if section 1311 and 1321 are the same, there would be no reason to do this. if reference to a section 1311 exchange is by definition an exchange established by the state, there would be no reason to do this. yet they did it. the government and defenders of the irs rule have failed to come up with an explanation of why this would happen, of why this language would be there. the best explanation is it was convenient short hand for exchange. convenient shorthand that's longer and required members of congress to add additional language at multiple times in the drafting process. that's just not credible. it's not taking language seriously. it's not taking the fact that every place in the statute were established by the state is used to modify exchange it provides provision the statue is serving to induce state cooperation or coordinate state and federal action.

establish by the state is not used anywhere else in the statute except in provisions that are serving that purpose. now, in terms of why would congress do this because this is the question. why would congress think to do something like this? the condition achievement of goals on state cooperation. they did that on medicaid. they offered a lot of inducement on medicaid. because congress can't come comen dear, everyone knew that congress could make states a really good offer but it had to be an offer. the state that refused to accept the medicaid expansion as the statute was written would leave the poorest and most vulnerable people in that state without any help under the medicaid program. that's the way the statute was written. conditioning a whole lot of the statute's goals on state's willingness to go along. they would do that with medicaid where a lot more is at stake. why wouldn't they do it here? congress has done this before.

congress has routinely said tax credits or other benefits are conditioned on various things including state cooperation, including state enactment of measures or regulation that satisfy federal requirements. senate finance committee, origin of aca did it in 2002 with tax credits authorized and put in place that year. the statue of provisions identified in the chairman's mark of aca as statutory precursor language modified and building upon in enacting the statute. in fact, the structure of using coverage month basis of how you define eligibility was, in fact, found in that prior statutory language, again, drafted by the same committee. experts proposed doing it here. people that knew a lot about health care. one example, professor tim, one of the most prominent health care attorneys in the country,

someone significant in this statute to be invited to the white house when the statute was signed. he offered a paper in april, 2009, saying if we're going to do a state exchange model, we can come up with various ways of encouraging states to cooperate. one of the things we can do is we can offer tax subsidies for insurance only in states that complied with federal requirements as it has done with respect tax subsidies with savings accounts. pointing out that you and congress has done this before and you can do it. the other thing we can do is offer payments to states to establish exchanges. statue also did providing funding for states to help them set up exchanges of their own incidentally providing zero funding for the federal government to set up exchanges. why else? bills that were part of the

debate over this condition credits and subsidies benefits on state cooperation. the health bill, one of the proposals in the senate conditioned benefits on state cooperation on states taking legislative action required. this was part of the debate not only among outside commentators. it was a mechanism, it was a tool that was discussed and proposed in the senate in other bills as well. it was a way to avoid the federal take over charge. one of the reasons the senate unlike the house wanted to go with a state exchange model was because there were some members of the senate, some democrats in the senate that were very afraid of going home and having to defend a bill that could be characterized as a federal takeover. so a bill that said states are going to create exchanges and that made sure that states would do it was the way to bunt that

charge. for example, the senate democratic policy committee in late 2009 in responding to the claim that the bill would be a federal takeover said there's no government takeover. why? because all health insurance exchanges are run by states. a claim that cannot be made based on command of states. because we know such a command is not constitutional. a claim that can only be made if we believe the statute provided incentives for state that would produce state cooperation. we know from all sorts of programs, if you don't give state incentives, they don't cooperate. under the clean air act, states cooperate. why? because the federal government threatens to take away highway funding. if states refuse to cooperate, if 36 refuse to cooperate like in the clean air act like they have here, it would grind to a halt because the epa can't do it itself. section 404 of the clean water act where there are no real clean incentives, two states implement the program.

congress is well aware if it wants states to cooperate, it can't just say you have a chance. it actually has to provide incentives. they assume states cooperate. not only was that said by senate democrats, it was said by all kinds of folks. the president by 2014, each state will set up what we're calling health insurance exchange. secretary sebelius said it. before the 2010 elections that might have been a plausible argument. as we know, many states in 2010, a lot of state legislators who oppose this statute, opposed cooperating with the statute were elected throughout the country. the assumption was states would cooperate. it was a universal assumption, reflected in all sorts of claims about the bill and all sorts of ways the bill was drafted.

jim mentioned other aspects of the tax credits. the fact that there's an income floor not just an income ceiling. there was an assumption states would cooperate. the idea states would just say no wasn't contemplating. was that a mistake? seems so. the sort of mistake that can be fixed by administrative fiat? of course not. related to this is that there's a dog that didn't bark. because what you cannot find -- and i agree with jim we should stick to the test. text r -- text. what you can't find at any point in the debate -- and michael and i while writing this article -- i'm not going to say we did it. he had a research assistant spend days going through every reference to the word exchange in the congressional record.

we were curious what we would find. there's not a single time anyone said the senate bill would provide for tax credits in federal exchanges. there are statements that tax credits would be available in all 50 states, but that's entirely consistent with the assumption voiced repeatedly, also reflected in the statute that every state would cooperate. not once did anyone say contrary to the text of the statute, tax credits will be available to federal exchanges. no one said that. there are folks, commentators that said we weren't paying attention to the exchange provisions. jonathan cohen said i wasn't paying attention to provisions. maybe that's why i wasn't aware of this. people were fighting about abortion, public option and a lot of things as the bill was being finalized. no one said something so simple. i was quite surprised. i thought we were going to find some statements.

we didn't find any. no one has come up with even a congressional statement with something contrary. i mentioned some states would cooperate. the last reason -- how am i doing on time? >> it's time for a big finish. >> okay. last thing to remember is this was a negotiating draft. the plan was that we were going to have a senate bill, a house bill. they adopted very different approaches on many different things. senate bill said state exchanges. we have to have a federal fallback kind of sort. house bill, federal exchange. news report says the white house approved the house bill and that's where the final bill was going to go. there was going to be a house senate conference like we usually have and that would be the law enacted. the senate bill was the senate's negotiating center. the state exchange oriented induced states rather than federal exchange negotiating a draft. problem is and michael is responsible for this slide.

then there was this. scott brown is elected in massachusetts. there were no longer 60 votes in senate, no longer enough for a house senate conference bill. the choice at that point became a bill that a lot of people didn't like. the president said there were things he didn't like. letter of 51 health policy experts urging the house to act said a lot of things in bills we don't like. they're imperfect. the choice is clear. pass it through the senate bill, and improve through reconciliation. other limitations of the senate bill can be addressed through other means. to read the full bill, what they meant was not administrative fiat. they meant this will cause democratic gains in congress in 2010. we'll be able to fix it legislatively. oops. everyone understood the bill was not what anyone really wanted. it was the bill that could get passed. it was drafted to get 60 votes in the senate. there were no longer 60 votes in the senate.

it was this or nothing. that's a what got enacted. that's what we have today. it was a law perhaps that no one wanted. it is the law that passed both houses in congress that went through presentment. it's the law of the land. irs cannot rewrite that by administrative fiat. i'll stop there. thank you. >> thank you, jonathan. >> i'll point out i believe it was congratulate you for reading the bill the whole way through. there was a justice of the supreme court that described that as being torture if he had i to do it. >> go ahead, david. >> thank you. i'd like the to start by thanking cato. it's great to be here and talk about this statue and cases with the founding fathers of this litigation. i always love coming to d.c. one of the main benefits unlike seattle, i'm much less likely to be told to slow down and not talk so fast here. i'm going to move quickly to keep things going on time. much of my writing on these cases and statue have been

critical of liberal arguments in favor of government positions. that's 90% of my writing. given the makeup of this panel, it would be a lack of balance if we had two people talk about the challenger side and then i came up here and bashed the government side and we only had one person. much of my writing has been saying liberals, why are we not making the best arguments in support of the government's position here? i'm going to spend time talking about what i think would be the best arguments for government's position. i'm going to start talking generally about theories of statutory interpretation. my friends on the right, physically on the right and maybe politically on the right have been interpreting this statute and advancing in these cases theory of statutory interpretation that they call plain text or plain language meaning of the provision at issue. i think that method of statutory interpretation is much too cramped. under a broader theory, one that

takes into account content and context, the government wins this case. it wins it out right. it doesn't win on chevron step two. doesn't show ambiguity. it doesn't win on a technicality. it wins because the government's interpretation is the best and only reasonable interpretation under the statute. the reason this broader one is statutory interpretation is the proper one is that it's been endorsed very recently by the supreme court. supreme court said last term when interpreting a statute, you need to look at context of provision and broader statutory scheme. and have a reasonable reading of that provision based on specific provision of issue, language in that specific provision and statute as a whole. the statute more generally. the overall design and object of statute, structure of the statute. the substantive effects of a proffered interpretation to see if those substantive effects are compatible with the statute as a

whole and to see which interpretation is more consistent with the design and object of the statutory structure. as i said, that was a supreme court case. those of you listening in the audience who are not familiar with recent supreme court cases might want to reject that reasoning as being maybe one of the liberal justices. it might have been our friend justice briar for a 5-4 majority with some purpose-based argument. but no, that was justice scalia talking about his version of strict text chul interpretation. that should not be surprising. it's not the sort of psycho analysis or sort of general appeal to purpose that you've heard some liberals make and some advocates for the government, certainly not the liberal argument that was set forward as sort of a foil by my colleagues on the right, rather when justice scalia talks about

intent, purpose, object, design, he is not talking about what he read "the new york times," he is talking about the text of the statute. intent based on text, structure based on text, design based on text. that's is text churlism. it is faith tofl the statute and that is the government's best argument to win in this case. the theory of interpretation used by our previous speakers and by the challengers in the litigation is not textualism. i don't know if it has a name. i don't know if it's a well-recognized theory of statutory recognition. it's a statutory isolationism. what i mean by that is that it looks at a provision wholly in isolation. it comes up with a plain meaning based on on the narrow provision at issue and gives that narrow plain meaning a huge amount of weight, a strong default, static friction inertia that then goes

out to the rest of the statute and does battle with other provisions that possibly conflict with that initial plain meeting. when it does battle with these other provisions it looks at them one by one and views another provision of the statute and says, well, is there any way we can interpret this other provision in a way that makes sense? so, for example, there's a provision in the affordable care act that says, hey, we have federal exchanges, we have state exchanges. those exchanges have certain reporting requirements. among those involved, reporting on subsidies that are paid under those exchanges. now f you look at a plain meaning of just that provision of the statute, you'll say, well, it looks like subsidies are available under the federal exchanges. it tells the federal exchanges to report the subsidies that are paid under it. doesn't make a lot of sense to say you have to report zero all the time. but when faced with that sort of argument, that sort of complimentary statutory interpretation, the challengers don't view that as an opportunity to harm monize the

statute, they see that other provision as some sort of hapless enemy they say we can envision a world in which this other provision makes sense and we don't have adjust our initial default reading. let's assume the government was looking to make space. they don't want to have two separate for reporting. yeah, some of these reporting requirements are redun dantd. they're useless. but we'll make some of them useless and then we can still keep our default provision. that's not a textual interpretation of the statute. it looks at it as a whole and hopes to honor each individual provision of the statute. in some ways jonathan told me i'm terrible with analogies not the only one, their method of statutory interpretation as sort of lieng a very bad action movie with the narrow provision at issue playing the role of our hero. you have other provisions all of

them viewed as hapless enemy. looking at them at once, they attack one by one and are all terribly weak. statutory interpretation around a proper framework, under the framework advanced by justice scalia, it's not a lone hero, it's the justice characters. they're not enemies to be dispatched with by an initial narrow isolated reading, they're meant to come together to a complete understanding and interpretation of the statute. you see this isolation in all sorts of the challengers briefs. you see it in the plaintiff's briefs. you see it in the opinion, just the structure of these opinions it starts with a strong default and each individual challenge one by one is dispatched by saying, well, it wouldn't be absurd to adopt our reading. it wouldn't be ridiculous. we can twist it in some way that

makes it work. so under this more contextual based argument, that's the best. argument for the government that method of statutory interpretation for two reasons. one, i think the government wins under that argument. i'll explain why in a second. two, i think it's the best argument if your goal is not preach to converted. i think there are going to be proposed judges, liberals who want to see everyone get insured. they're going to probably side with the government in any case. if the government wants to win this case or folks in the press that support the government's opinion want to convince people, it's important to focus not on psycho analysis or broad appeals to purpose that everyone should be insured but to focus on the text of the statute. he's a brief outline of what i think that scalia-endorsed maybe we'll find out if they grant king, method of statutory interpretation would work here. key provision section 1401 that says subsidies are available on exchanges established by the

state under section 1311. our goal is to say all right, what does that mean? we don't stop there. we don't isolate that one phrase and think i know without looking at the statute. we need to look at the rest of the statute. the first place to look when trying to figure out what a phrase means in a provision established by the state is definition section. it defines the exchange as -- capital e exchange as an exchange. that's helpful. exchange established under 1311. any time in the statute you see the term exchange with a capital e what the statute has defined that to mean, an exchange established under section 1311. what does that mean? we don't resort to psycho analysis or new york times. we look to section 1311. to see what 1311 means. and 1311 says and you've heard it before from previous speakers

that states shall establish an exchange. all 1311 has to do is -- sorry, all 1311 relates to is state exchanges. what states have to do to establish exchanges, how states establish exchanges, how states compare with other states in establishing exchanges. the only purpose, the only type of exchange referenced in section 1311 are state-established exchanges. not only that, the only way a state can establish an exchange is complying with 1311. so, we have this parallelism with 1311 and state exchanges. looking at those two provisions, you would think that's only it. the law only provides for state exchanges but we know that's not true. there's another provision section 1321 which provides for the creation of federally operated exchanges and what the heck does that mean given what we've just seen about 1311 and

1401. 1321 provision that creates federal exchanges uses very specific language. it says if the state fails -- and i'm paraphrasing. if the state fails to establish exchange, the federal government secretary shall establish such exchange. what does that mean? is it talking about a different kind of exchange? is exchange in section 1321 different? no. when it uses the word exchange -- imagine a slide behind me -- it's the same capital e, change that is used throughout the rest of the statute. in 1311. so when the government, the federal government is acting under 1321 to establish exchange, it's establishing a 1311 exchange. that's the only kind there is. it sunt say it shall establish an exchange, it doesn't say it shall establish a 1311 exchange, it shall establish such 1311 exchange. what does that mean? why does the statute use such

instead of an or a? why does hit use the word such instead of shall or a? you have to look at what words mean. such means referring to previously mentioned exchange. it's the exchange the state was supposed to establish under 1311. if the statute just said an exchange, then maybe it would be a normal run of the mill 1311 exchange. it doesn't. it says such exchange which refers back. the majority got half way there and said such has to be referring back. were going to refer that the such refers to 1311 exchange. that's a non starter, every exchange is 1311 exchange. you don't need the such to create the interpretation that it's a 1311 exchange. so just based on isolated provisions, that is i think the best reading of the statue that the federal statute -- federal

exchange has such exchange meaning established by the state under 1311 going back to 1401, it complies with the statute's definition of 1401. i'm not an isolationist. let's look at the statute as a whole. let me take a step back and look at the design, its structure. despite everything i said, if i look back at the whole and saw a system where oh my goodness there's all these terms relating to federal exchanges that describe federal exchanges or 1321 exchanges on the one hand and they're very careful to limit or separate or distinguish 1311 exchanges as exchanges operated by the state. is that what i find? that's not what i find. i find hardly any mentions of section 1321 or federally operated exchanges. i find hardly mentions of section 1321 or federally operated exchanges with the exception of one provision that specifically provides for

reporting of tax subsidies of federal exchanges. that's the main mention. we don't have the two tier section. perhaps there's a pattern in the statute. i'll look at it as a whole. that says well maybe they're using the term exchange even though defined as 1311 exchange to mean any exchange. 1321, 1311, federal, state, regional, anything like that. when the statute wants to limit to state exchanges it says state exchanges. is that the system i see? that is not the system at all that the statute is set up. first of all, we know that 1311 only relates to states and that state focus is baked right into the definition of exchange. so this distinction that the challengers are trying to raise is sort of defined out of the definition of exchange to begin with. secondly, when bill refers to exchanges, professor talked about a exchanges established by state. it refers to exchanges in a number of ways. exchanges established under this title. exchanges established under this act. exchanges established under

1311. whatever that means. every exchange is established under 1311. established by the state and also in various places exchanged generally. looking at the design and structure of the statute of a whole is not the sort of thing that talks about the differentie between state and federal exchanges. i see i have about 15 seconds so i need to hurry up. also i need to take a step back and say is there problem here with how this definition fits in with the design and structure as a whole? the one main problem is problem that the professor talked about in his presentation. this potential conflict with carrot and stick incentive system that reportedly the federal government set up. i want to say a couple things about the carrot and stick incentive system and then i'll sit down. first of all that's not a textual argument. they don't find their way into the actual statute itself unless

you already agree with the strict isolationist interpretation of the provision at issue. it's more of a second order argument that the challengers say as to why they might do this. the problem for them, this carrot and stick argument faces a huge textural hurdle. the statute itself includes for provision of federal exchanges. federal exchanges exists not in real life, not in the new york times, in the text of the statute. why the two exchanges? if the subsidies were supposed to be a threat and if congress thought its threat would be uniformly successful, there should be no need for a second fallback federal exchange. the answer cannot be comen dearing principals. if you don't want to common dear, there's another example. the answer cannot be come deering principles. if states do not cooperate with medicaid, the fall back is not

let's create a federal system that comes in and tries to do something for poor people that doesn't work. no. the fallback is nothing. the federal exchange however exists it must do something. in this case, under the challengers theory, the federal exchanges is a one legged stool that only offers expensive insurance, fails under the mandate, individual mandate, employer mandate. if it is useless under their theory, it's entirely not a fair reading of the statute. the fact it exists means they must serve some purpose based in the text and that specifically contradicts plaintiff's argument based on that text-based argument, i think the government wins. >> thank you. [ applause ]. >> you talk fast. you do do that.

>> first, i want to thank michael and cato for hosting this forrum and inviting me to participate in this morning's panel. i'll start by saying i agree with a lot of what david said about statutory interpretation and the issues in this case. particular his point about the proper way to engage in statutory interpretation and that is not to look at provisions and phrases in isolation but to look at the text as a whole. statutory scheme as a whole. when you do that in this case, it's clear tax credits should be available on all exchanges both federally facilitated and state run. given david's focus and arguments, im going to focus elsewhere in my remarks. i'll start by talking about legislative history, congressional intent. particular the argument made that the professor discussed. subsidies were included in the statute as a tool to encourage states to set up own exchanges. as professor adler explain ed

the basic ideas, the congress wanted states to set up their own. they couldn't mandate it of course. they intentionally made the exchanges available only on state exchanges so the states would have no choice but to set up their own exchange. that's the argument. the problem is that the text, the history, the purpose of the statute all say otherwise. that was the point that was made in the brief filed before the panel and king panel by leading members of congress. the folks who actually participated in the discussions, deliberations, negotiation and the enactment of the affordable care act. lots of opponents like to a parade around that. we've seen a video. it was a quick, off the cuff remark made after the law was passed. i should know the statement jonathan gruber himself has subsequently disavowed. what's most important is not what someone said as part of q&a at a conference years after the law was passed but what folks there actually have to say. those folks as they've said in briefs filed before the courts,

that was never the purpose of this provision. it was never their intent or understanding the tax credits and subsidies would only be available on state exchanges. their understanding is confirmed by the texts and history of the statute. so let's start with texts. we talked about it a lot already. you think if the purpose of the provision was to encourage states to set up their own exchanges, congress would have made it clear. look, if you don't set up exchanges your citizens will not get this money when they purpose the insurance on the exchange. that is not what the exchange does. we showed you snippets. when you look at the section as a whole, the first thing it says is there shall be a credit allowed for publicable taxpayers. it defines applicable taxpayers based on income levels as the professor mentioned. the statute nowhere says expressly if states don't set up exchanges their citizens won't get subsidies.

it nowhere says it won't be available on federal exchanges. instead the language is a technical subsection setting out the formula for calculating the amount of tax credit. that's a strange place to put the condition. if it was doing what the law's opponents say, especially given the other language in the provision that makes clear the credit is available to all applicable taxpayers regardless of where they live. we also heard about justice scalia. he says congress doesn't hide elephants in house holes. this would have been a big elephant to hide in a pretty small mouse hole. this point is confirmed by the history of debate miss congress. about the affordable care act. the professor talked about medicaid and the fact the medicaid expansion was conditioned on state's compliance, but the issue here, no one doubts that congress can engage in these kinds of carrot

and stick incentive schemes. the question is whether they did it here with respect to exchanges and tax credits and subsidies. there's no evidence in the legislative record that he did. he also mentioned the study by the academic that mentioned this is one way that congress could go. he also mentioned that congress could set up a federal fallback, which of course we all snow is what they did. importantly there's no evidence that tim jose's paper was ever discussed in debates in congress and nothing in any debates in congress that suggests this is what congress was intending. there were a lot of debates obviously about the bill and tax credits and the credits were always discussed in terms that made clear that income not state of residence was the qualifying criteria. contrary to what professor said, there was widespread awareness at the time that states might not set up their exchanges. it was very controversial. it was not surprising at all

that there would be opposition in some states and there was generally understood. despite this, everyone assumed the credits would be available to all purchasers on all exchanges both state and federal. there's lots of evidence of the record, the brief discusses this. one example, there was a march 2010 fact sheet issued by the three house committees with jurisdiction over the aca. it explained how exchanges would operate. it expressed there would be federal and state exchanges and drew no distinction between them. that's not surprising. members of congress wanted them to be available on exchanges for the simple reasons that the subsidies were essential to the effective operation of the exchanges. eliminating that assistance would undermine other aspects of the law including the individual mandate and reforms dealing with pre-existing conditions. it's not just that subsidies are critical to the overall goal of

providing yue ining universal he congress didn't intend for these subsidies to be part of the carrot and stick insensitive system to get states to set up their own exchange. there was no reason for congress to do that. the professor suggested that this is the only way you get the states to comply. that's not true. congress has a lot of tools in its tool box. one thing it often does and did here is sets up a federal fallback. states often want to set up their own program rather than rely on the federal fallback so they maintain control over the program. you can see in the record of state discussions about whether to set up exchange, state governors and officials including republicans say we want to set up our own exchange because we don't want to lose control of this program to the federal government. that's the congress side. on the state side, the states never understood the tax subsidies and incentives to operate this way.

if this was the purpose, it really failed because the state's didn't get the message. there's lots of examples on this in the state's part whether to set up an exchange. quick examples. ohio in a working group report listed five pros, four cons to setting up state exchange. the availability was nowhere mentioned about the tax credits. the national governor's association identified lots of issues associated with implementing the exchanges. the prospect that a state citizen might be denied tax credits for the state to set up own exchange was not one of them. this isn't a matter of data. there was a comprehensive report, a study done by georgetown that looked at all the state issues. one of the co-authors of that study said, the states were motivated by a mix of policy, strategic calculations by

opponents. the available tax credits was not a factor that played into the state decisions about whether to set up exchange. again, this was not a carrot and sticking incentive scheme. congress angd state legislatures believed they would be available on all exchanges including those run by the federal government. so based on that history, based on the text that david discussed, i think it's clear the statute nonl knot only allows but requires that tax credits and subsidies be available on federally facilitated exchanges. it's worth remembering that the statute doesn't need to be clear on that point for government to win. as we've discussed a little bit, there's a key supreme court case that says when statute is ambiguous, courts are supposed defer to the reasonable interpretations of agent's charge of implements that statute. that's the irs and,hs. both issued rules those tax credits should be available on all exchanges federal and state. with that background in mind, it's worth highlighting quickly comments made by the panel majority and decision.

they said at the end of their opinion they were reluctant to reach the decision they did. they felt hands were tied because they were judges. they had to implement the statute that congress had enact enacted. they said in other words, they were exercising judicial restraint. but the real restraint is do what judges are supposed to do. when a statute is ambiguous, i don't think it is. but if you think it's ambiguous you're supposed to refer to the charge implementing the statute. that's what two of the judges did. one of the judges decided it was unambiguous. in the direction opposite the panel. the two said statues are unclear. what does that mean we have to do? that means the rule promulgated by the irs and allow the statute subsidies to be available on federally facilitated exchanges. that's a lot quickly on the merits. i'll spend the rest of my time

talking briefly about where we are in the litigation, what's going to happen next. in particular, what might happen at the court tomorrow when the justices meet to decide whether to take up king as most folks will know, it takes four votes for the court to decide to hear a case. the bottom line is if the court follows its usual practices and procedures, it will not grant review in king. a supreme court practitioners know the most important factor the court considers in deciding whether or not to hear a case is whether there's division of authority among the courts below. cases coming out of federal courts there's a circuit split. these principles are reflected in supreme court rules. rule 10 identifies the factors the court decides. deciding whether to grant cert. the first factor is whether united states court of appeals enters a decision with conflict with another united states court of appeals on the same important matter. it's not difficult to understand why that's the rule. the important part of the job of the court is make sure the law

is implemented uniformly. laws in one way of the country and different way in a different part. that's why then judge roberts said job of supreme court is to insure uniformity and consistency of federal law. this is something we see a the justices themselves saying all the time. few years ago a justice told judiciary committee were deciding whether to hear a case, is there a significant conflict? an issue on which lower courts are divided? more recently justice said the same thing in discussing why the court denied hearing the same sex marriage cases. she said when there's no disagreement among the court of appeal, we don't step in. the major job of the court is to keep the law of the united states more or less uniform. i assume that's why the professor said he wasn't surprised by the denial given the lack of a split. here too there is no circuit

split. there was a disagreement back in july. the d.c. circuit has subsequently granted the hearing. full court is going to hear the case. when it issued the order doing that, it vacated the panel's judgment that eliminated division among the circuits. i'm not going to spend a lot of time talking about the decision. that decision is done. but there has been some continuing conversation whether that was proper and i'll just say that it clearly was. you can see that in the federal appellate rules themselves. they expressly say that the review is appropriate for cases of exceptional importance and it expressly defines exceptional importance to include when there's a circuit split. now the laws challengers of course continue to argue there's a circuit split. they recognize if you want the court to render, it's important there's a split. there is one because the review only vacated the panel's judgment not opinion. that's true. it's really a distinction without a difference. what matters for present

purposes is there's no division in the way the law is applied in different parts of the country. no need for the supreme court to intervene now. justice scalia again says -- he talks a lot i think is what happens. he said earlier this month in oral arguments a that the court does not review opinions. it reviews judgments and results. there is of course one -- there's a lot of other factors on rule ten. most of them clearly don't apply here. the other one that could arguably be in play when the united states court of appeals decides the court of law that has not been but should be settled by this court. i think it would be astonishing for the court to review the question posed in king rises to that level given its recent decision that the same-sex marriage petitions don't. why is that? for one, marriage petitions raise constitutional questions affecting the rights of millions of americans. in contrast, king is a narrow and state forward question of

statutory interpretation. the marriage case involve dozens of state laws and provisions set a side on federal grounds. the kind of question you want the supreme court to weigh in and assess whether that's valid determination of federal law n. contrast, there's no judgment from court of appeals setting a side regulation at issue in these cases. whatever you think about the court's decision not to hear the marriage cases, i suppose there's a lot of different opinions in this room. it makes far less sense for the court to hear king. the court follows normal practice. it will deny the petition or hold it and wait to see what the d.c. circuit does when the full court hears the case. waiting would give the court benefit of hearing what the d.c. circuit has to say. that's one reason the court usually waits. give it a chance to percolate in lower courts. waiting would give it a chance to hear from the d.c. circuit and also potentially 10th circuit expediting review.

we'll hear from the court next week and i think it will be a denial. thanks. >> i was sort of ineffect chul there. i think that you got a very good view of both sides of this question and i think it's clear which way justice scalia is going to vote if the court takes this case, don't you? >> let me very quickly ask this side of the table to quickly say whether or not do you think that the court takes this case or holds on? >> you always should predict that it won't. i think that the factors that might cause the court to take the case here are the fact that when dealing with implementation of large statutory scheme like this when one piece has to be in place before the next piece can actually operate, there is an argument that resolving this sooner rather than later is important for the whole system to work. there are questions about how

much time states have to reconsider their decision about whether to recreate exchanges. most states made the decision whether or not to create an exchange with the ris rule in place. now they have to be in a world rules are not in place. there's questions whether they can still get subsidies from hhs to create exchanges. do they wait to consider and so on? this is why every federal appellate court that's heard one of these cases has expedited the proceedings. every court up to the d.c. circuit also did it on expedited basis, every appellate court that had one of these cases this is not a question that can sit out there for a very long time. supreme court does have a habit of letting things percolate. one reason for that is because of the decision costs of error. if supreme court makes erroneous constitutional judgment, only the supreme court can fix it really. the statutory case congress can fix it.

the court often lets constitutional cases percolate a long time even after a circuit split. we have a piece in slate complaining about the court not taking some constitutional cases where there were circuit splits. but clearly because it's waiting for the right vehicle. in this kind of context, there's an argument this statute because it involves what congress and states do, there needs to be clarity about it sooner rather than later. every appellate court has recognized it thus far. that might be enough to have four justices agree with that as well. >> do you have anything else? >> let me add one comment about this. i think the more recent behavior of the courts is not the same denial of the skrrks ert in the same-sex marriage cases. i think it's the granting of stays in the various voting cases. i think what we see there is when the court believes that lower courts are gaming the system, they're not particularly tolerant of that. here the d.c. circuit and the

whole blowing up of the fill filibuster rule and so forth has very much politicized this issue. i feel for judges who were just put on. i think that this is very highly political. the distinction is made between split in circuit versus split in opinions. this is two fancy by half. it doesn't pass the smell test. i think it's always risky to predict the court will take a case. the odds are that it's not. so certainly she's right about that. but i do think that this has an odor of bad institutional behavior and especially when you add the oklahoma case into the mix, i would not be surprised to see the court agree to hear this case. >> quick rebuttal, bad institutional behavior by the d.c. circuit? >> that fails the smell test. look at the federal rules, this expressly reviews for review in fact circumstance. the plitization of the court is

only happening because of accusations like that. and i think that is reason why the supreme court may be hesitant to take it because given those kind of comments and given the fact that it's percolating and very quickly in the lower courts would look like a political move on the court's part to step in now. >> let's take questions from you, please, raise your hand and wait for a microphone. please state your name and the organization you're with, if you would like to. this person was extremely quick. >> hi, maureen with the indianapolis star. indiana's challenge in addition to challenge to the subsidies as greg talked about this morning, they're challenging the sovereignty issue and whether the government can tax states as employers. can anyone address whether -- what you think of that part of indiana's challenge? >> i think that's a tougher case to make. i mean, he mentioned that he's concerned about garcia and it certainly is true that the garcia decision the rational that the court articulated, the

idea that states have enough political weight in congress to protect their own interests has been thoroughly repudiated by the court, but the precise holding of garcia that basically says when states act not as stats but as employers or as service providers or market participants can be treated liked any other under the commerce pow the court has reaffirmed quite regularly in the context of reaching over federal decisions. if that's going to be challenged, it's unlikely a district court will go against that. and i don't see many signs of the supreme court is likely to revisit that part of its doctrine. >> let me say a word about that. in the nfib case the state's challenge the aca, the states did tee up an overruling of the garcia case. the supreme court denied cert on that issue. that was in the cert petition

and the court didn't take it up. i think garcia is not going to be overturned easily. on the other hand, there are some distinctions from what the indiana case is bringing up. and the the garcia case. garcia basically says the federal government can pose working conditions, minimum wage, maximum hour on the states. this is actually different. this is imposition of a tax on a state, not just requiring complix but actually penalizing in a certain way, and that is a nontrivial distinction. so i think if jonathan is right it probably will not result in overturning garcia but this is a nuance that arguably can put this more into the commandeering category than into you must live by the rules as every employer must. >> anyone else? >> my name is todd. i write a blog free market

monkey.com and also contribute to watchdog wire.com. in the state of pennsylvania. i'm sorry i don't have my source to cite my source but what i've seen, the issue came up of what happens if it stands and the pressure comes on the states to then set of exchanges. there are $629 million still on the table of level one awards to states that reject the exchanges. seven states rescinded those awards. but the 629 is the states that did not. the other problem here is that january 1st, 2015, is the application deadline to apply for level two exchange awards. if the republicans control the congress, they certainly then, the proponents would certainly not get any help there.

would at that point obama choose to use his pen and his phone to executive order to extend those deadlines? >> really quickly, it's possible that litigation could -- a court could, as part of its relief extend some of the deadlines. the fact these deadlines exist is an argument for dealing with this -- resolving this sooner rather than later. that's why appellate courts have always explained in thyself cases. the next panel is going to talk about practical issues but there are other things in the law that affect how this goes forward. the waive procedure visions could arguably be used to obtain tax credits without having to create a full exchange. they might have to do other things. there's a lot of pieces in this law which when we look at it in its entirety, and i don't think it's true that those of us on this side look at it in its entirety. states have different ways of

interacting, and the way our system works is that if congress makes an offer to states, and states refuse, and the voters of that state don't like it, then we vote people out. so from my state in ohio, people don't get tax credits because we don't create an exchange. if people in ohio don't like that, we can pressure our state representatives to change that. because this litigation has dragged on, they can't get help, that would be really bad. those who try to slow up this litigation it would be a sad consequence if the mechanisms in the law designed to help states that want to make this elexs more effectively disarmed or disconnected because the federal government decided to slow the litigation down. >> anyone on this side? >> the idea because this involves a complicated regulatory scheme, that warrants supreme court review now doesn't work. there's all kinds of complicated statutory schemes and the

supreme court doesn't, can't get involved in look at the legal issues. and that's the job of the lower courts. the fact the lower courts are taking this seriously will get this through the courts as quick as it needs to be and deal with the pratical ramifications when the time comes. >> who else? >> hi. clay from height. had a quick question on the timing. when can we expect to hear from the supreme court on this petition? and do you think the midterms could have any bearing anthem punting on this decision in a few weeks? >> that's an interesting issue. in due course, the order list from today, from -- i'm sorry, from friday will be disclosed monday. if there's no decision. and i agree with those who said nondecision is a possibility. then it would be pushed off into the future. it would be really scheduled for conference at a subsequent

conference. so we will know monday whether there's been a decision and if there's a decision what it is. we'll also know if there's been a nondecision or a deferral of that decision. i think that's what -- that will be monday's news. >> actually, we might not know monday. even if the court decides to take this case from the fourth circuit, they sometimes delay announcing that until they have done another quick round to see if there are any structural problems with the case. >> not likely in this case because they'll want to expedite it so it will be heard this term. >> they have plenty of time for that. >> they can wait a little bit and still have time to get it heard. if there's a quick denial we'll see that on monday. if we don't see that on monday, it could mean several things. if someone agree -- if they dec

hold it and see what the d.c. circuit does. >> the court can take a case in january and still hear it in the current term. who else? anyone else? question over here. >> my name is rich warrenstein. professor adler, about three weeks ago, you were debating professor baglia, i think in michigan. and you mentioned there was further research taking place. i think you were talking about the cti contract, a look at that. can you expand on that? >> that's something folks are still looking at. there's been a lot of research trying to figure out what the irs and various federal agencies thought of the statute. there's a house oversight committee report which shows that the irs, as it typically, does when it was first drafting its rule followed the statute. it wasn't until somebody else

saw a news report about problems this could cause and potential legal issues that someone decided they would depart from the statute. there's a question with regard to the contracts whether or not similarly when the contracts for the computer operations of the exchanges were being developed, whether or not federal exchange -- the federal exchanges required the same capability of being able to calculate state exchanges. and reading the statute is bad enough. having to read these dozens upon dozens of pages of procurement contracts seems even worse. there is an argument made that the functionality that the federal exchanges were initially required to have, the -- they were required, did not require the actual ability to calculate and provide a tax credit. that would be an indication

again that folks that do this sort of thing on a routine basis within the bowels of the agencies when reading the statute read it the way i read it when i gave my presentation before this was a political issue. established by the state, used throughout the statute in a particular way. state is defined in the statute. a decision that they didn't mention. states expressly defined in the statute to include d.c. did not include the federal government. territories defined. federal government never is. when people outside the political context just engaged the statute, what was their unpoliticized reading of the statute? federal agencies haven't been very forthcoming with everything. but, you know, there certainly are efforts to try and look at, what did neutral folks when they read this statute think it meant because obviously now everyone reading the statute has a sense of what the possible implications are. crs, an early read where they said if we go by the plain text,

pretty strong argument this is limited. acknowledged you could also find it ambiguous. irs initially said exchanges established by the state and they were told to change that and really gave no rationale. all the arguments we've heard about such exchange and the like were made and brought up after the irs made their decision after people were scrambling to find arguments for why the statute could be read. if i could really quickly, since david was quoiting from uarg, i think it's important to read the whole decision. we care 100% about the whole statute. i have looked at every use of the phrase established by the state. if david is right, there are provisions that allow the federal government to pull all

medicaid funding if federal exchanges don't fulfill certain obligations. that's just crazy. it makes sense. to say state loses money if feds don't do certain things? the other thing scalia said in that opinion when talking about the clean air act, the power of execute of the laws includes authority and responsibility to resolve some questions left open by congress that arise during the laws of administration. but it does not include a power to provide cloor statutory terms that turn out not to work in practice. we reaffirm the core administrative law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate. state is clear, capitalized, it's defined in the statute. established by the state. what we have not heard today is

any reason that the congress would insert the phrase established by the state. >> let me stop you there. david? >> a few things. i think it's sort of the structure of this back and forth is telling. on one side we have an inquiry into what did an irs functionary put in a request for work to computer programmers. there's that possible way. i don't know what those documents will say. we have a judge giving a cold reading of the statute and saying i'm going to look at the statutory text. i think the statutory text should control. the idea woo should read the statute without considering its implications, and that goes against any plain meaning or fair meaning as justice scalia would say. it's a fair reading of the statute. you don't interpret it in a vacuum. you don't look at purpose or read "the new york times." you say, how does this reading

of the statute affect the rest of the working of the statute? and, you know, lastly, with regard to harry reid's midnight editing session, again, i don't think any of that matters for my textual interpretation of the statute. the statute as written with state, i know it's defined but also included in 1311 so it works by reference. the reason why some staffer in harry reid's office late at night, perhaps after a beer, looked at the statute and said, oh, my gosh, in this provision we say established by the state. i'm a line editor. it should be consistent. i don't know if an interview with that person would matter. that's not what was passed, is that individual staffer's intent. you look at the statute and walk through it the way professor adler did and i did and say what's the best reading of the text, not what some staffer in harry reid's office did. >> i would have said before i

got here that it wasn't going to be all about scalia, it might have been all about chief justice roberts, but i have been schooled. so two announcements. there's water on the first floor outside. we're going to take probably now ten-minute break. not a 15-minute break and restaurants -- rest rooms are located on the lower level. so, please thank our panel. the supreme court announced it will consider the legality of tax of cities in states without state-run insurance markets. the plaintiffs in king v. burr well areuringing those who sign up for health care are not

subject to subsidies. because the health care law only calls for financial assistance in states with their own insurance markets. to date, 13 states are operating their own exchanges with the rest relying on healthcare.gov. in honors of veterans day, vice president biden will particinate the annual wreeths-laying ceremony tomorrow at arlington national cemetery's tomb of the unknowns. we'll have that live at 11:00 a.m. eastern on c-span. and later in the day, arizona senator john mccain recounts the lives of american soldiers who served in conflicts ranging from the revolutionary war to the wars in iraq and afghanistan. that's the topic of his new book titled "13 soldiers, a personal history of americans at war." that will be live at 6:30 p.m. eastern on c-span2.

here are just a few comments we've recently received from our viewers. >> i just watched your show this morning on domestic violence and was very disappointed with what i saw and heard. i thought the guests were both weak and ineffectual, and it seems that the bulk of callers were a bunch of whiney men. one woman is beaten every 15 seconds in this country by a husband or partner. that is one woman every 15 seconds. this issue alarmingly is swept under the rug in this country, probably and most likely because most of the perpetrators are male. the only way this will ever change is if men are willing to look at their own bad behavior and address it head-on. >> i'm listening to your commentator and the one from the

bloomberg news, and they are talking about 2,000 some bills being on the -- harry reid's desk to be presented for whatever. each and every one of those bills have a repeal of what they call obamacare or of the affordable care act. so whoever is your commentator needs to bring out that point. >> i just heard the comment from a lady who called in and said -- i'm watching the show recorded by the way, it would be good rather than having democrats leave a comment and republicans, air them one at a time. so democrats and republicans fight it out it sounds like verbally on the show. if you ever decide to do that, i'm up for it. >> continue to let us know what you think about the programs you're watching. 202-626-3400.

e-mail us at comments@c-span.org or @c-span. next, medical and military experts discuss current health and security issues from around the world. topics include the sprefd ebola, ferksicts of biological and chemical warfare and humanitarian and refugee crises. this is hosted by the interuniversity center for terrorism studies. it's just under two hours. >> okay. i guess we're ready to start. i want to welcome everyone again to a very timely seminar. i want to thank all of the people who put this together with a great deal of haste really, considering the topic. the health challenges we have. the security responses from ebola to terrorism. of course, i think it's

extraordinarily timely event. we have a super panel here. i'm going to let yonah do the introductions at the right time. our panel -- we're blessed really by having a panel that has a lot of military experience, a lot of government experience, medical experience, a lot of all kinds of experience, if you will, that you need to talk about this topic, along with don and his international legal advice and all of that kind of thing. somebody told me one time when i was a young guy, if you want a good idea, read an old book. and i think that is very timely. for example, here's a book written by yonah 13 years ago. and the title is "terrorism and medical responses -- u.s. lessons and policy implications." i think that says it all. with that, yonah, it's yours.

>> thank you for your kind words. and since he mentioned the book, i would like to call your attention to the extraordinary book that general reyes and we have the information in the package that we provided to you with -- if you read this book, you know what it's all about. and we learned the lessons, what worked, what didn't work and the general made many contributions as we know from many, many, many years. now before we move on to our speakers, i have to deal as an academic, with some of my -- first of all, again, to thank

the co-sponsors of this event. of course, the potomac institute for policy studies and the chairman is unfortunately not here today. but we do have some of the colleagues. kathryn, where are you? in the back. and i think we do have a few other members here. and my colleague right there for many years from the international law institute. and i do have to mention alsoor colleagues who are not here but they work with us for a long time. the center for national security law, the university of virginia school of law. particular

particularly john moore and professor turner. i have to mention also my colleague, professor edgar brenner who died several years ago. we worked together for many years at the center for legal studies at international law institute. now let me first introduce our panel and then i have to make some remarks before they speak. one dr. robert right here and you will see a bio, very, very impressive bio, as the general mentioned. we do have some former senior officials, the white house, the pentagon, u.s. senate and so on. so you can read the bios of the speakers. next one is dr. rashid chotani.

medical also doctor who is a -- at the potomac institute. also has a very rich background, and you can see that. who is now with the near southeast asia center for strategic studies. and he also participated in the government -- the u.n. and so forth. now you do have the program in front of you, and i would like to make a few remarks, both as an academic, and it's my

obligation to try to put some context and rationalization to our discussion. before that, i would like to mention that in general wln we discuss the issue of security and terrorism, we dedicate the seminar or the session or discussion, first all, in the memory of the victims of violence, both manmade and mother nature which i will come back to it. now because of the ebola disease and those who were victimized by terrorism throughout the world. as we speak, we have to keep in mind that we're living with a challenge which is very serious with implications regionally and

globally and all of that. and we certainly have to think about the victims. also some specific of segments of the society that are targeted by terrorism, for example, some of the journalists. those who cover the events and try to bring us the information all the way from -- who was assassinated in pakistan in 2010. and so the islamic state, a video of the execution of james foley. so, one, it's a dedication to the victims and secondly, also we have to celebrate the work of those who served to protect our societies. in this, of course, the medical

community, the first responders, the law enforcement people, the military governments and the civic society in general. secondly, i think, if i may, we try to pull together a seminar that would have two major challenges. in other words, one is the initial disasters -- okay. so i -- very quickly, a few slide slides. humanity faced two major challenges, natural disasters and man-made disasters all the way from earthquakes to the deadly diseases and now ebola. and secondly, of course,

man-made all the way from the economic collapse, technological disasters, crime, piracy, radicalization and terrorism and war. obviously, we have to deal with both of them in order to understand what are some of the major challenges that we have to deal with. now, if i may, i think we have to make the connection between the historical experiences, as well as contemporary times. trying to deal with technology. as we say, nothing is new under the sun except technology, right? i'm using the wrong thing.

right. after all, i'm an academic, but, at any rate, we just had the publication here on the challenges in africa that was published yesterday and we're releasing it and we'll provide you with copies dealing with both ebola as well as the terrorism challenges. so if, for example, we look all the way back, even the bible and the holy books and all of that and it's very clear what happened to societies at that time and the victimization, but it is interesting to look during history what were the reactions and almost to blame for some of these disasters. natural as well as manmade.

and we can look what shakespeare said and became clear to point the fingers. guilty of the disasters. but i think the best answer was provided by noah when he built the ark because he basically sent a message that i think should be critical in terms of developing policy. he said, look, there is no room. there is no room for delays or indecision. so governments have to move, and the society have to move in order to deal with the challenges. so if we look back, obviously, we can look back at history. the time of the pharaohs, if you will and the ten plagues. the middle ages, and the thing is that the middle ages and the -- is not just a chapter in

history. even today we find in contemporary struggle that some extremists, they try to push an idea that one can call blood -- for example, in the gaza recent, i think crisis and war, there were communications that the jews are poisoning some of the waters in gaza in order to kill more and more people. now if we look back at the responses, this is one picture of a physician in the middle ages protecting themselves from the black plague. and basically, you can see that he's really wearing a cloth which is oil cloth covering his

face with a mask and a sponge with vinegar. so issues of mass mortality. so we have to learn in the past, and i found in fact, i think professor wallace and i, i remember we were together at the conference in turkey. and we saw the monument of kamal ataturk, the father of the turkish republic which just celebrate the 91st anniversary of the turkish republic. and i think kamal ataturk in this particular statement trying to equate the -- was really on the mark. it seemed to me he set it for us

to follow and humanity that we cannot be detached from reality, and we have to look at the situation as it is. we have to deal with the virus and the threat of ebola and what we learn from history that there are two emotions that drive people. one is fear and one is hope. with fear, obviously, we see what that man, even if there were very few cases in the united states in the west and it did generate a great deal of fear, we're going to discuss the whole issue of ebola and we do have -- i will say experts to deal with that. each time we're surprised about the surprise because we did not

anticipate that kind of activity while in africa. we know that there were many, many cases of infectious diseases all the way from malaria and so on. so number one, we're going to discuss the ebola specifically. the roots. what are some of the challenges we're going to face in the coming months and years. finally, we're going to discuss also the security issue cl hwhi has to do with what happened with isis. now i suggest we look at some of the other groups as well. for example, hezbollah. and, obviously, we also marked this month in october, the 31st anniversary of the attack on the marine base and the french

forces in lebanon. and i think we have to look at hezbollah as well because we find that hezbollah is very much engaged as we know in syria and, according to all kinds of reports, hezbollah, frankly, was able to upgrade his capacity. and according to different reports, there are probably about 100,000 records of hezbollah as in any case of a third lebanon war between hezbollah and israel, we are going to see, obviously, that kind of capability. now, in addition to that, i think we echo a look at other groups in the region and the next one, of course, is the al qaeda group.

but not only al qaeda central. we have to look at the affiliate groups and we're going to discuss it with one of our panelists as well. the maghreb and so on. and this is an older map in the beginning of the year. obviously we're going to have an upgraded map to indicate what's happening now in the region and elsewhere with the americans. the groups in the region and the extended groups. we also have to deal with the hamas issue and particularly now we find the most recent attack in the sinai that we witnessed, the attack on the egyptian army

in sinai and apparently some connections with the hamas and other external groups in the region, and clearly, i think egypt in order to develop security, they must construct a buffer zone in the region between sinai and gaza and israel. and there is no doubt that we have to pay very close attention to the question of stability in egypt, which is the most important country in the middle east. finally the islamic state that we're going to discuss in some details and what is really interesting about the islamic state that they are able to somehow recruit thousands of

volunteers from all over the world as we know the foreign fighters. for example, from tunisia today, according to reports, there are about 3,000, i think, volunteers. despite the fact that tunisia approved that it can somehow develop democracy. the recent elections that we know. but nevertheless, we find those who fight for the islamic state. and the brutality of the islamic state is very well known, but i like to mention that only the journalist but also women and children and so forth. so we know the islamic state controls territories as well and, of course, the concern is that the islamic state has a grand plan strategy in five years or ten years and i would

say we have to be concerned about this. finally, in regard to the role of terrorism linked with security, we're going to discuss the humanitarian crisis in the middle east and in africa. we'll go into some details. the countries that we know if you take, for example, syria, the total number of refugees or displaced person in syria is around 10 million if you take into account the refugees, over 3 million left from various countries in the middle east. i think the same thing is in the

maghreb, and we're going to discuss it. so the question is basically, what are we facing in terms of security? and i submit to you that we must discuss not only the ebola, but the biological and chemical and nuclear challenges that society is facing and then, of course, in order to deal with the issue, we have to strike a balance between the security considerations and civil liberties. with that i'm going to -- come and speak. >> thank you, sir. appreciate it. >> sure. >> professor alexander, general grai gray, ladies and gentlemen. it's a great pleasure and

privilege to be here. i'm reminded of a plato quote that only the dead have seen the end of war. only the dead have seen the end of war, terrorism and disease. and so on the topic of ebola, it really represented, i think, a very interesting point in time, and i think the historical reference to the black playing is an interesting one because it will highlight some points i'll ma make later about the risks we face for future plagues like not only ebola but other things that are going to be enabled by things like climate change, things like globalization and megaurbanization. but i'll talk about that a little bit later. i think the issues i'd like to highlight for you is give you a sense of, we enter into this circumstance with great humanitarian crisis and quite frankly initial security crisis in western africa.

after a fair bit of work that has been done over the last decade to improver game in terms of health preparedness and health security. so it will be my intent to give you some sense of what has been done and from a policy perspective exist for the current administration, whoever is president next, he or she, whoever that is and certainly the new congress that will begin in january. i think the current ebola crisis from a u.s. perspective highlights the great vulnerability of our health care system to a single case of ebola that basically walked through the emergency room door in dallas and was immediately sent out after all the warnings and messages the centers for disease control had sent saying it was possible, more than possible, that an ebola victim could walk into your emergency room or hospital. what's worse about this is the

effect and you can argue this has been largely media hype. but i would argue something very different. there's a very core fear in the american public that predates the events that happened here in october that go well back, and i have an historical example of it. back to 1946. so many of you may not realize that during world war ii, we had two manhattan projects. one was developing a nuclear bomb and we know who the oppenheimer was there. but there was also a bilomgical oppenheimer. george merck. his name may sound familiar because there's a billion-dollar multinational pharmaceutical company named after him. but he was the american oppenheimer for the offensive bw program. quite frankly during the several years it was existent in world war ii, they were never able to

create a functional biological weapon that they intended to use at either japan or germany used those weapons against us. i make that point because there's an historical point about the role of intelligence. in 1943, when president fdr was warned about the possibility of biological warfare, the u.s. intelligence community, basically informed him germany had a biological weapons program and germany didn't. we found out after the war the exact opposite was true. you can relate to more recent examples where the intelligence community hasn't been 100% right on these sets of issues but it's just worthy to note it was certainly the case then and now if we rely on intelligence we may be very disappointed. particularly about not only terrorism and the use of these kinds of weapons but also about disease itself. the point i'm trying to make, in

1946, george merck released a report to the american public about the efforts to develop biological weapons. it's one of the few cases that i know of where a report was unclassified, released to the public and later reclassified as secret and pulled from all the shelves. why was that? because it scared the bejeezus out of the american public. you can recount that if you go into the archives of newsweek magazine and time magazine when they were printed on paper and evaluate what was not only the scientific debate but the fear that was invoked by the consepts that you could create agents that would be invisible, total ly alien to our senses that could kill you in a rapid fashion. everybody has been sick in their life so there's some element of what i'd say personal reference

to the idea of illness as there is. few people have had ebola in america. if you recall robert preston's book "the hot zone," he makes a compelling case why you should fear such an organism, the ebola virus. there's an innate fear and a created fear by public press. there have been popular movies of the subject. and, obviously, the media has certainly not missed their chance to sell print or advertising in today's world. but the point is this represents an interesting nexus for the potential for terrorism. that's kind of what we experienced around 9/11 with the anthrax letter attacks. so i would just argue for the purposes of this panel, that in some ways, while we view the ebola crisis as it is today, it could certainly migrate into a

different space, should someone take advantage of the availability of a virus like ebola and use means to deliberately infect people. but this is not new news to you but i do think in some ways you need to understand the health care system that we have to date. it's a $2.8 trillion activity. and the u.s. government currently spends about, for hospital preparedness, about $225 million. that represents 1/100 of 1% of what we annually spend on health care. so you can imagine that what we gain out of that federal investment around health preparedness is evident when a single case of ebola walks through a door or could be any other disease of significance like smallpox or pandemic influenz is that, the affordable health care act, and i'm not here to throw stones at it, but

does not have a thread of preparedness weaved through it to ensure the health care system that we will develop over time, where every american has not only access to the right health care is a system that is prepared to meet the challenges of the 21st century. and ebola represents if you will, the poster child for the challenges we face ahead of us. the other thing you need to understand and i'll throw out this quick anecdote. we spend -- the amount of money we spend an health preparedness is about 3% of what the american people spend on potato chips. as a society, we don't put a lot of investment or priority or sig novemb significance on this. i need to convey to you there's a wealth of things that have been done beginning back in the mid'90s during the clinton administration that really have, if you will, evolved policy and

legislative action to the point where we are today that in some ways, i would say we have enough policy, we have enough legislation to do what we need to do, but we failed on execution and commitment and priority to do the things that have already been established by presidential policy and legislative statute. and i'll give you some examples of that. first of all, president clinton basically recognized the concern about bioterrorism. even though conventional press says it was around the book cobra event, another book about a synthetic virus and toxin that someone comes up with. but the point is that much like the einstein letter of the 1940s, that was sent to president fdr, president clinton got a letter from a distinguished nobel laureate who

earlier in that decade in 1992 did a study for the institute of medicine that indicated that emerging diseases were going to be a significant consideration in the future. again, 1992, before the issues, if you will, of global climate change, before the issues of globalization were realized. dr. letterberg and his colleague from yale university basically recognized that we were on a converging path, potentially with disaster with the possibility of emerging diseases in bioterrorism. and it was their work and dr. letterberg's warning to clinton that basically if you will initiate things. i'm a great believer in our system at government at best we can hope for imperfect incrementalism. you can look at any issue in the united states history, whether

civil rights, defense policy or i would argue in this case public and medical preparedness that we demonstrate imperfect incrementalism. we make a few steps forward, one step back. realign and move forward again. and so it is with that, there have been a series of, if you will, legislative initiatives that basically happened after 9/11 that are worth noting. one is the pandemic all hazard preparedness act. i'd like to tack credit for it because i was a staff director for the senate subcommittee that drafted it. but it was actually senator richard burr from north carolina and senator ted kennedy who championed that bill. and the significance of that bill was it basically used the lexicon of national security to define and, if you will, redefine the u.s. government's role in preparing for these events. interesting enough, and i'll

make reference to a project that general rey was involved in in his career. but we used the goldwater/nichols act as the template for this bill. not because we think public health or medical capability should be aligned along the dod axis, but it did identify in the goldwater/nichols act the idea of having joint operations, putting somebody in charge and creating a kind of command structure overall. so with that, a position was created at the health and human services department for the assistant secretary of preparedness and response. regrettable in the crisis at hand you don't hear much about that office but it was their function to do the necessary things to align not only the u.s. government's efforts in this space, realizing that in some ways it's not only hhs, dod and va that have significant assets to bring to the fight but also this idea that to basically align the state and local authorities who are, if you

wishlgs the front line soldiers in this kind of activity. we can argue that was effective or not. i think the story will be written. but i do hope that as a result of this ebola event, somebody will have the wisdom that they had in the 1980s to commission a holloway report that general gray was part of. we talked about it before these proceedings. that really did assess why did things fail? in that case, desert one, because what they identified in the blueprint they laid and the vision they left was one that over two decades went from the point in time when we had a tremendous failure in the iranian hostage rescue to the point in time we could all celebrate the demise of osama bin laden. that didn't come overnight. that didn't happen because somebody just said let's do it.

it literally took decades of commitment by the special operations committee to do four essential things. four essential things that i would argue today are the essential elements of the kind of public health preparedness we need to address the current ebola crisis and any future public health crisis we may encounter. one is recruit the best people. if you look at the record right now, we have a tremendous brain drain. and graying of the public health commune hit. the people operating at state and local level who basically eninsure people abide by their quarantine, that people do do the things that lower the risk to the public to disease. we also acknowledge in the medical community that in many ways we don't necessarily train or equip them to manage these events. i think the events in dallas prove, as they did prove in the case of desert one there is no

such thing as just in time preparedness. the idea you need a force at the ready, they need to be trained, equipped and exercised. yesterday i spent the entire day, i co-chair a channel of the institute of medicine and we spent a day looking at what's already transpired with the ebola virus. we heard from local public health and medical leaders from atlanta, from nebraska, from new york and from dallas, or at least indirectly from dallas, on their experience so far. and what they said is, you know, what we really needed to do was make sure we had the equipment on hand and that we were well trained. not just in time training but continual training to ensure that we could meet the mission. so these are essential elements of the challenge we face right now in terms of preparing. now you'll hear of ad hoc teams from cdc, department of defense.

those are truly ad hoc gap fillers. but as we look forward to the events before us, i think it does raise the question, how much are we going to invest in this space? how much of a priority are we going to put in this space? after this ebola crisis is over, realizing the next one may be on the near horizon. now there 24 majare two major p issues that are outstanding that need to be addressed and then i'll probably be at the end of my time but i'll leave you with some final thoughts. one of the lessons that we learned in the early 2000 period from the standpoint of the anthrax letter events, it could have been a lot worse. we know from the wmd commission report by senator graham and talent, they recognized had that

perpetrator taken a single envelope of that anthrax and put it into a ventilation shaft in the metro, it would have killed several people. it could have infected several hundred or several thousand people. and this points out a very important issue of inversion that i think has happened in the policy toward these events. we talk about inversion about companies moving overseas. let me give you policy aversion over health security. number one is in considering these events, it was always believed in some ways bioterrorism, biowarfare, a state actor conducting this or a group, conducting these kind of attacks using infectious disease agents could create a situation not seen in nature. you could basically infect millions of people nearly

simultaneous simultaneously. the belief is in some ways if we prepare for natural events like ebola, which don't have the same epidemiology, that somehow we'll get the benefit of improving our public health and medical infrastructure, maybe at a lower cost, but in some ways, that's the more likely scenario. it's like telling an army or to say -- or basically better yet, let me use a football analogy, taking the washington redskins and telling them they'll play one of the local high school teams as their way to practice when they're going to play the dallas cowboys or the seattle seahawks. the whole thing is that if you define the problem in a certain way, and i think we're an the wrong track at the current time, that we will basically not prepare ourselves to address -- i won't say the worst case

scenario but certainly a reasonable case scenario where terrorism tries to use these kinds of agents as weapons. and as i think you can see in the events of the ebola case, we have not proved ourselves necessarily competent to deal with a single case of a naturally occurring disease that's reported in the united states. the second issue is, another policy issue is, in all the efforts and even the efforts i was a participant of, that preparedness, particularly health and security preparedness, was somehow outside the domain of regular health care. kind of an add on. an adjunct. it has to be integral with. that's another major policy issue that i think is outstanding. i think in the construct of my comments today, alluding back to the points the professor

alexander made around black death, we have to look at the events that are going to make our life challenging no matter what. whether it's disease that is natural in origin or deliberate in origin. and that is three essential factors. talk about climate change a little bit. globalization. the opportunity that someone can get on a plane today and be in the united states about the same day but the next day carrying a disease that either he acquired or she acquired. that could represent a public health threat or by basically having ten people purposely inoculated by a particular disease being if you will, infiltrating the united states by commercial airliners. and i think the other element here is this idea of urbanization. ebola wasn't a problem in the past because it happened in a remote village. people would get sick.

people would die and because there was no access to modern transportation, the outbreak was naturally contained into those settings. now there are better roads in africa. people living in large urban environment s like monrovia. a million people living in a dense urban environment. somebody gets sick in that environment, particularly when sanitation and other conveniences of life we take for granted are not available, it basically creates a circumstance where these things can rapidly propagate. i think i've probably, if anything, went over my time, but i hope i left you with a sense of the landscape that we've done which, again, first is imperfect incrementalism. we're two decades into a dedicated effort to improve the preparedness of our health and medical infrastructure. we have many more miles before we sleep, before we get it

right. this is not rocket science. i think the experiences or analogies we've done in other areas and i was the socom experience as being one employe fix this problem. it's not entirely expensive. but it takes priority. it takes leadership. and resources to do so. and the last thing is, we need to define the problem correctly. that in some ways the challenges before us are likely to be more frequent. they may represent a deliberate component that represents something entirely different than we are dealing with now. and we should have the wisdom and fortitude to develop what we need before it happens because there is no just in time preparedness. with that, i will completely remarks. >> general gray, professor

yonah, and distinguished guests. it is always difficult to go after someone you respect tremendously, a friend, mentor and adviser for many years, dr. kadlec. you what i will do is specifically focus on some of the facts and ethical issues related to this particular disease. in africa, ebola primarily occurred in remote villages, tropical forests in central and west africa. democratic republic of congo, formerly known as sighier -- we have seen cases in new guinea and sierra leone.

between 2006 and 2012 it,388 cases and 1,590 deaths are recorded. now when you look at this and look at numbers today we are amazed. that is something we want to keep in perspective. how does ebola spread? now recent studies have clearly indicated that fruit bats are a reservoir for ebola and that nonhuman primates such as the ape and monkeys are carriers that transmit it to humans. now let's move to human to human transmission. the way in which it appears in human, humans at the start of the outbreak is so far unknown. we know how it comes but really don't know what exactly happened. the first patient becomes infected through contact with infected animals, such as fruit bats, as i mentioned, aep primates. which is called a spill over event. person to person transmission can lead to a large number of people getting infected.

and small past ebola outbreaks, primates were also effected and a lot of primates died during these outbreaks. and humans when they consume those primates or touch those primates got infected. humans can spread in several ways, through direct contact, broken skin, mucus membrane. eyes, nose, mouth and body fluids of a sick person. and it is not limited just urine, saliva, sweat, vomit, but also the breast milk and semen. objects like needles can also contaminate and transmit and from infected as we have also mentioned, you know, the fruit bats and primates. past research as we know have established now, and we are still working on it and there are still some questions.

but past research has clearly suggested that the spread does not -- that the disease does not spread through air or by water or in general by food. in africa, ebola may spread at the result of, as we mentioned earlier, handling of the bush weed which is very critical to understand and appreciate. there's no evidence that mosquitos or other insects can transmit ebola. once someone recoveres from ebola, they can no longer spread to others. however, ebola is found in semen for up to three months. so that is something also to consider. as of october 29, the current epidemic in west africa called by the zieier stream has resulted in infecting over 13,000 people and close to 5,000 deaths which brings the current case fatality, mortality rate to about 36%. the three main countries are liberia, sierra leone and

guinea. nigeria had 20 cases and eight deaths and was declared ebowl why free on october 18th. synagogue was declared ebola free on the 19th. all districts of sierra leone have reported one case of ebola. and the next potential country that could get the disease. or 500 health care workers have contracted the disease out of which 50% died. which is a very high number. because the case fatality rate right now in the general population is about 36%. interestingly, the first outbreak that happened in 1976, the case fatality race was about 80%. that was a zieier strain. the last outbreak in 2000, 2001, had a case of about 32%.

so we are getting close to the percentages that we anticipate that are going to be for this particular stream. we all know in spain, there is a case on october 6th, and a nurse is taking care of two missionaries contracted the disease on october 20th. no trace was found in her blood and spain will be declared after 21 days ebowl why free of actually 42 days ebola free. we all know about the cases in the united states, the united states and dr. kadlec talked about it in detail. and the problems and issues with our preparedness and recognition of disease is big. something we need to look at very carefully and appreciate. there are a couple other cases, there is one case that is in new york right now. that was diagnosed on october 23rd. and a physician worked with doctors without borders and it is currently being treated.

and all of the tracking in terms of people that he was in contact with is being done in new york. there was another potential case in new york of a little child, 5-year-old child, taken to the hospital who tested negative. there was a case in maryland, taken to the university of maryland medical system on october 27th. and it turned out that was not a positive case of ebola. there are two interesting things that happened on october 27th. cdc outlined plans to monitor travel. most health care workers returning from west africa or ebola hard zone would be considered to be at some risk for infection. while health care workers tending to ebola patients in the united states facilities would be seen as low but no zero risk threat to the population. these guidelines were short of the controversial mandatory quarantine imposed by some

united states states such as new york and new jersey. same day united states department of defense came up with its own policy well beyond previous established military protocols. isolating about a dozen soldiers as far as at the base in italy, including mayor general williams who oversaw the initial response of the oebola outbreak if afric. the military had been building infrastructure to help authorities to treaty bowla victims. we have about 3,000 boots on ground in rotation in africa, helping with this particular problem. one of the critical problems of ebola is house to diagnose this particular disease. we did not have an effect of way of doiagnosing it. there was eua for the defense

department for realtime for chain reaction for ebola. on october 25th, fda issued another emergency operation for two new diagnostic tests, called the biochoir test which can be done on student and give you your result if about an hour. france also has the ebola z screen which has been developed by the french atomic energy position. they can diagnose ebola in about 15 minutes. there is no approved treatment available for the disease. clinical management is in supportive care of complications. however multiple therapeutic drugs are in the process of being developed, that would help this -- help work on this disease. there are two particular vac evens that are of interest over

here. one developed by glaxosmithkline. another one by new link, which is a canadian vaccine, being produced in iowa. both of these vaccines can, if the test of all of the safety in humans that is being done right now comes out okay, then this should be a descent amount of supplies in the middle of the first quarter of 2015 before populations within the united states are to be given to health care workers and the first responders in africa. one of the most -- one of the other important factors to consider is what is going on in terms of the beds in africa. there are just not enough beds for patients. the latest data from the case, it 2% of the planned ebowl why treatment center beds and 4% of planned community care center beds are now operation.2% of th treatment center beds and 4% of planco