-- savvy despot for someone who can use -- a socially savvy despot or someone who can use the technology is a way to further their agenda? >> no matter who is on facebook, you only connect to them if you want. now i get questions it is not my problem. i cannot help you. we have not seen the used leave as older people, on. but in connect to whomever they want. it is personal. anything that can be used to be used for good or evil. someone said this is a powerful

technology, it can be power for good and power for bad. do you take the security guys seriously? we have had things that were compromised and we changed it very quickly. you have to connect. the users would have to make those connections of themselves. our security is such that leaders in the world -- it is not point to happen without being very public. >> what keeps you of fundy -- from a company point of view? what do you worry about? >> expectations are high. we are quite confident that lots of companies are in our position. lots of things happen. our fundamental rest on our own institutions. when companies mention risk, they never imagined themselves. most companies are messing up on

their own. the biggest threat to us is us. we will hire too many people were missed a trans. i think we have to be humble. we are most nervous about ourselves. i think the other thing for us is hell does technology evolve? what is the standard? what is the openness? >> we will take one last question from the audience. >> this is a follow-up to a previous question. there is a saying that one man's terrorist is another man's freedom fighter. you mentioned early -- just now about good and evil. are you collaborating with the congressman to establish new rules for privacy? what rules face but have to ensure it does not being used for evil?

when this one reach those rules and get turned over to the authority's? >> the rules are simple. the date that belongs to a user and we do not give it to anyone. >> the government is investigating specific users? >> there are times in different countries where in accordance to bill all you are required to turn over information, and we do. we do it in very limited, barry legal terms. there are times when facebook has been used -- that things happen. it is true for everyone. what is important for us as a technology is we enable you to put your faith -- your information on, and we make sure your account is not compromised. if you come to facebook from a computer you do not normally

come to, it will send an e-mail to your e-mail account to make sure. we worked hard at staying ahead of any ability to compromise. we have a very good track record. >> has it happened here? had you had to reach that level where you had to give private and vote to the federal government? >> we have cooperated with some investigations and given some information over. that is true for every company that operates in the country. >> will ask one more question. the average facebook person has a one-hundred 30 friends? how many do you have? >> my most important usage is i have a group of six or seven, my

closest friends from going up. we live in different parts of the country. i posted just this morning -- had a hard day yesterday. need someone to talk to. i am quite certain that after this interview they will have put comments that. i share with them in a way i have not before. i use it to stay in touch with my friends and see what is going on in the world around me. my husband and i are the original leaders of -- original readers of newspaper print. >> thank you very much. >> thank you very much. [applause] >> thank you very much.

we appreciate you being here. we reconvene at 2:10. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011] >> president obama talked about his administration's effort to combat rising gas prices including ending oil subsidies and investing in renewable energy. then, the republican address. the outlines at republican proposals to bring down gas prices as well as plans to cut

government spending and reduce the federal debt. in some places, gas is more than $4 a gallon. you could be paying upwards to 50 or $60 to fill up your tank. while rising gas prices mean a real pain for our families at the pop, it also means bigger profits for oil companies. the largest oil companies announced that they made more than $25 billion in the first few months of 2011, up 30% from last year. i do not have any problem with any company or industry being rewarded for their success.

the incentive of healthy profits is what fuels entrepreneurialism and drives our economy forward. but i do have a problem with unwanted taxpayer subsidies that we have been handing out to oil and gas companies to the tune of $4 billion per year. while companies are making huge profits and you are struggling at the pop. we are scrounging the federal government for spending we can do without. we need to end at them. that is why earlier this week i renewed my call to congress to stop subsidizing the oil and gas industry. i am not opposed to producing oil. i believe that if we are serious about meeting our energy challenge, we need to operate on all cylinders. that means looking at oil production here at home. last year, america's oil production reached its highest level since 2003. i believe i instead of subsidizing yesterday's energy,

we should invest in tomorrow's we are making investments in clean energy that can lead to new jobs and new businesses. i have seen small businesses there making the most of solar and wind power, energy efficient technologies, making fuel- efficient cars and trucks part of their vehicle pool. we have a implemented new fuel economy standards that could save you as much as $3,000 at the pump. it is tempting for some in washington to want to cut our investments in clean energy. i totally agree that the only way we can afford the things we need is if we cut the things we do not and live within our means. but i refuse to cut things like clean energy that will help america when the future by growing our economy. it will help make america more secure. it will help clean up our planet in the process.

an investment in clean energy today is an investment in a better tomorrow. i think that is an investment worth making. thank you for listing. >> i am and freshman member of congress working for the fifth congressional district of oklahoma. it is about the challenges my constituents face. the skyrocketing cost of gasoline is that the cost of the list. prices have doubled since president obama took office. it makes things more expensive. even worse, the rising price of fuel. it cost jobs and is hurting our economy. higher energy prices get virtually every energy products in the country. it makes it more difficult to manufacture, ship goods, and more expensive to farmers and ranchers. higher energy costs makes everything made in the usa more expensive and cents morbid

paying jobs overseas but -- overseas. america is looking for leadership. president obama has only offered a tax increase on energy. for more than two years, his administration has knowingly increased energy prices by choking off new sources of traditional american energy and smothering our economy in new revenue -- in new energy regulations. he was to hike taxes by billions of dollars. it will make the problem worse. in my state and in many other states, thousands who depend on america energy production for their paychecks. the president may think he is punishing big companies, but it will hurt the everyday consumer of energy and american based countries. there is a better way. republicans are focused on expanding all energy production to help lower costs, reduce our dependence on foreign oil, and

create millions of american jobs. next week, the house of representatives will begin this process by passing legislation to increase the supply of american energy and create jobs. this is part of our american energy initiative, an ongoing effort to lower costs and allow the private sector to create more american jobs. it the president chooses to punt on long-term solutions for energy and gas prices, we will take the lead. two weeks ago, i was proud to cast my vote for a budget that promotes economic growth and job creation by putting us on the past to pay down our debt and preserve medicare and medicaid for car retirees and future generations. our national debt is worse than most people realize. we must solve our budget problems, not just talk about the crisis. the president's budget proposal fails to offer a credible plan to meet these challenges.

he considers its radical and extreme to balance the budget by doing what every american business and family does during tough times. they reduce spending. we need to be honest with the american people. washington should not overspend and then demand a tax increase because we cannot make the tough decisions. we cannot ignore the fact that tens of millions of baby boomers are beginning to retire. medicare is at the brink of insolvency. we must stabilize and protect medicare and medicaid. let me be clear -- the republican plan would not affect current medicare beneficiaries or any american 55 or older. to address the insolvency, we put in place a plan to save medicare for those under 55. we want them to have access to the same options that members of

congress at all federal employees benefit from. the president's proposals protect the status quo -- an unsustainable system that will bankrupt medicare and lead to painful benefit cuts for seniors while continuing to pile trillions of dollars of obligations on the back of future generations. the world is watching. everyone wants to know if we will pile up more debt with no plan to ever pay off or if we will find a way to work on our national debt. the president wants us to raise the debt limit with note reforms to stop people spending money in washington. we will borrow any more -- even more money from the chinese. this will be a stark moment in american history when a president will intentionally declare i think i will make tougher on my kids and grandkids generation to make life easier on my generation.

the american people will not tolerate an increase in the debt limit unless it comes with meaningful steps to cut washington's spending. no more blank checks and huge bills on our children so someone in washington can live now. we'll continue to offer real solutions for lower gas prices, to create jobs, and in short the next generation still has a shot at the american dream. we had been through difficult times before. we can do this. we can work together to solve the problems instead of just talking about them. may god bless your family and our great nation. thank you for listening. >> on news makers, a look at campaign 2012. potential presidential candidates are testing the waters.

6,a's caucuses or february 2012. new hampshire primary is february 14. newsmakers, sunday at 10:00 a.m. and 6:00 p.m. eastern on c-span. >> sunday, from the los angeles times festival of book, in de pth. books include private rights and public illusion, the promise of liberty. he will take your phone calls and e-mail us, live sunday at noon eastern on c-span2's, booktv. >> ben ali discussion on aviation modernization projects. we will hear about partnerships between the private and public sector. the moderator is a former federal aviation administrator,

marion blakey. this is just over 30 minutes. >> with all of the great things she did in that particular role, it made her the perfect choice to be the ceo. there is a big complement i want to tell all of you about because aia has done something

so significant. in the last 15 months they have increased their membership by 55%. that is an enormous undertaking. we congratulate the team and thank you for taking the lead as our moderator this morning. marion, please come forward. [applause] >> thank you for the gracious introduction. i am delighted to be here. we are among friends. as i look at this audience, this is a group of colleagues and faults that have been pulling together for a long time. carol, i have to congratulate you. 10 years. this is a very impressive gathering. i always do enjoy it this kind of forum each year. it gives us a chance to advance the ball on policy issues.

again, my congratulations. i will say i am are glad to be here with our three panelists. , russell chew, an old colleague and friend. the title of this session is principal modernization solutions. to me that is code for next- generation air transportation systems. the reason i hope the session will make apparent, i would also title this panel sensible transformation solutions. i think one of the things that we are guilty of is we often characterize it as the modernization project.

but it implies to the public as a single activity, it simply making the current system more modern. nextgen is a system unto itself. it is a transformation of our current architecture. it will fundamentally change air travel. almost everyone in this room is probably familiar with this, so i will not take you through it. there is a broad range of people who been drawn to this including a lot of people on service transportation and the investment and venture-capital community. let me set the scene. technology will replace the 1950's era radar we are used to. this emperor structure on the

ground and in the aircraft will use satellite position signals. it will get more accurate aircraft obligations to both pilot and controllers. all the lights or green. the backbone of nexten is the hundreds of automatic dependent surveillance broadcast that is being filed by the faa across the country. the transmitters were manufactured by representatives on our panel. we have already seen the benefits of nextgen as transmitters are installed across the country. in addition, more fuel efficient performance based flights are being commissioned everyday. with these changes come many benefits.

a more inefficient, environmentally friendly system , increased capacity. we are going to need it because the faa is telling us that we will have a 1 billion passengers 2021. next gen will transform our air transportation system. we have a challenge. 793 transmitters projected to be in place -- on time and all budget so far -- by 2013. the airborne infrastructure will not be acquired until 2020. that represents 87 year gap before we see systemwide benefits. i project that will give us a

real seven year itch because we want to get it done. airline delays are costing us $40 billion a year. it is pretty easy to see what is at stake if we do not change course for more timely implementation of nextgen. in an ideal world, operators would start operating now. it is not an ideal world. the civil aviation operators, even during healthy economic times, the large capital investments are dependent on the future and is fraught with risk. in these tough economic times, it should be no surprise that the airlines, the business community, general aviation -- all of us are looking for ways.

the question on the table is innovative financing mechanisms. had we equip a fleet in a win- win situation? a partnership that requires scan in the game. that is what we are going to talk about. before i turn to the panel, let me give you some good news. aia recently conducted a public opinion poll. we do not do a lot of this. it shows that 68% of americans support new technology to improve air safety. that is a big percentage. in fact, 65% are in favor of maintaining or increasing faa funding levels. only 19% of those polled said they would be in favor of

cutting the faa. a majority of americans are knowledgeable about nextgen. those are good numbers. let's turn to our experts for the challenges ahead. let me tell you one thing about our panelists. they come from very different parts of the aviation and technology world. they have tremendous operating experience. david melcher is a former brought -- a former army three store. the has the responsibility to absb. he ran all the operations for the faa.

now he runs finance. they teamed up on this new venture. itt venture-capital. david, let me turn to you for the first question. how do you see the challenges of nextgen? what will it take to make it work from the faa standpoint and from the standpoint of the community? >> i am always adopted by being the first expert. there are a lot people who had been in this industry for many years. i learn every day from my great team. i had a great deal of respect for all of the people in the room. i know this as a team effort. that would be the first thing i would say about it. it is going to have to continue to be a team effort between us, those we work with, the operators that are out there that support and -- support the

aviation industry. job one is to try to bring all of these varied interests together in a way that makes sense. with respect to this program, there are a lot of elements that have to be in place for it to be successful. marion has a just a few of those. what we are working on today to put in place at the stations that are needed to enable the transfer of information that will occur and make us able to have safer flying. that is not the only piece. there are procedures for the company. there has to be the modernization in the aircraft that goes along with that. as we all know, that will happen over a period of time. it. the time in which budgets all across the government are going to experience pressure. it is important for all of us who are part of this program to continue to execute well. we all know what happens to programs that are not executing

on time and on budget. we will have to collaborate to educate the non-aircraft industry public as well as congress about what we need to do to make this successful going forward. part of that is the solution begins to equipping the airlines with the equipment we need to go forward. i will stop there. >> you have looked at this from the airline standpoint. talk to us a minute about how you see this equipping big carriers, which is necessary -- it is a conundrum. held the see it? >> the problem has been around for a long time. i remember going through this before joining the faa. it is always hard to justify the capital necessary for equipment that does not directly affect

the customer. business is about the top line and the bottom line. both are aimed at producing value. when it comes to equipping airplanes, if you cannot "the business case, it is never going to happen. it is harder to do, but it is not impossible. we spent the last couple of years looking at this. itt had a lot to do with helping us through that. we found a path that can basically help airlines and other operators to close the business case for a gripping the airport and at the same time fulfill the needs of the investors. today, commercial operators, this despite the fact -- commercial operators have a smaller balance sheet. to buy something that will not

be of benefit for five or six years is really hard to do. you cannot use capital at a double-digit pace -- percentage rate and expect anyone to spend that kind of money. there is a lot of uncertainty around it. providing an environment where opportunity to produce value where does this exist is about technology. one thing that interests me about that is the economic value that nextgen brings does not automatically come with the technology. it is what we do with the technology that makes a difference. we can all go out and invest in a lot of stuff to put into airplanes. but if we do not do something differently with that, it does not produce the economic value we think it will produce.

that is why the business case is so important. without rationalizing that investment capital and producing something that will produce, -- that will produce economic value. that is why we think the public- private partnership model is so important. it brings public sector capital that must have a rationalization for investing. >> let me ask both of you -- you can generate a lot of enthusiasm -- when you look at the construction in this country, what do you see when looking at infrastructure elsewhere? what are the parallels? >> i think there are a number of very good parallels in terms of guarantees for public-private

partnership that had been extended to the aviation industry, rail industry, service transportation -- there are several examples where that guarantee has been extended. the return has been positive or there has been no defaults. i would expect that that would be the growing proposition. what we have been working on is not the only idea out there. i am sure there are many ideas people might have. we just wanted to bring forth one alternative to get the dialogue going about how this might be successful, about how other private-partnership -- private-public partnerships have been in the past. >> certainly there are programs in other parts of transportation's that already exist. model for -- models for maritime, service, and rail. we think the key to any of these

programs is the skin in the game. it is not a free ride for anybody, but it is a good thought -- a good ride for everyone. everyone goes in with the expectation that something of the other end is point to happen. that is what a business case is. it is not just about lowering capital. it is about structuring it in such a way that there is an accountability for the return. i do not think we get there without it. i do not think anyone is going to borrow money at 15% on the hope that something good is going to happen. that is where that comes in. if we applied public-private partnerships, if there are other things in the government that have to do with nextgen, i think

there will be used pressure on the structures the faa will need to build. there are lots of infrastructure problems. there is much more patient capital prior to 2009. that could provide a good return, not only for the economy, but for those who are investing it. >> a lot of us who have been falling the faa reauthorization closely have been very encouraged by the insertion metric for the faa. we are moving into full-scale at the mentation. i do think the accountability matters. but let's talk about the political climate for this. the situation in terms of the hill. does this require legislation? if so, what are the odds on

that? >> if you go first on that one. >> i think it does, for aviation. there are other programs that use guarantees as one of the waste that is commonly used and successfully used to stimulate investment and do something. it helps to reduce the cost of capital. but that is the beginning. you have to produce a program. legislation would allow the same type of stimulus you give rail or maritime, some kind of program that allows the government to jump-start private sector capital and bring it in in a way that produces a scenario where a business case can be closed. in the end, that is what it is all about. if you can get a business case closed, you can make the

investment. >> let me tell you, i am looking around to see if i see recognition in other people here. it is a tough environment right now. when i have been discussing the reorganization lately, the conversation goes not to what i believe very firmly in, bringing down our footprint, up your reduction -- it goes to actual offsets within the faa's budget. what can we do to reduce that budget? what will nextgen do to make this more manageable for the federal taxpayer and the congress? i am asked some folks inside the agency. i would be curious about your experience also as a

businessman in trying to rein in the budget cost as well as, how does the u.s. army tackle it? >> that context in the faa is a tough question. it is a relatively new one to me. i did sleep at a holiday inn express last night, so i will give you an opinion. [laughter] we go through all of these cycles with boom and bust. budgets are always an issue. before i left the army, we were looking for ways to become leaner and more effective and more efficient in the way we delivered capability to the field. the capability being readied units. how do you do that better in a peacetime environment? when i came to itt, i was gratified to see the same climate in respect to be more efficient and more worrying.

the zinc -- more lean. in almost any initiative the government would entertain, whether an agency or the congress, you would want to look at how this will make you better. how will it make the organization able to function in a more competitive way? that is where i think the onset comes from, from an imagination about how you might use this to streamline your infrastructure or the element of cost that make up the total cost of that agency. i think that should be looked at. i think it is appropriate to look at it in many contexts. this is a tough climate. when we are cutting entitlement programs and other things on the table for scrutiny, you know that all discretionary spending inside the government is going to get a very close look. it is not reasonable to ask that that be examined separately. >> i am going to turn to the

audience for questions, but let me ask one more. we are a global industry. i am curious in thinking about this innovative financing and there are ways of financing. it is a question of u.s. leadership. how big are we thinking of? tell me, what you see? are there any other solutions we should be thinking about? where does this all go? >> do you want to go first? >> we have been to europe a couple of times to talk about our program. it is the same issue. in some ways, it is a lot harder. we at 30 providers of the service over there and they are struggling. they have set up a program of demonstrations, hoping to show there are benefits. i do not think the industry has been very successful with demonstrating our way to the

top. it does not lead to any quick it ofnextgen. >> in the end, what we will need to do is actually demonstrate -- you are going to have to close businesses. -- a business case. you have to keep closing those. the world is not based upon one giant system. every business makes these decisions individually. we need to create a level of accountability that closes a business case on that basis. i think this is new. in a we have sold a lot of the financial risk. there is an institutional and political risk that is just as

difficult to overcome. for those of us who have been in government, it is not in sydney -- insignificant when you're trying to make change. when we run around congress and talk about it, there is not someone thinking we do not need nextgen. there is an overall feeling that this is something that should be done. we have had a problem turning that feeling into something tangible, but i think we need to build upon that. we need to make sure that we are not afraid to be innovative because it is really hard in any institution to step out and do something different because you might fail, especially when there is money involved. that is what we will have to do. i think we have found a way to do it, but i think it will be

individual companies, individual people that will make a difference. >> i agree. it gets back to the business case. i think people you sought -- you cited reflects that. we do believe the elements of the business case. i am encouraged by those who have been early adopters. some are putting it into their aircraft. i think that example is complemented with the right procedures which allow them to begin experiencing some of the benefits. we are all going to experience the environmental savings. i think that example coupled with some innovated equipping options that allows the government to make this accessible to the airline industry, that is really what you want. you want these forces to come together in a way that allows the nation to benefit as you and tom indicated.

>> questions from the audience? >> grants have been talked about for about two years now as a way of equipping for nextgen. talk about the federal budgetary difference between loan guarantees and grants. >> most of it is about the scoring. say you want to buy $1 billion worth of equipment. you have to score that $1 billion when you obligates the government. on the other hand, if you want to do a loan guarantee and you want to borrow 90% of that, you only have to put up the creditor's premium. you only have to book against

the deficit depending on the level of risk, something around 10% or 50% of that. instead of $1 billion, you incur a $150 million. moreover, you can offset that by requiring the applicant to pay the premium. in the case of the railroad rehabilitation program with the applicant puts up all the money, there was no appropriation to the fact that loan guarantee. there are lots of options to use long guarantees in a way that does not scored negatively against the budget. that is the attractive part. >> other questions? >> it is a heck of a thing when your own guy is asking you a

question. [laughter] >> and it is going to be a hard one. >> can you say something about the particulars about the capital you are putting together? i think you talk in generalities. can you give some specifics? >> we will basically use private sector capital. that will augment the amount of money at risk that needs to be put into the pile to stimulate a loan guarantee and borrow that money on the commercial side, the private sector. that i bought equipment will be provided to the commercial operator at a rate as good or better than they can do on their own. number two, it involves taking the risk out of the return by deferring the payment on that loan until the benefit is delivered. this is the hard part.

how you measure that? but it has to be measurable. one of the good parts of belabot nextgen, you can measure everything. it requires the operator to say, i will borrow the money at this. you say i would get this at this rate and will produce something i will actually be able to return to my investors and my customers as an operator. the interesting thing is if you talk to every operator, it is different. one operator wants something, the other wants something else. they all want something different. the only way out of that, the only easy way out is to mandate the whole thing. the problem with mandating is it does not provide the guarantee

of the return. instead, we put together something that binds the operator to pay for things when the service provider can say they will deliver a certain service at a certain facility at a certain time at a certain usage rate. i do not think there is anyone here that would put your life thatgs up for something might be delivered in 2018, especially at the track record of delivery is uncertain. the only way to do it is to say, "i will put the money up, but you'll have to tell me when you deliver it. if you do not deliver it, there has to be some kind of accountability." >> one more?

>> why do you need loan guarantees? what are you guaranteeing with the loan guarantee? >> belong guarantee reduces the cost of capital. -- if the loan guarantee reduces the cost of capital. it is not impossible without a long guarantee, but it is hard. i do not think anyone -- i hate to say this out loud, the reality is if you cannot close the business case, there is probably a good reason you should not invest. while that is not the line everybody likes to use, it is the reality in capital. whether we are finding a government agency, whether we are funding an airline, you make a business decision every time you spend something on that organization.

there's -- there is never enough capital to do everything, except the last two weeks of the fiscal year. [laughter] you compete for those dollars. all that does, having a loan guarantee, is it reduces the investment barrier going in. >> the cost of capital, making it affordable, and having the government as sponsoring, endorsing, and backing up that fund. >> i am going to ask one final question. lightning round. we watched what happened with the first lady, what was the difference under nextgen? would nextgen have changed it? >> i think the answer is yes.

[unintelligible] there is no latency bear in terms of understanding where you are in relation to the aircraft. >> thank you very much. we enjoyed talking to you today. [applause] >> alabama congressman spencer bachus, chairman of the house financial services committee, discusses the impact of the dodd-frank law. the conference will always -- will also hear from the deputy secretary. live coverage begins at 10:00 a.m. eastern on c-span. comprehensive wheat -- resource on congress has new features to make it even easier to make -- to find information about your leaders. daily schedules, committee hearings, and video of every house and senate session.

take a look at the new congressional chronicle at c- span.org/congress. >> on tuesday, the state attorney general participated in an immigration law and policy congress. first we will hear from the utah state attorney general. then, a panel discussion on state immigration laws with the former arizona attorney general. later, aclu officials and law professors discussed immigration and birthright citizenship cases now before the supreme court. this is two hours and 45 minutes. thank you, president papa andre you. did i say that right? all right. pleasure to be with you here today. i want to thank the georgetown law very much for hosting and for migration policy institute catholic legal immigration

network for this invitation and for doing this so many years. it's about time i got involved. i appreciate the opportunity. i'll speak loudly. i know it sounds like it's a little hard to hear but i will speak up. i was here three weeks ago and it was winter. so i don't know what happened. but i come from utah where it's a very dry state and add that to my recently shorn locks, currently going through a little bit of chemoand so if i perspire a little bit it's not because i'm nervous. never let them see you sweat. but pleasure to be here with such a great group and especially people that have spent their lives, most of you working orrin such important issues of importance to the this great nation with regard to our migrants and those who come here through that wonderful golden door. i wanted to mention that you know, when people every state had the opportunity to design their quarters. remember this? this is going to be the corridor

that goes down when all the currency and everybody gets to put the most important thing on their corridor. we had some designs in utah when it came our turn. do we put the snowy is the demonstratest snow on earth and we appreciate you coming out there and skiing and spending your money if you don't mind. no, what we chose ultimately was to put something that occurred in 1869 when the two great railroads came together in northern utah a placed called prom monetary point and to i think br the railroads together they drove a solid golden spike that can had written on the side of that spike, may god continue to unite this nation as this railroad joins the two the great oceans. they invited to drive that ceremonial spike representatives from two migrant groups how had been hated and despised by other americans who were mistreated

who were called criminals who were called less than human, and yet, gave more of their blood and their lives an their sweat and their tiers to unite our nation so the chinese building for the pacific to utah irish workers who built from the plains to utah, those twos groups drove the final spike. i thought that was significant to utah. and thing that we celebrate and i think it's relevant today. as we a year ago now after arizona had passed their senate bill 1070 and utah was represent tins there were quick to want to follow, we have to do exactly what they're doing. we now have 100,000 new illegal aliens they said in utah because they all left arizona. well, we only have 110,000 and i don't know if that was necessarily accurate but you know that the outcry across this country and in utah, we have to do this, we have to enforce and

you know, the rule of law which is clearly important as the chief law enforcement officer of my state, my sworn zut is to enforce and uphold it the rule of law but as a law enforcement officer, knowing that a strict enforcement only first of all was not what i felt utah or america was about. second, something that we did not believe would work. in utah, it would be a catch and release program. it would drive people further underground. truly would not serve its purpose and so we were worried in utah. police officers did not want to become i.c.e. agents. we're very busy doing the jobs we're sworn to do in protecting the people of the state of utah. and in many cases, we're very successful with our efforts to go after certain criminal aliens, those who come to utah and to the state to commit crime. who deal in human trafficking and drugs and arms and stolen identities. and we're working very hard to

go after them and our most important witnesses our collaborators our help in attacking that problem were the very members of the migrant community including those who were here unauthorized. and so our thought was, we have got to do something different but just say no to enforcement only was not going to work. we realized that. because of the clamor of the hour, the shrill voices, the misinformation about crime statistics, and costs, simply knew that we had to do something different but how do you do that essentially in a republican state with a two-thirds veto proof majority in house and senate and a republican governor and one of the only states that has a convention system where you don't just go to a general primary of mainstream moderate republicans, but you have to go to a convention which often are highly dominated by the extremes? that's true for either party. and so we have legislators

nervous about wanting to do something in the polls or we've got to do enforcement only. but what do we do? how are we different? so we had a symposium about a year ago, more in the summer knowing that we were coming up to a legislative session and a way that we did not want to go. and so i brought up the golden spike. i found an old railroad spike i spray painted real quick. after the i held it up and talked about the golden spike, i looked for it later and it was gone, and the security, the troopers up there said we thought that, the governor's here. it's a weapon. i said, that was my golden spike. you can't take my golden spike. hold up your hands. one of the troopers goes -- guilty. but we talked about this and we need to do something different but we need to bring people together.

states as long as our federal government, our congress fails to act on comprehensive just equitable workable lasting solution to immigration, the states are going to be called upon to do something. people are demanding that something be done. and i understand the frustration and particularly in the border states with arizona. i've been in many conferences with attorney general terry goddard where we were working on law enforcement issues across the board way back eight, nine years. >> terry held a conference down on the border corroborating with counterparts across the border to deal with crime and other issues. i understand why people are upset. but there's a way to go about it correctly and it has to be based on something that matters. not the clamor of the -- not the shrill voices, nos nis information but based on principle. i know you're policy people here. policy ultimately should be based on principle.

and so we talked a little bit about bringing together a group of people because there's all those out there already who are working so hard in this field but who for some reason the voice was not heard several years ago when congress got so close to do the right thing and passing xensive reform and that was overturned by the shrill calls of amnesty and everything else. so we talked about, what was this country based on? let's go back to our very roots. i said i go there. i had a eighth grade grand forewho arrived at plymouth 15 years after the may flower at a 10-year-old indentured serve haven't who was later killed by lightning and his father was raised by the son of a may flower compact signer. this has been a family history for us. so we looked at that compact which people believe that everybody on that may flower were all the same religion, the same belief, the same dales.

and they weren't. certainly there were the separatists is 9 pur to knows, the pilgrims who were coming to america for religious freedom but the boat was also full of others who were nonreligious who had different thoughts and ideas. they decided before they set foot on this new land they needed to come together and form a compact based on principle. on creating a civil body of politic, going back to aristotle who first brought up the word politics. i know politics today is ugly word. you almost can't say politics without all the allegations of graft and greed and dealing and backdoors and smoke-if i had rooms. but politics as the meaning was people coming together for the benefit of the community, for the benefit of the whole. the people who come together in the right spirit based on principle do the right thing ultimately. and so in utah, we said we have to have something that will maybe guide legislative policy that will give an answer, that

will bring the really majority of the silent folks out there who have a tremendous interest in in issue to try and guide legislation. and so we developed what we called the utah compact. based on basically american policies and thought about the importance, yes, of the rule of law, about the important role obviously, the key role of the federal government in immigration policy nationwide. the importance of migrant workers to our economy as a nation of immigrants. the importance of keeping families together. and so we brought together the face-based communities, law enforcement, business communities, people who said we need these jobs. i cannot milk my cows in southern utah with american labor. i cannot do it. i try. andy know that there are those who are corrupt and who do take

advantage of migrant workersen an undocumented aliens in a horrible way, but there are many in the state of utah who the are good honorable decent men who want to provide for the economy and help grow the economy. and so we brought all together behind the utah compact in november of last year. come january when our session started as we starred to hold panel discussions and debates and talk about the true facts about immigration and start answering the voice, the only voice we were hearing is round them up and ship them out, we starred hearing a different way to approach it. yes, we need to do something but states can play a role. what can we do? what can we do? what we ended up with, where we were headed in january when we starred was not only just an enforcement only bill but we were also headed towards repealing our in-state tuition for the children of illegal aliens, something that is unique and special i believe and it

helps me as i go into neighborhoods of at risk youth where 86% of our gang members in utah are you hispanic kids because they're being told you can't succeed in white society, i'm telling them stay in school, stay out of gangs, learn english and if you graduate from high school here just like anybody else who comes to the state and goes to high school gets to the go to college and pay in-state tuition. we will taking that hope away from them. in law enforcement it makes sense we have the ability to identify people who are driving on our streets and 85% of those who have driver privilege cards who are undocumented immigrants have insurance. we were going to the throw the bums out kind of attitude. that started to shift as people started to think about policy and about wa what we're all about. the polls started to turn. support the legislation that is comprehensive and in some way tries to address the issue in a different way.

and indeed we did. now we -- what we ended up with isn't perfect. we still have mate with eod yesterday. they're still contemplating lawsuits. if they do, then we'll deal with that but most of our legislation did say we're trying to work with the federal government, not against the federal government. we're all in this together. but we need you to get you the to do something. we've put the effective date of our guest worker program which would bring people out of the dark so they don't have to steal someone's identity to get a job which will document them, criminal background check, pay a fine, pay a fee, no amnesty. we want you to be able to feel that you can continue to work within our society. without going into the details and i know we want to get to the panel discussion, let me just say that it worked for us. we turned 180 degrees. gin, it's not perfect and we still have a long way to go. but we decided that -- i decided

there was so much success in a state now where we had republican legislators who have to go to a convention who are going to face all the people saying you're done, i don't care how conservative. you can be with us on 99 principles on issues but on this one, you're finished. and they've told me i won't have that fourth term. and i said, do you really want to elect people just by doing this? and trying to get a sense and then taking a position? we need to do what's right rye for the right reason. so we're now going to start talking about an americas compact as we founded a new committee. we're growing the leadership. we're talking across the country using those same groups, all of those who were invested in this issue nationwide, american leaders in business and religious-based organizations, churches. good people, law enforcement from across the country. mayors.

legislators. to come together as a voice not supporting any one type of legislation but to say what we do feeds to be based on principle. i really appreciate president obama stepping out, doing the same thing, calling together all these same groups i'm talking about, all of those of you who are invested in this to say this time we need to go about this. now is the time. politics aside, we have to resolve the issue, we have to come together to work on it and have to all speak up. we will fail if all we hear are the shrill radio voices, the nis information, nativists and those who were misleading people who are dehumanizing people like terms of calling a person a legal are referring to their infants as anchor babies, talking about being invaded, scaring americans across the board. that has got to be answered with that louder moral voice of this country. in closing, i have a great quote that i like.

it's guided me a lot as an el t elected official. calvin coolidge didn't say a whole lot but when quiet cal spoke sometimes it was profound. one time he was smoking to other elected officials. and i'm going to paraphrase what he had to say. but he said that the people in general need a renewed faith, a renewed faith that this country was based on principles that will endure. and this speaking to those elected officials he said and elected officials need to have a restored belief that at the end of the day the and probation of the people is given not to the demagogue merchandising with the clamor of the hour, pandering to people's wants, but to the statesman. representing people's deep silent abiding convictions. this is a special place. i don't want to hear any more that korea and iran and russia

have much stronger immigration policies than we do. i think we should be more like them. as i said, we are that golden door. we are that country that treats people different, that looks at the worth of the soul and the individual. and deals with the problem which is a problem that needs to be dealt with in a way that is uniquely american. and i know that's what you're about. and so to me, frankly, it's an honor to be here with all of you and lending my support and voice to what you do on this great panel that we're going to hear from now. so thank you very much for your time. >> all right.

good morning. and let moo begin by thanking you, mr. attorney general, for a wonderful start to the conference for today and certainly a perfect lead-in with the discussion that we want to have here on this panel. my name is dorisizener, i'm director of u.s. programs at the migration policy institute and i'll being as moderator for this first of the panel discussions of the day and as andy said in welcoming you, it's quite a chock full day with lots of topics and lots of very good speakers so we're dry theed that you're here with us. i think we're all as interested to hear the program as we are to participate in the program. first i have to ask you as a housekeeping matter, please silence cell phones. secondly, for all of us who

ultimately will ask questions, et cetera, pay attention to your mikes because this is being recorded and we want to be sure to be able to pick everything up. now, as your program says and as dimitri said in the introductions our topic for this panel is the def oh lugs of immigration authority, the role of states in immigration enforcement and policy making and to discuss that, we have an outstanding group. on my right is terry goddard to served as the attorney general of the state of utah for two terms ending in 2010 and that was preceded by a very long career in public service of a variety of different roles, including having served as mayor of phoenix for six years. also with us is somebody we know well tamar jacobi, president and ceo of immigration works usa small business owners working to advance better immigration loss.

she's a nationally known journalist and author and somebody who has been indefatigable on these issues. it's very nice to have you be with us, tamar. finally, of course, mark slust shurtleff. suffice to say i welcome your joining our panel also and we'll allow to you ask questions of all of us, including mark at the close of the panel. now we're going to try to do this in a slightly conversational mode. and i'm going to pose questions of each of the panelists to get us started and hopefully that will generate some follow-up questions and some cross talk among us. but let me first try to set the stage here in terms of the issues. the issue of devolution as an element of immigration prls is in fact a new phenomenon. we all know the familiar phrase that nature abwho ares a vacuum.

mark made reference to this is in his comments. we've had a vacuum in that there's been an absence of federal action for now many years on an issue that is of increasing urgency and concern to publics all across the nation. and that has led states to step in to a province that has been throughout our history the exclusive realm of the federal government. so, we are in a new place where immigration is concerned and where the role of states are concerned. dimitri gave some of the data. let me update it with the most recent legislative session, the first quarter of this calendar year, 2011. through the end of march, which is when most state legislatures are their busiest. more than 1700 immigration or

immigration related bills have been introduced in all 50 states and in puerto rico. in contrast, only six years ago in 2005, there were only 300 measures introduced in legislatures so from 300 to 1700 just gives you some sense of what the arc here has been. those measures, those 1700 measures that were introduced in these last months are basically divided into two groups of measures, and the source for all of this of course, is the national conference on state legislatures which keeps the most complete and best records on these issues. the basic groups in which you divide those 1700 measures is into targeted measures and omnibus measures. the vast majority of them are targeted measures. they deal with a specific thing such as driver's licenses, a

particular program, state program eligibility, something like that. it's the omni bus bills of which there are far, far fewer that were interested in this topic of devolution. it's the omni bus bills that are the ones that sweep across many domains and that have substantial impacts on states and on the lives of people who live in our communities. those omnibus bills number far, far fewer than the 1700 in the last -- in this first quarter of this year, there were 52 omnibus measures introduced in 30 states. only two of them actually passed and were signed, and those were the bills in utah. the third has been passed in georgia and has not yet been signed but all signs indicate that, in fact, it will be signed. so we've had three out of the 52

that have been enacted or likely to be enacted. none of the others passed in this calendar year. so what we're talking about here are issues and developments that have actually happened in just a few places in the country. but at the same time, they represent a very significant break with our past and they raise a series of important new questions for immigration law and practice. so, with that as the backdrop for what we're talking about, let me go first to terry goddard to has labored in this vineyard for some while and ask him the question, several questions about the arizona experience. arizona, of course, has been at the epicenter of the devolution issue. having passed sb-1070 last year,

and of course, we all know about the federal lawsuit to block it that is winding its way through the courts. so although the key pieces of that sb-1070 law are on hold until we find out what happens to the case, terry, talk to us about what the indirect effects have been in arizona from the passage of sb-107 pop has the recent 9th circuit decision changed things in any way, and what do you think accounts for 1070 having passed last year and other measures by the same sponsors having been brought up in this legislative session not having passed? >> okay. thank you. let me thank the conference for recognizing that there has been a huge shift and that state governments, state legislatures, state law enforcement officials are at least for the moment where the debate on immigration is taking place.

and i think this conference comes at a very, very good time. the indirect impact of senate bill 1070, i guess norris, you're kind to say i labored in the vineyard. i think perhaps i was one of the first casualties of the vineyard. had it not been for senate bill 107, i would be addressing you today as governor of arizona, not just as a former attorney general. so that's a personal note. there's much more. but my general election opponent, the now governor of arizona, jan brewer, at the time a year ago that she signed senate bill 1070 was running third in a field of four republicans. and my probable opponent as the democratic nominee was going to be a guy named buzz mills, a name that is perhaps lost in history but who looked like he was the odds on favorite to win the republican nomination. everything changed a year ago when 1070 was signed.

and there's tremendous power as mark has referred to i think very appropriately in the images that have been conveyed by the advocates and the power that swept through arizona and you've seen in the 1700 bills that have been introduced around the country. this is the time for reflection one year later. i guess that anniversary is particularly appropriate. the arizona republic editorialized on the one-year anniversary that a year later, senate bill 1070 looks like a big expensive con. it brought us boycotts, lost business, a sullied reputation, another court battle and a betrayal of arizona's heritage. oh, yes, and it did nothing to make the border safer or reduce illegal immigration. so you might say that one year later there's been a lot of morning after reflection and sense that is maybe we made a mistake. we also got attacked by leaders throughout the world like mark shurtleff who has said some nice

things but here's what mark said shortly after 1070 was passed. we are different from arizona here in utah. we used to think the same was true. utah colonized ads but now they are disclaiming us as their errant progeny. we do things differently here and here's the key. we want to show people we can follow the law and behave humanely. promptly after mark's statement, his good friend al sharpton immediately jumped on board. and came to arizona to show us the error of our ways. okay. very quickly in direct impacts, economic impact undoubted. the number $388 million in casualties from the boycott that was directed at our convention trade. i'm not sure where that came from because it's an almost impossible number to determine. but suffice it to say it's been

big, it's been huge. we've been economically hurt and the business community knows that. our farming community has been particularly hammered by the lack of immigrant labor, the kind of thing that utah wrestled with. arizona considered a couple of years before. and decided not to the try the pilot project with ins. the important thing about the conventions i'm afraid is not the ones that were canceled, it's the one that just never put us on the books that never consider and once you're off the cycle, the rotation, you don't get back. and so it could be a permanent change to one of our most important industries. our relationship with mexico obviously has suffered. it doesn't help your business environment to have the mexican congress passing resolutions of sense sure on a regular basis. what's much more important is i met a year ago, well, less a

month, with the product shippers, the people that bring all of the nation's salad in the winter and most of the vegetables across the border. arizona has been the port of entry of choice by far the number one point of entry for an approximately $22 billion industry. one of the shippers asked me, he said does the legislature have any idea what impact that has on our business? and i had to tell him no. i think they do not. that hasn't crossed their mind. and, of course, all of southern arizona is now threatening to secede from arizona calling it selves baja arizona, perhaps as a reflection of that. here's a $22 billion industry employ about 90,000 people in the state of arizona heavily imcan the pad. i understand, i fear this had and it may it be coming true that texas, our absolute arch nemesis after utah has now gained the first position in agricultural shipments.

i fear that's something we captain reclaim because those changes tend to be permanent. we've had some good news. the national bcs championship was held in phoenix this year. lots of people came. i can't say that they were deterred, perhaps in part because of the federal judge's action deterring much of the enforcement of 107 op. mark shurtleff however is carrying this battle much further than anybody thinks reasonable. he's going after the bcs, not just arizona, but the whole bowl concept. oh mark's fixing that one. law enforcement, mark made reference to it. he's absolutely right. our sheriffs, our police chiefs with only one or two engsceptions and those exceptions are very outspoken, sheriff joe arpaio and sheriff joe babu, the others say this is a travesty for law enforcement, not only does it divert resources if it were imposed, not only does it micromanage our police response, but it kills community policing.

that thing where we depend upon the citizens to call in the leads, one-third of the state of arizona is latino. they are far less likely to call in when they see a crime in progress or suspicious activity. and there have been statements. i know from proponents that 1070 is a frustrated way to fix a broken border and that it reflects a way of state law enforcement to help with border security. that's nonsense. and i think serious law enforcement has recognized it as such. people who as a routine business practice rape, torture and murder are not going to be deterred by asking for their papers. i'm sorry, they've already committed enough felonies that in they're in the hands of law enforcement, they will be prosecuted and the law does not add one thing to our deterrence effect. our image may be the worst casualty. it's hard to figure out what an image effect is but 1070 certainly had one. we've been called the new

birmingham, a center of intolerance and violence. our own politicians have said we're a center of violence and the beheadings are constant. many people, parents of folks living in arizona going to skol there call their children and say we're worried for your safety. we understand there are automatic weapons fired at all times in the day or night. not true. in fact, along the mexican border, we have one of the lowest crime rates in the nation. we're proud of that, but nobody notices that it's happening. so we have a bad reputation and the worst of it probably is that comedy trawl has a special affection for arizona that has been reviewed for our misstatements. last about the 9th circuit decision, i don't think it's had a big impact. however it has drawn out the controversy. and i think here in the law center, we have to think about what the use of litigation. i want to sound out in favor of the state of utah because i think the federal litigation rather than working with the

states, trying to find constructive lugss to some very real agony that the states are feeling budget wise and crime wise, they go to the courtroom and as a result, the argument before the 9th circuit was on the 1st of november. the decision came down two weeks ago. an awful long time to wait. now it will go to a trial on the merits. another long delay. that will be appealed to the 9th circuit. ultimately they say to the supreme court. it puts an entirely different framework and one that the proponents russell pierce in particular want to have happen. they've told us from the beginning, we don't want to try to enforce this. we want to fight it out in the courts. it did give me my favorite quote judge noonan notice concurrence in the 9th circuit decision said the following and i think it's about time that we separated out the 26 pages it of the district court opinion, 0 the 80 plus pages of the 9th circuit opinion and got to the heart of the

matter. i think the judge said it very well. federal foreign policy is a employeeism, a word i had never heard before. in spanish, it's pleosmo. what foreign policy can a federal nation have except a national policy. that 50 individual states are one individual state should have a foreign policy is absurdity too gross to be entertained. in matters affecting the intercourse of the federal nation with other nations the federal nation must speak with one voice. that immigration policy is a subset of foreign policy follows from its subject the emission it, regulation and control of foreigners within the united states. with the exception of the word employeenism, it is a comprehensible idea of what we are talking about hear here and i think we should focus on the bottom line. we don't have 50 foreign policies. we can and must have one in the united states and this is a debate, frankly, about a challenge to that part of our federal system.

got a lot more, but i'm going to stop talking. >> we'll get a chance to get back to it. so let me then turn to tamar because she works was business interests across the country. it seems as though business and employer voices are becoming moren amour active in these state level debates. talk to us about what role you see them playing. is the involvement growing? is it changing? and what are the other influential voices you're seeing? give us some examples of differences in the politics around the country. >> thank you so much. thank you to all three organizational sponsors. it's really an honor to be here with this distinguished panel, mark shurtleff and terry goddard. so the short answer doris, is yes. is it growing? is it ever growing. for the past several years, four, maybe five, business has

been emerging as a force and a voice in the immigration debate. sometimes it's been slow gradual emergence. sometimes there have been bursts. sometimes there have been steps back. but overall, if you the trajectory from four or five years ago is a steady upward trajectory. just to give you a story to tell you how far we've come, this is not a state story, but about five years ago, we had a dinner here in d.c., a small behind the scenes private dinner where we had a group of different kinds of business leaders to talk to policymakers, and there were executive vice presidents of major corporations that you all know, we had lunch yesterday probably and where you've stayed in a hotel tomorrow but there were also some small business owners in the group. we went around the table asking people who they were and why they were there. by far the most moving powerful owner was a landscaper from california who had i don't know, 200 employees or something.

and he starred talking about how hard his immigrant workers work and how patriotic they were and how they understood the value of family and what a contribution they were to his business and his community. and so we had the idea, let's make a little tv spot about him. so all the big companies around the table they didn't want to be anywhere near a tv spot or have their names in the media for being involved in immigration but willing to pay to make a spot about this other guy. we made a tv spot about this guy, his name was dave from california. the ad ran. we ran it -- we didn't know how ad campaigns worked but they had to be bigger and national. but we ran them on all the sunday morning shows in d.c. sure enough, dave penry, "the wall street journal" noted here was a businessman speaking out. they did a story about him. and dave, he was an ornery outspoken guy. that's why he was willing to do

this. so in "the wall street journal," his quote he said how would you, and at the time i thought it was a terrible mistake and distracting. i only now realize how true it was. he said how do you think it feels to be bob dole, to be the first guy to talk about you're rec tile dysfunction. and he was comparing being the first business leader to speak out with being the first bob dole. and again, you know, at the time i was mortified. i thought we did all this hard work. this is what it came to. but he was right. and the point is, he was right. soets true story. it feels like a century ago. five years ago, immigration has worked with business coalitions in 18 states in those five years. got the scars all over to prove it. but let me fast forward to this year in the states. to give you a sense of how far along things have come. and the point about business activity and i think this is the answer to your question, doris, is how varied it is.

how differently the groups, different groups act, what they focus on can be so different, when they do it, how they do it. the biggest divide i think is the decision about do you speak out publicly, do you take a public stand or do you work behind the scenes. most of us as advocates we're kind of formed to recognize values speaking out publicly. of course, those ho are business groups that is have lifted up their voices in public this year have been -- those are the ones we know about, the real heroes, those are the true victories. the salt lake chamber took a huge lead in the utah compact. arizona's ceos, i'm sure you all know 60 ceos signed a letter to the legislature saying don't do this. 1070 was enough. the laws of past years are enough. that was -- that came together like a tornado. that arizona letter. you know, it was literally a few chambers came together in the space of 48 hours.

and it actually worked. it was an important voice in saying to the legislatures in arizona that the state has gone far enough. we've become enough of a national pariah. no more, let's take a time-out. there have been other public stands that have gotten a little less attention. in kansas, the business community had a very public event, in indiana, big companies like eli lilly ankum mince, it's very rare to see companies with big brand names take a stand. these are almost unbelievable breakthroughs game changing to see business come out front like this. but it's also true, and i mean the truth is we have to acknowledge that most business people still prefer to work behind the scenes. they don't like to have their names in the media. they don't want to alienate the lawmakers who had he they are used to negotiating with and like to make deals with. and lets be honest, this is much more common. this is what happens in many more states than the states

where we see these people bravely coming out publicly. and let's be fair. it can also be effective. it shouldn't be dismissed as just behind the scenes negotiation. i think business groups face a kind of agonizing choice and i saw it most very vividly this year in a state i won't name because they lost, maybe you can guess. but the business community divided over should we go on negotiating behind the scenes, you know, we think that's the only way we're going to get anything. we think that if we go out and public we'll blow do out in pub blow it. we're -- they were convinced that lawmakers would shave a little here and there until the law became palatable. lawmakers are never going to give in. you have a group saying you have to muscle them. from d.c. and the point of view of an advocate, that seems like the decision. go for it. muscle them. when you're in the state, it

becomes more complicated. the legislators weren't going to be muscled either. my point is that negotiation can be an effective tactic for business. a combination of negotiation, speaking out can be very effect i have. maybe back room courage is a step on the way to public kounch. it depends on the situation. and i think we have to recognize help when it come, wherever it comes. a second divide is what are they going to spend their energy fighting? normally, for bilz people, the first thing to catch their attention is work place enforcement. that's what businesses are most focused on to begin with. laws like bs 1070 have taken awhile. that was perhaps of interest to them, too. evolution, out of arizona. i think the arizona business

community would be the first to tell us they made a mistake on 1070. they were neutral on 1070 in the battle running up to it. they tone mistake. they were focused on the economic and work site parts of the law. they didn't foresee the boycotts, the loss of workers, the damage of the state reputation and economy. they learned their lessons. this year, in every state where there has been a badle over a 1070-like measure, business has been involved in fighting it. in fact, this year, most of the -- as doris pointed out, a lot of stuff has been taken off the table. with them have gone vary fie mandates. the main way that businesses

defeated the mandate this is year is to get the public so concerned about the 1070 that the state has retreated totally. that's been the main way things have worked this year. third and last, a word about strategy. the third decision that business groups face, and that goes back to something mark said, is do you just say no? do you try to block the legislation? or do you come up with an alternative that scratches the itch of the law makers that want to crack down. but is something that business and the rest of the state can live with? so that lawmakers can keep the promise to voters to crack down but minimize the damage to the state. to many of us advocates, come up with an alternative that is less bad sounds unacceptable. 99% of the time in these defensive battles, that's what

works. just saying no, just saying don't do anything, enforcement, no, states don't have any prerogative here. citing the constitution doesn't get it anywhere. the arizona ceo letter, what happened in arizona this year is the exception. usually, it's coming up with an alternative and getting acceptan acceptance. many other examples, virginia, florida, we can go on and on. usually it's about focusing on bad apple employ yeers that are deliberately breaking the law. in florida, when will they e-veri e-verify. driver's licenses. they're shaving a little bit here and there. that's where we have had most successes in defense. this raises the question, why do

business coalitions or anyone in the state, why do they work to fix these bills? after all this is unconstitut n unconstitutional, if it is why not let them pass the worst? that sounds good on a podium in washington. but if you live in the state or own a business in the state -- i'm getting laughing. it's a luxury you can't afford in you live in the state. you have to make the bill as palatable as possible. it points to the hard choices these groups face. going on the record, just saying no. doing the brave, grcourageous thing is not always easy. we're working in the art of the possible. i want to take my hat off, really, to utah. you know, utah has pulled something off really amazing. i think historic turning point. we'll look back and see utah as

a historic turning point. as i think terry alluded to, they're not the only state thinking about this. for the past year years. other states have been working. arizona hatd a bill like this, texas had a bill like this. virginia considered one. in washington state there was a bill like this. enforcement only is not enough. that was the plan. let's add a temporary worker component. whether it's imgranlts already in the state or workers that we'll bring in for the future. we have to recognize that economic need. and you know, let's be honest here, too. even the broader bills are probably not constitutional. utah may or may not get a wai waiver. they may not make much difference on the ground. the first sbut the political break through. left and right, business and

state law enforcement coming together. reps saying we have to be part of a solution again. republicans don't feel like they have to be part of a solution. in the states, the republicans saying they have to be part of the solution. and everybody saying, let's fix something rather than block or crack down. and the second critical bus is the message to congress and the rest of america. the message and the example. that we have got to solve this. it's a three-dimensional problem. and the sky won't fall if we fix a little bit of it. utah is the turning point. now we have to see more. they can't just be, in my view, compact. the compact is brilliant, but it's that the elected officials stoop up to the plate and said

something. groups are inkreegsly winning to voice the message, be part of this fight. we have come along way from dave henry. we still have a long way to go. goodness knows. but i think experiments in the states are going to be a big part of driving us forward in the future. >> all right, very, very helpful. mark, historic turning points. are you ready? certainly utah is being hailed as a new way forward. you mentioned in your remarks you're going to go national in the development. can you tell us, what do you think is unique to utah in this? and what applies nationally? what do you see to be the new obstacle, perhaps in trying to take this national? what level of confidence do you have that your law will actually

ever be implemented in light of the arizona litigation and the fact gnat the federal waiver doesn't exist? >> i sent my tweet out. there's a note on the door. use your tweets effectively by referring people back to information. i included the www.migrationpolicy.org on my tweet. use the technology. it's huge. especially as we start spreading the word. especially the youth voice is important in this debate. they seem to be much more open and receptive and more willing to see some important change. you know, as far as the example of utah. and tamar hit it on the head. going back to the declaration of independence saying that the

government has derooifd its just power from the consent of the governed that lawmakers are concerned. they want to be ree likted to use the influence and the desire to serve to effect policy change. we had to provide, obviously, the ability to tell them there is support for you. there will be support. we don't have elections for all those who voted until next year. and i tell you, there's already a repeal 116 and call kinds of movements to oust the governor for signing the bills. i was on a show just recently. with the director of fair and he on-air guaranteed, i don't know if he's been to utah. i guarantee that those voted for this will be recalled or they'll lose this convention. i said, really?

you're guaranteeing that. >> a good prosecutor. >> consumer fraud. >> terry was always my mentor. i may need outside counsel help. >> i'm available. >> so, actually, i'm quite confident now because you saw the change in the poll number as people got ge hind. they're speaking more for us. the compact ideals speak more for main treatment utahans. you have a large, shrill, right wing 9-11, 9-12ers i guess they call themselves. the eagle forum groups. they're still the minority. they don't sound like it, but they are. that's what happened with this.

i will tell you this. maybe exhibit "a" in the lawsuit. one person resigned mid-term. the annual guest speaker, and he supported his daughter to replace him. and a couple of other extremely right-wing republicans, one sitting legislator who was an enforcement only guy. all through the session. and they lost to a main stream moderate republican, aaron osmond. it didn't hurt in out that his name was osmond. but he won. 2-1. that's the first example. they brought this yooissue up. the delegates picked a new replacement. there is cover that you have to realize. and that's what this movement

does. is getting people once again speaking out. so, yes, we did come up with interesting results. one that we didn't talk about that tamar made me think about, giving the legislators something to say they're doing something. enforcement is important. the rule of law matters. the role of law enforcement is to enforce state laws. and say, as i mentioned before, there are many who are coming to our state undocumented and who stay there because they want to prey on the public. they prey on first and foremost other unauthorized residents. we said two years ago, look, let us do something about it. we will create the secure criminal alien strike force. prosecutors teamed up with investigators. we'll focus on major felony

criminals that are also illegal aliens. they said, great, do it. we don't have money to give you to do it. we applied and got our money. and we were able to get enough to continue the strike force that is showing amazing success. and every legislators is proud of the success of our group. this year, our money's run out. we went to them and said, step up, utah, now, if you like what we're going. though there are no building blocks in the budget and you're cutting my office another 5% this year, you need to fund our secure strike force. guess what? they did. they're going back to the constituents and saying, we're doing something about those that are the problem. and our very best support is the migrant community and the confidential informants are primarily the undocumented aliens. we convinced them to take out the reasonable suspicion.

we made it major crimes. we tried to distinguish. we ended up with a sponsor who was russell pierce, a puppy dog, i guess i could call him, with all love and respect to representative sandstrom. >> running dog. >> he's been blasted by his own groups as having been a sellout. but we face a potential challenge. i have met twice with the department of justice. they're saying, you're asking us not the sue you. i said, yes, i'm hoping we don't need to be in litigation. i remind him that everything says that a federal waiver, obtain federal authority. i convinced them to put it off two years. maybe, if nothing else, encourage congress to give them authority to do something about this. at the end of the day, there is no waiver, as you know.

first thing they told me when i went in there, the white house, and others, they said, you can't do that. we said, we're trying to work through this. i want dwroud to consider, dors meissner was my inspiration on this. i brought up a memo. it was a leaked memo. sorry, it has great points in here. you ought to take a look at it. it talked about what could be done under current policy for important purposes. they listed keeping families together. economic growth. justice. how about that concept? doing the right thing for the right reason? and then they sided, talking about deferral of action, known, unauthorized aliens. are we going after you to take action now or defer it? it's based on prosecutorial

discretion. there was a note on there from doris meissner. we're not saying to companies, we're going make you legal. what you do, if you hire one of these undocumented aliens, unless federal government says they're going to exercise prosecutorial discretion or deferred action, you're still at risk. it's not going work unless we have some kind of federal authority or some agreement. then i say, how do we do that? we can't take up a statement we're not going prosecute. i said do you have the resources to go after them? how many companies are currently employing? there's a lot of them. do you have the resources to go after all of them? confine up to six months ceos,

fine them $3,000 or $5,000 per -- really, no, we don't have the resources to do that. we're very busy with the limited resources. i.c.e., do you have the numbers? no, we don't. i brought up the example from arizona. >> there you go again. >> it has to do with po polygamists. >> present company excluded. >> exactly. we've worked on this issue. there are tens of thousands of polygamists in the west. we don't have the resources to go after and prosecute in arizona. in utah it's a felony. in arizona? >> no, it's not a felony. >> i love arizona. we work well together. my point was this.

tens of thousands, we only have 5,000 jail beds in utah. are we going build new prisons? what do we do with 10,000 kids? texas couldn't handle 500 of them. we're going to focus on those marrying little girls, the ince incest, the child abuse. the welfare. that's what i'm asking. if we have people that are otherwise law-abiding citizens, the kids are going to our schools and scout troops. we don't want them stealing people's social security numbers to work. bring them out of the darkness. they're not the trouble makers. they're not the problem people. you, federal government, until you take care of that issue, you can focus your limited resources on going after the bad. that's where i'm coming from. whether that will work or not, i

don't know. we may be in litigation. but we're trying. if nothing, at the end of the day, if it's another resolution, but this one on steroids, do something, federal government. now is the time to act. >> can i comment? >> please. >> i agree that utah has done something very important. perhaps history making. it's been followed by indiana. a number of other states are looking at the compact principle. what that does is changes the message. as somebody who got steam rollered by the message last summer, i have a lot of concern about the power of russell pierce's statement, what part of illegal don't you understand? an incredibly powerful and simplistic political statement. unopposed by what i believe is a strong majority of folk t that

say, it's not that simple. there's a lot more to it. utah has shown a powerful search light. i think it's ironic to move it in a national program. we were working on state's rights here. the flip side of the message is so important. i totalled up in arizona. the business community, virtually unanimous against 1070. the faith community with very few exceptions. especially the evangelical community. the mormon church opposed to this kind of action. we had the labor unions. almost all the newspapers. law enforcement. the minority community. brown, black, and red in arizona in way i have never seen them unified before on a single yr issue. yet in the election, we got killed. by my calculation, that's 80% of the arizona voters.

what is not being heard here? the articulation of principle that mark has said to well today. the self-interest of the business community. we were going to take a huge beating if we traveled down the road. and what wasn't being heard was a variety of voices who said, you know, we have a heritage here. one-third of the population is latino. before this was a country, they looifd in the state of arizona. before the united states was formed, sandra o'connor has been passionate about the fact that the border culture is an amazing culture and it's being destroyed by some of the rhetoric coming out today. if utah does only one thing, change the discussion, they have have accomplished something historic. it's not perfect.

none of our efforts are perfect. every session, they pass about 1200 laws. in the next session, they amend and change half of them. it's a step in the right direction. i think the idea of making it national is strong and is something we ought to be part of. >> let me ask you a followup to that. you have made a compelling case about the broad range of interests and particularly, not only the economy of the state but the overall effects. but the sponsors of this legislation and the people that have been spear heading it are claiming it's a great success. the issue is, what are the -- what are the benchmarks here? and success, to them, means as has been vividly quoted, care vance of latinos leaving the

state. well, here's a state that, as you say, has a large latino population. much of it illegal population. and, other minority groups. what do you -- what does one say to that? has that been happening? sit overdrawn? is all of the other things that you would consider to be negative not important in the face of this overriding commitment that sponsors of this kind of legislation have to changing the makeup of their state? >> well, the first casualty of this discussion has always been the truth. the facts. maybe that's not unique in american politics. but it's been happening here. some people, and russell, foremost among them, believe in creating revealed truth. 50% of the violent crime in arizona is committed by illegals?

not true. 50% of the prison population is illegal? not true. we have had an outmigration. if you believe that is a positive outcome, you have made something happen. i don't know how you say what it is. but the paper has said as many as 200,000 people have departed this state. because of the hostile climate. the enforcement. the idea behind 1070. it's also restrictions on registration. proposition 200. employer sanctions. we're waiting for a decision. there has been a drum beat of progression of anti-immigrant activity. some large number of people have left the state. the first casualty is a congressional district. we would have had one more congressman or reapportionment

in they were still in the state. we have taken aim. we're a gun rights state. we are blown off our big toe in terms of a congressional seat. mark's statement about the quarters. i just can't talk about that. utah's mission is the golden spike and the unity that comes from it. arizona's statement with the saguaro and the grand canyon. two items that are never seen together. we have the dichotomy. utah has the joining. maybe that's the biggest difference. there have been results. clearly. but first, i think what we need in this discussion is a very much better access to real information. i would like to know how many people have left. how many mexican dollars are not coming into the state.

what is happening to to agricultural trade. how many people are coming across illegally today? how many are being deterred? i.c.e. gives us partial looks. nothing that advocates and opponents of 1070 would have to agree, we don't have anything like the data bank we need to have an intelligent discussion of the impacts of the legislations. >> it was more than utah just compact and everybody join it. we had to start doing con friends like this and bringing in experts. as far as the truth being told, they were giving all the alleged crime statistics and how much of the prison population is made up of illegal aliens and latinos. we haved a byu law professor to at the beginning put together an in-depth study of every jail and state prison system and the

populations. very thorough. we were able to show the truth. it mirrored in many cases the number of latinos committing crimes were less than their percentage of the population. once people hear the truth, they hear the opposite to what the loud voices are saying. >> there's a perception in law enforcement. it's been in the main stream today that the illegal population, the workers, are the same as the cartels, the organized criminals bringing people and drugs into the united states. as a law enforcement officer, i know that's not true. but it's been very difficult to get through the popular perception that they're one and the same. you fight the cartels by getting rid of the illegals. >> we tried to incentivize legal

migration. >> i want to add one note that mark reminds me of that we haven't talked about. it's public opinion. i think one of the very interesting things about the f deevolution of the debate to the states is it lets us get at the public in a different way. you poll on legislation like 1070, it's popular. 6 on% of the public says they like it. i think it is that they don't quite understand what it is. finally, someone is doing something is what most polls are saying. you often see polls where people ask, are you for 1070? are you for comp sense i? it's not exactly the same people. so, it goes back to what we have known about the public is that

there's a small minority, 15%, 20%, 25%, some places really anti-immigrant. another mall minority that gets it and understands where the country needs to go. and then 60% in the middle are not sure. they're susceptible to the arguments of, we have to crack down. maybe we should drive them out. there are arguments for principle and pragmatism. i think you can get at the 60% in my ways more effectively than you can when it's just on tv. it's because people like mark shurtleff and terry goddard and other people come out and say, the only way to handle this is there are other ways to hangle i had. the only way to handle it is to not just crack down. i think one of the beauties of the deevolution, is that it

makes it possible to have a different kind of more local debate with trusted local mess edgers. >> i'm going to open it up for questions or comments. we'll try to hand the mikes around. we need to use them. let's raise hands and i'll poinpoint and we'll get a mike to you. please tell us who you are and your affiliation if you have one. in the front here? just go ahead and talk. it's probably on. no? >> just a comment for mr. goddard. >> give us your name. okay. mike? >> i had a woman in my parish

who wanted to go to visit her mother in california and is not legal. she claimed there was no way no way was she going to be -- change planes. no way was she going to change planes in phoenix. it was not possible. >> we hear a lot of that. it is -- the mythology is, if we get nothing else today, mark and my joint plea, not just for principle but for fact is hopefully, because in that case, they're not going get arrested in the airport. i know a lot of people believe it. >> right here on the aisle. >> hi, eliza gray with the new republic. you mentioned, you talked about prosecutorial discretion.

i wanted to ask the panel, if you think -- why sit that dhf, using discretion, would help you. what are the positive benefits for the state if dhs were to make administrative changes? is that the best action that the white house could take as at this juncture? >> i have made the same plea to justice not the sue arizona when -- and i had substantially less grounds than mark does. they have learned from the precedent. they've tried to thread the needle. whether they have done it perfectly or not, i don't know. the bottom line is we have a crisis. we have, i hope it's clear, a group of people who want to send a message to washington. want to see something happen. it's true.

tamar said in arizona, you might not think this, we have the same breakdown, people are for 1070 for reform, two concepts you probably can't comfortably hold in the same pot. that's how people feel, nonetheless. they're very frustrated. both with the attempts to reform the visa system. and with what's perceived as other federal failures. what i would say is, absent a congressional action, which would be a nice thing right now, and if we could work together in a bipartisan way to make that happen, that would be number one. the business community tried to do it in arizona last summer. they were weak and ineffective, but therm unanimous. that's what we need to rescue the arizona economy. absent that, work with utah. let's look at the guest worker program and try to make it work

in the guide lines. if they went after the federal law for medical marijuana, a whole lot of people are now offenders. they're not going to do that. it seems to me this is the time to stay the enforcement and try to find a practical solution to work as a prototype, perhaps, for national action. >> i would say about the administration, less about dhs. they're caught between two political forces. one is, the president is running for re-election and the latino voters are extremely important. he's going to be the one to not say no. the federal government is interested in preemption. ultimately, this is a federal matter. federal government should make the law. that's what is in the

constitution. we hope the court will rule that. the problem is in the short term. think the administration is caught between the need to defend preemption as an absolute and wants to do the right thing politically for latinos. >> we're talking about principal, too, i hope. the right to preempt implies the right to act. you can say, you're preempted, but we're not going to do anything either. i think that is a fool's argument and one we'll lose. >> it remaineds me of lamar smith. i have worked with him on a number of issues and testified in committees on law enforcement issues. for him to write a six-page letter demanding they sue the state of utah, how dare they get involved in a federal issue. for him to say that when he's done nothing to resolve this issue where it is there

authority. as soon as he came out with the comment, i remembered the time i bought my little girl a sand box. it was a big turtle. she came in and said, tomny's playing in my sand box. i said, it's okay, there's room for both of you. she said, i wasn't playing in it. but he is. what's he doing? building a castle. what were you doing? but it's my sand box. get him out of it. i said, what were you going to do? i was going build a cast wl a mote. no, she didn't. i made that part up. there's huge pressure on him. immediately, i guess that's why when d.o.j. heard i was here yesterday, they asked me to stop by. >> was that one of the public rooms? >> they said, now, you're republican right? you're suing us on the affordable care act.

you're one of those republicans suing us claiming we're inserting ourselves in a state issue. now you're asking us not the sue you when you're inserts yourself in a federal issue. i said i know. i'm confused. >> a foolish consistency is the hobgoblin of little minds. >> the only what they the deferred action for i.c.e., the only way that works is if you just have to say, look, this is is reality we're facing here. the reality of the situation. we do not have the resources. our hands are full. the limited resources to go after those causing the problem. we're going let the states, where the problems are existing. where they have the people living in the communities participating or not fully within the community, we need to let that happen. that's -- you know, again,

wishful thinking most likely on my part. >> ben johnson, american immigration council. the other refrain is we have to secure the border first. what does that mean? what should that mean? what is the connectedness to the immigration issue? can you peel back the layers of that onion? >> i think arizona should start with that. >> as somebody that has worked to that purpose, the big problem with the secure the border debate is no one has defined what that means. not the administration and not the mccains of the world who use it as a foil for any other action. i would be the pleader, let's be clear. it's one of the most dynamic if not the most dynamic borders in the world. the idea of sealing the border, i hope, is absurd.

you have to work with a dynamic economy reality. that is number one. second, you have to work with a culture that is many centuries old. as sandra o'connor has said, it's a rich culture and it goes back to spanish and native american roots, which way predate the united states of america. let's rb that, too. it's important. let's get the debate about real law enforcement issues. please. i have been pleading with the federal government to take action at the u.s. treasury to stop the illegal flow of funds into mexico. they're uninvolved in the fight. border patrol, justice and i.c.e. are involved. but one other major entity is not. i think we have to ask why not? and get serious about co comprehensive attacks on the cartels. if we make, as part of the national goal, not building a

fence, what we know will be abated 20 different ways. you can't build a fence against the community of the finest hard rock workers in the world. underground tunnels. ultra light aircraft are bringing the drugs. they make a mockery of the walls. the head of the cartel's name is in business week. he's one of the most designated wealthiest businessmen in the world. if they can get him and find a picture, why can't our law enforcement officials? i would like the administration to pick that as target. we'll have succeeded when he's behind bars. they can run ragged the

boarders. the cartels are better than that. >> any other comments on border security? >> we haven't brought this up. with all the anti-latino tenor of this whole anti-immigration debate, with that, it's driving a greater wedge. it makes our biggest neighbor to the south, mexico, wonder about whether they should cooperate. the only way we solve this issue, which is an economic issue, the people who need jobs and need work. they need the help. is to help mexico succeed. and for people to say, we don't want their third world crime and third world this and that, when 35,000 mexicans are dead in this war to feed our insatiable need for drug. this is a place where terry g

goddard has been on the forefront. we're signing agreements. we have cross-trained 16,000 mexican police officers and prosecutors that are trying to reform and do better. we need to help their economy succeed. we need to work with them. if we see that help, the president of mexico said, as to posed to the anti- -- the degree gradation of us. if we can work cooperatively, we can do more on our side of the border. as you do more to keep the guns from coming south, we'll do more to keep the drugs and the people from crossing over. it can be done between states. >> it's happening in this prestigious law center, i hope people with concentrate on the change to the entire criminal justice system of mexico. it's not a small thing.

the states have trained the prosecutors. not the federal government been we are now training judges. so the next -- they are going to have -- mexico has a 1% conviction rate in major drcrim. that has to change. we need to have public trials. a process of direct confrontati confrontation. that does not exist today. mexico is making the change. it takes guts, determination, and help from those of us who i think know how to do it. >> one of the bills i wrote was to create a memorandum of understanding between utah and nueva leone. we want to work collaboratively to create a better pipeline and a study on guest worker permits. we're doing that to show we're working cooperatively within

federal rules and federal guide lines. house bill 466 is another part. >> i don't think we could have gotten a stronger start to this day. nor could we have had a better panel. [ applause ] >> thank all of our guests very much. we'll take a break. we'll see you back here at 10:45. thank you so much.

take a seat so we can start with our -- with our second panel of the day. again, welcome to all of you. i direct migration policy at nyu school of law. and what a panel to follow. we won't promise to be as exciting or tell any stories about our kids. but we have tried our best to lower the temperature in this room, and it doesn't seem to work at all. so those of you who want to take off your jackets, really feel

free. and all of you on the panel feel free to do that. so this is the panel that has come before the courts. and let me remind you before we get to the substance of our housekeeping details, please put your cell phones off and just also to remind you this pal is being taped, and we are also on c-span. so those of you who are here will appear on air. and with that, let me introduce our very distinguished panelists. you have their detail bios. so it's pointless for me to repeat all of what's said there. but just to say a word or two about them just to tell you how lucky we are to have this distinguished group of people.

to pass out what we believe is going to be a very important set of discussions. and we are focused here on what's out there in the landscape of litigation. where are the codes today? and issues that have already come up to the supreme court honor the codes of appeal level to all the way down, which are not even litigation yet, but our gleams in the eyes of some legislators and everything in between. we hope to cover most of this in the course of this one hour. and the three distinguished panels for this truly unique. on my left is the counsel of the immigrants right project. those of you law students will take inspiration, this man graduated only nine years ago at nyu law school and was the lead counsel in the case in the

sb1017 was the lead co-counsel before the supreme court. on my immediate right is david martin, many of you know him extremely well. he is the distinguished professor of international at university of virginia where he's built a huge record and extremely impressive scholar, constitutional law and international human rights. also served three different tours of dutyor our country in the previous administration. he worked in the carter administration, he was the joint counsel of the ins in the clinton administration, and until recently he was a principal deputy counsel of dhs in the obama administration. on our extreme right is the clinical professor of law at yale law school. i think most of usgree that more than any other lawyer of his generation, he has pushed

the haest and farthest in using most novel and untested legal theorys to hold our government accountable. and the process has also inspired a new generation of young lawyers to push that up even further. they share two other distinctions. they were both clerks at the supreme court where they have watched at close angle how those difficult 5-4 decisions get made. d they're also both the non-resident fellows at mpi. and it's not my place to say which of them is a more important distinction. and with that, let's start with the most of the right of the issue, which is already the supreme court. in fact, we had hoped that before today, the supreme court would've ruled on the first sanctions law, which was enacted in 2007, pand, well, correct me.

and it's -- it was argued in december the decision expected any time now. tell us what the case is and what the issues are. >> the case is now called chamber of commerce versus whiting. and i think one of the interesting things about the cases inherent in its title, which is that it was a case against employment laws that include any verify mandate and an employer sanctions scheme. this was a case as it made its y up the supreme court that involves -- that was spearheaded really by the business

community. we heard, you know, earlier on about some of the increasing willingness of the business community to get involved in these state immigration issues. this is a case where the chamber of commerce was there as a lead plaintiff, where we were involved representing civil rights groups where labor unions were submitting in our support and we're obviously also the federal government ultimately came in on our side of the case, as well. so that case as we actually heardrom the last panel was argued in december before the supreme court in the beginning of december. and we're awaiting a decision. the question in the cse in a certain sense are pretty narrow. they involve whether arizona can create its own employer sanction

system, that is its ow system of punishment for employers who hire unauthorized workers. and also whether they can reque all the employers in the state to participate in the voluntary federal e-verify system. the first part of that question -- the first question in the case is maybe decided primarily on grounds, which are specific really to these employer sanctns issues. so we're waiting for a decision that could've come down this morning and didn't. you know, it could come down obviously at any time between now and the end of june. and, you know, the situation in terms of the lower courts is that the third circuit has found that a very similar law was unconstitutional because it's preempted. the ninth circuit found differently in the arizona case below. and so there's a kind of clear

split on how the circuits perceived the issue. >> and what's your argument against the law? >> the argument is that both the federal law explicitly prescribes states from enacting laws like this because wh congress enacted irca in 1986, it banned states from imposing sanctions on employers who hire unauthorized workers with an exception for licensing and similar schemes. we think that's a gross overreading of the parenthetical. and justice scalia said it best in the oral argument. he said, you know, i think it's clear when congress passed this law wasn't envisioning anything like the arizona law coming to pass. we think makes pretty clear that

arizona can't pass this law. but we'll see how -- how it works out. >> so what are things that got us all the way to the supreme court? >> other than through licensing and similar schemes is the parenthetical exception. so, you know, the whole question is basically how big a loophole that is in practice and, you know, really in our view whether it can be looked at so broadly, it swallows the rule. because arizona's goal when it created this law i think is quite clearly to create a very different penalty scheme than the one that congress enacted. and to create its ownystem for deciding which employers have violated the law and which have not. >> so, david, you were the principal deputy, counsel to dhs when the obama administration recommended to the supreme court

they take this case. what was behind the government's thinking in the supreme court should take the case? >> let me say first if i can start by putting more into context, the government had not taken a position, not sought to intervene in the earlier stages he. and i think that reflects an ambivalence going through. a couple, at least, impulses that are intentioned that have applied across the administrations. one of those is, of course, to protect the primary, the important, the dominant federal role in overall immigration enforcement and management. but on the other hand, there is support for the e-verify system even if it's ultimately needs to be voluntary. a belief that has been a valuable system that has grown that there have been improvements in the accuracy in supporting it one element to put in the political context of arizona a w years ago, there were

several measures adopted. this was the one signed by a governor named napolitano in part to respond to something that was talk abotalked about i panel. how do you manage this impulse for enforcement? do you say it by saying no? and among the various measures that -- in which that impulse might find an outlet, i think there's a fair case to be made that greater support for e-verify requiring e-verify involvement is one of the least harmful, one of the least incompatible in overall federal objectives. in that overall context, the federal government had not been involved. the supreme court asked for the solicitor general's views. there was a discussion and clearly the thought that this particular reading of the licensing exption that was reflected in the ninth circuit was too expansive. and also some concern about the ways in which this was before sb

1070, potential implications for broader claims about preemption on down the road. it's a little bit puzzling it's taken the court so long to deal with this. i think it is possible for the court to resolve this the way the ninth circuit did with a rare focus on the licensing exception to overall preemption, which would mean that this would have rather limited impact outside of schemes of exactly this type. so even if the court, whichever way the court rules here, it won't necessarily. it won't necessarily give a clear indation that will be all that helpful in the larger -- the more intensive litigation, the higher stakes litigation over legislation like sb-1070. >> and mike, we know that justice kagan is conflicted on this case. it's likely that only eight justices are going to decide

that. does that change the possible outcome in one way or the other? >> well, sure. it could be that part of the case is affirmed by an equally divided court 4-4 leaving the ninth circuit cision in place. but i think i agree with what omar and david have said. it's too early to ow. or it could be very broad and sweeping. and a broad endorsement or broad rejection of state activity in this area. and i'm glad the government came in, and we'll know by the end of june. and i can't resist but say that this little discussion is sort of exhibit "a" in why i at least completely reject the title of this panel.

the last word on practically any of this stuff. i think there's a slow, developing conversation between legislatures with federal agencies and the courts. and i doubt that this will be the last word if the court strikes this down, arizona may try something different. if they uphold it, it may be that other challenges arise. i don't think this is likely to be the last word regardless of how the court comes out on this case. >> yeah, we pick titles off our panel. if this is a 4-4 decision, which is likely, what does that mean for his answer? >> right, so hazelton is the case that actually preceded the arizona case in time and has madets way up to the courts. but also pass a set of laws

restricting housing on the basis of immigration status. there's a bunch of those laws around the country, as well, and all of those ws have been defeated in the courts unlike the employer sanctions laws which have had a more mixed result. so, you know, if there's still something to be decided in the supreme court on the employer sanctions issues, it's possible they might take hazelton or a least part of hazelton to resolve that. certainly our view is that the housing-related issues, there's no disagreement among the courts for the supreme court to resolve. that is not something cities or states are there to do, to decide they're going to condition residents on immigration status.

we'll know in time probably soon after they decide the arizona se what they're going to do with the hazelton position. >> since this was around the implementation, do you think there's any possibility of interaction one way or the other? >> well, there's always possibility of congressional action. the problem has been that immigration and legislation generally is so radioactive that any little piece, which could then be the vehicle for additional immigration measures scares a lot opeople. when i came back to washington in late 2008 and early 2009 about the great reluctance to take on immigration legislation unle you're going to really incur the pain for the big overall solution.

it's just a personally wearing, nasty, difficult issue. so i don't know that we will see that. but that does raise -- i don't think we'll see that immediately. i think it'll be an issue that will go to the mix for a broader range of discussion. i'm pretty sure we won't see a 4-4 decision on everything. typically the court's pattern has been they issue a brief period afterwards saying they're split and the lower court decision stands. it could go that way on some issues. but it clearly hasn't done that on all of them. we look at the preemption cases and we talk about rule lgz from courts that the particular state or local measure is unconstitutial. in some cases that's right, because it's an application of the supremacy clause of article 6 of t constitution.

this is a different part of constitutional law. congress has much more authority, very broad authority in this arena unlike other areas of constitutional law. we'll talk about birthright citizenship in a bit. where congress can come back and say, no, no, no, here's what we meant. or it's okay. states can have their own systems. i think a risk, one we have to keep in mind considering these different kinds of issues is whether congress might go more broadly. we can't do anything. i'm getting pressured to do something. i'll vote for the measure that will essentially turn the states loose. to say there's no preemption concern. at least in certain kinds of arenas. i think that should be another reason why it's important for all of us to work on some measure to accomplish that. and part of it, i would note that the mayor of hazelton is now a member of congress. i should think he might be favorable too.

>> one quick last point. we're sitting in washington, many of you work on the hill, have worked on the hill, will work on the hill. the case points at the deep importance of lislative history. there isn't enough of this parenthetical clarifying what it means. i understand that's the fault of others who are in the room when the legislative history was being developed. so when you work on comprehensive immigration reform, the bill that actually goes through in the coming years, try to do a better job on the legislative history than happened here. >> thank you. >> let me just -- every word in the statute matters. and i love the provision law, but i have no idea how those seven words went in there and what they meant. anso -- let's go to sb-70.

great success on ninth circuit, so where does this leave us on sb-1070? >> maybe before i go there, i wanted to kind of give a counterpoint to the previous panel. i hate to be the sad face at the party. especially because i'm going to be more unpopular when i recommend pele look at the law and read it. because the utah cpact is one thing. but the utah legislation, the package of bills passed in utah is a totally different thing. and if you start from the premise, as i think everyone on the panel did, that you don't want to create a 1070 in utah. you don't want to go down the same road that arizona went down. maybe you want to scratch the itch as it was said. this is scratching that itch with a belt sander. it's ridiculous. it's like to say that this

avoids the mistakes of sb-1070 is just not true. what the utah laws would do is to create for at least two years an enforcement regime, a pure enforcement regime. there's no counterbalance with this -- with the proposed guest worker aspect with it. for at least two years before that kind of goes into effect. and it creates an enforcement regime that looks very much like what arizona did in sb-1070. and so i would really encourage people to think to look closely at the laws and to think seriously about even if you accept the review that you want to take the aspects of the utah model, putting forth an alternative, maybe balancing

different aspects of the program. the way to do it in my view is not by enacting the bills that utah enacted because they don't actually do that. that's kind of alead-in to sb-1070. i think a lot of regret as we've expressed by general goddard on the previous panel in arizona about having gone down that road. now both the strict and the apllate courts having tell arizona that to go down in the legal and constitutional sense. you know, that's -- i think that the rulings from both the district and the appeals courts were quite -- quite clear. d sent a ve strong message, you know, to the state and to

other states that, you know, these kinds of enforcement measures that really try to put -- to create a state-controlled immigration enforcement system just aren't compatible with, you know, the way that immigration law's supposed to work in the united states, and with the division of authority as judge noonan points out, division between the federal government and the states in the immigration area. >> so do you expect -- on 1070? >> i don't think -- i mean, i'm always -- a lot of people have told me a lot of things over the year are clearly headed to the supreme court that don't get there. so i don't -- i thk there's right now there's no obvious you know, obviously no disagreement on the courts on whether sb-1070

laws are legal. and, you know, there's not at least one of the criteria by which the court usually chooses to -- whether or not to accept the case isn't there. and also, as, again, as was pointed earlier, the expected tidal wave of these laws does not materialize. the important set of this legal set of issues right now would seem to be confined to arizona and possibly to utah and, you know, georgia. that, you know, especially the absence of there being a circuit split doesn't seem to be the kind of thing that immediately cries out to the supreme court's intervention. >> depending on how it gets decided by the supreme court, what impact is that going to have on sb-1070? >> i think everyone here said, you know, the supreme court can write narrow and it can write broad. the ninth circuit, you know, the ninth circuit is where we lost

in the arizona case. found it very easy to reconcile striking down sb-1070 on the one hand having upheld the sanctions on the one hand. certainly, it is easy, i think, for the courts to, you know, to keep the issues separate if they wish to. >> sb-1070, in sb-1070, is obama administration decided to -- obviously reasonably unusual move. you were there, can you tell us what went into that thought? and why was it different than the intervention that was just not through that in the beginning? >> well, i expressed what i think were the two different strands of thought that affected some of the early decisions in the candalaria litigation.

the government did not take a stand until the supreme court ked the solicitor general to do so. this was a much bigger issue, much more dramatic issue. much more disruptive effect on federal operations, on our foreign relations. again, the arizona legal arizona workers ac was seen as the more moderate of the various bills there. the other more extreme versions were vetoed at the time of that. so it didn't raise this big of an issue generally. this one does, but sb-1070, particularly the way it was amended is -- it's got some nuances in there that are bit of a challenge for dealing with. i think the government effectively found ways to address that. particularly the provision about a mandate basically to check people wherever there's a stop

or detention or illegal suspicion of status. or those held until their status is resolved. the ninth circuit in resolving this -- well, i guess, i want to reflect on this in light of some of the things said in the earlier panel. i'm not sure it's going to take a really long time. the legal theory that was employed by the ninth circuit ruling on the injunction is really quite a broad one and seems to hold out the prospect that the court could decide i don't need to hear -- to take factual submissions in a matter of law the way the ninth circuit has establhed the case. it's inappropriate to go this way. that's mainly the portion of the opinion where they rely on a portion of 287-g that a lot hadn't looked at which allows --

an agreement of this kind is not required in order for the state to cooperate with the federal government and immigration enforcement. arizona saw that as an open door for these sorts of activities. the federal government tried to argue that no cooperation means something different. it means the federal government is in control. you're dealing with it on our priorities, not arizona's priorities. that was a bit of a challenging argument, but the ninth circuit supreme courted it completely. they held 287-g10. so on that basis, there may be a solid basis for the court to rule as matter of law fairly early. probably go back to the ninth circuit. if that happens, and'm not sure that the supreme court would take it again. in the absence of development of a conflict. and it may also be the earlier panel reflected on why the -- we

didn't see a wave of new laws. we saw a couple of them along the 1070 model. i think part of that was the reaction of the business community, but part of it probably has to do with the decision to challenge for the federal government to challenge the law and at least so far to gain some success. states looked at a prospect of litigation. i do think that as the enforcement part of the utah law. but utah's law does address some of the problems that at least the district court saw in the arizona law. so they -- i think it's valid for them to say we tried to learn some things from the arizona experience. but overall, enforcement part does bear many parallels t sb-1070. >> parallels are you planning -- >> i guess you'll know when we sue. -- if we sue.

you know, we're looking very closely at all the new laws that are passed. and, i think, you know, certainly maybe not as -- we may not wield as big a stick as the federal government does when it comes to discouraging states from doing things. but i do think that, you know, that we certainly look at litigation as one way to send a message about what's acceptable and what's not. we're looking at all. >> the greater good with the court and since kagan is not -- justice kagan is not conflicted, as sb-1070 goes to the supreme court, how do you think it's going to come down? >> i hope i'm not on the panel because i'm a great observer. well, hopefully kagan will not recuse. and i think what happens will have a lot to do with it.

if it takes it, well, i think it'll matter that lot whether takes it at this stage, the preliminary injunction stage or goes back down, a permanent injunction or some fact of record developed it comes up that way. that will matter a lot. this is a court that has embraced federal power. i think it's close. i think it's close. i think the supreme court should affirm what the ninth circuit has done. i want to focus on a different aspect which would affect the court's resolution of the case and maybe invite david to comment here too. one of the difficulties for the united states in this case is an opinion of the office of legal counsel. that's the unit in the department of justice that give us the torture memos and so forth that for many years have held in a series of opinions

binding only on the executive branch that state and local police lack authority to do civil immigration enforcement. and in 2002, those prior decisions were partially rescinded or superceded by a 2002 opinion that said no, actually, to the contrary state and local police have the inherent authority to enforce civil immigration laws. and in the transition to the obama administration, a number of people encouraged the new administration to include on its stroke of the pen kind of list of things to do that prompt repeal of the 2002 opinion and restoration of the prior olc opinions, that didn't happen. and when the lawyer for the government, and needler, a very experienced lawyer was arguing before the circuit in the sb-1070 case, i think he was materially hampered when he received questions in this direction because he was required to embrace the idea

that arizona law enforcement has the inherent authority to enforce civil immigration laws which is a hard position to reconcile, i think, with the objections to sb-1070. i think the court didn't have so much difficulty there. i think the united states has a difficult position to defend as it must the position to set forth in this 2002 olc opinion while also challenging sb-1070. so i think if itets to the court and the solicitor general's office is still constrained by the 2002 opinion, i think their arguments may face the same hurdles that they faced on the ninth circuit. i think it's a more likely win if that's not the case, and they can make a crisper and more direct s of responses to the set of questions they'll get. >> and directly, i'll ask whether the administration's going to -- >> now he can comment looking

forward not backwards. >> well, i'll say a couple things about it. first of all, nothing at olc, at least these days is done by a stroke of the pen. and i think that's partly learning some of the lessons of the office legal counsel opinions that were quite regrettable during the -- in the bush administration's war on terror. it reverts to a long and proud tradition of olc where they look at these issues very carefully. it's not a matter of, okay, we vacate one, go back to the earlier one. it would be looked at carefully and see where that might come out. it's not -- one can't always control what you get back from olc. and sometimes you can be surprised. sohe question is whether that's worthwhile. what is the real impact of the 2002 opinion? there's a lot of misunderstanding of that opinion. it does not say there's an inherent authority in the states to enforce the civil immigration

laws. it opines that there may be inherent authority to arrest in those circumstances. but people -- a lot of people read into that. then, they would basically take the person into immigration court, detain them, decide on the chgers and go forward with that. all it would mean is the same it means in the area where it accepted that enforcement of the criminal laws is accepted. that doesn't mean that the state officers then prosecute that case in court. they hand it off to the u.s. attorney and u.s. attorney can decide whether or not they want to proceed. and pretty clearly the u.s. attorney will say you're not dictating our priorities, we're deciding on that. the 2002 opinion i was told the impact of it was a big disappointment. states didn't immediately rally, this is great, we can do it. these are complated laws, they're difficult to proceed with. although it's rhetorically used a lot, in challenges to what

states may do, it's infrequently used by mostly rhetorically. the actual impact of that is prty limited. not through inherent pick-up merely for a civil immigration violation, it's threw cooperation in the criminal justice. don't go out and pick people up, state and locals. if you have somebody who you've arrested on your own authority for a state law violation, then we may want to cooperate, that's a better place to focus our attention. although it's symbolically very important, it has a limited framework. whether we'll see a revisiting of that, i really don't know. there's certainly been discussions along those lines, it's not a quick and simple thing. >> let me ask you a quick question. last thing on sb-1070.

we heard about an eight-page letter written asking th the federal government sue the state of utah on the compact. do you think this is going to happen? >> i'm probably -- unfortunately have no insight into the questi question, except i do think that the federal government's view is pressed in the 1070 cases that one of the major problems with at arizona did was it creates a patchwork system that destroys the federal government's ability to uniformly, you know, enforce the laws, uniformly create a set of enforcement priorities by which to guide the federal government's work, et cetera, et cetera. those arguments, i think, you know both apply in these other states. and, you know, to some degree if

a bunch of these laws pass and the federal government doesn't sue, it starts -- it does -- it would lead you to wonder why. >> david, what's your bet? >> that's a very hard one. i think for the reasons that omar mentioned, there are a number of problems with the enforcement part of the utah compact. the thing that's gotten less attention. it is a lot like the arizona law, but not identical. there may be a basis for the department to decide that's different. but the main arguments made. that clearly does apply to utah. what utah has done politically is very valuable. and it hope it becomes a model and shames people or induces people from a variety of perspectives to trto come together in the same sort of way to focus on the national decision making process. th really is wherethe immigration policy ought to be

made and the main management enforcement ought to occur. but the law itself is not -- is quite problematic. i'm interested. at least some meeting at the justice department yesterday. the thing with lamar smith focused on, however, he seemed to be more worked up for e provisions of guest worker provisions and potential sponsored immigration under utah law. those don't take effect for a couple of years. more over, i just want to point out, thas in a very different context from what we were struggling with while we tried to decide what to do. sb-1070 was going to take effect athe end of july. police were going to be out there implementing that right away unless somebody stepped in and tried to get a preliminary injunction. i give the aclu a great deal of credit for stepping in earlier than we got our act together on doing that. but the -- the provisions that

smith focuses on, guest worker and sponsored immigration, those don't takeeffect for two years anyway. and i don't see any way those can actually -- you don't need to injoin those. if the federal government doesn't agree with it. i can't see them agreeing with it. the fact that you have one of those utah cards, guest worker cards doesn't give you any kind of immunity. it doesn't allow somebody to come across the border if there's an agreement. and they'll s at the border, well, that's great, but you're not admissible, go away. >> depending on the way they're structured and federal authorities without a preemptive lawsuit. >> these are high-profile cases which are under press all of the time. but there are a surprising number of cases that are not as high profile but have huge impact from people.

the new requirements for eligibility for -- the reform was enacted in 1986. and there'll be huge cities of lawsuits challenging the restrictions. none happened until recently. you want to tell us what those cases are and wt the issues are today? >> sure. so briefly -- it's always fun to talk about the supreme court, it's the supreme court. they decide 80 cases a year, of cour, appeals decide about 45,000 to 50,000. in the lower courts, the federal courts, the state courts even more than that. a lot of the action is happening a little bit below the radar. one of the areas where i think there is an increasing amount of litigation is over access to public benefits. the famously restricted the

eligibility of many legal immigrants for all sorts of federal, state, and cooperative federal state benefits programs. there was some litigation over state restrictions and federal restrictions, but not the tide of lawsuits that were expected, largely, i think, because states declined the federal invitation to substantially restrict. unfortunately, i think, under the current economic times, which are especially challenging at the state and local levels where there's no borrowing, there's balanced budget requirements, and there's, of course, tremendous economic pressure -- the -- we're seeing more state restrictions now than we didn't see in the late '90s. states terminating benefits for immigrants that had been eligible up until now. eliminating substitute programs that were replacing benefits

that immigrants had lost and states made up for in the late '90s. and naturally, there are court challenges to those. there are at least half a dozen cases out in hawaii, washington state, new jersey, massachusetts, and connecticut where i'mfrom, the connecticut supreme court just recently upheld in the face of an equal protection challenge. the elimination of some state substitute programs for medical benefits, for indigent legal immigrants. and the cases out west are headed toward th ninth circuit and others are making their way out. the early wave was split. there were four cases that went to the state high court or the u.s. court of appea and they basically split 2-2 to new york and maryland, largely rejecting these kinds of restrictions saying you can't discriminate between citizens and lprs, lawful permanent residents. massachusetts and the tenth

circuit court of appeals saying, yes, you can. these programs vary in their details. thest not always possible to precisely map them out. we do see now a new round of cases in the face of budget pressure. and therefore likely the issues moving up again. >> let me stay with you for a second. there's also a huge number of cases going around against i.c.e. agents and senior i.c.e. officials, mostly in the damage action on the may i approach of arrests made. and conditions and detention. i hear you have a lot to do with some of these cases, can you tell us what stake in this litigation? >> sure. i think this may may be one of the most controversial. for many years, state and federal law enforcement officials have been subject to civil rights lawsuits upon

allegations of excessive force or false arrest or racial profiling. things like that. go back to the '60s in some cases, cases brought under section 1983, or bivens decision or the federal tort claims act. but there's been one group of law enforcement officers who have been largely immune from the limited judicial oversight. of course, a few people abused by law enforcent get a lawyer and go to court. but nevertheless, limited judicial oversight of some law enforcement excesses has probably played a helpful role in proving accountability, transparency, creating incentivesor supervisors to improve law enforcement training and so on. but immigration agents have long claimed an immunity. have long argue had had that the ina, especially after 1986 pr l

proprecludes reviews. and this has left largely alone. they all occasionally face civi rights cases when there are allegations that they've overstepped, that they've been abusive or violent. but in the lt -- i think really sort of prompted by the stepped up enforcement of '06 and '07 that the raids and work sites and residenal communities and a lot of claims in the media by loca residents, by activists, about excessive i.c.e. actions and i.c.e. behavior acting with immunity, there's be a wave of lawsuits that look a lot likpolice brutality cases, but they haven't been allowed previously against immigration agents. the difference is that the district courts with some exceptions. but the general trends -- i.c.e. agents don't look a lot like dea

agents. and if an fbi agent kicks down a door without a warrant and grabs someone by the hair, that can be a problem. and if an i.c. agent does it, we don't see them differently. these cases are working their way up. most of them are reaching the seventh circuit. and it may be the court of appeals where they cut these off, agrees with the government's argument that i.c.e. agents are immune from civil rights liability. but i don't think that's like to be the outcome. sot may be that going forward that that little bit of judicial oversight th comes from the occasional civil rights suit becomes an incentive to management. becomes a little deterrent that has occurred, and i think that may be a helpful thing. i do think we've seen a wave of these cases largely going

forward in the district courts. and whether this ends up resulting in constitutiinstitut changes remains to be seen. >> with respect to suppression motions increasingly receing some wcome reception, can you quickly comment on that development? >> yeah, it's notable we're talking about litigation. we hardly talked about the ina. state and local laws, welfare, other areas. so the flip side of some of the claims of excessive force, arrest without probable cause, searches without consent or warrants, the flip side to those civil rights lawsuits has been that proliferation of suppression motions in immigration proceedings with immigration advocates contesting the legality of the search or the seizure, the questioning. and while immigration judges have largely not seenoo much of them, suppression motions have been around, they're established in most circuits. but they're rarely made.

they have become much more common. and i think immigration judges have become much moreustomed to handling them, adjudicating them, taking evidence aut how the i.c.e. agents behaved, whether it was legally obtained. certainly to my surprise, anyway, the bia has begun affirming these -- the bia has upheld grants of suppression motions or vacated the denial motions, but it's the same fourth amendment claims that are being claimed coming up to the immiation system. >> so, david, just to you on this. as a former deputy counselor, do you take view against lawsuits on the i.c.e. agents? or do you think thi is a healthy way to make them more accountable? >> we'll see how these cases come out. i don't think it's a big problem if the immigration enforcement

system is essentially mainstreamed in the -- in the civil rights kind of lawsuits, the lawsuits. i'd like to emphasize there are a number of efforts underway. maybe partly catalyzed by that that began really in the previous administration, but also because of a real commitment on the part of a lot of the leadership of dhs to improve training, to change priorities, to issue different directives about how things are supposed to be done. about what sorts of very limited circumstances one would do, enforcement actions. a number of those sorts of things. those are going to be more important to actually changing the way in which enforcement is carried out. we'll see how the lawsuits come out, but i don't think it -- i wouldn't be terribly troubled for the future of effective enforcement if we can mainstream it in that way. suppression is a little bit different. i think suppression has always been available on the basis of egregious actions, very significant allegations of due

process violations. the system won't work very well, it becomes absolutely routine. there are also other complications out it. evidence to suppress well, what about the individual arrests are not suppressed anyway. so the cases may proceed. i'm less sanguine about that. but trying to enhance the professionalism and the accountability of agents, immigration enforcement agencies in general. and well, also the office of various internalmonitors such as the office of civil rights and civil liberties. we'll be hearing from margo shanger. >>ast set of issues, there's no litigation. but it's hard to escape that on everyone's mind as legislators

are beginning to give up and these are both involving unauthorized -- one is potential challenge to the right of unauthorized -- in a case guaranteed. and the challenge to birthright citizensh citizenship. u.s. citizen born cases are unauthorized. let me start quickly with you, david. you are a clerk. and provide the critical point in the case. you can argue a lot of states are enacting these measures against the cost of providing public education. so they're not in the states. do you think it is an endangered species, or not? >> well, it's possible. it was a narw ruling at the time. it's a very different court that we have right now. but actually my guess would be that we would not see that erode

inso far asit would apply to elementary and secondary education. i think that the basic situation that persuaded the court narrowly back in the early '80s still exists. it's a really severe measure to decide that well, the way that we're going to get a handle on any kind of illegal immigration problem is by keeping kids out of school. i hope we don't go down that road. i hope no other court will. any other feature might be efforts such as pushed in 1996. he's now the chair of the house subcommittee. he wanted to enact legislation including the 1996 legislation. a provision that would say as far as congress is concerned, it would be great if states would exclude illegal aliens from education that was fought back

from the clinton administration. people wonder. isn't this an equal protection ruling? but it's a bit unusual. it's like a lot of equal protection in this arena. it seems to partake a little bit more of a preemption flavor. it's that some things that the federal government can do to draw distinction the states can't do. maybe they could do if there was a little more support from the federal government. and there's a line as part of e court's reasoning and responding to the state of texas' argument that, wait we're just using a federal categorization here. we are reluctant to prevent these children access from education. we perceive no nationa policy that supports the state in denying these children elementary education.

that's what the representative wanted to rely on. okay, let's send that signal, let's see what happens in response. >> are you getting up for this challenge? in these states where this is the right thing to happen? where are those states? >> well, i note that both on the -- on the k-12 issues and on the birthright citizenship issues, the last package that was proposed in arizona involved measures on both of those. as well as others. and it failed. and even in arizona. and, again, in part, i think, due to maybe a slight shift in the political climate, but i think, also, you know, a lot of people viewed these kinds of things too far. i think it'll, you know, i think there's a good chance that these are not going to materialize anywhere.

and so we won't have the chance necessarily to the challenge them. >> let me turn to citizenship very quickly because we need to leave a few minutes for the questions. the challenge to the 14th amendment guarantees or at least supposed guarantee of birthright citizenship to every person born in this country, is this a serious legal issue? or is this political -- >> i think reluctant to change the understanding. it didn't technically involve someone who was undocumented or unauthorized alien, categories didn't quite exist in that way. but it has been read -- it was a divided vote. it has been read -- it read the 14th amendment to say virtually

anybody born in this country saving the children of diplomats and a few other very limited cases are citizens at birth. and it's been implemented in hundreds of thousands, millions ofases as an understanding that essentially the fact of birth here. whatever the parents' status is gives rise to citizenship. i don't see the court changing that. the tag line in there is that persons born in the united states and subject to the jurisdiction thereof, it's a pretty extraordinary claim to say that people who are here unlawfully, unlike diplomats who have right of immunities are not subject to the jurisdiction. if they commit a crime, they're going to be punished. if they're caught and placed into enforcement proceedings, that would happen. i don't think that fits very well. why do we see this coming up once again in a fairly focused way?

cropped up about 25 years ago based on a book by roger smith, which both of them had some second thoughts about it as a matter of policy. it's cropping up now for, i think, three basic reasons. and i think they merit some reflection. one, it's a popular position. recent poll showed 61% of likely voters favor cutting back on birthright citizenship, not allowing it to people here unlawfully or here as tourists. at least initially when you come do it, it's a pretty appealing argument initially in favor to say why would we give out something as important as citizenship based on somebody just being here briefly as a student or tourist or certainly being here unlawfully. superficially i'll try to come back to th in a minute. and the third one hasn't gotten a lot of attention. but i believe it may be a response to one of the most effective arguments on behalf of

those who want a more generous immigration policy or who want to defeat certain enforcement measures by the federal government. and that is the, oh, you're breaking up families. those provide the very photogenic opportunities on tv. and so people are going to say, okay, if it's going to break up families, let's go to the source of the problem that shouldn't be families.there's a legal error there also, and i think it's important to reflect on that, there's no provision here or in any other country that has generous birth right citizenship rules that provides a defense to deportation to the parent just because there's a citizen child. in the case law in this country, as limited as it is, says, that's fine. u can't deport the citizen, but the parents, as in any other life decisions, they make a choice. if they're leaving to the home country, they decide. if they have something for the children to do here, fine. if they take the children with them, the children's citizenship

status is not in jeopardy. i think it's important to reassu reassure, it doesn't mean a giant leap hole in the overall enforcement system anybody who has a child while they're here. but i think beyond that, the other part of it is i think what needs to be highlighted to defeat this is to talk about wh would be the consequences. this is probably the least-effective, most counter productive way to try to deal with illegal migration. if this is the measure partisans are able to get enacted, we're not sewing any help. it's a great blessing for our country to not deal. secondly, it woulbe an enormous problem for registrars at birth and handing out of

various kinds of documents. and finally -- and then beyond that, if that's all we do, we create the second generation problem. if, on the other hand, we're finally able to take some effective steps to greatly reduce illegal migration in the future, i'd like to see it done through comprehensive immigration reform, then this issue about becobecomes a very issue. i think we have to make that very practical case much more effectively. in the meantime, i don't expect the court -- the court will allow it, but there are proposals for constitutional amendments and with 61% support and kind of easy sound bit on this and complicated sound bites on the other side, i worry a little bit about that ball getting rollin >> mike, you want to say a last word on both of these things before we turn it to the audience? >> i agree with omar and david. it's going to be fine. i don't think this court is going to truck with these arguments. but as a last word, i do want to sathere's another dog that didn't bark. we've talked specifically about

ligation around the enforcement provision. there's a whole world of what i think of as incremental pragmatic integrationist measures happening at the state and local level which aren't prompting lawsuits or in the few occasions where they have are easily succeeding. i just want to take off very briefly from the state of connecticut, where i know, but this is the kind of stuff that's under the radar but is not prompting litigationment there's actually a whole poz of tiff move out there. so in connecticut, new haven and hartford have no lawsuits filed. new haven has an card for all residents regardless of immigration status, no lawsuit filed. most towns have accommodated day laborers in stamford, in particular, no lawsuits filed. the state department of labor after the hoffman plastic decision called into question labor employment protection for undocumented immigrants made sure to clarify that continue to enforce state and labor eye

ployment laws without status. no lawsuits filed. just a month or so ago, the state probation office, which like a lot of criminal justice organizations, have been approached by i.c.e., asked databases with i.c.e. data at that bases, created a new form that all probation officers in the state had to complete with their first interview with the probationer about hir immigration status. if they had questions to fax it to i.c.e. they said, henceforth, if i.c.e. calls us, wile answer their call. but we'll no loerforward them information. we'vaboolished e form. no lawsuits formed. we have a new governor who says i will sign it. the bill is moving through the legislature. hopefully it will has pass. i think it will. the few cham evenings to in-state tuition bills in other tart r pa parts of the country have failed. there's a world of positive

activity, integrationist incremental not trying to me a whole state policy but just the work of mayors, police chiefs and hospital and libraries trying to adapt their systems. that work is largely happening outside the courts and without interruption. i think that's an important part of this story. those o are going a different path like arizona are tied up in court and hopefully will fail. but those who are choosing a different path aren't even in court. >> on that note -- >> sorry, if i could just -- i just didn't want to leave the idea hanging out there that a birth right stuff might be a back burner issue for the aclu. i want to be ve clear that that is actually, you know, should conditions arise, an argument that we are looking forward to having. and i think one that really reveals a lot about the folks

who are behind a lot of other state and local measures that ybe don't go quite as far. but this is a question about whether you're going to undo or try to undo, you know, a critical part of the constitutional amendment that ended slavery a that, you know, birth citizenship component of which was specifically put there to avoid the perpetuation of an underclass of people who weren't equal to other people. that is, you know, i think a breathtaking thing that folks who are hostile to immigrants are willing to do, as a way to further express and further their hostility towards those people. and like i said, i mean, it's something that we would be happy to have a debate with them on.

>> okay. good. let's take a few questions from the audience before we break. there are two mikes one on the right and one on the left. please identify yourself. >> my name is danicosalas. this is regarding your statements about the civil rights challenges of individuals who have been abused by i.c.e. agents. just if you could clarify, you said tt we'll see if the supreme court agreeshat i.c.e. officers are immune from these challenges. could you clarify what the basis of that immunity is. >> i don't know if it will go to the supreme court, but certainly courts of appeals will weigh in and maybe the supreme court. the arguments the government has made are several. first under the immigration and nationality act there are a series of provisions that say any challenge to a removal

proceeding shall go through the channels of immigration court, and the courts of appeals, and i.c.e. has argued that these channeling provisions preclude separate civil rights litigation about anything having to do with commencement of proceedings, enforcement and so on. so they said there are statutes that preclude civil rights actions against i.c.e. agents, number one. the courts have generally rejected that. number two, as to claims that are not statutory, a supreme court case, the government i.c.e. has argued that special factors counsel against recognizing a bivensction into new domains. and i.c.e. has said, well, immigration is connected to foreign affairs and so on, it's a new domain and you shouldn't

extend bives. so far the court has generally said kicking down doors and luving people p up were the facts of bivens itself. there's no quintessential action than the ki of fourth amendment, excessive force, arrest without probable cause, unreasonable seizure claims, that are here. they've generally rejected that, but those have been the two principle arguments, i think. there have been some more gnaw unsed ones depending on the facts of the case, but those have appeared across the cases. >> the other question that i had was, have you seen any or is there any discussion of possible claims against the federal government for actions of police officers in the sense of having some kind of vicarious responsibility for what police officers are doing in the midst of collaboration programs?

agency or vicarious responsibility. >> it's a fantastic question. i want to resist the temptation to get into the nuances of it, but under section 1983, wh$1983 federal officers essentially participate jointly with state officers and then violate the constitution, there are 1983 conspiracy cases that say that's impermissible. in a case my clinic just settled for 6 $650,000 about the arrestf day laborers by local police and i.c.e. agents working together, the court recognized in refusing dismiss 1983 conspiracy claims that when i.c.e. agents essential collaborate in some local race-based or otherwise unlawful action they m have action under convict spirs theories that are well settled. one benefit is section 1983 brings attorney's fees.

bivens and at atsc does not. so keep that in mind. >> it looks like we've stunned this crowd. so thank you so much. i'm sorry? >> my name is matthew ar i bald, immigration attorney. i brackpractice in philadelphia. one thing my bar is wondering about is just attorney general holder has said he's not going to enforce doma. me and my colleagues who have clients who are married, gay marriage, and would like to be able to petition their spouses. i'm wondering if there's any -- this is all very new, the aclu or anyone else knows of actions that's going to go on to try to be able to give gay couples the same rights that sraight couples have as far as immigration. >> i know of two cases in the ninth circuit.

ese guys may know more. >> i would just say the holder statement, which is based on consultations with the president, said they would not defend it in court but they could go ahead an enforce the law until there's a definitive ruling. and that refleblgts -- it's a very difficult issue about the role of the justice department in defending statutes. it's a very big deal not to defend it. so all of that's a hard dwings f distinction for a lot of people to follow that does build on a lot of prior justice department practice. so the basic provision is, yes, these measures are continuing to be enforced but looking toward a definitive ruling from the courts one way or the other and that would be followed in the implementati implementation. >> i will say you may have seen the news the other -- just yesterday th the justice department take this position, we will enforce but not defend, the speaker of the house may appoint counsel to defend the

statute, the speaker said he would, hired paul klement who was at the firm of king & spauld i ing. the firm decided they won't take the work on. klement quick the firm. said i would defend doma across the country. he quit the work and i assume he's continuing to vigorously representing the government in these cases. i'm told there are 10 or 11 doma challenges out there more than the attorneys knew of, two of which are immigration cases in the ninth circuit, others arising in the other circumstances. the expectation is that clement will appear in all 11 of those cases. there's more percolating at the administrative level at various rejeemz and will defend doma.

>> he'll do that on behalf of the congress, not the u.s. government. >> thank you so much. can we give this panel a round of applause. [ applause ] let me just make an announcement that there will be lunch so you can go upstairs and you can go then to rooms 141 and 110, which are open for people to take their lunches and sit around. thanks so much ain and see you back in the afternoon. .

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[ recess ] >> tibor machan will take your

phone calls and females alike today at noon eastern on c-span 2's booktv. >> now, the annual washington correspondents' dinner. we began with the red carpet arrivals and we will show you the program which includes remark on president obama -- which includes remarks by president obama and saturday night live's seth myers.

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to present the white house >> the first lady and i thank

you all. the first lady and i have the honor tonight to present some of the many scholarships and awards that the white house correspondents association presents each year. so we're going to start out right now by psenting the first one. the white house correspondents' association scholarship prize is a one-time award of $7,000. this year's recipients are three students from howard university. they are noel jones, camille grayson, and seth lennon. >> tnk you. >> congratulations. >> thank you. >> very proud of you. >> congratulations again.

proud of you. >> thanks to a gift, the white house correspondents' association has established the deborah orr scholarship to benefit qualified students at her alma mater northwestern university's madille school of journalism. two students will each receive a $5,000 scholarship and they are hrasregwand and alexandria rice. >> thank you so much.

>> congratulations. >> we are now going to award a $5,000 tuition grant to a columbia university graduate student who intends to return to the middle east to continue her journalism career, and that student is atosa abrahimian. >> thank you. >> congratulations. >> thank you. >> the white house correspondents' association supported nine graduate students at $2,500 per student to