when the burden of proof shifts in a case and what that tells us. the first thing is by the numbers. the supreme court for many years had what seemed to be a going out of business sign up. the court's number of cases that were argued and decided was at 71 four terms ago. then it went to 68, then it went to 6. the overall number of cases decided wednesday from 82, to 72, to 71, and the docket seemed to really be dwindling. in this term that number turned around. the cord decided 75 cases after argument and 79 overall. that is still a lot less than 1976. the clerks talked about that year when they really had to work. the judges did all the petitions themselves, twice in fact.

that number gets put in some context when you realize that seven of the courts of appeal this is year had a 100% reversal rate. that includes the, regarded as somewhat conservative fourth court of appeals. the 11th circuit did the best, it had a 100% affirmance rate, which for those who follow court of appeals is a mildly interesting statistic. 23 cases were decided 5-4, 30% of the docket. that's incredibly high as a historical matter a modern historical manner. in an incredibly bitter term,

they had 30 cases decided 5-4. it is illustrative of the fact that the supreme court is more divided now than any time in its modern history, by far. the average number of dissents broke the two barrier. in any given case, you expect it to be at least 7-2. for the first time in as long as i've been keeping statistics, and quite a long time, so that you are much less will likely to see broad unanimity across the supreme court. sometimes people confuse the stated goal of bringing greater coherence to the decision making, with the decision he wants everything to be 9-0. i don't think that's right. the chief justice wants to make sure the court is deciding cases clearly so you know what the answer so. so you know what the rule is. in that respect, the court has had a lot of success.

the number of plurality opinion, where three judges say one thing, three judges say another thing, and three judges say another, and one judge sides with those in section two, but not clause a, that hasn't happened. while the lines between the justices are grow manager stark, they are nonetheless able to decide the cases and you know what it is you are allowed to do and what it is you aren't allowed to do. but the 5-4 number, 23 cases and 30% of the docket, that's the second highest number in the last 15 years. of the 23 cases, 16 of them were decided on what we regard as classical ideological lines. in other words, justice kennedy

gets to decide, with four justices to husband left and four to rizz right. on 11 case he is joined the right, on five he joined the left. the cases that will have a lasting significance, he joined the right. the only counter example is the caperton case, whether you can have a case decided against you if the other side bought one of the judges by contributing $3 million or so to the -- to their electoral campaign. whatever you think of the decision and the jurisprudence there of whether there's a constitutional right here, is that something the court system should be handling themselves, i think it's regarded as an outlier case that won't have a huge effect on litigation in the courts, whereas the other cases that were decided, i'll talk about thic bawel case in a second and -- the ichbawl case

and others will make a difference. i would say the conservative members of the court had a successful term. justice kennedy was by and large willing to go along with them. that -- the number that i gave, 16-23, 70% of the 5-4 cases tends to hold steady. that percentage of the 5-4 cases, but what varies tremendously is whether justice kennedy finds himself evenly divided between the cases as he did last term, or instead heavily tilted toward the more conservative side. justice kennedy was in the majority in 18 of the 235-4 cases. in fact -- of the 23 5-4 cases. the only time he dissented was in those 5-4 cases. he was in the majority in 92% of the cases, the next highest

number was justice scalia at 85%. if you want to know where the supreme court is at in almost any given case, justice kennedy can be a marker. as far as which justices are the most interesting of the term, it's justice scalia and justice thomas who remain absolutely fascinating, and the most principled. i disagree with the principles, but that's neither here nor there. when they do believe in a principle, they follow them. it's justice scalia and thomas who are much more likely to vote with the four members on the left to form a majority on five, whereas no one on the left joined the more conservative members of the court. justice thomas, i also think, is by far the most interesting justice, the most willing to be

independent, to take settled precedent and throw it overboard because he thinks it's wrong and introduce a lot of new ideas in the law. maybe he'll have a tremendous influence over time, maybe he won't, but he does have a lot of very independent ideas. the last few statistics i'll mention are what justices agree a lot, everybody assumes it's scalia and thomas. in fact, it was ali to and roberts who agreed and on the left, justice souter and -- they agreed 80% of the time. that's the numbers, the statistics that i find most interesting. directionally, let me make a couple of points. i mentioned this jurisprudence of act ewe warlism. the court -- -- the court does

have a need for that, it's taken a quite paint approach so that in areas where the conservatives take the view that in the warren court era and subsequent to the warren considerate era overtepped -- overstepped the judicial role, it's patient in the way it's tacking back. we had the big case about the voting rights act, which was celebrated by the civil rights community, but if you read the opinion, it is page after page after page about why section five, the preclearance provision of the voting rights act, is unconstitutional. that decision of congress doesn't amend the voting rights act will be cited as precedent for the fact that eight members of the court recognized there were real problems with the voting rights act. there's a case called heron this term that says if the police

violate your rights in an illegal search or seizure, the evidence won't be used against you in court that opinion has a lot of language in it, suggesting there should be a broad good faith exception when the police make an innocent mistake and aren't trying to violate your rights. you can go through in the roberts court era that doesn't seem to take the law much. that voting rights case doesn't major the -- change the law at all, except with respect to the bailing out of the voting rights act, exempting yourself from its coverage. the court is laying down decisions that will later result in significant changes of the law, but they won't look as dramatic because they'll point to case after case after case that were decided as steps along the trail. the next big example, the campaign finance case. the court did not decide the case about "hillary" the movie,

which was not complimentary. it wasn't revealing to me to know she was in fact the antichrist. and -- but these folks wanted to publish a movie, harshly critical of hillary clinton and wanted to distribute it and do ads for it in the run up to an electoral cycle and the question was, should we treat that as a political advertisement? they put it on the table for next term about whether it should overrule the precedent for corporate speech leading up to elections. they'll decide the case where john roberts narrowry desided a campaign finance question but set the stage for other steps. there are highly charged ideological questions where the court will continue the move to the right.

i think this court can afford to be quite patient on the questions in which it's moving the law because it's very unlikely there'll be any opportunity to pivot the court's membership to the left in the next eight years. so justice suter left and was replaced, is going to be replaced by sonia sotomayor on the left. the next is justice stevens who is about 130 years old, still doing well but is likely to retire. after that, justice ginsburg is committed to staying on the court for quite a while. i think it's likely that if barack obama were to get a second term, he'd replace her as well. that's replacing justices on the left with justices on the left. it's not until the election of 2016 that you have, absent some unfortunate turn of health, the prospect that justice kennedy who is 73 now or justice scalia who is about to turn 73, or i may have that reversed, they're

within a few months of each other, would retire and potentially be replaced by somebody on the left. the court is not going to change for eight years, ideologically, and the chief justice and other members can afford to be patient in laying down markers and changing the law over the course of eight years without having to radically do anything because they'll get there eventually. that's the big trend i see over the course of the next nearly a decade in the supreme court. i think you will continue to see substantial changes. the two cases i wanted to mention are procedural ones. the biggest case of the term to my mind, by far, the one that will be cited a thousand times, easily, in the next six months, which for supreme court cases or any kind of cases is a lot is the ichbal case. the reason i want to highlight two cases for questions of free enterprise, in particular because they were kind of unexpected. the ichbal case is a pleading

case, it's kind of dull and dry, but sets the rules for what you have to put in your complaint to start a lawsuit. the supreme court in other cases have significantly raised the bar. it used to be the case that ibblingd write a complaint that said, i think these guys violated the antitrust laws and file it. because if i could just add a little more detail to that, because it was plausible. knowing walter, he's capable of anything, and everybody would say, that's probably true. the court would let me take discovery. the supreme court has become increasingly frustrated with changing policy and the burdens of litigation through lawsuits that ratcheted up twice now the level of detail that has to be in the complaint. i think that's a case that makes it harder and harder to institute litigation without a strong foundation for believing that the defendant has done something wrong, that you can show the court. now it's much more likely you'll get kicked out of court at the outset. the second case is a case called

gross. the reason ichbal was so unexpected, it was about terrorist detainees, it was an allegation that in the wake of september 11, attorney general ashcroft set up a system for detaining teem on the basis of their race, proceeded to set up a system of detaining muslims. and the supreme court said, look, there's nothing in your allegations that suggest you have a real reason to believe that this was done with a racial motivation. you need more proof before you can start your lawsuit. the other case, the gross case, this was unexpect, it was a case about how it is you prove a particular age discrimination case. which is fine, it's a mildly important area of the law. but the supreme court without briefing or argument decided a much more profound question than anybody knew was in the case, that's lots of times in a civil rights lawsuit, off mixed motive, yeah, they were motivated by my age but also other things. this happens in race cases,

disability case, gender cases, where it's not so clear exactly why somebody was fired or depoeted or didn't get a raise. the supreme court said that the plaintiff as the burden of proof in our courts so you can't shift the burden to the defendant by proving that age had something to do with it and make the defendant prove that oh, we would have done the same thing if it were not for the plaintiff's age. we really thought they were a bad performer. instead the supreme court said, turning back a doctrine from a more liberal era of the supreme court, it's always the plaintiff that has to be proving their case. those are a couple of indications of cases i think will be significant, that were unexpected and will, for the business community in particular, give them greater assurance that they aren't going to be subjected to pretty wide-ranging litigation.

>> change in the lineup. our cleanup hitter is no longer our cleanup hitter, dan himmelfarb, we'll pass it off to you. >> thanks very much. i've been asked to talk about a subset of the court's business decisions from this term, those involving telecommunications, antitrust and environmental law. by my count, there were a total of seven cases in vose three areas for the vast majority in the environmental area. seven cases collectively make up somewhere between a quarter and a third of the court's business docket from this past term. there was only one telecom decision and even that was more of an administrative law decision than a telecom decision as such. i'll say a little bit more about

that in a few minutes. there was also only one antitrust decision. by the time that case was decided, everyone, including the parties, were in basic agreement on how the case was going to be decided. the only real question was whether it was going to be decided. the court was far more active in the environmental area, as i mentioned, where it decided five cases, though even in, only three of them were, strictly speaking, business cases. i'll talk about them a little more as well as the antitrust case in a few minutes. before i do that, i wanted to make a few general observations about these seven cases as a group. of the seven, five were from the ninth circuit and two were from the second circuit. in one of the second circuit decisions, the opinion was written by judge sotomayor and in the other case she was not on the panel. in all seven of the cases, the

court of appeals was reversed. that's probably, as many of you know, that's not so unusual for the ninth circuit. historically, it's a little more unusual for the second circuit, though this term was not a particularly good term for the second circuit at the court either. although the judgment below was revorsed in all seven cases, the court was fairly closely divided in a majority of them. four of them were decided by a 5-4 vote. tommy mentioned that in some of the cases from this term, you had some unusual lineups, unusual alignments of votes. so for example, just in the last week, you had two business cases which were decided 5-4 against the business, and the five were the four liberals and in one case justice thomas and in the other case justice scalia. in the two cases, justice thomas

and justice a scalia wrote the opinions. there were in such unusual lineups in the seven cases i'm talking about it. in the 5-4 cases, the five you'd expect and the four were the four youth expect. in the cases where the united states was a party, it won five of the six. in the other case, the united states was an amicus, and the side it supported won. it was 6-1, a high success rate even for the united states, which enjoys more success in the supreme court than any other litigant. in the five cases that can be characterized as true business cases, the business parties had a record of 3-1-1. the one at the end reflects the fact that in the antitrust case, you had businesses on both sides, one of them, the defendants won and the plaintiffs lost.

if you include the two other cases where environmental groups sued the government, and lost, and if you take the view that a loss for an environmental group is a win for business, even though there was no business party in the case, you could say that businesses were 5-1-1 this term. and if you take the view that in the antitrust case, the interest of business generally were aligned with the defendant in the case, which won, you could take the view that businesses were 6-1 this term. however you do the arithmetic, it's fair to say businesses did pretty well this last term in the three areas i'm talking about. let me make one more general observation about the cases before i talk about them in more detail. as most of you know, the supreme court rarely takes cases to engage in what is sometimes called error correction.

there's just not enough room on the docket to do that and that's just not the way the court sees its role. the court is concerned with insuring federal law is applied uniformly, not in ensuring it's applied correctly, much less that in a particular case, settled legal principles are applied correctly to a unique set of facts. and yet in three of the seven cases i'm talking about, i think it's fair to say that the case ultimately involved not a whole lot more than the fact bound application of settled law. that's an unusually high proportion. on the other hand, and by way of possible explanation for this, in those three cases, they was solicitor general representing the united states that petitioned and the court more often than not will defer to the views of the solicitor general on what constitutes a

cert-worthy case, which accounts for the fact that the gray cert petition the ones filed by the united states, get granted at a rate well above 50%, whereas the overall rate is somewhere around 1%. if the solicitor general asks the court to take a case and represents to the court that it's important to the government, even if it's really little more than a fact down case, there's a pretty good chance the court will take it. that's essentially what happened in three of the cases i'll be talking about. with those preliminary observations, let me turn to the specific cases. i'll start with the telecom case. this is the f.c.c. against fox television case. as i mentioned at the outset, this is really more of an administrative law case than a telecom case as such. this is the so-called fleeting expletives case, came from the second circuit, though this is

not the case in which judge sotomayor was the panel. it received a fair amount of media attention. my sense is that the main reason for its high profile is the fact that it involved celebrities cursing on television, which a lot of people, i guess, find interesting. it wasn't a first amendment case. and again, it wasn't even really a telecom case. the issue was whether the f.c.c.'s order of holding indecency findings against fox tv were arbitrary or capricious under the administrative procedure act, that's the statutory term, and in a 5-4 decision with justice scalia writing the majority opinion, the court held it was not. it upheld the order. so the government won and the business lost. this is the only case in the three areas i'm discussing where the business lost. now this is also one of the three cases i mentioned that really doesn't involve a whole

lot more than a fact bound application of settled law, although in case there are any administrative law gurus out there, i should mention that on the way to upholding the fcc's order, the court did manage to establish or at least confirm some principles of administrative law and most of them had to do with how searching arbitrary and capricious review is. it's a deferential standard generally and the court made clear it's deferential even chen, as in the fox case, the agency has changed its policy, even when, as in the fox case, the agency action implicates constitutional rights in this case the right of free speech, and even when, as in the fox case, the actions taken by a so-called independent agency as opposed to a purely executive branch agency and a lot of the dispute between the majority and

the dissent in the case concerned those three somewhat obscure principles of administrative law. ok the antitrust case is specific link line and the issue was a technical one of whether a plaintiff can bring a so-called price squeeze claim under the antitrust laws when the defendant has no antitrust duty to deal with the plaintiff, price squeeze and duty to deal are terms of art, antitrust jargon. this issue arises when off vertically integrated firm that sells inputs at wholesale, sells a finished good or service at retail. if the firm raises the wholesale price and lowers the retail price a competitor in the retail market that has to buy the inbutt -- inputs at the wholesale level will have to pay more for the inputs and will

have to lower its retail price in order to compete so the competitor will have higher costs, lower prices, hence the term price squeeze. as i mentioned, by the time of the briefing in this case, really the only suspension -- suspense remaining was will the court would decide the case at all. there was no real suspense over what the result would be if it did decide the case, that's because by the time of the briefing, the plaintiffs who had won in the ninth circuit essentially conceded that the theory on which they had prevailed was not a viable one. and in light of that concession an issue arose as to whether it should be dismissed as moot. the court decided it shouldn't be, reached the merits and reversed the ninth circuit holding that a price squeeze claim, like the plaintiff's, could not be brought under the sherman act. this was an opinion by chief justice robts. it was 9-0, there was a

concurring opinion, joined by the four more liberal justices who basically made the point that they would not rule out a price squeeze claim in all circumstance, though they agreed it couldn't be brought in this case. this was the one case where the united states was not a party. it was an amicus, it supported the defendants. the case was briefed and argued before inauguration day, so it was the position of the bush administration solicitor general in the antitrust division that was presented to the court. it will be interesting to see over the next four years or eight years or 12 or 16 or whatever it's going to be what position the united states takes in antitrust cases in the supreme court. in many areas of the law, criminal law most notably, but there are others, the positions of the solicitor general are relatively stable across terms, in other words, in most cases,

it doesn't matter whether it's a democrat or republican in the white house, there is a governmental interest, that will be the interest that is presented to the court. there are significant areas, however, where the position of the united states will vary depending upon who is in the white house. i think it's fair to say that antitrust is one of those areas. you can probably see something starting next term if there are antitrust cases, which is a gray brief, the yoits brief, supporting the plaintiff in an antitrust case. you may even see a gray brief in the antitrust case where the united states is a plaintiff. you may even see one where it's the prosecutor. whether that will make any difference to the way the court decides the cases is another matter. ok. the environmental cases i'll divide into two separate groups.

the first consists of two cases that were not, strictly speak, business cases because businesses weren't parties. these cases, coincidentally, have the names of seasons. there's the winter case and summers case. they were both cases where environmental groups sued to keep the united states from taking action, in winters it was naval training and in the summers case, it was timber use in a national forest. both cases were decided by a 5-4 vote. in winter they decided the plaintiff couldn't prove their case and in summers, they didn't have the status to sue.

these are more or less established legal principles on standing and what it takes to get injunctive relief. now as i've said, no bidses were parties to eerlt case. so -- to either case. no businesses were direct beneficiaries of the decisions. businesses are likely to be indirect beneficiaries. environmental groups sometimes sue businesses directly. and they often challenge government action as insufficiently restrictive of business activities. so these decisions make it harder for environmental groups to obtain relief through the judicial process. other things being the same, i think that is a net plus for businesses. the second group of environmental cases, there are three in this group are cases in which businesses were parties. two of these, entergy and core

alaska, are the type of case i just described where an environmental group sued the government because it took the position that government actions were insufficiently restrictive of activities. the cases involved the clean water act. in entergy, they claimed the e.p.a. was not allowed to use cost-benefit analysis under a provision requiring the use of the best technology available. in the alaska case, the plaintiffs challenged the permit that had been issued by the army corps of engineers for the discharge of waste materials. in both cases, the court rejected the challenge. in entergy, they found that the e.p.a.'s interpretation of the standard was reasonable. in the alaska case, the court found the e.p.a.'s

interpretation of its own stachulets was reasonable. they were cases of what level of deference courts should accord agency action. the lineup of the court was similar in both case, you had the four most conservative justices, plus justice kennedy in the majority. you had the three most liberal justices in dissent and justice breyer somewhere in the middle. this is a not uncommon phenomenon in administrative law cases for justice breyer to stake out an intermediate position between the more conservative and more liberal members. because the court held in both cases only that the e.p.a. had reasonably interpreted the law, in one case the clean water act itself, in another case, a regulation issued under the clean water act, the new administration could, if it so chose, change the result in both

cases, simply by issuing new regulations. of course, congress could remove the agency's discretion on the issues entirely by enacting legislation. this is not a constitutional case. so the result can be changed by congress or the agency. finally i should mention that the entergy case, this is the case that judge sotomayor wrote the decision below and it was reversed. the last environmental case was the burlington northern case. in this case, unlike the two i just mentioned, entergy and alaska, the government and business were on opposite sides and government lost. burlington northern is the only one of the seven cases i'm discussing in which the government lost. this was a surplus case, in which the government cleaned up

hazardous sites and sought to recover costs of the cleanup from businesses. the main issue was the proper test for what's known as a ranger linalt. a business can be liable under surplice when it arranged for the disposal of the waste. the court has a fairly narrow test for arranger liability. it found that the defendant in the case, shell oil, was not an arranger. this was the only one of the five environmental cases with a lob sided vote. the decision was 8-1 with justice stevens writing the majority opinion. those are the seven cases in telecom antitrust and environmental law. if you want a one-sentence summary, i guess it's this --

business and government were more often than not on the same side and business and government more often than not won. so at least in these three areas of the law, there was an alignment of business, the executive branch of the federal government, and the court itself. thanks very much. >> thank you, dan. now our cleanup hitter, walter if you'll move to the microphone and share your thoughts on this term. >> thank you. good morning and let me begin with a general observation that this court continues to have as its central theme that they are a group of judges who really are impressed with judges and not very impressed with other governmental actors like legislators or executives and that this confidence in the capacity of the judiciary to

make its own decisions is really extensive across the entire court, this is not a preserve of any one branch of the court, it comes up even in little ways. let me start with yesterday's decision about the national banking act. now, most americans haven't heard of section 484-a but it is very close to the heart of everyone in banking, at least all of those who work for the 1/4 of banks chartered by the federal government. because section 484, which traces its lineage back to the civil war, gives exclusive, quote, viztorial powers over national banks to the comptroller of the currency. and it is part of the system of national banking that is -- has long been dear to the heart of many who believe you need a system of national banking that

is free from the hamstringing effects of being regulated by 50 different jurisdictions. so that it would certainly -- it was hamiltonian vision at the outset that there needed to be a national bank so that the country's business of banking, given the fluidity of money, was uniquely seen as something that lent itself to national rather than separate state regulation. john march that will? mcculloch against maryland wrote eloquently of why the congress might find the creation of a national bank essential to the welfare of a country to whom it entrusted these enormous responsibilities. the civil war was an occasion when congress thought it essential to have a system of national banking.

so that it has been thought that the national banking acts provision makes the comptroller's exclusive regulator ofbacks, at least with respect to matters which we would call the business of banking. that is to say, everyone concedes that banks chartered by the national government are subject to lots of state laws, environmental laws, age discrimination laws, all of the general infrastructure of law that operates. but with respect to regulations that affect the business of banking, that's thought on an exclusive power of the comptroller. state attorneys general and state consumer protection officers have bristled at this and sought to impose their own state regulatory authority on national banks and so it was in this case in 2005 when the

attorney general's office of new york sent letters to a number of banks requesting that those banks provide certain nonpublic information to the attorney general's office about their lending practices in order to ascertain whether they were in fact complying with new york's fair lending laws. banking associations went into court saying, stop. we are supervised by the national comptroller of the currency and the new york attorney general's office has no authority to exercise its sort of supervisory power and to seek this information from us. and that, thus, then teed up the last, most recent of the great cases that are the struggle between consumer protection advocates, state attorneys general, those who want to enforce anti-discrimination laws, who believe washington

enforcement has been too lax and not sufficiently attuned to the needs of citizens on the one hand and national -- multinational corporations based in the united states on the other who say that regulation is one thing, but 51 different systems of regulation is quite another for enterprises that are truly national in scope and have national practices and places us at a severe competitive disadvantage with the 400-million person european common market, which has a single system of regulation for most matters. what was interesting in court yesterday, this is what everyone thought would be a very close case, and i have long thought that if you're a trained court watcher, you can almost always tell by the opening words uttered by the author of the opinion summarizing, not reading by summarizing the result from the bench how the case is going to come out, even though they try to save the punch line for last so that if it's a criminal

case thnd the writer begins, from the time of the magna carta, you know this defendant is going to be let go. if on the other hand, they begin, it was a dark and stormy night when mary jones was returning from her first junior high school prom, you know this guy is going to spend a long time in the penitentiary. what was unusual yesterday is that justice scalia begins by saying that in 2005, eliot spitzer, then the attorney general, brought this action seeking these matters. and he's now been succeeded by attorney general cuomo. but the -- it was, i think, several people's heads spun as to why he was mentioning the name of the person who wasn't even the attorney general in the suit now. it seemed to me to invoke an attorney general in that way

meant that the attorney general was going to lose. but that's not quite what actually happened. this time in the case, because what the court held was that with justice scalia joining the courts for traditionally considered liberal members, what the court held was that in fact states did have power to regulate the business of banking in areas where congress had not chosen to preempt them from regulating the business of banking and could do so by going into court and using their law enforcement mechanisms, if they go before judges, if they bring an action in court to enforce the fair lending laws in the state, state officials can do that. but they can't utilize the independent authority of a state officer like the attorney general, the authority over corporations, to act on their own, even with the aid of the

court seeking a subpoena. that was the line they drew so that new york judges or actions even brought by state officials before new york judges against national banks, fine. administrative actions, not so good. it sums up the court's sense that you need courts. the difference between visitation which is forbidden, and law enforcement is clear. if a state chooses to pursue enforcement of its laws in court, then the attorney general must file a lawsuit, survive a motion to dismiss, abide by the rules of procedure, risk sanctions if his claim is frivolous or discovery tactics abusive, judges are trusted to prevent fishing expeditions, rummaging through new yorks, court mace enter protective orders and supervise discovery a visitor by contrast may inspect books and records at any time or for any reason. it turned out to be a partial

victory. banks are free from having the attorney general show up in their room where they keep all the books when the comptroller of the currency is there turning through the pages but it does open up the power of state regulation in a fairly broad way. in the future. what is interesting to me as you look at preemplings generally is whether attitudes on preemption are at some point point going to change when the party that has been more associated with more aggressive regulation on environmental matters, discrimination matters, consume brother text, takes over the national executive branch. so that those who have been on the side of seeking to avoid preemption, allowing state officials to do it have done so in an environment over the past eight years where those active

on environmental, consumer and related issues have thought that the national government has been engaged in serious underregulation. those people are now in large measure inside the government. they are running the regulatory agencies. and once you put in someone who, say, comes from the environmental community in a national position in one of the federal agencies, all of a sudden it may look less desirable to have, and maybe to some justices over time, less necessary, to have competing state regulations out there. so that -- attitudes haven't shifted yet. but at some point, i think more progressive and aggressive regulatory authority in washington may change the dynamic in some sense over the degree to which you read those

open-ended statutes that leave open the question of preemption in a way that may be less favorable to state attorney general enforcement. those who now have a friendly officer heading the environmental protection agency really want competing regulations from governor palin and governor jindal? that's the new environment. secondly, the -- the second area i wish to mention is, just a very interesting split that picks up on tom geeledsteen's discussion about judges and principles and that is the confrontation clause case, which produced a 5-4 split that is called surprising and unusual and yet we have seen the same 5-4 split show up every few terms and to me in a quite

predictable way. the split is the five consisting of scalia and thomas and stevens, suter, and ginsburg. who in this case held that the confrontation clause gives the criminal defendant a right to call the lab technician to the stand when a technical report, scientific report is presented in evidence against the defendant. and the dissenters, roberts, alito, kennedy, and breyer, this is huge impractical, there are hundreds of thousands of these tests submitted in court every year. and a fairly small number of people who do the testing. they'll be spending all their time, people in white lab coats waiting outside the courtroom, it won't work. to which justice scalia and thomas respond, what part of confronting the witnesses

against you don't you understand? this is a 1791 issue. so you have in a sense five justices talking a lot about 1791, referring to an earlier opinion on confrontation in the crawford case about what was decided in 1791 when the bill of rights was adopted. you have four other justices talking a lot about what makes practical sense in the administration of justice in overburdened court systems, given the size oaf the dockets. the split is fairly interesting to me because this is the fourth time i've seen this particular, quote, unusual split. in every case, what i think you have, speaking loosely, is the legalist versus the pragmatist. the court has two, in a sense, conservative legalists, scalia and thomas, three somewhat liberal legalist, souter, ginsburg, and breyer, who make up the majority in these cases to decide in favor of criminal

defendants in a whole series of cases including those that cut back on the authority of the sentencing commission, the sentencing guidelines, for example. and on the other hand, the four most pragmatic justices. that was made up of rehnquist, o'connor, kennedy, and breyer. and now roberts and alito have stepped into the pragmatic place, so it's roberts, alito, breyer, and kennedy being the pragmatist group. but it is an interesting split. worth noting because in one sense, one of the things that's clear is where judge sotomayor, if confirmed, would wind up on this spectrum. it could well be an area where the court shifted a bit to the right in favor of law enforcement, justice sotomayor was a prosecutor in the manhattan d.a.'s office, and that kind of practical grounding

may make her less of the philosophical group and more of the pragmatist group. we don't know, she doesn't know. but souter's departure from the court on these recurring legalist ver cause pragmatist issues where the ideological lines are mixed up leaves the court open at that point. to see which way we'll go. souter's departure, i think, on matters of business, one other area where it will make a difference, of course is that in some areas of interest to business like punitive damages, though not in the case this term but in important cases, justice souter has sided with business in a way that is not as predictable one way or the other for judge sotomayor. i argue the exxon valdez case

and in that case with justice alito autoout and the ninth circuit having awarded $2.5 billion the question was, would any of the four jiss it is -- justices going to overturn those judgment, be persuadable. it was souter who came over and voted to say that is way too much money and to reduce to it a ratio of one to one. there was indeed a bit of the inner yankee, the flinty inner yankee to david souter in cases like that where the court is now no longer so clear. we haven't mentioned ritchie vs. sotomayor. ritchie vs. sew tai mayor.

rich itchie vs. destefano. an interesting split, let me just say at the outset, i think this case has hardly anything to do with judge sotomayor's nomination. that having looked at it other the last couple of weeks, it seemed to me clear that second circuit precedent, for better or worse, was clear on this matter. and that the panel eas decision was determined by second circuit precedent and the reason the opinion is a short one is because it is controlled by precedent. the three judges on the sixth circuit saw this case exactly the same way not long after ritchie and decided it 3-0 in favor of not second-guessing the decision to set aside test results in an opinion the sixth

circuit chose not to publish so that both the result and the fact of the shortness of the opinion, it's 100-page historic opinion because the court granted review in the case where the law, i thought, would previously have been thought settled. i think every member of the court wrote as if they were making a change in the law and adopting a new standard. one thing the court has made clear, the lower court judge said, you're not to anticipate our changing the law. you're to apply the law as it exists at the time. there's an interesting aspect of ritchie, just for the enterprise community that is worth noting. the court suggests quite clearly in ritchie that some kind of

constitutional entitlement takes place at some point in the process of running a promotion decision. so at least for governmental employers, there is a sense that what a state or city could do in advance of initiating a process, it can't do once a process takes hold. i know some people in state governments are quite struck by the fact that they may now be answerable in some kind of constitutional due process way, wholly apart from race, in cases in which they have initiated, chosen a selection criteria, initiated a process and for whatever set of reasons changed their mind, whether they'd have to carry some brp of showing that the way in which they were intending to go was unlawful

before making that adjustment. i think that's quite striking. i think we'll have a lot more to say about ritchie in response to questions. let me just sum up in a couple of minutes. a pair of really -- a pair of cases that i think are quite interesting when considered together involve the question of when the court should take an acknowledged problem, an instance where something has gone wrong in a particular instance, and respond to that problem by the creation or recognition of a federal due process right. you can take two cases, one is the osborn case from alaska, where alaska, for reasons i

still can't understand, won't let osborn pay to have the d.n.a. evidence tested that he said would prove his innocence or would confirm his guilt. and the question is, is there a federal due process right of access to d.n.a. evidence. most every other state would have decided this differently and most sensible people think, why not let him pay for the test? the=ñ question is, this splits e court, should this be a federal due process right and the court by a 5-4 majority says no. in the caperton versus mas see cold case mentioned earl ier involving the failure of a west virginia judge to recuse himself when the campaign contributions made on his behalf by one of the

litigants of the case that his place on the court had been purchased by one of the litigants who put him there, a case which cried out for some kind ofñi remedy and again the issue was, however bad this is, should we create a federal, constitutional due process right here? the court split in somewhat predictable ways. in both cases. souter, stevens, ginsburg and breyer favored the recognition of a federal due process right. in both cases, roberts, and alito and thomas -- roberts, alito, thomas and scalia dissented. the difference was kennedy who saw a due process right of a litigant in caperton not to have the biased judge but didn't want to constitutionalize the area of

seeking a d.n.a. evidence. i found in this case that i thought that chief justice roberts' dissent in cape ton was very powerful in sing that however terrible the situation is in west virginia and the court can always review and say the decision has gone wrong and overturn it, the idea of making a federal due process issue out of state recusals is a startling concept. the justice listed 40 questions they'd have to answer, if donations require recuse. a president clinton had

appointed two judges that sat on his personal tort suit in clinton v. jones. what is the -- i think it's most striking. but what is most striking about the d.n.a. case, osborn is that buried within the dissenting opinion by justice souter is a remarkable essay on when the court should recognize new liberties. it's really quite striking. and it's about something, and it's not about the d.n.a. procedural issue because it's as if this piece is inserted as a value dictry in his next to last sitting on the court. he says that in this message he both defends against the legitimacy of judicial recognition of nontraditional

rights and cautions against the premature quest for national judicial rules. he says he recognizes the value of continuity with the past, and accepts the proposition that tradition is a serious consideration in judging whether a given practice is, quote, outside the realm of reasonable government action. . . host: we're joined by our guests

for round-table discussion of politics. items in the news and your calls and e-mails. first come matt, and the associated press this morning there posting this comment by the vice-president. it says it joe biden said the obama administration misread how bad the economy was, but stands by stimulus package in believes the plan will create more jobs as the pace of spending picks up. your response? guest: it seems like a veiled attempt to continue to blame george w. bush and remind everyone once again that obama inherited a struggling economy.

things have gotten worse once he has been in office. the unemployment rate is up to 9.5% now. it seems like this to me as has not kick in. we were promised, remember when they pushed the stimulus, that if we did not pass it immediately the world would end. we passed it and things have gotten worse, not better. the real question is that what point does this become president obama's economy? host: alexander, let's move from there. at what time does this become president obama's economy? guest: it is already been good to the extent that vice- president biden in his comments reflect the urgency of the issue -- it it might mean that we're looking at a second this stimulus package. that they're gearing up to demand from congress more investment in infrastructure. but the vice president has a habit of making these comments. not necessarily strategic.

guest: that is what makes him the perfect foil because we know that he often is off- message. his often of guy to go to when you want to leak something. host: in the story it says that joe biden noted that the $787 billion economic package was set up to spend money over 18 months. the major programs will take effect in september, including $7.5 billion for broadband internet service, plus the money for high speed rail and the electrical grid. guest: they're constantly stories about stimulus money that has yet to go into effect so we have not yet seen the full impact of the stimulus. host: so, it do you think that he spoke too soon? guest: i think part of their challenge is to emphasize and understand the economic climate which is incredibly harsh today. i think that the comet was well-

advised. guest: again, the notion that we had to rush through this bill -- president obama promised that it would be posted on the internet and we would have 48 hours or 72 hours to look at them and read them. so far his modus operandi and the democratic-controlled congress has been to restore these bills. if he is arguing that the first stimulus did not work, in my estimation that is an argument against a second of stimulus. host: we're talking about news development, politics, and we'll get around to numidia journalism. -- with new media off journalism. if you'd like to get involved, here are the numbers.

if you want to send us an e- mail, c-span.org. those who use twitter can send this a message that way. our first call comes from nancy on the line for democrats. she comes to us from indiana. caller: the morning. i have a comment for the young man representing the democratic said. i have been really disappointed in obama so far. it is like we are deeper into afghanistan. he has really not done anything to reverse bush policies on spying on americans. i'm really concerned about all of this. i heard the gentleman calling about cynthia mckinney and her

being held on israel as a prisoner. there has been nothing in the mainstream media. i like our president to comment on what is going on with this former congresswoman being held in israel as a prisoner. guest: scoop 44 is non-partisan. i do not represent any particular ideology. to the caller's point. the comedian has made similar points about the president's lack of audacity, including health care. we recently teamed up with zogby international and did a poll specifically on 18-30 year-olds who said there were not concerned. they believe very strongly that president obama's rhetoric during the campaign matches in his actions since taking

office. i think that ond-largest corporate tax to japan. if you are an investor or business owner and know that your taxes will be lower next year you have the incentive to maybe build another plant or hire more workers. so, i think the same as has been

very counter-productive. the problem though is that all tax cuts are not created equal. and president bush did things like some that rebate checks that had virtually no effect. because of a rebate check is something you were not planning on maybe -- it went to individuals. maybe they went out to buy a vcr or the player. but when you know you will have you can plan on it and i think that is key. host: let's go to ohio on the line for republicans. caller: good morning. i want to ask why our government does not take some tax cuts in the industry and put people back to work? i have been through two recessions and it works. i do not see them doing this. why is that? guest: the me first respond to matt's point. incentivizing is critical, but

the stimulus did do that. this might be in the second stimulus -- expanding the federal pell grant. it is an idea that we have launched. several have argued that we need to create a sector for service intensely focused on grants from the government provided to young people who want to pursue careers in public-oriented work and there is a way to create incentive through government spending. guest: i cannot point to one instance were growing government spending has ever faced in economy, but if we look to ronald reagan in the 1980's, tax cuts do grow economist. but this is part of obama's big government philosophy. it is. host: back to the phone, on the line for independents. caller: good morning, everybody.

i remember the last time that you were on alexander, you with a fellow who went to harvard, weren't you? guest: yes, caller: sir how is president obama going to deal with slave reparations now that the house and senate have passed an apology for what happened with host: the slaves what does that have to do with harvard? caller: think it is a tough question and i imagine harvard they talk about things like that. philosophically, how will the president do with that? host: is that the top of the list for concerned in and hearst? guest: when we discussed this during the campaign, we discussed this whole issue. the idea of his being opposed a post-racial kennedy.

we talk about this often. i think the president has done an outstanding job. -- a post-racial candidate. i think he has done an excellent job to get things done and to overlook criticisms that have come his way. we have seen to the recent holocaust shooting and through other hatred that seems to transcend generations that it still exists in a potent form. i think he, the consensus in my group is that he has been able to overcome that. host: this morning, russia presents test for obama. matt, will with the present have to do to be successful in his trip in russia? guest: it is important that he

comes across as strong. we see jack kennedy coming out of his first meeting with christian of not looking strong. we see ronald reagan projecting a strong confident america. -- jack kennedy coming out of his first meeting with khrushchev not looking strong. let's be honest, obama will have many years to deal putin. putin is really the one who calls the shots. president obama will be diplomic and try to make friends with leaders. part of the narrative says that george bush did not do that. i would remind everybody that george bush says he looked at putin in the eyes and saw his soul, so this is not a new strategy, trying to make friends. the peace through strength. host: what does he have the due

to appear strong? buff up? a handshake that look him in the eyes? some of the things here -- bringing down nuclear-weapons. guest: image does matter. gorbachev got out of his car in a big coat and another comes barreling down the steps -- so images do matter. but missile defenses key. it is dangerous that president obama has called on paris to reduce missile defense. it is purely defensive. -- has called on congress to reduce missile defense. i urge president obama to not give any ground there. host: what does he have to do to be successful in your eyes? guest: image is important.

despite the photographic depiction he was not saying that he saw an tochavez's eyes, despite a handshake and cordial moment. but that is the groundwork for a new diplomacy to reshape the future. as "the new york times" reports this morning, it has always been an ambition to reduce the nuclear arsenal and have a global standard for what is proper. to the extent he can advocate for that and still remain strong and away -- conservatives will not basham fohj him and wee an active defense system. host: we're discussing politics with our guests. our next call comes from maryland. robert, on the line for democrats. caller: good morning.

as a black person i would like to respond to the gentleman talking about reparations for black people in america. i think the greatest thing they could do for black people and for minorities who have been denied health care in this country for years -- it is to pass a strong national health- care plan with a single-payer program like medicare or medicaid. that would get everyone in equal chance for health care in this country. we want something for the country. and you bring up the foolishness you're just trying to scare people. host: matt, answered that question in terms of what is going on in congress to try to come up with health care reform legislation. guest: luckily, i went to shepherd college, not harder, so i will not take offense.

there was a big debate this week for there is a proposal in committee that would address this. initially, there was some sticker shock because the congressional budget office said that health reform would cost one trillion dollars. they have now been negotiating. they are calling on employer mandates and have gotten down to about $600 billion and it still does not cover everybody. here is my concern. the caller talked about giving everyone health care because everyone certainly needs health care. i appreciate having health care, but why shouldn't the government also provide everyone with transportation to get to the job because everyone needs a job? how about a home, too? perhaps government should also provide that? host: let's go to new york on the line for republicans.

caller: it is on the north shore of long island. first of all, happy independence weekend to you all. the fact that we can have this debate on television and radio is serving to illustrate the wisdom of the founders. i would like to defend it dick cheney for a moment. the man took office with no intentions, aspirations of the presidency. the only person in my lifetime who did that. he took care of us. he kept us safe. one question for the gentleman in that thepink church, the democrat. -- pink shirt. show me one instance in history for your version of the economic plan worked in the country, a

time and place. it has to be non-fictional. guest: thank you. it is not my economic plan. let's go back to health care if we can. i don't know if everyone wants to hear about dick cheney this early in the morning. but i think that a radio and tv has made in the stewpint. what were all these billions of americans investing in if not for health care? when people were contributing to obama's campaign, $5, $30 consistently throughout the campaign? it is a fair expectation of americans to see some kind of public option. some kind of way to negotiate with insurance companies and pharmaceutical company so that there is a fair process to receive coverage in critical medicine and medical services. host: we will change gears for

just a second. there was an item we got off ofscoop44.com talking about hal iranian journalists are getting the message out by news channels that are typically non- mainstream. tell us, alexander, is this going to be the new way of conveying news? will it eventually overtake television and radio? guest: it is a fascinating subjects r,ob. to some degree, yes, particularly in certain countries. all these can be used of legitimate journalistic tools. it is a way to translate information.

and is a way to do it in a concise manner. if you want to write a short, crisp lead, it is good to go on twitter. if you can do that, maybe it is sufficient. it can be used as a journalistic tool if nothing else. also, in real practice in iran and elsewhere if there is internet access, we can use twitter and youtube to upload videos, text that is pertinent to citizens of the country in the world, then by all means it is legitimate. here we have a challenge to keep intact the values and standards of traditional journalism as they have been practiced for years and still have a robust presence online that includes twitter and all these other applications. host: you right in the block

regularly and will speak at an upcoming conference. tell me about some of your thoughts regarding this new media and your concerns about how the information disseminated through its is confirmed and legitimized? guest: let me start by saying that politics daily is a great example of this. i am a conservative. essentially, we have mainstream traditional journalists. it is a great merger between the new media and the traditional media and fact-checking. and i am a conservative voice there. a great example of how twitter is impacting the debate even here in the united states occurred on friday. we were all preparing for this

sarah palin speech that was supposed to happen at 3:00 p.m. and expected her to announce she would not run for reelection of governor. i started to see on twitter it that she would step down. i turn to all the majoreák@ something -- but you're right,

there is the button m foris- intermission as in iran by the government. host: to the bahamas, go right ahead caller:. this is so weird to hear the republican talk. you see all of them with the same language. just like hitler, they follow the same line. and the president has been in for six or seven months -- what do you expect from president for six or seven months who has actually taken over the worst economy ever historically? he is so far doing a pretty good job with it. he has more people around him if you look also you will see that so many jobs have been saved by

this stimulus. even though i think the stimulus also should have been given to the american people. host: matt? guest: where to begin? the question is at whatpoint those president obama become responsible? after six months? you could say he has only been in office for two years. at some time the present is in charge and does get credit maybe when they are not deserving of it, and blame when they're not deserving of it, but that is how it goes. i am an ideologue, but not a partisan. i was critical of president bush. he give us the first bailout which i think was a mistake. i would be equally critical of president obama and president

bush for having created the stimulus. but it has gotten worse, not better. host: florida, on the line for independents. caller: i would agree. i get most of my news from the internet and from a lot of foreign sources. i see the biggest issue with the economy being the legalized loan-sharking, but credit card industry, car loans consumer debt is 10 times that of national debt. until they embrace that i do not see escrowing of this. host: alexander guest:? that is an excellent pint that really speaks to issues facing young people today. the president has modestly expanded the federal pell grant to date. alongside congress has enacted major legislation to try to prevent those loan sharks and to try to prevent the misuse and

abuse of companies. at the same time, if you go to college campuses today you will still find it tables and displace, a myriad of them, with credit-card companies, all kinds of institutions willing to sell young people of junk and promoted it as something other than john. there is still a growing debate about what to do. of thejunk. you saw it in new york with the attorney general's situation where there has been an incestuous relationship with the executive officers at some of these major higher educational institutions and the leadership of loan companies. a lot of our reporting demonstrates that this has not been fully uncovered. it was a tremendous problem and still might be. . .

host: the article goes on to say it debt their ship was stopped when they try to pass through

the stockade. the group was taken into custody and the ship was seized. israeli officials promised to deliver all the supplies on the boat. maryland on the line for democrats -- i am sorry, out of philadelphia. caller: i agree with the caller who said about the health care and insurance -- i mean, interest rates about the credit cards? if obama would give every citizen $20,000 to pay off some credit cards and mortgage payments instead of going all the money to the banks and then hit them jacking up our interest rates, and now he wants to make universal health carwhen the medicaid is supporting most of all these people who are not even working, i have worked all

my life in them 74. now they want to raise medicare to 17%. i am just making it now on my social security check. you have to go get another job. you will probably make it illegal to work under the table so that you can make ends meet or they will take more taxes of that little bit of money. it got to the piont for you cannot live because obama -- i am a republican. but i voted for him believing he would take the might ease the burden of the american people, but he made it 10 times worse. now he wants to make universal care to include all the illegal immigrants who should just be deported because they are here illegally. there are people who are honest,

hard-working people waiting for a green card to get into this country host: alexander, go ahead guest: interesting points. i would say that many americans, particularly young people viewed as you were saying before, the bush stimulus, the three paycheck's best insubstantial.

so i just think philosophically. but once government gets involved in something, it's like putting tooth paste back in the tube. >> go ahead. caller: hello. can you hear me? host: i can. turn down your tv. caller: i just want to revisit the health care issue. and basically my comment or my question is for mr. he have never. i really -- i am not sure how i

feel about universal health care. i've worked in medical billing and collections for about 25 years of my adult life. what i see is a lot of waste in that. why don't we -- we can visit the insurance companies and find out why they're withholding payments when they should not be. we need to visit insurance companies or maybe even cms and find out why we're not -- we don't have a standardized coding system. from one provider to another, if i'm a facility, a hospital or a -- well, even a skilled nursing facility, the coding for skilled nursing is totally different from the coding for hospitals, which is totally different from the coding for physicians, which is totally different for coding for home

medical equipment companies. it is a total waste to do that. we need to find -- if we're going to have -- if you really want to find some money to save, look inside what we have to do in order to get paid as a provider. host: alexander. veragetteds the caller has some rich experiences and i think we should all consider them and really view the health care issue from the perspective and lens of the folks running what has become an industry, doctors, and insurance providers, all these folks who have vested interest and really the high stakes game here. from every report there are so many inefficiencies it's difficult to count them. and everything is moving to 2 internet, everything is moving

on line. medical records, whether they will ultimately save money or not, that's still in debate and question amongst folks in the profession. but it's the future. and my sense is from the reporting we've done will ultimately save money. but as far as the prosessing and standardization, that's true of so many professions. but in medicine, it's most urgent and really imperative and medical schools, nursing facilities, doctors, have some kind of detailed focus. now, that doesn't mean they all have to abide by the same protocol and in their own private practices with respect to who they want to take as patients. i think a lot of folks, young people and adults will want to preserve that. but the one thing obama has been criticized for is the lack of detail in his own plans, demanding what exactly from congress.

host: matt. guest: i think it's not á4@@@@ market. it's an artificial thing. and i believe in health care reform and i believe what we need to do is get to individual accounts so that you own your health care account. and if you change jobs you still own your health care if you get fired or lose your job, you still own your own health

care account. it's radical in a good way and i think it's health care reform. but it's exactly the opposite of what obama is opposed to. >> i don't know if it's exactly the opposite because i think he feels fundamentally that it's important that folks contribute to their own health care. that it's not just free. so there might be a hybrid there. host: carol calls us from waco, texas. caller: yes. i want to make the comment regarding the gentleman that called in regarding health care for blacks instead of money. and matt lewis responded to his comment. i'm in my 70's, and i remember how blacks were treated in my own little town in the 30's, 40's, and 50's.

and it was unforgiveable. and as a child, i could see it and i didn't understand it. but i can go into an emergency room where i live today in central texas, and the room is literally filled with hispanics. and whites and blacks with go in and they have to make some type of payment for their health care at the emergency room. but the hispanics don't. and those rooms are filled with that particular minority. and inso far as matt lewis commenting, well, you know, if they get health care and then the blacks get health care and

then they'll want a card to go to work, then they'll want a house and so forth. and i think his response was quite inappropriate. it was poor. ill thought. host: we're going to leave it there. lee fend your position. guest: look, i think she brings up a very good point unintentionally. which is that president obama and democrats especially in congress and in the senate talk about millions and millions and millions of americans who don't have health care, what they leave out and this has been written extensively about it, are millions are rich people who choose not to have health care just for strategic business decisions, and millions are illegal immigrants. and when you look at the number of americans who legitimately want health care and don't have

it it's not the epic crisis proportion that they would have you believe. host: back to the phone. caller: great discussion, gentlemen. a couple of quick comments. first on sintsdzna mckinney, she to me is just like the two current tv journalists who went over to south korea. they think they can spit in the face of a foreign government just as they do when they spit in the face of the u.s. government. now, on the subject of when this will become mr. obama's economy. i think democrats will allow it on september 10th, because if they allow it to go to september 11th, then republicans will be able to blame bill clinton for 9/11. host: i'm not sure i understand all of that, but see if you can make some sense of that guest: that's a tough call. i don't know exactly where the

caller is heading there. i can say that the president has an ambitious agenda and that the economy is at the forefront of it. and that doesn't mean that the white house is not intentionally focusing on foreign affairs. and i don't know if that was what the caller was talking about. guest: i think he's talking about the hypocracy. if it's fair to say this is bush's economy, then it's fair to say that on nine 11 it's clinten's national defense. it wasn't a terrible argument to make. >> i do disagree with people who claim that it isn't mr. obama's wars in afghanistan or iraq. it isn't his economy. it is. he has a full docket. yes, he has inherited crisises that were looming for some time and that have culminated in severe consequence for a lot of americans.

but at the same time, it's his agenda. and he will be remembered in history for his actions now or his inactions. so i don't think that you're going to want to hear that from democratsor commentators or anyone because it's unproductives and not enable the president to take kind of the anchor role on his agenda. host: let's shift gears one more time. one of the articles in the paper link between violence and troop witsdralls being considered. what are you hearing? what are you reading on your website and what are you writing about with regard to the u.s. troop withdrawals in iraq and the response, the uptick in violence? guest: so far, i think that things have gone reasonably smooth all things considered. there is much cause for concern. and there's a danger. i notice they withdraw a day

early which i think was probably smart strategy to not sort of go according to plan. this is one of those situations where if things go well, then president obama and the generals appear to be very smart. and if things go bad they appear to have made a tragic mistake. and it's really probably out of their control. host: how sit playing over there? guest: there's no doubt that there will need to be a drawback of some kind. and to experiment to the extent we're going to ask, if the iraqis are capable of handling their own security detail. we're going to need to ask that question at some point. and the reality is in this country, i mean, this is a wakeup call that we have really critical issues to focus on here, whether it's health care, immigration reform, all the issues the callers have been mentioning. and to the degree we've been

focusing on spending in iraq and afghanistan, that's going to need to stop, in the eesmation of a lot of folks i've interviewed, and the attention being placed more here. and it's interesting to see the diverging paths between the president and the vice president and their staffs. the v.p. has been focused on foreign politics and the president domestically. guest: if iraq turns out to be a democracy, then we will see president bush's legacy be quite different. host: harpers ferry sh -- gsh

harpers -- harpers city. caller: i see everybody so worried about representative mckinney, the one ime worried about is monica conyers, the wife of senator john conyers. and i've seen no story about her pleading guilty to federal bribery charges. why has this been sholved under the table? guest: i don't believe it's been sholved under the table. but we have a story right here and it's being reported in this morning's "washington post". monica conyers' plea of guilty raises questions about what representative conyers knew. representative john conyers, currently the chairman of the house judiciary committee. matt lewis, your response.

guest: i think there is no attempt to cover up any of this. but what is happening is unbelievable amounts of news coming out we have health care, cap and trade, mark sanford, his career. sara palin. this has been quite an interesting time. so i do hope that the callers  recognize the incredible amount of news taking place. and now we have president obama traveling abroad. so some of the stuff may not be on page 1. host: is this the situation where the readers and the consumers of news are going to determine what they believe to be the lead stories as opposed to the editors and producers of mainstream news who put out the newspapers and television? guest: increasingly. and you're seeing broadcast and print channels now tapping into the huffington post and reporting increasingly. a decade ago it was less influential. but today, they're determining how the traditional press

operate to such a degree do we need to question do the folks on line need to apply more of the standards in print. and we try to do that and have an operation comparable in the sense that we've got a dozen or so staff writers who are compiling informati, who are researching, digging up facts, writing indemtsdz pieces and real journalism is happening. and you can't say that of all web venues. host: next up, daniel. go ahead. caller: good morning, gentlemen. it's a great subject. eem enjoying it. but my question is to the strategy of the president, do you think that the president's strategy vithe on, or is it off? and dow you play chess? and would you like to play the president? guest: the president's strategy regarding what? caller: overall tratty.

i'm saying that his foreign policy and his domestic policy. and do you think that he he is over committed to one side or the other or is it pretty well rounded? guest: i think that president obama is brilliant. clearly he is an incredibly talented politician and i think he tapped into something that he caught on to something that sort of goes counter to what political consultants believe. they'll tell you the american public don't pay attention that much. our c-span viewers know quite different. i think the american public is increasingly paying attention. they're getting their news from blogs and cable tv. president obama saw that and has wisely sort of raised the rhetoric in terms of being an intellectual, explaining things. and i think that it was quite the opposite of president bush. and so i think that strategically speaking,

president obama is quite a great communicators, quite brilliant. i do think she making a big mistake in terms of taking on too many things. i really believe, if you look at great presidents throughout our history, they tackle two or three things if they're lucky. ronald reagan beat the communists, restored faith and optism in america. guest: when you have an economic crisis it's more difficult and you can tackle more things at one time and potentially extra kate the country from massive crisis ala f.d.r. but let me say that i think matt is absolutely right. he can kind of couple that with his undying enthusiasm. his appreciation of young people. and the result is townhalls across the country as president, not just in campaign mode. speeches where he's not only

inspiring folks here but in cairo, for instance. and also, explaining the basics. what is the economic crisis? he went to georgetown university and dedicated an entire speech to that. host: either of you play chess? guest: i know. i would not want to play president obama. host: back to the phones. john, go ahead. caller: good morning, gentlemen. my comment for you is being a political debater myself on -- i just wanted to say that politics as a hobby, looking at it back in the late 60's, early 70's, there was a couple that advocated overloading the system with so much that you tear it down in order to rebuild it. i believe that's obama's strategy, and with a trillion dollar bills going through,

1300 pages that nobody reads, it's really quite effective. and if that@@@@@@@@'),g)' , that are tough to read. i was sitting in mark's office interviewing him and he had literally a pamphlet version of the stimulus bill and then the

more extensive one, just piles of paper, high lighted, notes. he took it on that flight back to alaska. and not every senator has that time. so we have to be careful about what's being written. and, you know, if you poll senators and congressmen on whether there was anything related to gun control in the legislation recently on credit card reform, very few might say yes. and that's emblem matic of the problem. guest: first, if the american public cared about transparency, they would have elected john mccain. barack obama is quite similar to george bush. it was john mccain who had reporters on the straight talk express and took questions from them. president obama has not kept several promises. not having lobbyists in his

administration, closing gitmo. but we've had a couple instances just in the past week, he gave nicko pit ni, a liberal blogger, the heads up that he was going to be able to ask a question that goes against protocol. helen was upset with him. dana from the "washington post" is upset. there are many instances where there are people inside town halls who are actually obama volunteers. guest: hold on.  seems to me that people who say obama is taking on too much are afraid he will succeed. comment? guest: i was asked to answer a strategic question. and i really believe that presidents who succeed take on a few big things and that it is a mistake to try to do too much. and presidents like jimmy carter or presidents who try to do little things here or there -- guest: i would disagree. i think f.d.r. was forced to

take action on the economy and world war ii. guest: let me get back to your point. the obama press shop is just like any other in terms of its discipline, coordinated effort, rationale to appeal to certain demographics, et cetera. but at the same time there's unprecedented information on line. and so whether you would have seen that from senator mccain, i don't know. but i think that is a promise he ultimately kept. guest: one of the promises -- guest: you can upload the stimulus promises on line and see what's actually happening. and that's really unprecedented. host: back to the phones. james on our line for independents. go ahead. caller: thank you for accepting my call. i'm usually not one to call in but i've reached my boiling point. i've got two gentlemen here i'm listening to talking about the media bias but they're talking

spin. i really -- host: specifically, james, what is it that's being spun? guest: talking on one hand how the unprecedented transparency. are you kidding? the gentleman just told you that he is purchasing questions from the huffington post basically. he's telling people beforehand that they can ask questions. geez, my blood pressure, i'm losing points. i don't where to begin is the problem. you put spin on which way you want to put it. i see you on television laughing but you know it. guest: host: hold on. what's your primary source of news information? where do you get your stuff? guest: caller: all of it and i believe none of it. host: do you read online? caller: i read it but i don't get to vote on it.

it's my congressman who gets vo vote on it. guest: at least from our reporting, we really strive to g news gatserers, and our operation is not spin exclusively. we offer that angle as young people appealing to that demographic, but and also it would be inaccurate for anyone to characterize the huff post exchange as buying a question. according to both white house sources and the huff post, the specific question was not asked behind closed doors. and the president in a way that ultimately was not effective wanted to take a question from an iranian. and there could have been a better way to do that. host: let's take this last call from atlanta. donna on our line for democrats. caller: my question on health care is instead of delowing so many dollars into fixing whatever is going on, why is

the f.d.a. not protecting us? we've got flower yide in our water that's not naturally found in our bodies, that is not good for our bodies. water is one of the most essential thing that is our bodies need. they're putting mercury in the fillings and the shots. these are causing the kids to have neurological damages, a.d.d., adhd. yes, they've decreased the amount of mercury in the shots but they've increased the number of shots. so hello, look at all these disorders coming up out of no where. and most of these that are coming up, i've been a nurse for 30 years, and i've watched this stuff happen, step by step by step. host: thanks toor your call. matt, you get the last word. guest: if you wear a tin foil hat, the water will not suggests it was

designed not to deal with the kinds of threats that we have in the modern-day world. we are going to explore this issue from a variety of perspectives. we are going to start with a

keynote by franzen townsend. fran has a stronger background is anybody possibly could to engage the public and the commission and the rest of us in these issues. she served as assistant to president bush for homeland security and counterterrorism, and also chairs the homeland security council for almost four years from 2004 through 2008. she also has a long career in government. she was with the coast guard. she served in the justice department for many years, and as a prosecutor, and she is now with baker botts doing a strategic consulting on risk and engagement abroad. so, frank, thank you for joining us. >> norm, thank you for inviting

me. i would warm folks on sort of the warm-up act and i thought it would be useful, it's a very serious subject but i hope to get you to chuckle a little this morning with some of the sword of honest, you know, stories about behind all the policy and all the initiatives. this is hard and it was hard in the executive branch. you know, when you think about the history and there have been some very i think useful reports by the congressional research service looking at some of the history here, and while norms introduction was very kind, he is the person who i would love to and read his stuff when i was thinking about the policy initiatives in this area. you know, there was a great attention to the subject as we know going back to the cold war. but between that period of time between the end of the cold war and september the 11th, there wasn't a lot of attention here. because we thought the greatest

threat from a state on state perspective was well behind us. and we didn't really believe in a fundamental way that other threats, nonstate actors, posed sort of a real strategic threat to our existence until september the 11th and that tragedy. even then, in the immediate aftermath of 9/11 people said we need to turn our attention back to this. we realized the paradigm of cold where contingency planning still, even that didn't quite fit because of course that presumes intelligence and warning capabilities that you can begin to go as we say in the continuity world to warm and a hot actor off-site facilities. and so even that would be helpful, but not dispositive of how we approached the whole area of continuity. it's interesting, and not i suspect an accident, if you look at the prior presidential

directive, i'll talk a little bit about the presidential directive that president bush signed an continuity but if you look at the one seimei president clinton in october of 1998, of course you will recall that's only months after the stafford embassy bombing in august of 1998. i at that point in time, dick clarke was chairing the interagency committee group at the nsc. i was participating in that from the justice department. and it was back up to form a basis of the thinking for the policy behind pbc 67. president bush, reviewed the data again and added to that. remember now, when president bush signed the new presidential directive, 51, of course now we have a new department. we have the department of homeland security and things have changed. things have progressed. you can imagine him after september the 11th the president was incredibly frustrated by his

inability to connect it with the american people, the difficulty of communications even within his own cabinet. and so there was an immediate turn to the issue of continuity of the presidency and supporting of the immediate courson and staff of the president of the united states. and that was the first real priority in the aftermath of september the 11th. of course, while people here will understand it, it's worth my saying i obviously can't talk about the details of the continuity of the presidency because all that is classified. i will tell you that there are millions upon millions of dollars, and lots of time and attention that was turned to that, and president obama inherited a far superior, not just far superior, but superior by almost any standard of anything else we understand about our allies around the world, a far superior system for his long term and not just his, but left a legacy in terms of the continuity of the presidency

that is much stronger than anything i think anybody would have contemplated. as you begin to look at the continuity of the presidency, you immediately realize that will only be as effective as the plans that are nested beneath it. continuity of the government, continuity of operations across the federal government. because of course you may have provided the continuity of the presidents and the staff, but who are they going to talk to. who is going to provide them sort of staff support, policy support and operational support that they need to be effective. funny story on the continuity of the presidency. you can imagine while i was one of the people who was charged with the responsibility of thinking about this everyday, most of my colleagues, very smart, very focused, very disciplined people did not think about this at all, as it were not required to. but you can imagine, just like most things, if you don't practice it you don't do it very well when there is a crisis. so we would have been briefed.

i asked working with the white house budget office to have been briefed. we were taken to an offsite, we walked into what to expect. and i could always help but chuckle. one of the sinner scenarios we walked into his imagine a biological or chemical attack. and imagine having to go through decontamination procedure. so we literally lie to folks up at a facility and walked them through exactly what it would look like. and as you can imagine, imagine what you think decontamination facility looks like. this is not the four seasons bathroom. this is not luxurious. it's not pretty. and it's, by the way, you're not having an individual shower stall. so you line folks up and they get in, and this one happened to be a three-person facility. walked in. they were explained, there's a little counter that starts here, you rip your clothes off, you're going to be naked. you walk and three at a time, one of the women turned around and said which way is the women's shower.

[laughter] >> again, there is no women's shower. you're going to be in there together. oh, she says. i'm glad i brought you know wãh sa)n,p

folks very specifically in the area of their expertise. i'll tell you what we did was, it's funny. one of the things in this presidential directive signed by president bush, i was appointed the national continuity court nader, congressional research pointed out it was not by what authority i had because i couldn't direct federal agencies. having read that i feel compelled to explain to you that that was really a function if you understand the white house is in the wake of iran-contra. white house staffs have made very clear from white house counsel are not operational. that means they don't direct operations out of the west wing of the white house. and so the idea was i would coordinate policy, and i would assess performance here but i was not directing operations inside of federal agencies. for those of you who haven't worked in the white house, i should tell you that that's a little bit term of art because

when you report directly to the president and you are in proximity to the president, cabinet secretary will understand that once policy has been agreed upon and it has been signed by the president as being implemented, you have a good deal of moral suasion to be able to say you're playing is inadequate or it's insufficient in this way and you need to redirect resources. in addition, as you well know, the power of the purse is important and you will find in the directive the director of omb working with the person in my position were to accept on annual basis budgeting, funding and performance for these continuity programs. so while you couldn't actually direct it, there was a good deal of authority that allowed you to be pretty influential in being able to do that. we had a series of meetings among the inner agency, each cabinet secretary did appoint one individual in their department responsible. we talked about what the

standards, the requirement for. we did practice it. we would have eventually they had to go to their off-site facilities. you can imagine, you know, almost every major national event was a good opportunity for an exercise to practice. almost always if you saw the state of the union, a political convention, the inoculation. all of those are national security events that trigger continuity exercises and capability where you go. each time he do that you learn something if you didn't think a. you learn some way to strengthen as you learn much or vulnerabilities are. i will tell you, as we get further from september the 11th, i do worry about people's time and attention to this issue. i've always said one of this country's great strength is its optimism. and we don't want people to be constantly worried or fearful

about another attack. that said, we have to be cognizant of the fact that our enemies continue to plan every day. and so we need to be ready and their need to be people inside the government who are devoted to this topic and . . . . continuity of government. it requires omb as i mentioned annual assessment of continuity funding and performance. it requires the office of science and technology policy to set minimum continuity

communications standards. i think we've got to be asking the current administration how are they doing, and are they doing that, and when are they doing that and what is the performance of those federal agencies. president obama has made very clear his commitment to transparency. there is no greater issue on which we require some answers to be sure that when the citizenry really needs its government to be able to work in a crisis for our safety, for our security, that they are ready to do that job. it is not the time to ask it in the midst of the crisis and its by the way not terribly perspective to be asking any in the aftermath. let me close by saying, you know, i left the white house. it was january 2008, and i had started, i was already one year into planning for the transition of presidential power that was going to happen a year later. this was an issue that tremendously concerned me.

i believe president bush had a unique and all are his responsibility because it was the first transition of presidential power. i will tell you there was more communication between the outgoing and incoming administration on this issue. it is a model that's not to say it can't be improved upon, but i think even the new administration would say to you it was incredibly important what we did. in terms of planning for that. two points that i think their continued discussion, attention and frankly were. one was in the context of continuity of government. as you can imagine i was responsible in terms of planning for the executive branch, but understood well that it required continuity planning on the part of the judicial branch and the legislative branch. we incorporated sort of provisions for their continuity plans. we didn't have visibility into it. we didn't have input into it.

we tried to make sure we had a dialogue, in particular another one of these typical washington stories. in the interagency project, frequently people will want to own, own turf but not occupy. that is, this is my area, i'm responsible, stay away. but then they don't do anything with it. and nothing used to frustrate me more in government if there's any comfort, it doesn't, that phenomenon doesn't just reside in the executive branch. because when i tried to engage congress on this issue, there was a terse push back and forth. the villains in this will ring name anonymous to protect their own, but there was a push back and forth, no, this is mine, know this is mine. and then of course we heard nothing from anybody about what they were doing. and so i do worry about the adequacy, particularly at the legislative branch. we have some greater dialogue particularly with the supreme

court and were able to incorporate them. this was not about trying to dictate what the plans were, i hasten to add that we were not suggesting that we knew better or they should do certain things. things. we decide if we are a all going to plan for continuity we have to be able to communicate. we have to understand least a broad outlines of each other's plans, and there is a good deal more work that needs to be done there. and then lastly, and it's really the lead-in to what the current report and panel is about today. the single thing that i was most gravely concerned about in the transition before i left the white house was the actual transition of presidential power. and that was because i could imagine, it seemed to me not unfathomable that our enemies understood, because we publicly debate about when is the formal transfer of power, what if there is an attack on an inauguration day before president obama took the oath. and i was a deeply concerned. i like many and i think is a

reference to in the report today believed the presidential succession act of 47 as regards the speaker and the presidential pro tem of the senate in a line of succession is unconstitutional. and so given that, given that you didn't have cabinet secretaries sworn in for the new administration, given everybody in the governmental power structe was there, you can imagine even out of government a year later, i watched the inauguration with pride, but holding my breath waiting for everybody to get off that day. that shouldn't be. people, the national continuity coordinator should be able to have greater confidence in holding one's breath and hoping everybody gets off there safely. and so i think really, your section seven of this report is very important. there have got to be priorities, cut to the action, got to be dialogue, and we cannot wait to do this until there is a threat.

so thank you, norm, for inviting me. i really applaud your effort, and hope that they listen and do something about it. [applause] >> thank you so much, fran. i want to say first that the work she did to make the transition the first one since 9/11 the best we have ever had because it went into directions, which rarely happens. including focusing on the inaugural and getting somebody in the line of succession away from washington was unsung heroism. the second is a point that she may. we are now two months from the eighth anniversary of 9/11. and there i a lot of complacency out there. it is stunning that we have not seen the kind of action, especially in congress, and frankly in the judicial branch. much less attention to the presidential succession act that needs to be there, eight years after the fact, and we in the

commission hoped to wrap up our efforts to overcome the inertia that we've had. we now have two panels that will be led successively by my colleague, john fortier, at aei who is also the executive director of the continuity of government commission on the theory of presidential succession, or theories of presidential succession. and then by tom mann of brookings who joins me as the senior advisor to the continuity of government commission. sullenly turned over to john fortier. >> great, thank you. that was a great lead-in to a couple interesting discussions we hope to have today. we had a distinguished panel today with three panelists. you see two of them. i will introduce them all, but there's a third panelist, and because we are working in the world of continuity and contingency, we had in an emergency up yesterday where

akhil arnar is not going to be with us on the panel but being with us by phone. i want to say from an on under an undisclosed location. is a professor at yellow school so you might guess what state he is in. but it also shows our succession plan because of course this current government is essentially harvard law school. we have you lost cool as the successor just in case things go wrong. this panel is going to be more about this theory of presidential succession. i do think it is worthwhile for me to make a few points about the report. our second panel will be much more focused about the report. it will have a number of our commissioners and people who serve in government that dealt with these issues on the ground. but i want to put a couple points on the table from our report and then we'll have our three panels discussed them from three very interesting perspectives in academia, industry of constitutional law,

as well as a working journalist who has looked at these issues as well. this report makes several recommendations. fran townsend referred to one of them and i won't say too much about that, how we deal with the question of inauguration day. that's a very important question. i know that jim, commissioner of our is going to say something particular about that on the panel coming up on the second panel. but our two big recommendations really are, one, everyone in washington, everyone in the line of succession that we can all, they are all in washington. they all work here and they all live theater while we think it is a remote possibility, it is still a possibility that is something truly catastrophic happened here in washington, and as a precaution against that we advocate that there are, should be several offices created for people to sit outside of washington. those offices would be filled by the president of the united states with confirmation by the

senate and they might be held by people who were former secretaries of state, former senators, former homeland security advisers. we have people who although you live in washington so that wouldn't work, but the idea is to have a backstop behind the key people in the line of succession is the worst were to happen and we were to have to turn to people outside of washington. the second again has been referred to by fran townsend, and that is a very difficult question and i know akhil amar will refer to does much more directly, but we think it is not wise to have congressional leaders in the line of succession. not only is it not wise, we agreed with the constitutional judgments of both akhil amar and james madison, who both believe and others in between, that the constitution was set, the particular clause but also the structure of the constitution is such that a cabinet succession or executive branch of succession is not only more appropriate but feels better

it on line is continuity government.org. and with that, with those facts on the table, what i would like to do is then do a more general discussion of the issue of presidential succession. our panelist will say something about the report, their reaction to it. but mostly they have come to this issue by thinking about it for a long time regarding the 25th amendment, regarding the question of congressional leaders in the line of succession. in the case of jim may and looking at the planning for continuity of government operations that surround these issues. so let me introduce our panelist. i will start with our panelist in absentia and i want to make sure he is year. is akhil amar here. >> good morning, john. >> thank you. he is a professor of law and political science at yellow and her university. he teaches both at yale law school and at the college and

was a clerk for stephen breyer at the first circuit before coming to yale. is also the author of several important books, constitutional text books but also two very important books, one of the bill of rights and one on the constitution. the first the bill of rights creation and reconstruction, and most recently americas constitution and biography. is also an author of numerous articles and has testified in congress very strongly on this question of presidential succession in and is as i said with a james madison, and the commission believes is correct that having congressional leaders and the line of succession is unconstitutional. john feerick, to my right, has several important lines in his biography and he has something i think that all of which is wish we had. he has worked on these issues but he has also been a driving

force behind an actual amendment in the constitution that addresses these matters. john worked very closely with senator birch by and others in getting the 25th amendment passed, and that is a great verification of the way in which a president, the succession may take over successors may take over for the president in times of incapacity. and also that a vice president may be replaced at a new vice president may be confirmed. and that of course we have seen in practice, and twice and very important ways in the 1970s. he is also the author of several books on this issue. one more generally on presidential succession which is falling hand, and not on the biography also an important book about the 25th amendment itself. he has been the dean of fordham law school and is professor of law there now and teaches forces in the constitution there. and he is working on and coming out with a follow-up book, is that correct?

an update of the 25th amendment which will be out in the next year or so. third to jim mann who is an author and resident at the school of at johns hopkins. he has been a journalist at los angeles times, serving in beijing working on national security issues, and the author of a couple of important books. the most recent one of the rebellion of ronald reagan, a history of the end of the cold war just out in 2009. probably still looking good for early christmas gifts and stocking stuffers. and also importantly the rise of the balkans, the history of bush's war cabinet. and that book as well some of the writings he really does look at some of these questions of the continuity exercises that we have conducted over the years. and those exercises work very closely with some of these legal and constitutional provisions

that we talk about in the report. so i would like to do in that order her to each of the three of them, and then have some little discussion on the panel and then open it up to the general audience for some questions. so i'm going to turn into akhil. >> think you, john. can you all hear me? >> yes, sir. mac wonderful. so as john mentioned, this is itself an illustration of the idea that one can in principle be in the loop, even if one is not in the district. so i can be part of this conversation and you can listen to me, i can listen to you and yet we are geographically apart, and that's part of the idea of the presidential succession commission's report is that we should have at least one, perhaps more than one person in the loop, in the light of succession going really in real time what's happening on policy matters, but not in the district itself should a mishap occurred.

before i go further, i do want to just express my deep gratitude to john fortier and to the commission in general for including me in this event. it's a special honor to be on a panel with john feerick who i learn so much who really, really is the dean of this issue in more ways than one. and tom and who has been a driving force on these matters. i just want to set a couple of things, and then listen to the rest of you all and i look forward to a conversation. there are lots of policy reasons to remove congressional leaders from the line of succession. the problem of party discontinuity. america votes for a republican president, like ronald reagan or george bush, and ends up instead

with tip o'neill or nancy pelosi. or vice versa, both for democratic president like bill clinton and ends up with newt gingrich. that's a policy concern. it particularly, these things are totally exogenous and random. it's a temptation for someone to try to affect massive regime change, if that person knows that by wiping out the president and vice president, policy could shift decisively from one clinical party to another, really undermine what the american people thought they were voting for when they voted for president. and that's not just a hypothetical. that's happened in american history. even sometimes with valid tickets between president and vice president, you can affect a certain kind of regime change if you shift presidential power from abraham lincoln to andrew johnson or from one branch as john wilkes booth did, or from one branch of the republican

party, james garfield to a different branch, chester arthur. when garfield assassin proudly announces that he's attempting regime change as he is being tackled to the ground at union station. is said i am a stallworth and garfield will be a president. and in his pocket is a letter for who should be in garfield cabinet. so this possibility of a shift of one political party to another is in crisis from martin sheen to john goodman, for those of you who are west wing fans, is a real one. is a considerable policy concern. there are other policy considerations about the case of temporary disability, can a congressional leader easily step in just for a brief period. when that brief period will

require resignation from the speakership and from the house of representatives. so those are some, many policy considerations i think that counsel in favor of removing congressional leaders from the line of succession. i just wanted to highlight a couple of constitutional considerations that reinforce those policy considerations. james madison thought that putting congressional leaders in the line of succession was unconstitutional. maybe you don't think he was right, you know, although he was james madison. but even if there's any doubt whatsoever in your mind about the correctness of james madison's proposition, i think just the mere existence of doubt, strong doubt, reasonable doubt, the fact that there are many thoughtful people, whether they all agree with mattison, they at least think that madison had a pretty good point, a

pretty strong point even if in the end they might be unsure. that that in and of itself is a reason to remove congressional from the line of succession because we don't want to have any question whatsoever, even if it's never litigated, but just in the public mind, and world opinion, about the legitimacy of transfer of power. we are talking about scenarios about hypothesis that the nation is in extremist where both the elective executive branch officials for one reason or another out of action. could be precipitated by a terrorist event or a natural disaster, the country is reeling, the world is uncertain, markets are on the precipice perhaps of severe collapse because a massive uncertainty. someone steps forward. so and in the next-door is in the following days of blogs and

paper, there is some question about the legitimacy of this transfer of power. because there is a real argument that this statute is unconstitutional. that is very much to be avoided. the second point, constitutional point whatever constitutional arguments james madison made, and he made many good ones it seems to me, there are additional constitutional considerations arising after the 25th amendment, with john feerick and senator biden were so influential in getting past. so the current law which is adopted in 1947, even if you thought appropriate disregarded the views of james madison, the original constitution provision, at the 1947 law did not in deed could not thought about how it would fit or not fit with a

subsequent amendment adopted in the wake of president kennedy's assassination. the point that the minute. and there are various aspects of that 25th amendment that seemed very much in tension with the current statutory regime of congressional people in the line of succession. let me just mention a couple and then turn things back over to my fellow panelists. one point, the point that the minute is designed in large part preserve a kind of party continuity. you vote for one party for president and that's in serious think what you're going to get for the next four years. you've over richard nixon and if you don't get richard nixon you gets bureau agnew. and if something happens to him you get someone that nixon picked because he's the one you voted for and that is gerald ford. if something happens to ford you get someone that ford picks, and that nelson rockefeller. this is what the 25th amendment provides, kind of apostolic

linear procession from the president who has the mandate and they cost duchenne he ordained for your term. that's the provision of the 25th minute. google for republican president you get republican policies for four years in the white house, or for democratic presidents, four years of democratic policies are and that vision of the 25th amendment is most consistent with cabinet succession where you are getting someone to really be elected, the duly elected president handpicked or someone who follows in that line. that's what you get with cabinet succession. you do not get that with congressional succession. so president and vice president die or disable sequentially, under the 25th amendment samaras you are going to get party continuity. but if they both are taken out of action at the same time, you get massive discontinuity in tension with the vision of the point that the minute. second tension, the 25th amendment envisions a regime in which presidents are going to,

when the vice president as he becomes vacant, this is because the president is dead and the vice president stepped up on the vice president has died or resigned. when you have a vacant vice presidency, the 20th amendment provides that that vacancy filled by presidential nomination. and i think in spirit and vision contemplate a pretty smooth and speedy confirmation of the new vice presidential nominee, but the current succession statute gives the congressional party if it's different than the presidential party its interest to drags its heels and delay the confirmation of a successor of vice president because if something happens in that window, they're congressional leaders, the other parties are going because if something happens in that window, their congressional leaders, the other parties are going to gain the white house even if they didn't win it in

the last presidential election. that creates incentives in the vision with the 25th amendment the smooth filling of a presidential seat. the other is one under section three of the 25th amendment where in the event of even a temporary dismissal of presidential position. like a surgery. or a hospitalization, it creates a smooth transition. being able to hand off power to the vice president and hand it back when that disability has ended. that cannot happen with

congression congressional. the current statute requires that congressional leaders if they are going to step up to become acting president that they step down from their position in congress. that creates real difficult if it's just a temporary transition. cabinet officer because a sensible new statute need not require that a cabinet officer give up his cabinet position even as he or she steps up to wield presidential powers in a temporary disability situation. they can be secretary of state and acting president, and then when the disability is eliminated they can go back to being secretary of state. is a much smoother and more seamless. so again, even if you don't

think they are not persuaded that james madison was absolutely correct, even if you think it's pretty plausible to think that he got it right, that's a reason i think would change in the statute. and a second set of reasons is even if you think that congress made the right call in 1947, a subsequent constitutional amendment, the 25th amendment is really in tension in many ways with the current statutory regime of congressional leaders in the line of succession. and with that, i thank you very much and look forward to hearing my colleagues. >> thank you, akhil. i'm going to, if i could add one antidote to bolster one of akhil's point did he mention the question of a party in congress perhaps dragging its feet, not to appoint a vice president to fill a vacancy. i have in my files some transition memos for the carl albert presidency, and those transition memos were written by ted sorensen at the request of some members of the democratic

congress to add the time saw spiro agnew had left the vice presidency. there was some thought they could delay on gerald ford, richard nixon was near to being on the ropes and perhaps democrats, carl albert being speaker of thspeaker of the houe the presidency himself. there were some very detailed thinkings of the imaginations of how to present this new presidency to the american people. i think his point is that this is not a good incentive. one that if it was time to remove richard nixon, one might have gone down the line to the secretary of state and others in the cabinet of the nixon administration but you wouldn't have had the incentive to take over that we saw in that case, not fulfilled but envisioned by some members. so i'm going to turn to john feerick. >> thank you for the invitation to comment on your report of presidential succession. let me say that the continuity of government commission plays

and exceedingly important role in studying and calling attention to and making recommendations on subjects bearing on continuity in government. the report issued today highlights problems that predate the september 11, 2001, but have come into sharper fork is because of that tragic event in american history. another tragedy, the assassination of president kennedy revealed flaws in the system also not new but that event led to a major step forward with the adoption of the 25th amendment. looking broadly at our system of presidential succession, i believe our constitutional and statutory provisions have done a good job in protecting the american people in times of succession crises. but we need to constantly studied them to make sure that they are as good as they can be. the federalist said that a primary end of civil society is the safety and security of the people. without which our liberties are enabled to forge.

our system of presidential succession, i suggest, has served us well in providing such safety and security. it has enabled us to move forward even in the most dramatic of circumstances, such as the death of a president or resignations of an elected president and vice president. what should we expect of a system of presidential succession that might be asked. some features important to me are providing stability and order in the transition of power, along for the continuity of government and respecting in its functioning constitutional principles. the people must understand this system and have confidence in its elements and application. the report issued today is impressive in scope and detail. in a relatively brief document it provides an important overview of the history and provisioned on presidential succession. it identifies major problems and proposes reasonable, if not some

respects, creative measures to address these problems. i make these comments and offer these observations concerning the recommendations contained in this report. the removal of the legislative leaders from the line of succession as a policy matter is long overdue, in my humble opinion. the principal reason, as i see it, is not because they can't do the job, but to assure continuity of policy and administration at a time of crisis. a quick shift in party control of the government as of the report notes is not likely to promote stability and order. there exists as well legal issues, and you heard about those issues from professor akhil amar. and the contemplation of the constitution. and therefore eligible for succession roles. given a long history with the legislative leaders being in the light of succession, however, i

would accept these legal risk if i thought the policy reasons were not compelling, because i do. this is because the constitution is not without its ambiguities in the analysis of the officer questioned. and i also note intentionally at the time the constitution was adopted, the idea of a legislative officer, and i put a quote around officer, coming to the center of power after the removal of a governor and lieutenant governor or deputy governor, if one were to look at succession in the colonies, or look at succession as reflected in the early state constitutions with respect to those states that elected governors. you would see that the legislative person emerging after the demise of the governor, if that be the case, or the deputy governor if that be the case, was not out of the

understanding of the framework of the constitution. i just know that intentionally, but as i say, i think the thrust of this report and the emphasis of mr. amar data policy in and of itself, i think strongly urge urges for the adoption of the recommendations set forth in this report. the idea of adding to the line of succession, though so outside of washington, has merit and appeal. as i noted in my own writing 45 years ago. i wonder, however, it is wise to reduce the number of cabinet members in line to the fore as suggested in the report. i suggest that the various scenarios in the report make a case for a longer line of succession, and therefore the continuation of all the cabinet

members in the line of succession. this would be in keeping with history, and consistent with the use of the entire cabinet in the determination of presidential inability under the 25th amendment. the recommendation of the report is certainly correct, that the 1947 statute needs to be clarified as to whether or not acting secretaries are included in the line of succession, assuming the current line is maintained. i can go either way on this one, influence in part by reaching the 25th minute of including an acting secretaries where there might not be ahead of the department in the determination of presidential inability. i note also in your report that acting secretaries may be serving as head of the departments in the free inauguration period, a period of particular vulnerability as the keynote speaker today no doubt that this make even more important the recommendations of the report as to facilitate the

appointment of the new cabinet. to make clear the removal of the acting secretaries of coverage under the succession act of 1947, and not deal with the pre-inauguration days of the inauguration period along the lines of this report could be imprudent. reducing a time period between the casting of electoral votes and a formal declaration by congress appears right, but i have two observations. isn't necessary to have more than a few days between the two events in order to handle any resulting court litigation that would flow from the votes of electives. and shouldn't wait while we are at a reform of the electoral college area do much more about the electoral college system which can produce popular vote losers, tolerate electorate defections and sanctioned a choice by congress under an antique, one state, one vote

formula. of course, i realize that the mandate of the commission may not reach that far. the recommendation of a special election is intriguing, but raises questions for further consideration. such as whether an election in five months under an electoral college and political party system would actually work. it's too soon, and stabilize it enough given that once that election is over another election cycle would begin. the ford rockefeller selections in the worst possible circumstances in american history worked well in providing stability and continuity. basically i'm suggesting that where there is no president and vice president within the first two years of a presidential term, leaving the system exactly where it is at the present time rather than moving toward a system of a special presidential election. but if one were to move toward a

system of a special presidential election at that point, there is an issue, maybe a constitutional issue, certainly those in 1886 that put as a cabinet in the succession law thought there was an issue as a duration of a president's term flowing from such a special election. the members of congress that debated the cabinet line of succession and put it in the succession law in 1886 removing the president pro tem and speaker from the then law of 1792 thought that a special election would have to respect the four year term of the constitution. i just would note that issue, but i think the recommendation is an interesting recommendati recommendation. it should be out there, as it will be, for discussion and consideration, but i do think

there are a lot of issues with that particular question of whether or not to have a special election. i find interesting the recommendations contained in the report on presidential incapacity. the suggestion of using the other provisions of section four of the 25th amendment as a contingency of swords, if the cabinet were unavailable through death or incapacity, appears to me at least to allow for the existence of the two bodies existing at the same time. even though different purposes. i reserve my own judgment on that one as to consistency with the language and history of the other body provision of the 25th amendment. the report is correct to note, however, that the other by provision of section four of the amendment allows for the replacement of the cabinet as determining body in the case of

inability. the suggestion of congress providing guidance to lower officials in the line of succession to have to deal with an issue of presidential inability is understandable. but i am not sure how far congress can go under the provisions of article two and the 20th amendment that allowed for the appointments of offices to serve in the line of succession. they will have their responsibility, their judgment, and how much congress can surround that with guidance, i think raises questions that need to be discussed and focused on. finally, the recommendations in this report concerning fixing the pre-election that time period i agree with and command. and that's it. i look forward to continuing these discussions with you.

thank you.@@@@u)h ' >> did you want to pass on the anniversary as well. >> that wup i made reference to. garfield and arthur. i believe today is the anniversary of the shooting, you have to check on that. july 1, 1881, the shooting of garfield. just a historical note. >> thank you very much. i have a little different position as a journalist and

author. author. i think have some problems. i'll say, you know, as a journalist and author, the issue of succession comes up year in and year out in funny ways. this is not just with a cabinet member who is absent from the state of the union address. and the one that brought it home to me, just over 10 years ago, i was a correspondent interested in asia about to go with president clinton on a trip to asia at the end of 1998. and at the last minute president clinton didn't go because he stayed back to take some military action against iraq, actually. we are talking about a militant

under military action of a couple days, not six years. vice president gore went instead. and the same five or six reporters who were going to go on air force one with president clinton went with vice president gore, who welcomed us to the plane and began showing us around the plane with great relish. . . by several

people -- several people remembered both vice president cheney and secretary of defense rumsfeld and years earlier in a program they took part in the 1980s. the continuity of government exercises established by the reagan administration. this was again at a peak of cold war tensions with the soviet union. the issue was what would happen if there was a soviet attack on the united states, on washington in which several top officers were killed and the response of the reagan administration was to set up a secret program is elaborate exercises in which three different teams were established -- they actually ran drills, teams of -- i forget 30 to 45 career officials who would know how to run the government

and they needed someone to be in charge of each team so they appointed several people who knew how the federal government ran, and then they would take a cabinet member. now the cabinet member could be someone like secretary of agriculture, john block, for example, someone who didn't know national security. but the person who would really know how to run the show would be a former white house chief of staff. and so both dick cheney and don rumsfeld who both served as white house chief guesseses -- chiefs of staffs participated in these exercises and still relevant to some of the issues i'll talk about is they would go to different places each time. sometimes abandoned school yards. why? they did that because the earlier responses of the 1950s had been to create these famous bunkers outside washington in

virginia, mount whether. and by the 1980s, 30 years later, the fear was nuclear weapons could damage or somehow get to these fixed facilities. so the idea was mobility, surprise and so on. and as i looked into this -- i wrote about this at some length. and the thing that bothered me the most was that there was no constitutional or legal basis for this. congress was not part of it. this is not a procedure that congress set up. congress was taken out of the -- out of the legal line of succession. this was a procedure that was set up entirely from within the executive branch of government without ever checking with congress. and, you know, when i say this process of the commission and

its recommendations is important and to be congratulated, it's because this is -- you are and hopefully are working with congress on actually addressing a procedure rather than simply having one which is set up without congressional authorization from within an executive branch. i mean, the program of the '80s was actually not the creation so much of president reagan himself but of the nsc bureaucracy. vice president bush played a role but the lead operations officer on this was someone named oliver north. that would be the guy who later went on to be in charge of iran contra. you all are addressing this. you are making this -- you're giving consideration to the issues in a public way, and that to me is all to the good.

when i look at the report, i find my own reaction is to find some important problems that are addressed in important ways -- very specific problems that i find are addressed well. as you suggest, you want to get the president pro tem out of the line of succession. the idea that a senator who has a job by virtue of his age should be in the line of succession is something that should be fixed and fixed as soon as possible. we call this the strom thurmond provision if you want. but one way or another, that's all to the good. your recommendations on the inaugural are good. your recommendations on changing

the strange procedure of bumping where one person can, you know -- where one person in the line of succession can bump another as people recover from problems and so on. that's all to the good. i want to reserve judgment on one of your most important recommendations, which is to get congress out of the line of succession. i haven't really thought that through enough. i have some reservations about that because i'm not sure it's necessary. you are making good points. i will say as a constitutional matter, there seems to be some confusion as to what the constitutional issues are. the framers of the constitution were not worried about a change in parties. because, you know, they didn't exist at the time. so it's not -- that's not -- that's a policy question. that's not a constitutional

question. and i don't know -- i'm not persuaded of the need to do that, but i think you are making good arguments on that. i want to turn for the last few minutes to the single provision which i have the greatest problems with. and that's the provisions to set up new officers outside of washington in the line of succession. because i do have -- i think that creates new problems and that the problems it's meant to address could be fixed in other ways. so let's look at this. the suggestion is that there be several four or whatever new positions created, either of former senior federal officials or perhaps governors who would

be in the line of succession. and that they would be ahead of existing cabinet members of all but the top four existing cabinet members. well, let's look at some of the people being suggested. first of all, governors -- i can't help by start what if the governors in argentina -- but, you know, how are we going to choose which states the governors are from, small states would be against big-state governors. who chooses them? governors themselves have political ambitions. you talk about the political ambitions of a speaker of the house, for example, many governors are interested in running for president in the future and, in fact, i would say -- i would remind you that governors are well represented -- former governors

are represented in the cabinet often including in this administration. i mean, the sorts of people who might be chosen as governors in these -- for these special jobs now are precisely the kinds of people who are in the cabinet. jan janet napolitano, kathleen sebelius. former officials, well, that sounds nicer than i think it might turn out to be. i'm reluctant to give former presidents and former vice presidents an ambiguous new role in the national security apparatus. i think we've got a system that works just great the way it is. we have former presidents and vice presidents taking on the roles that they choose but without -- if it's a vice

president, a former vice president might be interested running for president again, but one way or another, i have trouble seeing does the president of the united states -- he's the person who's going to choose these -- the people in these jobs. does he choose someone who might be a rival? does he not? let's take history of the last three or four months. i'm among the people who think that vice president -- former vice president cheney or jimmy carter or any president or vice president has the right to say what he wants, express his views in public. that, you know, there's no obligation to shut up. but we're now going to give people access to new security information on which they can say my reading of the national security is that the new administration has weakened national security, i just see a lot of problems there.

the president -- the new president who chooses the people for these positions is himself faced with a dilemma, okay, so if we're going to have four new federal officials in the line of succession, above most of the cabinet members, first of all, this downgrades the existing cabinet members. do you choose someone in line for a top federal job to run a cabinet position or maybe they'd rather stay in the home state and be sixth in the line of succession. and above all, i'm not sure i see the need for this. we have a system now which is carried out as fran townsend has said -- there are procedures that take -- that are in operation at the time of the state of the union,

inauguration, other times, where a cabinet member is out of town. we can have a cabinet member out of town nearly permanently. you know, just one at a time. you know, the cabinet members might like that, a requirement that, you know, one week out of 8 or 10 during the year, they're required to work out of town. it's certainly workable anyway. >> buenas aries. >> well -- and, you know, they can claim that they're checking the, you know, sentiments outside of washington. i just don't see why setting up four or so new federal jobs -- to me it creates more problems than it fixes. so to me, i would extend the

existing procedures for -- with the existing line of succession rather than create new jobs within the line of succession. thanks.@@@@rh jo as you see, we didn't make this panel to be a panel of people consistent to endorse every recommendation. i hear some of the arguments we have internally. if you push it one direction, maybe you will go the other direction. the commissioner wants to have some answers to these things. one point -- one of the recommendations jim mentioned on the cabinet members wouldn't be a precedent on

the oldest state or the newest state but those are very reasonable arguments against that. i'm going to open this up and hope the panelists will talk amongst themselves. if any of you want to react to each other's comments and i'm going to open it up to the general audience. >> just a couple of quick thoughts. i agree that the framers of the constitution, of the original constitution, weren't quite focused on party continuity. james madison thought there were additional -- there were all sorts of constitutional arguments above and beyond party continuity of presidential succession. but i do want to say the additional concern about party continuity isn't just the policy concern. it is a constitutional concern even if it wasn't part of the

original constitution's concern. the twelfth amendment -- it's part of our constitution and it's about -- it ratifies an idea of national presidential parties. the 25th amendment seems to me to be an amendment very much embarrae embrace embracing a party model. these these are constitutional considerations in addition to the policy considerations even if james madison wasn't talking about them and didn't even need them to make the case in my view a very pervasive case that he made in 1790. the second and only other point i want to make about having some people outside washington, d.c., in the line of succession -- baseball purists still haven't reconciled themselves to the designated hitter perhaps, but i think you can think about these people outside d.c. as kind of a

designated hitter model, some baseball teams even have one person whose only job is to be a base runner in the late innings or, you know, a closer to deal with left-handed batters in the last inning. the reason i think maybe former presidents or former secretaries of state might suitably be appropriate people to be nominated by a president to be these contingent people outside of washington, d.c., you have to understand when you have a double death or a double disability we're in an extreme situation, a situation that america has never undergone before. you just have to imagine, you know, psychologically that we're in such a situation. any amount of comfort and security that you can convey to the american people, to world leaders, to the markets, i think, would be to the good and -- and someone who's done it before, who's already served as

president or as secretary of state, i think, could be -- and who knows what it is to be president really could be a perfect designated hitter-like person to do one unique function and, of course, as john fortier mentioned the president of the united states would be the person making the decision about who this designated hitter would be and the person would be subject to senate confirmation but i'm imagining someone who doesn't need a lot of on-the-job training that she or he already knows how to do the job and, frankly, that's not true of lower cabinet officials. they don't quite have the credibility or the experience perhaps in these crises to step up and reassure everyone to the same degree that perhaps a former president or secretary of state or some really very considerable person nominated by the president to do this one

very unusual thing in a low probability scenario would be able to do. >> thank you. if i could just state a little bit and i'll turn to jim, too. we sort of -- both john feerick had some criticisms of this proposal. that we took out -- that we recommended taking out the lower level cabinet members, those below the big four and jim more generally worried about bringing in these new people into the line. you know, we weighed those things together. i mean, akil mentioned this is an extreme situation where the president and the vice president died at the same time and it's more extraordinary that the president, the vice president, the secretary of state, the secretary of treasury, the secretary of defense and the attorney general are all gone and now we are looking for number seven. we've cut out congress. we're looking for somebody way down the line. something extraordinary happened. we weighed both the question of wanting to make sure people were outside of washington that

somebody was around and jim may be right that there certainly are ways to operationally have people in different places and that may be part of the solution. but then we also asked the question about these lower level cabinet members and i'm not denigrating anyone in particular but certainly the positions themselves are not picked for the same sort of national security reasons. they're not picked maybe -- people at quite the same level as one succeeding to the presidency. and john has a question about the line being shorter but we thought this might be a group that brings little more to the table and is outside of washington weighing those different factors. >> well, let me say on the designated hitters, if we're going to use the baseball analogy, they are not necessarily the happiest people on the baseball team. [laughter] >> and more to the -- more to

politics, vice presidents as we all know through much of american history have tried to figure out what their job is, their main job is to be in the line of succession and day in and day out they're not quite sure what beyond that they're supposed to do. you know, we are now creating 3rd, fourth, fifth, sixth vice presidents. on the possibility that all sixth of the top cabinet -- the senior officers, vice president, president and president, vice president and four top officers all die, it seems to be remote. on the other hand, it gives the president the problem of choosing from among former presidents and vice presidents and governors.

it provides a kind of snding for former presidents and vice presidents to reemerge with a current role. i would point out that in the event of a catastrophe, that the president -- that the country tends to rally around whoever is in charge. we certainly discovered that after 9/11. and that to me this is an entirely -- it's a very remote and yet unnecessary procedure. and i guess -- you know, i would strongly oppose it. >> just one point. i must say i find this report is terrific and generating the kind

of discussion you've heard from my colleagues, and that's in and of itself going to be a major contribution. you're going to force, hopefully, a lot more focus on these subjects. i was thinking to myself that if you -- if you -- and again, i just read the report a few times in preparation for this panel. i'm revolving myself, i suppose, because of the book update in this subject that i thought i had graduated from a long time ago. and it seemed to be true and back to it 'cause it's so important and interesting. i think i would give a little more consideration to dropping the acting secretaries. let's take your recommendation to the top four. if the number two person in the state department -- the number

two person in the ag's office you start rendering more remote the possibility of what you worry about, everybody being wiped out 'cause now you have more people in the line of succession. and my recollection your commission was under-secretary, i think, of the state department. you'll have to double-check me on that. and if it came to him having to step forward, he would have done a very fine job under the circumstances. and also in the federal law today, under 5 u.s.c. takes over the absence or death or vacancy of the head of the department and the 25th amendment in terms

of conferring authority on the cabinet along with the vice president to declare a president disabled specifically in the legislative history and its -- we've seen it -- you know it, it contemplates the acting secretaries stepping up to be in place of the head of the department where there's no head of the department. as i say, what your report is going to do, i think, is produce maybe a lot of ideas and suggestions and at the end of the day, if something emerges from the process, you will have made a major contribution so i salute you. >> i'm not going to answer every objection. we have a panel coming up which will probably talk about some of these issues. do we have any other comments on the panel before we turn to a few questions from the audience? let's open it up for a couple of questions and then we will move to our second panel. right here and you can identify

yourself when the mic comes. >> john wallstetter senior policy institute. would you be able solve the fair amount of problem with the following simple requirement in any meeting which has -- let's say four of the big six or all of the big six present, meaning, president, vice president, and the four top cabinet secretaries in the line of succession. they have to take place in an underground facility that is reinforced because if you're talking about a nuclear blast, it is not going to take out somebody, particularly, if it's a small device, it will wipe them all and a whole bunch of buildings, kill 50, or 100 or 100,000 people on the surface but if you are in a bunker at the white house or at the treasury department and you are 100 feet down, you will survive. and that, therefore, with some modification and also taking

into account, for example, on some ceremonial occasions that you can have people -- a helicopter right away. they don't have to be in sacramento. it's just as good if they were in richmond. where you can get a lot of the -- reduce the chance of having people all taken out at one time. the second question, if i could throw a second quick one -- there's a related question -- i took a quick look at your scenario. the first thing that's going to happen after that is marshall law. somebody is going to be taking command in the streets. and you need a provision that deals with marshall law whomever takes control if it's the president if he survivors or someone else there will be marshall law after a nuclear event or a big wmd event, whether you call it that or not. for example, you get 30 days maximum before, you know, it's half the period of the war powers act to commit forces overseas where whoever has marshall law gets it whether

it's the president or some senior surviving commander. after that you have to go to some sort of a congress and get 90-day extensions at the same time but some sort of procedure to bound marshall law as well because you're going to have that after an event like that. >> i'll take on the first 'cause i'm not sure what to say about the second. that may be a wise idea. on the first, obviously jim mann brought this up for the idea of operationally trying to make sure the members in the line of succession are not all together or not in danger and that, of course, goes on today. and, you know, this is the most extreme possibility for which we feel the need to have some people outside of washington is we hope very remote and extreme. i'm not sure your scenario completely deals with it, though, an underground bunker wouldn't stop someone with an infectious