that is what the white house is arguing with the latest move. host: what is happening on capitol hill when it comes to trade? not a whole lot. they are debating whether to press a russian trade bridge -- legislation. that insures the united states has full wto writes vis a vis when it comes to russia. we have to have legislation in our congress to make sure we did take full advantage this is thought to be the last week this week when congress can act on that and it looks like it will be punted into the lame-duck session. host: 90 for your time. we will be back tomorrow morning. in our last hour of the journal tomorrow, we will tickle look on our weekly series on magazines.

this week it is a piece written in the "washington monthly." taking a look at the consumer financial protection bureau. in the magazine, they assert that predatory lending still poses a systemic risk to the economy. will the new obama bureau succeed intended or will the agency be strangled? that is on tomorrow's "washington journal" in our last hour roper -- our. thanks for watching. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] >> here is what is coming up alive today --

and about half an hour, we will start a daylong symposium looking at the supreme court. the events include the former solicitor general who will review his recent turn and look ahead to the next and that starts levittown o'clock 30 eastern here on c-span. the u.s. into the peace will discuss u.s. relations with myanmar which is live at two o'clock 30 eastern. at 5:00 eastern, the marine corps commandant will talk about the new strategic defense guidance enforced by a president obama earlier this year. that will be live at 5:30 eastern. >> i watch c-span to find the on filtered truth, what they say, why they say it,

sometimes you get so caught up in the beltway and i enjoy "washington journal" because the calls are uncensored. you know what the people are thinking and that makes my job easier. we talk about the same topic. this allows me to get my argument before walk into the studio. >> cspan, created by america's cable companies in 1979, brought to you as a public service by your television provider. a reminder that we will have live coverage of the daylong conference on the supreme court starting at 10:30 eastern. until then, your phone calls and comments on a video of secretly recorded remarks by mitt romney at a fund-raiser earlier this year.

host: governor romney and a fund-raiser earlier this year, a clandestine video taken of him there. this is "the baltimore sun."

there was a conference call put together by mitt romney's campaign yesterday morning. he had a press conference last night around 10:00 p.m. eastern time to respond to the video >> this is a message that iu"r s

will carry wishes that the president's approach is attractive to people who are not paying taxes because my discussion about lowering taxes is not as attractive to them and therefore i am not likely to draw the man to my campaign. as effectively as those in the middle. this is a discussion about the political process of winning the election. i want to help all americans. all americans have a bright and prosperous future and i am convinced that the president's approach has not done that and will not do that. host: take on the video of governor romney. you just saw the presidential candidate in a news conference last night talking about the video. "usa today" -

the republican in oregon, what do you think? caller: mitt romney told the truth and the american people cannot take the truth in it is pathetic. this will get more coverage than when obama talked to the russian person on a live my. mike. that should of scared everybody but this will make it better headline because of the liberal press. we still have a voice. we still have a good mind and we still live in the best country in america, thank you. host: a democratic caller in west virginia, good morning. caller: good morning. i watched the video and it goes to show that mitt romney acts like a spoiled kid. he wants to be president and does not care what he does for

anybody. it is just his ambition to be president. host: let me get your response to what paul ryan had to say yes or dead -- to say yesterday in des moines. some are comparing this video to the video of president obama the than nominee back in 2008 at a fund-raiser. >> mitt romney cannot be trusted. he will not show his tax returns. he worked for bank capital. all they did was bring companies to make a big profit.

they call him a businessman. he never ran businesses. he just tore them down. that keptis the ones the business is going. they told him what to do. they could do nothing but go under. host: more on the comments that president obama made back in 2008 at a private fund raisers. from "the washington times" -- that was also part of that video. armed beach, fla., an independent, go ahead. caller: this video confirms what

i have known for a long time is that mitt romney is essentially a mormon rockefeller. he is a super rich oligarch. he is an elitist and does not understand the plight of the average person. i am a quandary as are most christians. many of us are in the same situation. on the one hand, you have this funny billowy secular humanist barack obama who puts his trust in contraception or money and you have the other people put their trust in rich republicanism and we don't have anybody to vote for. i am going to write in coackh nick savin . host: this was put out by the

campaign manager of president obama -- buzzfeed says -- the republican, virginia beach, go ahead -- caller: it is sad that everything obama said back in 2008 about people clinging to their guns and their fate, many

people in this country do that. the thing that mitt romney says, 47% of american people are getting money from the government and don't pay taxes, how many times have you seen that on the news? the fact is, america is becoming soft. they don't like what they hear. they don't like the fact that they are receiving and two things no one has ever talked about -- #one, obama said we all belong to government. i don't belong to the government and if you think we belong to government now, government will take over your life if he is reelected for four more years. america needs to wake up. we have a spirit of this country. yes, we believe in arms and yes we believe our fate and we don't let people to depend on anything. we're talking about what is going on the middle east.

it is because of the media. it is dividing us. we have our faith and we want to work hard. host: let me jump and ensure your this map that was put together by "the atlantic." this is what they say about mitt romney's comment -- the people he is talking about, the 47% but don't take taxes, he says they are disproportionately in red states and they tend to vote republican. caller: these type of people embarrass our government. , a democrat and republican. people of faith embarrass th elitists. all they believe and this

socializing with their own kind. we embarrass them but the truth is, we do have our faith and we do want our gun rights and a lot of us, including me -- host: i think we lost you. here is " the new york times" this morning --

a conservative rise today in a piece for bloomberg news -- democratic caller, alabama, good morning. caller: good morning, i'm a first-time caller. i can only talk briefly because

i will be late to work. i will be late to work and i will work extra to make up my time. mitt romney things 47% of the population doesn't work but i can assure you that they do. i'm a democrat and i vote for obama and i work every single day. i pay $10,000 in federal taxes. dependence, iny make decent money, i will pay my fair share. they tax me to death. that is fine, go to work and that they might texas. it is a great country but i resent adamantly this attitude that because you are democratic that you are somehow a parasite. i don't feel like i am a victim or a parasite. i bus tables and i have driven a

bus and my brother has been to college and he and his wife work. what are we talking about folks who don't go to work? host: here is a tweet -- an independent in bristol, va., you are next. caller: thank you for taking my call. can you hear me? host: i am listening. caller: i just think the key to what mitt romney has said is that he says he will not care for a certain group of people. what is scary is is that he is

running for the highest office. he is supposed to care about all people. his policies and what he does is suppose to be representative of the united states. i think that is the key. when he made that statement that he does not care, he is separating people. he is being divisive and separating people who are rich and poor. it is just very scary. host: have you ever voted for a republican? caller: i voted for bush the second time. host: did you vote for obama in 2008? caller: i did. i have two master's degrees. i am not lazy and i work very hard. i enjoy working to take care of my family and i don't depend on the government for anything. host: did you ever think about not voting for president obama in 2012?

have you considered voting for governor romney? caller: no, because i love the president. i think he is doing a wonderful job. host: other headlines this morning -- "the washington post" a story about debt relief to egypt --

the front page of " the new york times" -- those are some of the stores in the paper this morning and we told you about president obama traveling to ohio yesterday. there he announced actions against china, filing a complaint with the wto about china's efforts to undermine u.s. automobile suppliers. we'll talk about that more coming up and get more details

about that and we will focus on the world trade organization in our last hour. first, back to the phone calls and your take on this lead to a video of governor romney and its impact. pennsylvania, what do you think? caller: good morning. i was listening to several of the calls and following the news for months and months. one of the things that i see is that the media is trying to control the dialogue. every headline says -- talks about the problem with mitt romney. that is controlling the dialogue, in my opinion early this morning, on msnbc, there were talking about this video

and made the reference to president obama when he was talking about the people clinging to their guns. one of the panelists what did then to further explain what the president meant and that is legitimate. the a little lead to videos are taken out of context in so many instances. this was four years ago. what what mitt romney said in his fall press conference that he wishes the leaker would release the pressing question, it won't happen. the leakers are nothing but political spies putting their agenda for and the media will play it because they will support obama no matter what.

the 47% -- it was bill-stated but i think mitt romney, how he stated it, it seems like it was reasonable. host: you are a republican. i assume you plan to vote for mitt romney. what about the independents, the people in the middle that the governor himself said those of the people he is trying to get. does this help him? caller: i don't. i am registered as an independent by change my affiliation from republican to independent. i think republicans act too much like democrats the last couple of years. my first take and my first impression will start forming my

thought process. i took it to mean that 44 is -- a 47% of voters will vote for barack obama and he cannot take his time to change their minds. that is my opinion and i appreciate your show and i am a regular listener. you guys to a great job. host: hang on the line because i want your -- to get your reaction to david brooks in "the new york times."

what do you think? caller: there is a lot there to gather. i am not a david brooks fan. to give an off-the-cuff remark on what he says of -- i really can't. it is too much to grasp. host: democratic caller from maryland, good morning to you. caller: good morning and let me thank you for giving me this opportunity. there is just so much to say about this man. every day, not every week, he seems to come out with something that is absolutely silly.

mitt romney is an empty suit. it is an expensive suit but still, it is an empty suit. he talks about taxes but yet, he will not release his taxes and let the american people see what he was doing for last 20 years. i think his tax returns will be so damaging and they will get out, by the way. the american people can see that he is stepping on the most vulnerable people in our society. a man that can stand up there and say that he will -- walk away from 47% of this nation when he is president, he

will not be able to get anything done because he turned his back on 47%. about the press -- the right wing of the republican party are always complaining about the press when the press shines light of all the dirt. i say don't shoot the messenger. change the candidate. one last thing, dear, i find it so ironic that this man is talking about taxes when all this money is in the cayman islands. they are not exposed to the american government. i am willing to bet that when we find out exactly how much taxes this man did not pay for 10 years or more, it will shock us. by the way, you have a congrs

lady coming on that we love in the district. host: donna edwards is up next. let me hear your reaction to this gallup poll -- is it possible that the mitt romney message might appeal to people who say the government should not be doing as much as it is doing? caller: you cannot separate the government doing something for the less fortunate or the multi millionaires like mitt romney. mitt romney could not make his

millions if it were not for the tax laws that he and his gang had been capital, that's all they did. when you talk about the 47% of the people that he will kick to the curb, they are nursing home patients, they are disabled vets. they are retirees. they are women with dependent children. for god's sake, that's why we pay taxes is to help people that cannot help themselves. host: another link on the drug report this morning -- morningdrudge report this morning --

that's another story link on drudge report following the headline of this video on governor romney. an independent from new jersey, good morning. caller: good to have you back. i think it will be hard for him to un ring the bell. it was the same thing with obama. the latest comment has it right. >> you can see what remains of this segment in the cspan library at c-span.org.

we are going live to the cato institute for a daylong event on the supreme court. this is just getting under way. >> we will talk about the case is coming up and concluding with their 11th annual lecture delivered by the former solicitor general, paul clement. leading the nation's supreme court litigators. for a fuller discussion, you can =- term to the cato institute supreme court review which came out yesterday and you picked up under way in and those of you seeing us on c-span can get your own copy by going to cato.org. this year, we mark the 225th anniversary of the day in 1787 that the framers concluded their

work in philadelphia, sending the document to the states for ratification. , reflecting the vision of liberty through limited government that the founders had set forth the 11 years earlier in the declaration of independence. the constitution sought to establish a more perfect union toward that end. much has happened in the ensuing 225 years, of course. some of goods such as the completion of the constitution through the civil war amendments, some of the extraordinarily problematic such as the major revisions of the document that took place during the new deal, all without benefit of constitutional amendment and all undermining true limited government. constitutional and version has animated the words of the constitutional studies and it will be constant throughout

today's program. to give you an overview of the program, i will introduce the man who is primarily responsible for putting it together and for editing the supreme court review you have in your hand. ilya shapiro is a senior fellow. he is the editor in chief of the cato supreme court review and a coordinator of the cato growing amicus brief program. he is a graduate of the college of princeton university, the london school of economics where he did a master's degree at the university of chicago law school after which he clerked for a judge e. grady jolie. he practiced law in new york. the practice in washington as well. before joining kato, he was a special assistant adviser to the multinational force in iraq on rule lot issues. he published -- he is published

widely and the lectures settle schools across the country. i will now turn of the program over to him and return after lunch to moderate our second program. please welcome ilya shapiro. [applause] >> thank you. every year at this time on this stage, i am ever so thankful to roger for plucking me out of the big treadmill so i can do more interesting and hopefully more meaningful work here. welcome to our 11th annual constitution to a conference where we release the supreme court review, the nation's first in-depth review of the most recent supreme court term. we hope this conference -- we hold this conference every year on constitution day but this year we poked it -- we pushed it back a day to accommodate rosh hashana.

we are proud of the speed with which we public to this tome. the last decided cases had norm -- no more than a month to digest. this is not a typical law review. they use more space for footnotes. instead, this is a book of articles about law intended for everyone from lawyers and judges to educated layman and interested citizens. we run a tight ship. you have the schedules in your packet. we start and finish on time without waiting for anyone in putting the brakes. i want to thank david lampo for his help on the volume. linda and the conference team,

none of this would be possible without them. the entrance and associates, you will see them and john blanks. i hope you're listening outside. i certainly could not do half of my work without him being able to keep the trains running on time. i reiterate our hope that this collection of essays will advance the macedonian first birch's of our constitution giving renewed voice to the framers fervent wish that we have a government of law and not of men. that also applies to the chief justice's. in so doing, we hope also to do justice to a rich legal tradition in which judges, politicians, and ordinary citizens understand that the constitution reflects and protect the natural rights of life, liberty, and property and serves as a bulwark against the abuse of government power. in these uncertain times when

the legal and political processes seem unable to rein in the largely unconstitutional growth of government, it is more important than ever to remember our proud roots. we begin this conference with a look at the case that consumes most of the public debate about the court and constitution and the past year. i refer nfib vs. sibelius. there is a word for people who accurately predicted that the court would uphold the individual mandate by a 5-4 vote with the chief justice writing the majority opinion and justice kennedy us to dissent. that word is liars. there's another word for those

who predicted that it would be upheld. damn liars. there's even a word that the court would save the lawsuit was not an indicator and hold that the medicaid expansion was in perceptibly coercive, we were left with statisticians. i thought i knew what to expect in this case. i sat there and the court room that morning and heard the chief justice and the government a bottom line victory. neither expanding federal authority or dismissing the case on some technical ground. i never thought i could feel so empty and still do after having

court majority offer such a ringing endorsement of my theories and not mine alone on the commerce cause -- clause and spending close. what have we missed? i have my ideas but i will defer to our distinguished panel for now. the panelists need no introduction but i will provide brief intros. randy barnett - is the waterhouse professor of georgetown university law. he was co-counsel to the plaintiffs in this case. he argued that previous commerce clause case. he is also the author of what i think is the best book and what has gone wrong with constitutional law and how can be fixed. next we will have the david rivkin.

he represented the obama care sibere side. he has been legal adviser to george h. w. bush. you know him best from the daily op eds he publishes in "the wall street journal." he offered assessments of the ruling does much more dispassionate than i can muster. blaustein is next. he will tell us what the court adopted the theory that he presented in and does -- in his and it is brief. he said nfib went along way to clarify how this decision should be conceptualize.

randy - >> thank you for inviting me here and thanks to the cato institute for having me. the legal challenge to the patient protection and affordable care act, known as obama care which i advocated as a law professor before representing the national federation of businesses was about two huge things -- setting the country from obama care and setting the constitution for the country. to my great disappointment, we lost the first point in the ruling to uphold health care act. to my enormous relief, we won the second. i figured it was all or nothing.

if we lost a obama care it would mean that the government and law professors would have prevailed. if we won, it would be because there are theories had been affirmed by the court. as it happened, although we did not succeeded in validating obama care, our view of the commerce clause was confirmed by five justices. if you had put a gun to my head and mandated that i choose one of these outcomes over the other, i believe i would pick the constitution. obama care can still be reversed politically thanks to the delay, due to the desire to spread six years of costs over 10 years and in part to our losses which kept lot villages may -- and legitimacy limbo for two years.

our losses helped make the affordable care at the centerpiece of the election of 2010 turning control of the house of representatives to republicans. it remains a prominent issue of the presidential campaign of 2012. we will soon know whether the 2012 election will correct this great policy mistake. at obama care been upheld, the damage to the constitution might never have been corrected. the question is who won the case. that is a complicated one. it depends on what my bed -- it depends as much on what might have been decided as to what actually was. it depends on how much you think constitutional law doctrine matters. let me examine these issues before looking at that -- what the decision may alter for the future. this was forced upon the

founders of limited government in 2010 when the democrats in congress insisted on the health care bill that was constitutional to require all americans to purchase insurance or pay fines as a regulation of interstate commerce. the regulatory powers of congress have been rendered limitless. they're not. we prevailed completely on that point. the case has put us ahead where we were all before obama care. five justices have now officially ruled that the commerce clause and spending power have limits, that the mandate to purchase private health insurance as well as withholding medicaid exceed those limits and that the courts will enforce these limits. this is huge. on the commerce clause, chief justice roberts and four dissenting judges accepted why this exceeded congress's power. the individual mandate cannot be upheld under the commerce

clause that clause authorized congress to regulate interstate commerce, not to order individuals to engage in it. he adopted his view for the precise reason we advanced, granting limited power to congress. allowing congress to justify federal regulations by pointing to the inaction on congress would bring countless decisions and an individual could potentially make within the scope of federal regulation and on that the government theory, empower congress to make those decisions for him. supporters of health care law overhaul had invoked the power of congress to make this necessary and proper. chief roberts rejected this argument. he said even if the individual mandate is necessary to insurance reform, such expansion of federal power is not a proper

means for making these reforms effective. he did not rest this final impropriety and many expressed probability -- prohibition. as justice roberts concluded, applying these principles, the individual mandate cannot be sustained under the necessary and proper cause as proper for the insurance reforms. the court held that the economic mandates are unconstitutional under both the commerce and necessary proper causes and yet, this was the holding of the court. in part 3-c of his own opinion, chief justice rights -- "the court today holds that our

constitution protect us from federal regulation under the commerce clause so long as we abstain from a regulated activity." why the liberals could curdle and is holding -- why the liberals concurred in this holding is a mystery. they did. we will now hear from all accounts from those who are normally against this. they will tell us that the courts can't dictate the hold of the case. however true this may be, that is not all that is the rule of the case. the opinion of the fifth vote -- the fifth justice held that not only could the panel to be just a was a tax but it was only so under a savings instruction that eliminated a legal requirement to buy health insurance and replace it with an option by insurance or unpaid tax. while the individual mandate.

-- clearly aims to reduce the amount of health insurance, it should not say that failure to do so is unlawful. the government agrees with that reading confirming that of someone shows that they have fully complied with block. the fifth boat to a poll rest of the portable kerak rests upon this rationale every bit as much. chief justice roberts said without deciding the, question, i would find no basis to adopt such a street -- saving structure. the fact that before consent -- consenting justices failed to join, does not until it is reading his dictum. if it did, his ruling on all medicare funding will also be

dictum./ no other justice joined him on this ruling. in addition to 3-c of the opinion and the logic of the opinion of the fifth judge to uphold obama care providing a formal justification, we also have the realistic fact that five justices embrace the entirety of our commerce clause this "dismissed as emanating from the leader less tea party. it is now embraced the what is called the rule a of fi. we have been told this is a living constitution and it evolves in response to social movements.

if the outcome of this case was indeed impelled by popular constitutionalism, a limited more, not less legitimate on constitutional grounds. as for the spending power while the court has previously un bel did the other issues announces the new deal has uncovered a lot that treats congress well. all of this represent a fundamental departure for law professors and constitutional law before this decision. if we prevail on all our arguments about the mandate, some have claimed that the chief justice of the power to impose economic mandates on the tax policy and thus rendered the commerce emissary proper causes

necessary but without practical effect. once justice alito decided, he said it was not true. chief justice roberts upheld obama care byerly ready law that was no longer a mandate but clearly an option to get this stuff paid. he ruled that anyone and not advocated that and say3 this of the federal government does not have the ability to mandate anyone to buy health insurance. he noted that statement real -- raise more naturally. therefore, it is because he does not lie with the mandate. thef roberts china's penalty refines the penalty to be unconstitutional. in obama care, the man did was

call the individual responsibility requirement. to save the rest of obama care, the chief adjustment. under obama care, americans had to buy health insurance. under this pre-court ruling, no americans had to buy health insurance. under obama care, ms. of americans would not addlepated them to be as they don't pay enough we're still required by law to get insurance or be a lawbreaker. those who pay the health insurance were still out laws. if you pay the tax, a pupil with the feds. chief justice john roberts justified his characterization of the palle de on the ground that the amount involved is so small that it would not be

course of. it really provided the incentive. the court's opinion applied -- implied that if this tax provision was so high, it would be an unconstitutional activity. the power to tax is not the power to destroy. those who think this criteria is judicially unenforceable said the same thing about the coercion test which chief justice and four justices imposed. justice roberts or rewrote a statute to reduce the course of penalty. this is not was most important about the conversion of the individual mandate. had the argument that the bandit was constitutional regulation of

interstate commerce been accepted, future congresses could jack up the amount of the penalty and at present time to boot. the majority of the justices rejected this argument and held the mandate was not a proper movement in the commerce clause. chief justice roberts decision made bad law and a couple of respects. he gave it after he said this was not the best interpretation of law. he said this provided a tax on an activity. both of these maneuvers made constitutional law worse. the thing about this babbling all is although it is the holding of the court, unlike his reasoning in the commerce clause, this savings construction was adopted by only

one justice. this is not to say that might not be influential in the future. no other single decision has had a greater effect. i doubt that chief roberts approach the issue of tax penalty. i think mandates are so toxic politically it may be a while before we get to test that proposition. as i have already explained, the deal the chief roberts gave constitutional was to make it better in important ways. together with the center, roberts provided the fifth of those. i don't praise chief justice roberts for making this political deal. neither am i willing to throw away our everything because we

don't like what would loss. conservatives to libertarians need to stop agreeing with the green light to impose these new laws. doesn't this case mean that the supreme court will uphold federal law by the book or by crook? -- hook or by crook? will it add here to this doctrine? this is a matter of speculation. suppose that congress were to amend this affordable care act and imposed a sanction on the failure to purchase health insurance. would law professors dismissed this case as frivolous? i doubt it. how about lower courts? i think many more district courts would invalidate this law the move favorably on the previous challenges.

the rulings would likely be upheld. doctrines constrained us. we might like to have contested the insurance company regulations. we were definitively foreclosed from such an argument by the 1944 case. changes and the justices could negate this decision but that could happen with any doctrine. i ask any litigant whether doctrine's matter so long as the doctrines mandate. we will now have an election to decide the ultimate fate of obama care. this election should also be about who gets elected to serve on the supreme court. should a republican conservative continue to put on supreme court judges or should

republicans nominate constitutional conservatives who believe it is not good for justices to be enforced and -- in the constitution. should bevetted for the willingness to enforce them meaning. mason was given a wonderful lesson in constitutional law, the enumerated powers that limits the congress. the electorate was given a different message in june. judicial restraint is forcing those limits which is no virtue. in november and beyond, we will see how long -- how well those lessons were learned. thanks. [applause] >> i want to thankilya and kato for giving me another shot at

coming to discuss briefly the particulars of the supreme court ruling. asthe ruling has profound policy and implications. the implications are pretty obvious. obamacare has been upheld to remain the law of the land. chances are very good that the law would be overturned if mitt romney prevails. the political ramifications are less clear. only time will tell.

i'm not a political pundit. i will focus on the constitutional implications. i will echo some of the things that randy mentioned. you'll see a subtle disagreement on a few points. what was at stake was in the challenge to the individual purchase mandates the guarantees of individual liberties which ensure political accountabilities. the government was defending the combination of the commerce clause which would have destroyed the sovereignty

system, which justice kennedy called the most distinctive feature of american constitutionalism. with this in mind, the decision has excellent features and some bad ones. the court has articulated the limits in the commerce clause holding that neither of the powers can form the basis of a general police power to be exercised by the federal government. we made this argument long before obamacare was enacted. i could probably count a couple of folks on the fingers of my

hand having it embraces and embraced by the five justice majority of the court. equally impressive is the fact that the court has made clear putting the real meat in the teaching and all cases that congress cannot reduce spending in a way of coursing spates to adopting federal programs. all of the states have a choice of implementing the medicaid provisions with only new federal funding at risk and it got the support of seven justices is inconsequential in the medicaid area and many other so-called cooperative federal programs. now comes the bad news.

i disagree somewhat with randy. not that the court has written the statute to get rid of a mandate. that is not anything you can cite. what the court has said about the essence of a tax power in the process of doing so. the court is basically held that congress can impose taxes on property or in, or some type of activity but on the failure to undertake some prescribed course of action. this ruling suggests that there is the same potential for more power, as when a been

the case with interstate congrmmerce. power to lay taxes have been interpreted broadly. congress has imposed taxes on unimaginable variety of products and transactions from fishing rods to bows and arrows. they have been directed at encouraging or discouraging a particular kind of conduct. however, obamacare's requirement to maintain a level of health insurance benefits is far more direct.

it does not offer some tax benefits such as as an exemption for those who purchase a particular type of an insurance package. nor does the mandate tax a kind of transaction. by imposing a tax on health care paid not through an improved policy. the mandate imposes a tax on the status of not having that insurance. it is not a tax on gambling but a tax on it not gambling. that is the case with congress compelling people to enter with interstate commerce with a tax on a failure to buy goods and services. that argument was made on

several occasions throughout the case. the failure to engage in it. even more importantly, the key problem with the commerce law power, the ability to impose a tax not on taking a boat trip lacks a meaningful neutral limiting principal that could keep this power from serving as a basis for general police power. can congress impose a tax on anyone that does not own an powered vehicle ? or dairy products or cereals or

various other products that people can buy in the marketplace? the court's decision said the answer is basically yes. the question for us is what restraints if any are left on the table under the court's vision of the taxing power. the court continues to the knowledge limits of taxing power and randy touched upon some of them. remains a blunt instrument. those limits should be judiciously in forcible -- enforcible.

a tax that is a mere penalty would not be sustained of a taxing power and declined to decide the point in which it becomes so punitive the taxing power does not authorize it. it is not something that is in force for criminal sanctions. the thing that bothers me the most, the courts -- the chief justice emasculated the other basic limitations on the taxing power. all of the powers have limiting principles but they are not the same. the requirement that direct taxes be apportioned among states. the taxes are to be paid according to each state cost population, as the framers

designed to make it difficult for large states to dominate the house of representatives. that is why it is such a rare phenomenon drought our constitutional history. the court avoided holding the individual mandate unconstitutional. we have argued it is not a tax. it is a direct tax budget been apportioned. the court narrowed the meaning of the term direct tax or had taxes. not to use a term as absurd.

the 16th amendment was adopted to enable congress to pass on apportioned taxes on income from whatever sources derived is inconsistent with this conclusion. the parchment requirement is off the table. -- the apportionment requirements is off the table. the court questioned whether congress can impose limits on its taxing power. the court suggested it was the ultimate judge of the power that congress was exercising. this rule would expand congres'' power and would make congress somewhat less able to determine

what it is doing. the individual mandate was not enacted as a tax. the congressional findings refer to the power to regulate interstate commerce. the mandate could be reasonably characterized as a tax. i do not want to overdramatize the problem here. the court paid attention to what it considered to be the relevant congressional intent in explaining why the penalty for failure to comply with the mandate operated like a tax. congress did not think it was creating 4 million outlaws.

congress did not invoke the taxing power. it did not clearly say that it was not relying on tax power. had it done so, it would have made it more difficult to rewrite the statute. i agree with randy that the tax analysis is so idiosyncratic that it is not necessarily going to prove this positive -- di spositive. i am troubled by the fact that much as we care about the line that upheld the

court's opinion and the constitution, i am delighted by the clarity with which the chief justice described the structural limitations and the powers in connection to the individual liberty. that is all good. the only instances where the court coalesced with a workable majority to take down a statute have been instances where not much was at stake and not all that much was at stake in lopez and morrison and in bond. it remains to be seen whether or not we're going to find ourselves with another case. it could be a conservatively and

spired statute promulgated by the republican majority that present some problems because i do not think the problem with federalism is limited to the democrats or liberals. i would like to see one of these cases, congress taking down an important product. i have not seen it yet. congress now has a road map. it could come up with something that is not much of a penalty. but penalizes individuals that engage in prescribed conduct that can enable the government to have a species of general police power. mandates are very unpopular. the war may turn in 10 or 15

years. not to take all of the good things from this case. there are troubling elements here going forward. thank you. [laughter] -- [applause] >> i'm here to talk about the medicaid component of the affordable care act cases. yogi was once asked was more important in baseball that he thought for a moment and said, 90% of the game is physical and the other half is mental."

that's the part i'm going to talk about. the entire case as was reported by cnn and all the reporters, i was amused by how the media jumps to conclusions. i was watching the decision on tv news. they kept saying that the law was struck down and was another perspective coming. a man calls home and a woman enters the phone. "who is this?" "i'm with the new cleaning service." "please bring my wife to the phone." "she is with a man."

"how would you like to earn some money? take the gun and go upstairs and shoot my wife and the man she is with.' "$10,000? you have a deal." "what do you want me to do with the bodies?" "dump them in the swimming pool ." "there is no swimming pool here ." "is this 555-" [laughter]

you have to be careful about jumping to conclusions. i want to start out with seven points, three of which our policy points. four quick summary points on a doctrine that was established and then go back through it more methodically. as i thought about these issues, the broader question of cooperative federalism. i thought, "this is great." states should have skin in the game. there is tremendous power that is given to the federal government by this model. it is a significant leveraging

problem. that is a problem that i saw as part of the affordable care act. there is a displaced and of political accountability. the history of medicaid is a good example. it is easy for states to get into the program. the state's drive the federal budget. the states have a good deal and this is true of medicaid. the state's realized they have pretty much tapped out their resources. they raise the floor and mandate more of the programs. this is what happened in the aca. the federal government came into the affordable care act and said the states do not have -- all

persons with incomes over the 5% income must be covered by the states. you wind up having this displacement. you have the state's driving the federal budget at the beginning and the government driving the state's budget. that is a problem with displacing political accountability. the idea of skin in the game sounds nice but it transfers enormous power to the federal government to use spending power. it is a policy claim. you can find online an op-ed i did where i was not unsympathetic to the affordable

care act medicaid provision. i was misreading the law. i thought subsidies existed for all people under 400% of p overty. that is not true. that's when i turned and dedicate myself to overturning this law. there was no intent and a practical affect. if states terminated medicaid, the pores of our citizens would not be subsidized by the federal government. there would be left totally high and dry. people with incomes up to $90,000 would be subsidized on

the federal exchange. no one understood the states had a realistic option and that for me was the straw that broke the camel's back. that's when i was convinced this was not a real choice. mentioned fourk provisions. we're talking about things that were accomplished in the case. these are four things that were accomplished. the court rejected the idea that judicial enforcement of limits on conditions on federal spending programs -- there are traditionally enforceable limits on conditional spending. this was a contested question and the court concluded that

there were judicially enforceable limits on conditions. the court for years had said the inducements is ok and coercion is not ok but the red not been a case in which the court had implemented that in the modern period. it turned this victim into doctrine. it gave meaning into the ante, during principal -- anti- ciple.dering printab governments cannot require states to act via conditions on

spending. what is protected? the government cannot force the states to act. the state's right of inaction is protected and that is an important thing. that principle was violated in the medicare mandate component of the affordable care act. states have to act one way or another. the importance of protecting the state inaction is a critical point. court adopted what they stated that the right way of thinking about these state relationships is the contract model. once you look at this to the lens of contract theory, the issues are in limited --

eliminated considerably. contract formation --contracts modification is much less so because of the risk of leveraging. this change in the affordable care act was a contract modification. this affordable care act is a modification. chief justice roberts said it was an entirely new program. the principle of protecting not action is respected in contract formation. if a state chooses not to enter into the program, its right of inaction is protected. it is neutral. in this case, the protection of

inaction is troublesome and that is what we have here in the affordable care act situation. the potential for excessive leveraging exists because inaction at contract modification is not possible. the states can opt out, that requires action, not inaction. they had ongoing relationships to their medicaid beneficiaries but they did not qualify for matching. 100% of state medicaid expenditures would be borne by the states. the contract modification idea sheds light on to the troublesome aspects of what was going on in the affordable care act situation.

the clear notice idea. this has been flying under the radar. the timing of clear notice. states can only be bound in these programs if they have clear notice of what is involved. that clear notice has to be on ambiguous to protect the state autonomy and the state interest . what has not been resolved is when that notice obligation kicks in in a contract relationships such as medicaid. does it kick in at the time of contract modification? i argued in the amicus brief

that the issue had to be seen at contract formation in certain circumstances such as this. it refuses to allow congress to reserve all powers unilaterally to redo the medicaid deal. basically there is not notice at the time. there is an intrusion on state autonomy. the changes are not foreseeable and when they are substantial. you cannot have a regime where every change requires notice at the beginning. the accommodation is where there is notice, for c ability, or an

implied term to the original contract -- foresee ability. the regime that the supreme court has adopted 7-2 on this issue. let me kind of circle back and talk through this quickly. the aca requires that there be coverage for all persons with incomes under 133% of poverty. the states are driving the federal budget. the problem is leveraging. that was the strategy that the aca adopted. it would take away all pre- existing medicaid funding if states did not comply with the

new terms and conditions. it was a leveraging approach. medicaid is a matching program. medicaid was lent to incomes under aid to families with dependent children. medicare was lying to social security. -- medicare was linked to social security. basically no state would have thought when it entered medicaid that it would be expected to cover folks up to 133% fo poverty -- of poverty. medicaid was a poverty medicine program. what about contract from work?

-- frame work? this is not a contract formation but contract modification. there is an ongoing contract between the states and the federal government. think of this example. think of the following. sailors make a deal for wages on a fishing vessel. they go out to sea and decide that they are going to ask for a doubling of the wages in the contract. or they wouldn't do their job. the owner of the vessel was in a leveraging situation. he capitulated and came back and challenge this and the court said that is excessive leveraging. if you wanted to do the deal, you have to do the deal before

the ship set sail. this is what the aca is about. think about the sailors in that situation. on the notice issue, i want to mention notice and coercion and finish. the timing of the notice was critical. the court refused to enforce this provision in the social security act saying no state can be expected to have anticipated what the obligations were and that type of brought reservation of powers conflicted with state's autonomy and their ability to order its own priorities unless the notice was given timely and that meant a contract formation. the notice requirement has two objectives -- a positive and

negative objective. the positive provides notice to the states so that they know what they are getting into. the perspective has to be that of the states. we as the states to make the deal. you have 90% federal matching. that is not the point. it would be a great deal if bill gates gave you his house under the condition that you have to pay the taxes and insurance and the landscaping and the gardening and if the roof falls off, you have to put on a new roof. that sounds like a good deal. how many of us could afford to take on those conditions?

if someone said you can buy the hope diamond at 89% discount, i'm sorry, but you cannot afford that. the states have a right not to participate in these programs. it has a negative role. chief justice roberts made a lot about this. leveraging, blindsiding. it guards against federal bait and switch. the notice rule has to be at the time of contract information when there is a substantial change that was not foreseeable by the states.

that is an important aspect of the case. the coercion. for a long time, the principle of coercion had been in the case but had not been well defined. so the principal is now transferred into the spending power domain. i have time to enumerate some of the factors. first the action/inaction point. there is a problem that states have to act. the structure of the subsidies i have described. this is a bait and switch in leveraging. and the sheer size of the case.

on their clear and definitive guidelines in the case? the contract modification is k ey. the size is important. there are some guidepost in the opinion and i think we will s ee as future cases. the maintenance of issue is the next one to be teed up. thank you very much. [applause] >> randy has a comment. >> i was on the panel with david the monday after the decision. i want to echo my agreement with basically everything he said.

you go into legal combat with the justices and judges you have. if congress has simply called the penalty a tax, i think we would have lost in every lower court and in every court of appeal. it would have been following all of the tax law. i think we would have lost completely and it would not have reached the commerce clause. we were lucky they did it the way they did. congress can do whatever it wants and that is the theory of the four liberal justices. david is troubled -- the stakes are not very high.

it is troubling. there's a reason for this. we have been operating for a 5-4 vote. if you have five votes for striking it down, you have to hold that five votes every single time and five votes is not enough to do that. somebody is going to break. you need more than five. if you have more than five, you can let one or two go. this tells you the role that politics has to play in the future of constitutional law in the next presidential election and in every election to come.

perhaps it may be ill little too -- perhaps it may be a little too important and not to focus on the need to have more than five votes in the future. i'm afraid there is a good chance they will solidify the position they have. secondree with randy's point. as to the first point, i do not know. the arguments about propositions that this is not an income tax, this is not an excise tax but a classic direct tax. having read the text portion a dozen times, it has not been a portion.

if one brought a lawsuit with will written briefs and the right circuit, we might have done ok. i agree it would not have been as easy as all that. this is one of those exercises that is impossible to predict. >> you go to war with the justices in havyou have. all right, questions. wait for the microphone and identify yourself and ask a question rather than giving a speech. >> i'm charlie and retired military. i would like to ask a question concerning what you just talked about, the tax. i feel that the individuals or

companies do not have to pay tickethe tax. reading the constitution, the converse is the only one that has the right to modify legislation. the legislative branch cannot do that. the president can approve or veto legislation, suggest changes. the judicial branch is not authorized to write legislation. since they changed the words from a penalty to a tax in the diversion of the court, that has to go back to the congress and the congress has to rewrite the legislation and the president has to approve it. this was the legislation that was written and i don't have to

pay it because it is a penalty. >> the court did not say "we wrote the statutes." the court merely construed what congress has written. i would not want to defend a person on the theory that it was not what congress did, no matter we may feel that indeed the court wrote the statute. >> one potential lawsuit i could whole idea of their not being a criminal punishment. let's say somebody owes $1,000 in income tax and $1,000 in obamacare tax. i call it the unicorn tax.

you pay into the irs. the irs treats that as your obamacare tax and you still owe $1,000 in income tax, has dire consequences for not paying. there could be some question about about how the implementation works. >> the mention a lawsuit brought by the pacific legal foundation. it was put on hold and now they have amended their complaint. it was the holding of the case that their client don't have to buy insurance. all revenue measures have to originate in the house and not the senate. it did not originate in the house except in a technical way that should be allowed. they took a bill to replace the

entirely with the affordable care act. that should not be allowed to satisfy the cause of the constitution. who knows if this will have any success or not? it is something that is valid and based on a role in the constitution. revenue measures must originate in the house. it was not foreclose by our laws and because we didn't raise that claim. >> wait for the microphone. >> in terms of the level of penalty that could be imposed under the level of the tax, as i the robert's decision, if

tax equal the cost of compliance, it would be considered a penalty because it would not raise any revenue. if it is high enough to compel action rather than pay the irs, it is a penalty. maybe this is directed at mr. goldstein. i did not see much risk that a large task could be justified as something other than a mandate and maybe you could respond to that. >> jimmy never really spoke on that issue. >> i think you're reading of the decision is right. that is what justice roberts said. if it gets higher than that, it

is no longer a choice. there's a standard. they cannot tax you more than what it would cost to comply. the measure of the tax is limited by the cost of compliance it to some degree. reasoning.ustice's whether that will be revisited it is an open question. it was meant to get him to the result that he wanted to get to which was to uphold obamacare. i don't know there is much risk or danger that this will come back again. >> i agree with randy. there's a certain elegance in using that for yardstick for what would deprive you of a choice in terms of driving.

you are not going to pay a cent more than it would cost to comply. there was the upper cap. i do not disagree. consider how uncomfortable the limiting principal is, to the more burdensome and expensive obligation. the higher is the tax you're being charged with. that is not a very good limiting principal. hi, the most mystifying part of the majority opinion is how it did not deal with the anti- injunction act.

if this is a tax, -- there should not be a decision in the first place at the amount have comments on bthat. >> a texan be a tax -- a tax can be a tax -- or cannot be a tax based on constitutional interpretation of the court. the anti injunction act is interpreted separately. do i think this is a plausible or wonderful distinction? i don't. but this is what they said.

they wanted to reach the merits . everybody wanted to reach the merits, including the government. >> there has been some talk about the political difficulties associated with using the taxing power. do you think the political discourse has borne out the idea that the fact that the taxing power has to be used to do this sort of thing will act as a restraint? what do think of the efficacy of the charges that president obama has raised everybody's taxes by obamacare?

>> that is an excellent point. we're talking about how this would play out. what has happened so far leads me to conclude that you could have something that is constitutional and the tax for constitutional purposes but not for political purposes. this is a penalty, not a tax. nobody has taken them to task for it. i did not want to say this was obtained this way in the future . if you had something that lends

itself to be viewed as the many, opponents would scream, "it is a tax." there will be an additional argument. i'm not convinced it would not be possible to have a non-tax tax, and what has transpired since june 28. >> george washington university law school. i would love to hear what the chief justice did what he did. anyone? >> don't have any thought into that? >> whatever was in his mind, i think he is in a situation where

the timing of events suggests that political considerations entered into his decision. the reporting is he voted to invalidate the mandate in wonference, to means we on everything in conference. that is one piece of affirmation that we have. why would he have done that? a sustained political campaign was leveled at the court. i did not expect there would be a full-throated campaign money in a floor speech by the chairman pat leahy encouraging and criticizing the court to do

anything other than upholding the president's signature legislation. they were joined by many liberal law professors. there was a sustained campaign. the chief justice switched his vote. if the reasons that were offered to him about why he should switch his vote was that he should do so to uphold the ifitimacy of the accorcourt -- that was the argument being made to him in public, there is some reason to believe given the timing of the events that he responded and was concerned about the legacy of the court. those are political

considerations, not legal considerations. they are not embarrassed about that. that might well have motivated a switch if a switch happened. only he knows what is in his mind. that is all we can judge by. >> i think it is right. exclamations fluctuate. i think we can agree we'll never know for sure unless he writes in memoir someday. whatever explanation is there is not legitimate because we agree to to not a good thing for chief justices are judges to act politically to try to split the

difference or try to balance the competing imperatives. these types of political pressures only arise in the really important cases and we can be sure because of how things unfolded and or any described it briefly. is similar campaign of intimidation -- back to the point of reference thing or paraphrasing a famous statement by secretary rumsfeld. it will be difficult to pressure the court if we had a 7-2. it is unfortunate if you take article 3 seriously, as i do. >> there is an article to be written.

that is a fair question about chief justice roberts. he sees himself as being a statesman and saving the court from confronting the political branches. this is an historical point. faces on the casey case on abortion -- we faced this on the casey case on abortion. it would be highly charged and politically unwise. the short-term answer is that the court is now a subject of political campaign at this point. a lot of browsing by people opposed thait.

the real test is the long term. the issue is to see in the taxes racial preference case in texas whether people respected as a judicial decision. or the same with the same sex marriage that comes along. if the court deals with those questions in ways that are not popular, whether those decisions will be deferred to and not political decisions. if that happens, the chief justice will be a statesman.

>> he did -- look at the dawn of our constitutional history. the right of judicial review. it was far more commendable. this was the time to be bold. >> and he did it -- >> we are bring you live coverage of the cato institute. coverage will continue on c- span2 after 1:00 pm eastern.

now to live coverage of the u.s. house. the speaker: the house will be

in order. the chair lays before the house a communication from the speaker. the clerk: the speaker's rooms, washington, d.c. september 18, 2012. i hereby appoint the honorable andy harris to act as speaker pro tempore on this day. signed, john a. boehner, speaker of the house of representatives. the speaker pro tempore: the prayer will be offered by our chap -- chaplain, father conroy. chaplain conroy: let us pray. gracious god we give us thanks for giving us another day. you have blessed us with good gifts and with thankful hearts we express our gatt tude. you have created us with opportunities to serve other people and their need to share together and respect and affection, to be faithful in the responsibilities we have been given. in this moment of prayer, please grant to the members of this

people's house the gifts of wisdom and discernment that in their words and actions they will do justicing love with mercy and walk humbly with you. may all that is done this day be for your greater honor and glory, amen. the speaker pro tempore: the chair has examined the journal of the last day's proceedings and announces to the house his approval thereof. pursuant to clause 1 of rule 1, the journal stands approved. the chair will lead the house in the pledge of allegiance. pleagepleage -- i pledge allegiance to the flag of the united states of america and to the republic for which it stands, one nation, under god, indivisible, with liberty and justice for all. without objection, the house

>> it is a message which i will carry. the president's approach is attract to people who would not paying taxes. i'm not likely to draw them into my campaign as effectively as those in the middle. this is a discussion about the political process. i want to help all americans. i am convinced the president's approach will not do that. guest: the explanation does not make any sense. he did not apologize and did not retract the statements.

he said they were not elegantly stated. i think it is a problem for mitt romney. it says they do not meet their obligations and that they are freeloaders and that is what mitt romney was saying. it is very problematic. we're talking about seniors and military personnel. many military personnel do not pay income taxes. host: will you use those comments and tie them to house races? guest: many of the house

republicans that are incumbents subscribe to the romney-ryan agenda which says people should be on their own. our candidates will be running their individual races in their districts and putting out how they would be supporting an agenda that promotes the middle class and does what the president is saying in terms of his re-election. we're going to make sure the top 1% or 2% to avoid paying tacks. i think that our candidates in virtually 75 districts across the country where we do have an opportunity to take the house back, and i feel strongly that that is true, and even more

strongly today with these statements that romney has made. hypothat sounds like a yes. host: too many people say the government is trying to to too much. guest: what the president has said in how we move the country forward and how we invest in the economy, is that there are things that government can do to actually encourage domestic hiring and encourage domestic manufacturing, making sure our young people coming out of school are prepared to meet the challenges of the 21st century and get into this committee. those are things that are fwoning to allow people to contribute in the way that they should by paying taxes, by working, by meeting their

obligations. most people, in fact, want to do those things and we have to have an economy that does that. host: you feel confident about the democrats taking back the house. here's politico. the problem is, even if democrats win 25 house seats they would need 15 tore 20 more to make up for losses. a tall order. there's also the matter of history. the last time the party occupying the white house netted more than 15 house seats was several decades ago. guest: they're able to raise the money they need. we're supposed to have everyday, ordinary work experience. they've created small

businesses, firefighters, astronauts, former military personnel. we have great candidates. i think we're in an environment where the public is say, we don't want just career politicians running the game anymore. we have a lot of candidates who come from a lot of different areas of experience and expertise. i think this is an pirnte in which we can when. host: is this something you

support? guest: post-election there will be a lot of ideas on the table so we don't go off the fiscal cliff so we meet only fwations we have to give middle class and middle income taxpayers the kind of support that they need going into next year, knowing that things are still in flux. so -- they're going to be -- there are going to be a lot of ideas. i don't want to speculate, i haven't seen any indication that republicans are willing to put revenues on the table and revenues have to be on the table when you consider the substantial cuts that are planned as we go forward. host: are democrats willing to put medicare cuts on the table? guest: the fact is, what we've done with medicare, starting out of the affordable care act, is making sure that we wrest the money out of the hands of insurance companies that are being overpaid, put those into strengthening benefits and

protections for medicare recipients and as i said, i think that when we get to -- as we get to the end of the year, post-election, there are going to be a lot of different ideas out there. i know i have my ideas about ways to strengthen and protection medicare for future generations, strengthen and protect, though social security is not part of the deficit problem, but strengthen and protect social security for fouch generations and do that in a responsible way. but that also means that revenues have to be on the table and they have to be on the table from the top 1% or 2% in this couldn't ry who i think are not paying their fair share right now. host: katherine, a democrat from dallas, texas, you're up for the congresswoman. caller: you know when you got in, obama got in in 2008, and they said they had goals and what have you, why do not the

democrats and i'm a stalwart democrat, why don't you fight for something, stand up for something? that's why the blue dogs got kicked out, it's something that keith olbermann said if you don't vote in the mid term you're going to get exactly what you want. last lot of republicans, governors and the house, and i don't understand, what can you do to have people to understand what's in their best interest? it seems that the republicans are so off the chain they're going into your bedroom, going into -- when are you going to stand up and put someone in there on y'all's house, and we're pulling for you all but it seems like you're all divided you don't have no back bone, no spunk. host: ok, katherine. guest: katherine is speaking for a lot of people who know that the president and

democrats are on the right path when it comes to strengthening the middle class. as i said, enge we've got great candidates a i cross the country who are standing up for middle class values who are saying we ought to have a system where we have access to pell grants and student loans so that kids can go to college, we ought to -- for people who work aller that lives, that the protections of medicare and social security are important from one generation to the next. katherine wants to hear us say it loudly and she wants to hear us say what the governor said at the convention. we have things to be proud of, we ought to talk about those. enge you'll hear more of that throughout the rest of the campaign season for the next 49 days and katherine has a good point. i'm a fighter, i believe in that too. host: on the republican line, gene in st. clement, california. caller: i'm a taxpayer, i'm not

a parasite and even though i will soon be on social security i'm still a taxpayer if i was so pathetic as to have to live off the government, i'd kill myself. you've got 47% of the country locked up, how is the democrat party going to get the other 4%. guest: that's mitt romney's assessment, that that's 47% he doesn't need to ai -- to pay attention to. as a democrat i'm concerned, people who pay into social security, i want to make sure that social security is available there for you. for young people who want to go to school, we want to make sure you're able to do that. so you become a taxpayer and are a contributor. i think most people frankly do that. they do that when they get up to work and we want to make sure we have an economy this works for them and so, i guess in my life experience, i don't

see a lot of free loaders, i see a lot of people working hard to take care of themselves and their families. host: wayne an independent in south carolina. caller: i was wondering, she's well off, she's wanting to get free money. host: were you referring to sandra fluke? caller: she decided she wants to free load too. she has plenty of money to go to college. how come they get to flee load like that? host: congresswoman? guest: ms. fluke has been a student an in college, she was speaking out for women's health care which i strongly support. i think as democrats, one of the things i've recognized as a member of congress is we do have, in fact, a big tent.

a tent that's available there for women, a tent that's visible for -- available for our african-american, latino and asian populations, a tebt that's available for people who want to work hard, play by the rules and just want an opportunity to succeed and sort of build that ladder and stretch that ladder out for the next generation. sandra fluke is one of those. host: and from our twitter page. how much work will be done in the lame duck session? will a deal be done to avoid the fiscal cliff? guest: i hope so. as you know, the republicans control the house of representatives. they control what comes on the floor. i would hope that our leaders would be able to sit down now, i don't understand, for example, why this is the last week we're in session. when there's so much work to be done before the end of the year. we have a job to do. and yet republicans are going to gavel us out to focus on campaigns and those of us who

are responsible and know the tax cuts that expire by the thoached year, unemployment that expires by the end of the year, the fiscal cliff that is coming at the end of the year. there's a lot of work to get done. so we shouldn't just hold it off to the lame duck session. we should be in session every day until then to get this work done for the american people. host: another issue is she the payroll tax holiday. the first caller asked democrats to fight for something. would democrats insist that the payroll tax cut be extended, the tax cut holiday be extended? guest: i hope so, for 9 % of americans that make under $250,000. i think that makes sense. again, something else that has to be done by the end of the year so we don't go into next year with 98% of americans seeing their taxes actually go up, the ball is in the court of the republicans in the house of representatives who control the gavel and who can make a

determination about whether we're going to get these things done or not and who ought to be able to come to a position of compromise that for 9 % of americans making under $250,000, they should be able to not have their taxes, not see their taxes go up and instead working on protecting the interest of those who make more than that just doesn't make sense. host: the payroll tax holiday right now is for everyone. guest: it is. host: and democrats are saying, we want it to go forward but not for those who make over $250,000, as well as the bush tax cuts. that's your line in the sand. guest: all these things are things we have to put on the table that have to be discussed. but i think it makes the most sense for the american public. we know the effectiveness of continuing a tax cut for people who make under $250,000. you know what they do? they spend it in the economy. people who make more money than

that, they don't put it back into the economy. it actually makes fiscal good sense at this time when we still have an economy that's real re-covering, that we don't do something deliberately and this would be deliberate, that would jeopardize our recovery. host: ken from gainesville, florida. caller: i'm one of those people that governor romney spoke about. i work -- i worked for 18 years from a company, i left there, it was amicably resolved when i left and i had health care. but my republican ledge slay -- legislature voted against me having health care because our group was supposedly too small. so democrats -- had democrats been in, that would not have happened. i now work, after several other jobs, for another company. it's a large corporation. and when tissue in order to get benefits you have to work 30 hours.

we were working 30 hours and a white male complained about why we're not getting those benefits, we were all punished by getting our hours cut. i've developed a cancer in my arm, it ate through some of the bone in the arm. now i can't work. but i was working there without the bone in my arm. and now i have to be on medicare, now i have to be on food stamps. my question for you is, it seems like if mitt romney gets elected and these republicans get elected, we'll be at the mercy of the corp. rations -- corporations. i would like you to please speak about what can be done so we're not at the mercy of corporations. thank you for taking my call. guest: i think the one thing that can be done right now is people to take -- to take this election that that's coming up very seriously from the president down the ballot because the elections do matter and elections to have consequences. this one will have particular consequences. we don't have to actually guess what mitt romney and paul ryan

would do if they were elected because it's been spelled out in pall ryan's budget that cuts, medicare, they turn it into a voucher program, virtually every program that helps people like our caller, every day, through no fault of their own, they get cancer they get sick they need medicare, they paid into a system. he's worked for 18 years paying into medicare and social security. he should have the benefit of being able to take vng of that when he needs it. it's the reason that you and i work. and so we don't have to guess at what the consequences of the election would be. that means that it should be incouple dent on all of taos do whatever it takes in whatever stake, get whatever i.d. you need to go to the polls and express your opinion and hold elected officials accountable. too often we have elections and it's like the election happens and we all just disappear. we didn't let -- we can't let that happen again because

what's going on now particularly in the hours, would be devastating for middle class people and for poor people in this country. host: what are you referring to specifically? guest: budget proposals that would slash and burn the federal government, taking a meat ax to the budget instead of using a scalpel to go program by program. to say what's the value of this, what are the consequences. that's not what's ap haing right now. it is not as though -- none of us believe the government should do everything but there are clearly some things that government is the most appropriate to do and to assist with and we have to make those decisions. host: on negotiations over avoiding the fiscal cliff is this true?

host: is that true? guest: there are a number of us that are concerned, you cut those but there are parts of the budget preserved even around defense cuts. even we the pentagon says we need to cut program bus members of congress, particularly on the other side of the aisle want to restore those things at the expense of poor and middle class people. i don't think that's sustainable. absolutely we'll fight hard on those things. and as i said, i think, you know, if somebody wants to sit down with all the of -- all of us and figure out how it is we both avoid the fiscal cliff but deal with our budget problems in a responsible way, we're all for doing that. but to simply say all of the social safety net programs are on the table but everything else is off is just not acceptable. host: helen, a republican in

louisville, kentucky. caller: good morning. thank you for taking my call. ms. edwards, i know that the house, as you said, doesn't compromise at all. but 30 bills have been passed on jobs over to the senate, which nothing has been done to, in the senate, to come back into conference so that the house and the senate can pass a jobs bill. hasn't the president, who says he wants his jobs bill passed, been -- his jobs bill been brought in front of the senate five weeks after he did the joint house and senate speech,

and it was defeated in the senate with 47 republican votes. host: let's get a response. guest: we can see the inertia that happens in the senate because of the filibuster rules. but i want to talk about what goes on in the house. the caller mentioned the american jobs act that the president put forward which would have created millions of jobs, i think a million and a half jobs, almost a million and a half jobs in this economy when we sorely need them. it's been deep sixed in the house of representatives. not even seen the light of day. i think the president and the american people deserve that consideration. and then we, you know, mulled over passing a transportation authorization which was only done for a very short time and that is the single biggest way we can actually create jobs in this economy.

>> see "washington journal" every morning at 7:00 eastern. go to our website to see this segment in its entirety. we'll leave it here to go live to the burmese opposition leader, she's the featured speaker at an event co-hosted by the u.s. institute of peace and the asia society. this is just getting started. >> it's promoting cultural exchanges and marshaling expertise in support of the transeducation under way in burma. let me conclude by saying we recognize this is a most important moment in burma's history and we are committed to continuing this work. our partners in this effort stand ready to help. thank you. [applause]

>> i have to introduce somebody who has no need to be introduced, secretary clinton. [applause] >> it's wonderful to be back here at usip, especially for this extraordinary, auspicious occasion. i want to thank usip and congratulate jim marshall on becoming president. we look forward to working with you. and i want to thank the asia society and henrietta ford and all who represent the commitment that started in the 1950's but has certainly stood the test of time. and we very much enjoy working with you as well. now the purpose for this gathering is quite an exciting one. because we have here an

opportunity for someone who has represented the struggle for freedom and democracy for human rights and opportunity, not only in her own country but seen as such around the world. so it's wonderful to see her back in washington as a free and forceful leader of a country opening up to the world in ways that would have been difficult to imagine even recently. those flickers of progress that president obama spoke of last -- a year ago summer, have been growing and strengthening in the times since. hundreds of prisoners of conscience have been released over the past year, including some just this week. opposition political parties have been legalized and their members have won seats in

parliament. restrictions on the press and on freedom of assembly have eased. we've seen laws that have been enacted to expand the rights of workers to form labor unions and to outlaw forced labor. and the government has reached fragile cease fires in some long-running ethnic conflicts. her courage and moral leadership never wavered through years of house arrest and persecution and she and other opposition leaders have now joined with president -- with the president and new government there to take the courageous steps necessary to drive these reforms. i have met with the president twice in -- including in the summer in cambodia.

i look forward to welcoming him to new york next week for the united nations assembly. we had the chance to talk about the work still ahead. there is a lot of work. i think one of the important reasons for her visit at this time is to remind us of how much more still lies ahead, from strengthening the rule of law and democratic institutions to addressing the challenges in many of the ethnic conflicts and in the area. the government and opposition need to continue to work together, to unite the country, heal the wounds of the past and carry reforms forward. that is also key to guard against back sliding because there are forces that would take the country in the wrong direction if given the chance. so we in the state department and in the obama administration

are certainly the first to say that the process of reform must continue. political prisoners remain in detention. ongoing ethnic and sectarian violence continue to undermine progress toward national recon sill yankees, stability and lasting peace. some military contacts with north korea persist and further reforms are required to strengthen the rule of law increase transparency and address constitutional challenges. but the united states is committed to standing with the goth and the people of burma to support this progress that has begun but is still a work in progress. we've taken steps to exchange ambassadors, ease economic sanctions and pave the way for american companies to invest in the country in a way that advances rather than undermines

continued reforms. and we are in close contact with government and opposition leaders. our first ever ambassador to this new burma, derek mitchell, is here with us today. and he along with the team that assistant secretary curt campbell leads are not only in constant communication but ongoing consultation with many representatives of different constituencies in burma so that we can provide the help and support that is necessary and appropriate. last sess, i had the honor of visiting suu chi in the house that was once her prison and we talked about many things, including the challenge of moving from protest to politics

and becoming a stateswoman and that's what her country needs from her now. i know a little bit about how hard that can be. it exposes you to a new sort of criticism and attack and requires the kind of pragmatic compromise and coalition building that is the life blood of politics but may disappoint the purists who have held faith with you while you were on the outside. yet in the months since she walked out of house arrest and into the political arena, she has proven herself to be a natural. campaigning hard, legislating well, and staying focused on what can be done right now and tomorrow and the day after tomorrow to move her country forward. so i think you are in for a great opportunity this afternoon, as will be many american audiences in the days

ahead as she has a very generous schedule of activities. i unfortunately have to depart back to the state department, but it will be certainly a great pleasure for me mow to introduce someone who is not only a noble laureate and tissue a noble laureate and a -- a nobel laureate and a leader to millions, but also a leader of her political party, please welcome sun suu chi. [applause]

>> thank you. thank you for a very warm welcome. it's great to see many familiar old faces. i was at an asia society meeting i think over 40 years ago in new york. it is nothing like this. but i remember that it was interesting and there was great interest in burma even in those days. as an -- i've been asked to speak on u.s.-burma bilateral relations. before i start on that, i would like to say how happy i am to be with you today, to be with the people of the united states who scood by us. we are not yet at the end of our struggle, but we are getting there. we have passed the first hurdle but there are many more hurdles

to cross and i hope that you will be with us as we make our way to the goal for which our people have been longing for 50 years because military dictatorship came to burma in 1962 and we're now in 2012. that's half a century. that's a long, long time for people to live under a dictatorship. so what we have to do in the future is not just to build democracy in burma to re-- but to rebuild our nation in a democrat exmold. and in this, we look to help from our friends who understand and appreciate the value of democracy and democratic values. speaking of u.s.-burma bilateral relations, bilateral

relations are shaped by poll techs and history and these days also by the communications revolution and mobilization -- globalization. the case of our two countries is particularly illustrative of the dimensions of geopoll techs and history. the situation between china and india, the two biggest powers in asia, and because we are on the board over south asia and southeast asia. our position is unique. and any relationship with burma must take into consideration this situation. as soon as burma started reengaging with the united states, or the other way around, as soon as we started re-engaging with one another, questions are asked as to how this would impact on u.s.-china

relations. people naturally associate u.s.-china relations with u.s.-burma relations. there were many questions asked as to whether the yeats engagement with burma was aimed at containing the enflunes of china in asia. this is a natural question. and one that i think if we have to answer honestly, cannot be answered simply. because i do not think that any country could claim, either the united states or china or burma, that our relations have nothing to do with the relations that we have with other countries around us and it is only natural that the united states relations with burma should have some impact on united states relations with

china and also that our relations with the united states would impact to a certain degree on our relations with china. but i think that this could be taken forward in a positive passion. it does not mean that, because burma is engaging now with the united states, that its relations with china should in any way deteriorate. also, it does not mean that because the united states is engaging with burma, it should in any way be seen as a hostile step toward china. we can use our new situation to strengthen relations between all three countries. for us to -- for us, to put it simply, it would be to our advantage for the united states and china to establish friendly relations. this would help us a great deal and this is what i look forward

to. burma has had a good history of preserving friendship with many different countries and many different ideologies. as it was one of the first countries to recognize communist china back in the 1950's, it was also a country which had particularly warm relations with india to its west. and when we became independent, we were considered the country most likely to succeed in southeast asia. this is an honor that we have lost over the last few decades. but we think that we can regain this honor with the help of our friends, including the united states. as i said, bilateral relations are a product not just of geopolitics but of history. it might come as a surprise to

some of you that historically, u.s. relations with burma were seen in the light of education and humanitarian help rather than economics or politics. to begin with, the first american to be -- to become well known in burma was justin, a megsnear. i can never pronounce his first name. he was a missionary who came to burma in the early 19th century, i have the date somewhere i can look it up, and he became -- he worked very hard to establish missionary work in burma. he gained enough of the confidence of the burmese cause to reef out to some princes. he wrote the first

burmese-english dictionary and he was widely respected. he lived in burma many years and died just off the coast of the area when he had started out on an ocean voyage. so obviously, his fate was linked to burma in very many ways. one of our first colleges is named after him. back in the old days, before we had rangoon university, we had two colleges, university college and jutson college. jutson college after the missionary i mentioned. it was a college founded by missionaries. so missionary work was the way in which americans first came to burma. and missionaries engaged in a lot of educational enterprises. it was interesting that in the days of colonialism, there was

a distinct difference between the educational system introduced by american missionaries and those introduced by catholic missionaries. the great majority of christian institutions in burma were either catholic or -- i mean christian educational institutions in burma, were either catholic or baptist. the catholics, of course, had convents and boys' schools run by catholic priests while the american baptist mission set up a number of schools for girls as well as for boys. the girls' schools are particularly well known. the difference between the educational institutions run by the american missionaries and the catholic missionaries was that the american missionaries, while, of course, they proselytized, that is their job, after all, they were keen

on preserving the traditional culture and manners of the local people. so that in the american baptist missionary school the girls wore burmese costume, whereas in the convents they wore gym tunics and also they were more inclined to take christian names, whereas the great majority of girls who went to a.b.m. schools retained their burmese names and burmese costume. the american missionaries also encouraged the preservation of burmese manners so that the products of the a.b.m. schools were considered very proper, very well educated, but also very much aware of burmese manners of curtsy -- courtesy. my mother went to one of these

schools. she went to a very famous a.b.m. school in rangoon known as the girls' high school. all her life she was stamped by her years there. very proper, very disciplined, very precise, very elegant. i myself went to the english methodist high school for a number of years. which is actually an american methodist institution although it is called enge learn methodist high school. i learned there a lot of hims -- of hymns. it is ironic because my mother, in the days of colonialism, when she went to the a.b.m. girls school, wore burmese costume. i went to the english methodist girls school after independence, i had to wear skirts, very strange. but i noticed there was less

encouragement of burmese manners in the english methodist girls school than there had been in my mother's school back in the 1930's, i suppose, when she was there. so education was considered -- was very closely associated with american missionaries in those days and also health care. i think many of you will have heard of the famous dr. sea it is grave, the burma -- dr. seagrave, the burma surgeon, who ran a very well known hospital and when i was growing up in the 1950's, after independence, one of the very best hospitals in burma was considered to be that run by the seventh day advenn tists. so we associated american relations with burma more with

education and humanitarian health than with politics or economics or democracy. the gers book i ever borrowed was from the lie brear in rangoon that was also well known. and of course we mustn't overlook the importance of hollywood films and pop muse ex. that also had a great influence on the young of burma in my day and i think it still continues to have a lot of influence on the young of burma now and the young every where else in the world in spite of the years that we spent under military dictatorship when we were cut off from almost everything outside our own country. the years of military rule eroded the relationship between burma and the united states. by the way, i think i should make a point of saying that

there are people who refer to burma as myanmar, and it's entirely a matter of choice. i refer to burma as burma because this is the name by which it was known when we became independent and it is the name to which i am used but it is for each individual to make his or her own choice as to which name he or she uses. the relationship between our countries deteriorated beginning in 196 when the first -- 196 when the first mill tear regime took over. the first time was in 1958, but that was for a couple of years, but then there were elections and a civilian government was restored but military dictatorship was once again instituted in 1962 and i think we can say it was more or less unchanged until 2010. it is true that the, what is it

known as? the caretaker government, the military caretaker government took on the name of the burma socialist policeman party and was supposed to be a socialist one-party government rather than a military regime but in effect it was very much dominated by the military. since 2010, things have cheanled to a certain extent. i'll come back to that later. to go back@years of military rule, there was general xenophobea under the burma socialist party. it was not just the united states but the western world in general that was viewed with suspicion by the reswreem led by the general who was the dictator. because of this xenophobia, we lost many of our links with the west. in the old days, we had sent many of our young people to study in institutions in europe and in the united states.

even before independence we had had scholars studying in the united states, quite a number. usually sponsored by missionary organizations. and after independence, we had -- we expanded our cultural and educational ties with the united states and because of the communist insurgencies that started soon after we achieved independence, we also had military relations with your country. but after 1962, these relations dwindled to almost nothing. it was not just with the yeats but with western generals that the military regime did not wish to deal. particularly after 1988. as i'm sure all of you know there was a democratic uprising throughout the country in 1988 when people asked for

multiparty democracy. the -- they had seen that one party dictatorship only brought the country from a state of prosperity to one of near poverty where we were decleared up with of the least developed countries in the world. as a result of this uprising, the military put down the demonstrators very brutally. there was much bloodshed. and the following years were some of the hardest our country has ever had to go through. the united states, from ve very beginning, stood firmly by the forces for democracy and for this, i would like to thank all of you. because when people are in a difficult situation, we need friends. we need friends who are strong and who are committed. the united states was committed to democratic values and proved

to be a good friend to all of us who struggled for democracy. but in the process, relations between the governments of the two countries deteriorated. less and less engagement and here i would like to say that i've always been for engagement. you can engage in different ways. you can engage as friends or you can engage as people who have agreed to disagree. and it is to me a sad thing that engagement between our two countries came to almost nothing during two decades or more. but now the situation has changed. because of what happened in 2010, to begin with, the military regime was replaced by

a civilian regime, elected in 010. -- in 2010. i would say we have grave doubts about the way in which those elections were conducted and i think even the united nations, which is generally very cautious about such remarks, has admitted that elections of 2010 were deeply flawed and the government that came, that wasest take lished as a result of the -- that was established as a result of these elections was made up largely of ex-members of the military. many of them had in fact been in the government, the military government, just before the election or just until a few months before the elections when they left the mill tear to contest as members of the national assembly.

the change brought about in 2010 was questioned by very many who felt that it was not enough just to have elections, which as i mentionedialier, were considered to be deeply flawed and to have a so-called elected civilian government. democratic practices had to be seen. democratic institutions had to be built. and the world was interested in finding out this how this process was going to go and the united states in particular was interested in how far along the path to democracy burma was actually going to go. i would say that the real changes came about in 2011. i was released toward the end of 2010.

but my party was then operating as an unregistered political party or shall we say deregistered. we hadn't reg -- we had registered pack in 1989 -- back in 1989 to contest the elections where we won over 80% of the seat bus the results of the elections were not honor. so we remained with great difficulty as a political party, still register bud not allowed to operate as a political party. during those years, i would say that u.s.-burma bilateral relations were somewhere democracy to democracy rather than government to government. after 2010, things began to change a littlement there was -- a little. there was a greater push for reengagement. because of the new civilian

government and because i had been released. my party still remained deregistered because we refused to take part in the 2010 elections. to take part in the 2010 elections our party would have been obliged to expel all its members who were under detention, including myself. and also we would have been obliged to reject the results of the 1990 elections. and moreover, we would have to take an oath to uphold and defend the constitution of 2008. this is the constitution which we felt was not conducive to the building of a genuine democratic society. apart from the fact that it allowed for 25 unelected military representatives to be -- to take part in all the

assemblies from the national to local level, it also provided for the commander in chief to take over all powers of government at any time that he considered necessary for the sake of the country. for this and other reasons, we felt that we could not take the oath to defend and protect the 2008 constitution. but there is a story to that, it should be a lesson to all of us, when you read the constitution, don't just read the body of the constitution, you should read the appendices as well. which i have to say, we did to begin with. we forgot to reread them. in 2011, when the president made it possible for our country, for our party to be reregistered, it was done on the understanding that the

regulations and for party reputation to be changed so we would not have to expel any of our members who happened to be under detention. and secondly, we would have to agree to abide by and to respect the constitution, which -- i think everybody has to do that in any country. and also that -- also the speaker of the house made a statement to the effect that 1990 elections had been run by the n.l.d. so this amounted to a withdrawal of the necessity to reject the results of the 1990 elections. we went in for the elections in april of last -- last april a few months ago.