[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.

>> donald ritie, thank you for ing with us on america history . the senate jority leader i not a position in the constitution. how did the job evolve? >> that puzzles a lot of people. we once had a former speaker of the house contact us and say i was the president pro perso ray in the -- pro tempore but not the majority leader because e speakers of e usee the nate majority leader as their equivalent, their functional equivalent on the senate side. ofourse the speaker of the house is written ito the constution, and the president pro tempore is. but no mention of a majority leader or minority leader and that's because the constitutn did n ancipatepolitical parts. i think they thoughat it was probably gng to happen, but they didn'want to encoure litica parties. theyake no provision for it. and for most ofthe history of thesenate we had no jority lead. om 1789 until 1913 there was noajit leader ofth senate. there re chairmen committees who wld sort of take care of things on the

floor, there were th airmen of t party conferences who wod me out and open things up and close things the y ey do toda but nobody sitting down there in the front rw, center seat ying organize what happened on the oor on a dailybasis. and that chaed in 1913 when worow wilson was elected president. he was a former president at princeton unersityhe had a ph.d. in history and political science. he'd written his doctol dissertation aboutongress, he had ry strong ideas about how congss ought to operate, and he also had very ambitious legislative agea. and so he prevailed onhe democrats who had just come into the majority t pick one of their senators to b the leader to be the person who could take charge of things o floor. annsadf going t a senior senator,s they would s for thepresident o tempore, they wento a very nior senatorby e name of john worth kern, and he was wll kno because he hand run for ce president in

1908. soe became t firstajority leader of the senate. d he function just about the way that majority leaders d today. he started outby, you know, opening things up ring the day and scheduling things closing things down a night. when the republicans ce in to th majority in 1919 they decidethis was a good idea. and so they picked one of their seniorenators hey cabot dge, to help carry on those funcons. now, they didn't actually officially have the title majority leader. they hadll other sorts o-- nference cirman and things like that. it's not uil 1925 thathaes curtis of kaas is officially desiated the majorityleader. but the fact of the matter is that both john worth kern and henry cabot lodge functnethe y the majit leader would today. d ever since then, of cose the majoty leadership has grown considerably in power. although iyou read th rules of the senate, you won't see a

lot of mention of the majit leader. a lotof itas just evolved over time. some of it is from thei pors come fromhe preceden o the senateatr thanhere the rules. lyndon johnson, who w probably the most powerful of allthe majority leaders, used to say that his single greatest power was the power of persuasion. and howard baker, a republican who succeeded him a few years later, used t chuckl and say, well the power to cal bis off e calendar is aso pretty significant. there's a numberofhgs. then in 19 there was a vice president to the united states, john nance garner who had previously served as speak of the house. ande gave t majori lead the east power of them all not by rule, but by a precedent. and that was he realized control of the floor was reall essential for doing things in an efficientay in the senate, and so john nance garner said i will

grant e majority leadhe righ ofir recognition when a the senators are seeking recognition i will alys call onhe majority leader first. after that i'llcall on the minority lear. and that means the majoty leader can get the for when he wants it and that's auge influence. it has a lot to d withe way things happen in the senat day. that's al one reason why you will not see minority senators esiding ov the senate. there was a time when both majority and minority freshmen would preside. and then one day a member of the minoty party was presiding and themajori leader sought regnition, and that senator lled on someone el. anitas a little like -- [inaudible] going off again. there was this huge eruption in the senate a the majority said from now o we'll never be a minority senator in the chair. and except for snoways when nobolses available, you won't see minority senator in the chair because that'o essential to the pors ofthe majority leade >> where on the senate floor do

we find the majority and norityeaders, and how do ey work together? >> the majority and minority aders are fro and center. they both occupy those two front row cente seats aones 1937. thedemocrats -- since 1937. the republicans had to waifor e otheir senior senators to retire to move their leader up there, but now whoever bomes leader takes that st. and, again, around them e all the senators by senioty. so the freshmen who just go elted will b wain the ck in the corner andhe senior senato are usually down a the centerisle or towards the middle. and that's so that again, the presidg officer's looking out over t body, and a number of senators are seeking recognion, t people font d center, o course, are the on who cchthe preding officer' eye. people ithe back have to shout a littlebit and wave theirrms to get that kindof attention. that's one reason why people tendoove to the front. they have been there, they sgn their names inside the desk

drawers, so all leaders ofhe republican ddemocratic party eir name are in thos front row ceer seats. and usually seated beside them will b the party whip, and imdiately behind them wi be the most senior members of the pay. andthat's tat's the seat of por, i suppose you'd sa i theene. the difference betwn the senate a the hous on this is the house is rud from the chr. the presing offic the chairperson makes the rules and decides them the speaker is a very powerful fire. the senate is ruled from the oor. the presiding officer, vice presiden preside pro tempore or juor senator is a neutral priding officer. the real influence is on the floor. all senators are equal. some senators are a little me equal than others and the majoty lader's e first amgquals. >> what'he impa on th senate when ere is a change in leadership? >> well, the senate is vry personally-driven body -- personality-drivenody.

with 100 senats, pernalities ara huge influencen the senate. even a small changein membsh has an impact. largehaes have very lar pacts. and pecially the leadership because there's a certain rhythm that is established by the leader. aders talk about quality of life they decide whether or not you'll work o mondays and fridays, how late at night,hey dedeheem of t sate. anso a l of itas to with their ownersonalities. mike mansfield is very different from a robert byrd even though they're bothro the same party. mansfield was much more laid ckbyrd was much more hands-on aggressive type of adersh. you can e at in the republican party as well, types of leadship of bob de or trent lott or bill frist each have a different style different advisers different tactics. so senator mcconnell and senator reid were both the wips of the party. th both sent a lot of timen the floorings they both --

floo they both know the rules and precedents very well and they each have iges for wh they want the body to do. so it'll be interesting to see with t switch in leadership if ere is much of a change in style of the senate operations. senator mcconnl ge a speech at the beginningf the last ssion in ich heald about what he would like to e see in t senate more regular order, more monday and friday sessions, a variety of proposals. and i think he wil act to car out thatnthis coming congress >> we're going toear from former sena mari leader howard baker, bob dole george mitchell and robert by. can you say a word or two about each man and theind of leader he was? >> that's right. well, after 1980 therewas a big shock when the repubcans took theajoritinhe senate r e first time in 2yes. there was only o senatorho had been around the last time the replicans had been in the majority, and they were -- i mean, everybody was a little bit stunned. none had anticipated ahae that magtude, even the

republicans hadn't anticipated that they would take charge of the senate. senator dole wasn line to become chairman of the finance mmittee, and he said who's going to tell russell law who was the longtime chaman of that mmittee? and one of the things that ma that transition s much easier in the senate than the similañi transition tt happened in the use in 1994 wasth hard baker was the majority leader. the incomingajity leader. he was what i call institionalist. he was the son-in-law of añi formerepublican lear, dirksen, he was the husband of the dksens' daughter, joy. he eventually married,is second wife was açó snar. so is very much an institutionalist, and he loved the senate, he loved the traditions of the senate he unrsod it, he had worked clely with t democratic leaders when h was t minority leader. and so thereçó was almos a seamlessraition to it. and i think everyone who worked up here at the tereax"d a

great sigh of reli knowing that howard baker was coming in as the majority leader. he h a greñr sense of humor he was, heas t type of personho sort otó grasped what was going on a y particar timend couldigure ou what to do about it. he was a problemçó solr. not rprisingly when the white house got into trouble about the time of the iran contra scandal they brought howard baker in the chief staffor president ronald reagan. acy for those reasons. he als had a great seasons of real estate. and traditionally, the democrats had a nice big office next to the senate chamber, and the republicanhad much smaller office down thhall. and senator baker said i will nothange with the democratic leader but i would likeo add to suit soe took over quite a bit territory, rooms immediately around -- so the republican leader now has a very lar coherent section of rooms on the west fnt of the capitol thanks

to howard baker. and the room the main roo is now known as the howard baker room. >> bob dole? >> senator bob dole came up from the house of representatives as a fighting partisan. he'd been chairman of his party, he was the kind of person who could really debate ferociously. and in the senate this really fighting biting partisan turned into a wise pragmatist. the man who realized that things didn't happen often because in the senate because they were ramrodded through, they happened because they were negotiated through. and you had to find cosponsors and colleagues on both sides offed the aisle -- on both sides of the aisle. senator dole was the kind of person who could sit in a chair with a yellow legal pad and with a bunch of senators standing around him working out the text of the unanimous consent agreement that would get them through the hurdle that was going on. and i think he was leader on two occasions, first in 1985 and

'86, and then he was minority leader for a number of year, and he came back at majority leader in 1995 and '96. and in all of those occasions in the majority and in the minority, he was the kind of person who worked out difficult arrangements. he also had a terrific sense of humor. he was wonderful to listen to, and he liked he enjoyed the history of the senate. he used to give the minutes at the beginning of each day, and for the senate bicentennial in 1989, we published senator dole's historical almanac of the senate, and he got a great chuckle out of doing that and always wanted more. so the historical office was working very closely with him on that. >> george mitchell. >> george mitchell, you know, if you just watched him, he looked very professor sor y'all. he looked very benign. he looked very calm and very mild mannered. but if you talked to the senators, they all said this is a very tough politician.

this is the person who knows what's going on, who is really scheduling and planning things and he was a very effective leader. but he was just rt of the opposite of what he appeared to be, this sort of detached person. he was not detached at all. he was very much focused on what was going on. it was a time when the parties were changing when the structure of the senate was changing. senator mitchell was the majority leader who began to complain the most about how many blocked cloture motions there were, and he thought that there mo filly births were coming along -- filibusters were coming along. he tried to get around that a but politics were becoming more polarized then. he was a shrewd leader and figured out ways to get around that. i think he had great respect from all of the senators. and not surprising that he went on to a career indiplomacy after that brokering deals between catholics and protestants in

northern ireland. he had that kind of judicial temperament that people trusted on both sides and he also had a way of deciding that there were solutions to these problems that you could find. >> and finally, robert byrd. >> of all the setors i've worked with, i probably worked more with senator byrd than any of the others, and the same thing is true of my predecessor dick baker. senator byrd tapped into the historical office on a regular basis, and senator byrd was you mistake in the senate, he never went to college. he never got a college degree. >> welcome to those of you who are just joining us. just to remind you this is a daylong program, and this is panel two. my name is raquel aldana from pacific mcgeorge, and one of the co-organizers of this wonderful program. panel one, the opening session was really a fantastic conversation on issues of separation of powers braced by the topic of today's daylong ram

on essentially -- program on, essentially, congressional dysfunction and executive law making. so we now turn to issues related to federalism, an examination of the federal exercise of executive powers through the lens of state rights. and i will simply introduce the panelists by name. they, of course, have impressive resumés. but in the interest of time i'll introduce them by the horde in which -- the order in which they will present. professor gillian metzger who's the vice dean and full professor of law from columbia law school will open up the conversation by examining how federal agencies use their discretionary authority or not to accommodate state interests. professor metzger's scholarship focuses in the areas of administrative law and constitutional law with a specialization on federalism.

next we're going to hear from professor gulasekaram from santa clara university school of law who will lay out a systematic conceptual framework in which to understand the relationship between federal and executive action and state-level legislation with a particular focus, though not exclusively on immigration law. professor gulasekaram's scholarship focuses on federalism and constitutional rights. next we'll hear from two scholars working on environmental law/climate change issues, energy issues, professor amy stein from the university of florida school of law who's going to be discussing the dynamics of cooperative federalism under the obama administration in the area of environmental law, her scholarship focuses on energy policy and climate change, and then finally we'll hear from professor hari osofsky from the university of minnesota, and she

will explore president obama's use of executive in authority to address climate change in the context of federalism and energy partisanship. professor osofsky's scholarship focuses on governance and justice concerns related to energy and climate change, so thank you so much for joining us and we'll start with professor metzger. >> thank you. thank you, raquel, and i'm delighted to be here. in particular talking about the subject of this panel on the role of federalism and how it relates to congressional dysfunction and executive law making. i think that topic and and that combination is particularly important, obviously timely. but it connects not just to recent prominent events but it also connects to some very interesting trends in politics administration and governance and in scholarship. so what i thought i would do today is actually, first, just

begin how with detail on how we see this issue of executive power and federalism connecting with those trends and then i'll talk a little bit about some of the dynamics and impacts at this intersection of executive power and federalism have and the education context. so just to list some of the trends that seem relevant. well two very important political trends are growing political polarization and divided government. i'm sure that was discussed in the first panel. it's well known we're in a period of extreme political polarization. the ideological gap between the parties is growing and there's increasingly consistent party divides across a range of issues. as a result, there's very little incentive to cooperate and compromise. the reality of divide thed government -- divided government, a dominant feature of the federal government since the 1960s, means that cooperation and compromise are

often essential to get legislation enacted. so the net result, not surprisingly, is congressional dysfunction and legislative stalemate, and we don't see congress being able to act to enact legislation to address major policy issues. that not only has an impact in terms of the legislation that gets passed, but as the panel on this dais is discussing, has a big impact on executive agencies and how they function. and we see this kind of dysfunction happening there too difficulties getting executive nominations confirmed increased investigation, budget uncertainty and so forth. so those are two political trends. a third, again one very much discussed in the first panel, is the move towards greater unilateral presidential action and presidential administration. this is a longstanding trend. it reflects the increasing public focus and pressure on the president to deliver on policy promises and the president as sort of the fulcrum of our

national government and perceptions by the public of where issues will get addressed. it's existed before the current hyperpoliticization and polarization function, but, of course it's increased in response to those dynamic that executive administrative emphasis is also obviously, being shown in governance, right? you see, i think this came up in the last vocation of justice kagan's famous article of presidential administration going back to the clintonears. you see this will increase for the president as a major role in administrative governance. so that's one governance trend. another one, though specific to the obama administration that really should be flagged is that we see -- and this goes back to the early years of the first term -- some major new federal regulatory undertakings and programmatic initiatives. and initiatives which critically rely on the states for their

implementation and engage the states in a very important way. again, federal/state cooperation, joint running of programs is longstanding, but these programs -- the affordable care act i'll talk about that in a moment -- are really the most significant nichetives -- initiatives in a few decades of that kind of undertaking, that kind of major new cooperative of program on the part of the federal government. they're also central to president obama's legacy. so just talking a little bit about the affordable care act abby gluck from yale has written very nicely about how that statute gives the states very broad discretion and grants them very critical roles to play. the ways the statements are involved, i think, are fairly well known. a key one is expanding medicaid to cover those up to 138% of the above ity line -- poverty line, running state health exchanges

where under the state exchanges you can clearly get credits and you can also currently under the federal exchanges. we'll see if that extends past this supreme court term. but the states play important roles in insurance regulation and many other responsibilities in the statute. another instance that i think bears noting here is actually dodd-frank. dodd-frank has focused more at the federal and national level, federal financial regulation, but it, too, really does incorporate the states in very interesting ways, ways that hadn't priestly happened. so you have -- previously happened. so you have three nonvoting state representatives on the fsoc the new financial stability oversight council at the national level. there's a lot in dodd-frank that talks about not preempting the states, preserving their independent regulatory role and the new consumer finance protection bureau has been working very closely with states and in the statutes the states have a role in enforcement there. so again something that seems more nationally focused but has

built into quite a lot of a role for the states. two further points i want to mention about these initiatives. one is first, that the notable powers and discretion that are being granted to the states are somewhat one-sided, right? the states do get a lot of discretion, and they do get power, but these are powers to regulate and undertake new programmatic responsibilities, right? and if the states don't, then the federal government may in some instances. so the states also get a little bit of pressure from knowing if they don't do something it'll be done by the federal government. so that's one point. the second point i want to emphasize is that the measures don't just delegate a lot of responsibility to the state they delegate a lot of responsibility to federal agencies right? they're very broad grants of rulemaking responsibility and implement tear discretion on the federal agencies in these statutes as well. so that's ooh the political and governance trends. as for the scholarly trends here i want to flag something which has been dubbed the

national federalism school but it's an interesting central focus of some really interesting federalism scholarship. recently coming out of yale primarily, and what it does is it really argues that in contemporary federalism the entire ball gas are looking at federal and state interaction. that state negotiation with the feds contestation of the national government wiin the bounds of federal programs the kind of powers that states get as a result of the role in national program, that is the reality of federalism today, and that is what we should be focusing on in thinking about federalism. and then a second trend in legal scholarship is on just the details of executive action. the political science scholarship, obviously on executive unilateralism and also in the terms of legal scholarship there. but legal scholarship has also done a lot and i think joe in the first panel mentioned this

separation of powers institutional design within the executive branch. what is less common, this is why i think this panel particularly is quite interesting, is putting these two together, right in looking at executive power and federalism and how the dynamics of federal/state programs interact with the trend towards greater executive power, whether they reinforce executive power whether they actually serve this dynamic serves to check executive powers. so that's what i'm going to focus on in the rest of my remarks. and, again i'm going to focus in terms of the affordable care act and the no child left behind waivers. i mentioned the key issue in the affordable care act has been the expansion of medicaid. another issue very important has been getting the states to run health exchanges. and in the education context the central concern has been getting relief from requirements of no child left behind that the states are unable to meet.

and also, interestingly in a program that's a grant program that came about in the relief at the time of the financial crisis called race to the top, getting additional funding to the states. and those have been two instances of a great deal of state/federal interaction in education. and i think these two examples give us several important insights about the dynamics of federal/state programs and their impact on executive power and vice versa. so first of all, you see the political polarization as having a huge impact at the state level, a huge impact on federal government in these programs that involve the states and, therefore, are being really implemented at the state level. polarization is very strong at the state level as well as the federal level, but there's some interesting differences. there's much more unified government at the state level. you have 30 states now which are entirely governed by one party and those unified governments are overwhelmingly republican right? so the 30 after the recent

election, 23 are republican, and this means that what you're seeing is the obama administration, if it's going to get the states to do something at the state level is going to have to be negotiating and compromising with republican-led administrations, republican-led governments which are often quite ideologically opposed to these initiatives. and which, in addition i was getting some studies of documents at the state level, republicans have been getting a lot of pressure from the national level toeep the vertical ideological line and stick to it and not compromise. so you get a lot of big impact with poe or lahrization at the state level and implementation. but there are also interestingly, more occasions of compromise and bipartisanship than we're seeingt the federal or national level, right? so if you take the affordable care act, for example one early 2014 study reported that four of the unified republican states and eight of twelve split states are expanding medicaid can,

right? so there's some willingness from republicans to go along. two other republican states are considering it. in the education context, the political affiliation of the government hasn't mattered at all. 44 states have applied for and been granted waivers, there are another two under review. if you look more closely at the details of state implementation, i think some factor emerges particularly critical. political views at the state level matter right? equally important is the baseline, right? the legal structure against which you're getting the federal/state interaction right? in the education context, the states have been much more dependent on the obama administration for relief. they can't meet the no child left behind performance standard and, therefore the obama administration's been able to do much more in terms of achieving its own independent policy goals as conditions on the waivers that it has been granting and the affordable care act they've

had more leverage and for a variety of reasons the obama administration really does need the states to both -- not just expand medicaid but also to participate in the health exchanges. and you see how that baseline played in in terms of the administration's negotiations with states. the administration has actually been quite flexible and in the affordable care act has really had a lot of back and forth, been willing to consider state concerns move in interesting directions to get republicans onboard. you see that in the idea of the creation of things called partnership exchanges. and also in the approval of medicaid waivers for private insurance. so you see bipartisanship coming as a result of the federal/state aspect. another thing to consider and i think this will be probably the last thing i have time for, i'm happy to talk more about this in the q&a is the separation of

powers impact. clearly, one thing that we see is a sidelining of congres right? major policy changings are coming at the behest of the congress and those changes involve waiving termsf statutes right? .. in the background is statutory authorization, the waivers have a basis in the express text.

one final thing i want to figure is it's interesting to think not just the state as a check on the executive branch but of the combination of the possibly of the states and the executive branch to interact as a check on congress and on the ecessive partisanship and is fortunately of congress. if you can get a compromise between the states and the executive branch, the administration would be a will to do a lot of its goals without having to bring congress in. that may create this interesting pressure to the polarization dynamic that we see in congress. if they do have that effect that arguably is a good result from our separation of power standpoint because it's again reinforcing the idea of having multiple branches involved and checking too much distortion alley and factionalism in any one of the branches. thank you very much. [applause]

>> next realtor from professor pratheepa gulasekaram. >> thank you, raquel, for organizing and inviting me to this great panel. i think my comments will dovetail nicely with gillian metzger's comments. my research focuses on the role of states and localities, integration regulation. the comments come from some empirical work done with a co-author, co-researcher professor public policy at uc berkeley side. more specifically about the draft paper we're developing right now entitled the president and immigration federalism. not so concerned with ideas of federalism thinking about how to protect states' rights or any of that but more consequential and instrumentalist. that is to say we're concerned about the utility of states in

fashion immigration policy and the effect of a state poicy on questionof separationof powersnpremptioi etetrarptict a. wl guinheaphe at rponse cutive branch action can be used to vindicate separation of powers concerns, and as gillian metzger mentioned, along with the gimmicks go, right to realize nationalist aspiration to its federalism, perhaps we could say masquerading or at least use them as a vehicle to vindicate these other types of concerns. along withomments others hav made clinbi mshall on e iopel o epiral workuaitivan quitivinlionsmlev oftentimes we are have nothing tdo with democratic rally nor have to do

with partisan reality than anything else. the last 10 years of states and becomes have become significant players and immigration field not coincidentally those have been devoid of congressional action. i say not coincidentally because as we argued using some of larry kramer's work on the politics of the political federalism that those are linked phenomena. that is the increase in policymaking has an effect on congress' ability to connect immigration types of reform. a couple times our last 10 years congress has proposed, consider comprehensive immigration reform under the bush administration and under the obama administration has not passed. stand-alone portion such as the dream act which polls suggest enjoyed popo support amongst the american voting public, also has failed in in congress. there is up in orbit when it

comes to immigration reform, something the development of the last 10, 15 years. not so with prior eras, 1965 1976 communicate 86 1996 all partisan immigration efforts. in the space of no congressional action that been significant high profile immigration activity. most people know remember arizona and other states that didn't have employer sanctions built, which was sanctioned by the supreme court in the whiting case. arizona's sbk and seven at this copycat legislation across several states was less heralded organizations decisions and are into a memorandum of understandg with the department homeland security to the federal authorities enforce immigration law. it also includes integration is trans as well. notches restriction is trans that we might think about efforts to assist federal enforcement and refuse cooperation with federal authorities, driver's licenses bills, municipal id cards and welfare provisions, have some

states concerning how health care might be provided to undocumented immigrants, professional licensing concerns which have arisen in california and florida. at the same time you've had no congressional action, significant state involvement we've also seen significant presidential involvement by the president himself, the announcement that, of course. has been a conspicuous part of the obama presidency. of course as people of all reduce cost, particularly jill family in the prior panel circumstances to go to immigration law that makes this particularly that makes executive action in immigration law particularly i guess likely to its including a delegation. as we argued in this paper, we can think of we can tease out a separate relationship between the executive action in immigration and state level

responses. this is been an underappreciated dynamic in federalism scholarship and immigration federalism scholarship. we apologize, these types of presidential interaction with state level polls into three areas. actions that curtail state and local policies actions that co-op stay of the local policies and actions that catalyzed state of local olicies. that's the rule of three and it is alerted so it's got to be good. i don't want to say too much about the first to accept curtailing of the co-opting because i want to focus my time on the last which is the president of billy to catalyze state level -- presidents ability. other wishes entrenched the presidents policy for immigration. thinking least about the first two categories, curtailing and the co-opting of the obama presidency curtailing has used federal suits. they used bringing the

litigation powers of the kind f government to bear in immigration federalism suits. arizona versus united states in a fine example. as many scholars have noted this is actually a very rare occurrence, the federal government rarely sues in cases an effect if you, you look at appeals courses -- cases dealing with federalism, the federal government has sued exactly five times, and all five instances were after arizona. arizona and then the state level copy katz that occurred afterwards. there been a couple of cases in which they there were district court cases that never went beyond that but we are talking literally a handful. so it is actually a fairly unique and outstanding maneuver for the federal government. also working about a counterfactual, mccain and romney in the respective campaigns pledged support for laws like arizona s.b. 1070. it stands to reason that it may

not have used the litigation power of the united states against those. notches it would have been challenged but if of us it's a would've had standing, at least three suits that have standing that could've challenged the same policies on preemption grounds. but as other empirical work has shown it makes a significant difference. second co-opting, think about policies like secure communities, the ability of the federal government to use the executive, to use its administrative directives there, the program secure community used as a way of including state level participation or leveraging the informational advantages that state of local enforcement have in protecting and discover the presence of a document people but doing so on terms mediated and controlled solely by the federal executive. the program arguably --

considering restrictionist type of legislation. of course, it didn't completely work. they were still jurisdictions that enacted their own enforcement legislation. and also it garnered backlash. if you look at the jeh johnson memo, one of the memos that jill family was talking about, it takes apart or discontinued the food program and replace it with another program and in doing so jeh johnson those specifilly the state and local reaction against secure communities is one of the morning factors for the administration changing that policy. it also suggests the executive neville branch of government able to respond to the sorts of that's her push back and wait that congress could but i want to spend many time talking but what he think is the most interesting aspect of this executive state level relationship in immigration, and that is the president's ability to catalyze state and local

lawmaking. we are not arguing this is an intended or at least initially was not necessarily an intended dynamic but certainly it's an important part of how the president can realize the federal policy decisions without congressional involvement. kerry want to draw on some political science scholarships specifically thinking about brian jones and the 2010 book in which they talk about the concept of exogenous shock and equilibrium. what we want to suggestion is that daca in 2012 obviously that is a subsidy policy goal of benefiting a class of people that the president thought was particularly deserving of remaining in the united states at least temporarily shielded from deportation by the of the goal expressed by the administration seem to have been to prod congress into action. passing comprehensive

immigration reform or the dream act as a standalone piece of legislation. neither of those things happened but what you did see instead was a cascade of integrated policies at the state and local level since 2012. the example that would like to highlight in our paper has to do with driver's licenses. if you look from 2003-2010 seven states that previous offer driver's licenses to undock but immigrants chose to rescind those policies or overturn them. since daca was not to come in the 18 months after daca was enacted, the number state that offer driver's licenses to undocumented persons went from three to 13 11 states and to other jurisdictions, puerto rico and washington, d.c. more broadly daca seems to mobilize significant cics award momentum in other areas including id card institution, financial aid and welfare

provisions. in these instances we argue state motel these are acting in essence of the substitute federal legislature. so across several smaller jurisdictions you're having policies passed to help substantiate the president's vision. it's an ability great de facto national policy without having to use the federal legislature. doing it with some legitimacy to the process of state legislative passage. you also see in 2014 with announcementwith theannouncement of daca, the most recent executive action, these same dynamics. right after it was announced at a coalition of cities cities unite for immigration action, 20 mayors, most democratic meeting in the city with mayor bill de blasio to think about ways in which states at the localities could enable and encourage the president policy to the enactment of these integration type of laws. you also at the same time have a lawsuit by 24 states and the

republican governors association meeting in which several governors pledged be what they could to resist implementation of the presidents order and whatever using whatever powers they had out there to schools -- disposal to hear in that resistance we can see aspects of what jessica might call federalism as separation of powers. federalism acting as a check on presidential activity when congress is unable or unwilling or simply has no standing to make these sorts of claims against the president. i will conclude by just saying that immigration has provided an immigration federalism has provided fertile ground over the last eight years to help clarify the need a voice which a federal executive to interact with state level policy. states can serve as enablers of federal immigration policy.

they can act as potential checks on presidential authority. i think going forward both the federal executive state government significant players in the immigration landscape in ways that will require us to rethink preemption analysis as catherine has agued and the value of state and local actions of those groups. thanks. [applause] >> professor amy stein from the university of florida school of law is next. >> good morning and thank you

all for joining us and sticking it out. you made it almost to lunch so we're almost there. thanks so much to raquel for putting together such a fabless panel really throughout the entire day. i think we are relearned so much. i've been inspired by my visit to national archives on saturday as i brought my young children looking at the constitution. i wanted but what would be the west use of my 12 minutes today. of course that the difficult question. i've been exploring a number of questions but i thought that might be best toocus exactly on what has been sort of teed up for me which is this interaction between state level programs and the executive. and his relationship comes out the most for me and my work in him om our mental and federalism programs. as gillian and others make a difference in the amount of attention given to the of state dissent within the cooperative federalism program states are often pushing back against aggressive federal

actions with obama actions providing the a case in point in the environmental realm. i'm often trouble, however that these discussions seem a bit narrow sometimes where they are focusing only on one aspect of this very complicated federalism relationship. not only exploited in sort of a status moment in time but also just one side of this very complicated federalism dynamic. one which is quite iterative as many of us know. i thought i was in my time focusing on cooperative federalism and then to points within that. one think if we're trying to assess the value and appropriateness of states dissent, no action should be evaluated in isolation. cibecue sure we're looking at the whole picture and not just focusing on e moment in time. and looking and making argued that the federal response to the state dissent matters just as much if not more. trying to think through what would be sort of some sort other rubric for evaluating the state response, and vice versa.

so using cooperative federalism in general and environmental laws in particular. i do have some slides that will hopefully help but not hinder. but cooperative federalism of the most of you know that this particular flavor of federalism where congress is attended illicit the best of both sides of the federal and state controlled by developing shared regime. congress may offer states a choice between implementing the program pursuant to federal standards and having state law prevented through direct federal control. this is the most common flavor we see in environmental laws but, of course, we see beyond the clean air act, the clean water act service lines and reclamation act. this is our coal statue but it goes beyond one of our energy statutes. we see in telecommunications act, et cetera. so it raises a number of key questions for us. one, what posted congress give the fed and the states within the programs with the obvious

one but how are the feds and the states of connecticut the boundaries? this is where all the interesting tensions coming. how did the analysis change within a the cooperative federalism regime? is a different because dates as the federal government to take over this program and implement it is there some different leverage analysis that we should be thinking about between the federal government agencies and the states in this context? and what happens when the federal and state actors disagree? which, of course, will be the focus of my remaining nine minutes now, or something. that's the piece were focusing on today. and i think i'm doing that in the context of course of environmental federalism, and i'm going to explore using these two sort of federalism controversy to sure being regulation of greenhouse gases by epa under the clean air act, and the regulation of nutrients under the clean water act. nutrients come if you don't know, are generally nitrogen and

phosphorus. nutrients because they are very nutritious for our agriculture but what happens when it rains and those nutrients flow into our water body? they are not as nutritious in the water, or i should say there about 10 times as nutritious when they hit the sort of life forms that est in our waterways. so we get algie bloomsday dead zones are the most notably may of heard of in the gulf, this is a picture tulane university were a wonderful institution and, of course we have a significant number of dead some problems there. the other big one though is in the chesapeake bay. both of these have significant interstate issues. we are thinking about 31 states that are having runoffs from nutrients into the mississippi river and it all ends in the gulf. chesapeake bay has six states. those of you local activities and six states and d.c. that all contribute them. we have many agricultural entities within those areas. and so how do you do with those

constraints any program where congress has established the federal government will be working with the states to address these issues? there's a complex system where we have to designate which waters are impaired and then establish something called -- were trying to figure that out and had we factor in things like 25 years of trying to do this and we're still sing significant problems. is that justification for federalist intervention to step in? what happened such is the case the clean water act where states are coming to epa saying please help us? we can't work together on this. we need some other levels of greek help us get through these issues. clean air act is the one you probably know more about because the navy don't do environmental law you've probably seen something about the tensions and dba overstepping its bounds trying to use the clean air act to regulate greenhouse gases. and then a number of tensions of course because mpp first rated

greenhouse gases it occurred for motor vehicles. and then they concluded as an automatic operation of the clean air act. that meant that station resources like power plants also would be regulated. some major news sources must've been something called a psd permit. and so doing psd permitting isn't limited by the states and then approved to get something called a state and limitation plan but they need to go to of these programs have continued ep oversight over the states action. so they need approval from the epa. they may issue the permits it directly but if epa finds a sip is inadequate than it may issue a fip. what's important about that are federalism is that -- when i ws in law school pretty much how it's been taught has been well epa has that fip authority but they never really use it.

there's always talk by the reluctance of epa to use this power but they don't really want to take over these programs. and yet if you look in a number of these controversies of late epa has been using its kind of the power. so texas for instance, so texas for instance, with the peaking at over 13 states they were no longer in compliance because of their sip did no properly regulate greenhouse gases, 12 of them got together and established a schedule and texas said no utah of authority. so epa comes back at this point here's my fip and now i'm taking over. can you imagine anything worse for texas? having the federal government committed to you cannot permit any stationary sources without the federal government. we have these sorts of the interesting intentions. in the absence of time one of the forms of state dissent, i was time to think through the first monday a state may register its disagree with epa as they have just done a few months ago.

we are writing to the second to epa's recent proposal of the clean air act bp business and we're getting existing power plants as well. it is causing a lot of consternation, 15 governors got together but it can also come in just a failure to act. we only member packs and omissions. what about out right refusal to act like texas did? what about when it's inadequate? what about when the state is something? that's the clearest violation of the example of dissent. there could also be defensive maneuvers. for instance, kentucky just came out and with this new legislation that basically says if you skip down to number three come efficiency and otr measures that can be undertaken at coal-fired plants to reduce carbon dioxide without doing the following, one, switching from coal to other fuels. limiting the utilization of the electric generating unit. so why is that interesting? because these are the four

building blocks that bp has just put out for actual. if you look at the first one makes plants more efficient. guess what? is the efficiency ready for coal that kentucky just that you can't do. the secular communes lower emitting power sources. use natural gas, but kentucky has come out with this interesting piece of legislation, west virginia have something very similar, as all of this is making us remember that no matter what we are sort of attacking, whether it's states the central federal, this is one piece of what i am trying to show is perhaps a cycle. i think would be an endless spiral almost because no matter which store you pick you could sort it all these things in. if you are looking at regulation of greenhouse gases. i would put that at the top of agency in action to epa did not want to do this originally. then we had a catalyst. what would be a catalyst? state dissent is most relevant for what we're talking about.

the state may choose which of course, 1999 massachusetts did and then what's the federal response to this dissent? folks who claim the agency searches overreaching, i'm not sure after forgetting to checks and balances comes in, this in seven litigation and the courts then, of course, are evaluating their statutory authority. you sort of can fit this ever peace some on a cycle. epa ended up issuing a memo, the court come supreme court in 2007 at guess what you're going to move forward thinking about carbon dioxide as a pollutant can't avoid obligations. then you're now into the current world where agency action is epa now readily and other catalyst is the states are defending the a lot of times a catalyst, the other important piece, it's not state dissent but third party. another dimension of the soul relationship that isn't focused on because of course we are thinking states and federal

vernment but almost all of these suits have been initiated through citizens is third party citizen suits to try to propel the agency to be doing more. so how can the federal agency respond? of course they could do nothing. they c amend their action, respond and explain. they could threaten to take action disciplined the state. some statutes have disciplinary procedures such as the sanctions under the clean air act and take over the fip provision i was explain. i think there's a minimal desire of the federal government to do this. this is an ep his most recent the most recent clean powerplant. just notes as we recognize states are best suited. we just want to be the primary role of providing guidance. so given that, why do the feds move forward in these instances, right? what could be? is there no no hope left what do they feel like we have tried for years and years and maybe we finally need to step in? is there no hope left for

congress? bag inspector congressional dysfunction site. is the agency thinking creatively within the bounds of their authority? is it that the progress reach such critical levels, is greenhouse gases if congress is going to act, it is such a global importance that federal agencies are trying to do so what can do within the bounds of its authority. or is it is being forced to do so by citzens? just the factors impacting the response, i talk about all of them. resources, agency often does have the time, desire or money to take over a state program. coordination is an interesting one because you see in a lot of the seats if the states bind together they seem to have stronger reaction from the epa, many of these are 15 state suits, 13 state suits. just remember that seems to go better than the sort of rogue states that are in disagreement. but we also have to be think about 15 states, that mntioned 35 of an agreement.

assorted i think a comment in the last talk about how the states are often on both sides of these issues. chesapeake bay interesting enough the lawsuit is 15 states and only west virginia is one of the actual these states being impacted. it's all the states along the mississippi are mad. not because of the chesapeake bay. they don't want the next one to be in the mississippi river. saudi deal with these pieces? active versus passive federal agency respond differently if you're sorted out right refusal. what's the impetus behind this? are we doing this because we think the federal agency is overreaching which seems to be the focus. we could just as is the is looking at this when they're under reaching this. the more interstate impacts we have perhapshe more justification for federal

involvement. and, of course, what's the likelihood of success in terms of your statutory and constitutional autority? this is a lovely, fun chart of all the litigation has been going on. micah gerard at columbia creates this wonderful database for us all. if that's not enough it keeps going and going. every single epa action is being challenged. so there's another form for these fights to be resolved. i know i'm out of time but you should never states are not just one state. we have 50 different opinions we were trying to be addressing this. opinions and actions can be evaluated in a vacuum that the valley of the state dissent really needs to be tempered by looking at the federal response and so evaluating the appropriateness is dependent on multiple variables. thanks. [applause] >> continuing on the theme of energy policy, environmental

law professor osofsky from the university of minnesota. >> thanks. so i want to join everyone else in thanking raquel for her really wonderful organizing effort. so rare that you bring together people across these very time sensitive areas to talk about these issues. i want to focus my time today and i'm lucky because i get to follow amy's excellent presentation on somebody's state and federal dynamics that have been a focus of my scholarship to talk more broadly about questions of federalism and partisanship. and in particular i want to

encourage us to think about the obama administration's action, both federally and internationally in the climate change space. it's not something about between the executive and installed congress or between the federal government and state government, but in the broader context of complex dynamics over time among all three branches at multiple levels of government from the local to the international in which he state local corporate and nongovernmental actors push for and against energy transition. in particular i want to situate the obama's administration's assertion in the broad context of the to achieve bipartisan agreement and consider how to achieve functional policy progress on important issues like these in our deeply partisan environment. my presention today is part of a broader project i'm doing with jackie keele my co-author on energy partisanship. is basically comes from the fact

we've both been working for over a decade on these issues and we are concerned that if you believe the science, we are in big trouble. at the same time we think it's time for pragmatic approach to these issues but focus on what works. let's focus on how we can move forward. so my aim is not to debate climate change science or to continue the name-calling that often takes place about climate change but you think about what most constructively is allowed for action that is needed when believe this is a serious problem. jackie and my project draws on social science literature suggests in many instances providing more information is not an effective way of achieving consensus because of different worldviews trust issues, et cetera. in the face of the difficulty there are two primary options. one circumvent disagreement or two, you refrain issues are reshaped with it being discussed to find more agreement. while much of the media focus

and this symposium is focused on the first approach, on the ways in which the obama administration uses executive authority to great federal action when congress does enact his administration and the marriott a state and local officials are often using the second approach as well. it just doesn't get quite as much attention. what jackie and i would like to argue is that these two approaches in tandem often without explicit interconnection provide the best possibilities for functional action. so iwant to do is talk about partisanship and then turned to look at these diffent approaches. so these dueling cartoons right here represent the extent of the partisan divide over the issue of climate change and emissions reduction measures. president obama's new gold standard represent on the one hand as a war on coal and the other is mr. to force by soldiers of ultimate save us

from environmental catastrophe. divide of energy issues, many others i don't have time to talk about, are not always along democratic or republican lines. think democrats and coal states but there are enough examples to demonstrate the partisan politics place and a portable. i don't have to tell people sitting here in wahington, d.c. that climate change is joined a limited number of issues like taxes are can control that define what it means to be a democrat or a republican today. now, partisanship is nothing new. the u.s. political system as we've heard a lot about today is found on the idea that checks and balances are an essential part of containing mischief a faction. but as we heard in previous presentations, and as public opinion surveys we did to a more definite paper show, partisanship is getting worse across the board and thecaps on particularly strong on environmental and climate change. why this is so is the question that lead to clinical scientist

to debate. we are more concerned about the effect. at a federal level three let partisanship is a recipe for gridlock which is exactly what we have seen on a variety of energy issues. there is strands of psychological research help to explain why it's difficult for us to get along in this part of the and find a. the traditional approach has been what is not as the information model. you give more information and then people come to agreement. and so if that were true we simply couldn't provide more information on channels like c-span filming us today, or on blogs and it would solve the problem. we would all hold hands and say kumbaya. this is not really working. content the right of psychological studies, three main strands emerge. one, we generally find climate change are due process as threatening. two, we view the issue from a particular moral standpoints activity that was where liberal

or conservative, three come we don't tend to pay attention or to trust information that doesn't fit with our cultural worldview and social groove. as the cartoon depicts, a sinking ship is not a sinking ship to all. and just yelling more loudly that the ship is sinking will not convince those convinced otherwise. so to bar a phrase used by the obama administration to discuss what terms it's the second best option for climate change, in other words, using executive action under the clean air act we think the perfect however one can see in this context should not be the enemy of the good. at times for the obama administration, this is meant forging ahead under federal executive authority to greatnew federal regulations or international agreement. these coal around strategies though take place in the broader context of go together once a mix was like a bomb administration and other stakeholders. we may not be able t agree on

deep moral questions or share the same cultural worldview but there are areas where we can reach agreement and context are less polarizing than congress. the rest of this presentation will focus on these different options. so from the start the obama administration is detailed a lot of steps by amy issues executive authority on both mitigation and adaptation to most notably starting one week into office it started as she detailed using the clean air act as a basis for and mitigation action on both vehicle and power plant emissions. president obama has also done a lot of work on adaptation issues, including federal and agency and multilevel task force on these issues but at an international level it's been involved in a numer of bilateral and multilateral agreements under executive story. waswas riesling since midterm it made an agreement with china which then help with some of its negotiations, help support some of the divisions that just took

place in lima on a multi-lateral level there all of it is still falling far short of a scientist in our needed. these coal around strategiess i n't mean to reiterate has been controversial with those on one side applauding his action and the other calling it inappropriate as these cartoons represent. >> but these are just one piece of the puzzle of what's going on, as i said. substantive reframing is another. our ideas about substantive reframing draw on social science literature about the importance of frames and risk mitigation. filters shape what we say we look at the issue. as this cartoon represents incompatibility frames put against one another a device that isn't very productive. framing can also be used to move beyond advice of politics and for the potential more, we should values to motivate

action. this has to be genuine but it can't just be spent into after the waste which is that most effectively is with respect to ecomic development and disaster resiliency. so it doesn't take a genius to figure out what political polls and economist and political spin doctors can tell you. people care about jobs and the economy. with a clear economic benefit aligns with energy transition, that can be an effective way of motivating action. in this project we consider the kinds of circumstances in which this actually works. despite the constant economic rhetoric that comes up in this context, the lip service to green jobs is what's goingto cut it. economic benefit as be real and tangible, cost effective and easy to implement and hopefully targeted in a way that engages bipartisan stakeholders constructively. so, for example, you see republican leaders in michigan and in texas looking at david

back there, kind of bored with redoubled energy when their states that between industry. similarly, in the aftermath of celinda you had sarah palin and romney vilifying at the ssa pay back their loans, you suddenly had come prepared and seator rubio not to mention bill reilly been big supporters of this. another substantive reframing that's been very effective, particularly and post superstorm sandy is one that ties energy transition from a particularly climate action to measures for disaster preparation and resilient but in the 2012 election, saying he made it acceptable for politicians, democrats more than republicans, to talk about climate change because it became issue about protecting people's homes lives and livelihood. more importantly though from our perspective it affected states but at a time to go in depth now comes up in both executive and

legislative actions on disaster resilience especially in the immediate aftermath of disaster and at times spurred by litigation that have climate affect patient implications whether the callback or not. these have complicated federal executive efforts to support the affected states and committee which were large but uncontroversial. governor christie praised obama's response even while expressing that the storm could be tied directly to climate change. beyond opportunity shift discussion to areas of agreement, structural reframing strategies can shift action to more amenable forms. and by that at a time to talk and a lot of depth about these or i will get in trouble with raquel, but any governmental context these can be particles shifting what level of government, they can be horizontal, shifting a branch it can also shifting outside of government altogether. these can be mixed strategies because at times they are conflictual and at times there

cooperative. the first returned strategy i want to focus on is scaling down state and local level. i want to highlight global because we been talking a lot about state and federal, and local in part because they don't don't often, lunchtime state of partisan election. in part because people just get practical about local land-use planning. there has been real partisan -- bipartisan progress. i don't want to understate small is beautiful company to look at a variety of successes and for example, moderately public and twin cities suburbs eden prairie received national recognition from the mayors agreement, climate change among local executives in response to the u.s. bill to ratify the kyoto protocol for a program that reduced city facility energy consumption by over 8% and increased city to efficiency by 10% in its first five years. these kinds of efficiency initiatives often pay back and save money very quickly at a

local level making an economic focused argument about the clue to local decision-makers. if i had more time i could highlight adaptation oriented examples as well. strategies also can shift branches such as using the court to force action by the executive or legislative branches to create action independent of the. we've already heard from any about the dynamics that preceded and followed a massive epa case. about a book coming out in a few months with cambridge with but co-author jackie on the red to impact both directed impact of climate change litigation. and wha we found in this work that isa helped inspire our partisanship project is with respect to partisanship, the interaction with this litigation is complex. the is complex. so on the one hand the supreme court is respected institution and it help land legitimacy as well as provide a way around

congressional gridlock. in many instances regulators who have an inclination to act will try to use litigation as a justification for their actions. but i think it's important not to overstate the case of these these cases helping to find agreement across party lines. reactions are very split, for example, the democrats use this decision not only to move forward policy in the context of congress lacked the will to act but also its political cover to justify the regulations. republicans have rejected that framing and have use courts to challenge the regulations promulgated pursuant to the opinion. nonetheless, even with the divided parts and used in their limits, these suits with very limited exceptions have served as an import mechanism thus far are undergirding in most instances federal and state executive action in the face of congressional inaction. finally, it's important not just to focus on key government

action as we did for much of our discussion today. corporations in our context of climate change and energy through decisions whether in response to regulation or not play a critical role in energy transition and climate change and are taking these decisions parallel to the executive action were talking about. although corporations often get vilified in this context by environmentalists, t reality is complex but seven energy corporation for more so after citizens united have played an important role not only in shooting to problems like climate change but to their donations and lobbying. but many companies, especially when one moves from coal to gas especially growing wind and solar industries and the energy focus companies are playing more constructive roles. moreover, companies are taking responsibly economic bottom line and so can be willing to step outside of partisan debates when they see a profit. in addition there's a lot of cutting-edge work taking place on investment and financing right now as well as with

disclosures and shareholders. while at the other coaches on talk about, this one is no panacea. companies do very and how responsive they are at times they simply want to green wash. that many companies do seem responsive to real risks and rewards which makes this an important structural leverage point in interacting with the executive branch dynamics that have been the focus of the symposium. so to conclude ultimate the obama administration's executive action form part of a broader do whatever it takes approach in line with the more polycentric viewthe of climate change that is becoming increasingly mainstream as advocates and scholars accept the blocks two and limits of freezing your stature took with respect to the federalism issues which are the focus of this panel i think a broader perspective on federalism interaction which includes the horizontal dynamics across branches quincy key judicial role and the many levels of government engaging these issues

is critical. such a perspective provides an opportunity to not simply assess what the federal government should do and what states should do in the large great era in which both have authority act, but also recognize that the many key public and private actors making simultaneous choices influence and are influenced by the federal state dynamic. if to accept as jackie and iq climate change is a series problem, that we are still far am addressing, this is no panacea. these many different actions still don't add up the reduction to societies. taking place in 10 with a more controversial go around executive action can both help make some difference in advancing these important areas and at the same time helped make the dialogue more productive and respectful which is both a good in itself and necessary for greater progress.

thank you. [applause] >> we have about 25 minutes for questions and answers, and i will pose just a quick question to the panel trying to bring together panel one and penalties in some way. one of the themes in panel one that i heard was how anyways congress has been its own worst enemy in providing checks and balances as was conceived in our constitutional structure and this panel has raised the possibility that thinking only in terms of vertical separation of powers dynamics misses out a great deal on the way in which federalism can also function with significant checks and balances and limitations. and also kind of a ripe ground

for cooperation that needs to be looked at. i wanted to raise another observation which some of you may become which is that despite the posturing by several states announcing a lot of these executive actions that president obama has preferred in the face of partisanship, the reality shows that is actually quite a bit of compliance or cooperation in lots of different areas that many of you brought up. i wanted to focus a little bit although not exclusively, on the example of driver's licenses but it raises to me at least the notion of how meaningful checks and balances is when perhaps compliance is not truly voluntary in the sense it may be more pragmatic reasons or economic dependence on the federal government, or perhaps on the absence of alternative. i'm thinking, for example, of the fact and the federal immigration power arena because

it is so exclusively a federal power it seems to me that it's difficult at least for me to conceptualize how states other than posturing the lawsuit that seems to lack standing would really be able to bring meaningful checks on some of these initiatives. >> oy, so i do i guess the question is how significant we might think the separation of power commuting, think of federalism and separation of powers how significant that check would be. one answer may be the easy answer is that certainly remains to be seen with regards to immigration. driver's license example i think is interesting because it is a possibility for states to do nothing, right? most states did. it's a possibility for states simply to provide or clarified

that their policies are giving driver's licenses to daca dapa recipients. fairly non-surprising move given that almost every state already gave driver's licenses two people who are recipients of deferred action but clarified 46 states clarified in the wake of daca other deferred action but the fact that they gave driver's licenses to the group, or to deferred action recipients would now specifically apply to daca recipients. and then there doesn't seem be a lot of reason why that would necessarily create momentum on undocumented immigrants generally, right? so this is not, your question about the check, this is sort of entrenching but it is interesting that you might have a right of policies even with regard to driver's licenses ranging from doing nothing to as arizona and nebraska done actively resisting, even giving

licenses to daca recent years, appealing to the supreme court which arizona has lost. theoretically the problem appears to be at least the way in which a court structure it's that they are allowing licenses to some deferred action recipients but denying them to others. so could you simply eliminate all driver's licenses to deferred action recipients? possibly, and if that were to happen that would be i think i've resisted maneuver that would've seriously alleys within that state i think hinder the realization of daca over dapa goal. people need to do everyday things. they need to get to work. they need to get to school and if you're taking with that ability that's a significant i think resistance to that type of policy. i think you're right about things like the sued the estate sued, if you read as most people, the people of commented code reads like a political manifesto, not a lawsuit.

i did get everything out that i want to say about this and really cry about it and not much to do. but you could also imagine, for example, states clarifying, so for only two states have laws for example, that prohibit a document it immigrants from attending public universities, alabama and georgia. you can imagine states with unified governments enacting more of those types of policies as well. even if you allow groups commute making them actively -- making moves to make sure that those types of over provisions. so i do think those have one, they have some resistant possibly for the sake of action, and the secondhand to is that both on the entrenching and on the resisting side when congress does act if they act eventually, the longer those policies stay in place, the more likely it is that congress has

to count for those policies in this legislation. you have to make exceptions for states in those, allow waivers for states in those areas or find other ways to accommodate that which is to make sure that states place both restricted and integrationist will remain with congressional legislatures. >> i think that interesting aspect is a really interesting feature. so even though you prod and rational action, it's congressional action on a different ball field and that's going to be one of the interesting dynamics to pay attention to. i think your question also pushes us to think about what you mean about voluntary. and in many of these states federal interaction, you could argue much of it is not really voluntary as a practical matter. it may still be deemed legally voluntary, and it's not just affected by the roles of the federal government might come in a pretty big it's also honestly

pressure from residents who have benefits or interest to get a token on the affordable care act, you might think that those with medicaid expansion may not, groups that don't necessarily have the greatest political leverage but one of the groups that stands to benefit a great deal from medicaid expansion on hospitals and hospitals who have lost so the money that went for previously uncovered care, also insurance companies who will hope to be paying less of uncovered care. one of the things the obama administration has done is trying to leverage those entities to lobby and create pressure. in addition, there's certain well-established features and a lot of medicare waivers. there's been a little bit of usenet we have the affordable care act you don't need that existing waiver because we have medicaid expansion. i'm not sure that just because

it will put a lot of pressure on a state, because it wanted to pull back on his policies in voluntary, it is a lot of pressure. i think you get a lot of having to thinks it's about whether pressure is necessarily a problem. i think it's actually endemic in the system and not something we should be as worried about. again i want to come back to there is details of the scheme at issue. and how much leverage any group has over the states have changes on that and particularly if you go, look a look out for the maybe much more pressure to start dealing with problems that they're facing and localities can exert pressure on state governments from the bottom up even if he the state more ideologically inclined. >> i just wanted to comment on the first part of your question, or the things you said if we got

to the actual meat of the question. because i think it's something we have been presuming and i want to just interrogate aside from a comparative law perspective. 's i think the a lot of this conversation has been that congressional inaction is maybe bad. and then executive action in the face of is maybe bad and maybe good, depend on your perspective. work i've been doing on climate change over the last couple of years with jackie from university of melbourne has given me some posit in wanting to critique our congress for its slowness to act in this is. the asteroid example i think provides us with a cautionary tale of how a different system of government might work on these issues in a similarly divided partisan context. because they have a parliamentary system of government, the legislature has no problem acting. ..

slow system which makes it hard for us to repeal those big environmental wall just as it makes it hard to pass the climate wall whether it is an entirely bad thing. i'm not saying dysfunction is good, but i do think that if you

think that the system of government and compared to other systems of government there is a question of how you get a functional action. >> anyone that has a question please step up to the microphone and introduce yourself. >> indiana university indianapolis. i want to pick up on your last point in what the professor was talking about earlier. about the go around and australia for example is very helpful back to the professor when you talked about the polarization it decreases incentives to cooperate and goes both ways. if you have the weak incentives to cooperate it will create greater polarization and arguably one of the factors in the poorest nation is the growth

of the presidential power if you have the increasingly wind or take all election the predator has all the control and the drive sport edition. in terms of thinking about how we can get more working together and less going around which is in the short term may be effective and in the long-term maybe not just to think about how we can give greater incentives for cooperation and the example that medicaid expansion i think is helped in another way but the that the red states obviously thse governors realize it's in their interest to get along. i want to fight for democrats or by letting them to sign it they have a voice in it and they are are willing to go. arkansas has its a plan and we will have hours in the end. what we ought to be thinking about in the questions are how can we give people the minority

voice. i've written about the sharing of power and switzerland is a good example of sharing power and i think that is a lesson you get you give everybody a voice more likely they are to cooperate. it's a filibuster reform and the administration jiving into giving around the go around power are kind of productive in the long term. one thing to push back is the executive administration as necessarily just go around. that's where it becomes interesting because you could say it's a whole lot easier if we don't have to deal with the

state. but they have no choice. and going to the executive side in the context you can't avoid keeping into account the state interest. you are limited in the choice. and what we may find it that if the supreme court strikes down the subsidies on the extreme just there are very little options. that actually i think can lead to the dynamic that you're talking about on the different interests. so i would agree but not necessarily see the executive action is a vote. >> i think political science can debate the question of what causes polarization.

i'm not in political science and i don't claim to be. it's possible executive power is one but it's risky to blame it as a primary cause which i think is one of many different factors in the polarization and i want to build off the point was made which is i think that part of my point in talking about go around and go to get her strategy is to make the point that when we are talking about executive authority, we are talking about a boat and that then i think part of the problem is we have a media story of polarization. it's true that it's only purpose the story had a there are less exciting but also highlighted examples of cooperation and i think it's thinking strategically is important and that is where the second point comes in that it's important not to understate how much there are

cultural differences in the country and whether you talk about it in the climate change context or in the context my colleague at minnesota talked about in the family law where she worked on the red families and blue families we have to acknowledge what people believe and care about and figure out about what values we share to make progress and i think that that at times doesn't undergird the way that we approach these issues. >> jeffrey from american university it judgment is traded law; as for professor stein. i've been interested in these programs for a long time and they've been in operation for a long time. you didn't mention osha but i have two questions for you number one is given the

increased polarization that we are seeing, have you noticed a lessening of the cooperation part of the cooperative federalism and the programs over the years and secondly in your paper are you going to be able to assess which ones are working the best or perhaps provide some and to design them in the future? >> second question first perhaps it is difficult to do. i struggled even when i think about the rubrics to be applied. what is tonight in the correct metric to be using to decide whether this is a construct if more deconstructive consented because even when it is sort of according to the media or something antagonistic or distracted it may have really great value in that system.

pushing that otherwise wasn't ready to act or changing the structure in a way that allows the federal government to see that this is more serious particularly for instance on the cooperative development when the states banned across the political party. i think then that would be one of may be the trigger is in terms of when it succeeds more. it provides a little more legitimacy to the defense and perhaps you can at least say you can't always discern the purpose behind it but maybe you can see it can't possibly only be a long political line. succumbing yes and no. i would like to but i don't have it. do we see less cooperation or not there is more polarization i don't see it.

it recognizes that this has been a long-standing problem in the states that care. it as part of settlement but there is the sense that they were cooperating and it's happening on mississippi on the multistate deal in the district court now on the circuit. what happened along the way is the environmental groups sued the epa saying you must issue a deal for mississippi. and there is a big fight between the narrative. right now most of its narrative which is basically harder to enforce because you don't have the specific numbers. and so what's happening there in terms of the cooperative elements how much is the epa? they realize how this is and the states that are involved and that are going to be essential. so i think despite the polarization they realize they

cannot go it alone at least in these difficult environmental issues not only understand the global boundaries. >> david, university of texas. i would ask another version of the same question i asked in the first panel and they are both motivated by the piece i had out with jody freeman on what happened on the implications for the federal agencies and the environmental space of having to deal with statutes that have been updated. and so my question again is how -- is about to the the degree to which this is about the question of the statutory interpretation we are talking about the federalism context in this panel but it would seem to me all of this is about fighting over what the statute means and that congress really only takes the enforceable action when it passes the statute and the fact

that lots of high-profile members of congress are unhappy with the way that the administration administers the statute isn't legally significant. what is significant is whether or not the agency is acting in the bounds of the statute and whether or not the federalism or the state action in conjunction and the federal authority is being exercised in a way that is consistent in the statute or not. and so i guess i would like to get your reaction in the context now about the degree to which this is all one big sort of statutory interpretation problem. >> one thing that's interesting to think about there is the role of the waivers because they are in an expressed instance updating for these of statutory provisions authorize the agency to waste. the terms that would otherwise govern but there are

restrictions which i will get to in a moment, but these are expressed updating provisions in the text of the statute and it means that the agency is going to be interpreting a statute. it is interpreting the division to some degree. and i think it pushes back a little bit about having to push the difference or some kind of implement here he. authority and instead forces us to look at that and how they should be considered. and in fact there is one great piece by the judge looking at the waivers but they have become a major administrative role and one of the interesting things that we see is a lot of the recent actions aren't a very transparent with open opportunities and the notices involved. so the whole administrative law legitimizing the structure of

portable to this instance of action in a way that quite interesting to think about but also the question that is mentioned in the entrenchments of its granted a lot of waivers and i think this is going to be an issue in the education context in particular one of the concerns the state has is well the congressional action on how will it respond to the waivers that they've been exercising. and again there's also this question that he talked about in the statutory authority does the administration have the power to add a whole bunch of policy concerns that are not actually in the text of the statute itself teacher accountability for example. so that's one where you actually see the issue updating and the techniques are updating explicitly in the text of the statute that doesn't just require to push back on the idea of difference and the more traditional understandings.

>> i know you said outside of the immigration process but i was going to mention that it's interesting to think about the dynamic of the statutory interpretation with regards to for example arizona versus the united states. look at what the state of arizona argues. it's that it was the state was more faithful to the congressional intent than the federal executive ones and therefore distinct actions were constitutional. so the court ends up getting preemptive power in that case to the agency guidance memorandum. it's just an agency memorandum. but that also took the power and that has fighting under theorized the effect across a lot of the regulatory areas. if it's true that the agency

enforcement priority memoranda has preempted the facts on the state level policy but overall e general point i would make is that even with immigration you do have the states attempting to not just wheeled up the mantle and argue for the most faithful interpretation. >> this is what i love about talking to people that are not on the same area because we haven't talked about this this yet in a climate change context we have just been talking about the epa. the parallel to the case which is a state waiver case that i know you're familiar with and again it was the statutory interpretation that where california -- in the cooperative federalism a lot of what happens is the floor preemption where essentially the states have minimum standards to do what they want but in the clean air

act they perform a ceiling preemption where the states are not allowed in general to do their own thing accept read an exception for california than they let other states follow california. but california had to get a waiver and at the same time, the epa was refusing to act and they were pressuring me to the wall suit in massachusetts supreme court decision. california tried to pass the motor vehicle mission standard and for the first time the epa denied its request. so they granted them from california and all of a sudden in the context it wasn't granting it and so that set was happening at the same time and a week after the obama administration they started to reconsider california which they ultimately granted and the great piece of the federalism story is that you get the auto industry, california and the government working together in the end that

speaks to the cooperative point as well but the main thing i want to say to the question because i was in that corner with you saying it would have statutory interpretation is i think beyond saying that there is a limited set of constitutional issues here i think it's also important to remember that there are legal dynamics and issues going on outside of this federal statutory interpretation question and it's not simply by scaling down which i talked about before but also people trying to bring in the common law so on the climate change where essentially the supreme court did bring it back to statutory by saying that the epa authorization to act essentially displaced the ability to bring the common law action against the major and sort of closed up that option until the supreme court did that there was another space in which there was an effort to hold them directly

accountable for their image and outside of the statutory framework in the common law and the common law mechanism so it's important we not forget common law in the story, too >> i just want to remind you to please come back in the afternoon for more of this wonderful program. i want to thank the panelists for educating us in a conversation on federalism. [applause]

[inaudible conversations] [inaudible conversations] >> the session on the obama presidency and federalism coming to a close. we will be back to cover the afternoon panel on immigration and the role of the white house and congress that will get underway and we won't have that here on c-span2. all the panels we are covering

from the association of the law school conference can be seen on the website and we will have that later today. when congress meets tomorrow it will be over 100 women in congress for the first time 84 in the house, 22 house, 22 republicans in 52 democrats and 20 in the senate the same as the last congress with six republicans and 14 democrats. he would like to know what you're talking issues are for these women and the other lawmakers in congress. go to the facebook page and leave your comment to.

there've been over 775 posts so far including this. we are building the country and the infrastructure is falling apart around us. we are starting to look like a third world country. we might make texas a simple or with less loopholes first and lower tax rates. again you can leave comments at facebook.com/c-span. coming up in about 40 minutes at 1:00 now live coverage of the swearing the swearing-in and inauguration of the california governor jerry brown or re- elected to a four year term receiving nearly 60% of the vote in november and that will take place at the state capitol building in sacramento. live coverage on c-span that starts at 1 p.m. eastern.

>> the chairman and isn't expected to unveil the proposal until the earliest which gives the opening for the republicans in congress to introduce the bill about the net neutrality of their own and what role they try to do 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 he will have to do some negotiating with the congressional republicans. and that is something we will be watching early in the year. i'm expecting that they will come out with final rules on this controversy. and then obama of course came out in support of reclassifying the broadband service under title ii of the act which would essentially make it treated like a utility. of course the broadband industry groups are opposed to this and there is a lot of pressure on the chairman to go that route. we will see what happens there and then even when they are on

the books it isn't necessarily over and there's going to be lawsuits on most certainly from the industry groups of verizon and comcast and especially the chairman but that's what the president wants. >> host: did because they make weird talking about it in the communications act which i think it's a big multi-year effort that republicans in congress have ever taken and now that they control the senate they kind of have that working as well. the republicans in the house want to get into paper starting in january so we can see that very soon in the tool for the congressional republicans to use to push back on the next naturally rules they think are in overreach. >> eight eastern on the communicators on c-span2. we have more now on what to expect in the 114 congress as we are joined on this morning's washington journal. the editor in chief of the newspaper that covers capitolho: hill. edit-in-chie

>> the editor-in-chief of the newspaper here in washington, and we always appreciate him joining us on the washingtonreciate hijoining journal.on journal a day before the start of the 114th congress, how concerned should the speaker be about holding onto the speaker's gavelt hold story from the hill website as the republicans who will be voting against? e th >> i don'tis think that he has much to be concerned about. but he t has to contain it. he wants to minimize the h affection of who is not going to i vote for him. in the last congress, there was the last attempt 24 hours to overthrow him and it was really not managed very well. not man a ver there were 12 republicans at 1 that time that didn't vote for him either voting for some deals were abstaining from the vote out of those 1210 of them are returning. those 10, l and out of the ten it looksoo like to six sor seven or eight will notight will not vote again.vofor and then you have incoming

freshmen. remember, they have to get thean high 20s to actually makee high trouble 20and that means he just . needs a majority of the house to vote for him. needs so, the democrats are going to vote for nancy pelosi and theredemocrats might be a couple democrats who there m don't vote for her but vote forher democrat another democrat. then john boehner needs to keep that number under 28 or so and it looks like he's got that. what remains to be seen i think it is a safe bet. >> host: in terms of what happened two years ago versus what happened this time around, there's a couple different candidates that put their names. is that unusual for those that work that of those that were against him haven't coalesced around one potential pick? >> it is a shift in strategy into the dynamics are different. in 2012 the republicans were coming off a very disappointing election they lost. they lost the presidential race they lost seats in the house.

here john and his team have picked up 13 house seats. so he's got numb and dumb. the shift in the strategy is because last time around they didn't collapse. they just voted for whoever you want and maybe we can get into a second it to a second ballot and basically create chaos. it got awfully close and he was swearing out the last time so here they have been able to coalesce around one candidate some suggested the republican heading to benghazi but he told us and others that he's not interested in becoming the speaker. he's going to vote for him. so, two of the rebels, louie gohmert republican from texas and florida respectively have said they are not going to vote and they are offering themselves up as a possible alternative. >> host: what is the bigger picture here you talk about the rebels in this congress. how are the rebels going to

shape. if you look at the makeup of the house there are more republicans that gives them more votes to play with. anytime that he's tried any time that he's tried to consider a controversial bill he is needed to rely on democrats to pass it such as raising the debt ceiling for last year where only 28 republicans in the house voted for the clean debt ceiling increase. so now some can say they have a stronger hand because they have more votes to play with but some of those that we placed the ones that left were actually more conservative. so, i think that getting the votes to pass the controversial bills just republicans only is still going to be difficult even though they had a historical majority. >> host: how difficult of a task as the incoming senate majority leader mitch mcconnell have in trying to round up the votes with a 54 seat majority at this point?

>> guest: it is a dream job and he has a stronger hand than most people thought because most people were thinking he would win the senate may be 51 or 52. he has vowed to pass a budget and that is going to be challenging even with 54 because most and i would bet if not all whatever budget they propose they are going to go vote no so he's going to have to get ted cruz and susan collins, he can afford only a few of the sections and that is going to be a challenge. >> host: right now the republican takes the reigns as the republicans take over the senate and they increased their control of the house. what house. what are the key changes on the committee level.

if the government reform committee with the term limit. he's taking over for him and he said he's going to be a little bit different than darrell isa and basically the other one is paul ryan as the chairman of the house ways and means committee he was the budget committee and will be sworn in as the committee chairman. he has not said he won't run for president but it's very doubtful that he will. he wants to move the tax and trade bills. he's going to play the role in crafting the budget debate and he could be one of the most powerful chairman that we have seen since here in the committee when he was the republican of california. ..

yes, because the profile -- conservatives like him. he could have mounted a leadership bid. not interested could he says he is not going to be in congress forever. he has had a testy relationship at times with president obama. but maybe they could agree on some issues, and not many of them, certainly on obamacare they will differ, but on trade issues there is some common ground. host: we are talking to bob to sack of "the hill" newspaper on the 114th congress, getting set to meet 28 hours from now. bob cusack here to take your questions and comments on today's segment in "washington journal." host: want to talk to for a second about steve scalise, the house majorit