we did this it would send a warning shot, if they want t.p.p. they have to inform their currency as well and get them to move on their own. it has real consequences for jobs here at home. a study by the peterson institute of international economics found that foreign currency manipulations already cost americans between one in and five million dollar jobs. ending the manipulation would reduce the trade deficit by as much as $500 million in three years. and create 2.3 to 2.5 million new jobs. so it matters a lot. i've long been an advocate in this fight against the type of activity that china, japan and others do when they manipulate their currency. i'm not alone. senators brown, and stabenow on

this committee. we could take legislative action today and win ....

you wouldn't agree to play a game of baseball when your team only got two strikes at bat. that is how we would be hamstringing ourselves. it hurts experts to other countries and advances their exports across the board. not just in an industry here or there. but every sector of the economy. any country taking this action that is so detrimental to our nation's economy should not be granted preferential access to our market. my question is, has currency manipulation been discussed in the current negotiations? what do you think the outlook is for getting something real in the t.p.p. bill? >> thank you for your long-standing leadership on this

issue. we agree currency manipulation is a critically important issue. from the start of the administration, from the president down, we been pressing china bilaterally and through the g20 and elsewhere to move to a market oriented exchange rate and allow currency misalignment to be adjusted. the treasury department has the lead on this issue. you have had an opportunity to see secretary lew up here and engage with him as well. we take china for example, from the president down we have engage with the chinese. in june 2010 they began to allow their currency to move again. it has moved 18% in real terms. not fast enough. not far enough. but we made a certain degree of progress there. for the g7, we made sure countries are focused on. >> has it been discussed?

>> not as of yet. >> i hope it will be. it matters a great deal to us. i regret that it hasn't been discussed yet given its level of important. >> thank you, senator schumer. >> thank you for this hearing. it is wonderful to see you again. i want to follow up on senator schumer's comments. i want to ask about currency manipulation as well. we talked extensively about that. i thought this had been something that was being discussed. to emphasize again, as you know, we have 60 senators in a bipartisan way that have written you a letter asking that we have an inclusion of strong and enforceable currency disciplines and all future trade agreements.

60 members who feel strong about that. when we talk about trying to pass t.p.p., i'm not sure how that passes giving the strong feelings that people have. 230 members in the house wrote a letter also. senator schumer talked in general terms about this. let me zero in on one country. this is surly not about one country. we know about china. we know what has happened in the past. singapore, malaysia, korea, different places. let me talk about japan. we are doing specific negotiations with japan. and as you know, japan has not directly intervened in the foreign exchange markets in more than two years, but the yen has depreciated significantly against the u.s. dollar. while the depreciation has shown

shown an impact on the number of u.s. imports, you shared information on the numbers, it does provide a massive advantage for japanese automakers. at today's exchange rate, there is an estimated benefit of $5,700 on every vehicle. it is a windfall in operating profits. it may end up in advertising. it may end up in research and development. it may end up in cutting prices. it may end up in cutting prices on vehicles in other markets where u.s. automakers are directly competing with the japanese in other markets around the world. the reality is, $5,700 is no small thing. i guess, from insult to injury, even though japan is not currently intervening, and i

would ask you if they are not currently intervening in exchange markets, why would they not support enforceable currency provisions in t.p.p.? aren't you concerned about the competitive trade advantage that these kinds of numbers show? >> yes, we are concerned about currency. and about making sure there is a level playing field. it has been important to the world that japan get back on a path to economic growth. it is the third largest economy in the world. it growing means there is a market for our products. it is been important that the g7 has expressed to japan the importance of them pursuing domestic growth and being focus on the domestic part of their economy. it is something the treasury

department engages directly with japan on. we monitor it carefully. we are concerned. this is one reason why from the top-down we have made a focus on domestic demand led growth, rebalancing the economy in bilateral discussions, and through institutions like the g7 and g20. >> this is incredibly important. let me also say that two thirds of the u.s. trade deficit is automotive goods. i appreciate the focus on nontrade barriers. this administration saw a highly successful restructuring of the automobile agency. we are now in a situation where you can't even get in the japanese markets.

but, i guess, in closing, i would just ask that you continue very focused negotiations, it does not take the place of currency. but it is important we open up those markets as well. >> thank you, senator. as you know, we negotiated upfront with japan about phasing out tariffs, being backloaded, being longer than the course agreement. we have a negotiation ongoing about the nontariff barriers to japan's auto market which has been historically closed. we are making progress with dispute settlements, along those lines. we are making progress. >> thank you. >> thank you. senator cantwell. >> i appreciate your focus on transparency.

this is a keyword of our generation, to have transparency. i come at this issue differently than my colleagues. our region of the country looks at this differently. one in three jobs are related to trade. i support the reauthorization of the xm bank. as we approach this next reauthorization i hope we don't find consternation of people who don't want manufacturers to export and help getting u.s. products overseas. i support the reauthorization of programs that help small business called step, which is helping u.s. manufacturers and

small businesses getting access to export product. i support the trade promotion authority. i think it is something like china has done -- since our authority has lapsed, they have done something like nine agreements. japan, eight, korea, six. trade promotion hands are tied. the thing i'm interested in is this news article about the rising middle class around the globe. to quote this article, it is going to go from $2 billion to almost $5 billion by 2030. the world market, that is a global middle-class spending rise that will rise to $51 trillion in 2030. most of this is outside the united states of america. if we do not have any agreement, how do we get our products into these markets? i wondered if you could comment

on that, and then comment on the point that when you have tpa, it becomes the standard. you could do lots of individual long-term agreements. my point is, while everyone else is doing deals, we are sitting here. we know where the growth opportunity is. and if you do tpa, it can set the standard for these agreements. even though we have people anxious about the situation, we want to set a standard. is that correct? >> absolutely. i agree. just throughout another figure, right now there is an estimated 500 million middle-class consumers in the asia-pacific region expected to grow to 2.7 billion by 2030. the question is, who is going to serve that market?

will they be buying made-in- america products or products built by somebody else? what are going to be the rules of the road for the region? t.p.p. is an opportunity for us to set standards for the asia-pacific and throughout the international trading system, to raise labor standards, environmental standards, to make sure the internet remains free. this is our opportunity to help be at the table, take leadership, and set the rules of this vitally important region. as you mentioned, t.p.p. is intended to be a platform. there are 12 countries around the table. there are several more waiting in the wings who said they would like to join when the 12 have reached an agreement and to sign on to the standards we are able to negotiate. it gives us a chance to open markets for our products in the vitally important region which will will see a huge growth in

the middle class and take our services. and to build a larger and larger platform of countries willing to sign on to high standards pre-that is a win-win for us. the alternative is that others are negotiating their own agreements at our expense, getting market access at our expense. those countries don't put the same value we do on labor and environment or protecting intellectual property. that is what we are pressing for. we have willing partners around the table. this is our opportunity to show leadership. >> market access is a keyword. people don't realize when you lose market share over a long time, and then you try to go in and compete, it is much harder. thank you. >> thank you. thank you for your aggressive leadership on behalf of t.p.p. and trade. i think i heard you say in your

comments that you met 1500 times with members of congress on trade? >> 1250 times. >> all right. of the 1250, have you met with the majority leader? >> i have met with the majority leader. >> his response to movement on trade or fast-track was? >> i think his position is well known. he has also worked on a bipartisan basis to move trade agreement. >> did he give you any indication there was wiggle room? >> we would like to see tpa move forward. we look forward to working with the chairman. >> the chairman is going to do a

great job. so will the rest of us. i'm worried about the majority leader. i hope you can fill this glass and make it half full. -- make his glass full. i'm not going to measure the vice president's meeting with the house in assuring members over there that people worried about union concerns, don't worry, we are not going have any trade bill. april 4, 44 of us wrote to you to express our concerns regarding the european union's protectionist geographical indications, a brand-new concept, in trade negotiations, and if the eu where to have its way, common products such as parmesan, baloney, and black forest ham would no longer be

able to label themselves that way. that is ridiculous. i am not interested the u.a. dictating. you responded to our letter. i appreciate that. what assurance can you provide members of this committee, and more especially, the producers of meat and dairy and cheese that a final agreement will not prohibit these common food names? >> we share your concerns completely. we have made clear to the european union that we oppose their g.i. system and that is inappropriate for our trade agreement. i will give you an example.

we have several parmesan products registered here in the united states. the e.u. exports billions of dollars of cheese and meats under these names. we are not able to export our parmesan cheese to the e.u. they are able to live quite well under our system. we are not able to live quite as well under their system. >> what was their approach to a logical presentation you have just now defined? >> i have not yet convinced them. we will continue to work and make clear that the common name and trademark approach allows room for us to have access to each other's markets. >> you might have them read "green eggs and ham." it might do something. i have one more question. many who represent agriculture

are waiting for a final ruling on the wto with mandatory culture of origin labeling. when can we expect a final ruling? >> i will have to get back to you. it is in litigation. canada and mexico have not dropped their case. >> if united states were to lose the case, large sectors of our economy would be subject to retaliation from canada and mexico. are we taking steps to prevent retaliation if it is found that cool does violate wto obligations? >> we believe the rule that has been developed is wto compliant. we have argued that at the wto. we await the decision of the wto. as we do in other occasions, we

will engage with our partners, but we believe it is compliant. >> thank you. >> senator isaacson is next. >> let me start with a compliment. i was in ethiopia with you and the african union. i had 48 hours of time to watch you work with the countries. i was impressed and think our country is fortunate to have someone like you as our representative. my comment is that without tpa getting done, i have little hope we can get t.p.p. done. what senator roberts said, this is something we have to work on. to try and raise the visibility. let's have that debate. sherrod brown and i will have significant differences on tpa, but we ought to have the differences in a debate that results in a result rather than talking about across-the-board comments. my two points are this. you mention in your remarks tisa. there are service related jobs in our state, insurance, financial services, package

delivery that depend on good trade in services agreements with the world. what progress are we making on a tisa agreement? what goals would affect t.p.p. in terms of trade services? >> thank you. thank you very much for your involvement and leadership on the africa issues. we look forward to working with you on the review under way. on services, we're making good progress in the talks bravely be of countries around the table representing 70% of the market. we have defined a text that is being worked out now. virtually all the parties around

the table have tabled offers. we are working through those offers. we are making good progress. there is a good work program ahead over the course of the next several months. services are vital part of our economy. we have exported over $700 billion in services last year. a are a key part of the trade negotiations, both t.p.p. and tfib. i say one more thing. you mentioned express delivery. we reached a negotiation. the first multilateral negotiation in the 18 year history. it is an important agreement for reducing the cost of shipping goods around the world. it helps small- and medium-sized businesses into the global economy. it is good for those companies involved in shipping and logistics. many of our companies have an active role to play. >> you are working on that agreement in terms of package delivery indicates how important like tisa would be for all other types of financial services and

products. wto has not been as successful as i would like to have seen over the last 20 years in furthering trade agreements. this is going to be important. lastly, i want to bring something to your attention. are you familiar with the greater brazil plan? >> i'm not. >> brazil is putting punitive tariffs on u.s. products and limitations on procurement of u.s. goods and services by governments in brazil and subdivisions of the brazilian government to the extent they are shutting the market out. there are hundreds of u.s. companies that have invested millions of dollars though the facilities in brazil. they employ thousands of brazilians. they build products for the world but include them in brazil. they are being totally shut out from competition in the brazilian marketplace. it is beginning to hurt. it is a bad precedent for the western hemisphere. if we don't stand up for those countries that have made those investments, then other countries will see it as opportunity to do the same

thing. i would like to bring it to your attention, which i have, and to encourage you to get involved in the diplomacy world to see if we can ratchet up brazil's attention that we understand what they are doing, and there are consequences for treating the u.s. that way. >> i'm happy to follow up on that. we are looking for ways to engage with brazil and brazilians to broaden our economic relationship. we have had a dialogue with them about some of their localization policies, which we think create adverse barriers to trade. we are happy to engage on the issue. >> the localization policies are a part of the greater brazil plan. i'm glad you are on that. thank you. >> senator cardin. >> it is a pleasure to have you here. you're not going to be surprised on my question on how we are advancing on good governance in the t.p.p. negotiations.

the t.p.p. countries are a diverse group of countries. several have real challenges in good governance and basic human rights and in dealing with similar issues of corruption. i'm going to ask you to give an estimation as how many are dealing. when you're dealing with trade you have a country's attention. they are more likely to do things to improve the governance issues and anticorruption matters when they know that it will have an impact on the willingness of a country to open up its markets. we have very strong anticorruption laws here. it is difficult for our companies to participate where bribery is a standard practice. anticipating that you might give me a glowing progress reports, you could respond as to whether you are willing for us to put into any bill that we might be considering negotiating objectives that are strong on negotiating the rule of law into

anticorruption, and similar matters in a system with universal declaration of human rights by the u.n. >> thank you for your leadership on these issues. we have worked to address these issues in a number of ways. generally on good governance. opening up processes that could be susceptible to corruption. in addition we have specific anticorruption elements that we are still negotiating with our partners. on issues of rights in particular, our focus has been on labor rights and focusing on the ilo core principles of forced labor, conditions of work, making sure countries commit to those and have plans

in place to achieve those. this is an important process to bring countries to the table on issues they have not engaged on. we are engaging with them on labor issues, a challenging set of issues for that country. as you know. we have made clear they need to make progress in other human rights issues. they released dissidents. we are encouraging them to take further action to improve their human rights. >> basic human rights go on the labor issues. labor issues are important to me. but fighting corruption, fighting for the enforcement of rule of law, making fundamental changes in a country that we are going to be competing with needs to be -- and since he did not directly respond, i assume you don't object to a strong objectives in the negotiating to

deal with these issues. >> we will look for it in the context of the legislative process to working with you on a bipartisan bill. >> let me talk about labor for one moment. the environment. it was a time when we couldn't talk about the environment in a trade bill. in nafta we would use sidebar agreements. that didn't work very well. we needed to get to the core agreement if we were going to have something that wasn't forcible. in colombia we decided to use the labor rights action plan. i offered an amendment that would be part of the agreement to take action if they did not follow up on it that was not incorporated into the colombia agreement. now we have the congressional monitoring group of labor rights questioning whether the columbia colombia is implementing the labor action plan as it was anticipated at the time. my point is this. if we are going to make progress

on the environment, on labor, on basic human rights, good governance, etc., it needs to be part of the core agreement to be taken seriously. once it is executed, unless it is part of the enforcement that is executed , it is difficult to get the action we expect. >> we completely agree. i think your description of the history is an important one. now they are central to what we are negotiating. that is an important development because we are able to take these labor and environment standards that for five countries have committed to and now have 40% of gdp sign on. >> let me thank you for your help on the heavy truck issue in columbia. i appreciate the cooperation. >> thank you for raising human rights and the rule of law. it is critical to trade enforcement.

i look forward to working with you. senator thune? >> thank you. let me echo what my colleagues have said. i am concerned about reports from our agricultural producers and companies about china's unwillingness to improve biotech products. it is a critical market for american agriculture. $16 billion last year. we are told according to the feed and grain association exports are down 85% from a year ago. corn shipments are being rejected. given the situation in china, i'm wondering, they would like to see this issue elevated as much as possible. would you support utilizing existing venues such as the u.s. china joint commission on

commerce and trade to raise these issues in a forceful way with the chinese government? and perhaps even you could talk about other steps to ensure that biotech concerns are consistent and a priority? >> yes, absolutely. in december we had a meeting of the joint commission on commerce and trade. this was one of the top issues on the agenda. talking about biotech approval process to become regularized and more fluid. it is something that we are continuing to raise at the highest levels. in china we raised with the vice premier. >> some of these venues, are those venues that you think would be appropriate to do that?

>> absolutely. the first one you mention is what we did in december. we'll have more opportunity to do that later this year. secretary vilsack has been in touch following that visit to about follow-up on that and other agricultural related issues. >> i hope you can keep it a top priority. the keystone pipeline is something i believe is clearly in america's national security interest. i was going to ask questions that you probably answered yes and no. is the ustr providing comments to state as part of the interagency approval of the pipeline? >> i don't believe we are

involved in this. >> there is not anything you are furnishing in terms of comments to members of the committee that is looking at this? >> i will come back to you to confirm. i don't believe we are involved in this. >> if you are, i would be interested in knowing. concerns are being raised on whether or not this would be a challenge under nafta, that if the canadians decided that the ultimate rejection of the pipeline is the outcome they might be able to utilize nafta to raise trade considerations. i would be interested into what the implications of that might be. i have talked to you about this in the past. i am one to raise the issue of the e.u.'s decision last year to impose 10% duty on u.s. ethanol exports. you previously indicated ustr is considering a challenge to the e.u. tariffs at the world trade organization. i wondered if you could comment on where ustr is in the decision-making progress and

what ethanol producers might expect a decision? >> we are continuing to look into that issue and develop our options. we will consult as we go through the process. >> ok. i wanted to mention one other thing. that is -- and you have heard this many times -- the importance of market access for agricultural in the japanese market. for those of us making sure that the t.p.p. result in significant new market access opportunities for u.s. agriculture is going to be critical. i'm wondering if you could elaborate on the president's discussions on the topic of the japanese prime minister last week? how would you characterize those negotiations with japan following the president's trip to asia? >> thank you.

access to japan's market is critical of our overall initiative. i've made clear that the products we sell into japan, and we need to address their historic barriers. it is a market that has had high barriers in the past. the president prime minister engaged on this and other t.p.p.-related issues. we made some significant progress in our discussions. we reached a milestone in terms of getting to sort out the parameters of how we would deal with my could access and some sensitive areas. we have further work to do. we think there was enough progress there to get further momentum to negotiations overall. >> thank you. my time is expired. >> thank you, ambassador, for your service. i want to commend you for your our reach and your responsiveness. i can't always get to say that about administration officials. in your case i can. i appreciate it.

you are aware of my concern with the india pharmaceutical patent violations and my concern about canada's patent regime. you have issued fairly strong statements about the need for improvement in both countries, which i support and applaud. nevertheless, as we are looking at t.p.p. and other elements, i'm convinced that our economy is based on innovation. i'm looking for the it administration to demonstrate that it has a long horizon strategy on advancing international i.p. policies, one that i and others can get behind and support. can you give me a sense of what is the administration's strategy in regards to emerging economies?

>> first of all, as you know, we issued a special report. we focused on a number of problem areas. as i mentioned, we have been concerned about the deterioration of the innovation environment in india. we are looking forward for them to get through their election and engage with new government on that and to have a dialogue about how they can address their public policy while still respecting the intellectual property rights of innovative companies, including the united states. certainly on canada, we have made clear our concern about their utility approach to patents. we will continue to engage in discussions with them about that and other i.p.-related issues. in t.p.p. we have a robust intellectual rights agenda that

enhances innovation while the same time takes a touchstone on the may 10, 2007, bipartisan agreement which noted that there should be differentiation depending on levels of development. we are working with individual countries to ensure that they are strengthening their intellectual property rights regimes and we are able to promote access to medicines. we are very much focused on improving the level of property rights protection across the region. >> while you are at the lead of this because of trade that you obviously possess in your portfolio, are there other elements of our government promoting our interests in the intellectual property rights?

>> we work with the commerce department, the white house, health and human services, department of justice. we work with several agencies on interagency basis in the process of negotiation. >> bangladesh submitted their latest gsp action plan progress report to the ustr. i understand that it was reportedly discussed during the trade and investment cooperation meeting a few days ago. given recent reports of union suppression in the garment sector, how realistic is the bangladesh government self-assessment of their progress on the action plans requirement to ensure members antiunion termination? what is your assessment? >> as you know, we suspended gsp based on worker conditions in bangladesh. we developed an action plan with them for the steps necessary for them to take. our view is that they have taken

some steps. there is a lot of work that needs to be done. we're going to continue to engage with them on the work that needs to be done and encourage them to take good actions. >> finally, our trade policy agenda report of 2014 talked about u.s. goods exports to latin in the caribbean increasing 175%, the fastest rate of growth to any region in the world, almost a 40% increase over the previous three years. pretty dramatic. are there other opportunities in latin america that we we need to pursue based upon that growth? >> senator, there are opportunities we could pursue. in t.p.p., we have countries from latin america, mexico, peru, chile.

we are following as they the develop the pacific alliance as they open their market to each other. there are other countries who would like to join t.p.p. in the future. we are looking for ways to engage with brazil to broaden our economic relationship there and to build upon the networks of free-trade agreements we already have with latin america and the caribbean and to deepen our relationship with them accordingly. >> thank you. >> thank you for coming. it was nice for you to come here and have his back. thank you. i have a number of questions that have been asked. as we negotiate trade

agreements, other actors negotiate to reduce barriers and increase the trade and other nations, japan and australia, as you know, completed a bilateral free-trade agreement earlier this year, many of our negotiations are seeking deals with china and with europe. many of these free-trade agreements may not be as ambitious as the t.p.p. is excited to be, what is the effect of so much negotiations even with our own partners that don't involve our country? what is the effect? >> i don't think these are necessarily mutually exclusive efforts. as countryies pursue bilateral arrangements, it allows them to

liberalize trade, it can be a positive step forward. it does underscore, and this goes to the question earlier, the importance is of us being at the table and us being engaged. because if we are not engaged at the same time, in helping with our partners to establish the rules of the road going forward, we are going to be left out of the game and we are going to be left on the sidelines. while the rules of the system don't reflect our interests or our values. if we want a trading system that has higher labor standards, higher environment will standards, protection to property rights, allows for a free internet, and we want market access for the fastest growing in the world, we need to be at the table, we need to be engaged and showing leadership. as you point out, other countries aren't waiting for us. they are moving ahead without

us. that is why t.p.p. is important. it is our way of engaging global economy away that is consistent with our interests and our values. >> good, thank you. i want to talk -- i mentioned this. i've never discussed poultry with you. but i do talk about other subjects. people say what you talk some much about poultry with the trade rep? we live in a state where there are more chickens per capita than any other state in the nation. some 300 chickens per capita. agriculture is a big industry in delaware. we raise corn. we process the chicken. we sell them all over the country and all over the world. we used to sell one out of every 100 chickens we raised in the u.s. outside of the u.s.

today it is 20. we do that in spite of the fact that countries continue to impose restrictions on our poultry products. australia, new zealand, and japan are using quotas. expanding enforcement means more income for our farmers in the u.s. i'm told if we could start selling poultry in the e.u., that is a $600 million market. as your team negotiates the transatlantic trade and the transpacific partnership, i hope that opening up agricultural

exports, specifically poultry exports is a top priority for some of us on this committee. just take a minute to discuss what you and your team are doing to increase market access for agricultural products? can we find an agreement that opens up the poultry market? how are you preventing nations from erecting new trade barriers to our chickens? thank you. i did mean to squawk so much. [laughter] >> let me get senator brown in. >> agriculture is a high priority in our market access discussions. it is an area of high growth. both in terms of reducing tariffs and other barriers, but addressing sps barriers that have kept our poultry and other products out of certain markets. >> thank you.

>> i'm so appreciative. thank you for your working together. i want to start with a yes or no question. i have a number of things i want to talk about. you responded to senator stabenow's question about currency. the majority of the house members have signed their names to a letter and insisted that currency be part of t.p.p. my question, i want you to answer this yes or no, are you prepared to risk defeat by not

including meaning currency provision? >> all i can say is we are continuing to work with the treasury department on this issue and to see how best to address the concerns. >> do you plan to include strong currency provisions? i know you say you are working on currency. are you planning to put in this provision as strong as the letters you have received about currency? >> we are continuing to consult with you and other members and stakeholders about how to address the issue. >> ok. that is the best am going to get. i want to talk about investor state dispute settlement. multinational companies conduct risk assessment before they invest. multinational corporations can purchase private insurance policies to mitigate risk associated with overseas

investment, protect themselves, aig for example offers a multinational insurance program with coverage options to address multinational exposures. u.s. overseas private investment corporation offers political risk insurance to encourage u.s. investment abroad. services are available in 150 countries. u.s. companies going into these countries are planning for every kind of eventual problem. through insurance, through risk assessment, through studies. they are doing this investment with their eyes wide open. in addition, we know that investor state dispute settlement has given big tobacco the ability to threaten small developing nations, even the threat of a lawsuit in a small

developing not very wealthy country has encouraged some of these countries not to pass public health laws. we know the presence of isds has empowered big tobacco to go into the developing world and have their way. we have, with all the other protections that companies have built in the private sector, we have market-based options for these companies to protect themselves. we have u.s. opic to protect these companies. why do we need isds while we are giving that power to big tobacco to undercut public health laws? >> we provide to domestic and foreign investors a certain degree of protection under our court system. nondiscrimination. not every country does.

our investors have been subject to discriminatory practices or expropriation. there are 3300 agreements around the world, the vast majority of which have some investor state dispute settlement. a country all over the world have been signing agreements that have some degree of investor state dispute settlement. the standards vary significantly. what we're trying to do through t.p.p. is raise the standards of the investor settlements regime. provisions that would allow the frivolous cases to be dismissed or attorney's fees to be awarded. provisions that would allow nonparties to participate in isds procedures by filing

briefs for greater transparency around that. provisions to ensure the governments can regulate the interest of public interest and safety and the environment and not be subject to those challenges. through t.p.p., and this is true of labor, environment, we are trying to take what is the status quo and raise standards. improved the standards. try to create new standards that can help strengthen the overall system internationally. >> thank you. opic does provide insurance for expropriation. that flag is often raised. >> i intend to work with the senator from ohio on these matters. we're getting to the end. i want to get at the enforcement issue and then recap where we are in transparency and trade promotion. a lot of americans, when they

hear debate about future trade agreements, the first thing they say is you people in washington aren't enforcing the ones we got. why are we talking about new ones before we enforce the ones that we have? too often, it seems that when we have a trade agreement, we honor it. our trading partners don't. there are a variety of excuses. they may not have resources to do it. at the end of the day we don't have the enforcement effort that is so important. our experiences with china and korea, and russia and others make clear that we lose out if we let agreements go into force before they are able to go into. outline what steps your office

is willing to take to trade enforcement? >> we're happy to talk about further steps we can take. we brought more wto cases against china at twice the rate before. we brought the first-ever case on a labor issue. we are continuing to pursue that. we are creating an interagency trade enforcement center with great support from the commerce department and from other departments. that has allowed us to put together more complex cases than we have ever been able to put together before. people from all over the government, with country expertise, domain knowledge, able to put together these collocated cases and bring them to have a systemic impact. we are focused and agree with you completely that part of the deal of negotiating new agreements is to make sure we are monitoring and implementing our existing agreements. we are focused on doing that. >> there is no question in my

mind that you are stepping up the effort to enforce trade laws. i was pleased with the work your people did on the critical minerals issue, which is almost a model for how to tackle major trade enforcement issue. i want you to know that even though i think you are stepping it up, i think there is more to do. the reason why is that for those of us who have been supportive of trade, and i have voted for every market-opening agreement since i have been in public service, we have to have a better response to people who say why are you talking about new trade agreements until you have tougher enforcement of the ones that are on the books. let's recap on a couple of issues where we are. on transparency, you and i went back and forth on some of the semantics of trade law. the american people are going to insist on being able to review the t.p.p. agreement before the president signs it.

so am i. i think the law is very much in sync with that. on the tpa issue, we agree on this, and i am recapping now. we need a tpa upgrade in order to reflect the needs of a modern trade agreement. for the people that i have the honor to represent at home, one out of six jobs depends on international trade. they often pay better than non-trade jobs. they reflect a higher level of productivity. as we walk through the issues, the issues of the future, i just want it understood we are going to be working closely in partnership with you. i think you know there are strong views on this committee. i happen to think we can forge a bipartisan agreement to do trade

policy right here in the united states senate. if you would like to have the last word, we are happy to give it to you. you been a patient person today. something of an orthodox day even by senate scheduling. we appreciate your patience. >> thank you. we very much look forward to working with you as the legislative process on tpa proceeds. we want to partner with you on that. on the transparency, our goal is to release the terms of the agreement as soon as we can. once we have the agreement we will want to make sure the terms are public as early as possible. of course, that means we have to reach an agreement. that is where our focus is right now, in trying to reach the best possible agreement for the people. >> i understand that. the reason that i have focused

on it -- this comes up all the time. it reflects the generational changes that we have seen in trade policy. i remember supporting those agreements in the 1990's. of course, nobody was online and expecting elected officials to give ongoing information. when i talk about transparency, and i want to emphasize, nobody's talking about making available proprietary information. if you're talking about coca-cola, you wouldn't make the secret sauce in coke available. that is proprietary information. but terms of a trade agreement that affect various policy issues is what i think the american people are going to insist on. based on our conversations, we are going to be pursuing that together and being able to pursue it on a bipartisan basis.

the hearing record will remain open until may 5. i thank you and look forward to working with you in the days ahead. the hearing is adjourned. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014]

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collection of interviews with the top storytellers. thislf of the reason i did book is martha, because when she enthralled bys struck me as ah completely surprising thing given what we all know and hindsight. but there she was. >> one of 41 unique voices from 25 years of our book notes. now available at your favorite bookseller. ruled thateme court city councils and other beginative bodies can their meetings with prayer, even if it favors one religion over

another. ins oral argument took place november 2013. >> we'll hear argument first this morning in case 12-696, the town of greece v. galloway. mr. hungar. >> thank you, mr. chief justice, and may it please the court, the court of appeals correctly held that the legislative prayers at issue in this case were not offensive in the way identified as problematic in marsh, but the court then committed legal error by engrafting the endorsement test onto marsh as a new barrier to the practice of legislative prayer. >> mr. hungar, i'm wondering what you would think of the following. suppose that as we began this session of the court, the chief justice had called a minister up to the front of the courtroom, facing the lawyers, maybe the

parties, maybe the spectators. and the minister had asked everyone to stand to bow their heads in prayer and the minister said the following he said, we acknowledge the saving sacrifice of jesus christ on the cross. we draw strength from his resurrection. blessed are you who has raised up the lord jesus. you who will raise us in our turn and put us by his side. the members of the court who had stood responded amen, made the sign of the cross, and the chief justice then called your case. would that be permissible? >> i don't think so, your honor. and, obviously, this case doesn't present that question because what we have here is a case of legislative prayer in the marsh doctrine, which recognizes that the history of this country from its very foundations and founding, recognize the propriety of legislative prayer of the type that was conducted here. >> well, the question -- the extension just between the legislature and any other official proceeding, is that correct? >> well, clearly, marsh involves legislative prayer, the tradition that we rely on 20 involves legislative prayer, and

this case involves legislative prayer. whether -- what rule might apply in other contexts would depend on the context. >> suppose i ask the exact same question, same kinds of statements, same sort of context, except it's not in a courtroom. instead, it's in a congressional hearing room. maybe it's a confirmation hearing, maybe it's an investigatory hearing of some kind, and that a person is sitting at a table in front of the members of a committee, ready to testify, ready to give his testimony in support of his nomination. the minister says the exact same thing. >> i think that's a -- that's a closer question because of the congressional history, but, of course, at least as far as i'm aware, they have this history as it applies to the legislative body as a whole, not to committees, but it would be a different question. one, obviously, important distinguishing factor there, in addition to the fact that it's not the legislative body as a whole >> we should -- we should >> is that people are compelled to attend and testify under oath, which is a different

situation from the one here. >> well, why >> we should assume -- to, to make it parallel to what occurred here that the next day before the same committee a muslim would lead the invocation and the day after that an orthodox jew. i mean >> yes, your honor. >> it makes a difference whether it's just one -- one denomination that is being used as -- as chaplain or open to various denominations. >> that's correct, your honor. that's why we believe this case is actually an easier case than marsh because in marsh, there was a paid chaplain from the same denomination for 16 years. >> but the question, mr. hungar >> suppose you are correct, mr. hungar, for 11 years the prayers sounded almost exclusively like the ones that i read, and one year on four occasions, there was some attempts to vary it up, to have a baha'i minister or a

-- a wiccan, but for the most part, not out of any malice or anything like that, but because this is what the people in this community knew and were familiar with and what most of the ministers were, most of the prayers sounded like this. >> well, no. i mean, it's clearly not correct that most of the prayers sounded like the one you just read. >> but your position is that wouldn't matter, as i understand, because you have you have -- you have two limitations, proselytizing and disparaging. and -- but i think justice kagan's question just set place -- place limitations. one could read your brief and say, well, it doesn't matter, it could be an executive body, it could be a court, it could be a town meeting, a school board, a zoning board, a utilities board.

that's -- is this case about prayer at the beginning of a legislative session or is it about prayer in all three branches of government? >> this case is about prayer at the beginning of a legislative session. that's exactly what the meetings at issue here are -- are about. that's what the board of the town of greece is. in fact, respondents try to argue that this is somehow what they call coercive because there are public hearings that are held. but the public hearings are held at least 30 minutes after the prayer and anyone coming for the purpose of the public hearing can easily show up after the prayer if they don't want to be there. >> why was it that you so promptly answered justice kagan's question to the effect that this would be a violation? why would there be a violation in the instance she put? >> i'm sorry. which instance, your honor? >> the first question justice kagan asked you, the

hypothetical about the prayer in this court. you seemed readily to agree that that would be a first amendment violation. why? >> well, perhaps i conceded too much, but i think the important distinction is between the -- both the judicial context and the legislative context on the one hand the -- the absence of a of a comparable history that shows that it did not >> well, is it -- is it simply history that makes -- there's no rational explanation? it's just a historical aberration? >> no, it's not -- it's not a question of historical aberration. it's a question of-14 >> well, what's -- what's the justification for the distinction? >> it's a question of what the establishment clause has understood, both at the time and throughout history, to forbid and not to forbid. the judiciary is different than a legislature. legislatures can be partisan, the judiciary should not be. people are compelled to testify under oath. >> but you had no problem, mr. hungar, with the marshal's announcement at the -- at the beginning of this session. god save the united states and this honorable court. there are many people who don't believe in god.

>> that's correct, your honor. and clearly >> so that's ok? >> yes. >> why is that ok? >> whether -- perhaps i misunderstood the hypothetical. if the hypothetical is as you described with a different minister, with -- with an open process, a nondiscriminatory process like the one we have here, i think it would be a much closer case than this one, but it might be constitutional. but whether that case is constitutional or not, this case is far from the constitutional line, further from the constitutional line than the state legislature's practice in marsh. because there, nebraska had one chaplain from one denomination for 16 years and yet, that was constitutionally permissible, and his prayers were not distinguishable in content from the prayers at issue here during the time that was relevant to the case. >> would it make a difference in your analysis if instead of, as i understand the hypothetical, there was a point of saying, all rise or something of that sort? would it make a difference if the hypothetical justice kagan posed were the same except people weren't told to rise or invited to rise or, in fact, were told to stay seated, something like that, so there would be no indication of who was participating in the prayer?

is that a -- is that a ground of distinction that you're willing to accept or not? >> i don't think that is constitutionally significant, unless -- i mean, it might be different if people are compelled to stand, but whether they are or not -- i mean, in the marsh case itself, senator chambers testified that the practice in the nebraska legislature was for people to stand he felt coerced to stand. because when he was there -- he tried to avoid it -- but when he was there, he felt he needed to stand because everybody else was doing it and he needed to have dealings with these people as a fellow legislator. the court, nonetheless, held that he's an adult and he -- he is expected to be able to disagree with things that he disagrees with and that is not a constitutional violation. >> i wonder how far you can carry the -- your historical argument and whether some of these things are properly regarded as more historical

artifacts, right? i mean, our motto is "in god we trust," right? that's the motto. it's been that for a long time, right? >> yes, sir. >> but wouldn't we look at it differently if there were -- suddenly if there were a proposal today for the first time, to say let's adopt a motto "in god we trust"? would we view that the same way simply because it's -- in other words, the history doesn't make it clear that a particular practice is ok going on in the future. it means, well, this is what they've done -- they have done, so we're not going to go back and revisit it. just like we're not going to go back and take the cross out of every city seal that's been there since, you know, 1800. but it doesn't mean that it would be ok to adopt a seal today that would have a cross in it, does it? >> not necessarily. but i think history is clearly important to the establishment

clause analysis under this court's precedence in two significant respects, both of which apply here, one of which might not apply in your -- with respect to your hypothetical. the first being the history shows us that the practice of legislative prayer, just like the motto, has not, in fact, led to an establishment and, therefore, we can be confident it is not in danger of doing so. and secondly, the history of legislative prayer, unlike your hypothetical, goes back to the very framing of the first amendment. the fact that -- then this is what the court said in marsh -- the fact that at the very time the first congress was writing and sending the -- the first amendment out to the states to be ratified, they adopted the practice of having a congressional chaplain. and the congressional chaplain -- the record -- the historical record is clear -- gave prayers that were almost exclusively sectarian, as respondents define that word. >> i don't really understand your -- your answer. how can it be that if the practice existed in the past, it was constitutional? was it constitutional in the past? >> yes, your honor. >> if it was constitutional in

the past, why -- why would it be unconstitutional if the same thing is done today, even without any past parallel practice. that's a nice alliteration. is past parallel practice essential? >> i think this court's precedents have also indicated, at least in some cases, that if -- if a practice is constitutional, as we know it to be the case because of the fact that it has been understood to be constitutional and consistent with our religion clauses from the founding, other practices that have no greater impact, no greater tendency to establish religion, are equally constitutional. and we believe that is an appropriate doctrine. >> is there -- is there any constitutional historical practice with respect to this hybrid body? it's not simply a legislature. it has a number of administrative functions. sometimes it convenes as a town meeting. sometimes it entertains zoning applications. is there a history for that kind of hybrid body, as there is for

the kind of legislature we had in nebraska or our congress? >> yes, your honor, in two respects. first of all, the becket fund amicus brief identifies various examples of -- of municipal government prayer over the course of our founding, which is -- over the course of our history, which is not surprising given this -- the legislative practice at the state and federal level as well. and secondly, congress for much of its -- of much of our history entertained private bills, which would be the equivalent in terms of legislative or non-purely legislative functions you're talking about, with what the town of greece does here. >> well, if we had a -- if we had a series of cases, what -- what is a -- a utility rate-making board would come to the supreme court. we say, well, it's enough like a legislative that it's like marsh. but i don't think the public would understand that. >> well, your honor, whatever line might be drawn between non-legislative bodies and legislative bodies, what we are

talking about here is a legislative meeting of a legislative body, and it would be -- it would be incongruous, as this court said in marsh, if congress could have legislative prayers and the states couldn't. it would be equally incongruous >> well, the essence of the argument is we've always done it this way, which has some -- some force to it. but it seems to me that your argument begins and ends there. >> no, your honor. i mean, as we -- as we said in our brief, the principles that undergird the establishment clause are equally consistent with the position we're advancing here. as the -- as your opinion in the county of allegheny case indicates, the fundamental -- the core of establishment clause concern is coercion or conduct that is so extreme that it leads to the establishment of a religion because it is putting the government squarely behind one faith to the exclusion of others, and that's clearly not what's going on here. >> may i ask you about the individual plaintiffs here. and what do we know about them? they obviously have appeared at proceedings and they object to the proceedings. does the record show that they had matters before the town

council during the hearings part of the proceeding? >> no, your honor. there is there's no evidence of that. there's no -- the respondents have no standing to assert the interests of children or police officers or award recipients or -- or permit applicants. they don't even claim to be in any of those categories. >> well, what about the public forum part? they did speak occasionally then, isn't that right? >> yes, your honor. >> do we know what they spoke about? >> well, on at least one occasion one of them spoke about the prayer -- or on one or two occasions, and then on multiple occasions spoke about a cable access channel issue. >> and what did they -- what was the issue there? >> something about -- she was expressing vehement disagreement with the town's decision to award a cable access channel to one entity as opposed to another. >> do you have any objection to -- to doing one thing that was suggested in the circuit court opinion, which is to publicize rather thoroughly in the area

that those who were not christians, and perhaps not even religious, are also welcome to appear and to have either a prayer or the equivalent if they're not religious? do you have an objection to that? >> certainly not. there'd be >> well, then -- then there is there a disagreement on that point, because certainly, that was one of the concerns. it wasn't on anyone's website. there are -- greece is a small town very near rochester, and there are, at least in rochester, lots of people of different religions, including quite a few of no religion. so could you work that out, do you think, if that were the only objecting point? >> i don't know what the town's position would be on that, but it -- certainly, there would be no constitutional problem with doing that. i mean, here as a practical matter, since >> no, no. i'm not saying it's a constitutional problem i got from the opinion of doing the

opposite, of -- of not making an effort to make people who are not christian feel, although they live near in or near the town or are affected thereby, participants over time. >> but, your honor, it's a perfectly rational approach when -- when any legislative body is going to have a practice of legislative prayer, to go to the houses of worship in the community. >> i'm not saying it's not. i want to know if you have any objection. >> well, i certainly don't think it is constitutionally required, although i would note that as a practical matter that has happened here in 2007. >> would you have if all that were left in the case were the question of you're making a good faith effort to try to include others, would you object to doing it? >> i don't know what the town's position is on that. as i said, as a practical matter, that has already happened here. the town deputy supervisor was quoted in the newspaper saying anyone can come in prayer, anyone can >> yes. that's different from putting it on a website. that's different from making an

organized effort to see that people get the word. >> as i say >> mr. hungar, what -- what is the equivalent of prayer for somebody who is not religious? >> i would >> what would somebody who is not religious >> in the rubin >> what is the equivalent of prayer? >> it would be some invocation of guidance and wisdom from >> from what? >> i don't know. in the rubin case -- >> in the rubin case, a nonreligious person delivered invocations on multiple occasions. >> i suppose a moment >> perhaps he's asking me that question and i can answer it later. >> i'd like to reserve the remainder of my time. >> yes. thank you, counsel. mr. gershengorn. >> mr. chief justice, and may it please the court, the second circuit's decision here requires courts to determine when a legislature has permitted too many sectarian references in its prayers or has invited too many christian prayer-givers.

that approach is flawed for two reasons. first, it cannot be squared with our nation's long history of opening legislative sessions not only with a prayer, but a prayer given in the prayer-giver's own religion idiom. and second, it invites exactly the sort of parsing of prayer that marsh sought to avoid and that federal courts are ill-equipped to handle. >> and what was the purpose of marsh saying that proselytizing or damning another religion would be a constitutional violation? >> so we agree with >> so unless you parse the prayers, you can't determine whether there's proselytizing or damnation. that is judge wilkinson's point when he was faced with this question, which is, you have to, to do some parsing. >> so, your honor, you have to look at -- at the prayer to determine proselytizing. but it's a very different series

of judgments, we submit, than determining whether something is sectarian. the kinds of debates we're having, i think, are reflected in the differences >> now, seriously, counselor. you can't argue that the quote that justice kagan read is not sectarian. it invokes jesus christ as the savior of the world. there are many religions who don't believe that. let's get past that. >> so, your honor -- >> this is sectarian. >> we agree that these are sectarian. but the kinds of debates that you're seeing among the parties, whether, for example, 15 percent, 50 percent, 60 percent of the congressional prayers are sectarian. those are debates about whether "holy spirit" is sectarian. a court -- a district court has held that "allah" is not sectarian. >> so let's talk about the context instead of prayer. if the chief justice got up at the beginning of this session and said "all rise for a prayer," would you sit down? >> your honor, whether i would

sit or not, we don't think that that would be constitutional. >> do you think -- how many people in this room do you think would sit, talking truthfully? >> i don't think -- i don't think many would sit, your honor. >> all right. >> but we don't think that that -- >> so why do you think that someone who is sitting in a small room where hearings of this nature are being held, when the guy who's about, the chairman of this legislative body, is about to rule on an application you're bringing to him or her, why do you think any of those people wouldn't feel coerced to stand? >> so, your honor, i'd like to address the coercion point this way with respect to town councils, it's our view that as a general matter that the municipal legislatures can invoke the same tradition of solemnizing and invoking divine guidance as federal and state legislatures. we recognize there are differences, however, and your honor has pointed to one and that's the -- what was called the public forum here. and we think it's very -- because those are the ones where

the -- is adjudicated license applications, liquor applications. and we do think it is important on this record that those are separated in time. it's at the court of appeals appendix 929 and 1120. so that the meeting starts at 6:00, which is in the prayer -- when the prayer is, but the board meetings to adjudicate those types of issues are at 6:30 or 6:32. and so the type of concern that your honor has raised is not presented on this record and we think that's significant. we think some of the other factors -- >> mr. gershengorn, do you think that if the legislature -- excuse me -- if the town board here just, you know, started it off with a prayer and then kept on going, do you think that that would be a significantly different case and you would switch sides? >> i don't know that we would switch sides, your honor. but i do think it mitigates the coercion that the -- that the respondents have identified. and we think it -- that that is one of the significant differences between the town, the -- the town legislature and a -- and the legislature >> you agree that coercion is

the test, however? >> we don't agree that coercion is the test, your honor. >> if it is the test >> we think it's the history -- we think the history is the -- the principal guidance of marsh is -- we think there are three pillars in marsh first of all, that the history is what the court looks to first. and here there was a long history of legislative prayer. second, that the court should be very wary of parsing prayer to make sectarian judgments. and third, what marsh said is that adults are less susceptible to religious doctrine -- indoctrination and peer pressure. >> mr. gershengorn, could you respond to this? here's what our -- our country promises, our constitution promises. it's that, however we worship, we're all equal and full citizens. and i think we can all agree on that. and that means that when we approach the government, when we petition the government, we do so not as a christian, not as a jew, not as a muslim, not as a nonbeliever, only as an american. and what troubles me about this case is that here a citizen is going to a local community board, supposed to be the

closest, the most responsive institution of government that exists, and is immediately being asked, being forced to identify whether she believes in the things that most of the people in the room believe in, whether she belongs to the same religious idiom as most of the people in the room do. and it strikes me that that might be inconsistent with this understanding that when we relate to our government, we all do so as americans, and not as jews and not as christians and not as nonbelievers. >> so, justice kagan, i think we agree with much of what you say. but with the difference here is that this approaching of the government body occurs against the backdrop of 240 years of history, which makes this different. from the very beginning of our legislature, from the first continental congress, and then from the -- from the first congress, there have been legislative prayers given in the religious idiom of either the official chaplain or a guest chaplain, that have regularly invoked the -- the deity and the -- the language of the prayer-giver.

and that >> mr. gershengorn, your brief is the one who brought up -- and you were quite candid about it -- the hybrid nature of that body. i think it's on pages 22 to 24 of your brief. and you say it would be proper to have certain checks in that setting. so for one, make sure that the entrance and the exit is easy. for another, inform the people in town of the tradition so they won't be confused. but you recognize on the one hand that this isn't like congress or the nebraska legislature, and then you say these would be nice things to do. are you saying just that it would be good and proper or are you saying it would be necessary given the hybrid nature of this body? >> so, your honor, with respect to some of the things we identify which are similar to the ones that justice breyer recommended, i think our view is they're more akin to safe harbors, that there are undoubtedly advancement challenges that could be

brought. and to the extent that the town can point to things such as -- such as public criteria and things like that, that is helpful. with respect to the -- the public forum aspect, i don't think we have a position as to whether it is required, but we do think that that makes this case the much easier case, because of that separation of the one part that is the strongest argument for the other side, that there is an element of coercion, that your application is -- is being ruled on, that the separation the town has adopted makes that much less persuasive. we think the other elements that the respondents have pointed to for coercion are ones that trouble us because they are things that have analogs in our history. so, for example, they point to the presence of children. but, of course, on the senate floor are the senate pages, who

are all high school juniors. and as the reply brief points out, there are often children in the galleries at state legislatures being acknowledged. and so some of those elements that the respondents have pointed to for coercion we think are not ones that the court should adopt. >> of course, your test is whether or not -- part of your test -- is whether or not it advances religion. if you ask a chaplain for the state assembly in sacramento, california, who's going to go to the assembly to deliver a prayer, are you going to advance your religion today, would he say oh, no? >> so, your honor, i think it's a much narrower test. what this court said in marsh was that the limit on legislative prayers is -- does it proselytize, advance, or denigrate any one religion. we think with respect to the content of the prayer, that the second circuit got it just about right, that the question is does it preach conversion, does it threaten damnation to nonbelievers, does it belittle a particular >> so you use the word "advance" only as modified by "proselytize"?

>> what marsh said was "proselytize, advance, or denigrate." >> because that's not what your brief says "does not proselytize or advance." >> that's the language from marsh, your honor, is to proselytize or "proselytize, advance, or denigrate." >> but that's that the test you want us to adopt and >> it is, your honor. >> i'm asking whether or not it is, in fact, honest and candid and fair to ask the minister or -- or the priest or the chaplain or the rabbi if by appearing there, he or she seeks to advance their religion? >> so, your honor, i don't think that's what marsh meant by advance. >> if not, i'm not quite sure why they're there.

>> you're not quite sure why "advance" is there, or why the rabbi is there. we don't think that the mere presence of the rabbi -- that's what marsh held, that marsh -- what marsh says is "advance" 21 does not mean having a single -- a single chaplain -- a chaplain of a single denomination or looking at the content of the sectarian prayer in light of that history. thank you, your honor. >> thank you, counsel. mr. laycock. >> mr. chief justice, and may it please the court, petitioner's answer to justice kagan's opening question is entirely formalistic. there is no separation in time between the public hearing and the invocation. people appear before this town board to ask for personal and specific things. our clients put shows on the cable channel. they were concerned the cable channel was about to be abolished or made much less usable. people appear to ask for a group home, parents of a down syndrome child. there are many personal petitions presented at this -- in the immediate wake of the prayer. >> but that's during the public -- that's during the public forum part. >> that's in the public forum. >> which is not really -- it's not the same thing as the hearing. >> it's not the same thing as the hearing and that's the point, your honor. >> there's another part of the proceeding that is the hearing. >> yes.

>> and that's when somebody has a specific proposal. they want to -- something specifically before the board and they want relief. they want a variance. >> the hearing is a particular kind of proposal. >> and that is separated in time. >> that is somewhat separated in time. the forum is not. and people make quite personal proposals there. they ask for board action. they often get board action. >> but that is a legislative body at that point. it's clearly a legislative body, is it not? the only -- the difference is it's a town rather than -- than congress or a state legislature where you have more formalized procedures. this is this is more direct democracy. or it's like a -- it's a town meeting. >> it is -- it is direct democracy. when a citizen appears and says, solve the traffic problem at my corner, solve this nuisance family that commits a lot of crimes in my block, that's not asking for legislation or policymaking. that's asking for administrative action. this board has legislative, administrative, and executive functions. >> well, if that is your argument, then you are really

saying you can never have prayer at a town meeting. >> that's not what we're saying. we're saying >> how could you do it? because that's the kind of thing that always comes up at town meetings. >> we're saying you cannot have sectarian prayer. the town should instruct -- should have a policy in the first place, which it doesn't, instruct the chaplains keep your prayer nonsectarian, do not address points of >> all right. give me an example. give me an example of a prayer that would be acceptable to christians, jews, muslims, buddhists, hindus. give me an example of a prayer. wiccans, baha'i. >> and atheists. >> and atheists. throw in atheists, too. >> we take marsh to imply that atheists cannot get full relief in this context, and the mccreary dissenters said that explicitly. so points on which believers are known to disagree is a -- is a set that's in the american context, the american civil religion, the judeo-christian tradition >> give me an example then.

i think the point about atheists is a good point. but exclude them for present purposes and give me an example of a prayer that is acceptable to all of the groups that i mentioned. >> about a third of the prayers in this record, your honor, are acceptable. >> give me an example. >> can i have the joint appendix? the prayers to the almighty, prayers to the creator. >> to "the almighty." >> yes. >> so if a particular religion believes in more than one god, that's acceptable to them? >> well, some religions that believe in more than one god believe that all their many gods are manifestations of the one god. but the true polytheists i think are also excluded from the mccreary dissent. >> what about devil worshippers? >> well, if devil worshippers believe the devil is the almighty, they might be ok.

but they're probably out >> who is going to make this determination? is it -- is it an ex ante determination? you have to review the proposed prayer? >> i'm just flipping through. there are a number of examples, but if you look at page 74a of the joint appendix, the prayer from august 13, 2003 -- no i'm sorry. that ends "in christ's name." but there are -- the count was about, about two-thirds, one-third. so there are plenty of them in here. >> 74a, "heavenly father," that's acceptable to all religions? >> "heavenly father" is very broadly acceptable. and you know, the test cannot be unanimity, because that's impossible, right? that's why the atheists are excluded. i'm sorry, justice scalia, would you repeat your question? >> well, i'll repeat mine. it was, who was supposed to make these determinations? is there supposed to be an

officer of the town council that will review? do prayers have to be reviewed for his approval in advance? >> no. principally the clergy make this determination. there is a 200-year tradition of this kind of civic prayer. the clergy know how to do it. if the city has a policy, then an occasional violation by one clergy is not the city's responsibility. so -- so this is left principally to the clergy by simply giving them instructions. they receive no instruction of any kind about the purpose of this prayer or >> so there is an official in the town council that is to instruct clergy about what kind of prayer they can say? >> that's right. state legislative bodies, the house of representatives have these kinds of guidelines. they issue them to the guest clergy before they appear. >> and if i'm that official and i think a prayer was over the top for being proselytizing and particularly sectarian, i would say i rather not -- you not come back next week, i am going to

look for somebody else? >> well, you might have a conversation with him first and >> well, so in other words the government is now editing the content of prayers? >> editing the content of government-sponsored prayers. of course these clergy can pray any way they want on their own time with their own audience. but this is an official government event. and it's part of the board's meeting. it's sponsored by the government. and they delegate the task to these clergy and they can define the scope of that >> your point is that it coerces, it's bad because it coerces? >> it coerces the people who are about to stand up and ask for things from the board and >> if there is -- if coercion is the test of the free exercise clause, why do we need a free exercise clause? if there's coercion -- i'm sorry -- of the establishment clause, why do we need the establishment clause? if there's coercion, i assume it would violate the free exercise clause, wouldn't it? >> well, i think that's right. and that's why >> so it seems to me very

unlikely that the test for the establishment clause is identical to the test for the free exercise clause. >> well, it seems to me unlikely as well. coercion is one test for the establishment clause, but there is also broad agreement on the court, and there has been, that sectarian endorsements are prohibited by the establishment clause. >> what exactly since you are adopting the coercion test, what exactly is coercive in this environment? having to sit and listen to the prayer? >> there are many coercive 19 aspects here of varying degrees of importance. citizens are asked to participate, to join in the prayer. they're often asked to >> they are asked to participate, and -- but not in any tangible way. they say well, i'm not going to participate, and everybody's just sitting there. >> they are often asked to physically participate, to stand or to bow their heads. the testimony is most of the citizens bow -- most of the citizens bow their heads whether they are asked to or not. so people who are not participating are immediately

visible. the pastors typically say "please join me in prayer." they offer the prayer on behalf of everyone there. they talk about "our christian faith." >> this is coercion? he says, you know -- he says, "may we pray," and somebody doesn't want to pray, so he stays seated. >> what's coercive about it is it is impossible not to participate without attracting attention to yourself, and moments later you stand up to ask for a group home for your down syndrome child or for continued use of the public access channel or whatever your petition is, having just, so far as you can tell, irritated the people that you were trying to persuade. >> let me give you an example of a practice that's a little bit different. maybe you'll say it's a lot different from what the town of greece does. first of all, this town starts out by making -- by proceeding

in a more systematic and comprehensive way in recruiting chaplains for the month or whatever it is. so instead of just looking to all the houses of worship within the town, it identifies places of worship that may be outside the town boundaries that people within the town who adhere to a minority religion may attend. and it makes it clear that it's open to chaplains of any religious -- of any religion on a rotating basis. and then they have -- they structure their proceedings so that you have the prayer, and then the legislative part of the town meeting. and then there's a clear separation in time and access between that part of the proceeding and the hearing where variances and things of that nature are held. now, you would still say that's unconstitutional because you have to add on that a prayer that is acceptable to everybody, is that it? is there any other problem with what i've just outlined? >> well, if the separation in time really works, that's part of the remedy that we've suggested that is possible here. we still believe that prayers should be nonsectarian.

>> on the remedy, this case was remanded by the second circuit for the parties together with the court to work out appropriate relief. and if you could tell us what you think that relief would be, because then that is a measure of the constitutional infraction. so what would -- you put yourself before the district judge and propose the changes that you think would be necessary to bring this practice within the constitutional boundary. >> well, we think the town has to have a policy. >> well, just to be clear, are you talking about what would be satisfactory to the second circuit or satisfactory to you? because you don't accept the second circuit's approach. >> well, we've tried to sort out the totality of the circumstances to make it clearer. >> what my question was >> i'm talking about what would

be >> your theory, and you say existing situation violates the constitution. so what changes do you think would need to be made -- >> we think -- >> that would bring this within the constitutional boundary? >> we think the town needs a policy. the policy should give guidelines to chaplains that say stay away from points in which believers are known to disagree. and we think the town should do what it can to ameliorate coercion. it should tell the clergy don't ask people to physically participate. that's the most important thing. the government suggests disclaimers might help. we think that's right. the government suggests separating the prayer a bit more in time. some states put their prayer before the call to order. the prayer could even be five minutes before the beginning of the meeting. the coercion can't be entirely eliminated, but the gratuitous coercion, the things that are

done that don't have to be done in order to have a prayer could be eliminated. and we think those two pieces are the components of a remedy. >> mr. laycock, it seems to me that you're missing here is -- and this is what distinguishes legislative prayer from other kinds -- the people who are on the town board or the representatives who are in congress, they're citizens. they are there as citizens. the judges here are not -- we're not here as citizens. and as citizens, they bring, they bring to their job all of the predispositions that citizens have. and these people perhaps invoke the deity at meals. they should not be able to invoke it before they undertake a serious governmental task such as enacting laws or ordinances?

there is a serious religious interest on the other side of this thing that people who have religious beliefs ought to be able to invoke the deity when they are acting as citizens, and not -- not as judges or as experts in the executive branch. and it seems to me that when they do that, so long as all groups are allowed to be in, there seems to me -- it seems to me an imposition upon them to -- to stifle the manner in which they -- they invoke their deity. >> we haven't said they can't invoke the deity or have a prayer, and they can certainly pray any way they want silently or just before the meeting. we've said they cannot impose sectarian prayer on the citizenry, and that is very different from what congress

does, it is very different from what this court does. maybe the closest analogy is legislative committee hearings where the citizens interact. we don't have a tradition of prayer there. what the town board is doing here is very different from anything in the tradition that they appeal to. >> are you -- i would like you to take into account an aspect of this. i mean, in my own opinion, i don't know of anyone else's, i'm not talking for others. but one -- a major purpose of the religion clauses is to allow people in this country of different religion, including those of no religion, to live harmoniously together. now, given that basic purpose, what do we do about the problem of prayer in these kinds of legislative sessions? one possibility is say, you just can't do it, it's secular. but that is not our tradition. >> that's correct. >> all right. the second possibility is the one that you are advocating. and it has much to recommend it,

try to keep non-denominational, try to keep it as inoffensive to the others as possible. that's the upside. the downside is seeing supervised by a judge dozens of groups, and today, there are 60 or 70 groups of different religions coming in and saying, no, that doesn't work for us, this doesn't work for us, and that's the nightmare that they are afraid of. i mean, even in this town or in the area, there are significant numbers, as well as christians, of jews, of muslims, of baha'is, of hindus, and others. all right. so there's a third approach, and that is say, well, you can't have them if there's any aspect of coercion. but we just saw people walking into this room, "god save the united states" and you want to win your case. i didn't see people sitting down. all right.

then the fourth approach, which is the other that has -- makes its appearance here, is to say let's try to be inclusive. now, was enough -- in other words, so you didn't get the right prayer today, but you -- and even with the nonreligious, you know many believe in the better angels of our nature and the spiritual side of humankind, it's not impossible to appeal to them. so you say, you'll have your chance. and that's the thing i would like you to explore. i mean, is there a way of doing that or is that preferable to the other ways or do we get into trouble? >> we think that rotation does not work. first of all, because -- for several reasons, but most citizens come for a single issue to one or two meetings. they get the prayer they get that night. they don't benefit from the rotation scheme. any rotation scheme will be dominated by the local majority, maybe even disproportionate to its numbers. religious minorities -- unfamiliar minorities give the

prayer. there are often political protests, there are often threats and hate mail. they don't want to give the prayer. and many city councils won't stand up to the political pressure and enable those people to give the prayer. so there are multiple reasons why rotation does not solve the problem here. we think nonsectarianism has a very long tradition. the government is not a competent judge of religious truth, madison said, that was not a controversial proposition in the founding. and even in the first congress, in the prayers they point to, there were no prayers there that violate our principle, invoking details in which believers disagree. because then, 98.5% percent of the population was protestant, christ was not yet a point that disbelievers disagreed. >> well, that gets exactly to the problem with your argument about nonsectarian prayer. yes, when -- at the beginning of the country, the population was 98 percent-plus protestant. then it became predominantly christian. then it became predominant almost exclusively christian and jewish. and it -- but now, it's not that -- it's gone much further than

that. so we have a very religiously diverse country. there are a lot of muslims, there are a lot of hindus, there are buddhists, there are baha'is, there are all sorts of other adherents to all sorts of other religions. and they all should be treated equally, and -- but i don't -- i just don't see how it is possible to compose anything that you could call a prayer that is acceptable to all of these groups. >> we -- >> and you haven't given me an example. >> we -- we cannot treat -- i'm not a pastor -- we cannot treat everybody, literally everybody equally without eliminating prayer altogether. we can treat the great majority of the people equally with the tradition of prayer to the almighty, the governor of the universe, the creator of the world >> you want to pick the groups we're going to exclude? >> i think you picked them, your honor. >> the baha'i, who else? these groups are too small to -- >> we've already excluded the atheists, right? >> yeah, the atheists are out already.

>> we've excluded the atheists. i don't think the baha'i are excluded, but i'm not certain. >> okay. so who else? i mean, you suggest -- you say just the vast majority is all that we have to cater to. >> well, i think the atheists are inevitably excluded. we can't help >> ok. good. got that. number 1, atheists. who else? >> true polytheists who don't understand their gods as manifestations of the one god are probably excluded. i'm not sure many others are. and you have all these lawyerly hypotheticals, but the fact is we've done this kind of prayer in this country for 200 years. there's a long tradition of civic prayer and the clergy know how to do it. when in greece, no one has told them that's what we want you to do. and -- and i would say the one time the country in a major way got involved in government-sponsored, sectarian prayers that people disagreed about was when we imposed protestant religious exercises on catholic children in the 19th century. and that produced mob violence,

church burnings, and people dead in the streets. >> mr. >> we've already separated out, i thought, in our jurisprudence, children and adults. >> well, lee v. weisman twice reserves the question of whether adults might be subject to similar pressures. >> well, you do accept the fact that children may be subject to subtle coercion in a way that adults are not, right? >> in some ways that adults are not. but there's no doubt that before you stand up to ask for relief from a governing body, you don't want to offend that body. adults are subject to coercion here. and -- and no competent attorney would tell his client, it doesn't matter whether you visibly dissent from the prayer or not. you try to have your client make a good impression. >> well, i just want to make sure what your position -- your position is that town councils like greece can have prayers if they are non-provocative, modest, decent, quiet, non-proselytizing. that's your position?

>> i wouldn't use all those adjectives, but yes. and we don't think that's difficult to do. >> mister -- >> congress has a set of guidelines which you've read and are here in the papers and so forth. are those satisfactory to you? >> we'd like to be a little more explicit, but those are vastly better than >> if those are satisfactory to you, then i wonder, are they satisfactory to everyone. and -- and you will find all kinds of different beliefs and thoughts in this country, and there will be people who say, but i cannot give such a prayer if i am a priest in that particular -- or a minister or whatever in that particular religion. i must refer to the god -- to god as i know that god by name. and what do we do with them? that's what -- i mean, we can recommend it, but can we say that the constitution of the united states requires it? >> you know, there are such people and i respect that and they should not be giving government prayers. they're taking on a government

function when they agree to give the invocation for the town board. >> mr. laycock -- >> well, that's -- that's really part of the issue, whether they're undertaking a government function or whether they're acting as citizens in a legislative body, representative of the people who bring -- who bring to that their own personal beliefs. i think the average person who participates in a legislative prayer does not think that this is a governmental function. it's a personal function. and -- and that's why we separate out the legislative prayer from other kinds of prayers. >> they're -- they're not praying for their congregation. they are -- they are invited by the board, the prayer-giver is selected by the board, the board decides to have the prayer, the board gives this one person and only one person time on the agenda to pray. this is clearly governmental as you held in santa fe >> if you had an atheist board, you would not have any prayer. >> precisely. >> i guarantee you, because it is a personal prayer that the

members of the legislature desire to make. >> counsel, assuming that we don't >> mr. laycock, would you >> justice sotomayor. >> assuming -- you hear the resistance of some members of the court to sitting as arbiters of what's sectarian and nonsectarian, and i join some skepticism as to knowing exactly where to join that line. assuming you accept that, what would be the test that you would proffer, taking out your preferred announcement that this prayer has to be nonsectarian? >> well, the test that we have proffered is the test from the mccreary dissent, points on which believers are known to disagree. so you don't have to be a theologian. points on which people are commonly known to disagree, and the fourth circuit has had no difficulty administering this rule. the cases that come to it are clearly sectarian or clearly nonsectarian.

>> it just seems to me that enforcing that standard and the standard i suggested involves the state very heavily in the censorship and the approval or disapproval of prayers. >> but it's not censorship when it's the governmental >> that may play ultimately in your position if we say that that's why there shouldn't be any prayer at all. but then you have the problem mentioned by justice scalia that we are misrepresenting who we really are. >> if you really believe government can't draw lines here, then your alternatives are either prohibit the prayer entirely or permit absolutely anything, including the prayer at the end of our brief, where they ask for a show of hands, how many of you believe in prayer? how many of you feel personally in need of prayer? if there are no limits, you can't draw lines. >> that's not a prayer. that's not a prayer. >> well, it was how >> "how many of you have been saved?" that's not a prayer. >> it was how he introduced his prayer, and if you can't draw lines i don't know why he can't say that. >> mr. laycock, sort of, all

hypotheticals aside, isn't the question mostly here in most communities whether the kind of language that i began with, which refers repeatedly to jesus christ, which is language that is accepted and admired and incredibly important to the majority members of a community, but is not accepted by a minority, whether that language will be allowed in a public town session like this one. that's really the question, isn't it? >> that's the issue that actually arises in the case. >> that's the issue that actually arises. here's what -- i don't think that this is an easy question. i think it's hard, because of this. i think it's hard because the court lays down these rules and everybody thinks that the court is being hostile to religion and people get unhappy and angry and

agitated in various kinds of ways. this goes back to what justice breyer suggested. part of what we are trying to do here is to maintain a multi-religious society in a peaceful and harmonious way. and every time the court gets involved in things like this, it seems to make the problem worse rather than better. what do you think? >> well, i don't think that's true. there are people who distort your decisions. there are people who misunderstand your decisions honestly and -- and innocently. but keeping government neutral as between religions has not been a controversial proposition

in this court. and i don't think the fourth circuit has made it worse. they've got a workable rule and the prayers are no longer exclusively christian prayers in the fourth circuit and they have been able to mostly enforce that and there hasn't been litigation at the margins because all the prayers were clearly >> suppose you did this. you combined your two approaches. the town has to -- it cannot -- it must make a good faith effort to appeal to other religions who are in that area. and then you have these words from the house "the chaplain should keep in mind that the house of representatives, or you would say whatever relative group, "is comprised of members of many different faith traditions," period, end of matter. is that sufficient, those two things? >> that would help immensely. we think some of the clergy need more detailed explanation of what that means, but yes, that would help immensely. >> should we write that in a concurring opinion? >> i mean, i'm serious about this. this involves government very heavily in religion. >> well, government became very

heavily involved in religion when we decided there could be prayers to open legislative sessions. marsh is the source of government involvement in religion. and now the question is how to manage the problems that arise from that. >> well, marsh is not the source of government involvement religion in this respect. the first congress is the source. >> fair enough. the tradition to which marsh points. >> the first congress that also adopted the first amendment. >> that's correct, and that had prayers that did not address predestination or having to accept jesus as your savior or any point on which listeners disagree. >> many of them were very explicitly christian, were they not? >> they were very explicitly christian, but that was not a point of disagreement at the >> well, it's not that the people in greece can't do it. it's just that this board is functioning in a fundamentally different way from what congress or the state legislature functions. and also. >> my understanding is that the

first chaplain of the senate was the episcopal bishop of new york, isn't that correct? and he used to read -- he took his prayers from the book of common prayer. that was acceptable to baptists at the time, quakers? >> well, it wouldn't have been their choice. but did he talk about the choice between bishops and presbyters and congregations as a way of governing the church? they have not offered a single example of a prayer in the founding era that addressed points on which protestants were known to disagree. and i don't think there is one. the founding generation kept government out of religious disagreements. and what has changed is not the principle. what has changed is that we have a wider range of religious disagreements today. if there are no further questions, we ask you to affirm. >> thank you, mr. laycock. mr. hungar, you have three minutes remaining. >> thank you, mr. chief justice. first i would like to correct one factual misimpression, the assertion that only non-christian prayer-givers delivered the prayer after 2008. it's not in the record, but the official web sit