>> that's a valid interest, correct? >> correct. >> well, if in a case like this where there's a 45% deviation, something of that order, then why isn't texas required at that point to to recognize that these

interests that are legitimate under the constitution which are voter-based should not be accommodated and so that you should at least give some consideration to this disparity that you have among voters? >> well, first off, the court in gaffney upheld the use of population while recognizing that there could, there was -- in new york at least, a different state -- a 29% voter definition. yet the court said it was quite sure that a prime prima facie cd not been made out. to while a state does consider representational quality and electoral quality, the equal protection clause as general language doesn't mandate that either must take precedence over the other. so, of course, it would be legitimate for the state to look at that data. at the same time, and we have federal census data which is the most row best -- robust data set

available, it is not be invidious when it reapportions, and all we have under the census data is total population data. >> all we have, and that's why i think justice alito's question is important. a table on page 9 of the blue brief, just looking at that table by inspection, i don't know whether this is true or false, but i thought the major difference between the two here is probably that some areas of the state there are a lot of people who are working, and they have children. i mean, it can't all be explained on the basis of illegal immigration or something, it just can't be given those numbers. i don't think so. and if we accept the principle that it's voter equality, we are saying that the family of two of a certain age that has eight children or whatever is getting no representation for those other people or human beings.

and if we accept the opposite, we have to put up with inequality of power of voters. you have to, you have to say the one or the other, and you could take your position. it's up to the state. but, i mean, that seems to me to be what's actually behind the numbers that are being quoted, but i'm not sure. so i'd like your reaction. >> justice breyer, i believe there's a difference between diminishing access to representatives and actually having representation. the united states has said that if texas or another state reapportioned on the basis of voter population, that nonvoters would be invisible to the isn't. that's not -- to the system. that's not right. they would still be represented. the issue does a state have to have the same amount of constituents per representative, and a state can do so -- in.

>> that sounds an awful lot what they had in 1750 where the british parliament said, don't worry, america, you're represented by england. i mean, the people are being represented through somebody else is a little possible but tough. >> well, for instance, a child in my congressional district would till be represented -- still be represented by that member of congress. so the issue is really diminishing access to the representative. and while that's a legitimate basis for a state to reapportion under, there's no equal protection principle that would elevate that as a rule of constitutional law that would say the state of texas invidiously discriminated. >> why is one option exclusive of the other? why can't you have both? you have population equality and voter equality both? especially when you have indicated that a voter-based apportionment is valid and

serves important purposes, and here it's being completely -- it's being substantially disregarded with this huge deviation. why can't you use both? >> first of all, there's been no demonstrative plan that was submitted to the texas legislature or to the district court that both of these could have been equalized within 10%. indeed, their demographer didn't specify the extent of the deviation. their demographer simply said, well, the deviations can be reduced. if the court were to try to go down the road of requiring states to equalize within 10% of a deviation, states would inevitably have to disregard many other traditional districting factors like keeping communities together, and that would be the opposite of what the court has said that states have in this context which is the leeway to structure their elections as part of a core function of their -- >> that sounds highly probable to me. has anything been written on this, any studies on this?

in the context of texas? >> i don't believe so. we're not aware of any. and we're also not aware that this would be practically feasible. indeed, if they had a plausible allegation that this was possible, we would have expected to see a demonstrative map at this phase of the litigation. >> do you have any idea how often this is a problem? it is a case that, of course, around the country people use total population, but it seems to me that there will be a lot of areas where in terms of the actual numbers it's not going to make a difference. do you have any idea? >> i believe new york's amicus brief suggests that in places such as california, alaska, possibly new york, certainly new york city the issue will absolutely come up. however -- >> only in those particular handful of -- >> there are a few more examples. by no means would this necessarily be a problem everywhere. however, if there were a rule that a state had to consider voter population, that would change the nature of

redistricting. >> what if it were, you had the same minor or de minimis deviation allowed there? in other words, if you're within the deviation of total population and voter population was within under 10%, does that take care of many of the areas where it's a problem? >> well, mr. chief justice, for the reasons i just suggested to justice kennedy, i believe that would be quite an onerous burden and change redistricting. could there possibly be a situation out there in which a plan might be able to get within a 10% deviation of total population and a 10% deviation of the five-year rolling average sampling in the american community survey? maybe. i'm not aware of any such scenario. and to back out to first principles, i don't believe that would be a test of invidious discrimination. that would be moving much further in the direct of impact which the court has never determined to someone's power is

being fenced out of the political process. >> could you explain why the acs, your adversary, says acs is fine, used in section two and section five. why would it be inappropriate to use it in deciding the impact on an equal voting analysis? >> well, our position is that if the acs data is reliable enough to hold the state liable under section two of the voting rights act, it would also be reliable enough to use in apportionment. now, there could be issues about the granularity of the data. we do get five-year averages about 5-600 to 3,000 people. the smaller you would get for district levels depending on if you're a city plan as opposed to our state senate plan, there may be issues where you couldn't use the data to get within the 10% deviation.

but certainly in larger districts, you could use the five-year cvap data and could get within the 10% deviation. of course, we're not constitutionally compelled to because, as court recognized in burns, that is up to the states in choosing a legitimate population basis. if i could briefly address the united states' argument on section two of the voting rights act. we disagree on this point. section two of the voting rights act does not protect nonvoters, and earlier when we discussed section two, i'd like to return to that to cite to the court the amicus brief on page 26 because i believe this cuts against the united states' theory on sec two. if the minority group has very low rates of citizenship, then the reticketting plan is not to blame for their lack of representation; rather, their lack of sufficient voters is. so the united states' suggestion that there could be packing or cracking claims of communities that have nothing to do with packing or cracking voting

blocs, that is a an incorrect interpretation of section two. it is not consonant with the tax, and it would render section two unconstitutional if not congruent and proportional with the right to vote that is being protected. if the court has no further questions, thank you, mr. chief justice. >> thank you, general. >> mr. chief justice, and may it please the court, redistricting on the basis of total population as texas did here vindicates the principle of equal representation for equal numbers of people that is at the heart of reynolds and westbury. we thus agree that texas was not required to redistrict on the basis of some as yet undefined measure of voter population. however, we disagree the court should go on to decide that

texas is free in the future to district if it so chooses. there are, in our view, at least four reasons why voter population cannot be required. first is the one mentioned by justice kagan. we think it would be a very odd interpretation to say that the constitution forbids for state legislative redistricting what it requires for congressional redistricting. second is the very long history of states redistricting on a basis other than, other than voter population. at the time of the framing of the 14th amendment, there were the vast majority of states redistricted on other than voter population. in the wake of the 14th amendment, congress and the apportionment acts required districting on the basis of inhabitants and, of course, over the last 350 years -- 50 years states have redistricted on total population, not voter population. third are the data problems, and they are real. the acs data has a number of limitations. first of all, it is not constitutionally required,

unlike the census. it would be very odd, we think, for the court to demand as a constitutional standard data that does not even have to be collected. second, it does not measure what the plaintiffs suggest is required. it is not a measure of voter eligibility. cvap does not include citizen voting age population, for example, does not include felons, overseas voters, the mentally ill. that kind of data just doesn't exist. and third with respect to the data, picking up on justice sotomayor's point, the data in the acs does not exist at the level of granularity, accuracy and timeliness. to be clear, the data does not exist at the census bloc level which is where districting happens, it is not issued on a timely basis. the census data comes out, for example, in april 2021, the acs data comes out in december, and it has data from 2016 going forward. >> that's often used for section

two. >> your honor, it's used for a very different purpose with respect to section two. it is uses an one factor among many to determine whether electoral opportunity has been given. so it's used along with population data, voting data, turnout data, a whole variety of socioeconomic factors. it's very different than this court saying every state and thousands of local jurisdictions throughout the country have to use that data as the sole measure for redistricting. i'd like to get to -- >> i ask you this? be who has standing to bring a reynolds v. simms claim? is it anybody who is counted in the census? >> your honor, that was noted and reserved in baker v. carr and footnoted in 23, and westbury, of course, has the exact same rule. we think not much turns on it because as a practical measure, you can always find a voter in the district. but let me explain why we don't think it's dispositive here --

>> so are you going to tell me who has standing or not? >> yes, your honor. we think that it is, we think that the better understanding is that a nonvoter have standing, but here's why i don't think it matters. because you can view our position as through either lens, through a representational lens in which what's happening is that the reynolds v. simms right is a way to insure that all perps covered by the equal protection clause, each those who cannot cast a ballot, sill have a voice -- >> that includes everybody who was counted in the census. >> yes, your honor but let me say -- >> it includes aliens, it includes prisoners, it includes undocumented -- >> let me explain why -- >> does it include all those groups? >> i'm sorry, your honor? >> does it include members of all of those groups? >> we think it might, but we think you don't have to agree with that to rule in our way. as we said on page 14 of our brief, and we think this is important, as a voter right.

the way to think about this as reynolds did was to view this as a right -- consistent with the way reynolds thought about it was to say that when you have quites the representatives -- twice the representatives, twice the inhabitants in a district, you get half the vote. what reynolds said was that, of course, it would violate the constitution to count somebody's vote as two or fife or ten times. but then the next sentence, of course, the effect of state legislative districting schemes which give the same number of representatives to unequal number of constituents is identical. that is exactly the point we're making here. and if i could pick up then on justice kennedy's and the chief justice's point about why can't you do both, the reason is very much we agree with general keller. the problem with doing both is it largely eliminates a state's flexibility to deal with the traditional redistricting factors. what you are forced to do is take a large, for example, anglo population in one part of the state that has high citizenship rates and pair it with a

situation where it has, with populations that have low citizenship rates in another part of the state. or to take an example from the amicus brief, manhattan has 99 % children, brooklyn has 30%. if you have to do both, what you're doing is pairing people from part of manhattan and pairing them with part of voters from brooklyn. what ends up happening is to do both at the level of 10% is to eliminate a state's ability to take into account things like political subdivisions, to take into account compactness and all of the other things that this court has said is critical in redistricting. as to the chief justice's question about whether this is a big deal or not, whether -- big deal isn't the word, whether it would have a large practical effect, i assume that's why we're here -- [laughter] i think the answer to that is yes. what we're talking about is not just 50 states, but thousands of jurisdictions around the country, local jurisdictions, none of whom use voter population as a measure for redistricting.

what the amicus briefs show is this is not just a situation in which states are affected what there are citizenship differences between citizens and noncitizens, but that children actually are a critical part of it. it's not just that manhattan is 9% and brooklyn is 30% children. in texas the amicus brief suggests counties range from 9% to 35% in other counties n. alaska the difference between rural and urban is 20% children in some and 37% in another. this is an issue that is going to affect states and local jurisdictions throughout the country. and local jurisdictions, to be clear, don't have the data at the level in which this court would now be requiring as a constitutional matter. now, i'd like to pick up on one other point that plaintiff's counsel raised which is that, in his view, it's quite unclear as to what westbury actually holds.

we think that is a fundamental misreading. what westbury said was that the method of apportioning or allocating representatives to the states had to be the same as the method for allocating within districts in a state. that was the reason. westbury said the great compromise had to be reflected into redistricting. that principle in westbury was exactly the principle that then the court adopted in reynolds. what the court said in reynolds, it was westbury that clearly established the fundamental principle of representative government in this country as one of equal representation for equal numbers of people without regard to race, sex, economic discuss or place of residence within the state. so it is precisely that same principle from westbury which looked at the, looked at the framing and looked at the discussion of, calculation of representatives at the framing, which looked at the drafting of the 14th amendment and took that history -- >> you making the argument that

voters are irrelevant? >> your honor, i don't think that our argument is voters are irrelevant. first, of course, the question here is when texas has chosen to use total population, is that permissible? we think that clearly is. second, we don't think voters are irrelevant for the reasons that i've said. what reynolds did was -- and the reynolds line of cases -- was to use total population to vindicate the voter's right. it is a voter's right, because reynolds understood that when you have twice the inhabitants in the district, you have half the voice before your representative. >> what would you say about -- [inaudible] i mean, your time is going to expire, an extreme case. and maybe this would never come up, but what if i did? suppose you have a rural district, and suppose it's a state where the total number of, the total population per district is fatherly small. -- fairly small. you have a huge prison and very few other inhabitants. and you have a neighboring district that has no prison. so in one district you have that

10% of the population are eligible voters, and the other district 90% of the population are eligible voters. that would be okay? >> so, your honor, two points in response. first, this court has recognized -- and we don't dispute -- that census data isn't the sole data. a state can, and this court approved it, more accurately capture actual residents in the state. we think that's what's been happening in hawaii, and remember in ma hand what virginia had done was count all of the navy personnel as home ported which is what the census had done, and the court said you have to make an adjustment to that. thank you, your honor. >> thank you, counsel. mr. constable, you have four minutes remaining. >> thank you. justice breyer, to your question about representation of children, if that were the principle of reynolds against simms in a statewide election, a state could give five votes to a family of five and one vote to an individual.

>> i'm just thinking that i'd like to know before knowing whether this is mandatory or not your position. i'd like to know an awful lot more than i know about who these people are who are being represented on the representational theory and who are not being represented on the voter theory. >> in each -- >> i don't know who they are from the briefs and, therefore, it's pretty tough more we -- >> the data shows it's a mix of noncitizens, children, all the categories. it's a mix. there are churn involved, of course, but our point is more fundamental -- >> legal immigrants. >> some, but not the state has chosen not to vote. these statements can enfranchise these people and give them the vote. the states come here to say we do not want them to vote, but we want them to count for districting. that should be rejected. second -- >> quite accurate. for most states, too many, they

disenfranchise prisoners. except for those who come from that locale which is quite rational. most states disenfranchise the mentally ill. so how are they going to -- who else are they going to disenfranchise? >> i'm not suggesting, we're not suggesting we should choose for the state who they allow to vote. we are arguing we should not allow the states to come to this court and argue that they should get the benefit of counting when they make the choice, that is their bright, to disenfranchise them. you cannot disconnect this rule from voting and allow it to stand up. the whole thing collapses. westbury has the famous sentence now that says all other rights are ill rusely if the right to -- illusory if the right to vote is taken away. the authors of that sentence would be surprised to learn that the one person, one vote rule has nothing to do with voting. all eligible voters but 30 of them into one and give even

other earn -- each other person their own district, that plan would be sustainable absent racial or political discrimination. the state comes in the say we know we can't do it, but we'll never try. that's not how one person, one vote works. the state by state law forced themselves not to try this by saying they weren't allowed to. if they were told by this court that they could at least, to your point, justice kennedy, do both, they would go back to the drawing board and try. justice kennedy, it will not be traditional interests like districting or county lines or anything like that that will inhibit them. it is political and racial gerrymandering that they want to do and that our rule and especially a rule balancing both will stop them. and we don't know that abstractly, we know that from the case the court heard just before with us. districting, the actual deviations in arizona, the hypothetical case. they are claiming an 8% deviation. on page 26 of their own

statement they concede that the cvap are 54%. and in district eight, it's underpopulated by 22%. if arizona had to go back to the drawing board with their districting commission and accommodate at least voter but at least or maybe both, there would be no opportunity to engage in the political and racial gerrymandering. that would not involve in the court in those issues anymore, they would be solved legislatively, as they should. section two does not work, as justice scalia points occupant, there's nothing to measure against if one person, one vote doesn't protect voters. it's a baseline. the baseline is equal voting power of voters absent discrimination. it completely unravels. >> thank you, counsel. the case is submitted. >> the head of the national security agency will testify about the nation's cyber infrastructure. admiral michael rogers will be

at the senate armed services committee this morning, and we'll have are live coverage at 9:30 eastern on c-span3. >> campaign 2016 continues today with the wisconsin primary. live coverage begins tonight at 9 eastern. tune in for complete election results, candidate speeches and viewer reaction. talking you on the road to the white house on c-span, c-span radio and c-span.org. >> the book tells both the story of the fact that the manuscript, this national treasure, isn't what we thought while also trying to chronologically think about what was madison encountering at the time. and keeping those two narratives straight was quite tricky for a while. >> sunday night on q&a, boston college law school professor

mary sara builder discusses her book, "madison's hand," which takes a critical look at the notes james madison wrote during and after the constitutional convention of 1787. >> madison took the notes on sheets of paper, and he folded those sheets in half, and so he writes on front, across the middle, on the two pages and on the back side. and at some point he sewed all these little pieces of paper together into a manuscript. one of the really wonderful things we noticed when we were down there was that the last quarter of the manuscript, the holes that he had sewn didn't match with the earlier one. and this confirmed my suspicion that the very end of the manuscript had been written later. but you can't see that on the microfilm. it was wonderful to see that in person. >> sunday night at eight eastern on c-span's q&a. >> federal court judge brett kavanaugh was part of a

discussion on politics and the supreme court. judge kavanaugh spoke about president obama's supreme court nominee, merrick garland, who he serves with on the u.s. court of appeals for the d.c. circuit. the american enterprise institute hosted this event. [inaudible conversations] >> if everyone would take their seat, please. thank you. good afternoon and welcome to the american enterprise institute and day's event which is titled "the court: power, policy and self-government." my name's gary schmidt, i direct the program on american citizenship here which is a program that analyzes civic issues including constitutional issues of note. we're going to start today's event with a conversation

between judge brett kavanaugh of the u.s. court of appeals and paul gigot, prize-winning columnist in the past and currently the editor of the editorial page of "the wall street journal" and perhaps one time had the sweetest looking jump shot of any senior writer -- [laughter] and/or editor in the country. >> that's a very low bar. [laughter] >> it was enough to jump over mine. [laughter] then we'll follow that, in this discussion, with a panel of friends and scholars including john eastman of chapman, jeremy -- [inaudible] george mason law and kevin walsh of the university of richmond law school, and that session will be moderated by a good friend and hoover institution fellow, adam white. since we only have a limited amount of time and there's lots to cover, i'm going to let paul and adam do their introductions for their guests.

a bit of housekeeping first, in this first session of the discussion will last about an hour, and then immediately following that we're going to set up our panel which'll require moving a little bit of furniture around. so if you would, please, just hold yourself in the seats and not get up and -- because then we'll be delayed in starting again. second bit of housekeeping, we will allow for, time for questions from our audience, and i appreciate the fact that you've all fought through the traffic to get here. but before you ask your question, please look around for a mic. we'll be handing those out to you and then again, also, when you do ask the question, before you do so, please state your name and your affiliation if you have one. now, very shortly with the passing of our good friend and former colleague, justice scalia, i can't imagine a more timely discussion than the one

we're about to have today. as one can see from the heated debate about his replacement and the clear importance of being placed on that decision by folks both inside and outside of government, i think the authors of the papers would be hard pressed to downplay the court's role today by describing it as the least dangerous branch. with that said, i can't imagine a better beginning or twosome to discuss these matters than paul gigot and judge kavanaugh. paul, over to the you. >> thank you, gary. and thank you very much, ladies and gentlemen. welcome. it's a pleasure to be here at aei and a will be to be here -- pleasure to be here with judge kavanaugh. i'm just the facilitator, i am not a hour, i do not play one on tv. [laughter] sometimes i do in the newspaper. [laughter] and so judge kavanaugh will soon celebrate his tenth anniversary on the d.c. circuit court of appeals. it's hard to believe it's been

that long. >> yeah. >> where he has become one of the nation's most consequential young judges. he's a graduate of yale law school and was a law clerk to justice anthony kennedy. he's worked in the solicitor general's office, associate counsel in the office of independent counsel and as an assistant to the president and staff secretary under president george w. bush. since he's been on the d.c. circuit, judge kavanaugh's also taught at yale, harvard and georgetown law. and given his age, his intellectual rigor, his dedication to constitutional principles and his distinguished judicial record, i think it's safe to say he will be one of the half dozen or so judges who will be considered for the supreme court by the next republican president assuming, of course, there ever is another republican president. [laughter] and speaking of the, sorry for the gallows humor there. [laughter] speaking of the supreme court,

we meet at, as gary said, a very propitious time given recent events, the death of justice scalia, the great justice scalia, and the nomination of merrick garland to replace him. judge kavanaugh did not cancel his appearance here which was previously scheduled after those events, though he certainly might have. so first question which i are to ask to retain my standing in the journalistic guild, what do you think of judge garland's nomination? >> well, thank you to aei for being here, thanks to gary and paul -- [laughter] and i will answer the question. i think chief judge garland is a brilliant jurist. he is a good friend of mine. he is a great chief judge. he's thoughtful, he's consider rate, he's collegial, he works well with others, he's a good man, great integrity. and he is supremely qualified by

the objective characteristicsing of experience -- characteristics of experience, temperament, writing ability, scholarly ability for the supreme court. obviously, questions about the process of what's going on and the direction of the supreme court and what role judicial philosophy should play in the confirmation process are really above my pay grade and, thus, i can't comment on how that should all proceed. nor would i know what to say about how all that should proceed given the different circumstances. that's not my role. but as to the person and the judge, i have nothing but the greatest respect for him. he's been a great friend to me, he's been a role model to me in how he goes about his job. he has a wonderful work ethic, and he's a good man. >> all right. high praise, indeed. so in one of your speeches, you wrote -- or essays which i have

been through, you suggested that every judicial nominee should get a vote up or down in the senate within 180 days. you said, you wrote that within six months that ought to be enough time for the senate to consider somebody's record and vote. would you, do you still believe that in the case of judge garland? >> so what i believe is that the rules of the road should be set in advance. i've been working on issue since 2001 when i was associate counsel in the bush white house. october 30 of 2002 after a number of bush nominees -- miguel estrada, john roberts and others -- had not received hearings, president bush gave a speech outline ago process that he proposed that the senate agree on for consideration in a timely manner of all judicial nominees, supreme court and lower courts. >> right. >> and that there be an up or down vote on all nominees within six months. and i think that was a great proposal.

now, what it requires is both sides to come together and agree that these are going to be the rules of the road in advance. and as we know, nothing happened with respect to president bush's proposal. it's something he talked about for years afterwards. it echoed something president clinton had said when he was president. it's a bipartisan problem in the lower court level of judges not getting hearings and votes. at the supreme court level, of course, the proposal would apply to the supreme court as well, but it really requires the rules of the road to be set in advance. and my whole purpose in talking about that at the time -- and i've talked about it repeatedly over the years -- is that the wrong time to think about these issues is in the middle of the crisis or the nomination or the debate because everyone has a vested interest in how it turns out. the time to consider these issues and a whole host of structural issues with respect to our constitutional processes is in advance.

to agree on the rules of the road in advance of the crisis so that they apply, as president bush said, no matter who is president and no matter which party controls the senate. i still think it would be great if the senate got together at some point. obviously, it's hard in the middle of a nomination, but at some point and agreed these are going to be the rules of the road for lower court judges, for supreme court justices. timely votes, timely hearings, what's the vote standard, is it 60 votes or 51 votes? that's really another one that's above my pay grade, but it should be set in advance. it's set now for lower court judges at 51. what is it for supreme court? is the nuclear or constitutional option depending op how you want to phrase it going to be invoked for that in the future? my big point is set the rules of the road in advance so that we don't have the situation we're in. >> so both the leaders on the republican and democratic side would come together in a neutral corner -- >> yes.

>> -- and agree to set these rules of the road in advance going forward for all nominations. >> that's the ideal. now, i'm a realist -- >> optimistic. >> i have lived in the real world, and i am -- but i don't give up my idealism either. and my idealism is that our system of government works better when you can set rules of the road for how processes are supposed to work in times of difficulty and crisis, and you think about these things ahead of time, and you don't have a vested interest necessarily in how they turn out. >> we haven't had a supreme court justice filly filibusterea nominee, in a long time, but i think we may be heading there. would your advice to the senate be let's make the standard 51 votes or 60? >> so that ease up to the senate, but i think that should be set in advance and adhered to no matter what. and i have said publicly before, i've said it a while ago that i can surely imagine the nuclear

or constitutional option -- in other words be, the change from 60 to 51 -- happening for the supreme court. i think that's likely to happen at some point. why? it's already happened for the lower courts, so why wouldn't it happen for the supreme court at some point in the future if it's already happened for the lower courts? now, they could get together and agree, no, that will not happen. but, again, it requires both parties to think about it in a neutral corner, as you put it. it's difficult to do at the time when there is a vacancy. >> all right. let's get into some substance of judicial issues at the current moment. you described yourself as an originalist much as justice scalia did. and you've described yourself as looking -- and you do in your opinions -- looking at the text of the constitution and at the statutes and putting those to the forefront of your analysis. where do you think originalism

stands right now in our jurisprudence after justice scalia's tenure on the court? has it made advances, or is this going to be with justice scalia a relatively short detour? >> well, let me say first about justice scalia, that he was a hero to me and so many others in how he went about his job in his courage, his principle, his passion, his humor, his clarity. all those things are models and have been molds for all of us -- models for all of us. and he has been, as justice kagan said last fall at the scalia lecture at harvard, he's been one of the most consequential jurists in american history, no doubt about it. and his basic idea was pay attention to the words of the constitution and pay attention to the words of the statutes

that congress passes. a very simple and easily conveyed idea, but it shows how far the supreme court had strayed from those ideas before justice scalia came on the scene. as paul clement said famously many one oral argumentens aing a question, well, in the bad old days, and someone said, what were the bad old days, and it was justice scalia asking the question, and he said before you came on the court, justice scalia. in other words, there was no attention paid to what the words of the document said, what the words of the statute said. and i think that effect that he had, he didn't achieve everything he set out to achieve, but he achieved a whole lot, and i think it will have a lasting impact for generations, centuries in terms of paying attention to the words of the document. because the role of the judge, quite simply as he put it, is not to make the policy decisions. the role of the judge is to

interpret the laws that have been passed by others either in the constitution or in the statutes and to interpret what the policymakers themselves have done, not to change just because we think what they did might be mistaken to our on preferred positions. and that was the idea that he stood for, he fought for, and he achieved in many areas of the law. and i think that will have a lasting impact. >> do you see the influence of originalism or some people describe it, it's complement is textualism. >> right. >> in the current supreme court even among some of the more liberal justices? >> i think all of the justices pay attention to the text of the statute. again, to cite justice kagan at the scalia lecture, she really emphasized this. she said we're all textualists now. that was justice kagan saying that. that shows the influence, i think, that justice scalia had. and what she meant by that, as

she explained, was that all of the justices start in statutory cases with what's the text of the law passed by congress. there's not the kind of dismissive behavior towards the text of the statute that that there was in prior decades on the supreme court. so i think all justices do that. now, they have different views of how stringently they're going to stick to the text, and that's how they apply certain canons of construction. one of the big issues which is pretty in the weeds, but it's how quickly do you find ambiguity in a statute which then allows you to turn to various canons of construction. that's a huge and difficult question and one that does divide the justices. and then in the constitutional cases, of course, you start with the text, but there's whole bodies of precedent on all these areas or most all these areas on constitutional interpretation. >> let's, i want to get into an area that you've really focused on, and it has become a hot

issue of debate in recent years, and that is judicial analysis of executive regulations. >> uh-huh. >> executive branch, agency regulations. and interpretation, implementation of statutes. your opinion in the dissent in the coalition of responsible regulation v. epa, you wrote the following: to be sure, courts must be wary of undue interference with an agency's actions, implementing its statutory responsibilities. but undue deference or abdication to an agency carries its own on systemic costs. if a court mistakenly allows an agency's transgression of statutory limits, then we green light a significant shift of power from the legislative branch to the executive branch. so pungent words. have courts been too deferential, in your view, to the executive branch in

assessing regulations in recent years? >> in a word, yes. i think courts have been too deferential. and it really stems from expansion, i would say, of the chevron doctrine which is the idea that when the statute is ambiguous, the court will defer to the executive branch's reasonable interpretation of the statute. and i think two courts have been a bit too quick to find statutes ambiguous, to go back to the point i made earlier about the debate about how ambiguous must the statute be in order to trigger chevron deference, and i think courts have not done a good enough job in enough cases of sticking with the words of the statute that congress passed. chevron itself has an important footnote, footnote nine, to really get in the weeds. it often gets overlooked. courts are supposed to apply all the tools of construction to the statute and figure out the best meaning of it before they engage

in the step of deferring to the agency, and sometimes that's, that exercise gets overlooked, i think, by courts or doesn't get sufficient attention. the bottom line is when congress passes a statute and sets the boundaries, it's our job, i believe, as courts to make sure that we police those boundaries in a case, justiciable case when someone has standing. so when we don't do that, what we're allowing the executive branch to do -- and this is a bipartisan issue, republican administrations and democratic administrations push the envelope with their agencies. our job to hold fast to the line that congress has drawn and make sure that we police it. again, not undue cramping of the executive branch, but try to figure out what the congress, the line that congress drew and then hold fast to it. i should say the reason executive branch agencies do this is, of course, because presidents run for office on

policy agendas. they don't run through new hampshire and iowa and wisconsin and all the states and say when i get into office, i'm going to make sure that the agencies all carefully hue to the law. you know, that's not a platform. you're running for office on health care and immigration reform and on economic issues. and when you get into -- environmental protection. when you get into office, you want to get either new legislation passed, or if you can't get new legislation passed, get the agencies to exercise their rulemaking authority to achieve your policy objectives to the extent permissible. and that "to the extent permissible" becomes really the battleground. so the agencies have a tendency, and it's understandable, to push the envelope. and chevron really encourages that, because an agency might say, well, can we get away with this? is it really legal? well, it's ambiguous. okay, let's go for it, that kind of rationale x. that's where i think the courts really have to step in.

again, a bipartisan issue. i don't think this is a partisan issue at all. the court's job is to hold true to the line that congress set forth. >> chevron, 1984, the precedent can, chevron v. nrdc. you mentioned the two-part test, how ambiguous is the statute -- doctor yes. >> and then how reasonable is the interpretation by the agency if at ambiguous, and then the tendency has been if it seems reasonable, then the agency gets its way. >> uh-huh. >> is it time to revisit chevron? and if not overturn it -- >> right. >> -- in whole, at least rein it in and put some barriers on it? >> well, i think it should be reined in. part of it is just applying that -- again, i hate to cite a footnote, but footnotes are where all the important things are sometimes buried in supreme court decisions, footnote nine of chevron faithfully applied does rein it in a significant degree in and of itself. and significantly, i think, the

supreme court has expressed skepticism about chevron in recent years. when and under what circumstances does it apply. interestingly in the king v. burwell case last year, chief justice roberts' majority within in within -- majority opinion in the course of saying the statutory interpretation was permissible did go out of his way, and this is a six-justice opinion, to say that chevron was inapplicable in cases of great significance. i'm paraphrasing there, but -- >> absolutely right. >> and that leads to the questions, well, this doctrine that we've had so long, what kind of doctrine -- why is it now applicable in the less important but still important cases? and i think that's, we're going to have two problems as lower courts. one is what's the line between those major cases and the less major cases that are still significant and when chevron applies, and then i guess this will be above our pay grade and for the supreme court to consider, but if they've drawn

this exception and some other exceptions to chevron, what's the state of the dock transcribe in general -- doctrine in general as an analytical whole at this point? >> well, i noticed that in king v. burwell as well, but i also detected even in justice scalia's opinion in the utility opinion -- >> yes. >> not an explicit, certainly, rejection of chevron, but kind of walked around it rather notably. >> yes. >> and he has been one of those, had been one of those on the supreme court who had been most frequently cited chevron in some of his own opinions. >> so i think a doctrine like this makes sense when congress uses words like "reasonable" and "appropriate" and "feasible" and practicable," those kinds of words often in statutes, we want to give agencies, congress wants to give agencies room to make decisions. but when congress sets fort a specifically-worded statute, then a court's job is to enforce that statute as written.

i think what justice scalia observed, i don't want to speak for him necessarily, but i think what the opinions reflect is over time the phenomenon i described which is agencies pushing the envelope more and more balm apparent to judges -- became apparent to judges and, i think, caused some discomfort. and what that leads to is things like king v. burwell of the court saying, well, we're just not going to apply chevron in this case. okay, there you have it. it's not going to apply because they're not comfortable in a really significant case saying we're just going to defer to an executive branch's agency's interpretation. >> so you're a student of the separation of powers, and i would make a normative statement here and see if you agree. when the courts do not adequately police the executive agencies when they're interpreting statutes, it can corrupt congress and the executive. congress in the sense that it causes them to say we're going to write even vaguer statutes

and punt to the executive which we can then blame if we don't like the rules they write, and the executive because the executive then says, all right, we have free rein to write the regulations we want as we want hem or as the president wants them. do you agree with that? >> i think it's hard to generalize about the effects on congress an owl of this because congress sr. on all of this because congress is 535 people, and there are different statutes and different areas where they do this. i think what happens often times in congress is there is disagreement about something, and they can't resolve it, and they, the compromise sometimes is to punt the issue to the agency. and if they do that through broad, capacious terms, you know, our job is to the to interfere with that decision. sometimes, however, the compromise in congress is to draw maybe a line in between the two positions, and then the agency wants to go beyond the compromise. and that's where the court's role is to step in, i believe,

and police that line for the, to protect the congress and to perform our role in the separation of powers. i want to make clear, it's a balance always for the courts. we can't be unduly interfering with the proper operation of congress and the executive branch, but at the same time, what i think has happened is perhaps undue abdication in some of these agency cases. but there are cases, i just want to emphasize, where it is appropriate to allow an agency room to make policy decisions because the statute gives them that room to make the policy decision. and those cases it would be improper for us to jump in and interfere with that. >> okay. thank you. now, a related issue that has been much debated in this administration in particular is the suspension of the laws; that is, the president's decision not to enforce either laws, certain laws or parts of laws.

two examples, the marijuana provision of the controlled substances act related to colorado and washington which passed referenda legalizing marijuana, and, of course, the immigration statutes and the deportation elements of the immigration law. how much leeway does a president have, in your view, to not enforce statutes? >> right. so i want to distinguish two categories here. there are statutes that regulate the executive branch; freedom of information act, anti-torture act, acts that regulate executive branch officials and how they conduct their business. on those statutes the executive branch has a duty to follow the statute unless the statute is unconstitutional in which case the president can state a constitutional objection, and someone with standing can bring the case to court, and the courts will have the final word on that case whether the president's right or congress is

right about whether that statute regulating the executive branch is unconstitutional. but absent a claim of unconstitutionality, the separation of powers, as i understand it, requires the executive branch to follow that statute. there's a separate category, body of laws. the primary body of laws that regulate private behavior that prohibit drug possession or drug distribution, those kinds of -- prohibit bank robbery, prohibit certain kinds of dumping of illegal substances into streams or waters. those kinds of federal laws that are i ubiquitous, that regulate private behavior. and the question is to what extent can the president or the executive branch say we're not going to enforce a certain category of those laws because of policy disagreement, because of resource constraints, because of constitutional objections.

and i don't mean to punt unduly, but i tell my students every year in separation of powers for the last several years, i think that's one of the great unanswered questions of constitutional law. [laughter] and why is it an unanswered question? often times it's difficult for someone to have standing. okay, i'm not going to enforce certain kinds of drug laws. who has standing to challenge the president's or the executive branch's decision not to do that? that's a difficult inquiry in many cases as well. so it doesn't, it's a hard question to answer. one of the things to think about, because i've written different things about this kind of tiptoeing around different parts of this, the pardon power. so how does that relate to prosecutorial discretion? tomorrow -- today, the president has the raw constitutional power to pardon every federal offender. the raw power. it is right there in the text of the constitution.

and if that's true, and it is true, to what extent is the president, the executive branch required at front end to bring charges against someone in categories of cases where the president thinks, well, i think they should be pardoned, i don't think these laws should be enforced? so a professor at yale law school, brilliant scholar, has written -- and i've found this worthy of attention, with what's the relationship between prosecutorial discretion and i think power, and that's a tough question as well. i think it's unanswered, i think it's difficult. certainly, resource constraints are a traditional justification for prosecutorial discretion. okay, we have a limited bank of resources here, so we're going to focus on serious drug crime, serious economic fraud, we're not going to focus on certain kinds of cases. and that traditionally has been a justification. the theoretical question but

maybe also real question is what about when you have plenty of resources, so that's not a justification, but the executive branch says we just don't think it's appropriate to be penalizing people for a certain kind of behavior that is illegal under the statute that congress has passed. that is a very challenging question. again, remember the pardon power though. so there is the raw pardon power at the back end to say we're going to pardon everyone who's been convicted of a certain class of offenses. >> but the suspension of the laws in this administration, congress has found itself frustrated in checking that when -- >> yes. >> -- when it has objected. and part of the problem is the issue you raised of standing. >> right. >> because you have to have an injured party, and the supreme court tends to take -- and certainly under justice roberts -- a pretty tight definition of standing. so, for example, in the case involving the marijuana laws we

had a case that was the states of oklahoma and nebraska appealed to the supreme court to say would you take -- we've been injured by the fact that colorado has, is not enforcing the marijuana laws. so it's spilling over into our territory. we have to expend law enforcement resources to deal with drug gangs and so on. and they appealed to the supreme court, and the supreme court did not take the case though justice thomas issued with justice alito agreeing, concurring a rather pointed dissent saying they should also take it. now, if i look at your cases on standing, you have suggested that the supreme court should look at perhaps broadening, and correct me be i'm putting words in your mouth, broadening its definition of standing in a way that when you have a clear injury, take the case. or they have a right to their day in court. >> yeah. that was in one pocket of standing jurisprudence, so

so-called zone of interest standing, and the supreme court subsequently, i think, did narrow the restraints it imposed on standing based on zone of interest standing. more broadly, i think standing jurisprudence is -- i haven't suggested more generally expanding standing beyond what supreme court has said. but i think that it can be difficult to apply to particular cases. who is an injured party in a particular case, what kinds of injury are good now have make it a case for controversy for purposes of article iii of constitution and to bring it into court. i think that's a very, that's historically been a very difficult area of supreme court jurisprudence. and to what extent do states have standing. that, of course, was an issue during the bush administration and the massachusetts v. epa case where the court ultimately found that the state of massachusetts did have stand anything a case involving global

warming. to what extent do states have standing more generally to challenge effects of decisions made by the executive branch that have impact on state citizens or on the states as sovereign. that's a pretty challenging area of supreme court jurisprudence right now. we may get more guidance in the near future or may not. these things tend to be dialogues over years rather than resolved for all time in one sitting by the supreme court. so we will, we will see how that transpires. >> all right. let's turn to another area of law. this is the debate over sometimes even among conservatives over the gun cases and the second amendment. >> uh-huh. >> mcdonald, as you know, it was the case which incorporated the heller decision to the states. and justice alito used substantive due process under the 14th amendment in his 5-4 majority opinion. but justice thomas wrote that he would have used the privileges or immunities clause of the 14th

amendment which in a oral argument justice scalia had dismissed as the darling of the prof sor yacht as an -- >> i don't think he meant that as a compliment. [laughter] >> he did not mean it as a compliment. [laughter] and at the journal we have people on both sides that question. >> uh-huh. >> so what's your view about whether -- and as you know, the relevance of this is that there are many, there are some libertarians -- >> right. >> -- who want to revive the privileges and immunities clause as a way to, which has basically been considered by many scholars a dead letter since the slaughterhouse cases of 1873, i think, but they want to revive it as a way to protect individual liberty under the constitution. where do you come down on this? >> so the case in question concerned in corporation of the original second amendment against the states, and with many of the constitutional amendments in the bill of rights, of course, the supreme