board room and also worked at doj. again, as you can imagine that's very brief because i want to spend our time hearing from these folks. there's a lot more that they have done. i'm going to move over here because i don't want to do a big formal thing. can you hear -- is my mic on if i -- how do i sound? can you hear that? are you guys all on? say hello. >> hello. >> hello. >> good morning. >> test test. >> what we want to do is talk about the three cases as promised. for an opening, i think one way to think about the current supreme court and this may run through all three cases and like to get your views on this, is if this -- if this not only term but this sort of period in the court were not just nine justices but were sort of a permit

personality or a friend of yourls -- ian is shaking his head nervous about this hypothetical. >> they're not my friend. >> i think you could argue they'd be a bit like a friend that wants to be considered sort of laid back. you ever have a friend like i don't care where we go to dinner and then pick a restaurant abe they have strong ps of about where you go to dinner or i don't care which way we drive and go to the stadium and then strong opinions once you're in the car about where to go. what i mean by that is we have a court -- i want your views on this -- that talks a lot about judicial minimumization, a constrained role for unelected judges, that talks a lot at times of deferring to congress or congress's ability as we'll discuss perhaps in the health care example, congress's ability to amend and fix and in voting rights. congress can get in and change this. there seemed to be a lot of references across these areas by

this court into the idea that, well you guys figure it out. we know our role and we're easy going and sushi is fine. pizza is fine. until the point you get to the court cares about and then reaches into the lives of americans but i would argue the political process. and to the extent that it has limiting principles, if you think about, again voting rights reright s relating to the fair housing case and it seems empty as a practical matter today. so we're going to speak today about whether that is a fair concern or perhaps not. whether the court has ever right to say, hey, these are statutory problems that congress can fix and the point congress is broken or can't do so they have every right to do what they need to do and not adjust. i'd like us to think about that.

i like to start with a simple restaurant analogy before we get too deep. but i want to turn it over to our panel and the way we're going to do this so you hear more of them and less of me is we've sort of split up our cases. we're going to do roughly 20 minutes on each with each key case being xland by one of our panelists, talk it out and then to the audience and for everyone watching on live stream or c-span. please when we do the audience part identify yourself. we can do a comment or question. we care only about length so if you want to do a comment that's equal in length to a question that's fine and then a response from it. so with that said i think we still want to start with fair housing and start with lisa. tell us in plain english what this case is about and then let's chop it up. >> okay. i'll try to tell you in plain english what the case is about because it's a very -- it involves a very technical issue

called disparate impact or effect. the case was initially brought by the inclusive communities project which is a nonprofit fair housing organization based in texas doing work in texas and the mission of inclusive communities project is to redress or try to undocent ris-long systemic residential segregation both perpetuated by the federal government and private actors. one of the ways they do that is to help place persons of color in communities where their race does not predominantte and does so by taking advantage of a voucher program that is offered under the tax credit the low-income housing tax credit program

administered at the federal level by the treasury department but the treasury department does leave it up to each individual state to come up with its own formula for how the tax credits will be apportioned and the state of texas used a formula for placing the tax credit housing developments in a way that icp argued perpetuated racial segregation. in fact, they showed evidence at court that 92% of the low-income tax credit projects had been placed in predominantly communities of color. icp challenged the formula saying it had a disparate impact based on race. the lower court agreed. the appellate court also agreed with icp and the state of texas appealed the case to the supreme

court. this -- the question before the supreme court is whether or not the whole theory of disparate impact is cognizable under the federal act and so this case is actually taking place, it's laid out or unfolded against a very interesting backdrop and that is that 11 appellate courts, every appellate court to have heard the matter, has agreed that disparate impact is cognizable under the law so you have unanimity among the appellate courts on that particular issue that's before the court. what you don't have unanimity on amongst the appellate courts is sort of the test. the three-prong test that you have to use to determine whether or not there's a disparate impact. but that particular question is not before the court. >> and define disparate impact. >> the disparate impact is where you have a policy that seems neutral on its face.

so let me give you an example that is not related to this case. let me give you one from one of the insurance cases, insurance realigning cases that i've worked on. the insurance company says we will not insure any home that is valued under $65,000. so the market value of your home is under $65,000, you cannot get insurance with our company. the policy seems neutral on its face. it doesn't seem to have any kashl connotation racial connotations there. but if you apply that policy uniformly across the board, it has the discriminateory effect of excludeing american african and latino homeowns since they own homes with market values urn $65,000. >> and before we broaden out to the panel, explain how this works as a statutory case. did congress mean to provide

this kind of protection even where there isn't explicit evidence of individual racial discrimination? and what other ways might the court deal with the ruling or the outcome? >> that's a great question. it was one that's raised during the hearing. i think it's very clear that congress did mean, it did intend for disparate impact to be included. when it originally passed the law in 1968, and also when it amended the law in 1988 in fact there was a congressional brief amigus brief, written, co-authored in part by senators walter mondale and ed brook who were the original authors of the fair housing act and they say in their brief that they actually did intend for disparate impact to be included in the original law that was passed. april the 11th of 1968.

and actually as a brief points out, there were amendments made at the time that the law was passed in 1968 to infer an intentional standard within the statute and congress rejected that amendment. so, not only did the framers or the authors of the law intend for there to be disparate impact but when those who were opposing the law meant to infer or confer this intentional standard, in the statute it was rejected by the congress. subsequently, in many, multiple years, senator orrin hatch tried to amend the fair housing act by adding an intentional standard. so after the law was passed in 1968, senator hatch tried on many, many occasions to change the law by adding this

intentional standard. every single time it was rejected by the court and then again in 1988 when the law was amended to really expand and broaden its coverage to include two protected classes, disability status and also familial status. at that time, again, this intentional amendment was introduced. it was rejected. but what congress did do what it amended the law was it said there are three instances that we don't want to apply to disparate impact. so one example of that would be because, remember familial status is now a protected class and what congress said was, if local municipalities pass a reasonable occupancy standard we do not mean for that reasonable occupancy standard to be challenged by the fair housing act under the disparate

impact analysis saying that the occupancy standard will discriminate against families with children because you can see logically how they would happen. >> right. >> if you have an occupancy standard that says you have to have one person in a bedroom per every 70 square feet that is going to limit housing opportunities for families with children. but that's a reasonable standard and you can't use disparate impact to challenge this. >> panel? >> so one of the things that i think is interesting as we kind of consider disparate impact is we think about often discrimination in this country kind of through the prism of kind of like black and white interactions but i think when's so important about this particular standard is how we look at discrimination you have a great example and as we think about familial status, you think about young families. also hud had a great uptick in kind of claims being brought

from disabled residents that we often don't see this overdiscrimination that, no i don't want to rent or lend to disabled citizens but yet you find difficulty with finding housing, appropriate housing. an enso, i think you know to the extent that many of the conversations have only centered on just talking about race and not thinking about these other protected classes my hope here is that the court considers kind of a far reaching effect that is will come into play if you think about striking down disparate impact. >> and, robby, i wonder if you could speak to what the court views as the dilemma here especially given your time before the court. because on the one hand i think many people can relate to the concern that today we have a lot of what is sometimes called in the literature racism without ricist. systemic or structural racism unfair and built on a legacy of

what was formal racism is no longer actually explicitly announced and applied in the same way and yet as a country we want to combat that so people can relate to that. and yet, it is not so easy an issue because on the other hand being fair minded about the legal limitations, people would say, well, if you're going to use the legal punishment or regulation of saying that something is racist, that has formal legal consequences and certainly a great deal of stigma in our society and you have people saying, well, wait a minute. we set up a neutral policy based on numbers and the government will say this is racist. that's unfair to us and what we're trying to do. how does the court deal with the dilemma? >> you know i have spent countless hours sthiing about and we'll talk about this later in the marriage cases the different journeys this court has been on comparing lgbt civil rights and more traditional

african-american civil rights. after all when the supreme court handed downwind sor in 2013 i think two days before they handed down shelby county. which could not have been more opposite. in terms of promoting civil rightless. and so i spent a lot of time thinking about why and on the one hand with lgbt civil rights we see an incredible progress and on the other hand we are not seeing quite the same thing at least in the court's decisions and probably elsewhere in this country with respect to african-american civil rights. i mean i think you hit on an issue i think that is very important to the court and this issue of labeling people as racist or homophobic in the context of windsor is something they're extremely sensitive to. some of the most kind of intense questioning i got in windsor was this view that i was -- i was fully expecting, which windsor, domo passed with huge majorities in congress. signed into law by president clinton.

and so the question i got often from the court was are you saying that all the huge number of senators and president clinton and everyone voted homofoeb. and in dealing with that, whether it's in african-american civil rights or gay civil rights, you have to kind of -- we said at yale i did a great dance of that question. you have to dance a bit. because the honest answer is yes, some of people that voted for domo were probably homophobic at the time. >> yes. >> on the other hand, you use that word or say that and it kind of creates this reaction which you don't want to have in the justices so i kind of said no. you know, i'm not saying it's prejudice. it's on a misunderstanding and also which i think was true but i think your question hits to the core of what may be motivating the court in the sense they don't want to label anyone a bad person or label anyone racist or prejudice? >> ari, can i follow up to what robby said? and some argue that's the

beauty, actually of the disparate impact argument that disparate impact precisely says the opposite thing. you're not labeling anyone a racist. you are saying that we know that you did not intend to diskrim natd. you are not a racist but you employed this policy that has a discriminate or the effect and discriminating by accident. whoops. you didn't mean to do it but you did it and so let's change that. so some argue that that's the beauty of the disparate impact or the discriminatory effect argument. >> so, i just wanted to comment to sort of bring this back to one of the point that is you made at the outset is that the court purports to be just reading the law. you know? we don't have an agenda. we're just interpreting what the words say and that a lot of the argument in this case was over the pact that there aren't words in the fair housing act that say adversely affect and so the fha does say make unavailable.

there's a lot of conversation of make unavailable is the same as adversely affect. and all purr portdporting -- >> unavailable -- >> make housing unavailable. the question is if the language that says a policy makes housing unavailable, does that mean that congress intended to look at the impact and not just at the intent? so, the propro- innocents of the disparate impact analysis focused on those words make unavailable, where the justices said, yes, but in some statutes there's language adversely affect and in those statutes title vii, for instance, we are okay with using the distrat impact analysis just looking at the affect and not the intent. and what's interesting to me is that justice breyer in argument said, why should we change a law that's -- that an analysis that's working?

it is working and it has been working for many years. to use this disparate impact analysis. and he made a similar point in the case several years ago, the families for community schools against seattle where the -- where justice roberts said the way to end discrimination is to end discrimination. the court struck down voluntary efforts to integrate the school systems that were defacto segregated if not denuro segregated and justice breyer said it's crazy to shut the eyes at defacto segregation is just as harmful. and in this case, to bring it back to where i live which is in health care, the impact of where you live on your health is enormous. there was a study done recently that in two different areas in

richmond, virginia, life expectancy changes by 20 years just because of the area in richmond that you live in. women in low-income communities largely african-american are 15 times more likely to die of aids than women in other communities. there's a tremendous amount of work being done on the socio economic causes of health disparities and has to do with or much of it has to do with where you live. whether you have access to healthy food. whether you have access to primary care providers. and simply the stress of living in a community like that there was an article in "the new yorker" last week of an impact on a developing child's brain of living in a low-income community because of the stress of living in that community. there's a 6% or up to a 6% change in the -- in the development of the brain of a child solely because of where he

or she is born. and so to shut our eyes to that and simply say well we decide this just by focusing on two words in the statute is certainly -- has the has the impact of being counterprogressive. whether it has the intent of being counterproductive, i can't say. >> and that kind of textualism is the kind of limitation we see supplied selectively. it won't tell you people under the view of the constitution or evolving notions of equality and decency should be allowed to marry regardless of their gender how they met, a text won't get you there. which gets us to the next case we want to reach. there will be injustices on this panel, i want to mention. it's an injustice ian, who knows so much about this case, isn't getting in on this case but i promised you we would go 20/20. we're going to do that. we'll definitely get you in on the next case. robby, tell us what this case is

about. i think it's fair to assume our audience and probably a lot of people watching at home remember some of the previous cases, including some you argued. what specifically is in this case that's going to be decided this month, and potentially create the first national standard or right for marriage equality in our nation's history. >> i have to tell you, i never thought in a million years i would get to be the good news bears person on civil rights issues but knock on wood i'm hoping that will be the case. when i walked into the office this morning, they had cnn on the tv and a flash. i guess there's a new poll out out, 63% of americans support marriage equality. i have to pause every time i see those numbers. if you told me that when i fought the windsor case i would tell you you need to be on medication or something because that wasn't going to happen. so this case is about this journey our country has been on. in 2003 was the first case

brought by mary benatto seeking marriage equality in massachusetts. it was the first time gay people could get married. now we're at 37 states. the question before this court is whether that equality is going to extend to the remaining 13, essentially. whether not only does the federal government have to recognize as it did in windsor, the equal dig any for gay people and the states that permit them but do states like mississippi or texas or louisiana or florida have to allow their gay citizens the equality in marriage. that's what the case is about. that's why it's obviously getting the kind of attention it's getting. we shall see. fingers crossed. >> ian, why don't you walk us through what the outcomes could be here. it seems that one would be simply saying states would have to recognize marriages performed

in other states regardless of their own law, which is sort of a federalism full faith and credit issue which has different connotations. the other is a seemly federalizer national standard for marriage equality or something else. enlighten us. >> i think the most likely outcome will be some version of all 50 states are required to -- required not just to recognize out of state marriages but required to issue marriage licenses or the equivalent to gay couples under their own laws. that's good news. i think how the court reaches that decision is almost as important as if they reach that decision. so one thing i think that's very interesting about this case, in light of the fair housing case. the fair housing case at least as i see it, is a proxy war over this ideological battle where conservatives for a long time have wanted to limit civil rights to disperate treatment

you have to show intent in order to prove discrimination. if you believe, which i don't that the only type of civil rights vital is where you have impermissible intent, then marriage discrimination qualifies, because even if the person isn't -- doesn't hold some anamous it's the intent of these laws to provide less rights to same-sex couples than they provide to opposite sex couples. it is also the case that if you look at the supreme court's -- if you look at the supreme court's doctrines, gay rights is a very easy question. what the supreme court has said, has said that when a group has historically experienced the type of discrimination which bears no relations to their ability to perform or contribute to society they're entitled to heightened protection under the constitution. and there's really just no

question that sexual orientation should fit that bill. i mean, i'll just throw a few numbers at you here. new york city arrested 50,000 people over the course of four decades because those people were seeking consensual sex with a person of the same sex. that used to be a crime in the state of new york. the city of philadelphia formed a moral squad that arrested 200 gay men every month. it used to be the policy of the united states of america that the federal government would not hire gay people. i won't bore you with this very long quote that i have when the federal government explained that policy, but it uses words like revulsion. and then the last thing that i will say is, more than half the states at one point had laws allowing, quote, sexual deviants to be confined against their will, so that the state could try to cure what they viewed as a pathology.

so i don't think there's any question that sexual orientation meets the standard where there's been this history of discrimination and yet the court has slow-walked gay rights. you know there have been a number of gay rights decisions starting in 1996 with the romer decision. but what strikes me about romer and lawrence and windsor, is how incremental these decisions have been. the court has resisted reaching the natural conclusion that gay people should be entitled to this heightened protection. and i suspect that they will continue to resist it in this case. if that's true, that has profound implications for the future. while it mean that same-sex couples will be allowed to marry, it also won't mean that states won't be able to engage in other forms of anti-gay discrimination. sam brownback, for example, recently rescinded an executive order saying the state wouldn't

discrimination against gay people in its own hiring. that might be constitutional. at least under what the supreme court has said, after they rule that marriage equality is the law of the land. so i mean, i guess, you know, the short answer to your question is, i think it's likely that the narrow victory will be a complete victory. that will get marriage equality in all 50 states, but it is much less likely that the court will recognize what the constitution really commands what its own precedence commands, which is that discrimination against gay people of any kind by the government should be treated with skepticism. >> what's interesting about that you mention the federal government's obligation to explain itself and in all these cases we see at least some discussion of, well where did these rules come from? where did these laws come from? it really is something special and i think positive about the judiciary that it's the only part of government that has

really binding rules in having to explain itself and explain its thinking. so even when you disagree with something, it can be held out in the light of day of why did you do that. some of these decisions don't wear well even in real time. i want to go back to robby and broaden out to the sixth circuit decision, which you're intimately familiar with and ohio reading from the supreme court brief, which ohio cites approveingly to argue against marriage equality but is striking because it feels, even to a nonlawyer and especially to a lawyer like such a weak argument. this is the brief quoting the sixth circuit saying it's rational to recognize that marriage was adopted not to regulate love but to regulate sex. most especially the intended and unintended effects of male/female intercourse, end quote. the argument being made to the supreme court there is that because marriage was initially

structured to deal with what society viewed as the potential problems or messiness of sex and proceed creation procreation, it is, therefore, limitless. tell us why this is arising because it seems like a very weak argument when you look at the endurance of marriage as something that exists and is legally protected, with and without children and for elderly people who would not be able to have natural born children, et cetera. >> you'll be shocked to hear that i agree with you. it's a pretty silly argument. i think most of the justices actually think it's a silly argument, too. it was prominent in the oral arguments that happened at the end of april. i think the reason this argument is so prominent is because there aren't any other arguments left. this is the -- the only distinction that the people opposing equality can come up

between gay couples and straight couples is this idea that straight couples sometimes buy lojdge -- buyiologically procreate. it's so divorced from reality and so divorced from what i think anyone -- any american thinks is marriage. marriage is not -- i don't think anyone thinks they get married to someone so is that if they accidentally procreate in their marriage, that kid will be protected. no one says oh, i'd really like you to marry me because you may get pregnant by mistake and i want to make sure the kid has protections. i don't know what universe marriage exists in that world, but it's no universe that i know of. and the image of marriage that was portrayed if you heard counsel for michigan and counsel for tennessee would almost be a situation where i was trying hypothesize. you could have a married straight couple who have a horrible marriage.

they are abusive to each other. they're violent to each other. they throw bottles at each other. you know, it happens. but they're fine to their kids. they don't abuse their kids. under the theory these people purport to hold, that couple -- it should be the state's policy for that couple to stay married because it's good for the kids. obviously, that makes no sense. that's just crazy world. and i think the justices recognize that. and i don't even think in this sense, hopefully again -- can't help myself -- in the descents in this case you'll see that view because it's so divorced from reality. >> one piece that i want to go back to in something ian said, even as we think about, and i will join the knock on wood, kind. potential kind of expansion in the concepts as we're thinking about marriage equality that we will create a legal environment where there are protections for

same-sex loving couples to marry. and the very next day they could go to work, share that they have been married and then for a host of reasons, potentially lose their job, lose their health care depending on where they were. so, the question is, are we setting frameworks that -- where we say yes, we are protecting and we are moving forward in the concepts as we think about marriage equality in this country. at the same time, when we expand out our questions about discrimination and because now you're just talking about discrimination and you're not talking about kind of the relationship between individuals, then do we find ourselves back in a world in a desprate impact world where we're looking at civilization for all persons, where you will be -- and you have the potential to kind of lose out on long-held traditional kind of ideas or notions of civil rights but in a

very different context. because now you're talking about losing your ability to work, to live, health care. there's a host of different protections that as many of us in the community are thinking about what nondiscrimination looks like for everyone we're hoping we have the opportunity to do that at the end of this term, but as we think about the long-reaching effects, discrimination and with the way the court has thought about it, has potentially ramifications for same-sex couples, the same way we've seen it in other traditional rights. >> the way -- >> we're going to go to obamacare. >> there are still people today who get fired and they get fired because their boss says -- excuse me, i hope i don't offend anyone, you're a faggot. you're getting fired because you're a faggot. those cases are easy. people are coming around to the idea and say, i'm firing because you're gay. the question is what do do you

in those situations where there really is a disparate impact. that's where the commonalities will very much come to the fore. >> we are at two-thirds halftime. we'll go to obama care. i want to do an audience poll at this juncture on the past two cases and the next one, because i think folks have a deep sense of obamacare. it's been litigated repeatedly. i'm curious for our folks who are here who have been listening, the poll will be simply, do you -- what do you think is going to happen on each case. start with fair housing and say do you think the fair housing disparate impact approach will be held up or struck down? show of hands how many think the current law will be upheld? >> i'm a progressive. i'm an optimist. >> i'm object staining. >> how many people think it will be struck down? >> so mixed here okay. on marriage equality, i'm not going to do every possibility,

just do you think the case will advance, marriage equality, by a show of hands yes. most of the room. by a show of hands, no. look at that. we can do the obamacare one, even though we're going to do it next. this is a nice little halftime. we're about to hear about it, but you may have heard a little about it, whether the way the law was written should actually deny subsidies. by a show of hands, how many people think, yes, the law will be upheld and subsidies continued? yes? how many think no, it will be over -- part of the law will be essentially struck down? so we have some pessimists. that gives us a sense of where we've come from and now where we're going. tell us about this case. >> that's a good test of how much the class knows already. most of you do know a fair amount about king versus burwell. to take you back a little bit. congress enacted the affordable

care act to address is he veers problems in access to health care in this country. there are basically three prongs to the stool that were part of the affordable care act. one is that everybody has to get health care, unless you make so little money that you are exempted from the requirement. two is that insurance companies have to provide insurance to people regardless of preexisting conditions. so, for the first time people have already been diagnosed with cancer or multiple sclerosis or whatever it is insurance companies don't want to cover. those people are entitled to get insurance. the first is tax subsidies. the only way this is working is for tax subsidies to be available. if you don't provide the tax subsidies, then have you a big pool of people exempted from the requirement to get health care. all of a sudden the people who are getting insurance are just

the sick people. the people with the preexisting conditions. and the insurance companies can't afford it. they need the big base of healthy people to be able to spread the risk of covering the people with preexisting conditions. the problem was that we had a lot of people in this country who were getting their health care by showing up at the emergency room door, which is really bad economically. it's also really bad for your help, not to get preventive care along the way and just show up at the emergency room door. people with prexusing conditions, you have normal everyday people who couldn't afford health care because they didn't have health insurance. congress is trying to fix a very significant social problem. we all know the affordable care act got passed. the opposition to the affordable care act has not yet given up.

i can't remember exactly how many times there's been a bill passed to repeal it. i think it's 49. >> 50. >> 50, 51. so the opposition continues. after the supreme court decide the in the nfib case that the affordable care act passed constitutional muster because it was enacted pursuant to the taxing power of the united states, then the opponents came up with another idea. this idea was to find -- it was a very creative idea to find four words in the statute that says exchanges created by the state. to argue because of these words in the statute it meant they couldn't be tax subsidies and exchanges that weren't created by the state. it's a fairly technical statutory argument. this language exchange created by the state is in a provision of the statute that just address how you calculate the subsidy

that somebody is entitled to. there are other provisions that inner relate. there's a provision that says states shall create exchanges. there's another provision that says, if states opt not to create an exchange, the federal government will step in and create an exchange. an exchange, used in caps is used throughout the statute ut to refer to the exchange created by the state and the exchange that's created if the state opts not to create an exchange. so it's pulling these words out of context to say the calculation of tax subsidies is in a provision that that refers to exchange created by the state and it's even more complicated than that because it refers back to another statutory section that then refers to another statutory section, but in any event, the argument is, these words mean that you can't give

tax subsidies in an exchange that's created by the federal government. 34 states have exchanges that are federally facilitated marketplaces. there are 6.4 million people getting tax subsidies on those federally facilitated marketplaces. if the court goes the wrong way, not only will those 6.4 million people lose their tax subsidies and, therefore their insurance but the estimates are another 1.5 million people will probably lose their insurance because as i said at the beginning, if you pull out the base, then everybody's costs go up. even the people who aren't getting tax subsidies will have their insurance priced out of reach because the cost of coverage is going to go up. >> i want to bring ian in. go ahead. >> i want to bring this back to something lisa said at the beginning about the fair housing case, which is about how orrin hatch has tried over and over again to get the result that the

litigants in the fair housing case are now trying to get out of the court. you know, you see the exact same dynamic, obviously, with the affordable care act. this is the weakest statutory interpretation argument king v. burwell, i have ever seen reach the supreme court. elizabeth listed some of the evidence that the plaintiff's theory is wrong. i'll just name one more. the plaintiff -- completely divorced from anything else in the statute, you may think thair on to something. until you see that the word exchange is defined and the word exchange is defined to mean a government agency or nonprofit entity, that is established by a state. so, any exchange regardless of whether it's started by the federal government or the state government, is deemed to be established by a state.

this case frankly borders on the sanctional belief of frivolous. that said there is an argument for why it got here. while there are some things that the lawyer, michael carvin, who brought this lawsuit has not been candid about, he was unusually candid in a conversation with a friend of mine, a reporter formerly with tpm, now with bloomberg. he had a conversation with mr. carvin and he asked him -- a case presented the same issue called how big was pending the d.c. circuit. some may remember the d.c. circuit actually bought the plaintiff's theory, a three-judge panel did, and then the full d.c. circuit decided to do what they call unbonking the case, look it over again. while all this drama was going on about whether the d.c. circuit was going to do that and what that meant as the possibility they would hear that case.

in that context, mr. carvin said he didn't think the republican appointees on the court are, going, going to give much of a damn about what a bunch of obama appointees on the d.c. circuito;qh think. just in case there was any ambiguity as to what he's saying here, hill asked him, do you think that you're going to lose any judges who are appointeded by a republican? he said, no i do not think i will lose any republican appointed judges. so, you know, this is not a case about statutory interpretation. you know, if it -- >> although it's important -- let me just jump in. it's important that we use the language of statutory interpretation. this case is argued as a statutory interpretation case. the reason for that is because it is obvious what congress intended, but if you just say congress intended for the subsidies to be available on

federal exchanges but you concede that congress screwed up in accomplishing that, then we lose. at least we may lose. because the court's answer to that is we'll let congress fix it if congress screwed up. that's why it's important to do what ian just did which is to look at the statute as a whole which is what basic canons of statutory interpretation say you should do. you should not just look at these four words but the context of the entire statute. so straight-up statutory interpretation should get where the court needs -- >> let me just say though i think to make sure we're staying accessible here it seems we're collapsing two different analytical structures for how the case will be decided. one is the actual inquiry that the court is doing or purports to be doing, right? which is what does this law do? and in this case on the paper

record, it seems very far-fetched to argue as challengers to obamacare are arguing, that this law secretly discriminated based on geography. but nobody talked about it. nobody who passed the law talked about it. nobody who opposed the law talked about that as a good or bad thing. the president signed the law. we had a multiyear debate about it. that was just a secret design that was somehow never discovered and now needs to be applied by the court in a way the other branches never wanted, never discussed, never said. the democrats who were pushing the law, as you so eloquently described, included in it this sort of secret suicide trigger, right? it's just very far-fetched. i say that just being fair to the argument. then the second analytical structure you're referring to in your quotes, the cynicism people do bring to the court is, well, isn't this political? i wonder if we could tease that out a little bit because i think

it's fair to say that justices are humans and at times will be moved by their own instincts, be they political, personal or ideological. the question here for folks trying to understand what the court is going to do is, how does that actually work? certainly it's also fair to say and i think in defense of this court, members of this court and past courts, there are plenty of examples you can point to where justices depart from what you might think they would want to do or feel constrained by the rules. so i guess i take this out to ian. i know you've written a ton about this then out to the panel. if this is a far-fetched statutory argument that is to say, this law doesn't do what you think it does, why would this be appealing as a more far-fetched and potentially controversial way to limit the aca when the court has clearly not gone that route when given other, i would call, more mainstream chances? >> yeah.

i think it's definitely true there's a two-tier litigation strategy going on here. there's the strategy that's going on at the surface where the -- you know, the doj wrote an excellent brief. a number of excellent amicus briefs that follow which lays out what elizabeth and i have been talking about, which shows that it's absolutely clear that this statute can only be read one way. below the surface i think there's another strategy going on that basically consists of trying to embarrass the justice who is are inclined to not do what the statute -- what the statute clearly says it should do. a lot consists of just pointing to how obvious this legal argument is and going, come o guy on, guys, you can't get away with this. one person who should be particularly embarrassed if he decides to volt with the plaintiffs here is justice scalia. because justice scalia wrote in

a 2012 book he co-authored there's no more interpretive than to follow the whole text canon which calls to the judicial interpreter to look at the entire text in view of its structure and physical and logical relations of many parts. again, you know i would hope that the mere fact this is an easy case and that, you know, there's really only one way to read the statute would be enough to convince nine justices well there's only one way to read the statute. in the event that whether through motivated reasoning or whether through a more conscience partisan desire they are not inclined to do their job, then i would hope they would at least realize that the arguments in this case are so weak that it would be embarrassing not just to themselves but i think to the court as an institution. >> robby help me out. ian gave a very good argument against but didn't answer the question. one of the questions posed -- as

a journalist, one of my pet peeves. why do you think as a court expert the court experts are leaning in to consider what is a weaker argument against the aca right now? >> you know, i think they realize or there was some sense -- look, no one can explain how justices make certain decisions. no one is allowed in that room. when someone teltz you they somehow have some insight into it i would like to know where they went to law school because it certainly wasn't taught to me in law school. my guess, and this is a guess, they knew they would have to do this sooner or later. whether the d.c. circuit whether or not there was going to be a decision. certainly if the d.c. circuit asserted on an unbunk there would be great pressure on them to take it. my guess is, they figure, we might as well get it over with now, or some of them thought, we might as well get it over with now. that's why you saw it. hopefully, i agree with the panel, that it doesn't speak to the merits of the plaintiff's

argument. i'm actually amazed i'm sitting here amazed as a supreme court advocate to hear the comments the plaintiff's counsel made. just can't imagine -- even if that's what you think in your heart of hearts -- >> you don't say that out loud. >> i can't imagine saying as a lawyer, i'm going to get all the republican-appointed judges on my side and none of the others. you know look, maybe i'm idealistic, i've never been accused of this, being hopelessly idealistic in my life but i think a lot of judges decide on the merits. in the marriage contest case there's a lot of republican-appointed judges. most of them since windsor have decided for equality. so, it's actually -- the degree of cynicism in that statement is a little surprising, even to me. >> there's one technical point, you know. it only takes four justices to grand cert. if we look at nifb there were four justices and the decision should have gone the other way. >> to hear a case in the first place.

>> to hear the case in the first place. so, i think that's another part of the conversation that we should kind of add. the other thing that i'll say is, you know, there's a larger conversation that's kind of taken place about, you know, the roberts court. and kind of the distribution in which this court is moving. i think most americans -- there's a poll out today, i think "the washington post" just released -- or just wrote that over 55% of americans want the supreme court to uphold the subsidies. and i think it's just -- >> was he saying within the states that denied them? >> within the states that would be denied them. so most of these states, again there's 34 states most of these states are kind of presidential primary, kind of swing states, have more of a republican leadership in those states. and in those states, which you could say particularly have a more conservative population they want the obama care

subsidies to be upheld by this supreme court, right? just kind of looking at the backdrop of what's happening. and i think that's a really important point to make. >> i want to go to the audience questions, final thought on obamacare then we'll bring you guys in. >> i'm just going to broaden it a little bit to why the court might want to read these four words in kind of a crabbed interpretation. if you look, there are a number of decisions in the roberts court where the court is pulling back standing in the way to address social problems by either the states or the federal government. you know striking down section 5 of the voting rights. part of naifb didn't get as much press but the court struck down the medicaid expansion piece of the -- >> you're talking about the first obamacare case? >> yes, sorry. so, the court upheld the core

part of the three-legged stool that i described but in in the medicaid expansion affordable under the affordable care act the court struck that down. what i fear is the pendulum in the court has swung so not only do we not only have an activist court looking at social ills and trying to figure out how to use the law to address them, but it-s on the opposite side of extreme. it is standing in the way of efforts by publicly elected officials to name and address social problems. >> you're also putting your finger on a looming inconsistency, which is in the first obamacare case, the notion of having high demands on states to get the money was considered coercive, right? in this case, they could potentially reread and reinterpret the statute to deny funds which if that was the scheme, would also seem to be coercive. but that's a lot of hypotheticals. >> that's a -- that's, you know that's a problem for down the

road. >> that's what we do we look for more problems. it's in our nature as attorneys. i want to go out to you guys, for three cases of this complexity, this fast it's been really wonderful. you guys are just really good at this. so, let's go to the mike. as i said at the top, please introduce yourself. please try to stay under 30 seconds. comments are fine. questions are fine. but let's leave time for responses. good morning. previously at university of baltimore, now consultant in private practice. i appreciate all the remarks. one general question i have for the entire panel is on the darkest of the dark side what if the entire court were to punt in all three cases and punt to congress because we will have a congress that is substantially in both chambers under the kroefl one party and that party has been champing at the bit for a very long time to really sink its teeth into all of these

three issues. and, you know, the court could be willing -- it wouldn't be the first time the court would have embarrassed itself in american history. what if it were to punt to congress on all of these three issues and say, congress, you -- you deal with it. and the last speaker talked about it on health care but what about all three of them? it gets punted to congress away the way. >> well, in the fair housing case i -- you know this is something we have been grappling with. the potential fix, if there needs to be a legislatetive fix will depend on what the court says in its opinion. so, one of the key hang-ups happened in the icp case. the same thing ee lidlizabeth was talking about. it's reading it in the plain text which alito wanted them to do. actually justice scalia said, no, we take the whole law in its entirety. we consider the entire law,

including the amendments, and just scalia said, look, if you read the entire law including the amendments, it's very clear that disparate impact is alive under the fair housing act. but i think that -- look we don't have any fallacies that at least the house would put forth a cure if there needed to be a legislative fix that would meet our end. i don't necessarily think the senate -- this particular senate might do that as well. but i think that if there was a potential fix, that would harm the fair housing act that the president would veto that. but i also think it will take us some time to get to the fix we need and hopefully we'll be dealing with not particularly this same congress. >> i'll just add one thing, which is to resist the word punt. you know, if the court says

subsidies must be cut off under the affordable care act or if they say -- if they say we're going to get -- that the current law doesn't authorize disparate impact legislation the fact they may include language saying congress can pass a new law fixing that, that is not a punt. that is changing existing law. and, you know, it's not a punt to say we're going to do this thing that blows up a bunch -- that blows up 11 -- the consensus of 11 courts of appeals -- >> you can put it more simply. you're talking whether they'll overrule two progressive pieces of legislation. something from the civil rights era, that added the economic component. that's what the '67 '68 laws were about, and obama dls care, which has already been tested. in that sense from the defender of the law's view they're like leave it alone right and everyone else is looking to change through the courts. let's take two questions at a

time. >> let me chime in. this is the last thing in the world republicans in congress want to deal with. i actually don't agree. there's no way. you see presidential candidates and contorting themselves into pretzels on this issue. they go -- >> be careful. >> is it pretzels or just pieces of wedding cakes? >> it's a wedding that serves -- >> or free dam -- >> i think it's pretzels. they're not going -- they have to decide it. i think they would have liked to have made that longer but the sixth circuit made it not a choice for that. >> let's take and then we can keep talking. two questions at a time so we can get more. >> my name is christian robin. my question is regarding the fair housing case. as far as if disparate impact, if they decide it has no place in the fair housing act how does that affect some of h.u.d.'s programs? i know they have a program

coming out this summer or a proposal coming out this summer fair assessment tool which will require state agencies to look at data on a map and assess where their services are. is that -- >> that's a great. >> hold that and we'll take one more. that way we get a little more -- >> okay, great. >> my name is jay, with financial consulting firm. one issue that hit me interestingly on the gay marriage issue was they came out right -- both the justices and the arguers came out saying aren't these arguments just a pretext? doesn't a pretext argument hold for the two other issues as we also elaborated, both on fair housing and on obamacare argument? >> if the supreme court strikes down disparate impact it will not affect the aff, affirmative

fair housing rule. that rule is being promulgated under a different section of the law. affirmatively affirming fair housing are two distinctly different things. but one of the things you may consider when you are conducting your analysis to barriers to fair housing under the affha provision is whether or not there are any policies!fnç for example, zoning ordinances which have been passed by the municipality that have a dispairate effect on a article class. it's a component in terms of considering whether you are affirmatively fair housing. i don't think the disparate if the court strikes it down which i don't expect it to do, but let's say it -- it does does not

impede the afa -- affirmatively affirming fair housing isn't new. municipalities have been doing it for decades. it's just that for decades they've been calling it the analysis to impediments to fair housing. now it will be called the fair housing assessment. and the only thing that h.u.d. is doing with this rule is it is empowering the data they will need to adequately and accurately provide the assessment. >> just quickly on the question on pretext. so, there -- there continues to be a debate about whether or not the roberts court sort of finds itself aligning using a third branch, which is supposed to be be a part of our checks and balances, a system of checks and balances. will it align ichts more with these ideological crusades we've seen taken place in the conservative movement? and so whether it's an issue

like immigration we're currently dealing with down in texas or if it's an issue around environment or civil rights statutes, there are questions currently happening. will this roberts court align itself where what we've seen as naked kind of direction to push the country and the court in very specific ways. a lot of us would say for the court to overturn years of precedent, finding situations where there hasn't been a circuit split, taking cases that many people just assume the court would never consider you have to ask yourself, is that a real question and is there something happening where this court that's supposed to be above partisan politics is something changing with this particular court? and i think it's a fair question. >> can i jump in, ira, real

quick? i want to go back to an issue elizabeth raised earlier. we don't have another -- >> but do we have other questions or comments? 1968. if the plain text of the law as it was written in 1968 didn't mean to include disparate impact, you cannot include disparate impact. but in opposition to that, justice scalia went through i mean, a very very long discussion about the fact you have to look at the law holistically. have you to look at the law in all of its elements when you are

trying to determine whether or not there was a statutory intent for whatever the question is. and i think that's very important going back to the point ian made earlier. because in my mind, if scalia votes against disparate impact in this particular case, he's going against the precedent that he has already set forth, the belief that he has already set forth, and then that really does raise for me the sort of pretextual issue you were talking about, michelle, like what is your real purpose here? and i think that opens up a whole new can of worms. certain for scalia. maybe not for alito but certainly for scalia it does. >> i want to go to closing thoughts. i want to double-check, do we have any other questions or comments? there's one. >> i'm beth, i'm not afailfiliated

within' anything. my question is, what will republicans do if this obamacare gets voted the other way, they'll have the same kind of problem they would in the same-sex marriage thing. they'll have a mess. everything is kind of built on this one thing. they'll take it apart and then what will they do? no one will like the chaos that results. >> you're absolutely right. of course, a lot has been written in the preceding weeks and months about exactly the issue you're identifying. there's really no backup plan for what's going to happen if the supreme court strikes down the subsidies. what's interesting about that is what impact that has on the court, to realize that there really isn't a backup plan. and that millions of people who

are getting health insurance for the first time and are getting preventive care for the first time are going to have it snatched away from them. you know the justices are people. they read the newspapers. their clerks read the newspapers. you know, what those of us who care deeply about these issues, you know are always kibitzing about, what can we do? what can we do? we really don't know how much of an impact it has on the justices to realize that we hope that it makes a difference. for the justices to understand just how horrible it is will be if the tax subsidies are struck down. >> in fairness to the doctrine, they would say that a punitively or literally negative outcome is -- does not bind their decision because that's a policy concern, wouldn't they? >> well, that's exactly right. but in this case, as in a number of other cases that have gone the wrong way, there is at least

a fair reading of the statute that comes out the right way and as ian has said, in this case, a much fairer reading of the statute that comes out to uphold the subsidies. >> i'll say two things in response to your question. one is, like, to the extent there are justices who are for partisan reasons motivated to side with the king plaintiffs i think it's you know certainly helpful a lot of political analysts have weighed in and pointed out this may not be so good for the republican party. so, if they aren't willing to do the right thing because they're just following the law, maybe they'll dot right thing out of some other concern. that said, if they do do the wrong thing i think we already have a pretty good indicator of what's going to happen because we've seen it happen through the medicaid expansion. you know what we've seen is that in many states where you

know, you have governors and lawmakers who are id logically opposed to -- they are literally turning down free money. for the first several years of the affordable care act they don't -- their state doesn't have to contribute to the expansion at all because they have an idea logically objection to everything obamacare. i don't think there's any question regardless of what the politics are, that many states where if the supreme court does the wrong thing in king subsidies will just get cut off. that means, you know, there was a brief that was submitted by several public health advocates that predicted that 10,000 people -- about 10,000 people will die every year if the tax credits are cut off. so, that's a lot of mothers who don't get to hold their sons again. it's a lot of -- it's a lot of husbands who don't get to kiss their wives again if this goes the wrong way. >> i want to go to closing

comments which can be whatever you want to rap on. we'll go down the line. or a response to a bit of a paradox with the court that i wanted to close on as we think about so many of these important public issues where the court is potentially right in the middle of it, acting one way or the other. and i think there's a paradox about the supreme court as the third branch of government that is interesting for folks who care deeply or want to have impact. unlike the other two branches, the court doesn't exist to respond to the public. it very assertively says its role is the opposite. at the most basic level, if you write a letter to your member of congress, right, or find them at an event, there will be at least some notion of responding to you or caring or pretending to care what you think, at least whether you -- whether you're idealistic or cynical. there isn't that in the court. quite the opposite. anyone who's been around the culture of the court the idea of insulating the court and its

justices. they do that themselves in small ways. like they don't allow the television cameras in. our structure and constitution does it in very large ways with tenure and a lack of elections and a really strong tradition enforced in our body politic against what we might call public or political pressure on the justices. and yet when you think about several of these cases and how this term will be defined there's several discussion -- even in the marriage case, about where the public is at. and so marriage equality is an area of the law where many people who fashion themselves as a gallatarian are very positive about the korlgts right now, am much in the way at one point in time many people were positive about the court's civil rights movement. it's a point of pride in our system and history. yet it is not one that can fairly be argued as independently arising from justices who often talk about

how strange some of these concepts are to them. when they were growing up as kids, the notion of people the same gender getting married was unimaginable, to quote one judge. so, there is an interesting paradox there where on the one hand the court is insulated and wants to be so. yet, on the other hand particularly on these areas of what many people consider a march for social progress, there is incredible attention on where the public is at. are they ready? are we being pushed from the grassroots up? an historic event this month potentially coming from the court, it would seem to me i'll get your responses to those who want to speak to this, if not, other closing thoughts, would seem to me to be a very direct response to what we the people have been doing and growing and evolving on and not some other independent legal conclusion that came from some legal doctrine. so, that's one thing i've been thinking about when this term. let's get thoughts and closing from each of our expert panelists.

>> so first off, i think we're all probably geeks in here because we're at a panel talking about the supreme court. but i think what's fascinating is we kind of look at the arc of history. you know, you can look at dred scott and then you can look at where the court was at brown. and you see an evolution. you see a growth. the same thing as you look at kind of the marriage equality cases, right? you can see where we were even when windsor happened to kind of where we are now. and while i would like to believe, and i think most americans like to believe that somehow the court is a part of our system that's untouchable, that you can't reach, thaw can't touch, somehow they are not connected to all of us broadly, they are. they are real people. they look at the news. they are connected and they pay attention to the arc of human history. and so something in me believes

that the roberts court particularly chief -- the chief justice here, will -- is looking and paying attention to the way that people are continuing to lose faith in the institution of the court as a whole, as a separate kind of independent, above politics body. and i think that that's a real concern for this chief justice, as it should be. because we see the 10% approval rate for congress. i'm a former congressional staffer, so i know why people hate on congress. it makes sense sometimes. but the court doesn't want to have those same numbers. so it's very real for them to watch what the american people -- where the american people are, how these decisions affect real people. the fact that they are potentially 10,000 people who could die when subsidies are taken away, the fact that you have some states where you can be married and other states that you can't seems kind of un --

doesn't seem to -- doesn't comprehend for some of the justices. you heard that with even some of the back and forth in the most recent oral arguments. and so i would like to believe again this is my optimist. i think my hand was raised on all of your questions that the court will do the right thing. i believe the court is paying attention. i do believe the american people have a role to play as the court considers these decisions. and without question, obviously the fidelity must always be to the constitution and to the interpretation. but i am of the belief that the constitution is a living and a breathing document for a reason, because the arc of history and our people and who we are as americans moves and changes through history. and that counts for something. >> i'm just going to echo the comments that have been made. you know, judges have said, they're human beings. even they would admit that. so, they're impacted by the same kind of thins that human beings

are. they think the same thing based on not only legal arguments by kind of emotion and morality, et cetera. obviously they do. we all do. what's amazing in the marriage equality context is that the arguments haven't changed. one of the reasons my client windsor had to go to toronto to get married instead of in her home state of new york is it's my fault. i argued the new york marriage case in federal court of appeals in 2008 and lost it. not a single argument changed. the every single argument being made today are the exact same as arguments. what's change is the ability of judges to hear those arguments. there's no doubt that what's made that change is the change in the american people. as i said in the argument, it's a change in moral understanding about who your gay neighbor and gay colleague and gay friend and family member is and that only happened because people came out of the closet. so now all the jults there's no

question about this, all the justices today know people who are gay. like and love people who are gay. it makes it very hard in that context to say it's okay to -- to discrimination under the law. >> so, you know, this is a very interesting transitional period, i think, for the supreme court. and what i mean by that is if you go back 100 years in supreme court history, the supreme court was an abomination. they struck doubt labor laws struck down minimum wage. the court had basically set itself up as the nation's censors. if there was a law they didn't like they would strike it down on transparently pretextual grounds just because they didn't like it. then we got out of that era. then the warren court air remarks the extent people think of the warren court as being very activists and pushing boundaries of the law. i think that sense is exaggerated but it's certainly true that liberal saw a lot to like in the warren era and

conservatives saw a lot not to like. and a very interesting thing happened in the nixon through the second bush administration. which is that conservatives having seen what it's like to over and over again being on the losing end of a supreme court decision, decided they didn't like that feeling very much and they decided they didn't like that feeling very much, so much that you started to have a meaningful movement for conservative judicial restraint emerge. you see that in the rhetoric that comes out of reagan or the second president bush. they weren't particularly strained on every issue. they were really quite bad on race. but on a lot of issues, the nixon, reagan, bush way of looking at judges was extraordinarily constrained compared to how conservatives had looked at the law in the past. now, and it happened some time around january 20 2009, that

emphasis, that focus on restraint is very much on the wane in conservative circles. if you go to the federalist society convention, i cover it every year they had a whole panel on why we shouldn't have discrimination laws last year. that whole panel why we shouldn't have the minimum wage. so i think the question right now for the supreme court is whether the conservatives on th•: court are going to still embrace the more restrained vision that was dominant for a while or whether they're going to take us back on the bridge to the 19th century. and i don't know the answer to that question. >> i totally agree, the justices are human. and that they evolve and that they do pay attention to public opinion. but i also believe they're very smart and crafty. and that when they make decisions to impede on our rights or to limit or take back rights that we already have that they can frame those decisions in a way that -- that

on its facade that has the appearance of trying to see -- seem like they're moving us in the right direction. so take justice roberts' quote, right? the best way to stop discriminating based on race is to stop discriminating based on race, right? it seems like the right thing to say. it seems -- it sounds right on its face. but when you peel back the layers of that onion, it's a very, very dangerous thing because it is rooted in something. it's rooted in an argument i hear oftentimes in my consulting work when i work with lenders and insurers. and i get this response from executives who say well we don't discriminate. in fact, i don't even see race. don't even see color. i'm color blind. i don't see color. and on one element, that's offensive, right? that's like you coming to me and saying, i don't see gender. i don't recognize the fact that you're a woman. yeah, i am a woman. yes, i am a person of color. it's offensive for you to tell

me that you don't see that. and that you can't be prejudiceal or discriminate because you don't see color. that's and my response to that is the best way to stop discriminating based on race is to see it in the first place. and if you adopt laws that impede us from being able to see race discrimination, you are perpetuating segregation, you're perpetuating the systemic practices and institutions that promote race discrimination, et cetera. >> i share ian's look at the arc of the court. and as i said earlier, what i fear is this court is counterprogressive in that there will be efforts to address social problems as we go

forward. and the court may stand in the way of those. i don't think we can afford as a country not to address some very serious social issues. one of the impacts of the court's decision not to expand or not to allow expanded medicaid is there are a million african-americans in texas florida and georgia who are in the coverage gap. who get no health insurance as a result of that decision. a million african-americans. and in -- just in d.c., residents of ward 7 are much more likely than anybody else in this city to suffer from cardiovascular disease. residents of ward 7 and 8 are tied for the top obesity rates. we can't afford as a country to lose the productivity of segments of our society because they're stuck in neighborhoods where they can't get out. and so my hope is what we see.

i think the reason that we are optimistic about these three cases is that there is so much momentum across the nation. there's been so much momentum toward marriage equality. and as we talked about, so much publicity about the fact that people who have health care don't want to give it up. and that may be what we have to do. that we just have to be that loud about what we care about if the court is tending toward stopping those efforts to address social ills. then we just have to be louder. >> all right. please join me in welcoming, thanking our panel for this great conversation.

and earlier today we were bringing you a live coverage of a hearing looking at tsa oversight. that hearing was interrupted by warnings of two suspicious packages in two of the senate office buildings. those warnings have been cleared since then. however, the senate foreign relations committee hearing on authorizing the use of military force against isis has been closed to cameras because of the security situation in the senate office buildings. we do plan on being live with the house rules committee as they mark up the defense. there's also considering legislation regarding the labeling of meat that originates abroad. we'll have that live at 5:00 eastern here on c-span 3. also today, former house speaker dennis hastert being arraigned in chicago. he's hired defense lawyer thomas greene who has defended clients

involved in the lobbying probe, the bill clinton pardon scandal the valerie plame leak and investigation and watergate. the former speaker is charged with drawing purposefully low amounts of cash in order to avoid bank reporting requirements and lying to the fbi about his banking activity. director of clinical cardiology at brigham and women's hospital. on the advances on heart surgery and the progress being made in the understanding of heart health. >> this actually is a valve that has been crimped on to this catheter that's being now positioned into the diseased valve. and it'll be deployed here in a second with the balloon being inflated and a new valve will be inserted inside the old calcified valve.

the delivery system is being withdrawn and the wire will be withdrawn. and what we've seen in this little pictorial display is replacement of a diseased aortic valve in a manner that does not require open heart surgery. so we're trying to become smarter about predicting who will get disease. we're trying to become smarter as to identifying the most effective means to prevent the disease and then smarter about following up over a longer period of time. so we're currently in an era where we're trying to harness the promise of the human genome. research project that's now been in existence for more than a decade. with all the infomatics, and information about sociology geography, demographics, where you live where the railroad tracks are. and your city.

what's your likelihood to get diabetes on the basis of your educational background? and what's your likelihood of developing something like diabetes or hypertension if you live in a certain part of a city where you have less access to the right kind of food or even the right kinds of instructions about sodium consumption. little things like that could have enormous impacts on population. >> dr. patrick o'gara on c-span's q & a. next modernizing the u.s. energy infrastructure with energy secretary earnest moniz. he testified last week before a house subcommittee outlining the findings of the obama administration's quadrennial energy review. calls for billions in spending to improve pipelines electric grids, transmission lines and energy storage capacity. after the secretary's testimony a panel of energy annual cysts will offer their

recommendations. the hearing is three hours and 40 minutes. >> i'd like to call the hearing to order this morning. the title today is the hearing on the quadrennial energy review and discussion drafts including energy diplomacy. we'll have two panel of witnesses this morning and on the first panel we have our secretary of energy mr. moniz, who is no stranger to committee or to congress. so we appreciate him being with us very much. we look forward to his opening statement and then we'll have some questions relating to his testimony as well as other issues. and at this time i'd like to recognize myself for five minutes for an opening statement. everyone is very much aware that this subcommittee and congress has been working on a bipartisan energy bill for several months now. many people are even asking not surprisingly is there enough common ground between our efforts and the obama administration to enact

meaningful energy legislation. i do believe this question was answered with the a clear yes when the department of energy's first installed its quadrennial energy review was released last april. this detailed study focusing on the infrastructure implications of america's new energy boom and many of its recommendations overlap with provisions of our draft energy bill. so we are excited mr. moniz is here so we can explore the perspective of the department of energy as the country makes a dramatic changes in its energy distribution, production and transmission system, we have a lot of infrastructure needs. we're focusing on the diplomatic diplomacy aspects of energy

which is becoming more and more important to our friends in the european union, who find themselves reliant on natural gas coming from russia. so we have many opportunities in the united states to come forthwith a good energy policy. and i think that most of the provisions that we're focused on in this energy bill democrats and republicans agree that they need to be addressed. and one of the biggest is infrastructure needs in trying to improve the permitting process for example. so i look forward to the testimony of all of our witnesses today and we have a real opportunity here and we don't want to drop this ball.

so we're getting close to the end of drafting this legislation. coming up with a final product and look forward to moving it in a productive way. >> i want to thank you, mr. chairman, for holding this important hearing today and as well as the other energy issues. mr. chairman, let me first by welcoming the honorable secretary of energy, mr. moniz here to the subdivision. welcome, mr. secretary. mr. secretary, let me commend you for the outstanding work you have been involved in on a myriad of issues all important to the american people. mr. chairman -- mr. secretary, you might not accept this and you might not think this is not something you see, but in my mind and mind of a number of my constituents you are indeed a superstar secretary. we're proud of your work on behalf of our nation.

mr. secretary, from your leadership from the talks with iran to establishing the much needed minorities in energy initiative and overseeing the development of the comprehensive qer, among your more important accomplishments and i have no doubt that you will go down as one of the most significant and impressive energy secretaries of modern time. see, i'm a fan, mr. secretary. as you may be aware, i have a bill that i will soon be introducing that would amend the department of energy authorization act to replace a current requirement for biannual plan quad drenial energy review. it is my hope that this bill like its senate counterpart recently introduced by secretary coons of delaware and senator of tennessee will attract bipartisan support.

in fact, mr. secretary, i am held off introducing the bill as of yet so my office can continue to hold talks with the majority side in order to find language that both sides can agree on. mr. chairman, i'm continue to reach across the aisle for support on this nonpartisan issue of quad drenial review. qer addresses many areas that are also covered in the discussion draft of the comprehensive energy bill we have all been working on. issues such as increasing the resilience yens, reliability and safety of the grid as discussed. initially there are many similarities that qer and in discussion draft regarding anywhere in north america energy

markets, modernizing it and enhancing the employment and workforce training. there's still much work to be done in bringing together in areas where there's some disagreements such as inciting and permitting and addressing the environmental aspect of transportation -- transmission, infrastructure. specifically, in a discussion draft, i have some concern, the there's still much work to be done in bringing together in areas where there's some disagreements such as inciting and permitting and addressing

the environmental aspect of transportation -- transmission, rather, storage and distribution infrastructure. specifically, in a discussion draft, i have some concern, the approval process described in section 3104. in this section, the burden shifted away from private kel) company and on to agency officials to issue so-called certificate of quality unless the official finds the product not in the public interest of the united states. another concern i have is section 3102, sense of interagency task force to evaluate north american energy -- however, the task is missing representative for being the environmental quality and

environmental protection agency as well as the departments of interior or transportation among others who may weigh in on environmental issues. mr. chairman as we move forward with the goal of putting forth a truly bipartisan energy bill, it's my hope that majority side will work with us to find common ground and put presidents -- precedence in doing the right thing above doing it quickly. mr. chairman, i thank you and yield back the balance of my time. >> thank you, mr. rush, for that opening statement. at this time i would like to recognize a chairman of the full committee, mr. upton for five minutes. >> thank you, mr. chairman, i want to say in response to mr. rush's comments, i look forward

to working with him and and all of the members on both sides of the aisle to do this right. we appreciate those kind words. we're delighted to welcome back secretary moniz to the committee to discuss the first installment of the quadrennial energy review that focused on energy transport in infrastructure, something we need to do. america's energy picture is rapidly changing and laws and regulations need to change with it. longstanding concerns about declining domestic energy output have been erased by rapidly rising oil and natural gas production. 2013 alone according to the qer added u.s. added 1.2 million barrels per day of production. domestic production of natural gas and liquids experienced equally dramatic increases. 2014 u.s. became the world's number one energy producing

nation. it's time we start acting like it. unfortunately the scarcity mindset is embedded in our policy, rising energy in production requires more energy infrastructure, what i have called the architect tour of abundance. both of energy legislation and qer included a number of ideas for upgrading and expanding the nation's energy infrastructure. in light of the pipeline spill in california, i would add both aim to ensure this new infrastructure is biltd with state of the art technologies which reduce the environmental and safety risk. energy abundance can be more than an economic success story. it indeed can be a foreign policy success story as well. recently released discussion of our diplomacy title is so

important. the discussion draft builds on extensive work done by the subcommittee on lng exports. we've heard from many allies who would rather get their natural gas from us than the likes of russia or iran. that was underscored last month. we came away with a profound new understanding of how vital these partnerships can be. in established parts of the eu, leaders are coming together to promote a unified energy market because of its potential for security affordability and innovation. in ukraine, with the commitment to freedom and democracy is hard fought each and every day, it's fundamental to dreams for the future. it encourages cooperation and cross border infrastructure, opportunities for energy diplomacy extends well beyond their own continent.

for example, there's broad recognition that the u.s. lng exports will benefit the u.s. economy our consumers and our allies, while the same could be said for oil exports and statutory ban prevented us from pursuing benefits for the last four decades. and it's time that congress considers revising the ban on crude oil exports. as with natural gas, america now has enough oil production to make increased exports feasible. especially to prove the qer notes have the most rapid supply increases, economic and foreign policy experts believe that expanding the markets for american oil would be a net jobs creator at home, on enhancing our geopolitical influence abroad and stamts reports from the energy administration point to reduction of gas as a result of increased oil exports, in other words oil exports can be a win for the american people and a win for our allies. the energy secretary has been

the most significant job creator in recent years but with the drop in oil prices, 100,000 positions have been lost, and case by creating more jobs by expanding market for american oil is a key reason why oil exports should be on this committee's agenda this year. while we're not currently considered any such provisions in this pending legislation, i do look forward to working with my good friend mr. barton and others on both sides of the aisle to ensure we get the policy right. i yield back the balance of my time. >> the gentleman from new jersey, mr. palone for five minutes. >> let me welcome secretary moniz back to the committee and congratulating you for completing the first installment of the quadrennial office review. it's recommendations will help us chart a path forward in the rapidly changing energy sector.

this installment relates to the transportation storage and distribution of energy. these ts and d connections between suppliers and users can impact our energy reliability and security and affect our ability to meet environmental and economic goals. ts and d infrastructure is vulnerable to a wide and expanding array of threats from natural disasters to physical and cyber attacks. so it's important we thoroughly understand these vulnerabilities and how to mitigate their impacts. at the same time, this modernization can help achieve meaningful greenhouse gas reductions and enharsing safety and security and reliability. oer recommendation the forward thinking we need to ensure a smarter more resilient cost effective and environmentally sound energy system for the future. i look forward to working with

you to translate these important ideas into legislation and law. i wish i could be as upbeat in discussing the majorities energy diplomacy discussion draft. rather than building on the strong relationships with our northern american neighbors the majority has chosen to resurrect controversial legislative proposals that have already drawn democratic concerns and presidential veto threats, it would eliminate the current premise for liquid and gas pipe lines and electric transmission =ú lines that cross the border with u.s. and mexico and canada and replaces it with one that effectively ub rerubber stamps permit applications. now it will only take effect after president obama leaves office it specifically excludes the keystone pipeline and allows transcanada to reveal itself by reapplying with a revised route the provision limits federal approval and environmental review to the small segment of a project that physically crosses the national border and creates

a presumption that these projects are in the public interest, shifting the burden of proof to opponents, to project opponents. this all but guarantees permit approval and eliminates the opportunity for protective permit conditions. the draft bill also recycles lng export language designed to address nonexistent delays at the department of energy. in fact, doe recently testified and i quote, that right now there are zero applicants sitting in front of us for a decision. the last application that came out, we turned that around in one day. nonetheless, the bill would make changes to an otherwise successful process. and finally, another provision would create a task force burdening federal energy regulatory actions with additional red tape and environmental considerations. in fact, it speaks volumes that the agency is task with natural resource and environmental management like epa owe doi are excluded from the task force. i hope this committee can work towards consensus legislation

instead of resurrecting problematic issues of the past. but thank you, mr. chairman. i yield back. >> gentleman yields back. that concludes the opening statements for today and, mr. secretary, thank you for joining us. we do look forward to your insights on these important issues and i'd like to recognize you for five minutes for your opening statement. >> thank you, chairman upton and whitfield and ranking members pallone and rush. >> i'm not sure the microphone is on. >> yep. okay. >> start again. >> okay. well, again, chairman upton and whitfield and ranking members pallone and rush, distinguished members of this subcommittee, thank you for the opportunity to be with you again today. i really appreciate the leadership that this committee has shown in working towards comprehensive and bipartisan

energy legislation that includes many of the topics in the qer first installment. i look forward to working with you to move these ideas forward and really appreciate in the opening remarks the statements about common ground and the opportunities we have to work together. as was already stated, the u.s. has reaped enormous benefits from our energy revolution which i point out includes carbon production and renewables deployment to energy productivity gains. this has produced changes that are challenging our energy infrastructure and, to be direct, we need to modernize and transform our energy sectors and shared commodity infrastructures. this will require major new investments and we have to get it right. we should acknowledge that while the choices we make and the decisions we take today and in the near future are critical, we also have to acknowledge that the choices and decisions that we fail to take in a timely way are very important for generating our infrastructure for the 21st century. to help guide these investment

choices, the qer provides recommendations based on the 15th month multiagency process that included 14 public meetings across the country and consultations with canada and mexico the. qer focuses on ts and d, including the network of railroads and other facilities that formed the backbone of our energy system. i asked the chairman's permission to submit the summary version of the qer into the record. the full qer is available online and you have my written testimony. so let me just take the opportunity to highlight five crucial tasks that we need to take. first, the infrastructure investments and energy security in a broader sense than the oil centric focus of the last several decades. an example is found in the

definition of energy security that the u.s. and our g-7 allies developed after the russian aggression in ukraine that includes seven critical elements in a modern view of energy infrastructure. supply diversification, for sure, but also transparent markets, greenhouse gas emission reduction, infrastructure modernization and energy response. this doesn't mean that oil disruption is not a concern. indeed, modernizing the sproe, as well as the authorities for the use is a major area of focus. markets, greenhouse gas emission reduction, infrastructure modernization and energy response. this doesn't mean that oil disruption is not a concern. indeed, modernizing the sproe, as well as the authorities for the use is a major area of focus. through its analysis of resilience and modernization,

the qer goes beyond the single focus of security policy leaving, for example, recommendations for fuel disruptions as we have seen across the country. more coordinated state planning is also essential and, most notably, we feel that state planning grants to help states update and expand their emergency preparedness and security exercises to enhance reliability, to accommodate several changing factors are all critical. other ways to improve energy security include programs to make our energy infrastructures more resilient to range of hazards and vulnerabilities. these are addressed in part for the qe's recommendation of a predisaster hardening grant program, transformer reserves and systematic program to ensure unaging natural gas distribution pipes. second, qer and its recommendations underscore the indispensable role of states.

these really are test beds. we need to advance studies such as a new framework for evaluating energy services to help things like rate structure development. third, the qer analysis showcases the importance of complexity of how our energy revolution challenges our shared transport infrastructures. frankly, when we started the qer, we did not anticipate that we would end up with this as a major area of focus. however, the dramatic oil production increases in unconventional locations coupled with things like the rsf and impending exports of natural gas have placed strains on those transport infrastructures, rails, bars, locks, port facilities and the like. the qer includes recommendations focused on innovative funding mechanisms for these infrastructures and, for example, recommends a program for port connectors being stressed by new energy supplies.

fourth, the qer recommends coordinated efforts for skills training and recruitment of workers to build and staff our modernized energy infrastructure system and support jobs for working families a national job driven skills system with standards that include a special emphasis on training for veterans, on minorities in energy is critical to our energy future. i might note that yesterday, 85 minority interns started working at d.u.e. for the summer. i will look at how we can capture the energy sector opportunities that we have for new jobs. and finally, we need to acknowledge the critical federal role in incentivizing our investments. while the bulk of the qer recommendations fall under this committee's jurisdiction, the cross has other equities and infrastructure, especially in shared infrastructure and north american energy integration. i would just note, in closing, that the administration's most recent budget request includes a down payment for funding qer at $500 million and sequestration has placed artificial caps on spending and the corps of engineers and others, frankly placed these critical problems in competition with very

restricted budget allocations. for example, the house appropriations mark does not meet our needs for energy infrastructure. in closing, the department of energy and all the agencies that developed this report and it is recommendations see great potential for benefit and we look forward to working with this committee again to find a bipartisan ways of advancing our ts and d infrastructure. i would be pleased to answer questions. >> thank you, secretary moniz. and at this time i'll recognize myself for five minutes of statements and questions. we all recognize that the clean energy plan has been at the very center of president obama's initiatives and i think everyone recognizes that the tension between the obama administration and republicans in the house and

senate as well as elsewhere has been -- many of us feel that the president is moving so quickly through regulations without adequate communication with the legislative body. and while we all recognize the need for an all-of-the-above policy, we look at europe and see how some policies over there and which countries like germany made decisions to eliminate nuclear energy has created extremely high retail prices and, as a result, europe has some real economic problems. so what we want to be sure about in america, we made this mad rush for change and we do so in a way that we can protect the reliability, the affordability so that america can continue to be competitive in the global marketplace. mr. mckinley, who left, was just saying that in west virginia, they've lost 45% of their coal

jobs. this economic impact affects all of us and that's why we're trying to move this energy bill and that's why this quadrennial bill is so important, to look at all aspects of everything. because everyone knows that we're fortunate, we have an abundant energy supply and natural gas and oil as well but we have infrastructure needs and it takes years and so as we're shutting down coal plants through regulatory orders, we don't always have the capability to get the energy product to where it needs to go. and so that's what this is all about. so one of the things i need to

ask you, the first installment was a colossal undertaking with 22 agencies involved and more than a year of work. and if this is the first installment of the qer, will there be a new installment each year for the next three years and then the process will begin all over again? is that what your understanding is? >> no. i apologize. so this first installment, it frankly took a few more months than we had hoped. we're now in the process of

working across the government to settle on the next installment we would like to get something into your hands early next year again and then again at the end of 2016. >> now -- >> and clearly this will be now expanding into the supply and demand ends of the energy sector. >> yeah. and my time is already running out here. i want to focus on one issue because -- maybe because i was in the railroad industry, but railroads provide a vital transportation network for all sorts of commodities in america. and historically, railroads have generated lots of income from moving coal. and the coal shipments have dropped dramatically, even though our coal exports are up despite problems of trying to

open up coal export facilities in washington state. but many people are genuinely concerned about the viability of the railroad industry with this extreme reduction in coal transportation. was that discussed in the quadrennial review process, from your personal knowledge? was there any discussion about that at all? >> yes, mr. chairman. of course, the department of transportation would have prime responsibility in that area. but there were discussions because we did see, in some cases, especially in the upper midwest, some coal shortages for a while. it was not because the trains weren't operating. they were just carrying other commodities, which, my understanding, may have had a higher margin for them. so one of the initiatives that we have taken and the d.o.e eia is working with the surface transportation board at d.o.t. is to first of all get more data

and understanding of how commodities, including energy commodities, are moving on the railroads because it is coal. it's obviously oil. and it's an ethanol competing in a certain sense with a whole variety of other commodities. but i think more data and data transparency will be very important for federal and state planning. >> because we do have to have a strong financial railroad sector just because of the impact it has on our entire economy. my time's expired. at this time, i'd like to recognize mr. rush for five minutes. >> thank you, mr. chairman. mr. secretary, as i asserted in my opening statement, i believe you will go down as one of the most consequential energy secretaries of our time and i want to commend you on your fine work and the initiatives that you have established during your tenure. and as you know, mr. secretary,

one of the attempts to change the culture and the practices of institutions and they have been doing ways for a long time and inevitably there would be resistance and apprehension when those entities are asked to bagy÷ change. and if it to discuss with me the initiatives that you and i have discussed before in the past specifically, i would like to discuss with you the issue inclusiveness and outreach of the publicly funded national labs, including but not limited to argon and berming in my state. and my office would be in touch with you to schedule a meeting for sometime in the very near future between you and i. it is my opinion, mr. secretary, that argon and berming

specifically are fumbling on the issues of inclusiveness and outreach. it seems to me that they are trying to run out the car on you and i. they are not seriously taking our requests and our initiatives to heart. mr. secretary, on another issue, i'd like to get your thoughts and feedback on the qer legislation that was introduced in the senate. and i -- as i said before, i will be offering a companion bill in the house soon. as you know, mr. secretary, this bill would simply amend the d.o.e. organizational act to replace the current requirement for a biannual energy plan for a quadrennial energy review. can you give the subcommittee some feedback on this bill from your understanding would d.o.e. take the lead in drafting a qer and is there a need for a legislation such as what i previously discussed? >> thank you, mr. rush. by the way, on the consequential issues, i hope there are

positive consequences and at this point i'd say that our energy policy and systems analysis office did a heroic job in marshalling this huge qer forward. on your first question and culture, et cetera, i might add that there's a wonderful expression by peter drucker, the famous management consultant, we can change rules but it's hard to change culture. but i think we are certainly making advances, certainly on the issue of minorities and energy and if you know otherwise, i'd like to discuss it with you. i do see enthusiasm going forward. argan, for example, one of their initiatives is in terms of making sure that minority businesses are quite aware of the opportunities for procurement. we also have a leader in our place-based initiatives. a good example is working with southwest louisiana with the enormous construction going on