every weekend on cspan2. television for serious readers. now a discussion about civil rights and criminal justice. panelists at a federalist society event talked about community policing and the relationship between police and the citizens they protect. this is an hour. >> ladies and gentlemen, if you could all take your seats. my name's leonard leo, serve as executive vice president of the federalist society. it's a privilege to have all of you here in washington, d.c., for our annual convention. we hope you're enjoying all the different sessions. we're going to have a conversation this morning about state attorneys general and this is an issue of great importance to the federalist society and it should be of great importance to the american people. because in many states, state attorney general is one of the most important constitutional officers. oftentimes only one of two or

three or four constitutional officers in a state. and there has been an enormous amount of activity in the state attorney general space over the past few years. we're seeing an unprecedented amount of activity by state ags, particularly with regards to pushback against federal overreach that oftentimes comes in the form of litigation. not only are there unprecedented number of lawsuits being brought against the federal government by state ags, but an impressive number of state ags joining in each of those lawsuits. we've got a group of great people here who are going to have a conversation about this. i'm going to introduce our facilitator and moderator, adam white, who has been a long time volunteer leader in the federalist society, is now i believe serving with some

distinction at the hoover institution. >> on monday. >> starting on monday. and he just came out with a wonderful piece in the weekly standard which is out today i believe called "judging roberts," the chief justice of the united states ten years in. so not on this particular topic, but well worth the read. with that i'm going to turn things over to adam. [ applause ] >> thanks, leonard. state attorneys general occupy one of the most important and complex roles in american government. though elected or selected politically, in office their duty is to the rule of law. they're responsible for vindicating both the laws of the state and the rights of their citizens and the united states constitution separation of powers and federalism. now here today we have two -- it's hard to think of two better speakers on this subject right now.

one newly elected and serving now for this year is the attorney general state of nevada and another who served as the attorney general for the state of alabama before joining the 11th circuit. begin with judge william h. pryor jr., serving on the 11th circuit since 2004. but perhaps more direct relevance this morning, he served as attorney general of alabama from 1997 to 2004. when first appointed, he was the youngest attorney general in the nation. he was elected and reelected in 199 1k38 2002. he received the highest percentage of votes of any statewide candidate. graduated from tulane law school. clerked for judge wisdom on the fifth circuit, now the university alabama school of law. we're also joined by the honorable adam laxait.

former lieutenant in the u.s. navy. he served as judge advocate general and volunteered to serve in a combat zone in iraq, operating base camp victory where his team was in charge of keeping more than 20,000 detainees during the surge. he was awarded the iraq campaign medal and unit was awarded the joint mare toir yous unit award. he advised john bolton at the state department. he serves on the board of trustees for catholic charities of southern nevada and co-founded the st. thomas moore society of nevada. received his law degree from georgetown. let's welcome our speakers and we'll begin. [ applause ] now, if i may begin with you judge pryor since you served a

little while ago, what was it like serving as attorney general then? >> it was a different world. i became the attorney general of alabama in january of 1997. jeff sessions my former boss had just been elected to the united states senate and the governor appointed me to finish his term. and the first issue really on my plate was whether the state would join the national tobacco litigation. i had served as the chair of a task force the year before for both the governor and the attorney general as i was jeff sessions' deputy ag in evaluating whether the state should file such a lawsuit. our neighboring states, mississippi, and florida had. our recommendation was that we not do so.

we thought it was contrary to law. certainly to the law of alabama. that was our perspective. and bad public policy on a lot of levels. and of course there were growing number of states joining in that litigation. it was very much akin to the kind of litigation that states did collectively back then. lot of that, i think, really was an outgrowth of the era during the reagan administration when any trust enforcement changed at the federal level and really went more to a consumer welfare model perspective, a law and economics kind of perspective. and states who had a more populous perspective of anti-trust enforcement and old school kind of liberal populist

perspective resisted that. it was very much an era where states were pro regulation, looked in many ways to the federal government for leadership. the tobacco litigation which i refused to join eventually landed in the hands of congress for a while. many of the states wanted congress to step in. so it was -- you know, it was really a different era. there was a time when -- there was a case before the supreme court of the united states involving whether congress had the power under the commerce clause to create a civil remedy, a tort remedy for a victim of an intrastate rape. you know, whether that was a proper exercise of congressional power. 36 state attorneys general filed a friend of the court brief in support of federal power and the

power of congress to create that right. i was the only state attorney general who filed a friend of the court brief on the other side and said this is really -- [ applause ] -- this is really the province of the states. that's of course the way the supreme court of the united states ruled. but it gives you i think a flavor of how different the environment was. >> so how did things begin to change then towards where we are now? >> that's a tougher question. for me to answer. because my service ended in 2004. there were a bunch of us -- a core group of us who were dissatisfied with it. and started working together, both politically and through litigation. our state solicitors general, we were in the process of creating

those kinds of positions in our office. i created one in my office. started working together more in supreme court litigation. but, you know, really in many respects, during my whole era, i felt as if we were under seenl and we were fighting back. i mean, if you look at the tobacco litigation alone, this was truly remarkable era when state attorneys general collectively brought an industry to agree to a settlement that would bring billions and billions of dollars to state governments, what could only really be viewed as a form of taxation that they achieved through litigation without any kind of vote of legislative chambers. it gave a huge percentage of

those billions of dollars to the lawyers who filed that litigation and conducted that litigation and had been campaign contributors to the attorneys general. there were really some corruption issues associated with that, prosecutions associated with that. so, you know, it was an entirely different environment. i'm sure -- i mean, i think, maybe the seeds of changes that perspective were laid back then. but when i left office in 2004, i don't think it was anything like the environment that you see now. >> well, let's talk about the environment we see now, attorney general laxait. i'm curious what spurred you to run for office. then once you settled in, what's your experience been in the first year? >> well, you know, federalism was one of the things that

inspired me to run for office. if you can believe it, when i was campaigning last year, there isn't a single person that knew our solicitor, knew what a solicitor did. our office hadn't filed a lawsuit protecting a western state that's been under siege from the federal government for some time now. and politically, you know, republicans and democrats fight federal overreach in a state like nevada. but for whatever reason, the attorney general's office had never been used to protect the state. and i had to literally in kind of a grass roots fashion, in a short year go tell people why i was running, tell people what they're missing from their ags office and what more we could

bring to the table. as you can imagine, it excited a lot of people once they said oh, wow, the attorney general's not just boring lawyer that nobody ever hears from. so that's been a big motivating factor for me. and we've had great opportunity to actually step into that space. we had a solicitor general technically, but that did not function in the capacity that i think you guys are all used to as a solicitor. that was the first thing i had to do was bring in a new solicitor general, someone that most of you -- many of you know lawrence van dyke who had been a solicitor general and said all right, i need you to help me build an office, because we had zero. we got into the immigration litigation within a few weeks of being in office. and so we really kicked into

high gear. once people started realizing that we can, whether it's waters of the u.s., endangered species, a bunch of things we'll talk about during this panel, people have been very excited that the attorney general's office can do this and that we can protect the state. unfortunately, as i now have to keep telling people around the state, places like texas have 20 in their sg's office and i still only have one. so we've been a victim of our succe success. people are, wow, why aren't we fighting this, why aren't we fighting that. give me some time here. it is i think a very different time from when ags were predominantly used to basically crush businesses. there's now nearly 30 republican ags. i think there's a huge hesitancy to go down that path. i know my philosophy is, if we think a business is doing

something wrong, we're going to reach the business and see what's going on, get their explanation first, see if we can reach an accommodation as opposed to i think in judge pryor's day, basically surprise lawsuits without ever speaking to the other side. it's not really my goal. we have to protect the consumer. but there are more effective ways to protect the consumer. it is -- it's got to be a huge seed change, probably weekly we have something involving federalism in our space that we're looking at, and it is -- i suspect the judge was in the wilderness with four or five ags that were willing to do a quote, unquote, multi-state litigation against an administration. and now when we're looking at joining lawsuits, i believe all of this started mostly with the

obamacare lawsuit, you know, you're looking at 20 to -- well, sometimes to 30 or more ags with republican/democrat crossovers. so i think we are entering a new era that whether that's -- we found our new voice or whether this administration, the timing of how this administration has acted along with all of these new ags has provided a perfect point of inflection where there's a lot for us to do. >> i'd be curious, for both of you, your office requires or required you to interpret the law, interpret the constitution and decide as a practical matter either to bring suit against the federal government, join a suit against the federal government, or in the other direction, you're defending state laws or choosing in some, you know, from time to time not to enforce a state law on constitutional grounds. i'd just be curious, how do you

approach a question like that, both the sort of interptive question and the practical accounts of carrying out the office? >> that's a fun topic. i have a perspective that is perhaps a little bit different from what has been expressed by many of the -- of the state attorneys general who currently nerve. i think it's been illustrated during the marriage litigation. so, you know, my perspective is that -- and a lot of this depends on state law. not all attorneys general offices are created the same way. 43, though of the 50 are elected. five are appointed by the governor, i think, still and one by a state supreme court, one by the state legislature. so you have to make sure you understand what the state law is in each jurisdiction. but as a general rule, the attorney generals, the chief

legal officer of the state, independently elected. we don't have a unitary executive at the state level. and the state attorney general has the constitutional authority to state the legal position of the state government in court. and the attorney general takes an oath. my perspective always as a state attorney general was, i had an obligation to take the constitution seriously and to state the correct legal position. and if that meant that i had to confess that a state law was unconstitutional, i did so. if -- you know, i didn't think that it was productive to have debates about doing my job. see, we've seen in the context of the marriage litigation -- a year ago i gave a lecture at

case western and i criticized the conservatives who say that the answer to the marriage litigation was to say, well, i'm doing my job, i'm defending state law, without regard to what the merits of the argument might be. from my perspective, you ought to be talking about the merits. what does the constitution actually require? what is the correct legal position? i don't think it's productive to just have a debate about process. and we have a long history in our country of executive review. each branch has -- we forget about it. but each branch has a responsibility of taking the constitution seriously, interpreting the constitution independently. thomas jefferson refused to prosecute under the alien

sedition acts though they had been upheld by the federal courts. he pardoned those who had been convicted under that law. andrew jackson vetoed the national bank act even though it was upheld by the supreme court of the united states. i can go through examples of lincoln and others. executives have an independent role in reviewing the constitutionality of legislation and other actions. and i think that that applies at the state level as well. state attorneys general take oaths of office and i thought rather than having a debate recently in the marriage litigation about whether attorneys general were, quote, doing their job in defending the law, the argument really should be about what's the correct legal position. >> you know, picking up on the -- the duty to evaluate the

constitutionality of the law, i think we're in a unique era right now where the administration and various federal agencies are virtually relentless in what they're willing to do to expand their initial statutory grounds for doing whatever they're doing. and so i think that it's incumbent on congress -- i know some of the congress elected congressmen and women and senators do start -- they're starting to take seriously that they have their own responsibility in evaluating whether laws they pass are constitutional. i think many of our judges and a few of our -- i know a few of our supreme court judges expect that. they assume that's going on. unfortunately, you hear in the political space all the time, hey, it's our job to just pass the law. we'll let the judges figure out

whether it's constitutional. i think it's important that we reverse that course. because first of all, judges are 50/50 at best these days of actually holding those lines of what's constitutional and not constitutional because obviously there's a lean towards deference that continues to go against our direction. so i think the ags have provided this incredibly important role in the last few years. this year, i just feel so fortunate to be in the position i'm in at this moment of time in our history to be able to file lawsuits and gain very important injunctions. you know, we make that argument all the time. we're not policy folks, but it is our job to -- if we need to, to defend the constitution, try to get something like the waters of the u.s. or executive amnesty, get these things

frozen, if you will, in the court system so they can go back to the body where they're supposed to be handled. >> let's touch on that a little bit more. i remember years ago, a law professor said that the new -- in the federal government, the new form for federalism issues it wasn't the senate anymore. that was years ago. it's probably even more so now as we see with these administrative programs. you mentioned waters of the united states. there's endangered species act. i'd like to hear your perspective on operating as a constitutional officer on behalf of the state, looking at these programs and deciding what action to take to push back against federal overreach. >> sure. we've had two big ones since i've been in office. and these are very western issues, so i won't -- hopefully i don't bore you guys to death. waters of the u.s., hopefully

many of you have heard about, has hinged for many decades on the phrase navigable waters. most any crowd i speak to about waters of the u.s., anyone can articulate what they think a navigable water is. and obviously for federalism type crowd, that was the hook. something that was interstate is the only reason that the federal government had any capacity to be in this space. so what's happened with this rule is they decided to reinterpret that phrase. it moved into -- i'm barely exaggerating -- to backyard pools. roadside ditches, wetlands, any pooling water that lasts for a handful of days in a year. so for a state like nevada, and many states in the case of the waters of the u.s., it's a

transformative thing that they were trying to do through the executive branch, through the administrative state. and we -- that's a great one to see the interaction of the new ag space. so you knew that you had about 35 states that were opposed waters of the u.s. there was a lot of democrat crossover in the case of the waters of the u.s. a lot of discussion occurred amongst the sgs across the country to figure out the best way to approach this. what you ended up with i believe is five different lawsuits in many different circuits. we, being in the ninth circuit, we went into the north dakota litigation. and we were part of the 13 states that got the first injunction. so, you know, this is a perfect example. you know, the prior ag of our state would not have been involved in that case.

>> that's a prior. >> the other pryor. >> my predecessor would not have been involved in that litigation for the state of nevada. and we ended up not only getting the litigation, we happened to pick the right -- the right one that was granted injunction the afternoon before the rule was set to go into effect. so we are absolutely basically ap plek tick about this rule in our state. it's a very tough rule. just boom, you know, an injunction. something that nevada hasn't been on the good side of in a long time. but, you know, unfortunately, you -- you run into the pressure of whether or not you're in the right litigation, whether or not you joined the right lawsuit. this time, we picked the right one.

the federal government then said, well, they're going to move forward with the rule in the other 37 states. which usually gets gasps. i guess it's too early here for you guys this morning. but, you know, imagine that. they're so determined to transform administratively our country that they say, okay, we're going to have a two-track rule on what it means for navigable waters in america. fortunately, some weeks later, at the circuit level they ended up doing a nationwide injunction. but that's just a real example of what an ag that is trying to presevf preseven serve the constitution can do to help the state. >> do you have anything to add? it's about half past the hour now. we'll start taking audience questions in about ten minutes. if anybody wants to line up then, by all means.

a few times you mentioned the state solicitor general office. as it happens, one guy in your office is a law school pal of mine. lawrence van dyke. judge pryor, if i remember correctly, you helped to sort of establish this trend at the time of creating the sgs office didn't you? or am i totally wrong about that? >> i create add state solicitor general post in my office. but in fact, there were already dozens of states that had done so. i was really following an example that had been set by others. i think there are even more now who have done so. and -- well, what were you going to say? >> since there a lot of young lawyers here at this convention, if you could sort of describe that job and the job of that office and what sort of lawyers traditionally have served in that role. >> let me tell you first why i did it. to kind of set that up.

so this was during the renquist court era. federalism was a big part of the supreme court docket. i was pretty heavily involved in some of the major cases that were decided by that court in that era. the kimmel case was a joint florida/alabama case. the alexander versus sandoval case, garrett versus the university of alabama board of trustees case. all of which challenge congressional authority to subject state governments to certain kinds of lawsuits. and i had hired a good friend of mine who's now a circuit judge on the sixth circuit, jeff sutton to represent our state in some of those cases before the

supreme court. but i became convinced that the state solicitor general model would be something that would allow us to do even more, get even bigger bang for our buck. and we could bring in young lawyers, many of whom had clerked on the supreme court of the united states, were just a few years really out of law school, but were very talented and would love the opportunity to be involved in high profile litigation representing state governments and state supreme courts and federal courts of appeals and occasionally even in the supreme court of the united states. opportunities that they would not get as more junior lawyers at big law firms. we had to pay them a salary that would be competitive to attract them, but we could pay them far less than it would cost to hire

big law firms to represent us in those cases, particularly before the supreme court, but in other courts as well. and, you know, i learned kind of that model from some other states. you know, that's how ted cruz started in many ways, in public service. and i think it's been a highly successful model, and it's not surprising that more states are doing it. >> for us, like i said, the sg's office really wasn't active in this space, mostly doing habeas work. so converts -- you know, we're set up so there is a lawyer that represents the natural resources. we have individual lawyers that may represent the agencies that are affected by this. but we needed a dedicated appellate practice.

we needed someone that is going to be able to take everything that's going on in the office and always -- anything that's hard, i should say, and have an eye towards if we end up in our supreme court or on the federal side. so that's been very important for office. i'll say for lawrence van dyke, you know, he got us -- he took a look at a case that the state had been involved in for a few years, involved bussing of patients from nevada to california. and san francisco had sued our state. as you can imagine, a somewhat high profile litigation that i inherited. and so here we are, we've been in litigation for a few years and my new sg that's got the appellate view looks through and says, hey, there's no sovereign immunity argument in this case. he's sort of shocked. and we ended up putting together

a multi- -- first of all, we filed the sovereign immunity, but we also got a 40-state amicus that supported this sovereign immunity position. within weeks, california files a sovereign up munty case against nevada on an unrelated case and they hired paul clement to do it. unfortunately, for poor lawrence, the clement case was granted and not ours. but we know that our lawsuit, along with getting all of these states to join, you know how hard it is to get granted, it was that combination that got this case granted. so having that type of thinker, that appellate-minded thinker that can, for us -- and this may surprise you guys. if you're the lawyer for the

department of education in our state, you are the lawyer whether it was looking at a contractor whether it was litigation. and if your litigation went to the nevada supreme court and somehow to the u.s. supreme court, that lawyer stayed on that case. as you can imagine, that was not acceptable for me. that's just not the way we were going to continue doing work. so making sure that we have a solicitor's office that's now engaged at the beginning of these tough cases to make sure we're setting ourself up for the long run has already been very big for office. and quickly, we have a new deputy solicitor. and he left from gibson & dunn in san francisco. absolutely loves his job. they thank me every day, i kid you not, for how exciting their work is, how much they love what they do. and here they are basically two guys that are shaping this major

litigation for a sovereign state. and so it's exciting work. i think the sg's office has got to be as good as it gets. >> just one more question from me while folks are patiently waiting. y'all campaign for office, successfully. i'm just -- i'm interested to hear how you translated rule of law issues which aren't always, you know, popular, how did you translate that into a popular campaign that one votes? how did you approach that? >> well, let's take the federalism litigation as an example. in defending our state in a disability discrimination case, a case where i argued that congress exceeded its power in subjecting state governments to suits for money damages under the americans with disabilities act, they were certainly advocates from the disability

community who did not agree with our legal position and made arguments in the public square against it. but for me it was important not to get lost in the weeds about the legal argument, but when communicating with voters, to tell them what was really at stake. we didn't argue that state governments were free to discriminate against the disabled. our argument was one of protecting the taxpayers against a lawsuit that would open up the state treasury to money damages awards, which we said, you know, we were arguing the federal government can't do that. we can do it to ourselves and in fact, as a matter of state law we had an administrative process where damages could be awarded to a state employee who had been discriminated against on the

basis of disability. but our argument was, sure, the americans with disabilities act is constitutional, but subjecting state governments and state taxpayers to this kind of remedy is going too far. and the supreme court agreed wuss. so it helps a lot to win. i'm a big believer in picking your lawsuits wisely when you are an advocate. and we did a pretty fair job of picking winners. and i think, over time, voters will see wins and say, that -- that guy must know something about what he's talking about. i had a big school prayer case where the governor, you know, took the position that teachers and school officials should be able to lead organized prayer and religious activity. and i didn't take that position.

you know, i -- i argued that there was a federal injunction that restricted the free speech rights of students and that the federal injunction had gone too far and actually violated their free speech rights. aclu was involved in the same litigation representing a student and was arguing that the injunction was proper and that school officials needed to clamp down on and censor the students' speech. well, in that kind of battle, we chose the winning argument. the 11th circuit twice ruled that we were right. you know, i think you have to -- you have to pick your battles carefully and you have to be able to communicate them. but over time i think voters will recognize that, if you -- if you are winning more than you are losing, you might know what you're talking about.

>> i would say that i think there is a notion that maybe the average voter doesn't know what rule of law is, and i would submit that i did not experience that last year at all. i mean, everywhere i went in the state, when i gave my stump speech that revolved around the importance of the rule of law, following the law, people absolutely got it. i think i always used to joke, it was amazing, it didn't matter if it was a town of 500 people. eric holder was like the first name on people's -- first question i ever got. what are you going to do about eric holder? and the thing that they reflexively knew is laws are not being followed out there. you know. what's going on. why are people picking and choosing which laws they're

going to follow. and so i think that was good timing for me. i mean, we just had sort of the extreme time of this, i think, in our country where people absolutely just knew looking out there in the big space that laws were not being followed. and i think federalism for us -- there was a little discussion about how hard that is to sell last night. i didn't have any trouble selling federalism either. again, maybe that's because i am in the west, but everybody very much understands how hard it is for a state to operate when the federal government is coming in on top and changing the rules all the time and whether it's our water, our lands, you name it, you know, we're fighting for our lives out there in many ways. we already have 85% of our land controlled by the federal government, which astonishes probably most people in this room. so i guess it could be state to state.

it could be the region you're in. but federalism, the rule of law, those things are absolutely hitting home in our state. and again, we have been lucky. we have been on the immigration case. we've been on the waters of the u.s. case. we are now defending against the aclu the nation's first education savings accounts. $5,000 can go to any parent for any type of school. and we're being sued under a blaine amendment that many of you may know the history of that, that had a lot of anti-catholic bigotry. and we were able to, again, getting a solicitor involved along with your trial litigators from the beginning of the case, you know. we're ready. we're ready for this case. we're ready to win it on the merits, or we're ready to take it to the supreme court if we have to on the blaine amendment grounds. so people are seeing the activity. people know that this is helping our state.

this is returning decision-making back to the people. and they're getting that, i believe. >> judge pryor, do you have anything to add before we go to questions? >> two things. all politics is local. i talked in terms of federalism when i was the state attorney general. but in alabama i tried as much as possible, really, to refrain from the use of states' rights which carried a connotation that really harkened back to the days of governor wallace and i think a flawed perspective of constitutional law. and i tried to be careful about that. so there is a western perspective. sometimes there is a southern perspective that makes the position different. but i was going to ask you -- so you -- you've got a lawsuit that's challenging these education savings accounts, and i take it, then, that either your state constitution or some state law provides the blaine

amendment, which prohibits taxpayer dollars from being used to support some kind of religious education. am i right? >> yes, your honor. we have a constitutional amendment that bans for sectarian purposes. >> here is the thing i was going to add. sounds as if you're getting ready to argue that your state constitution in fact violates the federal constitution. am i right? [ laughter ] >> and by the way, that's totally consistent with my perspective of what the state attorney general should do and what your oath of office is. but it's very different from what a lot of state attorneys general, conservative state attorneys general have been running around the country saying, i have a job, i have to defend state law no matter what. you don't. you have a duty to defend the constitution.

>> well, we've -- thank you very much for that, your honor. [ laughter ] >> we've stopped about a half-step short of that. it's a three -- i won't bore you guys. there are three prongs. the third prong is the blaine amendment. what we basically said is that we suggest they find this on very narrow -- they do not overturn the esas on blaine amendment grounds or they will risk bumping into the u.s. constitution. >> so it's a constitutional avoidance argument. >> exactly. we've made a constitutional avoidance argument. >> everybody has been very patient. thank you very much. there are three microphones. i will try to be as fair as possible. i believe the gentleman in the middle stood up first. back, middle, front. sir. >> art mcemberg from the gem state. it appears the u.s. supreme court is in conference today and

we have heard some -- i have heard noises lately about undertaking new look at the death penalty based on a cruel and unusual argument and -- and putting the -- putting the idea aside about whether or not the death penalty itself may be cruel and unusual, there seem to be two other arguments that come up. and my question is about what the state a.g.s are doing about those two arguments, which appear to be the length of time it takes for the imposition of the penalty and the second one being the method of the penalty. some states have gone away from the new chemical impositions and gone to, you know, firing squads and all this type of stuff. how do the state a.g.s handle those two issues related to, i believe they would be a sixth amendment, speedy trial and a due process fifth amendment issue.

>> is that an issue that you have -- >> i was going to say, it's not something that's ever hit my desk so far. so i guess we'll have to wait and see if something comes down the pipe. the way it typically does go down as far as as long as we're having this a.g. is that if a few a.g.s get motivated on an issue, then they will circulate around the rest of the states to see if shears some support for one side or the other of a case. but i haven't seen anything like that, which doesn't mean it's not in the works, by the way. it just means i've got a huge office that doesn't do just this space. >> it hits my desk as a judge, and i'm not going to talk about it. >> fair enough. thank you. >> doctrine of constitutional avoidance again. >> the back microphone? >> good morning. john vorparian, government attorney from new york. my question originates as a

writer forboxscorenews.com. fantasy football, 20 states have weighed in and identified it -- >> unbelievable. >> -- as a gambling issue. and given the professional sports leagues partnership with these companies, given the amount of sum of money involved and the fact that now we have sports talk radio hosts suggesting that a possible resolution would be a federal gaming czar. i was just curious, what is the likelihood that we could end up with in addition to -- >> you're from nevada, not me. i mean, i'll tell you right now -- i'll tell you right now -- >> the hard questions are coming next. >> general, i'll tell you this. in alabama, i'm kind of old school. we play real football, not fantasy football.

[ laughter ] >> you play it pretty well, too, occasionally. >> roll tide. >> i can't imagine that i would have thought i would have gotten a daily fantasy question with this panel. it was a long question. i would say nevada would certainly not want a federal czar of gaming. i think that the american gaming association and gaming companies both in nevada and around the country have worked very hard to clean up the reputation of gaming to make sure it's regulated, to make sure there's solutions for problem gaming. all of these things has been an eye towards making sure it stays with the states. we were actually asked -- my biggest client is the gaming control board, which is the biggest, you know, most important gaming regulator in the world. and we were asked for an opinion on daily fantasy. under nevada state law, it was

as black letter as you can imagine that it fell directly in the definition of gambling and sports betting. they'll either have to apply or, you know, as they've decided now, they just let the state -- you know, nevada is probably 1%, and they'll make their economic decision how they want to move forward. these are tough questions. and obviously, there's a lot of movement going on in the daily fantasy world. you know, my job is and this situation was what's nevada law, and nevada law was pretty clear. i will say in defense of our industry, as i have heard on talk radio like what you're talking about, that somehow this was protectionism. and i would say that's absolutely not true. i mean, our gaming companies would love to have daily fantasy. it brings a lot of people. it's a great driver of traffic. what our gaming companies wanted was just certainty.

you know, they're so highly regulated, if they do anything wrong, they risk losing these licenses. they're frozen out of innovation in all of these spaces until an attorney general or till the gaming control board says they can operate in the space. that was one of the reasons why this opinion came down when it did is just to signal to the industry what the rules of the road were. >> thank you for your patience. >> no problem. jerry, board of visitors. it's with some trepidation that i am questioning something that judge pryor said, especially since i think that judge pryor is one of the greatest minds in this country and would be a great guy for consideration for the next republican president. [ applause ] >> if nominated, i will not serve. >> i doubt that.

>> i'm talking about president. it sounded like -- >> oh, oh. i said supreme court. >> oh, i didn't hear that. >> oh, okay. the question of an a.g. or solicitor general of a state following his own view of the constitutionality of a statute and deciding not to defend it in court, i have to give you an example of new york city. it's not a state, but the same thing would apply where we had a wonderful program called stop and frisk. and the new mayor, mayor de blasio, didn't like it. there was a court case decided by a federal district judge who, when it went up to the court of appeals, the district judge was so bad that she was replaced.

and it was quite clear that the panel in the court of appeals was going to declare the stop and frisk constitutional, even though she had declared it unconstitutional. and mayor de blasio's lawyer withdrew the appeal. >> i'm totally familiar with this. okay? >> it troubles me as -- >> i think everyone knows about that. >> okay. where -- after all that person said that he was exercising his view of the constitutionality of the police action. >> right. mm-hmm. >> didn't that deprive the citizens? >> the citizens of new york have an opportunity to vote for a mayor. and they had a public debate about what the correct view was. now, you can have -- you may not agree with how the voters settled that debate. but in my view -- all right, let me take an imagine from my experience, okay? we had a state law in the school prayer litigation that i mentioned.

the state legislature had passed a law that said students can pray in a nonsectarian, nonproselytizing way at school events. now, you know, i'm not a theologian, but i'm not sure what a nonsectarian, nonproselytizing prayer would look like. but i was pretty sure that that was viewpoint discrimination, that that was choosing one form of prayer over another, and that it violated the first amendment. the state legislature passed that law. now, i could have defended it or tried to defend it. but it was clear to me that it violated the first amendment. so we didn't fight about that. i agreed with the plaintiffs, that's a bad law. that's a law that's unconstitutional. if the voters disagree with me, they could elect, at the next election, an attorney general

who would defend that kind of law. they didn't. they re-elected me. but each branch of government has a role in constitutional interpretation. and here's the thing. we've gotten to the point in this country where when presidents sign bills that congress passed where lots of scholars say that's got a constitutional problem, there's a constitutional defect with that provision, the president will, you know, do the ultimate copout and say, well, we've got expedited review provided in this bill. it will get up to the supreme court. we can find out whether it's constitutional or not. the members of congress who vote on laws have taken an oath to the constitution, the supreme law of the land. they have an obligation to figure out for themselves whether that violates the constitution before it ever gets to a lawsuit. the president of the united states who signs bills into law has the same oath and has an

obligation to evaluate its constitutionality. every branch of government, every official of government takes an oath to the constitution. you know, to some degree, these issues need to be settled in the political process, through elections, not just through litigation. so i would say to you, you know, the mayor of new york made his pitch. and maybe in a few years, the voters won't like what the result has been. and maybe you'll get a new mayor with a different kind of perspective. but we can't cede all the power -- i say this as a federal judge -- all the responsibility and all the power to the courts to make the ultimate constitutional determinations. other branches have that responsibility, too. [ applause ]

>> attorney general, do you have anything to add? >> i don't think so. >> you can't top that. >> everybody's been very patient, but i do see we're coming up on 10:00, and i feel that the red light on the podium is going off. so if you have any closing thoughts, either of you we'd love to hear them. or with that, we'd like to thank you for your time and everything. [ applause ] here's a look at some of our

featured programs this weekend on american history tv on c-span 3. next tuesday, president obama will deliver his last state of the union address to a jonts session of congress. this saturday and sunday goning at 1:00 eastern, we'll feature four state of the union speeches by four former presidents. on saturday, it's jimmy carter followed by president ronald reagan. and on sunday, george h.w. bush followed by president clinton. also lynn well miranda accepts the book prize special achievement award. and on sunday morning at 0:00, on road to the white house rewind, we look back to the 1984 presidential kpaun and a debate between eight candidates in iowa. >> whom we elect to replace that man has to have the trust and confidence of the american people and it has to be on matters spoken in public and in private. private promises and public

statements for the american people being the same. and it has to be for all our people. >> for our complete weekend schedule, go to c-span.org. middle east analysts discuss the prospect of a two-state solution to the palestinian/israeli conflict. this is an hour and a half. welcome, everyone. good morning. thank you for coming. why don't you take another minute, those of you who are still getting muffins and coffee and find your seats, please. ware' delighted to have this special event today. and i want to specially thank the panelists and all of you for coming so close to the holidays, a rainy day. much