with respect to this, it does not give any indication that they are troubled by the quality concerns that he is raising as much as the question about whether or not congress has the raw power under the 14th and 15th amendments to enact this law. we will have to see what happens. i think it is a very open question. it'll be hard to read into that. it will be hard. the 14th and 15th amendments gave explosive explicit rules to congress. you have a clear, contextual warrant. there is historical evidence. it will make it tougher. i am not saying it is impossible. it is a very difficult question. , i think, make it

tough for the court. i'm not saying it's impossible, but i think it's a very difficult question. one last thing about the effects test that mike was talking about. mike said they would inexorably become a quote or requirement. i'm not sure that's all right. one can envision job qualifications that have nothing whatsoever to do with merit. you can say, for example, deputy solicitor generals must, in order to get the job, bench press 150 pounds. that has nothing to do with what we do. if that were a requirement it would have a disproportionate effect on women, but it would be illegal for that reason. that isn't a quota requirement. that is simply an underlying view in merit and i understand that sometimes those effects tests go off the rail and do defend into the stuff that mike was talking about and the core to some of the effects doctrine which is simply about something i believe and most people in this room believe in which is plain old-fashioned perity in

making sure the tests actually measure the proper skills for the job. >> let me respond first on the northwest case. look, i want to agree up front with neil. i don't think this tension between the effects test and the non-discrimination mandate of the constitution was underlying what was going on in northwest austin. i'll come back to that. i will point out, though, that each though it wasn't presented in the case the court went out of its way to sort of make this point. they said that, quoting again, justice kennedy, race cannot be the predominant factor in redistricting miller v. johnson, yet considerations of race that would go to the 14th amendment or section 2 would save it under section 5. so my basic point is it wasn't the central issue, but there is this tension between section 5's effects test and what went on in the constitution. a point that wasn't noted in the court's opinion and that will

become prominent when i bring the next challenge was the point we made in our amicus brief which is unbelievably enough in 2006, they didn't just continue ret choirments of section 5, they said no, what we had done in mississippi in 1965 really isn't enough to cabin the incredible racism of these coverage jurisdictions in 2006. things have gotten so much worse in the 1960s, so we're going actually ratchet up the standard and we changed the law to say there could be no diminution in the ability of minorities to elect their candidate of choice, meaning, of course, you have to draw every district in a way that ensures, as best you can, that the minorities preferred candidate of choice will be elected. coincidentally outside of dade county that will always be a democratic candidate. so the court is now going to be confronted with a situation where they didn't just perpuate the status quo. they actually made the status quo worse, and that's very

important because this case may not get back up into the court until after the next redistricting cycle and the justice department will be -- have a huge sort of damocles hanging over its heard in terms of how race conscious they are in section 5. they're the principle forces of section 5 and in the '90s they engaged in a straightforward maximization requirement that the court consistently struck down both in statutory cases and in the shoreline of cases. what did bother them in the northwest austin case and why it is not entirely right that the congress can never fix it. first of all, neil correctly says they went off on the statutory question, but they also devoted four pages to discussing the constitutional issues. if you're a minimalist and you think something vile eights the statute why would you reach the constitutional question? >> right? >> the reason you have it before constitution is because you

don't have to wade into all of these areas and you have a voluntary choice by the court to discuss the serious constitutional questions involving section 5, and i think that that was not in any way unintentional, and what they said was there's two basic problems with extending this absurd statute which served an obvious purpose in the 60s and the 70s in terms of creating voter equality, but now that it's morphed into this situation where you're requiring proportional representation for a representative and the biggest problem is you can't show that the situation in georgia or the other coverage jurisdictions is worse than in the jurisdictions that are not covered by section 5 like arkansas or these other things. how can congress fix that problem? they have to change a formula which i want to emphasize was based in 1968 and 1972. what rational person. it's as if congress in 1965 said

we need to divvy up the united states and find the bad states and the good states. so we're going to go look at the fdr hoover results from 1928 or 1932. no rational person did this. why did they engage in this absurd situation where they looked at a 40-year-old election results because no congressman with the possible exception of john murtha is going to say i've got a lot of races in my district and you really should cover us and let georgia off the hook. so congress is never going to redefine the formula and every objective measure of racial equality from registration to minority represents shows that the coverage jurisdictions have no worse situation than the uncovered jurisdiction and that was not rational enforcement of the 14th or 15th amendment. >> either that or they ran out of time like we are. >> this this -- i suppose the next round instead of teasing

our guests kind enough to come over his victories, i want to focus the pan ole a point he made in the opening remarks that justice thomas seems to be the lone most principled justice and we had a lot of talk in the confirmation hearings for judge sotomayor over different conceptions of what the rule of law is and what law is to those who are texturalists and originalists that the approach thomas is taking is the principle one and the others are doing something else or at least sometimes doing something else of politics -- or what are they doing these days? what is the roberts' court. it's gelled now for a few years. it will get a new member next year. are there any differentes in how it's behaved this past term?

do you see any new trends? >> are you asking me? >> i'm asking all of you. >> yes and no. i think one should be very wary of drawing conclusions on the basis of a single term because the court swings one way or the other on the basis of what's in the docket and what's in the dock set to some extent, they have some choice in it for tootous and the sexton case may lead to the news of next term. in some cases, frankly, are easier than others. so i do think the court is largely -- and i would say largely a minimalist court. they tried to decide only what's needed. the section 5 case, i mean, i think i would love to take the fantasy life that neil has because if you think that you were not getting a real shove to

say these are constitutional questions and they concern us very much and they so much concern us that we are willing to do radical plastic surgery on the statutory claims and we may go on that basis, then i will lose hope for the justice department. justice thomas is very principled, but so are they. they all have different conceptions of the judicial function. many of them are very similar to each other even if they use different methodologies. i would say that i don't particularly find that everything that justice thomas does, although undoubtedly very principle side really constructive for the rule of law at large. you really cannot have a system of case law in which he is as willing as he is to discard longstanding case law from the court. people have to be able to look at the books and see this is

what the case law is. you have to rely on the court to see what has been ruled on and to my mind he's a little bit too swift to discard precedent where he was hard with an original matter and he's willing to disregard 200-plus years of constitutional law. >> you've got use a baseball a nal sgee this week. and so i think, yes, it is a very principled stand and not necessarily one that i think commends itself to me as the most consistent with the predictability of the rule of law. >> thanks, neil? >> one major difference that you may see this term as opposed to past terms to answer one of your questions is the rate of descent. in the last term, the statistics show that the average case you'd have a descent by 2.04 justices which going back to 1995 is the

highest rate of disagreement among the court in an average case. i think in, for example, the october term 2005 it was 1.23. so again, that may be a function of what cases came to the court this year and it also may suggest something about the particular dynamics on the court this year over the last term. i didn't mean to suggest that there's only one metric for being principled and that justice thomas undoubtedly meets it. i think there are a variety of different ones and that one is sticking to your guns and adhering to your consistent philosophy in case after case, it doesn't matter what your other colleagues say, i think justice thomas has the lead. there are a number of other ways miguel says maybe one other version of principle is respect for precedence, something that justice o'connor made much of. for me, i think, one thing to think about is whether or not people are being faithful to the

tradition of deference to legislatures and to congress and engaging in judicial restraint. on that model, justice briar would do quite well, the statistics would show. i guess i am a little concerned that sometimes our constitutional dialogue, and i think you heard it here with mike a moment ago when he refers to the voting rights act as a quote, absurd statute and maybe absurd is a policy matter and that is something that the congress overwhelmingly disagreed with mike in 2006 and that doesn't always make something unconstitutional and i do think that sometimes in our constitutional dialogue we're losing sight between the distinction between what is bad policy and what is unconstitutional and on this respect this is not something that has been consistent and i would like to point out what justice is outer said in his last descenting opinion which is in the dna case, and there's a model for one way of thinking of about what a principle judge is

and this is what he says. we can change our own views just so fast and a person is not a stick in the mud for refusing to endorse a claim without having some way to think through it intellectually. with the limits of experience affect the capacity of the individual to affect the legitimacy of a moral position and the broader society needs a chance to take charge in the political back and forth about a new liberty claim before it makes sense for courts to declare unsympathetic national laws arbitrary to the point of being unconstitutional, and what he's staking out there is the tradition of conservativism they think has been a bit missing in the dialogue and whether or not he consistently adhered to it or not, i think that opinion will go down as kind of allowing us to rethink some of what being a great judge is all about. >> let me begin by clarifying that i wasn't saying section 5 was an absurd statute.

i almost said precisely the opposite. i said it was absurd to take a law that was a temporary emergency measure to deal with the obvious problems in the southern states in 1965, and in 2006 extend that to 2031 without updating your coverage formula, which again was analogous to using states that were problematic in 1932 to justify what you did in 1965. and that's not only absurd as a policy matter. it it is not enforce the 14th and 15th amendment which only prohibits discriminatory effect and only applies to hire standards on a certain subset of our state. it would not be congruent to say every state west of the mississippi has to come to washington, d.c. on bended knee to a bunch of bureaucrats but those on east of mississippi do not.

it is precisely what congress did in 2006 with overwhelming republican support, because republicans understood that the best thing that ever happened to their party -- and i was in the midst of making it happen -- was a majority minority districts, because adjacent districts were primarily white in the south. their principal reason for the republican gains was because of section 5 of the voting rights act. there were meeting people and their own self interests. republicans were more supportive continuing this section 53 shame than democrats. -- section 53 shame and then a democrat. -- section 5 regime then it democrats. whenever justice kennedy once, that is the trend.

at's the trend. if the cases come up in a way that he sides with the conservatives, then it's going to be a conservative term. if it's issue he tends to side with the liberal bloc, it tends to be a liberal term. they will find two or three liberals who will become born again originalists and agree with them, in this area i happen to follow the text and history of the constitution. other than that it's whatever comes up that justice kennedy does. we can all analyze it and try t perceive different trends, but that seems to me to be the basic reality. in terms of principled justices, i do want to say i think the most principled articulation of the correct way to approach the law was articulated by judge sotomayor over the last four days. i have never seen such a stinging rebuke to the lawless, empathetic, touchy-feely

jurisprudence of president obama as delivered so eloquently by judge sotomayor who said just like justice thom, no, what you do is look at the terms of the law and you apply it without favoritism to discrete insular minorities or any other group i happen to believe in. i'm very excited. i have been arguing about this for 30 years. it seems every democrat on the judiciary committee has now abandoned this nonsense about looking out for the little guy that led obama to vote against justice roberts and justice alito because they were not sufficiently sympathetic to the groups he likes in american society and have such a ringing endorsement for neutral application to the rule of law. you may call me cynical. i don't know if this will translate into the way she actually decides the cases, but i was certainly very happy to see that in terms of her articulation of her philosophy. it was very much in the justice thomas mode and very much a rejection of the obama mode. >> a philosophical debate was

certainly very interesting, but now we are going to turn to other philosophers in the audience. when i recognize you, i want you to wait for the microphone. we've got a couple of people on either side of the room, as much for our heritage.com viewers as well as the c-span audience. and please try to make your question a question. why don't we begin with -- two gentlemen right here that caught my eye first. >> is this thing on? hello? >> no. >> well, apparently not. yeah. accuracy in media. i wanted to ask you some related questions about the coalition building justice roberts has been doing in represent to the juris prudential and political

elements of what he's been doing. do you see him being a counterweight to the current regime and trying to create reaction that could re-create what happened during fdr's first few years? also do you see justice roberts taking this sort of anti-voting rights act slant towards anything more radical, like say a rejection -- thank you. >> you'll have to restate the question for the audience. let's try to get the microphone fixed while we're answering. >> i mean, there are certain assumptions in the question that i don't agree with. i mean, i think -- i don't think that he -- that he, meaning the chief justice, has an agenda on a political question. as i said earlier, i do think that what the court tends to do term to term tends to be a function of the docket that

comes to them, and i do agree with mike carvin that the outcomes tend to be those that seem legal and enlightened to justice kennedy. and so i don't know that even were he so minded, which i don't think he is, the chief justice had the capacity so implement any sort of political agenda. i do think that he is sticking with what he said at his confirmation hearings having looked at some of the sections in the section five days, which we discussed, i find it very hard to believe that any motivation other than pure modesty, the narrowest possible basis could explain the outcome in the section five days. and i ultimately don't think it is an anti-section five motivation. i think it is a desire to see

congress do its job. i mean, they are, you know, one of the sad realities of the debates over the court is of that people tend to have a great deal of respect for stair ri dee sigh sis for cases they really like and not a great deal of regard for it for those that they don't agree with. and so, i mean, i think it would be good to see the court as a whole take an even approach to the doctrine. obviously, there are cases that are no longer working and have to be discarded, but i think on the whole they tried to do a very good job of putting aside their politics and just ruling on the law, and i think that that's true of both sides of the court. >> let me just also say something about that. i mean, the thing that bothered me the most in the coverage of the voting rights act argument

afterwards was the number of journalists who said things like, well, chief justice roberts wrote memos in 1982 that was hostile to the voting rights act, and so it's not surprising that he gave the defenders of the voting rights act a hard time and stuff like that, which i just thought wassaily. th this is a man whose entire being is bound up in the supreme court. to being a justice clerk to judge rehnquist, to private practice and so on. the notion he's going to try to kind of re-enact some policy memo from 1982 into the constitutional law and supreme court decision making i think is just rather farfetched, and i think if you take that view of chief justice roberts, you might also answer the other part of your question, which is do we expect a replay of 1935 and the supreme court basically -- the supreme court acting the way it did during fdr's legacy.

i think that was a tough moment for the court, and i think people who care about the court i think will be very hesitant to replay something like that. >> okay. mike, i don't know if we got the microphone to work, but we'll relay your question. shout it out. >> michael roberts. [ inaudible ] it's possible that the court will adopt the line of cases when they do consider that question, which is a fairly rigorous review of congress' power under this congruence and proportionality test. if they do, isn't there a problem with the section two effects test as there is for section five? isn't there a problem for the sg's office because to justify section five, they have to say, well, those jurisdictions are

really different, but to justify section two and the effects test of section two, they have to say, well, there are problems everywhere and that they require congress to go beyond mere constitutional violations, which has to mean the congruence and proportionality test. >> too brilliant for me to repeat, but mike, can you begin? >> actually -- >> i'm sorry i'm sorry. >> i'll answer for neal. >> and he'll be bound by the answer. >> and i think we'll have to conclude -- >> go ahead. >> please. >> well, you're getting into very complicated stuff. i would make two points, and i'm sure you would, neal, would clearly disagree with both. as i said, and you got to get into the minutia of the law to understand this, the court over the last 15 years has sought to

weaken the race conscious mandate of section two. it's made clear that the minority has to be % of the relevant population, that you don't have to draw these ugly districts, that you don't have to break county lines and break up communities of interest. what section two has been essentially reduced to from this incremental approach from the court is basically, look, if in normal circumstances you would draw a majority/minority district because it's a nice square kind of district where minorities for whatever demographic reason constitute 55% to 60% of the population, fine. but if you have to hook up this group with that group and cut through a river and over a jurisdiction, you don't have to do it. so on the one hand they have ratcheted down the race mandate consciousness of section two. they've done a very similar thing with section five. in the ashcroft and the bow injury parrish one and two decisions, they have said

essentially it is okay for jurisdictions, for example, to convert majority/minority districts into 30% to 45% district. we're not going to handcuff the jurisdictions on this front, the point i was making before congress said we don't like the ash craft decision. so we're now going to put a straight jacket back on southern jurisdiction that is wasn't present in mississippi in 1965 and say if you've got a 60% district today, you can't diminish that proportion. you've got to keep it where it is. we're also going to reempower the justice department to say if you can create a 55% zishth or a 35% district over here, we're going to say your failure to do so constitutes a discriminatory purpose. both of the things that bothered the kout most about section five. the straight jacket on southern

jurisdictions and the empowerment of bureaucrats, congress consciously reinstated in 2006. if they do get into things other than the coverage formula, if they get into the comparison of the results and effects test, like mike rossman was just saying, i think they're going to look very skeptically on what congress did in 2006 and they're going to say for that reason alone it's not congruent and proportional, and i suspect, this is an incredibly long-winded wane to your question, that they will never get to the section two dilemma that you articulated because i think they're going fob very concerned about the ramping up of section five in 2006. >> just briefly, section two and section five are really rather different. so section two is really an after the fact remedy, after something has been changed, a voting practice has been changed, you can then bring a lawsuit. section five is preclearance. it's before hand. it's a more intrusive remedy, and it's a much greater incursion on, as the court

recognize recognized, traditional notions of state sovereignty. section five's basic point is to say 60 days before an election or something like that, jurisdictions can change the requirements, and you won't have time really to get a section two lawsuit going and in place and then you'll have that person elected under that unfarrah jet stream and then they will have all the advantages of incup ban si put on them. i agree with mike entirely that the changes to section two and five in the 2006 amendments are going to be fertile areas of

[captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009] >> another chance to see key moment in the confirmation hearing for sonia sotomayor. this is on c-span, c-span radio, and c-span.org. >> this weekend, the nation's governors take on critical issues facing their state bit of live coverage of the governor summer meeting saturday, sunday, and monday on c-span. "book tv close could take to the harlem book fair saturday afternoon on c-span2. >> now very view of some of the major decisions handed down by the u.s. supreme court during

its term. a clue -- a group of analysts discuss the long-term affects involving with campaign financing and political speech. the heritage foundation is the host of this event. this is about an hour. >> it is fitting that robert will host this panel. he has a journalism background into his legal background. he served as florida's kriegel watch in 2000. -- legal wash in 2000. he went to iraq in 2004. he has published articles and many journalists including "the walls sheet -- the wall street journal." teton national security law and legislation.

he is also worked at the ashford center for international affairs. i will turn things over to you. . . at ashland university. so robert, i will turn things over to you to introduce our second panel. >> thank you, rich. there were many questions on the hill this past week about cameras in the courtroom, and so it is appropriate that we now take up the scribe's panel highlighting a band of reporters who provide a better window in the decisions and workings in the decisions and workings in the court better than any a could. covering the supreme court is a difficult job. the hardy few reporters who cover this beat do not obscuflem obscure latin phrasing. they must discuss the s.e.c.

regulation of ex ppletives and the next discuss the false claims corrections act which holds an acronym nearly as profane as its substance. indeed, these reporters delve into the arcane of statutes that we now know that even members of congress don't bother reading. this term has provided a number of cases to which they can apply their skills. after all, who could forget polar tankers versus the city of valdez. a case involving the tonnage clause. i see blank stares. article one, section ten, no state shall without the consent of congress lay any duty or tonnage. i think we need to sell more copies of the heritage guide to the constitution. how about euro def, raising the question of whether a duty should be applied to low

enrichment ewe rain yun pursuant to separate work unit agreements. still no -- okay. you have to know kennedy versus plan administrator, a tantalizing case looking at whether a plan administrator's reliance on beneficiary's designations where a divorce decree may limit a beneficiary's rights. great and exciting cases. why did you come today? because of the tmz like coverage of strip searching teenage girls. i know, i know. i'm sure that our distinguished panel will do a better job of picking cases to highlight than i have and so i shall move to their introductions. we'll begin with lyle denniston. lyle is a legend in supreme court reporting. he is celebrating his 59th year as a journalist and his 49th year covering the supreme court. during his extraordinary career, he has covered one in every four

justices ever to sit on the supreme court. he currently reports for the indispensable scotus blog which i'm sure you're all reading. if you're not, you really should. he also reports on the court for radio station wbur in boston and for justice talking, an npr program originating in philadelphia. he is the author of "the reporter and the law: techniques of cover the courts" and is a member of the hall of fame of the society of professional journalists. our next panelist really requires no introduction. juan williams is one of america's leading journalists. he's a news analyst for npra contributing political analyst for the fox news candlhannel, as a regular panelist on fox news sunday. he's appeared on numerous television programs including nightline, washington week in review, oprah, cnn's cross fire where he frequently served as a

co-host, and capital gain sunday. the author of several books including the biography of thur goode marshall american revolutionary, as well as eyes on the prize, and enough. apropos our discussion today -- i should note he also wrote a phenomenal forward to abigail thurn strom's new book on the voting rights act, "voting rights and wrongs." he wrote for "the washington post" where he served as an editorial writer, op-ed columnist, and white house reporter. he is won an emmy. his arms have appeared in publications far too numerous to mention. last but certainly not least, we have quin hillyer. he's a multiple award winning journalist with over a quarter century in journal iiism and politics. he's a senior editorial writer at the "washington times" a senior editor at the "american

spectator" and a columnist for the "washington examiner." he has been published professionally well over 50 publications including "the wall street journal" and "the washington post" and has been recognized by "the washington post" and msnbc as one of the nation's top political prognosticators. we hope to put his skills to work for us today as we peer into the crystal ball of what may be held in the supreme court's next term. so without any further delay, let's hear from lyle. thank you. >> thank you, bob. i'm pleased to be with you today, and i'm not exactly sure why i'm here because in todd's invitation to me, he pointed out how wrong some of my coverage on

scotusblog has been, so i went looking through my wardrobe today to see if i could find a pink shirt so that i could perhaps exhibit the quality -- the ideological quality that i think he ascribes me. what i found was an orange sthirt that in some lights looks pink and so perhaps maybe that's what todd's seeing, is something that really is of a different color entirely. but in any case i'm delighted to be here. this is a fine annual program, and i'm very pleased to be a part of it. in my opening i'm going to cover just kind of quickly a smorgasbord of things rather than concentrate on particular cases. but what i want to do is to make sure that you plan to come to next year's scholars and scribes because this coming term is going to be a really spectacular term. we're, of course, going to have the hearing that begins in

september before the term begins on constitutional questions involving the campaign finance law, and there's little doubt in my mind but what the court is going to change course markedly on that. we also, ever all of these years of debating the slaughterhouse cases, we are perhaps going to confront the continuing va lidity of the slaughterhouse cases and the attempt to revitalize the privileges and immunities clause as part of the court's consideration of whether to extend the second amendment to apply to state and local government. we're also going to have mike carvin's great case, the free enterprise fund case, which has to do with the appointment power to the accounting board that congress set up after the enron scandal. there also is going to be a very early test for judge sotomayor

when the court takes up what -- the briscoe case from virginia, and in essence the court is, i think, going to be re-examining a decision of just this term of the melon dez dee as case in which the court said if the prosecution in a criminal case wants to put in evidence a lab report, the confrontation clause requires that the chemist who prepared it be made available for cross-examination during the case. the vote was 5-4, and one of the five in the majority was justice souter, who is obviously retiring and will be replaced by justice, one suspects, sotomayor. she is, i think, more prosecution oriented than justice souter was, and i think there is a chance that the court, if it's willing to be somewhat embarrassingly bold, it

may actually cast aside melendez dee as and start over in that area of the law. bob had mentioned cameras in the court there. is no real prospect, whatever arlen specter thinks to the contrary, that the court is going to allow cameras in the courtroom. one of the reasons is that i think the court within the court there is a growing concern that the public portrayal of the court would, if there were cameras, be too selective. we've heard this argument over and over again against cameras in the court, but i think what i'm hearing is a new argument which is if we allow the portrayal in the public media, particularly television, of a particular case, do we as an institution invite greater public attention to that and make that case seem more important than some other case that doesn't get the media attention? there are principled reasons

within the court why they are unwilling to go further with opening the court. john roberts has gone all the way i think to open the court up further, particularly with his gesture in authorizing the same-day release of the written transcripts, which is enormously helpful to us in the press. let me say before my time runs completely out a word or two about justice sotomayor, and let me get at that first by saying perhaps in disagreement with other people's perception of chief justice roberts, i think the chief justice is in a hurry to establish some new principles of constitutional doctrine. i think it's very clear that the chief justice does have an ideological agenda and is actively pursuing it, but i think he must pursue it in a hurry because once tony kennedy

leaves the court, and that could be sometime during president obama's tenure, the five justice majority on which the chief justice now can more or less reliably count is going to be gone. but what i think will happen when kennedy is gone is we will see the rise of what i call a new dynamic center, and in that center perhaps taking the place of kennedy alone will be a trio of justices. i think it will be steve briar, who will be on the left of the trio, and sam alito on the right of the trio, and judge sotomayor floating somewhere between the two of them, and i think that's where the future of the court, the control of the future of the court is going to lie. let me say in conclusion one other point, we are experiencing continuously a decline in the caseload of the court, which is most unfortunate because i think

it a really precious national resource is being wasted. when the court holds only one hearing a day, as it did several days in the march sitting of this year and only decides 74 cases, which is less than half of what it was doing in the 1982 and '83, something has gone wrong. the case selection process has become seriously flawed, i think, and major, major controversies that ought to be decided by the court are being turned aside, not the least of which are a number of sequels to the kilo decision in which the court has been asked to clarify what kilo really means and the court has simply refused to do so. one suspects that what is going on a lot of the time in the reduction in the caseload is what we insiders call defensive denials. the four justices who might want to grab a case are unsure of getting a fifth vote on the merits, and so they're not

voting for grants, and i think the overall effect of this, plus some other principles and some other influences, is causing the court to do less than half of what it ought to be doing. thank you. >> juan? >> thank you. it's a pleasure to be here. thanks for the invitation. this is such an interesting session to go through. i'm not going to go forward in the way that lyle did, but simply say that despite the hot weather today, it's been a pretty mild summer here in washington with the exception of what's been going on on first street, both on the supreme court side and on i think it is now one-third that were issued this term. additionally, if you were to add in the 6-3 decisions, then you get to literally half of all of the cases decided this year, and, of course, you have an increasing rate of decisions

being reversed from the lower court, so you see more and more of that sharp divide right now, as demonstrated on the court. it reminds me very clearly of what lindsey graham, the senator from south carolina, said at the judge sotomayor hearing, that they have consequences, and i think there are sharp consequences in terms of the court, and sotomayor has seen this, it will be demonstrated day in and day out on the supreme court. there is the more acrimonious mix that you could throw the obama administration along with the majority pressing left, including, i guess, the best example of what would be the nomination of sotomayor while, of course, to pick up on what lyle was saying, kennedy has been adding to the majority this

term, as i understand. 11 of the 65-4 votes, he has sided with the conservative majority just last term, easily split between the left and right, a critical difference between this year and last, and i think it is a portent of the direction the court is moving -- 11 of the sixdecisions. on the court is the whole issue of, therefore, political legitimacy for the court. in the hearings for nominee judge sotomayor, democratic senators have been continually attacking the roberts court, and i found this intriguing. i think one senator said he didn't know this was a hearing about the roberts court or even about president obama to that extent, but that's what's been on the table. i think that's the topic of

discussion, and it's portraying the roberts court for the most part as judicial activist for overturning previous rulings, campaign finance, abortion. senator feinstein, senator leahy suggesting that activist judges are not left wing in nature but better described simply as judges who issue decision that is you disagree with and also to be found on the right. in fact, senator feinstein spoke rather angrily of what she had heard from justices alito and chief justice roberts during the course of their hearings when they portrayed themself as strict constructionists saying these are people who have overturned precedent time and again and picking up on something that miguel estrada said in the previous session, that's not quite the way to run a railroad in senator feinstein's mind. so to that extent the court has

become much more politicized during the last term and in the course of these hearings that are concluding this week, and with justices on the left at the upper end of the age speck strum, evans at 90, ginsberg at 76. i hadn't thought about the possibility of justice kennedy calling it quits anytime soon, but it seems to me probable that president will soon are more nominees before the judiciary committee, and it's likely that they will have clear left wing instincts further sharpening the right/left divide on the court. the left wants, i don't think there's any question if you're looking to the nation's law schools right now, if you're looking at the instinct being demonstrated in people that president obama has been looking at, seems to me that they want louder, more strong-willed voices to counter the intellectual fire power that's coming from justices roberts, scalia, thomas, and that

president obama is likely to try to give that to them. so to that extent i think what we're seeing is the politics of the recent vintage going back i guess the polarizing elections of 2000, 2004. the surprising results of 2008 now come to the court and to the law. and the question is whether or not the court can really withstand this rising tide of politization. the question is not whether the justices can withstand it, because i trust the supreme court family will hold. the question is whether or not in the public mind the court has legitimacy if it becomes simply a political institution in which you can absolutely count on votes left wing and right wing and then it simply comes down to the likes of a justice kennedy swinging to and for from one side to the other and being the sole determinant of the outcome of laws in this country. thank you.

>> thanks, juan. quin. >> thank you very much. i thank heritage for including me in this. i want to associate myself with lyle's remarks about how much of a shame it is that the caseload has gone down so far. there are a number of cases that i would have liked to have seen taken that have not been taken in recent years. i'm going to back into my discussion of the court's term by starting with some very unfortunate words from judge sotomayor, not to discuss sotomayor, but to eliminate my concerns about the direction of the court. judge sotomayor has been criticized but not enough for the first half of a paper she co-wrote for the suffolk university law review in 1996. in it she effectively endorsed an approach to the law that makes the lawen ever more rarified realm, one less and less accessible to or understandable by the general

public. what she endorsed were these sentiments. sentiments i think are profoundly wrong headed and i'm quoting directly from several of her passages. quote, the public expects the law to be static and predictable. the law, however, is uncertain and responds to changing circumstances, end quote. the public instead needs and wants certainty and clarity from the law but our society would be straight jacketed were not the courts with the able assistance of lawyers constantly overhauling the law. law must be more or less impermanent, experimental, and therefore, not nicely calculable. much of the uncertainty of law is not an you be fortunate accident, it is of immense social value. she also spoke of what she called, quote, the public myth that law can be certain and stable. in short, this is law of, by, and for the lawyers. the general public is expected just to trust that lawyers will

do the right thing because the public by these lights cannot be expected to understand what's going on. i think most people would rightly object to this supposedly ideal. i'm here to tell you that not by design but de facto the supreme court this term added to the public confusion about the law and to the sense that the law is anything but certain and stable. consider what the court did with regard to what it called the, quote, principle of constitutional avoidance, as has been discussed with this northwest austin municipal case. eight justices cited that principle in order to decide the days on statutory grounds alone rather than examining the underlying constitutional issues. likewise, in the ricci versus the firefighters case, the court decided on statutory grounds alone rather than examining constitutional questions justice scalia raised in his concur

rebs. on the other hand, in citizens united, the court expressly invited further briefs on the constitutional questions in full. now, granted this wasn't really a choice between deciding statutory or constitutional grounds, but rather a choice between narrow as applied constitutional grounds versus broader con strutional grounds, but the desire of the court to further push broad constitutional questions seems to run counter in its desire to rule as narrowly as possible in the two race cases. observers can be forgiven for being confused. is this a court that holds to judicial minimalism or not? should the lawyers try to provide justice was compelling grounds for narrow rulings or for broad constitutional pronouncements? other confusions arise in federal preemption cases as miguel estrada mentioned. i don't want to eveovergenerali because the two confusing cases

involve different laws with different presumptions. however the layman might have a hard time understanding why p preemptions was allowed in one but not in the other in 2009. then there was the decision in oregon versus ice, moving to a different topic, which held that a judge may add to the effective sentence of a convict based on facts found not by the jury, but by the judge. again, the question here was in some technical way slightly different from those in a new jersey case in 2000. one can easily be justified in asserting, along with a dissent by justice scalia, that the oregon case, quote, directly contradicts what we held eight years ago and have reaffirmed several times since. justices stevens and ginsberg though were in the majority of both the seemingly contradictory decisions. so observers again have reason

to be puzzled. and i'm puzzled, too, because i happen to like the old line of cases starting with aprendy. what i'm getting at here is not to suggest that it's illegitimate for very close cases to swing on particular facts. sometimes objectively speaking those facts require a result that appear to be contradictory but actually aren't. but it is to suggest that as in the two cases on the ten commandments from 2005, the court's decisions and jurs prudential approaches can have the effect of leaving most citizens thoroughly befuddled, and sometimes that befuddlement is increased when the decisions are examples of what tom goldstein called incrementalism or ak tu aerialism, which is what chief justice seems to be trying to achieve. the ordinary zeb can be foregiven for starting to think

that courts are aware if their outcomes are not like determining how many angels can dance on a pin, they are dependent on how many lawyers by chance can weigh in. i think this is a problem. our founders understood the need for stable laws. thomas jefferson said the instability of our laws is really an immense evil. alexander hamilton and james madison warned of the evils of laws that, quote, undergo such inses sabt changes that no man who knows what the law is today can guess what it will be tomorrow. i'm running out of time, but as one final caveat, to be clear i'm not saying that the court should strain to create brightline rules or broad constitutional pronouncements out of thin air. in fact, i'd rather them slightly err on the side of, you know, of restraint than of saying things too broadly. but especially in the north austin case, as miguel estrada said, if seemed as if the court

for -- maybe for internal political reasons was deliberately straining to find narrower grounds than the case naturally presented. again, what he said was it is very different to reconcile texturally how they reached the result. so whether by design or happenstance and whether individual decisions were justified or not, i fear the results of this term's jurisprudence was to further muddy the waters making it harder, not easier, for the public to understand the laws that govern them, and i fear this trend might get worse if judge sotomayor joins the court if she still believes what she wrote in 1996 rather than what she told the judiciary committee this week. thank you. >> thank you, quin. at this point we'll give each of the participants a few moments to discuss and rebut. >> let me jump in, if i could, on the voting rights act decision and quin and juan have

both talked about t my own sense of what happened there was that the court had after the initial round of voting in the conference, they had a majority to strike down section five. but that majority necessarily would have included justice kennedy, and if one knows justice kennedy's record, you know that he is very much concerned about his ultimate legacy, of what people will think of his career on the court in several areas, and one in particular is racial equality. i think what happened in northwest austin is that the court walked right up to the precipice of striking down section five and kennedy balked. i think it certainly was very clear after the oral argument where kennedy's constitutional sentiments were about section five.

i believe that he does regard it as mike carvin put it in some context, an absurd statute, at least as its presently applied, not perhaps as originally enacted. but kennedy is very concerned about running counter to the notion that raise should not matter in our society. he generally does not believe in race conscious remedies except in the very incremental kind of way, and i think what he was concerned about when the internal circulation of the opinions continued at the court, i think he was concerned about having it on his record that he had provided the fifth vote to strike down what is i think undeniably been the most effective civil rights statute that has ever been enacted by congress. i think that accounts for the

result more than the chief justice's purported interest i he is interested in a minimalist approach is when he cannot control the five votes to go more broadly. and, for example, his push to put on the louisville seattle pieces, three terms ago, two terms ago, when there really was no division or courts in that area, the court was being very aggressive to take those cases, and did so, i think, in order to be able to make the statement, to make a declaration, along the lines as the chief justice often did, and you remember that he made the remark that dividing us up by race is a sordid business, so i think that the chief is getting too much credit for trying to press a minimalist

approach. i think he does that, only as a backstop when he cannot control otherwise. approach. i think he does that only as a backstop when he can't control otherwise. >> let me pick up on the voting rights case because i think that was more evidence in my mind of the political nature, the increasing political nature of the court and the danger the court encounters as it becomes more and more politicizeed. i don't think there's any read of the law or history that wouldn't indicate that the voting rights act on the whole now stands as an anachronism and yet now a politically sensitive issue because of the significance in ending a disgraceful era of segregation in this country in which you had segregationists utilizing strategies, everything from bubbles in a bar of soap to poll taxes to limit minority voting

strength. that clearly was a period of shame for this country. but now you have, especially with regard to section five, a basis for this law that's rooted in data from 1964, 1968, 1972. that's the basis in which the reauthorization took place in the united states congress going forward. the court clearly felt that in terms of oral arguments, the court clearly was concerned that this was a violation of the u.s. constitution's guarantees of state sovereignty, especially with -- because of the assumption of the intent to diskram nate by the states involved. you have nine southern states, seven others that are covered under section five, but the assumption that these states are intent on continued discrimination without any

actual evidence that they are engaged in that, and if we're talking about this utility -- electric utility district in austin, texas, we're talking about an area that was not in existence in the '50s, '60s, and '70s. did not come into existence until the 1980s. these are the facts. i'm not here offering some opinion. so this is the case, and i think at this point then the chief justice or justice kennedy in lyle's mind go about making a political decision, and the political decision is that it's going to set off fireworks in the minds of those who would think that any decision by the supreme court that somehow might diminish the voting rights act is really the first step, and you could have heard this on talk radio and the like over the course of these discussions, is really the first step or the camel's nose under the tent of taking away the right of black people to vote in the south.

now, that sounds ridiculous. it sounds like i'm making stuff up, absurd, but that is the kind of freight that attaches, the fear that would attach to any effort with regard -- any ruling in the minds of some that might diminish the voting rights act in this country. and so you get the supreme court then, i think, looking for this narrow basis, trying to craft something that would get as many votes as possible. it ends up with an 8-1 volt. in this regard it reminds me so much of the efforts by chief justice warren in the brown case. find a way to get as many votes as possible, but again i think that was the instinct of a former governor of california understanding the political impa impact. here we have chief justice roberts, justice kennedy in your mind lyle, making i think a similar political calculation, and i think that if you had to come to some judgment about this, you would say that they -- the hope was that the congress will act, that the congress will

go back and take responsibility for this political initiative, what should be a political initiative, to somehow settle this properly, and that this warning was coming almost as if a political light was flashing atop the supreme court on one side of first street to alert the other side that if you don't do something and we are confronted with this case again, we may not act in such a limited fashion because of our political concerns. but it's all about politics. >> i agree with everything juan just said. i think it was an unfortunately highly political decision, the northwest austin case, and for all the reasons that he said, i could go on for 15 minutes off the top of my head about the problems i see with section five. >> our timekeeper would -- >> exactly, exactly, which i won't other than to say it's sort of odd to give these bureaucrats in the justice department who themselves can be

very politicized power to overturn state laws and state constitutions and then, you know, even if they are so wrong that the entire supreme court years later slaps them down as happened in reilly versus kennedy in alabama. but what really bothers me and gets back to my theme about the public not being able to understand, you have a situation where the court had to jump through hoops to avoid a constitutional issue when one was really squarely presented, and what came out was a muddle that says, okay, well, we'll sort of send it back, and you have this bailout provision and then come back to see if somebody else can bail out and we'll tell them that and then maybe we'll get to the constitutional question later, and you end up having it just as

bad as these five-part tests on other constitutional issues that the court has made up out of thin air. you've got a court for political reasons not reaching a constitutional question that anybody can understand, and instead throwing everything into a much bigger muddle, and that's why i thought it was unfortunate, and that's why i thought that justice thomas' separate -- was it a decision? his dissent was right on target when he said sometimes constitutional avoidance is a dodge and it is not appropriate, and in this case the constitutional question is squarely before us and they should have handled it. >> by the way, if i could just intrude a little bit on the audience's time here, i think we will see this case -- or this issue back very quickly. first of all, it seems very

clear that congress is not going to respond. congress does not want to reopen section five and try to find a new formula in which -- unless the entire country is brought under section five, which i don't think there's any political instinct to do that. and also people like greg coleman, who brought this case and mike carvin, are already working on developing new litigation, and i think the more likely next round of a lawsuit will be under section five. it will not be a little political subdivision that has a clean record. it will be a state that has been recently denied clearance in washington because there's one way that you can read in northwest austin case the decision by the court. it's indicating there is an exhaustion requirement for a political subdivision. in other words, it cannot raise the constitutional issue in the

next round until it first attempts to get a bailout and is denied it. so i think the strategy will be to move to get a state that has had a recent election law change invalidated or denied by the justice department or by the three-judge court in washington and then you can have an immediate and direct test of the constitutionality of section five as presently written. >> all right. well, i'm going to -- because i understand that infringing upon audience question time could lead to revolt, i'm going to shift to that, although i will exercise the moderator's prerogative to ask the first question and to make it as unfair as possible. and so i ask you to put on your prognostication caps. it's been said that replacing a single justice on the supreme court does not simply add one justice, but it changes the entire court. with that in mind, what impact

do each of you think that a justice sotomayor would have on the court, and i'll just offer i previously have written that i don't think it's a zero sum game. i think you can take -- despite the sort of caricatures of the 5-4 court, that you can see areas where souter has been the decisive fifth vote, be it in some criminal procedure cases or perhaps of more import to a sotomayor nomination certain business law cases where she's been more hostile, i'm that iing thinking in particular her merrill lynch case where she was overturned by the supreme court. setting the stage, what impact do you think sotomayor's replacement of souter might have? >> somebody else take it first. >> well, my sense is that in the short term what you have here is judge -- justice potentially,

justice sotomayor i think will try to adhere as much as she can to stay within the mainstream and to hold to this notion that she is someone who does believe in precedent. now, i think if you were to look at instinct, and people have talked about the instinct of justice roberts is to rule with corporations and big government, i think justice sotomayor's instinct has always been to rule against the big guy. i think if you wanted to have some testimony to this effect, you'd ask the baseball owners going back to that strike when they had -- when she ruled without -- i think she said it was a 15-minute hearing. president obama said, as i recall she refused to hear additional witnesses or document and simply ruled against the owners and said they were trying to take baseball back to the

1950s and the precurt flood area. in general i don't think she's going to abandon the 17 years that she has had on the courts in this country. i think her record is pretty much an indication of the type of judge she will be. my guess is that free now from the constraint of being challenged, cases taken to the supreme court, you might see more of the leaning that you're touching on especially, antagonism toward big business, but i don't think it's going to be out of the mainstream. i think she has more trial experience than anybody as we've heard repeatedly from the democratic senators during the course of the hearing. i'm reminded that when justice marshall died, i remember talking with the likes of justice rehnquist and justice scalia and they said simply having someone with that much experience as an actual litigant, someone who has been around as thurgood marshall had been in representing people who

were charged with capital crimes and the like, makes a difference in panel. so the sensibility that she might bring as a poor kid from the bronx will certainly add to the discussion, but i think she -- you know, it might be more relevant to the general public to think of, well, here is another yale law school graduate, another ivy league graduate. i think we only have one who is not an ivy league graduate. >> justice sterchs. >> and here comes another catholic. for the most part i think given what my inclination is to think about future nominees coming from the obama administration, i think she would be rather centrist by that measure. >> you're just trying to scare me, juan. i'm just going to hazard a guess that her speeches are far more reliable indicators of where she will go once she's not

restrained by higher courts than there are any other indices. i think to quote a totally unfair statement that chuck schumer made about now 11th circuit court judge bill pryor, i think, and i know people here are going to disagree with me on this panel, but i think her record absolutely shouts out advocate and doesn't even whisper justice or justice or j. doesn't even whisper judge is the direct >> bob, my sense of it is where she will be most challenged in the beginning is in oral argument. sheok is, i think on the second circuit, and she has been one of the most active members of the bench, but usually, as you know,

and the court of appeals set in panels of three. the court of appeals sits in a court of 9 -- the supreme court sits in a panel of nine. even without justice osouter, it is what they call a very hot bench. it will be very difficult for justice sotomayor to become actively involved. she is going to have to find ways to get in her questions i think a lot of people underestimate the importance of oral argument in the dynamic of the court's work. if you know how the court functions procedurally, the oral argument is really the first time with which the justices actually discuss the substance of the case. they do not do it at the stage when the case is up, and they do

not do it among themselves in preparing for oral arguments, so when they come to the bench, it is really an agenda-setting moment, and what happens at oral argument is that the court their frames what the debate will be when they cast their focused -- first votes in conference, and, by the way, i think clarence thomas really denies himself a signal opportunity to participate in that agenda setting process by not participating actively in oral arguments, so i think sotomayor will really be challenged to adapt to an eight-member actively-questioning court, and also, and i really say this with some hesitation because of the possibility it would be misunderstood. really say this with some hesitation because of the possibility that we'll be misunderstood. i don't think she is as smart as justice souter and was to my

mind i have covered a lot of very smart people on the court, but no one at least since -- had or has the intelligence that david souter has and that came out very importantly in oral argument where he was the one justice who could most quickly get to the heart of any kind of a case that was up there. so i'm not sure she's that good again. she may develop better over time, but i would say she's got some way to go to catch up with david souter's standard. >> let me make one 12-second remark which is an example of where oral argument was really important was in this northwest texas case where almost the entire excuse that the eight justices used to -- to

constitutional avoidance was the single question they asked to the plaintiff's attorney and he answered a simple one-word yes and they built their whole argument about why they could avoid the constitutional question on that one response. so that's a perfect example of what he just said. >> all right. let's turn to questions from the audience. once again, raise your hand. please do wait for the microphone so that the listeners at home can hear and state your name and affiliation. as is tradition and to encourage food fights between the panel if any of the members of the prior panel, it would be first. all right. yes? >> a.l. media. are there any decisions this term that justice souter came to

that any of you are certain justice sotomayor have decided differently. >> well, in my opening, i mentioned that i think is a real possibility, that's melendez diaz on the question of bringing lab technicians in to be confronted with cross-examination, and i would be very surprised if he would take the same position that he did. i can't think of any other off the top of my head. i think -- i think she might well have been in favor of allowing convicted individuals to have a right to have dna evidence retested when there's a legitimate or at least an arguable claim of innocence. justice souter did not join in that opinion and, by the way,

neil read from his very compelling separate statement in that case as to why he was joining in that case, but i think judge sort mayor, had she been on the court for that case, she might well have provided a vote in favor of allowing a right to re-test dna evidence. >> i can't think of any. >> i'll defer. any other questions? yes, in the center. >> mark pack with senate republican policy committee. i heard everyone talk about how the court has become more politicized, and i'm wondering, i don't know if you want to address whether that is a good or a bad thing and some people may have differences of opinion on that, and i'm wondering whether you think the responsibility for that lies primarily with the justices or

perhaps with the media coverage that the court's docket receives or some other factor? >> i think it's the argument i was making in my presentation and my sense of it is that it's a result of election results and more the polarization of the american electorate and a sharper divide. the problem going forward will be having the american people continue to believe that these nine people are worthy of their trust and it's not simply a matter of votes, political votes and actually a matter of the law and that we live under the constitution and that we should, as an american people, always relegate our political beliefs to a trust in the higher power of that constitution. i think that gets worn away, eroded, if you will, if the politics continue and when you see people make political

decisions, even decisions that you might agree with with going back to the voting rights case when you say, you know what? i just don't see the law as the ultimate authority in this ruling. >> let me add something to that. there's a number of contributing factors to it and i think juan is exactly right. i think the court internally has become more politically dispute ashs as well as ideologically or philosophically. among the factors that i think contributes to that, one, which may surprise you is i think the small case load gives more importance to each case. it allows the justices to dwell longer upon their differences between the two. if you have to decide 150 cases, you are not likely to be as inclined to indulge yourself as

greatly in dispute with your colleagues because you have to move on, and you also have to make more alliances. so if the case load continues to stay small and we continue to have the confirmation process over the kind that we've seen over the last half dozen justices' nominations, i think you will see no decline in the politization of the judicial process. justices, i think, like to persuade themselves and like to try to convince us that they really are not affected by what's happened to the confirmation process because once they put on the robe, then they respond to different kinds of influences, but i think each one of them now knows what it is like to go through the process to have withstood that kind of process and to have had actually survived it, and i think you carry with you, perhaps a good

many years after you become a member of the court a sense that you had to run the gamut and, by god, you're going get even in some way after you're on the court. i know justice thomas, as a matter of fact, has indicated that one of the reasons he plans to serve a very long time is because of the hard time he had getting there in the first place. so i think that is an influence. >> nothing to add, i agree, actually, and i agree entirely with again the point about the low case load. i think it does have those effects as well as the other bad effects that have been talked about. >> i think if we have a question that can be answered in one minute, we can take one. >> from the heritage foundation. i just want to follow up. it does seem that the media, to be blunt, does not do a great

job of talking about the law in the case that is decided and often talk about it from an interest group analysis and, for example, in the ricci case, i saw very few citations of the actual text of equal protection clause which means no state shall deprive any person of the equal protection of the laws. would you agree? it seems that many of your colleagues want to pit groups against each other when they write on supreme court cases. >> i'll give you, and i'm sure bob will appreciate this. a very brief answer. i think the general mainstream media coverage of the supreme court is nothing less than disgraceful. >> i would like to agree with that and also to say that is one reason why outfits like the blog are so essential because they do an absolutely wonderful job even when i don't agree with their analysis, they do a wonderful job covering the real facts and

the real principles and the real things that the supreme court is deciding. so hats off to you. >> i would simply add that it's not the -- i think i disagree with the premis and the question that there's sort of collective coverage. it's to my mind absent of coverage, until it comes time for the actual ruling to be announced, and then it's announced much as you would announce the final score in a game or sporting event and people say who won and who lost and then it's off to the races with the political interpretation and analysis rather than looking at the basis in which these cases -- or the rulings have been made. you know, i can understand why did they emphasize this or that, but i think it's a scarcity, a dearth of coverage of what are fascinating issues for the american people, and i think what offers the sense of our common birthright in terms of being americans and what it

means to have, you know, the gift of a supreme court and a constitution in our lives. >> i think, one of the things they think is very evident in media coverage, and i don't think this is exclusive to supreme court coverage. i think it applies in politics. i think it applies in coverage of medicine. it implies to coverage of science. virtually any subject in that area that has its own kind of universe and its own kind of vernacular. the media, the general media are not interested at all in process. they are only interested in outcomes and so a case like the northwest austin case, if you follow the history of section 5 and the constitutional questions, this has been debated for a couple of generations. the constitutional issue, but to

read about the austin case in the general press this year and last, you would think that this was like a baby that had been dropped unwanted on the doorstep of the court. it came from nowhere. where did this case come from? and i would not be surprised if many people in the american reading public ask themselves when a case comes down like austin or rich and i where in the court does that come from and why does the supreme court think it's business to be deciding that? >> let me add another personal note here. >> i'll have to have you draw to a close before our c-span friends. >> i think, for example, that bush versus gore was one of the worst covered supreme court decisions in my time, my 50 years of covering the supreme court, and that's because people did not understand through the media what was actually going on there as a constitutional matter, seeing it only as if it1

>> this weekend, another chance to see key moments in the case with judge sonia sotomayor. saturday, 7:00 p.m. eastern, and sunday, 10:30 a.m. eastern, on c-span, c-span radio, and always on c-span.org.

>> an update now on the progress of health-care legislation in congress. here is a capital-a reporter with more. -- a capitol hill reporter. >> this week, regarding health- care legislation, why do we not start with what happened in the house this week? .

they are worried about costs, particularly the long-term cost. >> likes to dig into the house a bill. >> they are the ones that we are seeing in the senate, too. there will be generous subsidies to help the uninsured get insurance. they have shared responsibility. the basis is that everybody pays what they can in the government pays the people who cannot pay. people will be required to have insurance. if they do not have a, they will pay a penalty. it cannot afford insurance, the government will provide u.s. subsidies. employees will have to provide subsidies or pay a penalty. this is a big effort for small employers to cannot easily afford it. very small employers will be excused from this.

their workers will be giving subsidies to help them buy insurance. that is why they call it shared responsibility. individuals will have a responsibility. the government will have irresponsibility. there will be new exchanges for people can go into some variety of plans. one option will be a public plan that will be sponsored by the government feta that will not be the only plan. there will be another a private plans. the public plan will have to compete with the private plan. it will pay more than the prevailing rates. according to the cbo, not many people will go into the private plan because the will not be that much cheaper. -- into the public plan because it will not be that much cheaper and a lot of these accusations of hundreds of millions of people will go, according to the ceo, it will not happen. >> us talk about the process.

the health committee approved its version this week. what is the next step? what we are all waiting for the senate finance committee. they have considerably more interest fiction in the senate than the health committee. they have jurisdiction over how to pay for it. when we talk about saving money and raising money, those are the two things the finance committee has to do. saving money really comes from the two big health programs, medicare and medicaid. they will find out how to save the money. because it has jurisdiction, and they have to figure out how to raise the money. they have been meeting mostly behind closed doors. max baucus has been trying to do this on a bipartisan basis. it is taking a long time. it is tedious. they keep coming out and saying that we are making good progress.

one of the things they were moving close to a bill, one of the ways they are going to finance this was by using money that they would raise from starting to tax health care benefits for highly paid workers or for people who had very generous health care benefits. the president has made clear that he opposes that. they are a bunch of polls that show the public opposes that. harry reid urge a max baucus to take off the table. elected to under -- $320 -- 320 -- $320 billion hole in it. >> water the cost estimate for the proposals -- what are the cost estimates for the proposals? what they are trying to keep them around to $1 trillion. it will cost about $1 trillion over 10-years. they would try to reduce

spending in the health-care system. over the long term, they want to try and make changes to the health care system so this would not only pay for itself, it was start to lower health-care costs. that is a different issue. it is not something the cbo scores. >> is there a time frame for getting these bills approved? >> the time frame for that is this year. the timeframe for getting through the house and senate was supposed to be the august recess. a look like the house is going to make it. the prop -- the senate is probably not. >> how involved is president obama in getting his measures through? >> he is the head cheerleader. he is only now just offering up a proposal that we give the independent medicare commission some more teeth to urge their

recommendations for cutting costs and make congress a vote on this every year. that will be one way of injecting more cost cutting into these proposals. over the long term, the concern is what happens over the long term. >> you can hear her on national public radio. thank you for your time. >> you are very welcome. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009] >> some of today's developments on health care legislation. first, president obama talks about his health care plan. we will hear from house democratic leaders and timothy murphy. then the house commerce committee begins marking up a comprehensive health-care bill. following today's passage of

health care legislation, president obama spoke in favor of passing a comprehensive bill. from the white house, this is 10 minutes. >> i realize that washington is often focus on the 24-hour news cycle and said the long view. that is what is going on right now when it comes to health care. i want everybody to step back for a moment and look at the unprecedented progress that we've already made on reform that will finally lower-cost, guaranteed coverage, and provide more choice. of the last several weeks, we have forged a level of consistent around health insurance reform that we have never seen before in this country.

in may, we are able to bring together health care providers around an agreement to do their part to increase the annual rate of healthcare growth by 1.5%. that will save us $2 trillion or more over the next decade in lore costs for all of us. a few weeks later, we got the pharmaceutical industry to agree to $80 billion in spending reductions over the next decade. reductions that will make prescription drugs more affordable for seniors. that is part the wide the aarp has endorsed our efforts. last week we reached an agreement with hospitals to bring down costs by another $155 billion. just this past week, both the nurses association and the american medical association representing millions of nurses and doctors across the nation in

our health-care system best announced their support for what we are trying to do. we've also built consensus around specific reforms on which there have not been a consensus before. let me list some of them. ñthe commitd senate to of worked long and hard to make this progress. we are now at a time where most everyone agrees that we need to invest in wellness programs that can save us money and help lead healthier lives. we have an agreement on the need to simplify the insurance forms and paperwork that patients have to fill out every time they go to a hospital or see a doctor. we have an agreement on the need to reform our health-care system so that if you lose your job or start a small business you can still get affordable health insurance. we have an agreement on the need to burda and insurance companies from denying coverage to

americans a pre-existing medical conditions. we have an agreement on the health insurance exchange, a market place for people can compare prices and quality and choose the plan that best suits their needs. this is what health insurance reform will mean for the average american. it to me norcross, more choices, -- will mean lower crosses, more choices, and more accountability. you will not have the word bopping priced out of the market. you not have to worry about one illness leaving your family into financial ruin. americans will have coverage that finally has stability and security. american said do not have health insurance will finally have affordable options. the city areas where we agree right now. -- these are the areas where we agree right now.

now we need to get over the finish line. part of this is figuring out how to pay for it. health insurance reform cannot add to our deficit over the next decade. i mean it. but me repeat, health insurance reform cannot add to our deficit over the next decade. i mean it. already, congress has embraced our proposal to cut hundreds of billion dollars in unnecessary spending and unwarranted giveaways to insurance companies in medicare and medicaid. we actually believe that 2/3 of the costs of reforming health care could be achieved through these savings alone. of course, that still leaves 1/3 of the costs in order for us to cover all americans that we will still have to find a way to pay for. the key committees are working diligently with the white house

to see if we can come up with an agreement on that remaining 1/3. the bill i signed will also include my commitment and the commitment of congress to slow the growth of health-care cost over the long run. this is a separate issue. there is the issue of how do we pay for health care reform immediately, but how do we also banned the cost curve is so that we are not seeing huge inflation over the long term that would not only make any health care reform package more expensive 15 years out but would also make sure that people who want nothing to do with the government programs, how do we make sure that their costs are under control as well? i realize there is going to be a lot of debate and disagreement on how best to achieve the long- term savings. car proposals would change

incentives so providers will give patients the best care, not just the most expensive care, which will mean big savings over time. this is what we mean me say that we need delivery system reforms. i proposed to congress -- and i am confident they may adopt these proposals -- that independent groups of doctors and medical experts will oversee long-term cost saving measures. every year, there is a new record that he tells how much weight and inefficiency there is in medicare, how best practices are always use, and how much money could be saved. this report and a sitting on a shelf. what we want to do is force congress to make sure it that they are acting on these recommendations to bend the cost curve each and every year so

that we are constantly adjusting and making changes that will reduce costs for families and for taxpayers. we need an independent group that is empowered to make these changes. that is something that we have proposed. i am confident that if we work with the formal experts in the field, we can find a way to eliminate waste, slow the growth of health-care costs, and provide families more security in the long term. i realize that the last few miles of any race are the hardest to run i have to say now is not the time to slow down. now is certainly not the time to lose heart. make no mistake, if we step back from the challenge at this moment, we are confining our children to a future of skyrocketing premiums and crushing deficits. there is no argument about the. if we do not achieve health care

reform, we cannot control the cost of medicare and medicaid and we cannot control our long- term debt and our long-term deficit. that is not in dispute. we are going to have to get this done they go if we do not get health care reform done now, no one's health insurance is going to be secure. you are going to continue to see premiums going up at astronomical rates and people who lose their jobs finding themselves in a situation where they cannot get health care. that is not a feature that i except of the united states of america. that is why those that are betting against this happening this year are badly mistaken. we are going to get this done. we will reform health care. it will happen this year. i am absolutely convinced of that.

i the the that members of congress -- i believe that members of congress are prepared to work as hard as they can to make this happen. i am grateful for the work that they have already done. i am confident that we will be putting in a lot more hours and there will be a lot more sleepless nights, but eventually this was going to happen. thank you very much. >> [unintelligible] >> democratic party leaders in the house held this news briefing to talk about their plans for health care. this 25 minute event include remarks by nancy pelosi.

>> good morning. the congress has made starke progress on health insurance reform that will put patients and doctors of back in charge and enter accessible health care for americans. this level of progress has never been made before. three major committees of the house and senate have reported legislation already. the health committee in the senate passed this bill wednesday. last night, mr. rangel's committee was in until the wee hours of the morning. he will report on their success. mr. miller was there until 6:00 a.m. and back and 9:00 a.m. to finish off the boat. they have worked very hard and

very wisely on behalf of the american people. we are here to celebrate success that they have had as we make progress and move forward. the goals that we have our universality, affordability, and accessibility. we want to do this in a way as we continue to lower costs and strengthen the package. we continue to build momentum as we go along. expressing support for the act, the ama wrote that the legislation include a broad range of traditions that are key to a comprehensive health care system. if you do not have that letter, you should see it. it is an eloquent testimony to

the merit of our house bill. congress will continue working with president obama to provide stable prices, secure coverage, and quality care for all americans. we have the support not only of the doctors and the nurses. we certainly have the support of the american people. i am very pleased to yield to the chairman of the ways and means committee. mr. rangel? >> thank you. i feel privileged to be a part of a great orchestra called the house of representatives with the great auk russia -- great orchestra leader. we were able to come together to get this great ship that the

president wanted to get out, which is national health insurance. we feel so proud that we will now be able to join the family of nations where we can show that we care about the health of people. we care about the quality of people. we will be able to say that whether young or old or black or white, that in this great nation, you will have health insurance. it is not just keeping down the price of health insurance. it is also making certain that america can continue to be competitive. on this ship, what we have been working on is to make certain we have a health system we can be proud of, that we can have primary care, that we can have hostilities that provide quality care, that we can have people going into the business to make life better for so many people.

it is so important that we have done this. the matter what the president's hopes and dreams are, unless we get the ship out there, we can not perfect it. the battle has just begun. thank you, madam speaker for having the confidence in us and allowing us to work to reach the goal that we have them. we look forward to getting this bill passed. >> thank you very much. i am pleased to yield to another distinguished chairmen, congressman. chairman miller of the education and labor committee. pete stark has joined us. -- keith starke has joined us. so much has happened. i have been looking forward

here. members will coming go. we will be sure to acknowledge the leadership of mr. cliburn. i am pleased to yield to the chairman of the education and labor committee. >> thank you. thank you for all of your leadership and drive on this issue that is so important to our families and our nation. i want to congratulate the chairman rangel and keith starke for the success they had. into this little longer. i want to think rob andrews for all of his health. we have a long and exciting evening. after so many years of talking about and working for universal health care, we had an

opportunity to vote for universal health care that will lower and reduce the costs in the future of health care to families and businesses, the dramatic increases in the cost we heard over and over from our members last night are crushing family last night they got to vote for health care that would reduce those costs. they got to vote for health care that will be available for families forever. no matter what happens to them, whether they get a new job or get a divorce or a terrible illness, they will not lose their health care. never again will they be without health care. that is what it was about. that is what our members understood. never again will people have caps on how much their insurance company is going to pay for them so that there is just -- so that they are just one illness away from bankruptcy.

that happens to thousands of family in this country. our members spoke out about the fear that families led them. about the fear about whether not their children will be covered. with the of code/9 in the passage of the bill, -- with the votes last night and the passage of the bill, we will make it affordable for small businesses and ensure that our economy will not dedicate more of our resources to health care that is not giving us the kind of courage and support the families need. that is one we got together at 6:00 this morning. we got together to talk. we just cheered at the fact we are able to participate in this very historical evening. it takes is on a major step forward thank you very much.

>> thank you very much. chairman waxman is on duty. we are having votes now. we may have to go in and out. we think chairman starke and chairman anders. -- andrews. as we have seen today, there continues to be a great momentum to pass health care reform even at 6:00 a.m. in the morning. it is also gaining momentum outside the congress. hundreds of physicians know firsthand that health care reform is not an option. failure is not an option. the american public is urging us to pass this bill. we are going to respond.

they elected a barack obama to pass this bill. they elected this congress to pass this bill. there is no doubt that the bill will have changes as it moves through the process. i would be shocked as a legislature if that was not the case. it is a work in progress. we have made very cigna began progress as a 6:00 a.m. this morning. -- significant process as of 6:00 a.m. this morning. we will not waver in our commitment to bringing down health-care costs. it is thougse high cost of bring such a burnham. -- such a burden. middle-class americans are paying other's bills. they need to be in the system. we are moving toward that. we want to make all americans have access to affordable and

quality healthcare. we need to build on the cost containment measures we already have. there are substantial reforms that have been put in by these two committees. the american people are demanding health care reform. they know that we cannot go on much longer with such a truly broken system. do we have good health care in america? we do. it is not accessible to many. it cost twice as much as most countries. it bankrupt's middle-class families, it drives down -- drives us to debt every year. we need to restore it piece of mind that americans deserve. no family to go to sleep at night and worry about their child getting sick and not having access to health care. for all those reasons, we are going to pass health reform.

as the president recently said, we have been talking and talking and talking about fixing health care for decades. six decades. the other day, i said six decades of a single -- of dingle. he is the leader in this. these are leaders in this effort. and no one has led more forcefully than our speaker. these next pivotal month will finally be our chance to do this. we will. >> thank you very much. [applause] >> and we will. i like that. you ossian -- you also mentioned mr. dingell.

i think it is important to note that some of you know that he said yesterday that the endorsement of the american medical association is not only great for this legislation, it is historic. not since the '30's when the country began the debate, the ama has never endorsed. the ama has never endorsed a health care reform bill. the they have endorsed the house legislation. as we go forward, as i mentioned before the endorsement of the nurses, so many organizations on the list continues. we are very powered -- proud of the reform. we are very proud of the cost savings. of course, we want more. we will not take any questions.

you ask the first question every time. somebody new. >> [inaudible] [speaking witout microphone] >> it was not elliptical. it is unfortunate that they could not come together with one bill the we could negotiate. this is just the beginning. we do not know what else is going on. if you listen to the three democrats that did not vote with us, you get the impression they were waiting for the opportunity to be able to do that. i felt very comfortable as republicans and democrats that

they recognize the need to get health reform. we are not there yet. >> [inaudible] >> yes, we will. >> i concur. throughout our very long 20-hour mark up, we accepted a number of amendments from the republicans. we worked on amendments that we did not accept. the staffs are getting together to do that. i am not sure that they ever end of voting for the kind of health care that president obama has presented to the nation. our members are in full force to come to the floor and to support

this legislation. they will all report for duty at the time the vote is taken. >> we expect that mr. mack's men will -- waxman will put his bill out next week. we will prepare for our role to take it to the floor. when the american people see what this means for them in each individual congressional districts, over 100,000 people in many rural areas will have health insurance that did not have it before. over $100 million meeting the needs of public health hospitals will be there. just a very few people called upon to help with the revenue. it is pretty exciting. if this transformation. it will make a difference. we have members from across the political and geographic spectrum. but their concerns are regional.

we believe that they will be addressed as we go forward. >> [inaudible] [speaking without microphone] >> the letter that you are referring to was one that was sent to the three chairmen. he said of an " i wish to express the strong support to the health care savings proposal and the tri-committee health care forum discussion draft." virtually all of these policies are consistent with those put forward by the administration

and are essential to our shared goal of reforming health care in a fiscally responsible manner. adopting deficit neutral health reform is not enough because it would perpetuate a system which a best practices are universal. i commend you for proposing delivery system reforms that will begin the process of transforming our health system so that quality is improved, cost growth is contained, and waste is reduced. it goes on to say some other things. we agree -- i urge you to maintain these policies. that is a very positive letter. you are talking about medpac?

>> [inaudible] >> you are talking about medpac. that is something we have been discussing with the administration. i was missed. i wish mr. hoyer were back. he has some concerns about the. -- about it. we need to figure out how we could have it come together so that we get the savings that medpac would put forth, but irresponsibility of congress would be reflected -- but the responsibility of congress would be reflected in it. i am not here to announce that is final. it is something that under certain circumstances we will be receptive to. >> we will see -- our plan is to have something on the floor. we have to see what the senate is going to do.

the idea that we may change medpac is something we may need to take up. it may be taken up in energy and commerce. we are on our schedule to bring up the legislation before the break. we continue to be on that schedule. >> [inaudible] >> i've not seen the letter read

it yet. i've so many letters in my desk. i need to regularly -- i meet regularly with the freshmen. i know they are concerned about small business. some of those changes have already been made. in terms of lifting the limit in the rest. we will see what people are putting forth and to stipulate to a state of facts about what really is the case. we will go forward. i have full confidence, i have no doubt, that we will come to agreement on these issues. this legislation -- for example, the congressional district where over $100 million went to public hospitals and 123,000 more people would be insured, 23,000 small businesses would be given tax credit to

provide health insurance. the public has to know what the up side of all of this is and quantify it. it is really historic. it is transformational. it is important and relevant to the lives of the american people. while we get everybody's letters and take into consideration their concerns, if you take into lower costs and better quality and enhance tauruses, -- enhanced choices, where very respected -- receptive. >> [inaudible] >> i know that. i am very happy about that. >> [inaudible] >> are you suggesting that i

should be suggesting something for the president to say? i would not even presume to go to the place. we are in very excellent shape. this is the legislative process. at the bill takes shape, people say ok as it is coming more clearly into focus. the committees have acted upon it. here are some suggestions we have. this is the whole dynamism of what we do here. this is what we came to do. many of us in our careers came here to pass health care reform for all americans. we will do that. we will do it with the full participation of our caucus and suggestions. unfortunately, we have a votes.

>> on fridays "washington journal" we talked to timothy murphy about health care policy. he is working on a version of health-care legislation. this is a half hour. host: thank you. an hour left to washington journal. good morning. voting late yet, early this morning to approve the tax provisions to approve $544 billion new taxes on families making over $300,000 a year.

what's ahead for the energy and commerce committee? guest: we'll go through a number of issues on amendments and review a wide range of things. commissions to volunteer at community health centers. should we have a government run plan or other ways of doing this? the key is the basic difference is reforming or paige the system. host: you were kind enough to bring by the bill itself. energy and commerce and hr 3200. i want to move it to get a look at the spien and the thickness

of the reading that you and your staff have to do to understand this. guest: think of most phone @@@@d something this important that is going to affect our health, i want to make sure we are not seeing this as the urgency takes president. president over the 30. i want to make sure we are taking real reforms. sure we are ñ reform.

host: do you think this is taking more time? guest: i think we should be taking more time. it's extremely important. that was on an earlier version. we are not going to have a score on this bill. it's like buying things without looking at the price tag and analyzing it. i want to make sure we are doing the best for people's health in america. your hearing will be on c-span.org beginning at 10. you gave el in with headline this is@@@@@@@@@ @ @ @ @ @ @ @

president himself said he is not interested in signing a bill the when not reduce spending. the cbo is saying this will increase the spending. that is a concern for members across the aisle to say how are we going to pay for this and still deliver health care. aisles. we'll take some calls. tim murphy here until at least 8:30 this morning. ulys, texas. caller: thank you. i would preface this by the fact that republicans are operating from a memo giving them talking points about government mandate

yrs healthcare. in pennsylvania, you had a rise in @a) $12,513. the congressional budget office says a over the next four years, it will increase another 20%. in nine years, it'll be another 70%. in terms of raising the question about health care, i think that you have to start talking, rather then -- for example, having all the congressman going to the new health-care plan. >guest: yes, it means it is goig up. this is about fixing the problems and not financing them.

look at the number of things. the new england health care institute reviewed the $2.40 trillion. about 700 billion of that is the wrong medication that the wrong times. it is inappropriate use of care. s, inappropriate use. we need to go as medicare and medicaid and clean it up. >> what happens is that by saying the government is going to pick up the tab, it doesn't get. i'll give you an example in pittsburgh. introducing rehospitalization.

you can reduce it by 70% by managing diabetes differently. we have to approach healthcare in terms of real reform. one of the reasons health insurance costs so much is brauz there is so much unmandated. that's another reform we need to look at and shop around. host: palm springs, texas on the independent line. caller: good morning. i don't have a lot of questions to ask about the healthcare but i do have a question. i want to know when you holdup a big stack of paper like you've got there right now, does the

house printing office actually print that much paper and put it on every senator or congressman's desk. guest: we received this on our desk yesterday. . you can get pieces on the internet. my website has information on that. i understand there's a lot of reference in here. host: we'll have this linked as well later on. daniel, a republican caller. caller: i think when it comes down to it. if we would just stay healthier

in the long term, that would help out in the united states. the healthcare reform is something that needs to be done. why do we feel like we have to it. is any of that address in the bill? guest: there is an area for prevention. he is bringing of a point of our personal responsibility. if he to voluntarily do on health the things your life like small, should you have a higher

premium? this bill says no. when you add other things to come should we have more transparency, with the bills are going to be a, should be able to shop around the nation to find more cheaper plans? host: congress now reports the bill establishes exchanges. tell us more about that. guest: i wish anymore about it. you would be able to go to some yet to be designed website where you could look at insurance policies. the government plan would have tended to amend it said it would have to cover. the government will be able to bring the prices down. iver.

private plans would be stuck in their state. it's an unfair advantage. we ought to open up this marketplace and get information like a consumer report. you ought to get that oven healthcare and return it in that situation. >> welcome karen. caller: i listened to a lot of debate last night. guest: god bless you for doing that. caller: it's pretty trying. i don't know why we are consulting with republicans on any of this. you all sound like you just fell off the turn ip truck.

i'm 58. my entire lifetime, we ought to know by now if we are going to sa save any money. my mother is on medicare, we go to any doctor she wants and she has a supplemental. my sister has lived in many countries. she said the best system was in france. i don't know why we are trying to reinvent the whole here. my question for you would be. you are talking about how we are going to pay for this. isn't that decided by the finance committee? guest: we all have a responsibility to pay for it.

one of the great benefits in a country like ours is the diverse opinions. france has some good things but also a lot of problems. medicare and med i credit came up, there's been no fundamental reform to get those things to work better. out of those 450 bills, only 12 passed. we recognize that we need to have a system that continues to improve. i worked in healthcare all my professional life. i bring that expert he's to congress. i don't think it is a matter of i don't agree with you, shut up to the republicans. we all have an opinion. one side of the aisle doesn't

have eamon oply on truth and examples. host: two different headlines this more host: what are you hearing in guest: they are concerned about the cost. they still want their doctors to make decisions. still want their sdr r doctors to make the decisions, not the bureaucrats. part is looking at what the cost will be.

especially for sma a)gz caller: i have been listening to all this stuff about the health care plan. my question is, you know, and the year saying that it is going to be a tax increase on a lot of people who make substantial amount of money. they are also saying that you are going to be required to have health care insurance by either a private person or by the government. are insurance by the person or by the government.

how is it justified to tax people with certain of money or are the people with insurance going to be required to pay for it? . guest: they are paying an individual rate and paying employees. they come back and say, they cannot suddenly have a jump what they are paige employees is not host: the state is trying to

eliminate the costly service. the "new york times" massachuset massachusetts. what is that and is the house learning any lessons? guest: we need to learn from massachusetts and the negative side is that people don't have a doctorháo handle the ore he energy and commerce will spend a long time discussing those cost increases and make it better healthcare and not just pay for what is there. host: you come of the practice, is it any different from that of

a heart disease has downhilled the risk of depression. that doubles the cost of healthcare. improving the healthcare is making sure there is an integration of healthcare. their information exchanges hands. when that doesn't happen, healthcare costs good up. host: from florida, good morning. caller: i've been on. i've had three operations.

a hernia, hemorrhoid and tonsils out. i have paid all my bids. i added them it came up to $91 a month. i don not have a supplement. according to the republicans, medicare is socialized medicine. rather than write this big bill that will go nowhere and cost the taxpayer a lot of money for printing, you know you are going to add -- it is not -- colleges all -- all it is going to get a straight republican votes. guest: 1 of things with medicare

is that you are allowed to shop around. government pays the bills and tries to negotiate prices. this new plan will not have that. what some are pushing is allowing a medicare-like plan were people have some support changing to lower -- based on your income level. it gives a little more flexibility. we will see if the proposal goes over. host: we now good to new york city. welcome. caller: i've been trying to get through for many months. i would like to make a few points. firstly, the europeans have agreed healthcare, france, germany, if they have taxes and they drive small cars. i do not know what we do not have the political backbone to

slap a dollar per gallon tax on gasoline. i realize there are political problems with that. i paid for my health insurance out of pocket each month to my employer. it is expensive. i cannot give any affirmation pricing was from a carrier. . . n. the private plan in new york city would cost me double. through aarp, i can 0 new york through aarp, i can 0 new york city has a plan healthy new york. it's clear, straight forward and simple.  make a little too much money. i would advise insurance claims,

you put people back to work. i think that's an idea that should be floated about. guest: i like that idea and it is one i support in terms of letting you shop around. could you imagine if you are making another. the same thing happens to news pennsylvania. we have two major insurance plans. there are other small ones but the two major ones and that's it. you should be able to shop around. make sure the information out there is clear.

host: this is a republican interpretation of the plan. another one from the chamber of commerce. one last plan as we pull this off. this may be the most confusing. this is from where? guest: the insurance companies. we haven't gotten there to make it simpler. host: this morning. d. q. says they won't support the bill. mike ross of naeshg leagued the boou booufr. what sort of political challenges does that present? guest: it's important.

it sends spending out of control. if we allowed people to shop around and get support. we want to help those who cannot get insurance. that's where we'll have more debate. host: we'll remind our viewers. rep tent. host: good morning. calling from georgia on the independent line. caller: i have a short question. i had insurance. i do not have insurance now i am a teacher. i was diagnosed with post poli

everyonei;é@@@@@@ there used to be clinics where you could actually go and get all of the tests under one roof. there would be the variety of medical expertise there that would also follow through because of this test and he had this illness. but because the insurance companies are no longer able to do that -- in essence, the insurance companies are the ones controlling what you can get, when you get done, how you can accepted or not. .

the xhounity health centers i bloeb we should be investing more in. they are able to deliver good, so one of the things i have been working with, we have allowed doctors to volunteer. there is a 20% shortage rate. doctors give their time for these things, too. it can be a medical home for many people. they can continue to get their care. in all of this, we have to make sure we're not replacing one bureaucracy with another. we want plans to be personal, permanent, and portable for you. >> a question from twitter. he asks, a government plan will have an advantage, isn't that the point? competition will lower cost. >> that is not competition. the government will have the advantage of pulling people together.

let's say you are a carpenter. why not join in with all the carpenters and america? maybe your alumni of a school or someone in your church wants to join together. that is when you have purchasing power and real competition. one plan says that it will offer you more for the price. >> one more quick call from tim murphy, this is marie in baltimore. >> my question is, what is the rush? it is a big, long form that you have to read. how can somebody even digest that? >> a couple of things. on the one hand, we want to make sure that people are covered quickly. the plan does not take effect for a few years. the taxes start, but the rest doesn't kick in yet. by 2017, there will be a mandate.

there is not a significant russia. it is not like people will give up their plans in november. we have time to clean up the system. i hope we can accomplish that. >> congressman tim murphy of pennsylvania. that is live at c-span.org. >> saturday morning on "washington journal." bob cusec from the hill newspaper. we will talk with the education president jaime merisotis on the obama policy on higher education. and roger olsen will discuss the u.s. government's demand that they disclose the names of their wealthy american clients. "washington journal" is live at

7:00 a.m. on east -- on c-span. coming up on c-span, more from capitol hill today on health care as the house commerce committee begins marking up a comprehensive health-care bill. then, white house economic adviser lawrence summers talks about the state of the u.s. economy. and he is followed by the president's remarks today on health care policy. >> this weekend, the nation's governors take on critical issues facing their states. live coverage of the governor's summer meeting on saturday, sunday, and monday on c-span. dodge the house energy and commerce committee begins work on health-care legislation. two other committees approved parts of the bill that has been named america's affordable

health choices act. henry waxman chairs this committee. this is just under two hours. >> the meeting of the committee will come to order. pending an amendment and the nature of a substitute, and managers amendment, the first would come from the republican side. >> mr. chairman, republicans are locked, cocked, and ready to rock. our first amendment should be dr. burgess of flower mound, texas. dodge -- >> e. have an

amendment at the desk? and has it been available for the minimum two hours? >> the amendment has been ready for three weeks. >> cut the reserve a point of order? >> the clerk will report the burgess amendment. >> amendment offered by mr. burgess, at the end of the following division. medical justice. >> without objection, the amendment will be considered as read. the clerk will distribute the amendment, and i will recognize mr. burgess to speak on his amendment. >> thank you, mr. chairman. today, so many doctors across the country are forced to practice what is known as defensive medicine. but they face the constant threat of lawsuits and unsustainable medical liability insurance rates.

that result in millions of dollars of unnecessary tests and procedures. medical professionals are retiring early, because staying in practice is no longer financially feasible, contributing to our nation's doctor shortage. it is a growing crisis that is pushing affordable health care beyond the grasp of millions of americans. my amendment is straight forward. and across the board change, just like the medical justice system we have in texas. it lessens the threat of overactive trial attorneys and american lawsuits. in texas, we passed successful legislation which has controlled the explosion of medical liability suits and brought things back to earth. it caps noneconomic damages at $250,000 for the doctor, for the hospital, for the second hospital or nursing if one is involved, for a total aggregate

counts of $750,000. there is a cap on wrongful death awards at $1.4 million. expert opinions may only be provided by active, practicing physicians. i cannot overemphasize how important this is. in virtually every town meeting i have with doctors, and i have done many this past year, one of the main complaints is that the plaintiff's side can produce a hired gun from outside of the community who is not even in active practice or the type of practice or the question of a lawsuit has been given and will offer testimony in support of the plaintiff, always for cash. ash. payment of future damages should be on a periodic or a cruel basis. and limitations on liability for good samaritans providing emergency health care prick i will never forget shortly after hurricane katrina, many people

fled to the louisiana, mississippi gulf coast and came to the metroplex. we had retired doctors who either couldn't come down to the various centers that were set up. they either couldn't come down and help for fear they would expose themselves to liability, or if they did it anyway and themselves in significant financial peril. all to help their fellow man at a time of a national, of a national medical crisis. lawsuit reform in texas has created a magnet for doctors to come to our state. it has provided the funding mechanism to approve access to care and enhance patient safety through significant liability savings. in 2003, with texas passing the medical liability reform, the results have been better than expected. recent results posted by the texas medical association show that charity care by texas hospitals rose 24% in the three years following these reforms. texas has licensed nearly 15000

new positions in the five years since reform, and 36% increase from the reform days. 33 rural counties have seen a net gain in their emergency room doctors, including 26, 26 counties at reducing had no emergency room doctor now have an er doctor because of this reform. after years of decline, the rights of medical specials are growing again in texas. what's important to me in my field of obstetrics, we saw a net loss of 14 obstetricians in the two years preceding reforms since then we have expensing it came under a gain of almost obstetricians are 26 rural counties have added an obstetrician, including 10 counties that have previously had none. now, a vote against this amend it will indeed fulfill the commitment to the american trial lawyers association, that perhaps is contributed to some of our campaigns over the years. so instead of making it easier for doctors to practice medicine

we will vote against this amendment and make it easier for attorneys to file lawsuits. a vote for this amendment will tell american doctors that we are committed to putting in place reforms that will allow them to do their job, free of that government or special interest intervention to a vote for this will tell america's patients access to high quality affordable health care is not just a campaign slogan, it is in fact our goal. i yield back the bounds of my time. >> the gentleman yield back the balance of his time. who seek recognition? mr. pallone. >> thank you, mr. chairman. i'm going to insist on my point of order without reference to how i personally feel about the amendment. the amendment contained provisions obviously on malpractice such as caps on damages and a jury instructions. and these are not sufficiently tied to health care policy. in other words, they fall outside of our jurisdiction and basically within the scope of

the judiciary committee. and therefore outside the scope of the bill's referral under rule 10. i know the gentleman feels very strongly about this and this is certainly something that has been debated in the media and with the press. but it doesn't fall within this committee's jurisdiction, and therefore i insist on the point of order. >> the gentleman asserts his point of order. >> mr. chairman? >> mr. barton. point of order. >> i want to oppose mr. pallone's interpretation on the point of order, and you can correct me, mr. chairman, if i'm wrong but i believe this committee and past congresses has passed liability reform measures at the full committee level, that included certainly the subject issues. and doctor burgesses amendment, and in some cases some of the

specifics. so i don't know why it was an order in past congresses it wouldn't be in order in this congress. there are certainly things in the bill whin the jurisdiction of the committee, and there are things in the managers substitute that are poorly in the jurisdiction of the ways and means committee and they are in the mm and the nature of the substitute that we are considering. so i would respectfully urge you to rule against the point of order, and you may vote against his amendment but at least allow it to be voted on. >> further discussion of the point of order. >> i will yield. if i have time. >> if i could, just bring up under rule 10. this committee has jurisdiction over legislation of all insurance companies. and certainly, certainly we have regulation of interstate

commerce is within our jurisdiction. i don't think anyone would want me to argue that it's not. to other committees in the past 24 hours have made similar legislation to this within their jurisdiction when clearly it falls more in the jurisdiction of this committee and an educational workforce and ways and means. so i would just make the point that this, this is germane to our committee. this is within our committee's jurisdiction. is an extremely important point. if you feel you have to vote against him in it, then that's your conscious, but i think striking this down on technicality really, it will limit the future ability to discuss things in this committee and even more to the point i think it sends a wrong message to the people that we are trying >> mr. chairman, who will seeks recognition? >> i would like to follow up on the point that if, indeed,

members voted on liability reform on this committee, the question for you is, isn't it true that we have voted on liability reform in this committee? isn't that true? >> if his point is true and you have confirmed that we have voted on it, why would we not vote on it again? what is the point? i don't think is confident -- his comment is germane. >> who else seeks recognition on the point of order? >> mr. chairman, i would encourage you this is a moment in time for us to address the issue.@@@ %,rc2 he seeks to lower costs and increase quality. to leave medical liability reform out of that denominator is a huge error on our part. i would encourage you, mr.

chairman, that this committee has had jurisdiction on this issue. if other committees want to work that's very, it's very pertinent that indiana has -- it has the oldest system on medical liability in the country. and we, the state legislature back in 1975, we cap medical malpractice. that cap has been raised twice, but is a system that works. the state contiguous to indiana had very high medical malpractice premiums, and their doctors are struggling. and this is a moment in time in our country that if we are going to address this on a national basis, mr. chairman, i think it is a very appropriate that we allow the gentleman's amendment to be heard and for there to be thorough discussion. and i would urge the chairman to make this amendment in order. i yield back. >> the chair is ready to roll, but the gentleman from georgia wishes to speak. i would like you to speak on the point of order.

>> on the port of order. mr. chairman, and since i don't know what you are about to rule, i feel compelled to add my $0.02 in this also. you know, it's estimated on the low end that liability reform, fair liability reform could save the health care system $70 billion a year. and when you have, we had a director of the cbo and you are saying that this bill will not be in the growth curve of all the expensive health care in the right direction and testified before the senate budget committee and senator conrad says the same thing. i would think our committee would be looking for every possible way to read into that growth curve. and this would certainly go a long way toward that. i yield back and i encourage this amendment. >> thank you very much. the chair is ready to rule. we have inquired of the parliamentarian, and notwithstanding the merits for or against this amendment, we

have to follow the rules. we asked the parliamentarian whether this amendment would be germane to the pending matter. and the parliamentarian has told us that because the amendment, legislates in the area that is solely within the jurisdiction of the g. chari committee when it refers to jury instruction, or defined negligence or deals with the question of damages, that the amendment offered by the gentleman from texas is not germane to the bill. now, perhaps the amendment can be rewritten in a way it would be germane to the bill, but this amendment that has been offered is not germane. and therefore the chair has to rule under the rules that it is not in order. we now proceed for further amendments. mr. pallone, do you have -- mr. pallone, do you have an amendment, i want to ask you, is

it an amendment to division see, and was the amendment submitted with two hours of the time for committee reveal, and are there copies for distribution? >> just. >> let's have the amendment distributed and the clerk, clerk will report the eminent. >> amendment to the eminent in the nature of the a substitute to h.r. 3200 offered by mr. pallone in new jersey on page nine, 968 beginning at line 19 strike quote or other population or subpopulation. >> without objection, the amendment. >> point of order. >> just reserve a point of order, that's all. >> the gentleman from texas reserves a point of order. without objection the amendment will be considered as red and the chair recognizes mr. blown for five minutes. >> thank you, mr. chairman. i'm referencing this beyond this amendment to the public health title.

omnibus, not on the bus. i think ominous is a better term. k @ @ @ @ j@ @ it will allow individuals with functional limitations to maintain their personal and financial independence. it will alleviate burdens on family caregivers. provisions will get at thede heart of some of the challenges that we face in the long term care sector. next, referencing health centers, liability coverage. we have included language that mr. green and mr. murphy has been working on to extend federal tort claims act coverage

to medically licensed volunteer who practice at federally funded health centers. this is something that we talked about at some of the hearings. community health centers are vitally important in providing care in underserved areas. positions, however, are often dissuaded from boller during their services at these health centers due to the cost of medical liability insurance. by extending the ftca coverage to volunteer physicians practicing at federally qualified health centers, we can increase the number of physicians serving in underserved communities. next provision in the omnibus refers to nurse managed health centers. to further increase access to health care in underserved communities, we have included light was proposed by ms. caps that would establish a nurse managed health center prepared by the health resources and services administration. similar to community health centers, this program would provide grants to entities to plan, develop and operate a nurse managed health centers in communities where there is a

lack of access to medical care. next, we addressed federally qualified behavioral health centers. in the omnibus, we have included a new definition of federally qualified behavioral health centers put forth by ms. matsui and mr. angle that will allow the centers to provide a basic set of mental and behavioral health services to underserved communities and will help ensure adequate capacity to serve patients with mental health needs. next is the reauthorization of fellow health and telemedicine. the omnibus include language spearheaded by mr. butterfield and miss states to reauthorize the tele- health network and tele- health resource center grant programs. these programs are aimed at reaching underserved and remote areas by establishing linkages between hospitals providers and patients in rural areas. next is with regard to trauma care. we included this caster, mr. towns and mr. rush is like which to provide grants to

trauma centers that will prevent downgrade by assisting the centers with uncompensated care costs, core mission services, emergency needs and information technology. we have also included some language in mr. rush recommended to aviaries were trauma centers have already closed. next with regard to emergency care. the omnibus include the provision recommended by mr. gordon to authorize the emergency care coordination center at h. h. s. the center will strengthen our efforts to promote federal state tribal, local and private sector collaboration and support to enhance our nation system of emergency medical care delivery. we have also included language authored by chairman waxman to create a demonstration program to strengthen er capacity. and then we have dental emergency responder provisions. there are provisions in this amendment that mr. stupak has been working on to strengthen our emergency response system to including dentist in the federal definitions of public health

worker and emergency response provider. though dems have gone through training in emergency care, they are rarely integrated into an emergency response plan, and this language will help remedy that situation. next is with regard to thank your. we have included provisions from ms. caps bill on pain care research and awareness. pain is the most common reason americans access to health care system and is the leading cause for disability. it's also a major contributor to health care costs. the provisions in the semantic would address this public health problem by advancing research into the causes and treatment of pain and expanding outreach and education of health professionals. next with regard to postpartum depression. we have included language championed by mr. rush to encourage continued research and educational activities on postpartum conditions. postpartum depression occurs after 10 to 15% of all deliveries, and the majority of patients suffer from this illness for more than six months. in its most severe form most

part of psychosis women ashlee suffer from hallucinations and delusions that can put them and their babies at risk. next is no child left@@@@@@ >> the time has expired, tuition additional minutes? >> i do. >> without objection, he will be granted an additional minute. >> is designed to test the feasibility of the nation's elementary and secondary schools as seasonable -- as seasonal and pandemic evacuation centers. influenza is the leading cause of vaccine-preventable death among people. it will help increase immunization rates and protect them from this disease. menu labelling. we have included language that mr. matheson has been working on that will require restaurants to label the total calories of

their items directly on menus and supervise a more detailed nutritional information to customers upon request. now we know why mr. matheson is so thin. this will help consumers make decisions on what they are eating and reduce obesity rates in the united states. but on the list includes language to reauthorize wise women, a community intervention program funded by the cdc that helps prevent heart disease and stroke by providing screenings and counseling for low-income women. secretaries a bilious heralded the program -- secretary sebelius and hurled the program. @ @s it includes a few minor technical -- >> the gentleman's time has

expired. >> i am not a speed reader, but i can read. i have tried to scan every page of this 70-some odd page amendment. there are some good things in here. some things that in and of themselves would be entire bills. the very first one, this section 3201, the community living, that appears to be a brand-new long term health care program. it's not paid for. one of the provisions here on food labeling in restaurants appears to be a national preemption of state labeling laws for restaurants. appears. i have to say. i'm not just saying that it is. given the fact the majority has had all year to put their bill

together, and right out of the box of the first amendment is a 75 page omnibus, i'm going to oppose it, reserving the right later in the markup if we defeatist some of the things put back in on a case-by-case basis. >> with the gentleman yield? >> sure. >> i just want to point out with regard to the class you mention as to pay for. it says that the statute, or that class act would not go into effect until a voluntary payroll deduction under the irs code is authorized. so it's totally paid for with a voluntary payroll deduction and the secretary would have to put forward otherwise we wouldn't put it into effect. it's a voluntary program paid for that way. >> i thank the german. i didn't see that. i didn't read the amended word for word.

>> if the gentleman will yield to me. we did make this amendment available to your staff last night. i understand your concern. this is a piece of legislation that's moving forward, and some of these things, i believe, have been noncontroversial and people have wanted to do it for sometime. >> i won't disagree there are some things in here that aren't. >> we have a vote pending on the house floor. so let's break for the votes and

>> of the committee will come back to order. the chair would recognize himself on the amendment. your amendments deals with a wide range of health issues

ranging from immunization programs to emergency trauma care. i know it represents the work of a number of members who have championed these causes. you have decided to take all of those proposals, which in my opinion, really should not be all the controversial because they involve reasonable public health matters. we hope it will prevent diseases and allow us to hold down health-care costs. the amendment has what is called the class act. can you tell us what it is? it is a great name. >> is a classy act, mr. chairman. i'm kidding, i'm sorry.

basically what this is is, people who have to get services because of chronic disabilities who now have to get services through institutional as asian -- institutional a station would be able to pay into a system with a payroll reduction, and after a certain number of years, if their health becomes in danger, they get a chronic -- they get a chronic illness or become disabled, it will be able to tap that and get services that would normally be provided by a hospital or nursing home in a community setting. people can finance over their life, -- >> it will help people long term? >> is a long term care system

for people so that it is paid for through their payroll. there is no cost to the government, because -- >> it helps people who voluntarily pay into this fund to be able to use that fund? >> and this is a major issue, mr. chairman, with the disabilities community that have approached this many times. he had -- he has approached mr. dingell. it is also something that, to mr. kennedy, has sponsored in the senate. not that i want to mention the senate, god forbid. >> is an issue that senator kennedy has championed. it is very much wanted and needed. very much wanted and needed. there are other provisions in the bill. they seem unrelated but they have all in common provisions that you and the staff felt were

worked out and not that controversy. the manual labor in for example is something that's now been agreed to buy all the stakeholders, that's s-t-a-k-e, stakeholders, restaurants, consumer groups, people can get information when they eat in a restaurant. there's emergency trauma care provisions, school based immunizations, telehealth reauthorization playing more role in giving people the ability to have assistance from health care providers and not in front of them but who can evaluate the medical situation and advise patients and their health care providers. the painter and management, there is a federal tort claims act for chc volunteers. is this to allow -- as i

understand -- those people who volunteer at a community center to be put under the same provisions as employees at a community health center. they would be covered by the federal tort claim law so they wouldn't be barred from volunteering and be required to get medical malpractice health care coverage for their volunteer period. i strongly support the amendment. it has a lot of good features in it. and i would hope members have had a chance to look at the amendment and would feel likewise. i want to recognize the gentleman from georgia, mr. gingrey. >> mr. chairman, thank you. i want to ask the author of the amendment, mr. pallone, going to page seven of his amendment, subtitle nurse health management

centers. i had to read pretty quickly through this. i didn't see anything in their regarding medical dr. max supervision in any way, shape, were formed in regard to these nurse management centers. could you give a little bit more explanation about that? is there any physician supervision over the centers, or do i -- am i correct in assuming that this is just albeit well-trained, advanced practice nurses pretty much practicing medicine at these centers free and independent of any other supervision? >> i'm going to defer to ms. capps since it was her bill. >> i appreciate the interest in this. the advance practice in areas where there are clinics there are provisions in the regulations that advanced practice nurses have the ability

to supervise and carry at this kind of decisions made in primary care. >> the gentleman would yield to n@hagain so i can ask -- and. i did not know what the lawyers in california -- i am sure it varies from state to state. would this provision be a federal pre-emption of all of the state laws regarding -- >> of course not. that is why is set up the way it is, as a voluntary -- applicable in areas where this -- these kind of provisions can be made. be made. >> and bayh thank the gentlelady and mr. pallone for that response. >> i yield back mr. chairman.

>> mr. deal, you wish to be recognized. >> yes mr. chairman, thank you. as i look over the 75 page amendment, i think i have counted as many as 13 separate pieces of legislation, which i think all of them have in one form or another been introduced as separate pieces of legislation. now, some of these i feel very strongly in support of. in fact, and a co-sponsor in some of the individual pieces of legislation comprise this amendment. some i have reservations about. i was glad to hear the chairman say everybody that fell under the menu and came to the agreement. i was under the impression after reading it the only way you could get out from under it was to have a blue plate special that didn't last longer than 30 days or 60 days and that was the only way you are going to be able to state the provision but may be those who would be affected by it have looked at it more carefully than i have. but i have a procedural question

of the chairman. mr. chairman, as i understand this amendment, the pallone amendment, is a second-degree amendment and therefore would not be subject to an amendment to wait in order to extract portions of it that might otherwise be considered objectionable. am i correct this amendment is not subject to being amended -- >> the gentleman is correct. >> i appreciate the response and i personally would have preferred, even though it may have taken a little more time, for us to be able to deal with these individual pieces of legislation separately so people could express their opinions on them individually rather than collectively. but i appreciate the gentleman putting forward many of these proposals encompassed within this amendment, and i yield back my time. thank you. >> let me -- if the gentleman

from georgia, mr. deal, if you want to decide the question on these different parts of@@@@@@@ >> do you want to take out -- something for separate consideration? >> i have heard expression, an indication that they would prefer to do that. time wise, we have not had a collective judgment on that at this point. >> the amendment, as it was proposed -- >> in light of your apparent offering, i would like to request that the menu labelling portion of the amendment be separated out for a separate vote. >> without objection, we will put the unanimous consent that the section of the amendment dealing with menu labeling be

put aside, and the amendment without that under consideration. without objection, that will be ordered. order. are we ready to vote? >> mr. chairman? >> yes, gentlemen for morgan. >> thank you, mr. chairman. i am just now able to produce this amendment that came out at 9:09 last night. has this been scored or do we know how much money we are talking about? is there any data on the cost? >> the gentleman will yield these are authorizations of appropriations. we don't have a score on authorizations. the score would be on appropriations. >> is there a grand total for the amount we are authorizing? >> let me ask counsel of there's a grand total for the amount. >> are there totals for each bill? perhaps i could direct to the council mr. chair, could you show me what page for each of

these i understand there are 18 -- >> if you yield to me often authorizations spell-out a specific amount and related to the appropriations committee how much is needed after the examine the request but we would authorize a program and the appropriations committee would make those decisions. >> i appreciate that, mr. chairman. i know oftentimes congress is held accountable for not fully funding what's been authorized. clearly that was the case of the no child left behind legislation for many years there were arguments made a large sum was authorized and then i was never fully funded so council, can you direct me to where the authorizations are in this bill, in this 75 page amendment? >> put your mic on. >> i'm quickly scanning. all of these or appropriations for discretionary spending.

so in my quick scan, the number of christ is on page 24. >> page 24 is the only place >> so far that is the lummis -- part and? >> and again on page 24 there is $10 million authorized for telemedicine incentive grants, and then again on page 35 there is $100 million authorized. >> well, now, on page -- okey, 24 it says $10 million for fiscal year 2010 and such sums as may be necessary for the fiscal year 2011 through 2014 so that is an open-ended operation? >> yes, sir. there are many programs enacted as some may be necessary. >> are there other authorizations -- >> on page 48 -- >> if i may, page 35, line four. there are authorized appropriations -- >> and that's $100 million for

2010 and in its open after that? okay, thank you. >> page 44 there are authorized $12 million. >> and then such sums as may be necessary? >> no search. >> that's for each fiscal year. >> each fiscal year. in page $48,500,000 for each of two fiscal years. page 48, mauney 11. and again on page 56. line 19 and 20. $2 million for fiscal 2010, and 4 million each for 2012. page 59, again such sums as may be necessary, no specified total page 59.

on page 65, such sums as may be necessary. and finally, page 75 for the extension of the wise woman program for screening preventative health screening for women, $70 million, 73.5, 77, 81, and 85 and succeeding years. those are the totals. i'm sorry, sir, i do not have the courage appropriation levels for the programs. >> mr. chairman and we have the appropriation levels somewhere to try to get in perspective what's being authorized? >> with all deference, sir, the labor hhs appropriations committee is meeting this morning to mark up theirs. i don't even know which staff people i would go to at this point. >> but do you have it at last year for the current fiscal year? >> i could find it but i don't have it now. >> we won't have time i guess we

won't really know. >> mr. chairman i realize my time is expired. thank you. >> any further discussion? >> mr. chairman? >> on the democratic side if not we go to mr. barton. >> i'm going to yield some of my time to mr. shadegg but i'm going to on my way of order use the same rule and same logic mr. pallone used on mr. burgess's liability. in his long term health care section, there is clearly an item on page three, line ten established mechanisms for collecting and distributing payments. that is clearly jurisdictional lee, totally within the ways and means committee. so if dr. burgess liability language was not germane by some jurisdictional total within the judiciary committee this section is not germane because it is totally within jurisdiction of the ways and means committee.

so, you know, what's good for the goose is good for the gander, mr. chairman. and i would, i would yield to mr. shadegg or mr. buyer because they have concerns -- >> with the gentleman yield to me? >> sure, i will yield to mr. pallone before i yield to mr. shadegg. >> i just want to say very briefly that this was written specifically to avoid the problem that you are raising by saying that the program does not go into effect until and unless the secretary sets up this, you know, voluntary payroll deduction. so it's written to specifically avoid the jurisdiction of the ways and means committee and that's my understanding that that's reclaiming dr. burgess amendment was written to give the hhs secretary that same discretion and was ruled john

germaine. i mean -- non-germane. >> it says the program doesn't go into effect until a statute is passed that does that. that estab that a salad avoids the problem that you are suggesting. >> i thank the gentleman for yielding. i wanted to seek time on my own, because i have a deep concern about the terminus of this particular amendment. page four talks about liability protections for volunteers or volunteer practitioners. mr. burgess's amendments dealt with the issue of liability. they said it was in the jurisdiction of the judiciary committee. i have, for years, wanted to extend federal liability protections to surgeons working in emergency rooms performing procedures.

i assume that if we rule this as jurisdictional, that we can have this amendment, then i can offer amendments that can deal with community. t to deal with immunity. this is clearer grant immunity to practitioners and quite frankly i probably on the substance agree with it but i don't and can't agree with a structure where a republican amendment on liability is not germane but democratic amendment on liability is germane. with that i will yield back to the gentleman from texas. >> on a yield to mr. buyer if i have the time. i think i do. >> i thank the gentleman for yielding. my great concern, mr. chairman, is we remain consistent. the purpose of the chair is to be impartial in your rulings. impartiality is one of the most important attributes of leadership. so you can not be capricious or arbitrary and impartial rulings. so if in fact dr. burgess'

amendment was out of order you can't now claim and say that this amendment is in order. so if you would like -- my suggestion, mr. chairman, if you would like to make this amendment in order then we should reconsider dr. burgess' amendment on medical malpractice reform. we can't -- we can't pick and choose and that is my great concern. the other, just on feet subject itself with regard to the community assisted living services and support is that cbo has already spoken on this issue that the question whether its actuarial sound over the long term and whether premiums will be insufficient to support the goal for which you're seeking to achieve. so, really bothered here at the moment that the chairman of the health subcommittee at a markup whereby we were given a 1,018 page build in the first amendment out of the box is a 75

page amendment and it could be a bill in and of itself. i'm bothered both on two grounds, mr. chairman. one on substance and the other on procedure. so i will rest to the gentleman's point of order and ask that the chair be impartial in his ruling. >> i yield back, mr. chairman. >> the chair is ready to rule. the gentleman from georgia wish to speak on a point of order? the gentleman is recognized. >> i did have a question not pertaining to the rule of the chair. i wanted to ask either the council or mr. pallone on page 74 the subtitle of our extension of the wise woman program. i am not completely familiar with the wise woman program. i have some idea of what it's about. but could either one of you explain what that program does? there's a good little bit of

money involved, that 70 million in fiscal year 2010, 73.5, 77 million all the way up to 85 million in 2014, so over a five-year period we are talking about a lot of money -- >> would the gentleman yield? >> of course. >> i will ask ms. capps -- why don't i just feel to you if you like, ms. capps debate >> i don't mean to preempt the discussion because other people know about the wise woman program. cdc set this up as a pilot in 20 states and has been remarkable in the way that older women have become aware of their prevalence to work heart disease and the steps that can be taken to recognize symptoms to get to medical care it actually helps

to educate some of the providers that have not become aware, too, of the information available recently. it thus some data collection. we just want to expand it to all states if they choose to incorporate. it's already been approved. it's a part of cdc. .. all women are wise, let's just get that on the record. [laughter] >> reclaiming my time, not just the supreme court nominee, i'm sure. i'm glad you made that comment, mr. barton. i want to ask a simple question from the gentlemen -- of the gentleman from california. is this program paying for cooking class is as well? >> no, it provides a screening for older women who aren't necessarily covered in any other

way so that they can become aware of symptoms that they might have. it is a way to get women into treatment more quickly than to wait for some costly treatment that might be needed later. although nutrition education might be part of some of the outreach programs. >> asking for time, as you describe the program, it sounds good. i think we could be spending a whole lot of money teaching cooking classes, and i wanted to make sure -- >> this has been verified to be effective in the pilot states in which it has been initiated. it is based on the positive outcomes that is now being recommended by the cdc to be applicable to other states as well. >> i think the gentle lady. >> we have before us a point of order. >> mr. chairman? >> i would like to deal with the

point of order before the discussion of the amendment. does anybody want to be recognized on the point of order itself? the chair is ready to rule. point of order has been asserted that this amendment is not germane for two reasons. primarily, it passes a provision that would be in the jurisdiction of the ways and means committee. on page 4, the effective date says that the public health service act shall take effect on the effective date of the statute establishing a voluntary payroll reduction under the internal revenue code of 1986 to support the program authorized by such title. had we legislated a -- an effective statute in the payroll deduction, that would be outside the jurisdiction of our committee.

will we do in this provision is establish a program. but the program, under the public health service act, would not take effect until the ways and means committee establishes the tax. the second assertion of non germane is backed community health centers provision giving liability protection would not be in our jurisdiction. it this amendment to allow volunteers at the community health centers to be covered health centers to be covered under the liability protections under this act is under the act in the public health programs. the community health centers are under the public health act and a parliamentarian in the past has always referred such bills dealing with anything, anything pertaining to the health centers to us including liability

protection so the chair ruled that the point of order is not sustained. i want to call for further discussion of the amendment before we proceed to a vote on the pending amendment. >> mr. chairman. >> who seeks recognition? >> i won't take all my five minutes or whatever because i know most of the speakers on the other side are concerned about laying out vendors amendment and of the staff could explain to us because as you like being on this committee for a number of years i remember the same thing happening having a bill coming to the committee markup on a regular vacation even when the majority was a republicans have a huge manager's amendment laid out for our consideration. it is that not correct? >> will the gentleman yield on that point? >> i'd be glad to yield but i would like to stay and recognize -- remind me of a previous times where we see advantage amendment

of x number of pages. >> it is not unusual in this committee for there to be a manager's amendment of substantial size. >> i'd be glad to yield to my friend joe. >> i agree with what the council said, the difference is at least when i was chairman when we did manager's amendment, the amendment was published and both sides had a chance to look at it before it went to markup for a number of days. it we never strong so to speak a manager's amendment and i don't remember ever having a manager's amendment the nature of a substitute and having the first a majority amendment be in essence an addendum to the manager's amendment. i don't recall that ever. >> well, i have seen 2003 and it you weren't sure but i know the some of that was laid out last night at 10:00 o'clock. my staff was able to look at it and so let's argue about not the process because i get calls all the time about you didn't read

the bill and i said that is our problem but there are 233 years been able to get congress to be bills. but if you want to complain about the process that is one thing, but if you want to complain about the issues better in a the amendment that is separately and we might move along quicker and be able to deal with it, but that's mr. chairman, i yield and return my time to you. >> thank you, mr. chairman. i have a question of mr. palone, i don't see mr. rush year, but on page 57 subtitle postpartum depression, we have dealt with this issue in the two previous congresses and adopted compromise language bipartisan leyna. language regarding a longitudinal study of relative mental health consequences for women resolving a pregnancy.

and in various ways they may have resolved a pregnancy including carrying the pregnancy to term, parenting and child, placing the child up for adoption, miscarriage, having an abortion, so we have a compromise legislation that included postpartum depression on the issue of abortion. i was just wondering why the compromise language that we passed in the two previous congresses wasn't included in this language. in could you -- i think this is very important because increase research on post abortion depression would lead to greater awareness of the issue and the development of compassion about reaching counseling programs to help close abortion women so i think it is important and i just wonder if you can explain why that isot included. >> would you yield? we have actually brought the

same concerns and your right we did have compromise language section 102, congress regarding the study relative mental health consequences for women at resolving a pregnancy. with your acceptance we're willing to put the language in to make sure that is clear. that was raised earlier and we're willing to do it but just didn't get in in time. so with their acceptance i need unanimous consent to read section 102, language, yes i would accept. >> if it is a appropriate i would ask unanimous consent. >> the gentleman from michigan seeks recognition for unanimous consent request, would you stay here unanimous consent request? >> i ask that section one of two, regarding longitudinal study of rental medal hauls consequences for women resolving a privacy would be included in this amendment and a purpose section in. >> is there objection. >> out like to reserve the right. >> the women from colorado. >> i'm not going to object, i

would just like to say that i think this compromise language is good and i think we should look to the results. in the past mr. stupak end and mr. pitts had a disagreement but i think there can be mental health issues resulting from pregnancies and i think this is good compromise language and with that i will withdraw my reservation. >> mr. chairman, one more time and i will shut up. okay. we have operated on both sides in reasonably good faith on health care issue. and you have been more than accommodating this week in requesting the schedule. this particular amendment in my opinion is in very bad play. it was posted on the g drive at 10:28 p.m. last night. i don't know about other members and apparently mr. green staff sits by the g drive all night

long. i want to commend him for that. >> y want to make sure we read it all. >> well, i commend you but i was adjusted to withdraw this amendment. there are some good things in it, there's obviously some good things in it. but it is a little unusual for the majority for their first amendment to be an omnibus amendment that was not readily accessible under normal conditions before the market began. i would be happy to yield. >> if you feel so strongly about it, i thank you may case that you ought to have more time to look at it. i join you in asking the gentleman from new jersey to a straw has amended without prejudice and and be permitted to offer it again. we are throwing the whole on this amendment. >> i would withdraw without reservation to bring it up.

>> and i would like to request -- just a minute, i would like to request that we be able to deal with this amendment before we leave today if that is acceptable. >> sure, we've got a series of 13 votes, about 12:30 p.m. so we're probably facing 50 minutes before we end for the day. because these next series of votes of the last those of the day and will take until two or 2:30 p.m. and by previous agreement we agreed to end up at 2:00 o'clock so we're actually saying about about 45 minutes at most, it would be better to just pull this one off and bring it up first thing next week if you want to do that. but if you found -- and you're bound and determined to have it today i can stop you give my parliamentary inquiry? i would decide to get a clarification of terms because

i'm trying to fall on the ball game here. this i understood was the bill. this i anderson was member's amendment, but we have been talking about and mr. green referred to this as a manager's amendment. >> isn't the amendment to the manager's amendment to a mezzo is the an amendment by the chairman of the subcommittee to the manager's amendment caltech that is, correct. >> i thought council was asked whether managers amendments are, and i did not hear council asked if managers eminence to managers amendments are common. >> the chair will announce a parliamentary inquiry. if you find any rule that says this can be done please raise it, otherwise we have a request from mr. barton to with shaw the amendment, the gentleman from new jersey has with john and i will take the recommendation that the gentleman from texas this be put over until next monday and we will do that. >> i would try to clarify things, i was not objecting to

simply try to find out what we were talking about. >> mr. chairman, over here on our side. parliamentary inquiry -- what happened to the request regarding section one of what every language? >> it adopted? >> no. >> because it was pending so do we have to -- >> we put the whole thing aside and i am to stand somebody wanted to look to that language as well to be sure so the whole matter is put aside including the separate issue with the palone amendment involving labeling. >> thank you mr. chairman. >> parliamentary question. when that mr. palone introduces or arrange to the amendment back, it is my understanding based on our colloquy it will include a section one of two language that we have passed the

previous congress? >> i would hope that that could be worked out, but he will be recognized to offer the amendment he made it, offer a different amendment and may offer in endeavor way but as seem to me that we were pretty clear that it was going to be unanimous consent for the language you had suggested. >> thank you mr. chairman. >> would you want to complete the unanimous consent now? let's all not get tied down. the palone amendment has been withdrawn. so we will go for another amendment at this time. ms. harman, you have recognition for an amendment at the desk. >> let me ask you some questions was it submitted within to our time for review?

>> as it was mr. chairman. >> the clerk will report. >> it isarman a 36. >> wasn't it our turn? >> amendment of california and mr. sarbanes of maryland, the end of title five of deficiency adds the following: subtitle, assisting veterans with military emergency medical training to become a state licensed or certified emergency medical technicians. section blank, assisting veterans with military emergency medical training to become state licensed or certified emergency medical technicians. >> mr. chairman, i would like to ask unanimous consent that the reading be dispensed. >> without objection, the reading of the amendment will be

discussed with the gentle lady of california recognize to explain and someone wants to reserve a point of order? >> thank you, mr. chairman para did mr. chairman, this amendment was worked out with mr. sarbanes and your excellent staff of, and also is part of legislation that i have offered with two colleagues, melissa bean, it would bolster the safety and security of our communities by enhancing the surge capacity of local medical facility is end at the same time it would help returning veterans trans the amendment authorizes grant funding to create a fast track for military medics to become emergency responders.

it also commissions a gao study aimed at identifying obstacles keeping former military medical professionals from entering the civilian medical fields. mr. chairman, everyone here understands the extraordinary service performed by military medics on the battlefields in iraq and afghanistan. they are the true mash champions of our war efforts in those places, and they gained invaluable experience responding to i e the attacks and other catastrophic emergencies on the battlefield. however, when they return home, the unemployment rate of returning vets is about 30%, and they have to start at the bottom getting training to become civilian p.m. t's. we think this makes no sense,

and their experience should be embraced, and they should be fast track for service that is absolutely critical in our local hospitals and other facilities. nd other facilities. many hospitals and emergency medical services throughout the country now operates at or near capacity and obviously in the event of a terrorist attack major natural disaster are other casualty incident the resulting surge of patience would overwhelm these facilities. correct in this requires having a large -- >> will the gentle lady yield before mr. barton please? >> mr. chairman, i would love to yield to my old friend mr. buyer of first. >> here's what i'm going to ask of you, jane. i think you're doing here is right in his noble, we voice had a real challenge trying to link the soldiers to that which can be done in the real world and what i'd like to do with you, ms. harman, is would you please

withdraw this, work with me and let me go to my veterans affairs committee and also work with dod. i agree can even make this better and we bring this back on monday. i did not know about this, ms. harman, out of love to do that and that is just my only request. >> reclaiming my time, we did contact your staff specifically given your experience in this area. we received a very positive reactions. >> i said i liked it and i read the amendment for the first time. what i want to do is shot through we have some and educational programs with v.a. and working with dod, can i bet that, ms. harman? >> will yield? this is an amendment that i think mr. burton was going to except that i certainly want to congratulate you and mr. sarbanes. i think it is a well thought the amendment and doesn't preclude

mr. by year as the ranking member from looking at further changes to it. but i don't want us to keep on picking up amendments and putting them aside. we back to close on some issues and this one is so reasonable and so right that i would hope it does go for the. >> thank you mr. chairman, reclaiming my time, i take your offer. i appreciate your good faith offer, however, we did work with a veterans committee member, stephanie sandlin, on this and we have been exploring how to solve this huge problem in the most effective way and we have come to this proposal and worked with mr. sarbanes and apply to yield to him for a minute. a form of this that would fit well in the health care bill. i do agree with the chairman that this is ready. i would offer to you after i yield to mr. sarbanes to work with you on some additional

initiatives when i take to help our returning vets and out like to yield to mr. sarbanes. >> further discussion of the amendments? >> mr. chairman, i did. i was going to say we would excepted, but i want to support mr. buyer, he is a former of the chairman's letter to committee so i personally think is an acceptable amendment but i yield to congressman buyer general. >> i personally do not oppose this but that does not make, i am only speaking individually and don't have the expertise that chairman buyer has a knack for the recognition on the amendment, mr. sarbanes. >> want to thank the committee for working on this amendment, i want to thank ms. harmon as well. to put this in context there is a significant set of provisions within the underlying bill that

addressed the workforce shortage is and we have attempted in that respect to design pipelines and that will produce more medical professionals over tim but there's also a recognition that we need to do something in the immediate term and the phrase i like to use to describe this kind of an initiative is rapid deployment. we have to see where we can rapidly deploy care givers even as we are developing these pipelines over time. ms. harman is focused i think rightly on the tremendous potential in terms of it the emt profession to transition and is returning veterans two that kind of work and to do it in a timely basis. i'm also attracted to another portion of this amendment, which asks that the gao to conduct a study to look at other ways that

we can or other opportunities to transition returning veterans into other kinds of roles in going forward. in so this, on the one hand, is addressing the workforce shortage that we are very concerned about and, on the other hand, providing a tremendous opportunity to our returning veterans and in keeping with other initiatives we have undertaken in this congress already to focus on that particular issue. so again i think mr. harmon for her work on this. i would encourage jerry one on the committee to support this amendment and i yield back my time. >> the gentleman yield back the balance, mr. buyer is recognized. >> i speak specifically to your eminence. number one a complement to, they also are tying into exactly where their favorite wins are. so i have no objection it, mr. chairman, if you're willing to accept this amendment with the

caveat made to the vet to this. you have worked with stephanie but also at michael brink, to buildings the way, is the experts so let me over the weekend that this and if it's good two go this wonderful, if not the gentle lady i have worked with you on many years and of their recommendations or tweaks will circle back to the committee and i think that's the best way. >> will you yield to make? i think which you are suggesting is that week accepted this amendment assuming the committee is willing to do it and if we can't find some improvements in the next several days, we would have unanimous consent to add to this amendment to make it even better? is that what you're proposing? >> i believe chairman waxman would be amenable along with mr. and -- mr. burton. should this amendment be adopted the gentleman from indiana, mr. buyer, would be permitted to offer further amendment caltech

perfecting amendments. >> without objection, that will be the order. mr. murphy. >> thank you mr. chairman, the gentle lady from california, do we have a dollar value for with these grants would be? >> no, we have not. >> my understanding as i read this is not bypass any certifications of lessening law of any state. >> we were careful but it is to create a fast track. there are specifically created hardships for these trained medics to come back and have to start at the bottom and a lot of the courses they have to take our way to basic for them and yet they have to pay large registration fees which means many of them are deterred from even becoming emt. this is a huge loss for our country and a loss for them. >> this would be a way that states could find out they are the went to the training acidification and one other question -- other in the states who are already reviewing this, and the models it already in existence that we might know of?

>> i understand that kansas and maryland are already doing this. >> i thank you so much and yelled back my time the mr. chairman. >> anyone else seek recognition? if not we will proceed to a vote on the harman amendment. all those in favor and a post? the amendment is agreed to. we are now looking to the republican side for an amendment. mr. sullivan. >> you have an amendment that has been out for two hours and copies at the desk it is two this title? >> and i reserve a point of order to make the gentle lady from colorado, the amendment qualifies of the clerk will report the amendment. >> amendment offered by mr. sullivan, at the end of title five of division c. add

the following. >> without objection the amendment will be considered as read. >> mr. chairman, i say to reserve a point of order on the amendment caltech we already have so there are two reservations point of order. mr. sullivan, you're recognized for five minutes. >> thank you mr. chairman. i have an amendment to the mammoth and the nature of substitutes. mr. chairman, i have a common-sense good government of yemen today that is important ever to stop boys will and inefficient government spending in our health care programs. my amendment would require the health and human services secretary to conduct a study on you and all programs affected by this legislation to determine if there's any program duplication. under my amendment the secretary must write a report on the study within a year of enactment of this bill. after writing that report the secretary will have duplicative programs within six months. i'm particularly concerned with a number of new government programs created in this bill

and this legislation is adding at least 31 new federal programs, agencies, grant programs, commissions and and gates. with the nations experiencing regular levels of debt, we need to be taking a hard look at ways to duplication on our current programs. especially when adding to them as this bill does. also with the cbo stating yesterday that this legislation will increase not reduce public spending on health care we need to find an spears savings where we can. just this week it was reported that our budget deficit is already topped $1 trillion for the. was on pace to grow 2 trillion by the fall. i think we can all agree that in efficiency, duplication and waste will spending are having devastating consequences for the fiscal health of our country. my amendment would help stop an rasul or duplicative spending in this legislation. i believe that we are all going to keep putting new spending programs on the table that we absolutely must have a mechanism to take old things off.

my amendment provides the mechanism to do just that. again all my comments into amendment does is require simple study on duplication of federal programs in this bill and allow the secretary to take action on inefficient programs. i think everyone can agree to this especially in light of the deficits we're facing this country and i yield back to met the gentleman yields back. >> can i withdraw my reservation? >> i am certainly sympathetic to what you're suggesting that we make a wise investments and not have duplicative efforts. but i am worried about this amendment. the underlying bill requires the secretary to develop a national prevention and wellness strategy which i think what address your concern. that strategy requires a secretary to inventory current prevention and wellness activities. it requires her to identify specific national goals and objectives and set priorities for future initiatives. and the secretary must also

develop a plan for addressing these priorities, take into account on answered research questions and unmet prevention and wellness needs and this report is to be submitted to congress no later than one year after enactment of this provision. what difference is your amendment which would require a study which we also have a but then authorizes the secretary to terminate programs as she deems appropriate without further action by the congress. and i feel that the congress ought to be able to use its own judgment before programs that we've authorized are terminated by anybody in the executive branch. i am ready to terminate any program that is unnecessary and redundant and not cost-effective, but i want the congress to do it. i don't think it's a proper to delegate that authority to the secretary and for that reason i

would oppose the amendment. mr. barton. >> mr. chairman, i rise in support of the soul of an amendment. we thought this was the single most innocuous good government amendment that we could offer in good faith to show we were going to try to work to improve the bill without destroying any of the underlying principles that the majority is embedded in a. this amendment is fairly simple. it says that the secretary of health and human services who by the way is appointed by president obama within a year has to look at all the new programs coming in this division day of the bill, so we are trying to stay within the scope of the procedure of the chairman has organized. and send a report to the congress and then if in that study the secretary determines some of the programs are

duplicative and we even change to this zero bits, we said to the maximum extent a proper d%)gaá@ @ @ @ @ @ @ @ @ @ @á@ @ if you look pitcher underlying bill and create a brand new commissioner who can terminate people's individual health insurance without an ax, i would think you could except that a secretary under this division of your new bill could come to some extent, terminate duplicative grant programs. especially to my blue dog friends who are trying to get cost containment in the bill, this does not guarantee cost containment, but it at least direct the secretary and gives the secretary the authority if you have duplicative programs under this division, to try to

save some money. think it is an innocuous amendment and it to be unanimously supported. >> will the gentleman yield? i just point out that both sides have misjudged the acceptability of the respective amendments. a first volume in a statement i don't think is accurate -- we don't give authority to the secretary to tim in anyone's insurance whatsoever. >> well it you create a new health commissioner that has that authority. >> this amendment -- i'm not sure that that is accurate. i doubt but we can look good that. >> wiccan checketts. >> i don't think we ought to give the secretary this kind of power, any kind of secretary and you pointed out the secretary at the present time has been appointed by president obama. if you're willing to say that it would not, the secretary would not have the ability to terminate the programs but ask congress to terminate i have no problem with that. i don't think the amendment is even necessary because we have

that in our underlying bill, but what bothers me is why i can support this amendment is authorizing the secretary even using her best judgment to replays of the judgment of members of congress to authorize the program to terminate these various efforts. the recommendation would carry a great deal of weight, but of all the congress ought to give that kind of authorization to the executive branch. >> reclaiming my time, i appreciate that but we have fundamental difference of opinion about separation of powers of the constitution. the congress legislates the executive branch and administers and what you're saying is you don't trust president obama's own appointees to the minister the programs that to put into place. you want to micromanage. i mean, secretaries have the authority right now to terminate

programs and presidents have the authority would oneongress appropriates not to spend those funds if they don't agree with the intent of the congress. and so we are just trying to prevent duplicative programs. this is a massive change of the health care system as we know it and we thought this amendment was fairly straightforward. it inadvertently, let's give the benefit of the doubt that you are not intending to agree duplicative programs, just in and ridley you give some explicit authority to the secretary to pick and choose and try to eliminate duplication. i don't think that as partisan. i think that is good management and good sense but obviously we have a difference of opinion so i would support the sullivan amendment and i yield back. >> for the discussion on the sullivan a man and?

>> mr. chairman, i will be brave, but i simply want to raise the issue that i think mr.. -- which is what authority there is to do away with plans and whether the commissioner has the authority to do so. i believe on page 16 grace. employment based health plans, the bill by language says that a plan can it exist for employer provided health care may continue to exist for five years without meeting their requirements. the minimum requirements prescribed by the health care benefits advisory committee for that five years and at the end of that if it does not meet those requirements it goes away so as i understand the commissioner does have the authority to wipe out all existing plans at that point in time and i believe that's what mr. burton was referring to. it's not something we need to go into now, we can go into at a

later point and i'd be happy to ask for clarification and a later point. with that i would be happy to yield to mr. rogers of michigan. >> thank you. you point to the huge problem of dropping a 1200 page bill or a thing nobody has read the bill clearly and maybe mr. chairman you haven't gone to page 44 under section b of that page, suspension of enrollment of individuals on such plan after the data commissioner nullifies the entity of determination. not only can you do a whole plan which is in a later section in the bill, under this bridge that can go to an individual and throw you off a plan. so it is clearly under the bill of which you have written that they can throw people off the plan and given not only the secretary but this new health choices commissioner and that is what i think is so dangerous and if you're concerned they can do that mr. chairman and a sound like you were, maybe we ought to postpone this hearing and allow us to go to the bill and find those instances where you would empower the federal government

to throw individuals of their bill and by the way there is nothing in here that says you have to notify them. it's pretty dangerous stuff and i agree with chairman waxman that this is a concern and we ought to work together. >> will the gentleman yield? >> it is my time and i'd be happy to yield. >> i just want to follow up and enter with my colleague from come michigan are you saying that this an elected commissioner can do something to the people of their insurance plans without notification perhaps? is that which you were saying? >> under the bill that is written and has been presented to us yesterday, that is exactly what they can do. a suspension of enrollment of individuals under any plan after the commissioner notifies the entity that can do it to. >> so they can do that in the amendment before us simply says if there duplicative grant programs that the secretary should try and eliminate the

duplication, right? to read that is, correct. >> but we're hearing that should not be allowed, that is two much of a delegation of authority by get in the bill to kick people off a plan without -- can that not only to come off but under the second paragraph it can also suspend payment to the entity under health insurance without notification. >> will the gentleman yield to me? >> and be happy to yield to the chairman. >> i think what is being raised is a red herring and the me tell you why. we allow the commission to look at the insurance plans to be sure that they meet the requirements under the law that this bill would promote. for example of an insurance plan would discriminate against people based on pre-existing condition and they refuse to make a change in that plan, that plan would not be qualified to be operated. that is the power that is given, not to say the individuals that they can no longer get insurance. no one would be for that. but we're not like about the

section of the bill, talking of a difference section can add the chairman has unlimited time and what time i have loved and on the past been criticized for consuming all the time given. let me say i appreciate the explanation but that does not appear to be the words of the bill. the words seem to indicate that plans must go out of existence by a ruling of the commissioner at a certain point in time and that seems to be in the commissioners' discussion and the language raised by mr. rogers is a pretty clear at least from the wording in the bill and all i can do mr. chairman given the circumstances of not having been in the process of drafting the bill is to read from the bill. and i think the gentleman from michigan has adequately pointed out that this allows the suspension of the enrollment of an individual under such plans. that is the wording appears 44 at line 16 and 17. i'd be happy to yield to mr. rogers. >> thank you mr. chairman and not only is it under the individual but they've also done

this with later on in the bill and i don't have the session before me that says the secretary can do it for an entire plan and the entire company with consultation with the health choices commission. but they can actually eliminate full plans under the company as well as as you stated out. >> i appreciate the gentlemans indulgence. mr. pallone, uc recognition. >> would you yield to me? >> the chairman does not have unlimited time. the chairman has to abide by the same rules as everybody else. let me just say that i disagree with the strained reading that is being offered to a section of the bell that is being used for a different interpretation that what i think the clear reading of it entails.

the revenue is described in the paragraph with respect to what qualified health benefits offered by qualified health benefit plan is they can have civil money penalties or they can suspended enrollment of individuals under such a plan after the date the commissioner notifies the entity of a determination under paragraph one that the plan does not qualify. that is a way to enforce the requirement that the plans be qualified, but let me just say even if you read it differently the issue before us and i will review your interpretation because i wouldn't want to give secretary or anyone and given such enormous power, but the amendment that is pending before us by mr. sullivan gives the secretary the power to terminate authorize programs that may already be appropriations of

funds. i think congress would want to have a strong recommendations and terminate those programs, we don't disagree about that, what we disagree about in this instance in the soul of an amendment is whether the secretary should have that power. we may disagree on that but i just want to make clear my reason for authorization. >> with the gentleman yield? the soul of an amendment only gives the secretary the authority to eliminate duplicative programs established by this division. if it is an existing program from a prior congress that is not new created in this long, this amendment does not apply. >> the gentleman from new jersey. i would ask counsel if you would permit. >> i mean. >> what does the secretary under the sullivan eminent be able to terminate issue found it was

duplicative in her opinion? wouldn't that applied to programs with the public health service act that addressed prevention in? >> it requires the secretary to review both the new programs and existing programs and then authorize the secretary to terminate such other federal grant programs which i would understand to mean that the programs but those currently in existence. >> in any case, mr. chairman and fi can reclaim my time, i think between what counsel just read it and other provisions of the bell with the secretary supposed to report back to us about these various programs, i think ample opportunity in the legislation now to have either her or the congress subsequently terminated duplicative programs so i just don't see the need for the soul of an amendment. i just think it is unnecessary

given what the underlying bill says. but i feel to the chairman. >> i have nothing further to add. gentleman yield back his time? >> yes. >> any further discussion? if not will proceed to a vote on the sullivan amendment. all those in favor say aye, opposed know. i'm going to ask for a recorded vote and let's proceed to a recorded vote. >> [roll call] >> [roll call]

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have all members responded to the roll call? and eight members wish to change their vote? if not, the clerk will tally the votes. just a minute two. >> mr. chairman, and i recorded? >> mr. buyer it is recorded as voting ayes. >> mr. stone's anyone else wish to be recognized? if not, the clerk will tally the role.

on that boat, mr. chairman, the ayes or 29, the nos or 27. >> the amendment is adopted. [applause] now we will recognize members for further amendments. >> i have an amendment at the desk and i like to ask unanimous consent.

>> if the gentleman will withhold, we are trying to clear in number of amendments to gather. >> i know, i was going to ask unanimous consent to do and block between altman number one, and green 02. >> mr. chairman, i received -- reserve a point of order. >> let's be sure we have put unanimous consent. [inaudible conversations]

if the gentleman from texas would modify his unanimous consent to do the green and baldwin amendment. >> we have no objection to my republican side has no objection to that. >> green 002, baldwin 01. >> we will accept those. >> without objection, the amendments will be considered it and the bloc. without objection both amendments will be considered as read. and the gentleman from texas recognized for five minutes to explain. >> thank you mr. chairman and i will be brief, i know miss baldwin want to discuss her amendment. i have an amendment i have worked on for behavioral health trading grants, not only myself but mr. murphy of pennsylvania. >> we will accept both amendments. a voice vote, we will accept them. >> okay, we want to end up on a positive note.

>> i accept that and withdraw my -- >> we will accept to show you that we are good guys and let's vote and come back monday and start over. >> i want to make sure the good guys on the record before, -- >> i am trying to be helpful,. >> and mr. green would yield, on the baldwin amendment we're still working on clarification language. i think we all agree in principle and what we're doing with the bald one amendment and want clarification language on possible euthanasia language on this amendment. miss baldwin, if she wants to clarify that i'm going to go give as understanding. >> absolutely. mr. stupak and i have had a significant discussion about an amendment to the baldwin the amendment. i think we are in agreement and as we move toward we will incorporate that, but i know we're trying to get this through

quickly on a voice vote. i would ask unanimous consent to insert on page three line five the language, any grants awarded under this act shall not go to any government or nongovernment organization that promotes suicide assistance or the active hastening of death, in the previous clause shall not prohibit a relative or hospice care. >> without objection that will be the order. >> reserving the right to object. tonight the gentleman recognized on this reservation. >> i'm curious i just barely heard what she wanted unanimous consent for it related to suicide, right? >> it is a right to live -- acceptable to the right-to-life community which you just said. >> i would just like clarification on that. i actually come from us did that twice has voted to allow suicide so i'm not an advocate of that but i'm trying to figure out the implications of what you're

asking for in the legislation on my state of war again. >> will the gentleman yield? >> absolutely. >> i apologize, i was trying to get this through quickly but i'm happy to explain. mr. stupak raised with me and i've worked on this amendment with mr. burgess concerning the public information program and outrage that will go on in the amendment, that the grants to do this not to be made available to those organizations that are sort of promoting it assisted suicide in but rather are conducted by governmental or non-governmental organizations that are there to provide information about all the options available. what happens -- i never actually explain the original amendment. what happens is in way too many cases in america people

experience and of life medical care that is misaligned or absolutely contrary to their wishes and this is an amendment that is helped -- is there to help people understand what their options and express those an advance directives and other vehicles. >> i have no problem with that, i'd just like to know the implications. for example, -- >> does the gentleman of jack? >> as the only way i can get discussion to get answers. we are in a marked up here. >> we are relying on both republican and democratic staff to discuss these things. do you object? >> the gentleman of jacks. >> in this is not something that would be objectionable. >> at like to know that, like to know the implications. we have a thousand page bill with all these amendments line, we have a rush to vote and i can't even find out if you're cutting off funds to agencies in my state that may have nothing to do with this only by some

connection could get honda. that is all i'm asking for. .. >> this amendment creates ads and you cannot reach an information clearinghouse to help promote better communication about in of life options, advanced directives, other legal tools where people can express their wishes for end of life care. i would be happy to yield to dr. burgess, with whom i worked very hard on this amendment. >> i thank the gentle lady for the recognition. this concept was to allow for in

of like planning before it got to that point in care of a patient. really this was only to deal with the ability to established brands between the recipient care and the secretary, and it would not involve states? >> isn't true that the language that mr. stupak and mrs. baldwin agreed with would be considered to be pro-life language? if you are a pro-life member, the unanimous consent request improves the bill in that respect. is that not a true statement? >> of course, i am pro-life member, and your statement is correct. >> i would ask my friend from oregon to not object to this. this actually improves the bill. >> doesn't this promote what the people in oregon votor