will do virtually nothing to protect our environment and will tie one hand behind our back economically. even if the president vetoes these resolutions, as we recognize the likelihood that he will, passing them will send a clear message to the world that the american people do not stand behind the president's efforts to address climate change with economically catastrophic regulations. i'm pleased to be joined by several colleagues on the floor who understand the need for affordable and reliable energy. and i would like it to recognize senator heitkamp. i ask consent to engage in a colloquy with my colleagues for up to 30 minutes. the presiding officer: without objection. ms. heitkamp: thank you, mr. president. and thank you to my great colleague from the great state of west virginia, a state that's been powering america for a lot of years. in fact, from the very beginning. and my great thanks to all of the great workers and coal miners in her state who have

added to the economic opportunity, not just to the people of west virginia but the people of an entire region. that's one thing that we forget, that in america, this great thing, great miracle happens every day. we turn on a light switch and the lights come on. and if that doesn't happen or if it's too expensive to turn on that light switch, we will not be the country that we are. with this regulation, i think what we've done is we've ceded the all-important role of electrical security and energy security to an environmental agency that really does not have the experience or expertise to understand what it takes to get an electron in the wire. and so i am proud to stand today with my colleague, senator capito, and introduce a bill to roll back the e.p.a. rule on carbon emissions, that rule which threatens the supply of abundant, affordable, and reliable electricity in north dakota. i pledge to register my

displeasure through multiple channels and this legislation i think today is the most public way of expressing not just my frustration but the frustration and concern of my state regulators and my state utilities. this rule, although having dramatic consequences across the country, this rule unfairly targets north dakota utilities. during the original draft rule, north dakota's allocation was 11%. not something we were happy with, given the extent of the jurisdictional reach, but something that people started really rolling up their sleeves saying, if we have to reduce by 11%, how are we going to do it and how are we going to meet this challenge. that's the north dakota way, to not only fight for our rights but also look at what the alternatives are. unfortunately, when the draft rule went from 11% to a 45% reduction in the final rule, that was the straw that broke

the camel's back. i'm trying to do everything that i can to push back against e.p.a.'s burdensome power plant rules, to find workable solutions so north dakotans can continue to have low-cost, reliable electricity. and this c.r.a. is just one of the many different avenues i'm taking to make sure that north dakota is treated fairly. i want to -- i want to talk about what's unique about north dakota. in fact, a lot of the generation that happens in north dakota is generation that is, in fact, generated by rural electric co-ops. these co-ops own and operate about 90% of the state's coal-based generation facilities and provide electricity to rural areas that in the past, other utilities would not serve. not just rural areas in north dakota but rural areas all through the region. the people at the end of the line, as we call them, the very people this rule will most impact, that e.p.a. and this

administration have failed to consider when they've made this final rule. north dakota's utilities are heavily invested in coal-based generation for a good and historic reason, and i think this is really an important point to make because a lot of people may think, well, what's the difference, you know? you can fuel switch. but at the time that our electric co-ops built these generation facilities, they used coal because it was against the federal law to use natural gas. the fuel use act made it illegal to use natural gas for power generation, virtually forcing these power companies to make the investment that they made in this fuel source of coal. now after making billions of dollars of investments to meet the mandates under the fuel use act and to meet the numerous emissions standards that have been put forth by e.p.a., the administration once again is straining these assets, causing

them in many cases to be stranded. if the administration were willing to pay fair market value to strand these assets, then maybe we could have a discussion but i don't see that deal on the table. these utilities built, modified and retrofitted, all at great cost and according to federal law at the time, and now they are threatening the very existence of this generation. these assets are not just critical to north dakota. our coal-based generation provides dependable, affordable, reliable base load electricity to millions of people in the great plains with roughly 55% of the electric power generated in north dakota is shipped outside our border. when this final rule came out, i simple said -- i simply said it was a slap in the base if to -- base to our utilities and our regulators. this final rule was so vastly different than the rule that was proposed, it was almost laughable that e.p.a. said it

wasn't in any way informed by any real input or any real comment. how can you take a utility and a state from 11% to 45% and not reissue that rule? how can that be the movement in the final rule? i think this final rule is -- is a rule that jeopardizes close to 17,000 good-paying jobs in my state. it provides power for rural communities that otherwise would struggle for affordable, reliable base load power. we have some of the lowest power costs in the country because we have some of the best utilities in the country who are always looking out for that consumer at the end of the line. north dakota has never stepped down from a tough challenge and when the challenge is fair and the goal is attainable and the time line is achievable. but that's not this rule. the goal is not fair, the challenge is not fair, the goal is not attainable and the time

line is unachievable in my state. unachievable. that is not anything that the clean air act ever anticipated. that we would set a goal with no feasible or possible way of meeting that goal given current technology. but yet that's the position we're in. and so at the end of the day, what matters most is making sure that our utilities can do their job, making sure when a north dakotan or a south dakotan or someone from wyoming or colorado, where we deliver power, and certainly those in minnesota reach over to turn on that light switch, regardless of the time of the day, that that light comes on. that's called base load power. and people who think that -- that this is easy, people who think that this is just -- you know, just switch fuels or switch technology have never sat in a boardroom, as i have, and listened to the challenges of putting that electron on that

wire. and so i stand with my colleague from west virginia and my colleagues -- my coleagues, joe manchin here, on our side of the aisle, saying enough is enough. this is a problem we need to address. maybe that's the difference in us in how we look at this. this is an issue that we can tackle and achieve result over time. but this rule is wrong, it's wrongheaded, it will, in fact, cause huge disruption to the economy of my state and the economy of the middle of this country and we have got to do everything that we can to prevent this rule from becoming a reality. thank you for letting me join you, the great senator from west virginia. we have two great senators from west virginia here. and i yield the floor. mr. mcconnell: mr. president? mr. president? the presiding officer: the majority leader. mr. mcconnell: mr. president, there's a war on coal in america a war on coal in america. and the leader is the president of the united states.

a number of us who were in the senate back in 2009 and 2010 and the administration couldn't pass through the senate their cap-and-trade proposal, they had 60 votes in the senate, the president and his party had 60 votes in the senate. but they couldn't pass the cap and trade proposal through body. so they decided they were going to do it anyway. decided they were going to do it anyway. and so we have a depression in central appalachia, as the two senators from west virginia can attest. created not because anything we did here in congress but because of the president's zeal to have an impact worldwide on the issue of climate.

i suspect, mr. president, that even if we follow this path all the way to the end, this effort by the united states would have about as much impact as dropping a pebble in the ocean, and yet we're paying a real price for it here at home. eastern kentucky looks like the dust bowl during the 1930's. no jobs, no opportunity, no future. not as a result of anything we passed through the people's elected representatives. but by this sort of arrogant, single-handed messianic goal to deal with worldwide climate. our options to stop it are quite limited. but we do have the possibility

of a congressional review act, but the weakness of that obviously is even though we can pass it through here with a simple majority, he's likely to veto it. but we're here today to stand up for our people, the ratepayers of america. and not only the ratepayers, 90% of the electricity in kentucky comes from coal, but the communities that have been devastated by this. i've never seen anything like it. i heard my parents talk about what the depression was like. it sounds and looks a lot like the stories they told me. about america in the 1930's. so this is a venture that will have no impact on the issue for which it is being pursued but is having a devastating and current

adverse impact on the people that we represent. now, we have representatives from both parties here on the floor today working toward overturning the administration's deeply regressive energy regulations. these regulations are going to ship more jobs overseas. i told my constituents the other day coal has a future. the question is does coal have a future in this country? the indians and the chinese are not going to give up their future by not using this cheap, abundant source of power. the germans, one of the most -- one of the greenest countries in europe, are now importing coal. so coal has a future. the question is does it have a future here? after this administration. my affirmative action can't even put food on the table.

ones who can find a job somewhere leave it. the population continues to decline. as i said earlier, it's not going to have much of an impact on the environment of our planet. this isn't going to do anything meaningful to affect global carbon levels. it just seems that some want to be able to pat themselves on the back for doing something even if they accomplish hardly anything at all except hurt a whole lot of americans. higher energy bills, lost jobs may be trivial to some folks out on the political left. not their jobs. they don't care. but it's a different story to the the middle-class kentuckians

that i represent. so here you have on the floor senators from both parties who are saying it's time to take off the ideological blinders. instead, think about those who have already suffered enough the past few years. so we have worked together to file bipartisan measures that would overturn the administration's two-pronged regulations. i'm joined with senator heitkamp, senator capito, on a measure that would address one of those prongs, the one that pertains to existing energy sources. senator manchin is here on the floor to join me as i introduce a measure that would address the other prong, the one that pertains to new sources. these bipartisan measures together represent a comprehensive solution. as i said, i'm pleased to be joined on the floor by the senators from west virginia, montana, the chairman of our

energy committee, our environment committee, senator inhofe is here. some have already spoken and some will speak after me, but i'm proud and pleased to be here on the floor with all of you standing up for our aggrieved constituents who have been mightily abused by this administration. i yield the floor. the presiding officer: the senator from west virginia. mr. manchin: first of all, i want to thank my colleagues, senator mcconnell, senator capito, my colleague from the state of west virginia, senator daines, senator inhofe and my good friend, senator heitkamp. this is a bipartisan approach. not often do you see a bipartisan effort, a colloquy on the floor of the senate anymore, and it should be because we all have the same interests. basically, how do we provide affordable, dependable and reliable energy, which this country was built on. we have defended this country by having resources so that we

could basically defend ourselves and that resources came from what the good lord gave us and coal has been in abundance in the united states of america. we have fought every war, we have defended, we have energized, we have built a middle class. unlike any time in the history of this world. so now it comes to the point where there's a group basically that wants an ideological pathway to say we can do it differently. if someone came to me and says that we have this new great energy and i'm sorry, west virginia, i'm sorry, north dakota, i'm sorry, oklahoma, i'm sorry, montana, we have this new energy and maybe it's commercial hydrogen which will be water vapor, that's wonderful. we'll figure a way, we embrace that, we'll figure a way to make it, we'll do something, we'll diversify. that's not the case, mr. president. the case is simply this -- this country has depended and will depend and even by this own administration's admission that this country will depend on fossil fuel for at least the

next three decades. it's in their e.i.a. report. they're going to have to have it. base load -- and i think the senator from north dakota said this -- base load is simply this -- something that will give you power 24/7, day or night, rain or shine. there's only two things in the world that can do it -- coal and nuclear. gas is coming on and gas will be a base load when the distribution lines and the pipelines are there to provide it. right now it's not, but it's coming on strong. so just look no further than japan. japan was mostly moving towards nuclear. fukushima happens. when that happened, japan had to change. what did they do? they changed to coal. but they decided the new plants that he would build would be ultrasupercritical. that means 40% efficiency, burn at the highest levels to reduce the emissions. they're moving in technology ways. now, what does this -- the plan that we're talking about? we have our colleagues talking about existing source, which

means they can't continue with what we have today and new source, which means any new plant has to be built to certain standards. carbon capture sequestration has not been be proven commercially in not one plant in america. yet these rules are based on using carbon capture sequestration. all we have said, some of us have said this -- why don't you at least demonstrate, demonstrate that you can have that type of commercial operation, and it can withstand one year under commercial load and show us those are the new limits you want us to meet? that to me is reasonable. and let me tell you this, mr. president. if you were in the business of producing power and you desired not to do that even though we had technology, then you would have to close your plant. i understand that. that's not the case. that's not the case. they can't show us technology and show us that it has a commercial feasible pathway to be able to perform and provide the energy we need, there's no way you can do it. so i have said this -- if it's unobtainable, it's unreasonable.

that's all. if it's unobtainable, it's unreasonable. don't expect me to do something that's never been done. if the federal government says fine, we are going to have -- we have $8 billion laying down at the department of energy, $8 billion, but it hasn't been tapped, does that not tell you something? the private sector has not stepped up to take those types of loans and to use those types of loans to find the new technology for the future because they don't believe the administration wants you to find any new technology that might be able to adhere to the standards they've set. so we sat back and we've done nothing. and then on top of that, they expect these plants 30 years from now, if they're expecting to get commercial power, electricity, fill the grid with power coming from coal for the next 30 years, most of our plants average 50 years of age. they can't produce the power they're going to produce that you're needing for this country to have for 30 more years. an 80-year-old plant just won't do it, just won't do it. so that means they come off the

line, comes off the grid. when that comes off the grid, what we call dependable, reliable and affordable energy goes away, goes away. i have said this. someone needs to ask respectfully our president, this administration, the e.p.a., the d.o.e. if for the next 90 days not another ton of coal was delivered to a coal plant in america, not another ton of coal, because -- and i have said this to the administration. they have been very, very eloquently and basically telling the american people we don't like coal, we don't want coal, we don't need coal. if those were the facts, then make sure you tell the american people if they didn't have coal for 90 days, what would the united states of america look like? just tell me what would it look like? ask anything what it would look like. 130 million people's lives would be in jeopardy tomorrow. 130 million people. this system could collapse. the east coast goes dark. now, you tell me how you're going to fill that in.

and if you're not willing to be honest with the american people and tell them that, don't make them believe that there's something that's not there, that you can run this off of wind and solar. we have a lot of wind in west virginia and we're proud of that. let me give you an example. the hottest days this past summer, you know that real hot spell we had, 90 to 100 degrees. we have 17 acres of a wind farm on the top of a beautiful mountain in west virginia, 560 megawatts. we have a coal fire plant, the cleanest supercritical coal power plant. guess how many megawatts of power the wind produced on the hottest times of summer when we needed the power. two megawatts, two. the wind didn't blow, so hot and stagnant. didn't blow. that pour little coal-fired plant was giving everything it got, running at 100% to try to produce the power the nation needed. i'm just saying the facts are that, whether you like it or

not. the facts are saying any new coal power plant has to be built like this, you can be assured they're not going to build any. they won't invest and try to hit a moving hargt. so now what happens? for the 35% or 40% of the power you're telling the united states of america, the people in this great country that we've got, don't worry, we're going to take care of you, they're not going to have it. well, we're not going to stand by and say, you know, we're not going to fight for that. we're not only fighting for a way of life for west virginia, we're fighting for a way of life for this country. this country depends on the energy we have been able to produce. they have always depended on our little state. north dakota now, one of the best energy-producing states we have in the country, montana, wyoming, oklahoma, we have been the heavy lifters. we'll continue to work for this great country. we just need a little help. and that's all we're asking for. so i would say ask the question what would the country look like? what would it look like tomorrow? and the standards they are setting are basically unreasonable, totally unreasonable because they are

unobtainable. so the impact is going to be devastating, basically. the system is going to be to the point to where you can't depend on it and it's not reliable and we don't have the power of the future yet. maybe your children or grandchildren might see that, i hope so, but until that time comes, when you're going to transition from one to the other, make sure that it's a smooth transition. make sure that it's one that's a dependable transition. make sure it's one that keeps this country the superpower of the world. if you don't, i'll guarantee you, we will be the last generation, the last generation that stands before you as a superpower saying that we are energy independent, we're not fighting wars around the world basically for the energy this country needs. we have the ability to basically take care of ourselves. we can be totally independent of energy if we have an energy policy that works. this is not realistic. that's why i totally oppose this new power plan that comes out. it's a shame we have to rely on the courts to protect something we should be doing in the halls of this senate.

it's a shame the courts have to come in and protect us. it really is. with that being said, i yield the floor, and i thank my colleagues for being here on this important issue. mr. inhofe: mr. president? the presiding officer: the senator from oklahoma. mr. inhofe: mr. president, first of all, i'm going to appreciate the fact that our colleagues from west virginia, north dakota, kentucky and all of us are getting together on this on a bipartisan way. i think it's worth repeating to make sure everyone understands where we are on this thing what a c.r.a. is. a c.r.a. is a congressional review act. it is one that is -- that allows an elected person who is answerable to the public to weigh in on these decisions that are made by the president, who is not -- who can't run again for office, by the unelected bureaucrats that are destroying this country. the idea as pointed out by the senator from kentucky, i do share the committee called the environment and public works committee. on this committee, we deal with these regulations. you know, we have jurisdiction

over the -- over the e.p.a. it's interesting i'd say that because we try to get the e.p.a. to come in and testify as witnesses as to how the president plans to move to the percentage of power that's going to be generated by the year 2030 by renewables, and they testify because they don't have a plan, they don't know how they will do it. the c.r.a. is significant because -- and a lot of people, in this case it would be the liberals in this body who like the idea of being overregulated, who like the idea of having the regulators run our lives, and they're the ones who would love to go home when people are complaining about the costs of all these things, they can say well, wait a minute, don't blame us, that was a bureaucrat that did that, that wasn't me. well, this forces accountability, and these guys don't like it. i can assure you right knew now that we're going to give everyone an opportunity to weigh

in. they would much prefer to go home and say, i know we're over-recreated and i know it's destroying our states, whatever their states happen to be. but it wasn't me, don't look at me. well now we're going to say, who is responsible? because what's going to happen is we're going to have a vote and the vote is going to take place and then i think senator -- that our leader is correct when he says that the president will probably veto this. if the president vetoes it, then it comes back for a veto override. thep people will know who is -- then people will know who is for it and who is against it. i think c.r.a. has another great value. it forces accountability to people who are answerable to the public on the issue that we're using today, the interesting and the consistent pattern that we have is that what this president does is he gets the things they tried to do through over--- through legislation and those things that have failed through legislation, he tries then to do regulation. another issue that is not the

issue we're talking about today is the wilderness issue, the waters of the united states. historically, it's been the states who had regulation over the waters, except for navigable waters. well, of course, liberals want everything in washington. so five years ago a bill was introduced and the bill would have essentially taken the word "navigable" out so that the federal government would have control over all the waters in my state of oklahoma and throughout america. well, that sounded -- they entered -- two of them introduced a bill. one was a senator feingold from wisconsin. the house member was congressman oberstar from one of the northern states -- i don't remember which one it was. but they introduced the bill to take the word "navigable" out. well, this not only -- not only did we overwhelmingly defeat the legislation, but the public defeated the two of them in the next election.

now, the president is trying too do what he was not able to do through legislation through regulation. same thing is true -- the senator from west virginia is right when he talked about what the -- what they are trying to do. and it is really interesting when you look at this bill. this is -- we're talking about the emissions of co2. well, the first bill that was introduced was 2002. it was the mccain-lieberman bill. weigh defeated that. the next one was the mccain-lieberman bill in 2005. the third was the warner-lieberman bill, then we had the waxman-markey bill that we never even got the vote on because nobody was going to vote on it. what they failed to be able to do legislatively, they're not trying to do through regulation. that's why a c.r.a. is

significant because it does force accountability. now, let me make one other statement. this thing about parris that's going to take -- paris that's going to take place in december, this is the big party that the united nations puts on every year. this is the 21s 21st year that they've done this. i can remember when they did it in 2009. that was going to be copenhagen. and we sent -- we didn't send, but they sent several people went over there. at that time obama was in the senate, hillary was in the senate, pelosi went. they went over wil there to tele same countries that we'll be meeting in two months from the 192 countries, went over to tell them that we were going to pass cap-and-trade legislation that year. that was 2509. i went over at -- that was 2009. i went over after they had given their testimony there. went all the way over to

copenhagen, spent three hours and came back on the next flight. it was probably the most enjoyable three hours i ever had because i was able to talk to the 192 dunce an countries and m they had been lied to. in december of this year they're going to go over -- and by the way, let me mention one thing that hasn't been said. there are people listening right now who actually believe this stuff, the world is going to come to an end. it is all because of co2-mandated gases. this is something we've been listening to for a long period of time. i remember right before going over to copenhagen in 2009, at that time the director of the environmental protection agency was lisa jackson, an appointee by president obama. and skid her this question on the -- and i asked her this question on the record live on tv. i said, you know, if we had passed any of the legislation or the regulations that this --

that we're talking about passing, would this have an effect oflog the co2 -- of lowering the co2 worldwide? she said -- keep in mind this was an obama appointee. he was president at the time and he went over to copenhagen. she said, no, it wasn't reduce emissions worldwide because it just pertained to the united states. this isn't where the problem s the problem is in india, it's in china, it's in mexico. and so the problem that we would have there is that, yes, we might lower our co2 emissions in the united states. however, those other countries won't. and it could have the affect of increasing, not decreasing, co2 emissions because as we chase our manufacturing base overseas to places where they don't have any restrictions, it would have the affect of increasing it. so i'm just saying that i appreciate the fact that we're all together on this and making the necessary efforts to make

people accountable. i think that it might surprise a lot of people as to who changes their mind on this once they know that they have to cast a vote and be accountable. so i applaud certainly my friends from west virginia and the other states that are involved in this thing, and i think this is the right thing to do. let's keep in mind, i remember with utility ma mact. that was the first to put coal under. and at that time we did a c.r.a. and we actually cal came withinr votes of getting the thing passed and that was the time when republicans were not in the majority. i look for some good things to happen here. i think we're doing the good thing, the responsible thing. and i yield the floor. the presiding officer: the senator from west virginia. eximrs. capito: mr. president,

montana has some of the largest recoverable tonnage of coal in the nation. i ask consent for that. the presiding officer: without objection. mr. daines: thank you, mr. president. i've got to thank senator capi capito, senator heitkamp -- we've had democrats and republicans in this colloquy talking about what's going on with coal-fired plants and the clean power plan of this administration. here's what's hasmg it is killing good-paying jobs for union workers, for pipe fitters, boilermakers and tribal members in my state with these so-called clean power plan regulations. at the same time, it's stifling investment that could lead to innovation to make coal cleaner here in the u.s.

as i travel across montana, i've heard montanans describe the e.p.a., as a rancher one time told me, it stands for "eliminate production agriculture." a union member recented told me it stants for "the employment prevention agency." and president obama and his employment prevention agency continues to wage war on the american energy, american families, and american jobs. this so-called clean power plan is an all-out frontal assault on affordable energy and good-paying union as well as tribal jobs. and this will leave president obama directly responsible for skyrocketing energy bills, a loss of tax revenues for our schools and our teachers and our roads, and unemployment of thousands of hardworking americans. the president ignores the fact that more than half of montana's electricity comes from coal, as

do thousands of jobs and hundreds of millions of tax revenue every year. 40% of our nation's energy comes from coal. when a young person plugs in their iphone or their smar smartphone, most likely it's being charged by coal. in my hometown of boozman boseme have a tesla charging station at one of our hotels. ilan musk created an electric vehicle. when they plug those vehicles into those chargers, those tesla vehicles are likely powered by coal. the facts are that coal production in the u.s. is much safer and less carbon-intensive than coal from other nations. this is a global challenge we must think about and address. the powder river basin in southeast montana has coal that is among the cleanest in the world. it has lower sulfur content and

cleaner than indonesian coal. shutting down u.s. coal will have a negligible impact on global emissions. it will, however, ultimately make more likely that less technology -- technologically advanced coal production techniques will be used around the wompled here is the way to think about it. the u.s. consumes about 10% of the world's coal. said another way, 90% of the coal consumption in the world occurs outside the u.s. and the global demand for coal-fired energy will not disappear, even if the u.s. were to shut down every last coal mine and every last coal-fired plant. and, again, individuals are entitled to their own opinions but not to their own facts. here are the facts: coal use around the world has grown about four times faster than renewables. 1,200 coal plants are planned

across 59 countries, about three-quarters in china and india. china consumes 4 billion tons of coal per year versus the u.s. at 1 billion tons. and china is building a new coal-fired plant every ten days, and that's projected to last for the next ten years. japan -- i used to have an office in tokyo. my degree was in chemical engineering. er i was part of a software company in offices around the world. i remember the big earthquake that struck japan, the 9.0 quake. the fukushima nuclear reactors -- how is japan dealing with that? they're building 43 coal-fired power plants. and india may build two and a half times as much compass tas the u.s. is about to use. so this is shortsighted, misguided to move forward on an agenda that is going to devastate significant parts of the economy, going to raise

energy prices and destroy union jobs and tribal jobs, and we're seeing that already in montana. earlier this month, in the month of october, a customer of the crow tribe, the shirco coal plant, announced it has to shut down two plontsz. -- two plants. the crow tribe relies on utilities for most of its nonfederal revenue and for good-paying jobs a mine. the unemployment rate on the reservation is in the high 40%. without these coal-mining jobs that unemployment rate will go to 80% to 85%. ironically, some of the first impacted by the obama administration's new regulations are those who can least afford t you've heard that from senators on both sides of the aisle here today. and under the final rule, the coal strip power plant in

montana will likely be shuttered putting thousands of jobs at risk. we must take action and stop these senseless rules. i joined attorney general tim fox in hellen in a to announce that montana along with 23 states has filed a lawsuit against the federal government because of obama's recent decision. there are currently 26 states, the majority of the states in this united states through three different lawsuits have requested an initial stay on the rule. as leader mcconnell mentioned, in 2010 a democrat-controlled congress could not pass these regulations. the people's house stopped them. but now president obama and the e.p.a. are moving forward without the people's consent. i am thankful to partner with a bipartisan group of my colleagues, leader mcconnell, senator capito, senator inhofe, senator manchin, senator heitkamp in speaking out and working to stop this harmful rule. i am proud to stand here to join

them as a cosponsor of two bipartisan resolutions of disapproval under the congressional review act that would stop the e.p.a. from imposing these anti-coal regulations. coal keeps the lights on. it charges our iphones and will continue to power the world for decades to come. rather than dismissing this reality, the united states should be on the cutting edge of technological advances in energy development. we should be leading the way and promoting the use of clean, affordable american energy. america can and it should power the world. we can only do it if the obama administration steps back from these out-of-touch regulations and allows american innovation to thrive once again. to sum it up, we need more innovation, not more regulation

.nnovation, not more regulation . .

>> i agree with, your honor. the question of retroactivity is a pure question of federal law. >> i'm sorry, why don't you finish? >> that's the answer to your explanation or hypothetical. if the state decided choosing federal law, then what's the next step, and the next step the question is retroactivity which both the majority in danford said. >> federal statuto law. i thought that was the point of danford.

>> that's correct, your honor. if the state considers the merit of the federal claim and the merits are is mr. montgomery serving an unconstitutional -- >> your client would be worth off if you are correct, that is if the question comes up on federal courts decides it without any problem, but if the state court goes first, then the federal review is trunkated. >> while jurisdiction in this

court does not depend on what has occurred to far, it depends on what the court does decide. again, you can go to federal court or this court doesn't affect jurisdiction, and the question is -- >> but had you answered the argument, i suppose your right but victory is going to leave your client in a worse position. >> well, not if this court rules it has jurisdiction and makes a miller retroactive. at that point he wouldn't be going to federal court. the question is whether mr. montgomery is being healed unconstitutionally. a mandatory life sentence is unconstitutional. >> on the jurisdictional point. let me see if i understand what

you're arguing. a lot of state rules of procedure are modeled after federal rules of procedure and a lot of state courts simply follow the federal rules but they follow it as a matter of choice and not because they think they're bound by the federal rules. let's say that there's a disagreement in federal court about what federal rule of evidence 403 means, the state court says, well, you know, we are going to follow the federal rule and we think that the right course as between these two federal courts of appeals is the second circumstance -- circuits, we are going to follow the second circuits, we would have jurisdiction to review on a question of federal law?

>> if it was clear to this court that the state court made a conscious choice and sent enough of a signal to this court that it was adopting federal law, to use as state law, but in this case, there's no indication that the state supreme court of louisiana was making that decision. they said that we are -- our analysis is dictated, and in doing so, they found that they would not apply miller retro retroactive. >> suppose we hold that, we can review the -- the -- we have jurisdiction because the state court said it was going to follow and then we go onto say that miller can be applied on collateral review and then the case goes back to louisiana supreme court.

well, you know, we said previously in taylor we were going to follow teague. then, what will happen? >> i think louisiana will be bound to follow the court's ruling. >> why because it said that we would voluntarily follow it and taylor? >> i think they made the conscious choice to follow this court's laws. this court's jurisprudence. >> they changed their mind. >> they have chosen not to follow the jurisprudence. what forces them to stay where they were. it's a matter of state law. they decided we are going to change state law but they didn't do that in this case, your honor. >> not yet. but if we agree with you and then we send it back and they look at it and say, that's what

teague means, we are not going to follow teague, doesn't that make us look foolish, decisions that can be overruled by somebody else? if a state considers merits of a federal claim it must -- >> the question is what's a federal claim. standard versus johnson. >> i believe my friends -- >> do i have the name of the case? >> i believe my friend can probably answer that question a little bit better. the point i would -- >> are you asking us to decide the question with left-open and danford. it was a minimum, there could be a constitutional minimum but it

wasn't answering that question. are you asking as to answer that question. >> i don't believe you need to get to that question. >> let's assume -- all right. >> i'll reserve the balance of my time. >> thank you, counsel. >> thank you, mr. chief justice, and it may please the court. louisiana has voluntarily incorporated into its law a wholly federal standard and in this court's decision, most recently ohio versus rehner, when a state choses to federal law and binds itself to federal law, there's a federal question. >> they can change their mind,

right? you say voluntarily chose to follow it and voluntarily choose not to follow it anymore? >> that's right. what michigan versus long said is this court has jurisdiction under section 1257 to resolve state court resolutions of federal law and it will presume that a state constitutional decision of the fourth amendment will be binding, but recognized that the only circumstances in which the court will not treat federal law as governing both questions is when the state makes clear that it would reach the same result under state constitutional law as it did under federal law. it did not preclude the option of the state going back and reaching a different decision once enlightened by this court as to the content of federal law. standard oil is completely clear on this. it says the state chose to use

federal law to determine whether a federal exchange was a federal instrumentality and we are going to correct on federal law, on remand the state can now free from apprehensions of federal law decide what it thinks state law requires, and if it does that, then there maybe a federal constitutional -- >> should be pretty elementary, i mean, i looked at the indian case and that seems a little far out. the -- the -- definitely gives you support on your statement here. suppose you took example and we have iowa state rule 56, we interpret iowa state rule, we are doing it under iowa state rule, you say we can review that

because they said that iowa state rule is the same as federal; is that right? how do you fit that in the words of -- >> there's a theer -- theoretical answer and a practical answer. we will treat federal precedent as guidance in our decisions for value. they recognize that there are state rules of procedure and state rules of evidence that will belong. >> as they say in a particular case, it's guidance, it's great guidance, we agree, our interpretation is the federal interpretation. can we review that because, in fact, it wasn't the federal interpretation, yes or no? >> there was a case where the

court had jurisdiction. >> you're saying that the court does not in the federal rules of civil procedure? >> i think this is a stronger case. i'm doubtful that the court would have jurisdiction or exercise it, in the real world it doesn't happen. >> when you say that that's a doubtful case, i think you are acknowledging that if we adopt your argument, we are going to get that case and lots of similar cases and we are going to have to parse the words, the words that were used by the state supreme court while we are following -- we are going to be guided by it or strongly guided by it or adopt it, we are going to get all of those cases. why should we go down the road when there's perfectly available and possibly superior remedy available to the petition or following a petition.

>> that's not the way states treat their own rules of procedure. i don't think it would be very difficult. there's a principle in the court case, so -- >> mr. dreeben -- >> did you misspeak? your very careful, you don't make mistakes, but -- >> i think justice kennedy, this is what i'm trying to say. >> as federal law, then there's review, okay. >> the state has adopted teague that does not exist in civil procedural cases. the state knows that that federal law will be applied to the very case in a habius case. the state has decided

consciously to synchronize its law that it will know will be applied. this serves purpose. the state says if we have to rectify in a constitutional error in our case that's become final, we would like the opportunity to do it and if the federal court is going to treat as retroactive, we would like the first crack at it. >> you are saying that thereafter be bound -- >> no. there's an elementary reason why that's not so, justice scalia. state determinations on the merits. that's the only time that the provision kicks in. a determination under teague is a threshold determination that comes before the decision on the merits. this court has said that in any number of cases. it's not a merit's resolution on

the case. >> i was just going to suggest more on the merits. >> sure, justice roberts. it goes far beyond regulating the procedure by which youth are sentenced for homicide crimes. it compelled the state to adopt new sentencing options, an option that is less deveer than -- severe than life without parole. the only time that the court has invalidating a sentencing provision was woodson versus north carolina in 1976. so we went something like 36 years before we had another decision that concluded that the law must change to accommodate the compelling interest in having the characteristics of

youth that mitigate culpability considered in the sentencing process. >> would it be enough, is it snuff with respect -- enough with respect to the people on parole? >> yes, that would be the same remedy that court ordered in graham in florida case, the case that do not commit homicide but convicted of other crimes cannot be sentenced to life without parole at all. the court's remedy for that problem could either be a sentence of term of years, but it could also be life without parole sentence -- >> how do you explain how your arcticulation of your text wouldn't apply to the guidelines change that is -- changes that we made?

>> there was a minimum and maximum set by statute and the guidelines did not preclude judges from sentencing outside the guidelines depending upon the presence of aggravating or mitigating factors that weren't taken into account. as justice alito, even the top of a mandatory guidelines range was not truly mandatory. even under the mandatory guidelines for sixth amendment purposes were treated as offense, for the purposes that we are looking at here, they are not mappedtory in -- mandatory in the same way. >> what is the substantive difference between your formulation and petitioner's formulation? this is substantive because it did away with life imprisonment. you're articulating slightly

different. tell me why you see the difference and why your arcticulation? >> the description of the crime at issue as punishable by mandatory life imprisonment and treating that as a category, i think sums up the reality of what is happening. we broke it out into a component parts because it facilitates, mitigating characteristics of age, also contains a substantive component that required a change in the law. now the change here with expanding the range of outcomes, previously when this court has analyzed changes in the law, there have been change that is restricted the form of outcome, say, for example, forbidding finishment at all.

but i think if you trace back origins of substantive category to opinion many mackee. the clearest case of an injustice in not applying role is when it puts off limits all together of criminal punishment. he did not say it was the only case. if you consider what is going on in miller and the reasons for the rule the court made very clear that it believed of the 2,000 people in prison, the court believed that that penalty was disproportion and it was not a sentence that was consistent in most cases with the mitigating characteristics of youth that had been recognized in roper, graham and in miller.

>> would it be accurate that a rule is substantive if it makes a particular outcome less likely or much less likely or much, much less likely than was previously the case? >> probably the last, justice alito. >> muchless likely or much, much less likely? >> the court has said that a substantive rule creates a significant risk that the person is serving a sentence that's not appropriate for that person. maybe not even legally available for that purpose. did not say absolutely conclusively prove it. it said significant risk and in contrast when the court has talked about procedural rules, rules that govern the manner in which the case is adjust -- adjudicated it is speculative.

precisely because of the reasons why the court said it was deciding miller. the reasons why the court decided miller had to do with reduced youth and capacity of youth to ma sure change and achieve a degree of rehabilitation that is consistent with something less than the most harsh sentence available for youths who commit murder, terrible crime but still the harshest sentence for the worst of the worst, which was, in fact, what the louisiana said amended statutes to conform them to miller. life without parole should be reserved to the worst offenders who commit the worst crimes. when you combine that this is not only a rule that governs procedure, it mandates changes in outcomes as an available option with the very genesis of

the miller rule in conclusion that for the people in this class, the appropriateness of the punishment of the harshest degree, life without parole, uncommon, miller false -- >> and any states treated miller as retroactive? >> yes t majority of states close call. i think it's maybe about 10 to 7 or 10 to 8. the majority of states that have reviewed this have concluded that miller is retroactive. most of them have done it as a matter of substantive law. there are a couple of opinions that talk about the water-shed exception. juveniles sentenced before miller with life without parole and the resentencing of those

that have taken place so far, it's only been about ten, but those defendants have received sentences that are terms of years significantly shorter than the life -- >> what is the population we are dealing if motes do apply miller retroactively? i think the figure of 2,000 people with life without parole. >> i haven't broken it down -- may i answer? michigan has not applied it retroactively and has juveniles in the miller class and i don't think that pennsylvania has resolved. it's certainly not favorably yet for the defendants. >> thank you, counsel. >> mr. duncan. >> mr. chief justice, may i please the court, i would like

to briefly begin there. we are in an odd position with respect to jurisdiction. miller is not retroactive, we believe and still believe that this is a straight-forward case. it's not a standard long case meaning that the state court teague, now, there's no doubt that in the previous louisiana supreme court opinions that the state said we were adopting teague. and why do we say it doesn't? well, because in cases like coal -- colemanb thompson.

a federal court could not affect the judgment, is it a risk of advisory opinion. here we don't think there's risk of advisory opinion. of course, it is within the realm of possible. we doubt it's going to happen but it could happen. well, we've seen what you think about teague and adopt retroactivity standards. does that make the court advisory? we think not. cases like johnson where the state was under no obligation to -- >> in standard oil, this is a quote from the opinion. the relationship between post exchanges and the government of the united states is controlled by federal law.

>> right. that's right. my point justice scalia. that was embedded in a tax exception statute. certain taxes exempt from the statute. >> that would have been true no matter what the state did, right? >> deciding a question of federal law that would have applied on its own? >> with respect to standard oil, my point is that the state didn't have to make tax-exempt status. >> don't you think that the state made tax exception law turn on federal law because there are federal constitutional requirements in that area? could the state have taxed, i mean, there's the question of whether or not the supremacy

clause -- >> it's controlled by federal law. that's what our opinion said. >> brought the case of ohio where state made transaction on validity of fifth amendment privilege. this court addressed that embedded and discrete federal issue. >> mr. duncan, isn't it quite spectacular when justice scalita used that supreme court has used similar language. it's only dictated because they chose to dictate it by teague, once the choice is made autooutcomes are dictated by teague. same issue. >> we agree with that. it's quote unquote binding within the meaning of binding federal law because the state has chosen to do it and it never

showed that it wouldn't do it. we think that -- if the court disagrees with that on that -- >> was there any other way in the state could have obtained review of the state supreme court's determination that the witness in question there did not have a fifth amendment privilege because she said she didn't commit the crime? >> i don't think so. >> you don't think that's a distinction between that case and this case? >> well if the teague standard is a discreet federal standard that the state has made as incorporated -- the louisiana supreme court could -- the defendant could go to federal, sure, and could get an interpretation that way. it might mean that this could would wait, you know, for, i don't know, more robust split to develop and take a federal case

that way, in this federal case, the second reason why we had strongly contested jurisdiction at all, there's a robust split on this specific issue that extends to something like 21 state and federal courts. they're all deciding the same federal issue. it seems to us that as a practical matter, this court ought to weigh in, it is going to weigh in sooner or later. >> when we have jurisdiction. you don't think that doesn't matter at all? >> of course. >> what you said doesn't really make much sense. >> let's get in there quickly whether we have jurisdiction or not. you're not saying that, are you? >> no i'm not saying. there's no independent state ground this court has jurisdiction to decide the question. otherwise it's going to have to wait for a federal habius case. proceeding of the merits, in miller this court was invited, we -- >> we clearly have jurisdiction.

we have jurisdiction where there's a person, that's the defendant and says the court's decision, your court's decision is contrary to the constitution or statute of the united states. that's just what they say. jurisdiction of the case. the question is how do we dispose of the case. >> we agree with that. >> in three instances, i guess, the court has done in disposing of such a case what the solicitor general says, namely they have said we are -- we are not going to say whether it's right. contrary to the constitution. that's because there might be inadequate state ground or might not be. inadequate state ground that was explained as being flowing from a certain interpretation of federal law. we will say their interpretation of federal law was wrong and now we will send it back to see what they do.

>> the cases -- >> is that right? >> that's our position. by the way -- >> what is the federal law that you're talking about? that's not a federal law. >> well, the interpretation -- >> teague is an interpretation of that federal law. was that federal law at issue in this case? of course, it wasn't. >> exemptions could well be constitutionally required. >> we don't take a position on it. >> you want us to hold that in this case? >> we don't want you to hold us in this case, your honor. >> could you tell me why you would think that something like atkins would not be retroactive to states as a compulsion, meaning not by election of

teague retroactivity? were danford made clear that teague is an interpretation to statute. the court left open whether the exceptions were binding. understanding of how he thought federal habius ought to apply. the question state constitutionally to offer that remedy and this court has recognized in the case of pennsylvania, states have wide discretion in structuring postconviction. >> you have why discretion to structure as you want, but if you structure it in a way that

you're going to say i'm offering due process, isn't there a check, substantive check of due process of the minimum? >> that is the question. ..

that decision leads directly to the conclusion and harvey miller is not a substantive rule. consideration of the framework, policies and president clinton stated conclusion miller is a procedural and substantive rule. so we think it sets up the framework. >> can i give you a hypothetic hypothetical? suppose there's a state and it has a mandatory minimum for a theft. it says the mandatory minimum for that is 20 years. suppose a court looks at that and says, you know what? that's incredibly disproportionate to a lot of that, and so strikes the mandatory minimum. you just can't have a mandatory minimum by that, make it lower. would that be a substantive ruling? >> we don't think so because the mandatory aspect of the coast to

the manner of imposing a penalty. >> it does not go to the manner of imposing. what it does is it just increases the range of sentencing possibilities. it leaves it to the courts. it says nothing about what factors ought to be taken into account. nothing about that at all. all it says is you can't have ha mandatory minimum of 20 years for that, make it lower. >> if in a hypothetical that doesn't go to the matter of imposing the penalty, then it is different than miller because the mandatory aspect of the penalty goes to the manner of imposing the penalty, not something substantive. >> if you are saying that sticker because there was something else in miller, there is something else in miller. there is a bunch. there is a process component of miller, no question about it, what the court says courts are supposed to look at are the characteristics of youth and are

supposed to try to figure out whether these terrible crimes are functions in part of immaturity, or not, whether you really are looking at a in portugal defender. so that is the process component but that component does not take away the fact that there is a completely separate, self-sufficient opponent as to what the range of punishment has to be. that's completely on all fours with the hypothetical that it gave you. >> justice kagan, the relevant difference in terms of the teague analysis is that this court in miller did not take the punishment of life without parole. no, off the table. disgorgement held that a non-categorical rule is substantive under teague. it's done it for good reasons because that would fly in the face of the policies that conform the teague analysis. >> you're exactly right. it did not take the punishment off the table but similarly a

20th sentence for theft has not been taken off the table here what the court has done is to say the house to the other options. it has to be an option of 10 years or five years or two years, whatever he does. so they've expanded the range of possibilities. they have just made this is different because the sentence is defined both by its operate and invite its lower end. so they've made the since different. >> understand that. making the since different doesn't necessarily make it subsidy under the teague framework. a juvenile murderer who committed murder and is serving a life without parole sentence today, free miller, is not facing a punishment that the law cannot impose on them. we know that because miller said the court decision does not preclude the punishment. so that goes to banality. the finality interests underlying convictions do not yield where the state still has the power to impose that punishment. analogy interest yield, justin

harlin explained in this court adopted in teague, banality interest yield only where the state lacks the power. the state no longer can impose that category of penalty. if somebody is in jail because they're accused of being a witch, and the state has no financial interest in keeping a person in jail. but by the same token if the punishment is death for a juvenile, the state has no financial interest in doing the. leaving the punishment on the table is crucial. it doesn't take it off. it's not substitute. the second policy reason for teague is avoiding the adverse consequences of retail. we think miller is more clearly not substantive under that standard because categorical rules applied retroactively, justin harlin explained, because they don't care the adverse consequences of regional. it'll make you go back and

unearth old facts and drain state resources and come up with distorted retrials. milberg envisions a fact intensive hearing that considers multiple characteristics at the time of the crime. >> you don't have a distorted neutrality futures grant april hearing. >> that's right. you have to give them april hearing orson meaningful way of release. miller is about the step before whether to give april hearing, whether the person can be eligible for parole at the outset. that's inquiry we're talking about and that's quite different from a parole hearing. the fact of the matter is that applying miller retroactively inevitably turns the retroactive miller hearing into a parole hearing which shows that doesn't quite work in terms of adverse -- >> you are going to say, at some

point you started, suppose you look at the watershed procedural change. my impression from the case you cited is that deciding whether drug activist to part. i think we were unanimous on this point. the two parts were is it implicit in the concept of ordered liberty, it would seem to be because it's applicable to the state. the second is is essential to an accurate determination that life without parole is a legally appropriate punishment? the rule that a mandatory can't exist is central to making that -- that was the whole point of the miller thingy. so if that's the correct analysis for watershed rule, procedure rule that retroactive, if i'm right about that, why doesn't it fit within a category. >> it's not just implicit in the concept of ordered liberty. the way the watershed was been stated, the first prong is it

has to alter our understanding of bedrock procedural elements necessary to fundamental fairness. this is the strange case defined that because know it's a does represent a bedrock revolution and sentencing practices. it takes since in practice from another area includes interesting area. it's not a wholesale discovery of a new bedrock procedural element the way we had in a case like gideon v. wainwright. i think is court explained that is not enough that the rule be fundamental in some abstract sense, but has to itself represent a change in bedrock procedural understandings. we don't think miller does the. we also don't think it's necessary to an accurate determination. it would enhance the accuracy of the sins but is not necessary. the other point, this court has never held a pure sensing will can qualify under watershed because this court has on many occasions said they watershed will is necessary to the

accurate determination of guilt or innocence and here we're talking about a sense. we agree with the united states the watershed procedural analysis is not the way to go but it does raise an interesting question. in summerlin, we do part company quite strongly from the united states when the united states says we need an outcome expanding alteration to the definition of substantive rules under teague. we say that's not just a slight tweak to teague. what that is is a change in the understanding of what is substantive rule is. substantive rules under teague analysis have never depended on frequency with which new outcomes might come about under the new procedures. in fact, in summerlin, this goes back to my original point about the framework, summerlin explained a criminal defendant under procedure rule does have the opportunity of getting a more lenient outcome under the new procedures. and nonetheless summerlin said that such procedure rules are

not applied retroactively. justice alito come as you think the difference between substantive and procedural is not whether it's very likely or very likely to result in a new outcome. it's about whether the new rule categorically removes the part of the state to impose a category of punishment. that's what a categorical rule does. that is not what miller does. miller makes press an expectation about the way that miller hearings will come out. that may or may not come to pass in the future, who knows, right? we can point to cases were criminal defendants have had miller hearings and a still received life without parole. i can point to several in particular from the state of louisiana, but the point being is the idea changing outcomes which is what the united states entire argument depends on is built in a procedural side of teague and not the substantive side. >> i think not.

i think by your own definition this this on the substantive side. you said you categorically remove a certain outcome. that's exactly what miller does. as long as you understand a sentence, which i think you agree with, as defined both by the upper end and by its lower end, what the court said is that sentence which was the mandatory lwop since cannot control for juveniles. there has to be a different sense, one that includes other punishments. that increases the range. >> miller quite clear he said as you know justice kagan that it does not categorically bar a penalty. what did he mean by that penalty? >> it allows something within the range that it is complete changed the range that is given for any juvenile defendant. the range is important.

it's not just the top in. this is what we said, which can think about a sentence without thinking about both parts of the sins, both maximum and minimum. when you decide whether a substantive change in that sentence has been made, you look at both the maximum and minimum. >> look, i hope this is responsive. i think after miller we were the two categories on the table. we would see of life without parole and a life with parole, for example. my point is that miller does up in the first category and that is determinative for whether something is a substantive rule or not. >> i would not describe changing the range of sentences available as changing the sins. >> it puts an element on the table i think is the most you could say. >> it doesn't change the sins necessarily. we still get the same sins. >> here's what we said last year. we said it's impossible to disassociate the floo four other sensing range from the penalty affixed to the cry.

similarly we said criminal statutes have long specified both the floor and ceiling of sensing ranges, which is evidence that both define the legally prescribed penalty. that is the penalty. it's the range. >> life without parole has the same floor and ceiling. what miller does is create the procedural circumstances for putting a new penalty on the table, each is, that's the point of the united states argument. there's a new possibility. or point is say that putting a new possibly on the table doesn't take with us its power to impose the old category of punishment. >> i know we could never look at this issue. i'm sorry, reading the wrong one. i apologize. do you really think that any state would have not applied woods and retroactively? they all did. >> probably not, your honor,

but, of course, it is a pretty teague to speak of raises the question, is what's in substantive or procedural under teague. our argument is it's a procedure rule. >> it just said you couldn't have mandatory death penalties, just like you. you can't have mandatory life without parole sentences. and to give sentences less than mandatory death. but they could have still given death. >> they certainly could have so the question is whether it's substantive or procedural under the teague were brick. i think the most we could say about is it's not substantive under teague for the reasons we've sent. malcolm raise the question, is that they watershed procedural? >> but that's the language from bedrock is i don't think the right language because that was the language he referred to any sins in mackey, correct? i've just been looking at a.

but then in teague itself, justice o'connor tries to get the right words, what she ends up with your is that the procedure is the first test, the first part, can be addressed by limiting the scope of the second exception, that's the watershed rule, to those new procedures without which the likelihood of an actor conviction is seriously diminished. >> that's the first one. >> that's joined by the chief justice, justice scalia, in the fourth i can't remember. so is it a seriously diminished? now, we read through miller. it's very hard to say, i mean, my goodness, miller is just filled with paragraph after paragraph about how a mandatory requirement for life without parole fails to take account of all the characteristics or many characteristics adhered to use. it's pretty hard to come away

from that without thinking, gee, accuracy under mandatory life without parole is seriously diminish the accuracy of imposing life without parole when you apply the mandatory to a youth. >> every eighth amendment sensing rule goes in accuracy in some significant -- >> a chat to say the accuracy is seriously diminished. and she says, that i don't think there will be too many such cases. >> we haven't talked about the capital sentencing cases but take a case like codel where the capital journal is not in front the defendants parole in the chippewa considering future danger. one could easily say the accuracy of resulting deaths since under the old rule would've seriously diminish. and yet the court said in o'dell that is not a watershed procedural rule. you can go down the line with all those cases, the bearded case and the slider case, cases

in which the defendant could've said seriously diminished accuracy. and yet the court found a watershed will. the bedrock is what the work that this court is used in referring to that exception. spirit is there any watershed procedural other than getting? >> this court has said it is doubtful that any will emerge. we think this case is an impossible case for any watershed rule to emerge, since this rule is not creating, it's not a revolution in bedrock understanding a procedure. it's an incremental step in sentencing juveniles. in a case like crawford is not aware should procedure will, then it's difficult to understand how this one would be. >> we have one brief that tells us this court has never part of punishment is cruel and unusual under the eighth amendment, but refused to make the decision retroactive. is that so?

>> that are cases that take the case that refuse to make retroactive the rule in caldwell versus mississippi. that's an eighth amendment case to go to the accuracy of a capital jury sentence in determination death. we take issue with it. just a few words about the united states proposed expansion of teague. it would ship the whole focus of what a substantive rule is for mechanical nature of the rule to the affected row. so any defendant in thi in these capital sensing cases which has been talked about, o'dell and sawyer and. without the argument handed to them by the united states new rule that says that new rule gave me the opportunity for a better outcome. i may not have the death penalty if my jury had been properly instructed. we don't understand how the united states neutral in this case can be cab and only tormented rescinds is taken off the table.

>> i think you yourself cabinet it when you said the difference, there some category of cases which to refer to process, july decision maker makes a particular result. another category of cases which referred to with is called substance, which is what results are on the table? what category of punishment is on the table? that's the difference between this and all the other kinds of things that you mentioned. this is not about the how, or it is partly about the how but there's also but what punishments are on the table. >> i just have to push back on the premise a little bit. our position is not a substantive rule. a substantive role is or what i state categorically no longer has the power to impose a category of punishment. it's clear from the miller opinion that the relevant category is life without parole. the state still has a village impose the punishment and that's a sharp distinction from what a procedure rule is and the united

states new conception of a substantive rule is what poor that. they would call into question all of the capital sensing cases. my reaction is, but booker is a matter of the sixth amendment make a sentencing guideline nonmandatory. additionally, opened up new sentencing outcomes. by what reason could a federal habeas petition are now under the united states new test booker is director of -- is no retroactive, or alleyne for that matter. why couldn't the federal defendant said not to get the benefit of the rule retroactively? our position is those cases are clearly procedural, as this court explained in summerlin. they are clearly procedural. what the united states would do is blurred those categories. if there are no further questions. >> thank you, council.

mr. bernstein, you three minutes remaining. >> with this fantastic discussion has shown is why the court as it always has in the past should keep the teague exceptions and matter of equitable discretion rather than constitutional requirement. the court has much more freedom on the matter of equitable discretion than it does on a constitutional requirement. there's no way to look at the par precedence of the court in teague in any of the scorched is a here's what are equitable discretion is. the discretion is. elite media productivity is when the constitution requires a. it. that would've been a really short opinion here and that was not that. now, to turn quickly to the cases that inside the. the critical difference between this case on the one hand and the three affiliated tribes on the other hand, is that jurisdiction under the statute is questioned by question under murdoch. the question of whether the defendants conduct had violated

federal drug labeling laws was a federal question. the court never would've gone on to say, and we're also going to federalize everybody. we're going to decide whether it's lost profits or out of pocket costs are similarly, in a three affiliated tribes, there was no question that there was a federal statute that limited state court jurisdiction. the only issue was the scope of the statute. here we have the opposite. there is no question the federal statute does not apply to the state court, and yet people say you should decide the scope question, even though the underlying issue may be one of state law. finally, to solicitor general's new cake and eat it too argument that there's going to be review in this court and a review on habeas, the statutory language is pretty broad. any claim that was adjudicated on the merits in state court proceeding. the only claim in this case is

remedy. this case was filed after miller was decided. the only issue in this case is redress. and it would be a very wonderful turn if you could say on the one hand that 2254 doesn't apply, but on the other hand, 1257 applies when it requires a quote, right claimed under federal law, which dates to your question, justice kagan. is it enough that a state court says we voluntarily want to be bound? the best answer to that is not only in the cases i would recommend, which is cited in merrell dow which goes out of its way to show a federal law binding on the interstate commerce conduct in that case before saying the court could review it, but it's also point in the language of the supremacy clause. lighting federal law means binding in all 50 states, and that's why the statute also says

right under federal law. thank you. >> mr. pleasants, you have three minutes remaining. >> i'd like to make two quick points. first of all in jurisdiction, resolving this case under teague a pointer sisters constitutional question of whether due process requires retroactivity for miller. a second point on the merits. miller said that juvenile homicide offenders should not have to die in prison with no chance for rehabilitation and no consideration of youth. that's important will change the substantive outcomes available. indeed, this court said a life without prison should be uncommon. the individual since before miller, that remains about 1500, deserve a chance at redemption. thank you. >> thank you, counsel. mr. bernstein, the court appoint you as an amicus curiae brief and argue this case against this court jurisdiction. you have a fully discharged that

for which the court is grateful. the case is submitted. >> the house vote this week on who will replace john boehner as a speaker. paul broun speaker. paul broun has the support others republican caucuses are congressman daniel webster of florida also running. that you be conference holds a meeting today at 1 p.m. eastern to choose their candidate, then the full house voted thursday. c-span has your best access to congress with live coverage from capitol hill. in the closing months of your house and senate several key items to address. on thursday it's the vote for the next speaker of the house. aisha my colleagues what i think success looks like. what i think it takes unify and lead and to my family commitments come first. i have left the decision in their hands. and should be agree with these requests, then i'm happy and i'm

willing to get to work. >> the deadline for highway funding bill impacting roads, bridges and mass prime minister projects across the country. in early november the nation will reach into debt limit. in december temporary government funding will expire with the possible shu have it shut down n the horizon. stay with c-span, the coverage of congress on tv, on the radio and online at c-span.org. >> it's a touchy business think "the sun" or daughter of a decade or. you wouldn't wish this kind of like on most people really. so it's a collection of very interesting sometimes lurid stories. but the are also point about tierney, about sun shipped or daughter ship, about loyalty, about nature, nurture. about politics. they knew about democracy. >> this sunday and on cue and a

-- on q&a. >> i was able to talk to some module people. i couldn't talk to any family members, which was usually the case in the preparation for this book that are only so many around to talk to and only so many willing to say what they know or to divulge their feelings or experiences at all. i was digging around for any scrap, anything that i possibly could because these sons and daughters, most of them, some of them are famous and important to some of them become to cater, but most of them are footnotes in the sides. -- nihcm dictator. >> sunday night on c-span's q&a. >> and now live to london british prime measures question time. each week the house of commons is in session we bring you prime minister david cameron taking

questions from them is that the house of commons normally seen live wednesday mornings at seven eastern on c-span2 but due to daylight savings time questions on airs this week beginning at eight eastern. we invite your participation via twitter using hashtag pmqs. prior to questioned by members are finishing up other business. and now live to the floor of the british house of commons. spent an obligation of the role. >> first of all i think we can be proud of what the uk did in shaping those, led by the prime minister. in relation to the uk, we meet many of the goals. we will now work on them domestically. >> that i perhaps ask my right