inconsistent behavior among various white officers who don't treat like cases in like ways. we could even argue the presidential action in this regard is replacg a kind of

absent judicial review because we know that these kinds of enforcement decisions are non-reviewable in court. so this vertical dimension is different from the standard horizontal presiden versus congress analysis that we generally bri to analyzing these presidential policies. it's also different from the conventional story that administrative constitutional us off until about the law inside the executive branch. a lot of the literature sees the present as a decider in chief whose actions of trickle-down into the very spent ministry of armsf the agency, empowering those agencies to take on more different and greater action. this particular kind of lower level agency discretionary power is hard to get at because the decisions are not reported. we can't just have a go into westlaw or lexis with the reporters or what have you and learn about them. it's over the attorneys on the ground who have the most amount of information. i should be clear i am not sang they horizontal approach, the separation of powers, the

limits of presidential power the limits of congressional power and the fit between the two is not the right starting point. i think it is the right starting point but i just don't think it's the only frame. is the interplay between the president and the bureaucracy that can bring this important additional lens to the discussion that can complement the frames we already use, and help us normatively solidified the validity of those residential initiatives. thank you. [applause] >> thank you, professor landau. what i would like to do is begin opening this session to questions and answers for our panelists. they have given us some rich food for thought and some points of disagreement, which always makes for a fun discussion. i thought what i would you start by posting one or two questions to the panelists, then you're welcome to approach the mic if you'd like to ask your own question. i would just ask wen you do

approach the mic if you could begin by defying yourself by name and affiliation so we know, we all know who you are. my firstuestion for the panelists harkens back to something that professor mahall said about how your views on separation of powers might change beginning on inauguration day. and i wonder for our panelists to what extent they think that procedural concerns, whether there are concerns about separation of powers or violation of the administrator procedure act are in fact dashed over these very controversial areas like immigration, same-sex marriage health care and the budget? >> well, i think the thing the first thing i would say about that is i think there's a misconception among the public and among large members in the bar n general that the

president, the body of president that governs the relationship between congress and the present is probably the best court. very, very small fraction of the precedent is there really governs how he different branches of the government interact comes from the judicial but the overwhelming majority comes from what has happened in the past and how tomorrow madison's words, how constitutional liquidated. and so i share bills concerns that commits what other things the things in my paper in fact is overtime power has gone to the present that was never intended to be there. take youngstown steel, for example. the steel seizure case was seen as the symbol work on restraint of executive power but actually the facts just otherwise because the background facts involve the first, what really was the first ever unilateral presidential invocation of the united states

and a full scale war that wasn't previously digital that i declared by congress. since that time has become the norm. so i would fear i guess that and this is not a party affiliation. like bill i much more support policy wise can support much of what president obama wants to achieve, but i worry very much that acts that he may feel pressured to take in the face of a presidential dysfunction may set precedents that future presidents will use with which i would disagree. and over time theymay like the war power and how we engage in war in this country might become thenorm. >> just want to add sort of against, that this is actually i think we do need to be caeful terms of talking about

separation of powers with too broad brush. .. >> is not really expanding executive power as much as it might seem on first glance. >> to expand on what jill just said additionally in the unique context of immigration, a lot of the policies that we're talking about -- and jill, you held up this most recent dhs sorry, dhs

memo, i'm forgetting the exact phrase that you used to describe it but this memo isne in a series of very similar memoranda about exercising favorable discreon that go back between i mean, this argumt has obviously been made. this is something democrats and republicans have done. but this is on a slightly different level within the agency. these memoranda are issued time after time and they continually incorporate previous memoranda. and so from a certain perspective if we're talking about immigration law and prosecutorial discretion, i disagree there's nothing new here. i think this is both extraordinary and ordinary. but if we want to focus on the ordinary side for a minute, we should recognize these memoranda look very much like the ones that have been issued since the '70s and '80s under democrat and republicans alike. >> yeah. i may have -- [inaudible] good bye. aughter] well, the world is coming bk

again. with respect to the first question, just think of the fuy buster. during the republican years the democrats said get rid of the filibust it's the endf the world. the republicans say we need to do it, you flip it around and all of a sudden both sides take the opposite view, and they're not even embarrassed about it. with respect to immigration, the one question i have is did the president undercut what he eventuly did by not just doing everything unilaterally in the first place? and by saying this required legislation and wanted legislation and then when he couldn't get it through all of a sudden say well, maybe we could just do it by unilateral executive action after all? >> i guess i'll answer that first since the mic's right here and i don't want any more chairs to fall off the stage. aughter] i feel like you answered that question in your opening presentation. this idea of self-help i think

it's a two-step process right? first, you try to use the ordinary mechanisms that the constitution created, which is that congress will pass legislation and send it to the president. but when things break -- i mean, you, by referencing the pozen article on self-help, i mean you gave us that argument. when that process becomes so dysfunctional and breaks down so heavily, there are self-help measures that, if used modestly can be the appropriate remedy to that kind of core constitutional dysfunction. that's how i would perceive it. >> and i'll just add -- i have a mic down here now, so you three can just -- [laughter] be careful. hopefully, no one will get hurt. [laughter] the only thing i'll add to that is immigration law is very complicated, and i just want to float the possibility that perhaps the president didn't fully realize his own power when it came to immigration law when he was making those statements. >> i'd like to invite anyone who would like to ask questions to

please, come up to the microphone. alan? >> alan morris george washington law school. is this mic on? well, i can't tell. i'll speak loud. first on bill's point, in fairness to the president -- i don't care whether i'm fair to the president or not -- i think he said that as a political matter, that he would have preferred to be done. it doesn't give him any power, and i agree with that. second on immigration i urge everybody to read th olc opinion on it. it's extremely detailed, 32 pages. and what's most important about it is, is it told the president or dhs they could not do one thing that they wanted to do and they didn't do it. so it's hard to say that that's self-help in the ordinary sense. it raises much re difficult questions if you start to think about the possibility that the president exercised his discretion not to deport anybody as opposed to justification that he cou only deport 400,000 a year including border crossing and he simply didn't have the

manpower and the money to do anything else. but the question i want to ask everybody is what should we think about these situations of presidential aggrandizement of power when in almost every one of these cases nobody has standing to take the president to court, unlike youngstown? and how should that have us think about aggrandizing presidential power as opposed to other situations in which most of the administrative law cases somebody can take him to court as theyould, of course, in youngstown. >> well i think the problem i dealt withthere is a possibility of judicial review but it'd be a rather long road. th would be the president would either raise taxes unilaterally or issued bonds in excess to debt, the authorizing debt in excess to the debt ceiling, those bonds would be radioactive. and when the redemption occurred, there may be litigation and cerinly the bond holders i think, would have standing on that.

and if the president raised taxes, i'mure there'd be a line of lawsuits. in terms of cutting programs they'd be more interesting. we have clinton v. city of new york where, you know, the recipient of the program would be canceled probably would litigate and have standing. so i think the bigger probl for my paper would be, um what i would personally, what i would personally recommend from a political standpoint would be raisin the debt ceiling because that does the least damage can. it doesn't involve policy -- you don't pick winners and losers wh you do that. unlike raising taxes and canceling programs. but it might be a long road before we have any resolution about whether the bonds that were issued were valid and to be -- [inaudible] >> i'm not even going to try. [laughter] >> it's a great opinion -- [inaudible] i think part of the problem was -- i think it's a very plausible argument that what the president did on immigration is perfectly legal.

i'm not taking the position it's not. it's a perfectly plausible argument that it is not legal, too, on the other side. i agree that the llc opinion is teered. but i do think that the question you raise is a real one. i mean, what kind of checks are there on a presidency when the courts are not there when congress cannot effectively police it and when each presidential action builds on another? and that, i think, is the problem with presidential power. and having is the justice department being the final arbiter ofthat might work in some instances and it might not work in others, and i might look at some of the memorandum coming from the bush administration on some of those kinds of issues to ask how effective olc is as a check. or -- >> our next question. >> david spence university of texas. question for some -- from the perspective of those of us who

don't know a whole lot about immigration law and are trying to pross this debate through other lenses. how is this different from the normal exercise, the question of whether the president is within the boundaries of the normal exercise of delegated power? from my perspective and for some of us in the audience, we're thinking about this as kind of analous to the epa's rules on climate change exercised under the clean air act after congress refused to pass legislation addressing the issue. and in that case it was it seemed reasonable to infer that this was within the agency's power to decide under the statute that had delegated it the powers to act despite the fact that congress had failed to act. so is immigration law similar to that is this really a dispute about when the president's decision is within the boundaries of legislative authority he's been given under a atute? thank you. >> jill. >> well, i'll just say it's not

exactly like that because immigration law is quirky. you know, to begin with we go back to some of the founding constitutional law cases in immigration law, supreme court talks about a plenary power belonging to the political branches over immigration law. and as i sort of alluded to in my talk, where immigraon law scholarship is going right now is trying to figure out, you know when you talk about a plenary power belonging to the political branches, how do you divide that up between the president and congress? so the supreme court says because immigration could could be an issue of -- it's tied to sovereignty, that congress and the president have this sort of ultra-strong power when it comes to immigration law. so i think any discussion when you start to talk about presidential power and immigration law sort of necessarily needs to include that discussion which would be different from other areas of

>> do you want to answer? >> sure. i mean, there are a number of people in this room who write about this and have addressed this and i mean, i depress the only thing i would -- i guess the only thing i would say is i would refer you to the olc opinion that's been mentioned and some of t other law review articles and online pieces that people have written about this. i mean, to some degree the question collapses into the previousuestion because if no one has standing to actually challenge this, we don't know exactly what the supreme court said about deference issues to these types of presidential decisions. t what we do have are legacy doctrines like the plenary power doctrine, and we also have legacy programs from prior administrations that we can look to. the reason why i talk about vertical agency relationships and lower level bureaucratic decision making is because i think that's another way of not just looking, you know, at the sort of head-to-head combat between congress and the president, buto try to understand whether this is something that has long-term

expertise built into it by the day-to-day activity of the line-level officers. but there's not a lot of judicial opinions on this because, as has been said, there's no standin to challenges. >> thank you. go ahead. >> university of minnesota. so i've always been sitting back in this energy law cluster trying to think about parallels, and listening to you all i wonder then if think because in the broader themes of this symposium -- which is really about executive authority which spans from what you're talking about, the sort of, you know, more plenary power to these kinds of things that david just raised where there's actually delegated authority under a statute -- and then there's this additional layer not only of the integency stuff that you're talking about and the sort of different level within agencies but, of course, push and pull going on in the courts often where state and local governments line up not necessarily in an immigration context, but in an energy context on both sides of this

issue. so the supreme court case that ends up undergirding a lot of how the obama administration justifies the clean air act on climate change actually had state attorney generals on both sides in that case pushing. so i guess what i would ask for -- and, again it may not hold as well in a plery sort of powe context, but if you ta t broader conte of executive authority across a number of substanti issues,to what extent doeshat mute some of the concerns that are being raed in this panel? not so much for th immigration ntext, but iffor others? other words, as adnistrationhanges and a th adminiraon change, because there so much push and pull goinon among the three branches a ong different levels of government, perhaps that sortf helps to balan out overtime and prevents t kind of seismic shifting i these cntexts.ñi

hari,ou had me until you said italances out at the end.ñr i think what it doesñ 5))y i'm just repeating what i said before, i ñr ut i think>u- thenrofessor kan article in the harvard law review talking about h anñi administration can use the administrative state for political purposes is boming the blue print. and i think adnirationsñi e becoming mo and mre sophisticated about how to use the administrative state for their own political purpos ani don't see congress bei an effective check on that. >> thank you. the next questn? >> this is directed primarilat chad. so i like the youngstown framework that you set up a lo andhink you're clearly right that when congress is eivocal or explitly contradictory, that's gngo sort of dree its powe and therefore, increasehe ecivs power if you thif it as like a zero sum game.

but iki of want to push yo on giving shape to -- [inaudible] it seems ihink there are good argumentsor maki it more constrained, giving it more contourshan kind of the contradictionquals all that you presented inhe talk. and i gus er are two ways i would think oft, right one is the -- [inaudible] kind of looks like a variation of the first one because the president ca pick one of the the horn t say some fourth completely different option or --and yo kind couche this in, the are not mutually clive, but you kindf ucd this in political term but i think we could make a nstitutional argument that one of these optionwod be perhaps less viont to many core legislats -- i thin e esident raes etas, kind ofll mybe insanebecaus that's so core coress whereas changing t debt ceiling, borrowing more money might -- [inaudible] >> wl, i think so. and --

[inaib] argue th the constitution itself prritizes the commands. i, i don see theonitutio as limiting so mh as from a practica standpoint what i would advise the presidento do would be to inore the debt ceilg because the other two options involve picking winners and lose. if you cancel programs it's going toe hard to do that without being aused ofhaving polica bias. if yaise txes, that has its n issues and then who -- where do you raise them,ho are you imposing them onthat st of thin so you do the least violence, certainly, by unilatera raisinthe ciling. in tms of the lack of, the lack of good sndards and rules to govern what happens in this zone i think that same criticism uld apply to the zone of twilight right? there's not t imperate of events and contempora imponderables. sometimes i wonder he got

at off a ftune cookie somewhere. doesn't provide a lot of good guidance. sohai would say in this situation is that congress has t president's diretion is mitedomhat by what congress has already done. so if he did the unthinble, the politically unthinkable and unilaterally rais taxes,e couldn't d itbeyond what was, the minimum necessary to pay congress' bar t. if he's going to cut programs, the constitution does crea priorities there, e sure. judicial salaries can't be cut. i would say payments that wod be requir to be made to me good o takings can't beut. i mean, there are prrities ther but beyd those priorities, i mean coress has, congress h issued contradictory instructions, and it seems like the only inference you can draw from the legislation is, well, u've gotta figure is o.

and the last thing,nd i'm probably going ovey time here, the oth thing i kin of wanted to point o about the situation is when you're dealing with this what you're really dealing with in a way is a situation that simultaneously resis in zone one and zone three at the same time. in the youngstown cases the cot has sai-- [inaudible] en they talk about youngstn steel when congress gives t president a command, that command by definition carries with it a autrities nessary for the due exeise of that coand. ll, in appropriatns statute how can tt n ilude lawfu is the to the funds necessary to appropriate, t pay for to pay the bill, right? so in a sense congress has implicly authorized the president to access the funds to pay for thes things. there are but they've also me negad that act. so it smsoneo in one sense occurwhou're in zne one, zone three simultaneously. you know i think the answer to

that the probl is t situation is basically, you know the situation where congress needs to clean up its act. and i gss i'mrobably taking too muchime. >> that'sine. thank you. our next question jack bierman? >> jckierman who boston ivsity -- from boston university. this is mainlydirected a chad also, and it follow on what you were just saying. i st waned to poinout quickly,hoh, you're taing out spending money from a lump sum -- naudible] supreme court has saidhere's no judicial review in that, so that would be an option. i think before you jump to the ncsion that you'rin this zone four, you want tohink about the fact that it's been pretty much of an undetanding among the branes that there's no browing allowed unless congress allows for th era boowing. thers a long sortf common law and ste law tradion about boowing when it's being binding. i don't think you can just sort of jump to the idea that quickly. and want to push the -- my mainuestion, you started answerin it i your

just-previous comment but i've always thought the youngstown desion is the most overrated in the history of the supreme court. [laughter] when it com to the twilht ne the only one where it's teresting, he says that's going to be sortf politics and practicality. and it seems to me athat he's sying is that it's a potical question, and the courts shouldn't get invold. and i'm wondering wheth y could say a similar thing in your zonefour that when congress issues conflicng instruction, the president basically can be free to pick whatev the president wants to do, and it's up to politics to decide whetherhere'sgog to be any pushback onhat. it's because --nd again, you knowecause that's basically, i think, and correct me if you think i' wrong but jackson sa basicay it's a political questionnot a legal queion. >> i think that's largely true although we have judicl, we have an onion from the court and a unanimousne that involves a situation inhe zone of twilight. mean what i would say, though, from a normative standpoint is the consequences of a default wouldbe so calamitous that if thiactually

were to happen, i mean,t's going to be, i thinkt's a situatn that the courts c't really resolve and the only thing thiswould be goodfor wod probly be kindling for our trashan fires keeping us warm at night. so, you kno it seems like the what's going to hav to happen we're facedith that situation, the president's going to have to act quickly and do something. an it'll probay -- tt' prably be, it probably won't aourt that reviews what he did, it'll probably be,ou know, eex electn. >> thank you. we have about ten minutes left sowe certnl he time for is question if anyone -- >> kep my qution under ten minutes. >> no,o, you're fine. [laughter] >> richard levy,niversity of kansas. ias interested thatone of the people in all the discussion of congressional dysfunction, no one really talked about ectora dysfunction. anit seems to me there's

pretty snificant connection between what hapns in elections and whatongres can get away with doing or not doing, what the president can get away with doing or not doing. and i'de interested in your comment on the extent to which e problems we find oselves in can be trac back to t inability ofthe electorate or the elecral dysfunction that doesn't really discline irresponsibl behavior particularly by congress, but really bynybody. thanks. >>hat was actually a big theme in my paper that i didt really have time to talk about. i approached theroblem partly from e vantage point of, don'tknow many ofou are probably familiar with juan lens had a fous paper in the '80s called th peril of presidentialism. actually, itas 19 t 0, i thk -- 1990, i think. he does a study of t success rate of the tripartheid separation of powers and compares them to parliamentary schemes, and he says that aside

from the united state presidential schemes almost always ultimately fail because of the ki of prlems wre talk abo here. we're talking about here. that obfuscation in the legislativ branc when there's, the parties are in conflict lead the president ultimately to act outside constitutional constraints and either you end up with a president who is impotent an subjecto cup or one who basically exceeds his constitutional prerogatives and we have a -- becomes a dictator hardship. i, i know -- dictorship. i know this is probably controrsial, but i woulday that the real probl w have this those systems, and he rely compares our system to latin ameranountries that have adopted a constitution simir to ours but, agn, to borrow madison's phrase, those constituons are the sme on paper but liquidated differently practe. t think the big difference one that's comingtoife now in tat the countries have

multiple-party systems. and so when you have multiple parties, usually y have exemt parties. and our system has liquidate to hiorically whe you've almost alwa had two parties, one right, one to the lft andth both are closto themiddle an e area of saeement, i mean, when viewed compad to other countries, the disagreements histocally between bill cntonand bob dole whichseemed so substantial ck in e '90s really wsn that grt. but what we're looking at now with the t party phenomenon, i think, is a situation where we may be getting extremist-pe partiss into oursystem, an i ha some fear that perhaps we are sort of breaking down into a ltipar system really. and historicall our type of governme hasn't functioned well in tho systems. so this might be the natural resultf that, i don't know. >> on the other hand and this

isn't entirely rponsive, it's tangential i'll cnfess, but look at somethin like deferred action for childhood arrivals the dreams, right? they by nature this i not the electorate dreamers don't ve, but the mobilization not just among themselves, but also mobilizing individual members of congress to pu the administration on their behalf u uld sayhait was a failure in that th dream act didn p after many tes. but it's a huge success i the sense that they were able to mobilize in a way to bring about this very importan presidential policy and not just mobilize as a singl contained, you know, protest movement, but mobilize by pulling al kinds of interesting and important levers of the process gettin members of congress to weigh in et so inhat sense it's not about electoral dysfunction, it's about learning from a very successful case study of well-functiongocial moveme. >> the ansr to your question is riard, is ys, it's all

about electoral dysfunction or at least a major part of it is, but -- and ithink part of that's increased bause of the rise of niche media because of mpaign finan and because of theolarization that that ads to. that said i think we're shtsighted if we say thiss going to last forever. thingso change. political climates do change, and even if there's constant polarization on som issues it may not be the same issues 15 year from now th i is now. an i'm not sure we can create a new separation of power system to reflt those kind of concerns. >> thank you. we do do hve five minutes for our last question. >> hi i'm eric from creighton university. i have kindof a foundational question. let's assumehat the congss putsin place a policy that's the law ofhe land that declares x is the policy. the president doesn't like it sohe president decid that either the presidentill not enforce it, he prefers n-x or

he'lut in place a sepat policyanhe does soon a programmaticasis. not for reasons that are typically attended to in prosutorial discretion, you know administrative finances thingsf at sort. and so really does it becae disagrees with that policy that's in place. question' a simple one, does theurposehaunderlies the president's action bear on th constuonality of that action, or is it irrevant? and if it is, is it determinative? >> well i guess il just say i an, from my perspect t imgration situati doesn' share the same undation as the hypoetical thayou just proposed because what congres has said is, you kno here are some guidelines but, oh by the way, executive,iscretion, discretion discretion, discretion disetn, discretion written into the statuta million times. an you know, and then here

we'll only give you enough money to deport a small percentage of the number of people who are he thout permissn. so in the immigration coex i dot even think you nedo get purpose because i think it's just fundamentally a different framewor >> i mean your qution in a sense, it's good one to end on because it raises in a wa the other ame of a number of the eaier questions thatfolks were asking about thinking about thisrom a sort of standard almost kind o chevron if you wi administrative law context. you ask the kind of foundational question aboutonstitutional nonenforcement. and want to try to be responve to this, but i al agree that it's hard to think about that queson so muchn the stract which, i guess answers yo questi in a way by sying, you know, purpo may matter. numb one as jill just said, you know, there's diretion built into this thing all over the place. there are massi resource

cotraints, as we all know. the immigration prosecutorial arm of the executive branch has you know resources to dept about 4% of those that are faually deportle. but the a framerk for thinking about this, and there ahole debatebou presidential nonenfoement with nd of functionalists on the one side and wiin that funconalist fram one of the estions th gets asked often is whether the issue is ultimately justiciable. you cld contras if you ll t prosecutorial immigratn wh nondefee thdefense of marriage act. wasn't forced but it wasn't defended wh the idea that the court coulha the falay. here again as we've established, the courdon' have the final y. but that's maybe aetr frame to someegree if we're thinking about this horizontally than t min law frame, and i would aner by saying i think the upside lying purpose of -- underlying purpose reay does

matter and really is part of that broer functionalist analysis. >> i havene minute? >> all right. [inaudible] one quick estion an one quick answer. >> sorry. i think part of the answer to the question may come om the supreme courtthis year in the case in which the president h fused to enforc a congressional statute that's clear on its fac potical question h been ruled out. the president say it's my inherent authority congres says we passed tetatute, the plaintiff says we wantur rights under the state. so it mtters. it's not a question of money or anything else,he president says no, can't mke me do it and 'll fi outwhat the supreme urt say case was argued novemb 1 iss >>ll all righ thankou. we have a 15mite break until our next seson so please, thanyou -- join me in thain our panelists for this session. [applause]

[iudible conversations] >> so you heard, the the association of amic law schools conferce takgbo a 15-nute break anduspect that they will keep it on ti. the nexpanel looks at the obama presidency and federalism with remarks from w school professo. there is a third panel today that we will not be covering this afternoon, but we will be ba with the group's final panel, and that'll be at 3: p.m. easrn on eecutive action and cgressionalaw making. live covage here on c-span2. well, tomorrow the house and sena will ech meet to gavel in. 14th congress, live covera ofhe house, of course on c-sp and e na right here on c-span2. senator mitch mcconnell takes over as majority leader and rently we spoke with the senate hiorian about the history of senate majority leaders.