businesses, this is going to have to change. let's make some of these reports. the cbo is saying this bill does not make reforms to reduce costs. host: pensacola, florida. caller: i have been watching c- span and listening to all this stuff about the health care plan. my question is, you know, and they are saying it is going to be a tax increase on a lot of people who make substantial amounts 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. how is it justified to tax people who make a certain amount of money and still wonder how it is going to get paid for?

. . 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 fee for 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 all up divided by 12 months, it comes out to $91 a month. i don't have a supplement program. of course the republican's definition of socialized medicine. rather than write a you going to add it as some kind of -- all it's going to gets is straight republican votes. you know that. guest: one of the things that happens with medicare is that you are allowed to shop around. the government pays the bill and

tries to negotiate prices. this new plan will not have that same access. some are loushing changing to lower your income level, it gives you more flaechl ikt host: to new york city we go next. this is a democratic caller, john. caller: i'd like to mak a sure they pay high taxes, drive small cars.

i pay for my health insurance out of pocket to my employer each month. it's expensive. i can't get any n. the private plan in new york city would cost me double. through aarp, i can 0 new york city has a plan called 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 0 they have clinics

where you could go and there would be the variety of medical expertise that would follow through and say this patient has this illness. v se the insurance companies, they are no longer ability to do that. in essence the companies are the ones controlling what test you can get and how you get them and whether they are accepted or not. . the xhounity health centers i bloeb we should be investing more in. they are able to deliver good, solid karat a lower price.

one thing i have been working with is to allow doctors to volunteer there. the other could be a medical home for many people to continue to get their care. in all of this, we have to make sure we are taking care of people. host: question for you on twitter. guest: it is not let's say you were a car penter and iment

that's when you begin to have purchasing power. that's where you have it's not an election. host: one more quick call. this is marie in bald >> high there. >> ni my question is, what is the rush? it's a big, long form you have to read host: snoo this plan doesn't really take effect in eye few years and by about 20125, there's a mandate that no motor what but by 2016, people will

have to participate. we have time to support the people who have need of [captions copyright national cable satellite corp. 2009] [captions performed by the national captioning institute]

>> committee of the comedian will come to order. we >> meeting will come to order. we have the manager's amendment.

>> mr. chairman, could i reserve a point of order. the clerk will report the burgess amendment. >> the amendment offered by mr. burge es added at the end of the

following division, division d, medical justice. >> without objection, it'll be considered as read. the clerk will distribute the amendment. i will recognize mr. burg jess to speak on the amendment. >> i thank you, mr. chairman. today so many doctors across our country are forced to practice what is known as defensive medicine. they face a constant threat of lawsuits and unsustainable medical liability and insurance rates. that results in many unnecessary procedures. and seasoned professionals are retiring early because staying in practice is no longer feasible, further contributing to our nation's doctor shortage. this is a growing crisis and is pushing health care beyond the grasp of millions of americans. my amendment is fairly straightforward. a national across the board

change, just like -- medical justice system that we have in texas, with lower costs and improve care by lessoning the threat of over active trial attorneys and unmerited lawsuits that they often bring about. in texas, we passed successful legislation which has controlled the explosion of medical liability suits and property things back to earth. it caps noneconomic damages at $250,000 for the hospital and for the hospital and a second hospital or nursing home is one is involved, for a total cap of $750,000. there's a cap on wrongful death awards at $1.4 million. and experts. is play only be provided by actively practicing physicians. i cannot emphasize how important this point is. at virtually town meeting which i have with doctors, and i've done many across the country 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 perhaps is no longer even in active practice or the type of practice where the question of the lawsuit has been given, and will offer testimony in support of the plaintiff, always for -- for cash. payment of future damages should be on a periodic or a >> payment smoob on accrual basis. and good samaritans filing for health care. after hurricane katrina, many came to class, 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 -- they it it anyway, putting themselves in -- in significant financial peril, all to help their fellow man at a time of a national medical crisis.

lawsuit reform in texas has created a magnet for doctors, to come to our state and the funding mechanism to improve access to care and enhance patient safety through significant liability savings. and in 2003, when texas passed the sweeping medical liability reform, the results have been better than expected. recent results posted by the texas medical association show that charity care rendered by texas hospitals rose 24% in the three years following these reforms. texas has licensed nearly 15,000 new physicians in the five years since reform out of 36% increase from prereform days. 33 rural countys have seen a net gain in their emergency room doctors, including 26 -- 26 cuts that previously had in emergency room doctor now have an e.r. doctor because of this reform. after years of decline, the ranks of medical sporbleists are

growing in texas. in my field, we saw a net loss of 14 doctors since the reform and now have experienced a net gain of 200. and 26 rural countys have added an obstetrician including county that is previously had none. voting for this will fulfill the commitment to the american trial lawyers association that has perhaps contributed to some of our campaigns over the years. so instead of making it easier for doctors, to practice, it'll make it easier for attorneys to file lawsuits. a vote for this amendment will tell american doctors, we're committed to putting in place reforms that allow them to do their jobs free of the government intervention, a vote for this amendment would tell america's patients that access to affordable health care is not just a campaign slogan, it is in fact our goal. i yield back the balance of my

time. >> the gentleman yields back. who seeks recognition? >> mr. palone. >> i'm going to insist on my point of order, without reference to how i personally feel about the amendment. the amendment contains from vigs obviously on malpractice, such as caps on damages and jury instructions. and these are not sufficiently tied to health care policy, in your own words they fal outside of our jurisdiction, basically within the scope of the judiciary committee. and therefore, outside the scope of the bill's referral under rule ten. i know the gentleman feels strongly about this. this is something that has been debated in the media and with the president but it doesn't fall within this committee's jurisdiction. therefore, i insist on the point of order. >> gentleman, asserts his point of order. mr. chairman, mr. barton. point of order?

>> i want to -- to oppose mr. pallone's interpretation on the point of order. you could correct me 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 mr. -- and doctor burgess' amendment. and in some cases smrks of the specifics. so, i don't know why -- if it was an order in past congresses, it wouldn't be an order in this congress. there's certainly things in the bill that -- within the jurisdiction of the committee and there are things in the manager's amendment in the nature of the substitute that are clearly in the jurisdiction of the ways and means committee. but they're in the committee -- amendment in the nature of substitute that we're considering. so i would -- respectfully urge

you to -- to -- to rule against the point of order and you play vote against his amendment, but at least allow it to be voted on. >> further discussion of the point of order? mr. burgess? >> i'll yield. if i have the time. >> i'll recognize him on the point of order. >> if i could, bringing up under rule 10, this committee has jurisdiction over regulation of all insurance companies and certainly, certainly, we have -- the regulation of interstate commerce is within our jurisdiction. i don't think anyone would want to make the argument that it is not. two 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 than in educational work force and ways and means. i just make the point this this, this is germane to our committee and within our jurisdiction. it is extremely important point.

if you you have to vote against the amendment, that's your conscience. but striking this down on technically, really, it will limit the future ability to discuss things in this committee and even more to the point, i think it sends the wrong message to the people that we're trying to help in this, with this legislation, which is america's doctors and patients. i yield back. >> who else seeks recognition. mr. sterns. >> i like to follow up on barton's point, that if indeed, i as a member here voted on liability reform on this committee, i guess the question for you mr. chairman, isn't it true that we have voted on liability reform in this -- full committee. isn't that true? >> i do recall that, yes. >> so, it is -- mr. barton's point is true and you confirmed we voted on it, then why wouldn't -- would not we vote on it again? what is the point, mr. pallone's

comment i don't think -- on the germaneness. >> who else seeks recognition? mr. bowyer. >> i would encourage you that this is -- this is a moment in time for us to traci the issue. the president has -- has embraced the cause under the american peek to say that he seeks to lower quality. excuse me to lower costs and increase quality. that's his cause. to leave medical liability reform out of that that equation is a huge error on our part. i encourage you mr. chairman, that the committee had jurisdiction on this issue. if other committees want to work with you once we pass this out, i think it is pertinent. indiana has one -- has the oldest -- system on medical liability in the country. and we -- at the state legislature back in 1975, we capped medical malpractice. that cap has been raised twice but it is a system that works.

the states contiguous to indiana have high med dal -- m.d. cal malpractice premiums and their doctors are struggling. if we're going to address this, mr. chairman, i think it is appropriate we allow the gentleman's amendment to be heard and for there to be a thorough discussion and i would urge, the chairman, to make in amendment an order. yield back. >> the chair is ready to rule. but the gentleman from georgia wishs to speak. i like you to speak on the point of order. >> on the point of order, mr. chairman. since i don't know what you're about to rule, i feel compelled to -- to add my two cents in this too. it is 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 the director of the c.b.o. in here saying that this bill will not

bend the growth curve of the expense of health care in the right direction and then he testifies before the senate budget committee, to senator conrad and says the same thing, i would think that our committee would be looking for every possible way to rebend that growth curve and this would certainly go a long way toward that. i yield back. and i encourage his amendment. >> thank you so much. chair is ready to rule. we have -- inquired of the parliament tarne and not withstanding the merits for or against the amendments, we have to follow the rules. we asked whether this amendment would be germane to the pending matter. and the parliament aaron has told us that because of the amendment -- the amendment leg lates in an area that is solely one the area of the judiciary committee when it refers to jury instructions or deals with

damages, that the -- 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 that it would be germane to the bill. but this amendment that has been offered is in the germane and therefore, the chair has to rule under the rules that it is not an order. >> we're now, seek further amendments. mr. -- mr. pallone, you have -- you have an amendment, i want to ask you is it an amendment to division c and was it submitted with two hours lead time and are there copies for distribution at the desk? >> yes. >> let's have it districted and -- and the clerk -- the clerk will report the amendment. >> amendment to the amendment in the nature of a substitute to hr

3200 by the gentleman from new jersey. under line 6 beginning at 19, strike quote or other population or subpopulation. >> without objection, the amendment -- the gentleman is recognized for his reservation. >> just a point of order. >> gentleman from texas reserves a point of order. without objection, the amendment will be considered as read and the chair recognizes mr. pallone for five minutes. >> thank you. i'm referencing this as the omnibus amendment to the public health title. omnibus. not ominous. omnibus. >> i think ominous is theport term. >> no i think actually you'll like this for the most part. this amendment reflects the hard work of many members on this committee. i like to thank you all to these important issues. first it includes the class act a bill i originally introduced with my colleague. these provisions establish a

voluntary national insurance program that will allow other things, along with functional limitations to might not tain their personal and financial independence. it'll alleviate burdens on family care givers. they have asked for long-term care in the bill. this i believe will get at the heart of the some of the challenges we face in the long-term care sector. next, referencing health centers, liability coverage, we have included language that mr. green and mr. murphy have been working on to extend federal tort claims act coverage to medically license volunteer who is practice at federally funded health centers. this is something that we talked about at some of the hearings. and community health centers are vitally important in providing care and underserved areas. physicians , however, are often dissuaded from volunteering their services a the health centers due to the cost of medical liability insurance. by extending the f.t.c.a. coverage to volunteer physicians practicing at federally

qualified health centers, we can increase the number of physicians serving in underserved communities. the next provision refers to nurse managed health centers. to further increase access to health care in underserved communities, we included language proposed by miss cap that would insure a health center program within the health resources and services administration. similar to community health centers, this program would provide grants to entities to plan, develop and operate nurse managed health centers in communities, where there is a lack offer access to medical care. next, we address federally qualified behavioral health centers. in the omnibus, we have included a new definition of federally qualified behavioral centers put fort by miss matsui and mr. engel that would allow them to provide a set of services to underserved communities and help insure adequate capacity to serve patients with mental

health needs. next is the reauthorization of telehealth and medicine. it includes language spearheaded by mr. butterfield and mr. space. to reauthorize it and the grant programs, these programs are aimed at reaching underserved and remote area by establishing linkages between hospitals and providers in areas. next trauma care, we included mr. rush's language to provide access to trauma centers that will prevent closures and downgrades by assisting them with uncompensated core costs and emergency needs and information technology. and we have also included some language that mr. rush recommended to aid areas where trauma centers have already closed. next with regard it emergency care, the omnibus includes a provision recommended by mr. gordon to authorize the emergency care coordination

center at h.h. 7. this center will strengthen our efforts to promote federal state and tribal and local private sector collaboration and support, to enhance our nation's system of medical care delivery. we included language offered by chairman waxman for a program for strengthen e.r. capacity. then we have dental emergency responder provisions. there are provision that is mr. stupe pack has been working on to strengthen the response system by including dentist in emergency response provider. dentists that have gone through training in emergency care, they're rarely integrated into a response plan. this language will help remedy that situation. and next is with regard to pain care. we included provisions for miss cap's bill on pain care and research and awareness. pain is the most common reason that americans access the system and is the leading cause of disability. it is also a major contributor

to health care costs. the provisions in the amendment would address this public health problem by advancing research into the causes and treatment of pain and sknding outreach in education of health professionals. next with regard too postpartum depression. we included language championed by mr. rush to encourage research and educational activities on postpartum conditions. postpartum happens after 10% of all deliveries. the marge orts suffer from this. and postpartum psychosis women play suffer from hallucinations and dehutions. and next, there's in kiled left inimniced against influenza tp it is spearheaded by mr. green and mr. murphy. >> would you like to extend your time? >> i'm almost done. >> you'll be given an additional minute. >> this is spearheaded and would

create a program designed to test the use of elementary and secondary schools as seasonal and pandemic centers. children are particularly high risk at cop cationings and flu and flu is the preventable death of children in the u.s. having the imnation in schools would increase imnations. thus protecting the children. menu labeling. we included language that mr. laura and matheson has been working on that restaurants tell their calories on the menus and boards and provide nutritional information to customers upon request. now we know why they are so thin. this will help consumers make more informed decisions on what they're eating and help reduce obesity rates in the united states. finally, wise women, and the omnibus includes miss caps language to reauthorize wise women. a community intervention program

funded by the c.d.c., yes, wise women has helps prevent heart disease and stroke by providing screenings and counseling for low income women. two days ago, this program was heralded as a great prevention program. it is effective and we'll insure the program will continue its good work. finally this includes a few minor technical amendments. >> the gentleman's time has expired. mr. barton. >> mr. chairman, i'm -- i am not a speed-reader but i can read and i have tried to -- to scan every page of this -- this 70-some odd page amendment. 75 page. this are good things in here. there are also things that in of themselves, would be, entire bills. the very first within, the section 3201, the community

living. that appears to be a brand new long-term health care program. it is in the paid for. f one of the one of the provisions on food labels in restaurants, appears to be a preem shun of a state labels laws for restaurants. it appears, i have to say. i'm in the saying it is. and given the fact that the majority had all year to -- to put their bill together, and right out of the box their first amendment is a 75-page omnibus, i'm going to oppose it, reserving the right later in the mark up if we defeat this to come back and some things put back in on a case by case basis. but the gentleman yield? >> sure. >> i would point out with regard to the chas act, because you

mentioned about the 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 is totally paid for with the voluntary payroll deduction that the secretary would have to -- put forward. otherwise we wouldn't put it into effect. it is a voluntary program paid for that way. >> i thank the gentleman. i didn't see that but i didn't read it word-for-word. i appreciate his help on that point. >> if the gentleman would yield to me. we made this amendment available to your staff last night. i -- i understand your concern. this is a a -- this is a piece of legislation that moving forward and some of these things i believe have been noncontroversial and people have been wanting to do it for some time. >> i agree, there are things in

here that are noncontroversial. >> we have to vote on the house floor. let's come back for the votes and come back afterward and we'll talk further, if members desire. and proceed to -- for further consideration of this pending amendment. so we stand in recess until the last vote of the series that is pending in the house floor. >> the meeting would come back

to order. the chair would recognize himself on the pallone amendment. your amendment deals with with a wide range of health issues, ranging from school based immunization programs to emergency and trauma care. i know it represents the work of a number of members. and they have championed those causes. and you have decided to take all of those proposals, which -- in my opinion, really shouldn't be all that controversial because they involve -- reasonable public health matters. that -- that -- we hope will prevent diseases and allow us to hold out health care causes not to treat disease that is could be prevented. the -- the amendment has what is called the class act. could you tell us what the chas act is? >> it is a great name.

>> it is a classy act, mr. chairman. no, i'm kidding. i'm sorry. basically, what this is is that the people who you know, now, have to get health services, cnnically ill people, people with disabilities who -- now have to -- to get services through institutionalization, there would be a hospital, nursing home, whatever, would be able to -- to pay into a system of voluntary, voluntary, payroll deduction and -- after a certain number of years, you know, if their health becomes endangered, they get a chronic illness and become disabled, they would be able to tap that and get those service that is normally would be provided by a hospital or nursing home in a community setting. so it is a way of -- you know, having people finance over their life, if you will so that at --

when they get -- >> to help people in -- for long-term. >> it is a long-term care system for -- for people with a voluntary check-off so it is paid for. and you know, through their payroll. there's no -- cost to the -- to, to the government. because -- >> but it helps people who voluntarily pay into this fund, to be able to use that fund. >> right. >> this is a major issue, mr. chairman, with the disabilities community, that approached me about this many times. i think they, they -- purchased mr. dengal. sometimes they get agrissive about it and they -- they, it is also something that to mr. kennedy, has sponsored in the senate and that is in the help bill. not that i want to mention the senate, got forbid but -- >> it is, it is an issue that senator kennedy has championed and -- it is very much wanted. and needed. and there are other provisions

in the bill, they seem unrelated but they all have in common provisions that -- you and staff felt were -- were worked out and not that controversial. and the manual labeling for example is something that is now been agreed to but all of the stake holders at -- restaurants and consumer groups and others, so people can get information when they eat in a restaurant. there's emergency and trauma care and school based immunizations and telehealth reauthorization, which is playing more and more of a role in giving people the ability it -- to have -- a assistance from health care providers not in front of them but who can evaluate the medical situation and advise patients and their -- and their health care providers -- the pain care and management,

there is a federal torts claim act for c.h.c. volunteers. is this to allow, as i understand it, those that volunteer at community health center, to be put under same provision as employees. they would be covered by the federal torts claim law -- so they, they wouldn't be, in -- barred -- from -- from volunteering -- and be required to get a medical malpractice health care coverage for their volunteer period. i -- i strongly support the -- your amendment, it has a lett of good features in it. i would hope that -- members have had a chance to look at the eanled and would feel likewise. i -- i want -- want to recognize the gentleman from georgia. >> mr. chairman. thank you. i want to ask the -- the author of the amendment, mr. pallone

going to page seven of his anticipated, subtitle h nurse managed health centers. ly to read quickly through this. i didn't see anything in this regarding -- regarding medical doctors supervision, in any way shape or form in regard to these nurse managed health centers. could you give it a little more explanation about that? is there any physician supervision over these centers or do i -- am i correct in assuming that this is just -- just -- all be it well traineded a swransed practice nurses pretty much practicing medicine at these centers free and independent of any other supervision. >> i'm going to defer to miss caps since it was her bill. >> i appreciate the interest in this. the, the dance practice -- in the area with respect there are nurse managed clinics, there are provigs within the state

regulations that advanced practice nurses have -- have the ability to -- to supervise and carry out those kind of decision that is are are made there in primary care. >> the gentleman would yield to me again. so i can ask a question. the lady from california. >> i yield to the gentleman. >> i thank the gentleman. i appreciate misses capps comments on that. i don't know what the law is in california, but i am sure it varies from state it state with regard to that but would this provision, would this provision be a federal preem shun of all of the state laws? >> no. it would only be, that's why it is set up the way it is. as a voluntary or -- applicable in areas where these kind of provisions can be made. >> and i thank the general lady and mr. pallone.

>> i yield. >> i yield. >> mr. deal, you wish to be recognized. >> yes, thank you. -- and as i look over this 75-page amendment, i -- 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 sprit pieces of legislation. some of these i feel strongly in support of. in fact, i'm a cosponsor of some of the individual pieces of legislation that comprise this amendment. some i have wress vations about. and -- i was glad to hear the chairman say that everybody that fell under the menu labeling it had come to agreement. i was under the impression after reading it that the only way to get out from under it was to have a blue plate special that didn't last longer than 30 or 60 days. that was the only way you could escape the provisions.

maybe those who would be affected by it, have looked at it more carefully than i have. i have a procedural question of the chairman. bl chairman as i understand t this amendment, the pallone is a second degree amendment and therefore would not be subject to an amendment to it in order to extract portions of it that might otherwise be considered objectionable. am i correct that this amendment is not subject to -- to being amended? >> gentleman is correct. >> all right. well i appreciate the response and -- i -- i personally would have preferred a even though it play have taken a little more time for us to be able to deal with these individual pieces of legislation, separately, so this people could express their opinions on them -- individually, rather than collectively. but -- i appreciate the gentleman putting forward many of these proposal that is are encompassed within the amendment. i yield back my time.

thank you. >> let me. if the gentleman from georgia, mr. deal. if you want to divide the question, on -- on these different parts of the amendment, i -- i think that would be an appropriate request. you want to take out something for separate consideration? >> mr. chairman, i heard expressions from the members of perhaps an indication that they would prefer to do that. i'm afraid time wise, we haven't had a chance to get a collective judgment on that at this point. >> i see. the amendment as it was proposed. >> i would, mr. chairman, in light of your -- apparent offering on that, i would -- i would like to request that the menu labeling portion of the amendment be separated out for a separate vote. >> without objection, we'll -- we'll -- we'll put the unanimous

nuss concept that the section of the amendment dealing with -- menu habling be put aside and the amendment without that will be under consideration. hearing no objection, that'll be the order. are we ready to vote? >> mr. chairman? >> yes, gentleman mr. oregon. >> i'm just now being able to peruse the amendment that came out at 9:09 last night. are there any -- has this been scored or do we know how much money we're talking about here? do you know, mr. chairman? any data on the costs of this? >> gentleman, we yield. these are authorizationings of appropriations, so we don't have a score on authorizations, the score would be on the appropriation. >> is there like a grand total for the amount that we're authorizing here? >> -- let me ask council if there's a grand total for the amount? speak up. >> are there totals for each

bill. perhaps i could direct to the council that mr. chair. >> could you show me on what page for each of these, i understand there are eight. >> if you yield to me. often authorizations spell out a specific amount. oftentimes they leave it to the appropriations committee and figure out how much is needed after they examine the request. we would authorize a program and -- 0 and then, the the appropriations committee would make those decisions. >> i appreciate that, mr. chairman. i also know that oftentimes the congress is held accountable for not fully funding what has been authorized. clearly that was the case in the no child left behind legislation for many years. there were arguments made that a large sum was authorized and then it was never fully funded. so council can you direct me, to where the authorizations are in this bill? in this 75-page amendment? your mic. >> put your mic on. >> i'm quickly scanning. all of these are authorizations

of appropriations for discretionary spending. so far in my quick scan, the only specific number authorized on -- is page 24. >> page 24 is the only place. >> so far, that's all. again page 24, there's $10 million authorized for telemedicine incentive grants. and -- then on page 35, there's -- there is $100 million authorized -- >> well now on page -- okay. on 24, it says $10 million for fiscal year 2010 and such sums as play be necessary for each of the fiscal years. and that's an open-ended authorization? >> yes, sir there are many programs in the public health service act are as such sums as play be necessary? >> other specific authorizations. >> if i play, page 35, line

four. this are authorized appropriations. >> that's $100 million. >> that's $100 million. for 20010 and then it is open after that. >> followed by such sums as play be necessary. >> i'm -- page 44 -- they're authorized 12 million dollars. >> then such sums as play be necessary? >> no. >> that's each fiscal year. a then again, on page 48, $500,000 for each of two fiscal years, page 48, line 11. and again on page 56, lines 19 and 20. >> all right. >> $2million for fiscal 2010 and $4 million for each of fiscal 25011 and 2012. page -- page 59. there are again such sums as

play be necessary, no specified total on line nine of page 59. on page -- 65, such sums as play be necessary. and finally on page 75, for the extension of the wise woman program for -- for screening, preventive health screening for women, $70 million, 73.5, 77, 81 and 85 in succeeding years. those are the totals. >> and i'm sorry, sir i do not have the current appropriations levels for those programs. >> mr. chairman, do we have the current appropriation levels somewhere for these programs. try and get in perspective what is authorized. >> and with all deference sir, the library appropriations committee is meeting this morning to mark up theirs. i don't know which staff people i would go to at this point to get it. >> do you have it for last year, for the current fiscal year? >> i could find it.

i do not have it with me now. >> we probably won't have time. i guess. we don't really know. okay. >> thank you. and i realize my time is expired. thank you. >> mr. chairman, any further discussion. >> mr. chairman? >> anybody on the democratic side. if not, we go to mr. barton again. >> i'm going to yield some of my time to mr. buiier. i'm going to insist on the point of order and use the logic that was used on mr. burgess' liability. in the long-term health care section, there's clearly, an item on page three, line 10 established mechanisms for collecting and stribting payments. that is clearly jurisdictionally totally within the ways and means committee. if dr. burgess' liability language was not germane because of jurisdictional total within

the judiciary committee, this section is not germane because it was totally within the jurisdiction of the ways and means committee. what is good for the goose and gander. and i would -- i would -- i would yield to mr. buiier, because they concerns. >> would the gentleman yield to me? >> sure. i'll yield to you. >> i could recognize on the point of order. >> i wanted to say briefly that, that this -- this was written specifically to avoid the problem that -- that you're raising by saying that the program does not go into effect until and unless the secretary sets up this -- you know voluntary payroll deduction. it is written to specifically avoid the jurisdiction of the ways and means km mittity. that's my understanding that -- with the language that we have. >> reclaiming dr. burgess'

amendment was written to give the secretary that same discretion and it was ruled -- it was ruled nongermane. and i mean. and well, the gentleman, only briefly. it says specifically the program does not go into effect until -- until a statute is passed that does that. that -- that establishes the voluntary payroll deduction. we have to have -- legislation to accomplish that. that's how it avoids the problem that you're suggesting. >> i'm going to yield to mr. shadek. >> it was my intent to seek time on my own, because i have a deep concern about the germaneness of this particular amendment. if you go to page four, it talks about -- liability protections for volunteers or volunteer practitioners. as i understood mr. burgess' amendment, it dealt with the issue of liability. we're told that's within the jurisdiction of the committee. i have for years wanted to extend federal liability

protections to -- to surgeons working in emergency rooms, performing -- performing procedures or doctors, performing procedures in emergency rooms compeled by impal has. but -- i assume that if we rule this is jurisdictional that we could in fact have this amendment that i certainly intend to offer amendments that teal with immunity. this is a clear grant of immunity to practitioners. i on substance agree with it. i don't and can't agree with a structure where a republican amendment on liability is not germane, but a democrat amendment on liability is germane. and with that i'll yield to -- back to the -- to the gentleman from texas. >> yield to mr. buiier, if i have the time. i think i do. >> i thank the gentleman for yielding. my only great concern, is that we remain consistent. the chair, the purpose of the chair is to be impartial in your rulings. and im-- impartiality is one of

the most important attributes of leadership. you can't be arbitrary in impartial rulings. if the amendment was ruled out of order, you can't claim and say that this amendment is in eered. and so if you like to --

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. ..

symptoms that they might have. and it is a way to get women into treatment more quickly than to wait until some costly treatment is perhaps needed later. >> well, reclaiming -- >> all the nutrition education may be part of the average programs. >> asking for a yield of time. as you described the program, of course, it sounds good, which is be spending money teaching cooking glasses and that is why i wanted to make sure. >> thank you, this is been verified in which it was initiated and is only based on the positive outcomes in those states that is now being recommended by the cdc to be applicable to other states as

well. >> i think the gentle lady and i yield. >> mr. chairman, we have before us a point of order and i would like to deal of the point of order before we get into further discussion on the amendment itself. anybody wish to be recognized on a point of order itself? the chair is ready to rule. the point of order has been asserted that this amendment is not germane for two reasons -- primarily that it passes a provision that would be in the jurisdiction of the ways and means committee. on page for the effective date says that the public health service act provision which is in our jurisdiction shall take effect on the effective date of a statute establishing a voluntary payroll deduction under the internal revenue code of 1986 to support the program authorized by such title. and had read legislated an

effective statute of the payroll deduction, that would be outside the jurisdictions of our committee. what we do in this particular provision is established the program, but the program which is 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 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 wt 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 is not 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. >> you 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 today i can stop you give my parliamentary inquiry?@@@@@@

>> 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 is harman 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 transition

into civilian live. the amendment authorizes grant funding to create a fast track for military medics to become emergency responders. and also commissions to the gao studied identify in obstacles keeping former military medical profession from entering civilian medical fields. in the mr. chairman, everyone here understands their extraordinary service performed by military medics on the battlefields and iraq and afghanistan they are the true mashed champions of our work efforts in those places and a gain invaluable experience responding to ied attacks and other catastrophic emergency is on the battlefield. however, when they return home, the unemployment rate of returning veterans is about 30%

and may have to start at the bottom getting training to become civilian emt. 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 air local hospitals and 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 time. 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@@@@@@@ h sn) @ @ @ ,rt"

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 determination of the federal programs within this division so we even give all little leeway there. if you look good your underlying bell and you create a brand new commissioner, who can terminate people's individual health insurance without any congressional act, i would thank you could except that and hhs secretary under this division of your new program, your new bill, good to some extent terminates duplicative and grant programs. duplicative. especially through my blue dog friends who tried to do a little cost containment in the bill,

this does not guarantee cost-containment but in at least direct the secretary and gives the secretary authority if you have duplicative programs under this division to try to save some money. i 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 one congress 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. r secretary or anyone and given such enormous power, but the amendment that is pending before

us by mr. sullivan gives the secretary the powero 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]

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[roll call] 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 wi&@@@@a@a@a@@ >> 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. ..

dr. burgess, with whom i worked very hard on this amendment. >> i thank the gentlelady for the recognition. this is -- the concept was to allow for end of life planning before you got to that point of the care of a patient. and really this was only to deal with the ability to establish grants between the recipient of the care, and wouldn't involve the states. >> with the gentleman yield? >> yes. >> isn't it true though the language that mr. stupak and mrs. baldwin agreed with appear to be pro-life language in other words, 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 the statement is correct. >> i would ask my friend from oregon to not object to this.

this actually improves the bill -- >> if you will allow -- if you have the time, doesn't this promote with the people of oregon voted for? to provide information about in of life alternatives? it doesn't conflict, as i understand it -- with your policy. >> it is just to find out what in the devil it does or doesn't do. and what i'm told is basically the quiet, don't ask questions, we've got to go. it's been agreed by others who've negotiated. that's great. i would just like to know from my state's perspective who wins and who loses and then i can make an informed decision. >> as the gentlelady offering the amendment have an answer? >> i take you all that your wertheim just trying to get the answers. >> it is to have better communication on end of life

issues. we are all going to die but we hate talking about it and in fact the medical profession has not been great about communicating options especially when these issues are not imminent. we want to, through a clearinghouse of information, let people start thinking about type of medical interventions one would want and express those where possible in things like advanced directives and other legal tools available and that's what this amendment achieves. >> the gentleman joins the objection to the unanimous request? >> i will withdraw my objection. >> we have less than three minutes on the floor, so let us take the vote if the gentleman would permit -- >> mr. chairman, give me 30 seconds. i wholeheartedly support the gentleman's amendment. i have a bill pending that

addresses the same issue and when we talk about ending the growth curve in regard to end of life care, which a lot of people don't want, but you have to give it because you don't know i think is a very important amendment and i supported and yelled back. >> the unanimous consent request to make the change is now agreed to. the vote now occurs on the two amendments in block. all of those in favor of the green and gold when the amendments say aye. opposed, say no. the ayes have it. themendment is agreed to. we will recess and i don't think we will be able to return given there are 18 votes on the house floor and given the time we

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the relevance of this non-event today is to be debated, but i will remind our audience that lawyer john roberts suffered the same fate in 1992, and he was forced then to make a lot of money for another decade before his time came again and given miguel's brilliance in the courtroom, i predict the same fate for miguel estrada joining

the federal bench. miguel, i'm sure will have a small remark. his firm's practice group was involved with the several important cases as i'm sure he'll discuss. next on the program is neil katyal, the principle solicitor general of the united states and for a time this year served as acting solicitor general. neil has argued several cases before the supreme court both as private practitioner and for the government. since 1997 neil has been a professor of law at georgetown university law center when not in government service. in the late 1990s, he was special assistant to the deputy attorney general and an adviser on national security affairs including defending the constitutionality of u.s. military operations in kosovo. while working as a law professor, neil defended guantanamo detainee before the

supreme court and convinced the court to issue a landmark wrongheaded decision. wrong headed, obviously in my view, but perhaps that shows what an exceptional lawyer neil is to secure it. since january neil argued in two of the terms' most important cases. the voting right case involving the district and in another case involving a novel constitutional argument involving convicted felons and access to post-conviction to dna evidence. last, but certainly not least, michael carbon. he is currently a partner in the law firm of joan's day where he specializes in constitutional appellate civil rights and civil litigation in the federal courts. he's argued several landmark cases including a dispute in the apportionment of seats in the u.s. house of representatives. before his private practice, mike served in the u.s. department of justice as principle deputy assistant

attorney general in the office of legal council and of relevance for some of the cases this term as deputy assistant attorney general in the civil rights division. one of his other notable appearances was before the florida supreme court in the leadup to the bush v. gore case. i should add that miguel estrada who completed the argument in that historic case, but mike has participated in several high-profile cases involving voting rights act in other apportionment issues including filing a brief in this year's case challenging the constitutionality of the provisions, for abbey thernstrom and others. mike is also a return guest and several people in the audience will know how shy and understated he is, so hopefully you all will help encourage him to tell us when he really thinks

about the cases this term and other matters that may affect the court next term. with no further ado, let's start with miguel. >> thank you for having me. i was going to start out when you made the very kind remark by responding that you have now ensured that my wife will take out a contract on your life, but i'll let that go. please, i'll start with three cases that make you think sometimes that you're not quite sure if the supreme court is actually running a court or, you know, the line, the tv lineup for the network. let's start with fox, fcc with the weighty issue with the court is the extent to which a no-name starlet can go on national television and say the "f" and

the "s" word. it used to be the rule for many, many, many years as the court got into these issues that you cannot use indecent language if you use the "f" word or the "s" word as mr. cheney made on the floor of the senate. you would not understand that the vice president was inviting -- and if that was indecent because as the fcc used to say this was only used as an intensifier than literally a description of sex or an activity. this change, i could not make my government up, okay? this is -- this change earlier in the decade when the fcc concluded that any and all words

of the f word or s word were indecent only to be said by their own assessment of the context. that got to the supreme court on the clear point of administrative law as to whether the fcc had enough grounds for flipping its definition and the court rheaumed for the fcc. what was interesting about the case is if you count nos, it is clear that the government will lose the next round on first amendment grounding with going so far as to say that he is -- and i'm sure people here will be shocked by this that he is now willing to overrule the whole rest of cases that have come up with different standards for television broadcasting than they're currently applied to newspapers and cable networks. >> the next -- that's the 7:00

p.m. slot in the television and then we move on to the pot boiler which is the case that has to do with whether you are the ceo of a company that has a very important case in the west virginia supreme court. you can devote your efforts to having one person that you would like to be on the court because you think he might vote for you and actually be on the court and having that person be elected after you raise a good $3 million. this is more than jon grisham, on that set of facts. the case is the supreme court and 5-4 with justice kennedy in the majority with the people that are usually considered the liberal wing of the court with him. the court found that this was too much to stomach and there was a violation of due process because the litigant wasn't sure of the impartiality of the

court. it's the type of thing that makious think, joe, this really does make me queasy, is the constitution the best way to deal with these questions and the members of the minority led by the chief justice had a list of 40 question which is may prove difficult to answer for the lower courts as we move forward as to what happens next. sure, you might think this case is easy, but there are any number of things that come up afterwards as to where you go from here and finally for the tear jerker, that's the 9:00 p.m. slot in the television is why there is levin. this is a very tragic case of an accomplished musician who lost her forearm, as i was told, of having acquired gangrene when a drug was injected through what's

called the i.v. push method. what's significant again it was 6- because justice thomas is@@@# r the manufacturer to actually put on the label. this case is significant. it was a headline case. it was very important for the business community which, when

it's convenient finds that there's a lot to be said for the federal state balance, and it just points to a great deal of instability going forward in the preemption doctrine of the supreme court. there are many ways in which this case cannot reasonably be distinguished from the gire case which was some years ago and involved car safety, and that's going to be a very important area going forward. we don't know how the new justice will affect it? we don't know how it will affect it now that justice thomas is on the team given the leeway to the states in this area. that's all i have. >> on time. >> i'm watching the clock. >> good. good. neil? >> i want to begin by thanking todd and the heritage foundation for having me here. i'm privileged here.

you heard miguel was assistant general of 1992 to 1997 and in 1994 a young law student walked him and had him as his boss and that was me and miguel was an incredible boss. i don't know how he means that. >> i mean that. i mean that in giving the feed welcome back criticism and the really formative year. one thing stuck. i remember, miguel, who should i work for after i grad wait and he said one name, john g. roberts, g. for god and that was in private practice and i'm privileged to be here on the panel. part of my privilege as representative of the government is to not make any news so i won't make any news today. i'm talking to my personal capacity and maybe talking about a couple of supreme court cases, and i want to give you all for those that aren't familiar and

the word for the solicitor general's office and the united states before the supreme court. our office is very small. it's just 21 lawyers, but we're involved in roughly two-thirds of the cases of the supreme court and are arguing on virtually every day that the court is sitting. there's a great premium in our office placed on stability. we don't really change positions much from one administration to the next and unlike other parts of the justice department in which you have all of the deputies being so-called political deputies that is appointed by the president. in our office the majority of the deputies are career deputies and the one with the least experience, the supreme court has argued something like 60 supreme court cases. so that's not to say we don't ever think of a physician in a different way. we had the case of savannah redding this year. the 13-year-old girl who was strip searched for ibuprofen and traditionally the justice

department because our main -- one of our main institutional interests is representing the thousands of prosecutors who serve in our ranks. we generally come out on the side of not finding fourth amendment violations in the supreme court and there's only been one other instance in which i filed a brief statement which was a fourth amendment violation and here i did, we looked at the case and we thought this does go beyond the pail of what the fourth amendment permits. having said that we said the court should grant qualified immunity to the individual school officials who engaged in the search and that is what the court did on an 8-1 decision. it's a personal change for me being in the office in a number of ways. when i was doing these cases on my own with phil and others who are basically a bunch of students and brag tag team of people, i would do the table of authorities and contents myself. by the way, i never argued the med i en. i had nothing to do with that

decision. i argued hamdan with the guantanamo military tribunal, but medillen they had real lawyers and hamdan got stuck with me. our office, on a very small budget and the solicitor general's office and the office of $10 million a year were involved in all these cases and that is a budget that is in private practice that can spend on one case. this is what we do in a year and it's -- yeah. so it's a really quite remarkable thing -- >> it's what you charge for a case. . so it is really -- i think it's a very good dollar value in d.c. with that in mind, let me talk about two cases, the first is the voting rights case which i had the privilege of arguing in the last term in northwest austin. this is a case about the 1965 voting rights act preclearance provision and five of the voting rights act that for certain

jurisdictions if they want to change their voting practices, they need to get preclearance from the justice department and from a federal court to do so. this has been a landmark provision in the civil rights laws and there's obviously debate although it should be retained and i think both sides before the court and in both sides on the court recognize the historic importance of the preclearance provisions and the success we have in franchising millions of voters. northwest austin, the small municipal utility district challenged the voting rights pre-clearance provision and it's straight beyond congress and powers under the 14th and 15th amendment and arguing a statutory argument that even if the court weren't to decide the constitutional question they should find a way for the small utility district to be exempt from the pre-clearance requirements to seek a bailout

and be outside of having to be pre-clearance for every voting change that they make. the decision came to the supreme court with a very strong court of appeals decision behind it. 121 pages written by judge tadel. they came to the court with a very extensive record in congress. they'd been reauthorized four times, most recently in 2006 after 21 different hearings spanning over ten months and with the 16,000-page or so record and it was something that the senate had voted unanimously to affirm the voting rights act and the house of quite similar and it was signed into law by president george w. bush. when the case came to the court i think many people thought this would be an occasion for the court to make a great constitutional pronouncement about the kind of reach of congress' powers. instead the supreme court said that the bailout provisions

should be read in order to permit this district to bail out. i think that was a very tough argument on the statute. i think for the court to do. i think the statute defines those who can bail out a certain way and the court basically had to engage in creative re-writing of the statute in order to reach that result, and that might be the right result and one debate and that will be all we'll be having in the next year is whether or not in a multi-member court fidelity to principle is the most important characteristic. if it were, i think your answer for who the leading just oits supreme court is right now is very simple and it's justice thomas who stakes out in that case and in many other cases this term and others the clear, consistent position that is unmuted by kind of other considerations including getting other justices to go along with his position. chief justice roberts took a very different position in the

case in which he built a consensus. this was what he was prof sized to do at his confirmation hearings and this was a ringing endorsement of those who thought he might do so. maybe in my next set of remarks i'll talk about osbourne versus alaska because i'm out of time. thank you. >> mike? >> thanks. i'd like to peculiar up on the civil rights cases and not only the northwest case that neil just chatted about, but there were two others and one was the ricci case involved in the new haven firefighters that's gotten an awful lot of attention on this because judge sotomayor then on the second circuit and still on the second circuit upheld what new haven had done that said we don't have enough african-americans that passed the test in a way that would reasonably promoted to firefighters. we'll scrap the test and therefore disable all of the white and hispanic firefighters who werel ij for promotion. there's another case that's very important that hasn't gotten any media attention called the bartlett commission which

involved section two of the voting rights act and basically i'll describe these cases individually, but the main point i'd like to make today is there seems to be a consistent theme in this case, reflecting, in my view, the fundamental tension and dilemma in civil rights law for the last 20 years. and that is a conflict between a number of civil rights statutes that have the desperate impact test and the constitution's requirement that you can't disfavor anybody on the basis of race or not. i'll take a step back to explain what i mean. an effects test essentially means even if you have completely neutral motives never consider race, and if you have a high school diploma requirement that has this impact on african-americans and hispanics that is illegal under title 7 and there are similar provisions in the voting rights act which have a discriminatory results and the election schemes that's illegal even if you had no intent to disadvantage minorities. the basic point, i think that the media tends to miss and

scholars tend to miss is they think both the intent test, you can't discriminate intentionally on the basis of race and the effects test are two different ways of rooting out discrimination of the effects test being a more muscular version of an anti-discrimination principle. in reality the effects test is a mandate for discrimination against non-minorities. i think as justice scalia pointed out in 1989 when they were involved in title 7, an effects test is in effect, a quote or requirement. if you say that you need to hire -- it's illegal to hire fewer blacks than there is in the proportion in the relevant workforce or in the neighborhood, let's call it 30% for discussion sake. if you have 30% or higher that's a requirement that you engage in representational quotas. you hire or promote 30% blacks. that's a pure effects test.

if you didn't have an excuse on behalf of the employer or the government that said, okay, we're presumptively illegal to not have 30% blacks and we have some justification for why we did engage in this quota hiring and the fight over the quota in the last 15 years has been an effort since they understand -- >> pull the microphone. >> for the c-span audience, we want them to hear all of your brilliance. >> there you go. since you've made the justification standard incredibly demanding like business necessity, then in essence, you've mandated quotas unless you have a compelling government interest not to do it. if you've made the justification relatively weak, is it a reasonable thing that the employer did, then the employer would have a lot more discretion not to engage in the quota of hiring and not to discriminate against non-minority. so the debate and the congress got involved with the '91 civil rights act is how tough a just

tication can you do this, can you impose on people and how much is there between the esh effects test and the standard. ricci engaged in sort of a classic thing that public employers do all of the time. our numbers don't look right. we haven't met our goal and quota so we'll scrap the test and start all over again. when the court grappled with this issue, they had sort of two polar opposite justification -- rationales in front of them. the firefighters were arguinging, look, no matter how bad the impact and no matter how justified what the employers do, it's never a justification for them to intentionally discriminate with rich and i other hispanic firefighters just because you want to avoid an impact test and the court said no, there are certain circumstances that you can do it. the justice department and the descenter said the employers want to do it, let them do it. we'll call it a good faith belief and it's a meaningless test and the court quite rightly

said for justice kennedy, that's a de facto quota. they understood that these effects tests are a de facto quota requirement so they came up with the middle ground in the affirmative case chess is the substantial basis in evidence and the strong basis in evidence for thinking that their desperate impact is illegal and if they do, then you can engage in race-conscious efforts to, quote, cure the problem. you know, obviously, they're still trying to straddle the tension between the test with these sorts of things. the point i'd like to make here is they imported the constitutional standard into title 7. so the point is now that private employers also have to engage in a strong basis in evidence in terms to justify this sort of thing. no more sort of gratuitous feel good diversity efforts where we'll boost our numbers. we have to have some strong basis in evidence that you didn't engage in those race-conscious activities, we

would face title 7 liability against non-minorities and the other case in which we came up with is clearly the bartlett case which is a complicated thing and i'm not going to have time to describe ri ri the people arguing in favor of the broader interpretation of the results test under section two lost in front of the court. the reason the court gave for the loss was, even if this is a district where a minority could win the election if they were only 30% to 35% of the relevant district, that doesn't give them any entitlement to win being the election because it doesn't guarantee minorities they will win elections. what it guarantees them is they will have an equal opportunity equal to other groups. and no other group in society that is 30% to 35% of the ele electorate could expect to win the election. if you expand section two this way you will inject race into

every redistricting effort made by local and state governments and that creates this incredible tension with the shaw line of cases that say you really can't engage in race-based redistricting. going forward this will be significant. justice kennedy's consistent theme in the voting rights cases is there is this inexorable tension between what the justice department is imposing under section five, race based redistricting, maximizing minority representation, the same result under section two and constitution's command of color blindness. same result under section 2 and the constitution's command of colorblindness. i think i know i don't have time to discuss the case that neil discussed before, but the northwest austin case i thought was a clear signal to congress that they've got to reform section 5 or at least five of the justices are going to strike

it down in the years to come, principally or at least partially because of this dilemma i've been talking about where the statutes are mandating that the relevant governmental authorities include race and all their voting and employment decisions and constitution is trying to extricate those racial considerations. >> thank you all. lawyers staying relatively under or relatively on time. i won't take their time. we've agreed to at least one, probably two comment periods before we recognize audience questions, and i'm happy to be corrected by neil about which landmark wrong-headed decision he argued. it was the one that maybe is more con sequentially wrong that set the stage for the wrong headedness. so with that, we'll go back to -- >> should i respond to that? >> i'll give -- we'll give you an extra 30 seconds, but let's start with miguel, if you don't mind. >> well, i -- i -- i just don't know where to begin.

i mean, it does seem to me, i tend to agree with neil that what the court did in the section 5 case whether you being get out of the preclearance requirement was very difficult to justify. and the court, i think, recognized that and i think that goes to show that the court said you do have to have the southern states under the supervision of the justice department as you get decades and decades away from the forms of discrimination and as you get to the state side of the federal state balance and that becomes harder and harder to justify and i have, you know, i have no doubt that congress will do nothing about this, but this is a sign. the court is telling the congress you get one shot and you better fix this because it

ain't going to fly and i'm confident that there is nobody in the hill that will say let's take the constitutional role and look at this and see if we can come up with a more tailored approach and therefore the writing is essentially on the wall that that will fall on the next challenge that congress has done nothing. on the ricci case i tend to agree with mike. i find it hard to understand how this is a closed question. i mean, i understand the point that there has been discrimination in the past which, of course, you know, which is a compelling one, but in so far as nobody claimed that it was actually a remedy for actual discrimination that had occurred. the notion that you're going to take individual members of the public of any race to single them out on the basis of the race was really troublesome, and

if any of you have had time to read what justice alito had to say in his concurring opinion which was joined by two of the justices, this was not only troublesome, it was just ugly, ugly, ugly. if you get into what was going on in the new haven government about this is this it ran racial politics and vindictiveness and ugliness and one of the sad things is that they could be from the supreme court of the united states. >> a whole extra minute. >> so on the -- i appreciate the comments by both folks on this. i guess i tend to disagree a little bit, miguel. i don't read the court as saying that in 1965 it was appropriate to cover southern states and now it may not be because after all, the remedy that they dealt with that they provided in the case was not to give a remedy to

southern states like georgia and others covered by the act, but to give it to the little individual districts. what was animating the court's decision was the fear that there was a worry that the voting rights act had been expanded not to cover the states when they do say redistricting decisions or things like that, but rather it had been extended through court decisions to cover even these little tiny, itty-bitty utility districts or school boards or things like that, and if it is going cover them the court said if it is going to get out of the voting right it is act and if they have no history of discrimination. i think it is rather hard to read into that something with what the court is saying with respect to the future and whether they'll strike it down and for similar reasons i'll say that to mike and they've done powerful, important work and demonstrating in a variety of areas that the commitment to

equality under the law, his intention ultimately with his effects test and it's something that is gnawflawed, but it does give any indication that they're troubled by the equality concerns that mike is raising as well as the question of whether or not congress has power under the 14th and 15th amendments to enact this law and on that, i think, we'll have to see what happens. i think it's a very open question. i think it would be hard to read into the eight-justice majority. something that says they'll strike it down and it would be hard, after all, the founders and the 14th and 15th amendments gave explicit textural commitments to congress to enforce the meaning of the amendments through appropriate legislation and they have a clear, textural warrant and they have historical evidence from the original evidence at that

time that will, 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 perpetuate 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 ates 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? napolita nap >> 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 is in the docket and what is in the docket is to some extent fortuitous. the sexy case and blockbuster case from the term may lead to the news of next term. so, i do think that the court is largely a minimalist court. they try to decide only what is needed. the section 5 case i would love to have the fantasy life that neil has because if you think that you were not getting a real chance to say these are significant constitutional questions, they concern us very much and so much concern us that

we are willing to do radical plastic surgery on the statutory claims that we may go on that basis, then i would lose hope for the justice department. justice thomas is very principled, but so are they. they all have different conceptions of the judicial functi 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 principled, is really constructive for the rule of law at large. you can't really have a system of case law where he is as willing as he is to discard long-standing case law. we have to rely on the court to stick with what has opinion ruled on absent very good

reason, and to my mind he is a little bit too wythe to discard precedent where he thinks it was wrong as an original matter and it is very hard to run a railroad if you are willing to disregard 200-plus years of constitutional law. >> you have to use a baseball analogy this week, not a train analogy. >> 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 >> let me begin by clarifying that i was not saying section 5 was an absurd statute when enacted. i think i almost said the opposite. i said it was absurd to take a

law that was supposed to be a temporary emergency measure to deal with the problems in the southern states in 1965. and in 2006, extend that to 2031 without updating the coverage formula, which was analogous to using states that were problematic in 1932 to justify what you did in 1965. that is not only absurd as a policy matter but it violates the text. constitution which says you can enforce the 14th and 15th amendment. but section 5 doesn't enforce those amendments which only prohibit discriminatory intent. it prohibits discriminatory effect and worse still it only implies a higher standard on a certain subset of states. it wouldn't be rational, c congruent or proportional to say every state west of the mississippi has to come to washington on bended knee to busht bureaucrats but those east of the mississippi don't.

so the fact they are using a formula that doesn't relate is what congress did in 2006 with overwhelm i overwhelming republican sort because republicans understood the best thing that ever happened to their party -- and i was in the midst of making it happen -- was minority-majority districts because the adjacent districts were pre ddominately white, in the south and i think the principal reason for the republican gains in the 1990's in the south was because of section 5. so, of course being people who are interested in their own self-interest the republicans were more support active of continuing this section 5 regime than the democrats. to get back to the basic topic here, trends in the court. every year we get all of these skroo people to say we are moving this way. it is kennedy's court. whatever justice kennedy wants that is the trend. if the cases come up in a way that he sides with the

conservatives it will be a conservative term. if it is liberal issues it tends to be a liberal term. one caveat to that is when thomas and scalia take a principled approach on confrontation, sentencing and punitive damages, they will find two or three liberals who will be born again originalists and agree in this area i happen to follow the text and history of the constitution. other than that it is whatever comes up that justice kennedy does. we can analyze and try to perceive different trends but that seems to be the basic reality. in terms of principled justices, 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 for the lawless empathetic touchy, feely jurisprudence of president barack obama as delivered so

well who said just like justice thomas what you do is look at the terms of the law and apply it without favoritism to minorities or other group i happen to believe it. so i'm very excited. i have been arguing about this 30 years and it seems every democrat on the judiciary committee and their nominee has abandoned the nonsense of looking out for the little guy that led obama to vote against justice roberts and cancscalia because they were not sufficiently sympathetic and have such a ringing endorsement for the neutral application of the rule of law. i don't know if this translates into how she decides cases but i was very happy to see that in terms of of her articulation of philosophy it was very much the justice thomas mode and rejection of the obama mode. >> thanks. that debate was very interesting but now we are going to turn to other philosophiers iy er phile

audience. as much for our heritage.com viewers as well as the c-span audience please wait for the microphone and please try to make the question a question. we will begin with two gentlemen right here that caught my eye first. >> i want to ask you questions about the coalition building of justice roberts with the jurisprudence and political elements. do you see him politically becoming a counterweight to the current regime and being sort of

to create a reaction that could recreate what happened during f.d.r.'s first few years? and do you see justice roberts with respect to the civil rights act taking this sort of voting rights act plan toward anything more radical say a rejection of certain cases on the docket? >> do you want to restate it and get the microphone fixed while we are answering. >> there are certain assumptions in the question that i don't agree with. i don't think 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. so, i don't know that even where he so minded -- which i don't think he is -- the chief justice has the capacity to 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 papers in the section 5 case, which we discussed, i find it very hard to believe that any motivation other than pure modesty of the narrowest possible basis could explain the outcome in the section 5 case. and i ultimately don't think it is an anti-section-5 motivation but a desire to see congress do its job.

there are -- one of the sad realities of the debates of the court, is that people tend to have a great deal of respect for stare decisis for cases they like and not much regard for when they don't agree. so i think it would be good to see the court as a whole taking an even approach to the doctrine. there are cases that are no longer working and have to be discarded. but i think on the whole they try to do a very good job of putting aside their politics and just ruling with the law. i think that is true of both sides of the court. >> let me say something about that. the thing about the voting rights argument that bothered me is the number of journalists

that said things like chief justice roberts wrote memos in 1982 hostile to the voting rights act so it is not surprising he gave them a hard time which i thought was silly. this is a man whose entire being is bound up in the supreme court from being a law clerk to justice rehnquist to being in my office, the solicitor general's office, private practice. the notion that he will try to reenact some policy memo from 1982 into the constitutional law and supreme court decision making is far fetched. i think if you take that view of roberts you might also answer the other part of the question, which is do we expect a replay of 1935 and the supreme court basically acting the way it did during f.d.r.'s legacy. i think that was a tough moment for the court and people who

care about the court, i think, will be very hesitant to replay something like that. >> mike, i don't know if we got the microphone to work but we will relay your question. shout it out. >> the austin case was the pour under section 5 [inaudible]. is it possible that the court will adopt the city cases when they do consider that question which is a fairly rigorous review of congress's power under this congruence and proportion signality. if they do, -- proceed force sign -- isn't there a problem for the s.g.'s office because to justify section 5 they have to say those jurisdictions are really different but to justify section 2 and the effects test of

section 2 they have to say, well, there are problems everywhere and that they require congress to go beyond mere constitutional violations, which has to meet the proportionality test. >> mike, can you begin? >> i'm sorry. >> i will answer for neil. >> i think we will have to conclude then. >> you are getting into very complicated stuff. i would make two points and i'm shure neal would disagree with both. as i said -- and you have to get into the minuteia of the law to understand this. the court has sought to weaken the race conscious mandate of

section 2. it has made clear the minority has to be 50% of the relevant population. that you don't have to draw these ugly districts. you don't have to break up communities of interest. what section 2 has been essentially reduced to through this incremental approach from the court is saying, look, if in normal circumstances you would draw a majority-minority district because it a insist square 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 t it. so they have ratcheted down the race consciousness of section 2. they have done the same with section 5. in their decisions they have said essentially it is iis ok f

jurisdictions to convert majority-minority districts in 40 to 35% districts. we are not going to handcuff the jurisdictions on this front. the point i was making before was congress consciously overturned, said, we don't like the ashcroft decision or the bosiur parish 2 decision so we will put a strait jacket back on districts and say if you have a 60% district you can't diminish that proportion. you have to keep it where it is. we will reempower the justice department to say if you can create a 55% district or 35% district over here, we are going to say your failure to do so constitutes a discriminatory purpose. so, both of the things that bothered the court most about section 5 -- the strait jacket on southern jurisdictions --

congress reinstated in 2006. of so, 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 saying, i think they will look skeptically on what congress did in 2006 and say for that reason it is not congruent and proportional. and i suspect that they will therefore never get to the section 2 dilemma that you articulated because i think they will be very concerned about the ramping up of section 5 in 2006. >> briefly, section 2 and section 5 are really rather different. so, section 2 is really an of a-the-fact remedy, after a voting practice has been changed you can bring a lawsuit. section 5 is beforehand. a more intrusive remedy and so section 2's defense works in a

different way. section 5'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 to get a section 2 lawsuit going and in place. then you will have that person elected under the unfair regime and they will have all the advantages of incumbency. i agree with mike entirely that the changes to section 2 and 5 in the 2006 amendments are going to be fertile areas of litigation. i think that any of you interested in this area should read mike's brief on behalf of commissioner thurnsterm. >> with that, i think we have gone just about at our time limit. so, while we bring the next panel up, i would invite you to join me in thanking our first panel. [applause]

[captions copyright national cable satellite corp. 2009] [captioning performed by national captioning institute] >> you can watch this at 7:00 p.m. eastern with more highlights tomorrow morning beginning at 10:30 a.m. eastern. >> up next, white house economic advisor lawrence summers talks about the state of the u.s. economy. on "washington journal" a review of the capitol hill news and look at the u.s. government's efforts to uncover assets hidden in swiss banks. later, the annual meeting of the national governors association live from biloxi, mississippi.

>> edward humes profiles the multi-millionaires who are trying to take the planet green. >> senior white house economic advisor lawrence summers before a group of economists talking about the administration's economic stimulus plan and talked about possible higher unemployment before a recovery sets in. he spoke at a forum of the peterson institute for international economics. this is about an hour. >> it is a great honor and privilege to welcome the honorable lawrence e. summers back to our podium. larry, of course, has been the eighth director of the national economic council and assistant

to the president for economic policy since president obama appointed him last november. it was the first decision made after the election. prior to that time, larry was the charles w. elliott university professor at harvard, one of 20 select university-wide profess professorships there where, as most of you know, larry was a tenured professor at the age of 28, joreceived the medal given the outstanding american economist under 40 and from 2001 to 2006 he was president of the universi university. prior to that time, larry was the 71st secretary of the treasury from 1999 until the end of the clinton administration in 20 2001, after having been deputy secretary and undersecretary for international affairs in his earlier tenures during the

clinton administration. during that time, i think it is fair to say larry gained an enormous amount of extremely valuable experience in handling economic crises ranging from mexico in 1995 to the asian crisis in 1997-1998 to the brazil and other problems. "time" magazine characterized him with bob rubin and alan greenspan as the committee to save the world. larry is now back in that position of attempting, with good success so far, to save the world. it is a great pleasure and privilege before this record audience to welcome him back. before he came back to government he was a member of our board of directors, chairman of our advisory committee, frequent participant in seminars and conferences here, and it is a distinct honor, larry, to welcome you back to speak on

rescuing and rebuilding the u.s. committee, a progress report. larry summers. [applause] >> fred, thank you very much for that generous introduction. you saved what was most important, my service to the peterson institute, for last. it was interesting the way you characterized my background. i came to washington, and on your description, learned about the economics of financial crisis. then i returned to harvard and learned about politics. it is good to be back at the

peterson institute. i have updated what i used to say during the clinton administrati administration. during the clinton administration i would remark on the fact that keynes had talked about how everything policy makers did was just a distilled frenzy of an academic eligible -- subscribe her acribbler. then i said it was a fax. that seems very dated. it is still in response to an e-mail. perhaps if i was younger it would be in response to a tweet from a think tank. in any case, we have, over time, acted more wisely as a country

because of the work that has been done at the peterson institute, and i might say we have made better decisions in international economic policy because of the contributions that fred bergesen has made to the debate. note that was carefully phrased to make clear i didn't always agree with fred's contributions to the debate on international economic policy. today i want to provide a progress report on the obama administration's efforts to rescue and rebuild the u.s. economy. i will begin by talking about where we were as the president was taking office, what we have done, and where we are today. i will conclude with some observations on where i think we are going. to begin last january, though only a half year ago, it is easy

to forget how far we have traveled. when president obama assumed office he faced the most serious economic and financial crisis of any president since president roosevelt. typical was paul krugman's warning in january of 2009 let's not mince words, this looks an awful lot like the beginning after second great depression. the economy was in free fall at the start of the year with no apparent limit on how much worse it could get. over the three months ending in february it lost 2.1 million jobs, the largest three-month decline by a factor of two since the second world war. of g.d.p. was declining over a six-month period at an annual rate of close to 6%. even before any policy changes, the budget deficit was projected in 2009 to be well in excess of

a trillion dollars. the financial markets suggested significant risks of implosion. we lookout at probabilities as calculated from options suggesting a better than one in six chance that the dow would fall below 5,000 at some point during 2009. markets were expecting 38% of investment grade corporate bonds to default within 10 years. municipalities faced tremendous difficulties issuing new bonds to the point where muni bond rates, which are supposed to be below treasury rates, soared to nearly double treasury yields. fear was widespread and confidence was scarce. traditional measures of consumer and business confidence fell to lo