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tv   Key Capitol Hill Hearings  CSPAN  June 8, 2015 10:30pm-12:31am EDT

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key hangups happened in the icp case reading the plaintext of the law. alito really wanted the court to do that and made arguments for that and. justice scalia and justice scalia said, look if you read the entire law including the amendments, it's very clear that disparate impact is a lot of that is a lot of the -- is alive under the fair housing act. but i think, look, we don't have any fallacies that at least the house would put forth the cure it would be a legislative fix. that would meet our end. i don't necessary think that the senate, this particular senate might do that as well, but i think that if there was a potential fix that would harm the fair housing act that the
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president would veto that, but i also think that it will take us some time to get to the fix that we need and hopefully we would be dealing with not this particular same congress. >> i'll just add one thing which is to resist the word punt. if the court were to say so subsidies were to be cut off or if they say that if they said the current law does not allow disparate, that is not a punt, that is changing existing law. it is not a punt to say we are going to do this thing that blows up the consent of 11 courts of appeal. >> you can put it more simply,
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you are talking about if they are going to overrule the w pieces of progressive legislation. in that sense, from the defender's view, they are like leave it alone. and anyone else was looking to change this court. let's take two questions at the time. go ahead. >> gay marriage, this is the last thing in the world republicans in congress want to deal with. i actually don't agree. there is no way. you see the presidential republican candidates contorting themselves into pretzels on this. they say they are against marriage equality but they would go to a gay marriage. >> is it pretzels or pieces of wedding cake? [laughter] >> always a hit. >> they will have to decided. they would have liked to have have waited longer but the sixth circuit me that not really a choice. >> i want to get, let's take
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two and then we can keep talking . >> my question is regarding the fair housing case. as far as if disparate impact, they decide it has no place in the fair housing act, how does that affect public programs? they have the assessment tool that will require state agencies to look at beta on a map. is that affected? >> one more. >> one issue that hit me very interestingly on the gay marriage issue was they came out, both the justices saying are these arguments just a pretext? do pretext argument for the two
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other issues on the fair housing and the obamacare. >> so if the supreme court strikes down disparate impact under the fair housing act it will not affect the fair housing role. that particular rule is being promulgated under a different section of the law. they are distinctly different things. one of the things that you may consider when you are conducting your analysis under the s h provision is whether or not there are any policies, for example zoning ordinances that have been passed by the municipality that have a disparate effect on a particular protected class. disparate impact is a component in terms of considering whether
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you are affirmatively furthering housing. they are distinctly different things. i do not think if the court does strike down disparate impact which i do not expect it to do but say it does, that would not impede the furtherance of the rule. affirmatively furthering fair housing is not anything new, it has been in existence for decades. it is just that for decades that have been calling it the analysis of impediments and that we'd will be called the fair housing assessment. the only thing that hud is doing is empowering municipalities with data that they will need to adequately provide the assessment. >> just quickly on the question on pretext, there continues to be a debate about whether or not the roberts court finds itself
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aligning, using the third branch which is supposed to be a part of the system of checks and balances will it aligned itself more with these ideological crusades we have seen taking place in the conservative movement? whether it is an issue like integration that we are currently dealing with down in texas or an issue around environment or civil rights statutes, there are questions that are currently happening. will be roberts court limits itself best align itself with a naked direction to push the court and pushed the country in very specific ways? i think a lot of us would say for the court to overturn years of precedent, funding situations where there has not been a split, taking places that people would assume the court would not
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consider, you have to ask yourself is that a real question and is there something happening where the court that is supposed to be above partisan politics, is something changing with the particular court? and i think it is a fair question. >> can i jump in real quick because i want to go back to an issue that elizabeth raised earlier. >> do we have other questions and comments? go right ahead. ms. rice: i want to dig in a little bit deeper on this sort of plaintext of the language issue. and, and alito focusing in the fair housing case on the fact that no, you just look at the plaintext of the law as it was written in 1968 and if the plaintext as it was written in 1968 did not mean to include disparate impact you cannot
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include disparate impact. in opposition to that, justice scalia went through a very, very long discussion on the fact that you have to look at the law holistically. you have to look at the law and all of its elements when you are trying to determine whether or not there was statutory intent for whatever the question is. and i think that is very important during back to the point that ann made earlier because in my mind if scalia votes against disparate impact he is going against the president that he has already set forth, the belief that he has already set forth. that really does raise for me the pretextual issue michelle but you were talking about, what is your purpose? but opens up a can of worms at least for scalia, maybe not only best not alito.
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mr. melber: i want to go to closing thoughts but i want to double check either questions or comments? there is one. >> i am not affiliated with anything. my question is, what will the republicans do if obamacare gets decided the other way? they will have the same kinds of problems they would in the same-sex marriage thing. they will have a mess. everything is kind of built on this one thing and it will take it apart and then what will they do? nobody will like the chaos that results. ms. kaplan: you are absolutely right and a lot has been written about exactly the issue that you are identifying, that there is
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really no backup plan for what is going to happen. ms. stachelberg: and what is interesting about that is what impact that house on the court to realize that there really isn't a backup plan and that millions of people who are getting health insurance for the first time and are getting preventive care for the first time are going to have it snatched away from them. the justices are people, the leasing -- read the newspapers, those of us that care deeply about these issues are always kibutzing about what can we do. we do not know how much of an impact it has on the justices to realize that. we hope that it makes the difference for the justices to understand just how horrible it would be if the subsidies are
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struck down. mr. melber: in fairness they would say that that is a policy concern. ms. stachelberg: that is exactly right but in this case there is at least a fair reading of the statute that turns out in the right way and a much fairer reading that comes out to uphold the subsidies. mr. millhiser: i will say to w things in response. -- two things in response. to the extent that there are justices, it is helpful that political analysts have weighed in and pointed out that this may not be good for the republican party. if they are not willing to do
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the right thing because they are following the law may be very well out of some other concern. that said if they do do the wrong thing i think we have a good indicator of what is going to happen because we have seen it happen through medicaid. what we have seen is that in many states where you have governors and lawmakers who are ideologically opposed to the affordable care act, they are turning down free money literally turning down free money. for the first several years of the affordable care act the state does not even have to contribute to the expansion at all because they have an ideological objection to all things obamacare. i do not think there is any question regardless of what the politics are that there will be many states where if the supreme court does the wrong thing subsidies will just get cut off and that means, there was a brief submitted by public health advocates that predicted 10,000
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people die every year if the tax credits are cut off. that is a lot of mothers who do not get to hold sums again husbands who do not kiss lives again. it goes the wrong with. mr. melber: i want to go to closing comments which can be whatever you want. we will go down the line or a response to a bit of a paradox of the court but i want to focus on as we think about so many of these important public issues. right in the middle of it, one way or the other. there is a paradox about the supreme court as the third branch of government that is always interesting for folks who care deeply. unlike the other two branches, the court does not exist to respond to the public. it is the opposite. at a basic level if you write a
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letter to your congress member, there will be some notion of responding to you or pretending to care what you think. whether you are idealistic or cynical there is at least that structure. there is not that in the court quite the opposite. the culture of the court is the idea of insulating the court and justices. they do that themselves in small ways. you do not allow television cameras and and or do it in large ways, -- they do not allow television cameras and end of a do it in large ways. -- they do it in large ways. when you think about several of these cases and how it will be defined there is extensive discussion even in oral argument as we saw in the marriage case about where the public is that. -- is at. marriage equality is an area of the law were many people who fashioned themselves as
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egalitarian are very positive about the role of the court right now in the same way that at one point in time people were positive about the support of the civil rights movement. it is a point of pride and yet it is not one that i think can be fairly argued is independently arising from justices who often talk about how strange some of these concepts are to them, when they were growing up the notion of members of the same gender getting married was unimaginable to quote one judge. on the one part court is isolated and on the other in these areas that many people consider a march for social progress there is incredible attention to where the public is at, are we being pushed from the grassroots? if we have what many will consider a victory on marriage equality coming from the court it would seem to me -- we will get your responses and if not closing thoughts -- would seem
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to me to be a direct response to what we the people have been doing and evolving on and not some independent legal conclusion that came from some legal doctrine. that is one thing i have been thinking about. let's get thoughts and closing. -- in closing. ms. jawando: first off, i think we are all kind of geeks in here because we are on a panel talking about the supreme court. you look at the arc of history. dredd scott and brown, you see evolution and growth. the same thing with marriage equality cases. you can see where we were even when windsor happened to now. while i would like to believe and i think most americans like to believe that somehow the court is a part of our system
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that is just untouchable, that you can't reach, but you can't touch, but somehow they are not connected, they are. they are real people. they look at the news. they are connected and they pay attention to the arc of human history. something in me believes that the roberts court, particularly the chief justice here, will be looking and paying attention to the ways that people are continuing to lose faith in the institution of the court as a whole as a separate, independent, about politics body. and i think that is a real concern for this chief justice as it should be. we see the 10% approval rate for congress. i am a former congressional staffers so i know why people hate on congress. it makes sense sometimes. the court does not want those same numbers. it is very real for them to
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watch were the american people are. -- where the american people are. the fact that there are potentially 10,000 people who can die when subsidies are taken away, the fact that you have some states were you can be married and others where you can't doesn't comprehend the for some of the justices and you heard that with some of the back and forth in the most recent oral argument. and so i would like to believe -- again, this is the optimist. i think the court is being attention and i do believe the american people have a role to play in these decisions and without question obviously the fidelity must always be true the constitution and to the interpretation but i am of the belief that the constitution is a breathing document for a reason. because the arc of history moves
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and changes through history. ms. kaplan: i am going to at all the comments that have been made -- echo the comments that have been made. they are impacted by the same things that human beings are and think the same way based on legal arguments and emotion and morality. obviously they do, we all do. what is amazing in the marriage equality context is that the arguments have not changed. one of the reasons my client had to go to toronto instead of our home city of new york is my fault. i argued the new york marriage case. i lost it. not a single argument changed. every argument made today is exactly the same as the arguments being made them. the same arguments made in 2003.
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what has changed is the ability of judges to hear the arguments. that is a change in the american people, a change in moral understanding about who your gay neighbor and your gay college and gay friend and family member is. that only happened because people came out of the closet. all of the justices, there is no question, no people who are get. -- know people who are gay. it is difficult to have discrimination. mr. millhiser: this is a very interesting. and the supreme court -- period in the supreme court. the course of itself up as the nation's sensor where if there was a law they did not like they would strike it down because they did not like it.
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we got out of that era and then there was the one court era where the court i think the extent that people think of the one court as being very activist in pushing boundaries of the law, i think that is exaggerated but it is certainly true that liberals saw a lot to like in the war in iraq and conservatives saw a lot to not like -- in the war in iraq and conservatives saw a lot -- warren ear and conservatives saw a lot to not like. conservatives decided they did not like that. the did not like that feeling very much so much that you started to have a meaningful movement for conservative judicial restraint emerge. you see that in the rhetoric that comes out of reagan or the second president bush. they were not restrained on every issue, they were quite got on race.
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on a lot of issues, the nixon/reagan/bush way of looking at judges was constrained compared to the past. mel, and it happened= -- now, and it happened around january 2009, that focus on restraint is very much on the wane in conservative circles. if you go to the federalist convention -- and i cover it every year -- but had a whole panel on why we should not have discrimination law. a panel on why we should not have a minimum wage. the question is if the conservatives on the court are going to still embrace the more restrained division that was dominant for a while on whether they will take us back on the bridge to the 19th century and i do not have the answer to that question. ms. rice: i totally agree that
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justices are human and that you call and pay attention to public opinion. i also believe that they are smart and crafty. and when they make decisions to impede on our rights or to limit intake back rights that we already have that they can frame decisions in a way that on the facade has the appearance of seeming like they are moving us in the right direction. take justice robert's quote, the best way to stop discriminating based on race is to stop discriminating based on race. it seems like the right thing to say but when you peel back the layers of that onion it is a very, very dangerous thing because it is rooted in something, rooted in an argument that i hear often times when i work with lenders and insurers.
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i get this response from executives who say we do not discriminate. in fact, i do not even see race. i am colorblind. and on one element that is offensive. it is like you coming to me and say i do not see gender. i do not recognize the fact that you are a woman. yes, i am a woman. yes, i am a person of color and it is offensive to say you do not see that and you cannot be prejudicial because you do not see race, you're colorblind. that is the argument that justice robert is saying and my response to that is the best way to stop discriminating based on race is in the first place. if you adopt laws making us unable to see race discrimination you are perpetuating discrimination, perpetuating these systemic practices and institutions that promote race discrimination
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gender discrimination, etc. ms. taylor: i assure i -- share ian's look at the ark of the court and i fear that this court's counter progressive and there will be issues to address social problems and the court may stand in the way of those. i don't think we can afford as a country to not address serious social issues. one of the impacts of the court decision not to extend or not to allow expanded medicaid is that there are one million african-americans in texas, florida, and georgia who are in the coverage gap and get no health insurance as a result of a decision. a million african-americans. just in d.c., residents of ward seven are much more likely than anyone else in the city to suffer from cardiovascular disease.
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residents of wards seven and eight are tied for obesity rates. we cannot afford as a country to lose the productivity of segments of our society because they are stuck in neighborhoods where they can't get out. and so my hope is that what we see -- i think the reason that we are optimistic about these cases is that there is so much momentum across the nation. there has been so much momentum towards marriage equality. as we talked about there has been so much publicity about the fact that people who have health care don't want to give it up. that may be what we have to do we have to be that loud about what we care about. if the court is tending towards stopping those efforts to address social ills, we have to be louder. mr. melber: all right, please join me in thanking our panel
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for this great conversation. [applause] [captions copyright national cable satellite corp. 2014] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> on the next "washington journal," bloomberg editor derek gives an update on the weekend in congress. and then as the supreme court prepares to rule on king v burwell, we are joined by alan weil to discuss how states are preparing. later, we hear from roger and andrew. they discuss a new survey on the state of the workplace for disabled people. "washington journal" is live every morning and you can join the conversation with calls and comments on facebook and twitter. >> the supreme court monday struck down a law that requires
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the state department to list israel as the birthplace for americans born in jerusalem on u.s. passports. they decided 6-3 that congress overstepped bounds in 2002. the president has the exclusive power to recognize foreign nations. next, the oral argument. this is in -- an hour. >> we'll hear argument first in case 13628, zivotofsky vs. kerry. ms. lewin. ms. lewin: mr. chief justice and may it please the court, how an american is identified in his or her passport or u.s. consular report of birth abroad,
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including the place of birth designation, does not amount to formal recognition by the united states of that designated location's sovereign status. this is the principal reason why congress's law authorizing jerusalem-born citizens to carry passports that say they were born in israel is a legitimate congressional exercise of congress's power to regulate foreign commerce, naturaliza-- justice kennedy: suppose that suppose that the president and the secretary of state put on the passport the place of birth -- i've written it out -- the place of birth on this jerusalem-born citizen's passport has been listed as israel at the holder's request. this designation is neither an acknowledgment, nor a declaration by the department of state or the president of the united states that jerusalem is within the borders of the state of israel. could the president, under existing statute, and the secretary of state under existing statute, put that statement on the passport?
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ms. lewin: yes, your honor, they could put that statement on the passport. but we -- justice kagan: but if congress then passed a law saying that that statement had to come off the passport could congress do that? ms. lewin: yes, justice kagan. there's no restriction on the initial granting of recognition by the president. but by the same token, the congress has the ability afterwards, upon deliberation, to decide if they disagree with that recognition. but in the case that justice kennedy suggested -- justice sotomayor: has that ever happened? ms. lewin: yes. justice sotomayor: in the history of the united states where congress asked the
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president to declare that it was not recognizing someone, has congress ever recognized it? ms. lewin: yes, justice sotomayor. in 1898, congress passed a joint resolution for the recognition of the independence of the people of cuba over the initial opposition of president mckinley, and that ended up recognizing the independence of cuba. justice kennedy: if you were careful to say at the outset that this is not recognition the court of appeals decision, i think it was in the judge tabor concurrence, said that both parties urge upon us that they that the power of recognition is involved here and congress has done it. and then, of course, the attorney general takes the opposite position that this, a this is recognition and, b, that's why it's void. did you change your position here, or am i just misinterpreting the way this the court of appeals discussed it? ms. lewin: we've provided to the court alternative options for resolving this issue. our primary position, as i said at the outset, is that what is written in this statute does not amount to a formal recognition
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of sovereignty because the language of the statute itself is very narrow. it begins by saying that, for the purposes of, for the narrow purposes of recording a place of birth on a passport or a consular report of birth abroad, that is where what this statute provides for. it also does not state that in all circumstances you have to list israel as the place of birth. it is merely giving the individual choice. justice ginsburg: does the provision is part of a section section 214. and i think you're trying to read g, and so it is disassociated from the purpose that's expressed throughout 214 that is, that jerusalem is the capital of israel. congress said that, and you are trying to deal with a piece of one section without regard to the -- to the thrust of the whole provision, that congress has said we think jerusalem is the capital of israel. ms. lewin: justice ginsburg,
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that is correct. this section of the statute should be reviewed and the constitutionality of it be determined on its own. but the court should look not at what congress may have intended by the entire section but, rather, what this section actually did. and this section, as i said, gives the individuals a choice and does not confer formal recognition. there are benefits that come with formal recognition. justice breyer: you say that. but you say -- i've heard exactly what you said. and i think that's certainly a reasonable position. you could read this and say it doesn't really say anything about recognizing anything. but the solicitor general of the united states, after conferring with the state department, says, "since israel's founding, every president has adhered to the position that the status of jerusalem should not be unilaterally determined by a party," and he adds, "by requiring the president to
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contradict his recognition position regarding jerusalem in official communications with foreign sovereigns, the section unconstitutionally encroaches on the president's core recognition authority." so he has a different view. he thinks it is our policy not to recognize jerusalem as the capital, which you apparently agree with, and he thinks that this does have some tendency at least to suggest the contrary. now, i'm a judge. i'm not a foreign affairs expert. and when he tells me that, and they are foreign affairs experts in the state department, how can i say that i'm right even if i agree with you, and they, who are in charge of foreign affairs, are wrong when they make those two statements, which certainly sound plausible. ms. lewin: two points, justice
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breyer. the first is that what goes on a passport as a place of birth is not tantamount to recognizing foreign sovereignty. taiwan is a perfect example. the state department puts -- justice ginsburg: i want and i must interject at this point because you emphasize the taiwan example and it seems to me it's most distinguishable. taiwan and china maintained from the beginning there is only one china, and so taiwan is a place name. it's a region. it's in no way recognizing, no there's no question of recognition in the taiwan event. ms. lewin: that's correct, justice ginsburg. so what you put on the passport does not automatically confer recognition -- justice breyer: no, no, to go back to my question -- ms. lewin: but the question --
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justice breyer: which i'd like an answer to. i don't think that taiwan is a counterexample since the policy of the state department in that thing that's fam, which is the foreign affairs manual, says pretty clearly that if there's a dispute about the larger power i.e., china, you always can put in your passport the smaller place of birth, like a city or i would think your taiwan. so i don't hear the department or i guess i'm saying the experts saying that the taiwan example conflicted with their policy. >> china objected to that. did china not object to it? justice breyer: china may have done i want an answer to this question -- >> yes, that is correct, justice scalia. justice breyer: not whether china objected or didn't object or so forth. i'm not interested in that. i'm interested in what we, as judges, do when the state department and those charged say those other things were not contrary to our recognition policy. that's what they think, and this is. ms. lewin: so one last point on
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taiwan -- justice breyer: i'd like the first point. what am i supposed to do in respect to that? ms. lewin: well, the first the first point is that this what goes on the passport does not confer the benefits of formal recognition of sovereignty. this does not entitle the government, the foreign government to bring cases in our courts, to the protection of sovereign immunity or to the act of act of state doctrine. what goes on a passport, therefore, does not amount to sovereign recognition. justice scalia: ms. lewin, i thought your position was you couldn't care less if the state department thinks that this is going to interfere with our relations with the palestinians, that congress is entitled to do what it is authorized to do under the constitution, even when that contradicts -- let's assume they can't recognize a country, but they can declare war on a country, can't they -- ms. lewin: yes. justice scalia: that the state
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department has decided to recognize and to be friendly with? ms. lewin: yes, justice scalia. justice scalia: congress can do that. ms. lewin: that is correct. congress can do that. and the test, if there is a conflict -- justice scalia: and you say can do the same here. and the fact that the state department doesn't like the fact that it makes the palestinians angry is irrelevant. ms. lewin: absolutely, justice scalia. that is correct and -- justice breyer: if you take that position, which explains it, then what do you think of justice story who writes in 1833 that, "the exercise of the prerogative of acknowledging new nations and ministers" and he makes clear that involves whether a city or a region is part of a country, et cetera, he says, it's an executive function. some argue, as we -- i think we've just heard, that congress could make that decision, too, but that hasn't been decided. and he concludes that, "a power so extensive in its reach over our foreign relations could not properly be conferred on any
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other than the executive department will admit of little doubt." ms. lewin: justice -- justice breyer: so he is saying of course, you have to have one person deciding such a thing and that has to be the executive. that's 1833, pretty knowledgeable about the founders' intent. ms. lewin: but that is a rather extreme position, number one, to suggest that the executive branch would have not only the authority to recognize a foreign government, but also at the state department's say-so, that automatically would end the question or any review by any other branch. the state department merely says that the power's influence upon -- justice sotomayor: but wait a minute, there is always review with the power's approach, and there's always review with not appointing an ambassador. there is review in a variety of alternative ways by congress. it just may not be the way you prefer, that they could pass a resolution contradicting that
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that would have any legal force. ms. lewin: there is review, and even both to respond to justice sotomayor and justice breyer justice story and william rawle both recognize that authority of congress to review. justice story also said that "if such recognition is made it's conclusive upon the nation unless, indeed, it can be reversed by an act of congress repudiating it." and then he went further to say that, "if the president refuses to recognize, then he said congress may, notwithstanding, solemnly acknowledge the sovereignty of the nation or party." justice roberts: i suppose -- i suppose you could also say hamilton in 1787 or whatever it was trumped storey in 1830 right? i mean, he said pretty much the exact opposite, that the recognition provision was really just a trivial formality. ms. lewin: hamilton also switched his position before he was in the administration and after he was in the
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administration. what that would seem to show mr. chief justice, is that it's not clear the history -- >> ms. lewin -- justice scalia: in any case this is not your main point, is it? you're being either forced into or willingly yield yourself to arguing that against the proposition that if this is recognition, it is invalid. but your main position is this is not recognition. it just has an effect on the state department's desire to make nice with the palestinians, and your position is congress has no compulsion to follow that, assuming it can't recognize. ms. lewin: that is correct. justice scalia: you don't claim that this is recognition. ms. lewin: we do not claim that this is recognition. in fact, if there was a conflict -- justice sotomayor: ms. lewin, one factual matter i'd like. i see in the record that your application for the passport
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asked for "jerusalem, israel," but that was changed. was it changed in litigation? was there an actual official request to change it in your application? ms. lewin: the initial request was made purely because of a misunderstanding of what the law initially required. and it was a common -- justice sotomayor: answer my question. did you apply formally to have it changed or did you just take this that position in litigation? ms. lewin: the position was then 'subsequently taken in litigation. but in subsequent renewals of the passport, too, it has been just the request that "israel" be put on the passport, and it has come back with "jerusalem." justice alito: may i ask you another -- another factual question? when menachem was born, was he issued a birth certificate by the israeli authorities? ms. lewin: yes. justice alito: and the united
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states recognizes that as a lawful exercise of israeli authority, to issue a birth certificate for a child born in jerusalem? ms. lewin: i believe they do your honor. justice alito: so what this is a question i would ask the solicitor general, but i don't completely understand what the position of the united states is regarding israeli sovereignty over jerusalem. i understand it is the position of the united states that israel does not exercise full sovereignty over jerusalem, but in this instance, the issuance of a birth certificate, and others i can think of, i suspect the united states recognizes that israel is lawfully exercising attributes of sovereignty over the territory of jerusalem. is that correct? so if somebody if let's say an american citizen committed a crime in jerusalem, would the united states take the position that the israeli government has no lawful authority to prosecute that person for the crime? ms. lewin: i do not believe so your honor. i believe that they would feel that the israeli government has the authority to prosecute that crime. justice kagan: ms. lewin, if i
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can ask you, if your primary position is that this is not a recognition statute, can we talk a little bit about what it is? i mean, why -- what is the design, what is the effect of this statute other than as something that goes to recognition? ms. lewin: this statute is a statute that was created to give individuals the right to self-identify as they choose that they were born in israel. justice kagan: but the united states government does not usually give people that right to self-identify in this way. in other words, i think this was the chief justice's question in the first argument, if you're an american citizen born in northern ireland, you can't get the right to say ireland. for that matter, if you are an american citizen born in jerusalem today, you can't get the rights to say palestine. this is a very selective vanity plate law, if we might call it that. and it's selective because congress had, it appears to me and it's consistent with the
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rest of the statute, as justice ginsburg said, a real view that this was the self-identification it wanted. in other words, the ability of american citizens to say yes, i was born in jerusalem, and that means i was born in israel. that and only that self-identification is allowed. ms. lewin: this statute was rectifying a misguided policy of the state department which enabled individuals born in israel proper, whether in tel aviv or in haifa, who were opposed politically to the state of israel to remove that sovereign, to remove reference to israel from their passport, but it did not allow the flip. it did not allow those who are born in jerusalem and who live under the sovereign government of israel, who wish to put israel on their passport, to put israel on their passport. justice ginsburg: what about palestinians who were born in jerusalem and want to have palestine as their place of birth?
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that -- that existed until 1948, that option. ms. lewin: correct, justice ginsburg, because at that point there was, before 1948, a palestine. so the law was not going so far -- justice kagan: now, people can -- palestinians cannot american-born palestinians cannot do that. and that suggests that congress had a view, and the view was that jerusalem was properly part of israel. ms. lewin: and that is because this statute was dealing with an existing sovereign that you either remove from the passport or put on the passport. they weren't complicating the situation by putting in nonrecognized sovereigns or other entities. they said you either put it on or you take it off. we'll give you the choice -- justice alito: if an american citizen is born in barcelona spain, is that citizen allowed by the state department, to put barcelona as place of birth? ms. lewin: if they wish to remove the country of birth and list the smaller entity? yes.
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justice alito: and is that a vanity plate for people who believe in catalan independence? ms. lewin: it is enabling an individual to exercise their choice to self-identify as they choose, yes. justice kennedy: but, again your argument and you're consistent on this, your first argument is that this is not recognition. now, suppose the state department, and i think this is its position, says this is recognition. if we defer to the state department's judgment, to the government's executive judgment on that point, and the government said this is recognition, and you say it isn't recognition, why doesn't the government trump? if the government -- if the congress really wants to test its power, it can pass a law saying you must recognize israel as being the legitimate government of palestine, but it has not done that. and since it has not done that it seems to me the government's argument trumps. ms. lewin: justice kennedy, you are correct.
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the way the balance of powers works is that the executive branch has the right to recognize a sovereign. however, if congress deliberates, passes legislation, and that legislation is signed into law, then congress's position trumps. justice kennedy: but you -- but you say that this isn't recognition. so the ultimate conflict is not before us and, therefore, the government's policy, which says that this is recognition, should be given deference and it trumps. ms. lewin: well, your honor, if it does not amount to recognition, then congress had the authority to pass this legislation pursuant to its passport authority. justice scalia: i guess there are competing canons here. i mean, one is, i suppose, that we listen to the state department on matters of foreign affairs, but i suppose another one is that we do not hold a -- an act of congress to be unconstitutional and thereby ineffective. so that seems to me a draw
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doesn't it? ms. lewin: yes, justice scalia. justice scalia: so the state department says this amounts to recognition, and congress says whether it does or not, we want we want this person to be able to list israel. ms. lewin: that is correct. and since this was signed into law by the president, the law right now trumps whatever the executive branch may say. >> >> >> -- justice kagan can i : give you a hypothetical, ms. lewin? suppose that congress passed a law and this law said that the secretary of state had to send an official letter to all foreign ministers whenever a u.s. citizen was born in jerusalem, and that official letter from the secretary of state said -- says -- just -- it announces that a new american has been born in israel. would that be constitutional? ms. lewin: excuse me, this would
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be a law passed? justice kagan: this is a law passed by congress and it says every time a u.s. citizen is born in jerusalem, the secretary of state has to send an official letter to every other foreign minister saying that a new american has been born in israel. ms. lewin: yes, that would be constitutional. justice kagan: that would be constitutional, even though the congress is basically telling the secretary of state to engage in a certain kind of diplomatic communication with other foreign countries. ms. lewin: the description of the law that you provide seems to be very similar to what a passport does. a passport recognizes an individual as an american citizen for purposes of communicating that information to the foreign government. similar kagan: -- justice kagan: yes, exactly right. that was going to be my point, that it was -- [laughter] justice kagan: that it was extremely similar to what a passport does, that both are forms of diplomatic communication, and that what we usually say about diplomatic communication is that whatever congress's other foreign affairs powers are, the power of diplomatic communication belongs to the president and the president alone, that in that realm we only speak with one voice.
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and so i guess i have to sort of say that that answer that you gave me, that this could -- that congress could say to the secretary of state, here's the diplomatic communication that you have to send to other foreign ministers, seems, well a little bit shocking. ms. lewin: but recognizing an individual as an american citizen facilitates the transfer and the movement of american citizens across borders. this passport, if it were to list israel pursuant to this law, would be indistinguishable from all the other passports of individuals born in tel aviv or haifa or anywhere else in israel. that passport would not, when shown, be making any kind of political statement. it would merely be identifying the individual by their name date of birth, place of birth, as all american passports of individuals identify them. justice roberts: so you would
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say in justice kagan's hypothetical, maybe the letter that's required to be sent to every foreign head of state would be unconstitutional, but that doesn't mean that the passport is, because the passport is used primarily for purposes of identification, and it's only the letter that makes it something else. ms. lewin: correct, justice roberts. justice kagan: well, if you say that -- >> justice kennedy. justice roberts: -- justice kennedy: do you want us to say in our opinion that this is not a political declaration? ms. lewin: this is not a political declaration, that's correct, justice kennedy. justice kennedy: well, then, i'm not sure why that congress passed it, then. >> congress passed it to give these individuals the right to self-identify as they choose because individuals in general have that ability on their passport to choose and designate -- justice sotomayor: i thought it was a federal crime to say that you were born in the united states when you weren't on an official document. so why is it that it's ok for congress to say something that
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hasn't happened, meaning to say that someone born in jerusalem is actually born in israel? it's different than somebody who's born in taiwan saying i was born in america. ms. lewin: since 19 -- justice sotomayor: i mean, they can self-identify all they want, but can they do that? ms. lewin: yes. since 1948, israel has acted as the sovereign over western jerusalem where our client was born, and since 1967 over the entire area of jerusalem. so -- justice sotomayor: i know what it's done, but has the u.s. recognized, has any president since 1948 recognized israel's sovereignty over that area? ms. lewin: in a formal sense no. but allowing individuals to recognize that, that would not be a false statement. justice kagan ms. lewin, may i : just i know your time is but
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if i might just go back to the thought that the chief justice gave you that you agreed with. here's the way a passport begins. it begins, "the secretary of state of the united states of america hereby requests all who it may concern to permit the citizen," blah, blah, blah. that's what -- that's the -- you know, the secretary of state requests all of these who are going to be looking at this passport. and then in haig vs. agee, we described a passport as a letter of introduction in which the issuing sovereign vouches for the bearer and requests other sovereigns to aid the bearer. so this is, this passport, it seems, both on what it says itself and on what we've said about it, it's like a letter from the secretary of state. it's a communication. ms. lewin: it is a communication merely to facilitate this transfer of individuals as american citizens, not to make public statements about where they were born or where they're from or what countries the united states recognizes. if i may reserve the rest of my time.
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>> thank you, counsel. general verrilli. mr. verilli: mr. chief justice and may it please the court, let me get to the heart of the problem with section 214(d). even if section 214(d) does not officially change or formally change the recognition position of the united states, it tries to deny the president the power to give effect to our official recognition position by forcing executive branch officials to issue official diplomatic communications that contradict that position. justice roberts: if there were a law that said precisely pretty much what you just said? the law says, ok, mr. president, you can recognize whoever you want, but if you recognize this country, this government, we're going to treat it as if you hadn't recognized this government. for all purposes of domestic law, we're going to pretend we're going to operate on the assumption that you have recognized this country. mr. verilli: i think there would be limits to congress's ability to do that.
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we think that the recognition power that the president possesses necessarily includes the power to give effect to recognition decisions. justice roberts: so that law would be unconstitutional? mr. verilli: to the extent it said for all purposes, yes because -- justice roberts: well, isn't that exactly what the taiwan relations act says? what it says is, "the absence of diplomatic recognition shall not affect the application of the laws of the united states with respect to taiwan." mr. verilli: no, mr. chief justice, that's quite different. the taiwan relations act was an act that was an exercise of the necessary and proper power to implement the president's foreign relations judgment about how taiwan should be treated. justice roberts: well, let's say the president let's say the president did not want to recognize taiwan and congress passes a law that says for every purpose under american law, we will treat taiwan as if it had been recognized? mr. verilli: that might raise a serious constitution question, but that isn't the situation that -- it wasn't the case when it was enacted, it's not the case now, and it's and it's different from the current situation. the fundamental problem with section 214(d) is that it purports to try to force the executive branch to issue official diplomatic
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communications that contradict the position of the united states. justice alito: but is that really true? suppose could congress pass a law saying that every passport -- every passport issued to an american citizen must list the place of birth, including country, and that for this purpose, the country is the nation that issued the birth certificate to that individual? could congress do that? mr. verilli: i think that in a situation like that, the court ought to defer to the executive branch's judgment that the place of birth listing can have significant diplomatic consequences. we have had policies in place for decades in this country that align place of birth designations with our official recognition policy. the reason we do that is because foreign sovereigns look to these communications as indicative of where we stand on what --
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justice scalia: if it is within congress's power, what difference does it make whether it antagonizes foreign countries? mr. verilli: well, there are certain things that are within congress's power that would antagonize foreign countries that wouldn't raise a separation of powers problem, of course like a trade embargo or a travel ban. but -- justice scalia: and this may be one of them, so -- mr. verilli: this is not one of them. justice scalia: the mere fact that it upsets foreign relations doesn't prove a thing. mr. verilli: no. the critical point, your honor is that what this statute does that those other statutes don't do is it requires the executive branch, the president himself and the executive branch itself, to communicate a message that contradicts the official recognition position of the united states, undermining the president's credibility and preventing the president from being able to speak with one voice credibly. justice kennedy: but why couldn't you have a disclaimer of the kind that i've explained to the petitioners' counsel. she said that would be perfectly
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lawful, for you to say it's not the position of the state department, this is not an indication that israel is -- has jurisdiction over jerusalem. mr. verilli: your honor -- justice kennedy: why wouldn't that solve the problem? mr. verilli: it doesn't solve the problem because the issuance of the disclaimer is a credibility hit. it undermines the credibility of the president because what is think about what it's actually saying. what it's actually saying in this context is yes, we're issuing thousands of passports that identify persons born in jerusalem as being born in israel, yes, the congress of the united states required that, but pay no attention to it really, it doesn't have any bearing on recognition. justice roberts: if it had if it were such a big deal, why did the chief executive at the time sign it? mr. verilli: well, the chief executive issued a signing statement which really was, in effect, a disclaimer, in 2002. president bush's statement said in 2002, this does not change our official recognition policy and we're going to treat it as advisory, and that did not have the effect of --
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justice roberts: so we should give no weight to the fact that the chief executive signed the law that he is now saying has such a dramatic that his successor, but i gather the position is the same -- is now saying has such deleterious effects on american foreign policy? well, as a general matter, does that have any consequence at all? mr. verilli: no. i mean, i think this court held i think this court held in myers that the fact that one president signed a law into signed a law that violated separation of powers doesn't have any effect. chief justice roberts: oh, no. i know, i'm not suggesting it does, although that's a separate question. but it does go to the credibility of the assertion that this is going to have such dramatic effects on american foreign policy. mr. verrilli: i don't think that i think the credibility of the assertion is proven by history. with all due respect, mr. chief justice, even though president bush issued that statement which said this didn't change the policy of the united states and that we weren't going to enforce it because he was treating it as advisory, the consequences that ensued in the middle east in october of 2002 were that there were mass demonstrations in jerusalem, thousands of people in the streets, some turning violent. the palestinian parliament met and voted for the first time to
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declare jerusalem the capital of the palestinian state, no longer forbearing on that issue. and if you look at pages -- chief justice roberts: but that's partly because the executive branch made such a big deal out of it. i mean, they issue a statement saying, this is unconstitutional and all that. they could easily have said, this is no big deal, they're just letting whoever is born there pick the name they want to put on -- mr. verrilli: with all due respect, your honor -- chief justice roberts: nothing to see here, move on, and we're proving that by going ahead and signing it. and over the over the intervening course, the executive has litigated this. it's a self-fulfilling prophecy that it's going to be such a huge deal. mr. verrilli: mr. chief justice with all due respect, i think on this question that you're asking me, this is a place where the court should accord deference to the judgments of the executive branch and the state department, in particular. if the state department had thought, if the executive had thought that it could solve the diplomatic problem by minimizing the effect of this provision pretending as though it wasn't going to have this effect, certainly they would have followed that course.
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>> not necessarily. justice sotomayor: not -- justice sotomayor: what they're asking you to do is to look they're asking the government to lie. i'm not that's exactly what you're saying the government should the executive department should not do. mr. verrilli: i do think the problem here is that the executive made a considered judgment in 2002 that this couldn't sensibly be handled that way. that's -- >> so how are we -- mr. verrilli: what if it just says "disputed," parentheses after it, "disputed"? then i gather they wouldn't be lying. they would be telling the truth. mr. verrilli: well, i don't know. i mean, a couple things about that. first, your honor, that would have the effect of identifying the passports that were issued to people born in jerusalem on the -- because that would be the reason to put it on. but beyond that, it isn't disputed as a matter of the official position of the united states. the position of the united states -- chief justice roberts: well, it's disputed as a matter of the government of the united states. part of the government says this well -- actually, no -- i mean congress is not saying under my hypothetical, this is israel. it's saying there's a dispute about it, which i would think is
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about as true a statement as you can make. mr. verrilli: well, there's a dispute certainly among the parties of the region, but i think the whole premise of petitioner's argument here is that within the government of the united states there isn't a dispute over the recognition issue. justice breyer: can you help me with this same question? how should we approach it generally? that is to say, i can think of instances where a similar statute is serving nothing other than administrative matters the passport should be red or something -- and i can think of instances where it causes a lot of trouble. but i can think of instances like this one, and i could and you could easily replicate this controversy with israel in our imaginations, similar controversy with donetsk and the ukraine, where we make some agreement with russia and something similar comes up, or with iran, and pretend that remember that russia once invaded the northern part of
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iran. and all over the world there can be similar kinds of problems where it's debatable what the words of the passport actually mean or how they will be taken by others and what others will think they mean. now, how do we, who know little about it, determine, when it gets into the realm, that we should stay out of it and let the president and the constitution gives him that power or should some think we should always intervene, perhaps some never. what in your mind is the right standard? how do we decide? >> i do think this court, the last time the case was here said that ultimately it was up to the court to judge the constitutionality of the statute. of course, we accept that. but in doing so, we believe it is quite important that the executive branch get deference on judgments of precisely the kind that your honor has identified. this statute is a very rare passport statute. there really isn't any other passport statute like this one that purports to interject an issue of recognition policy into
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the content of passports. justice scalia: general verrilli, if we agree with the petitioner, we do not have to confront the constitutional question whether the president has exclusive power over recognition. if we agree with you, we are going to have to grapple with constitutional question, right? so maybe you want to talk about mr. verrilli: well, let me i'm delighted to talk about it, but before i do, let me actually address that. i don't think you necessarily have to address the question of exclusive power to rule for us and here's why -- i think that, given the petitioner's position that 214(d) does not change recognition, the official recognition position of the united states, and the senate amicus brief saying it doesn't change official recognition position of the united states then that's a given, that the official recognition position of the united states is that we are not recognizing any nation's sovereignty over jerusalem at this point until the parties work it out. with that as a given, the separation of powers problem
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with section 214(d) is that it forces the executive branch to engage in diplomatic communications that contradict our official recognition position and undermine the president's credibility, and that -- justice scalia: but if it does, then their argument is going to be it does amount to a -- if it does contradict it, then congress is making its own judgment about recognition. you have to confront that. are they entitled to do that? i don't see how you can avoid that question. mr. verrilli: well, i'm happy to address it. i will address it now, but i do think that you can decide the question on the ground i just decided without ultimately resolving that question. justice kennedy: couldn't you say that, at a minimum, the petitioner has conceded that it is not clear that this is recognition? mr. verrilli: yes, that's certainly the case and therefore, we take as a given that the president's position on recognition, which is the same as the position every president going back to truman, is the official position of the united states and the executive is
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being forced to issue diplomatic communications that contradict it. justice ginsburg: general verrilli, it is the requirement of place of birth on the passport, that doesn't come from the congress. that comes from the executive, right? mr. verrilli: that's correct. there's a longstanding policy there. justice ginsburg: and i thought that the purpose of birthplace identified by the government, by the executive, is to identify the person and not it's not something that the president or the executive required out of a foreign policy concern. the purpose of it was to identify the individual. isn't that right? mr. verrilli: yes, that is its primary purpose. but even though that's its primary function within the passport, it has the effect of raising diplomatic foreign policy issues about our recognition position, and that is why we have had in place official policies in the foreign affairs manual going back to the early 1960s that align decisions of place of birth with our recognition policy.
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and in fact, before they were formalized in the manual, they stretch all the way back to world war ii. it's just inevitable that foreign sovereigns are going to react to that, that the way in which we the information that we put in that -- justice sotomayor: this is a pretty rough way to identify someone. i mean, there are hundreds of john smith's in the united states. mr. verrilli: that's true justice sotomayor, but, you know and this question about whether place of birth designations are necessary on passports is actually one that congress asked the comptroller general to study back several decades ago and there were a series of studies made, and the conclusion of those studies, which you can find in the current version of the foreign affairs manual, not the one in the joint appendix, but the one on the state department's website, is that you really have to have them for two reasons. and the first is that very often foreign nations require place of birth information to let you travel to that nation, so it's going to be highly inconvenient if it's not in the passport.
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and second, law enforcement and counterterrorism officials were quite concerned that passports were going to become less effective in their efforts if you removed the place of birth designation. justice alito: can i ask you the question i asked ms. lewin. what exactly is the position of the executive regarding israel's exercise of sovereign powers in jerusalem? is it the case that it is the position of the executive that israel cannot lawfully exercise any sovereign powers within jerusalem? mr. verrilli: the position of the executive is that we recognize, as a practical matter, the authority of israel over west jerusalem. with respect to the rest of jerusalem, the issue is far more complicated. it might well be, as a practical matter, although i confess i don't specifically know the answer to the question you asked ms. lewin about the status of the birth certificate issued there, it might well be that, as a practical matter, we would accept it as evidence of birth. of course, we would also issue -- justice alito: well, it must have been accepted as evidence of birth or the passport would never have been issued.
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mr. verrilli: well, we do have the consular notification of birth. justice alito: i thought you had to provide a birth certificate -- mr. verrilli: right. but as a practical matter, i don't think one can infer anything about our recognition policy from that. we're recognizing practical reality. i do think, for example, your honor, if we were to start issuing passports to people born in the crimea tomorrow that identified russia as the country of birth, that would carry obvious implications for our foreign policy position, and it would contradict the foreign policy position in a way that could be quite deleterious. chief justice roberts: let's say there's a that passports are printed in country a, not the united states, and there's a printing plant there, and congress passes a law saying no, you must have the passports printed in country b because we don't think you should recognize country a. does that interfere with the president's recognition power? mr. verrilli: well, i'm trying try to give you a precise answer to that. if the statute said they may not
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-- passports may not be printed in country a because the united states does not recognize country a, that would be -- chief justice roberts: because congress wished the president would not recognize country a. so in response to that, we're directing that passports that are now printed in country a be printed in country b. mr. verrilli: that would be a harder case than this one, i think, because it doesn't as clearly implicate the president's ability to give effect to recognition power. and one reason it doesn't is because that doesn't affect the content of the diplomatic communication in the way that section 214(d) does. chief justice roberts: i thought your position was that the president has the exclusive right to decide what interferes with his recognition power. mr. verrilli: no, i think that the president has the right to give effect to his recognition power, and congress cannot try to command the executive branch to act in a manner itself that contradicts the president's recognition decision because that prevents the president from giving effect to that decision. and we do think, to go back to your honor's question, that it is an exclusive power with the president. it is after all, recognition is
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not lawmaking. it is an executive function. and one would, therefore, expect that it'd be assigned to the executive by the constitution and not to the congress. and when -- justice scalia: war making is an executive function, too. mr. verrilli: but with respect to -- with respect to the executive functions around recognition when congress wanted the excuse me, when the framers wanted the congress to play a role and the constitution envisions a role for the framers in those executive functions, it's prescribed. article ii gives the senate a role in confirming ambassadors it gives the senate a role in advice and consent for treaties. and there isn't anything in article ii as a structural matter that gives the congress the senate or the congress a comparable role with respect to recognition decisions. justice alito: if i think that that congress generally that congress has the authority under the constitution to require identification information in
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passports and to specify the identification information that's included, if i believe that, then the effect of your argument, i guess, is that something that congress can do is unconstitutional if it affects the recognition power -- the president's recognition authority in some way. is that -- mr. verrilli: no, our position is narrower. i think all you need to decide to decide this case in the government's favor here is that what congress can't do is use the authority it has to regulate passports, and we acknowledge, as we did in our brief, that congress has authority to regulate passports. it can't use that authority to command the executive branch to issue diplomatic communication that contradicts the government's official position on recognition. and that we would say --
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justice kennedy: i don't like to, you know, just keep going back to the same thing. it seems to me that you could draft a statement that actually furthers your position. this passport does not indicate that the government of the united states and the secretary of state recognize that israel has sovereign jurisdiction over israel, and you'd actually be making your case. mr. verrilli: i appreciate the appeal of that idea, justice kennedy, but the problem with it is that the need to make that statement doesn't further the diplomatic interest of the united states -- justice ginsburg: ms. lewin answered, i think quite candidly -- justice kennedy: but it doesn't further -- why doesn't it further it? mr. verrilli: because the very need to make the statement calls the credibility of the president's representation of our recognition position into question. and the reason -- chief justice roberts: but just like the signing statement. just like the signing statement, which said precisely what justice kennedy suggested, that the executive could do at this point. mr. verrilli: right. and it did not have and i -- but
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i think that's the point. the assigning statement was in the nature of a disclaimer and it did not prevent the damage to the credibility of the united states. justice ginsburg: general verrilli, i think the answer to the question that ms. lewin gave was that she said yes, the executive could put that on the passport. but she also said congress could then pass a law saying, this is antithetical to our view, and that doesn't have to be put on the passport. on the passport is just birthplace, israel, period. congress could pass that into law and counter whatever the president does. mr. verrilli: and i do think that's the necessary implication of the petitioner's argument here, not only that congress could forbid a disclaimer, but congress could require that the -- justice kennedy: but that law isn't in front of us. mr. verrilli: but were the court to uphold the constitutionality of the law that is in front of you, it seems to me the necessary implication of that would be that congress could prevent a disclaimer, it could require not just that israel be listed but jerusalem, israel be
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listed on a country of birth and it seems to me that those are very serious interferences with the president's -- justice sotomayor: general, if i'm understanding your narrow holding, just so that we can underscore it, what you're saying is that congress can't compel speech by the president with respect to foreign relations. mr. verrilli: i would put it a little more narrowly, your honor, that congress cannot compel the executive to issue diplomatic communications that contradict the official position of the united states on a matter of recognition. i think that's all that's the question before the court in this case. justice scalia: well, you see, i pick up this passport, and it says place of birth, israel. do i know whether this person was born in jerusalem or in haifa? mr. verrilli: no, you don't. but the -- justice scalia: so how does it how does it advertise to the world that that the president is contradicting himself?
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all you know is that the person was born in israel. it could have been anywhere in israel. mr. verrilli: the world knows that we will issue thousands of passports to people born in jerusalem identifying them as born in israel, and the world knows that we will be doing that because the congress of the united states required it. and those actions under -- justice scalia: but it is not a communication contained in the passport itself, is it? you're just saying that that this piece of legislation advertises to the world what the situation will be, but you're not compelling the president to say that this individual was born in jerusalem and we're going to say he was born in israel, because you can't tell that from the passport. mr. verrilli: you're requiring the president to make statements thousands of times that contradict the official recognition position of the united states. now, it is true that that a border guard in a country where a person is traveling won't know
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whether this particular passport is one of them, i suppose, unless they ask for place of birth information city of birth information. but unless they ask that, they won't know with the particular passport. but what everyone will know what foreign sovereigns will know, what the parties in this region will know is that thousands of times the executive branch is issuing passports that contradict our official recognition position with respect to persons born in jerusalem. justice sotomayor: general, in general, when i travel abroad and come back to the united states or when i go to a foreign country and they're stamping my passport, do they have forms that require you to identify the city? mr. verrilli: i'm not aware that they do, your honor. i don't know the answer to that. i'm not aware that they do. justice scalia: i know that some of them do. i know that some of them do. mr. verrilli: well, they may well, your honor. but i do think the essential problem here with what 214 does is that it tells the executive to communicate a message that the executive believes contradicts our position and
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undermines the president's credibility as our sole spokesman in matters of diplomacy. and there is not an issue on which the president's credibility could be more important than the question of the status of jerusalem. the question of the status of jerusalem is the most vexing and volatile and difficult diplomatic issue that this nation has faced for decades. it goes all the way back to president truman. and the fact of the matter is that the parties in the region the nations in the region, and frankly people around the world and governments around the world scrutinize every word that comes out of the united states government and every action that the united states government takes in order to see whether we can continue to be trusted as an honest broker who could stand apart from this conflict and help bring it to resolution. and there is no doubt that section 214(d), when it was enacted, had a serious adverse effect calling our credibility into question. you can just look at the
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statements from foreign parties that are in the joint appendix and the state department communiqué at pages 231 to 233. you can look at contemporaneous press accounts from that time, and it seems to me without of course, if we were required to implement this, we would do everything we could to try to mitigate the problem. but it seems to me that the right it is quite important for this court to understand that there is a very serious risk that that harm to our credibility as an honest broker on this very serious vexing issue could be called into serious question -- justice alito: why would that be so? no matter how this court decides, everyone will know what the position of the president is. everyone will know what congress thought when they passed this legislation. whatever we do, that's not going to be changed, and our decision isn't going to be based on any view that we may have about whether jerusalem should be regarded as part of israel or the capital of israel. so why will there be any effect on foreign policy except by
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people who will misunderstand the situation, either because they really don't understand it or they will exploit it in some way? mr. verrilli: i've got at least two points to make about that if i could. first, it's not a misperception. it's an accurate perception. one looks at 214 as a whole, not just 214(d). what 214 does is try to force the executive branch to take a series of steps that no nation would take if it did not recognize the sovereignty of israel over jerusalem, and that nations would only take if they did recognize the sovereignty -- justice alito: but congress did that, so nothing that we do is going to change that or change what congress thought. mr. verrilli: i think that's, with all due respect, too easy an assumption, your honor. the difference between when this statute was enacted and it did give rise to very serious problems that we had to work very hard to try to get under control. the difference between then and now, there's two very important
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differences, and they lead to a very important conclusion. the first important difference is it won't be one branch of the united states government saying that this should happen. it will be two branches of the united states government saying it should happen. it won't be that we will that this statute will have been enacted, but it won't be enforced. it will be enforced. and the consequence of those two things together is that the credibility of the executive the credibility of the president on this fundamental question of where the united states stands on the status of jerusalem until the parties work it out will inevitably and seriously be called into question and into doubt. foreign governments, foreign peoples will not be able to have complete confidence that the position that the president announces on behalf of the united states is, in fact, the position of the united states. that is exactly why section 214 violates the separation of powers, even if you conclude that congress might have some residual power, which we
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obviously strongly disagree with. the official position of the united states is that jerusalem, we don't recognize any nation's sovereignty over jerusalem until the parties have worked that issue out on their own. and what this what this statute does if it was enforced will undermine the credibility of the president's ability to maintain that critically important diplomatic position as we move forward. thank you. thank you, general. ms. lewin, you have four minutes remaining. ms. lewin: thank you, your honor. just a couple of points. justice sotomayor, this is not requesting that the government lie on a passport. as the solicitor general said, this is just recognizing a practical reality that israel is -- justice sotomayor: no, it's not. it's the place of birth. if you say israel, you believe that -- you're saying that you believe that person was born in israel. justice ginsburg: -- ms. lewin: yes. well, seven years prior to the
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passage of this legislation, congress passed the jerusalem embassy act, and in the senate brief it's actually referred amicus brief, it's referred to in footnote 10, which had required that the embassy be moved to jerusalem and provided the president with a waiver -- justice sotomayor: and there was a waiver provided and every president has exercised the waiver. ms. lewin: so this would be though, recognizing, as was said before, that there is a disagreement, but not -- justice sotomayor: how could you tell me it's not a lie? you, the united states, are being asked to put on the passport that you believe the place of birth of this individual is israel, and the government and the executive has said, no, we don't think it was israel, we think it was jerusalem. ms. lewin: but the speech is the speech of the individual who has self-identified. justice sotomayor: but the individual is not the one issuing the passport. it's the government. the document says. this is a diplomatic exchange between sovereigns. ms. lewin: but we are permitting that speech when it comes to west bank, gaza strip, a host of others. we're recognizing and allowing that speech. justice sotomayor: i take it ms. lewin, when you say the west bank, i take it you think that congress could pass the identical statute with respect to a child born in hebron, say.
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ms. lewin: saying that -- justice kagan: that that, too, is israel? ms. lewin: correct. justice kagan: yes. >> yes. ok. ms. lewin: we are providing two alternative arguments -- one saying that this is does not amount to recognition. or if the court decides to reach the separation of powers question and views this as somehow implicating the recognition clause, that at this point the law passed by congress would trump the president. allowing the state department's say-so to control because it's an expert in foreign relations would be abdicating an independent function and would turn the president into an autocrat whose word controls. we suggest that this is analogous, the recognition power, is analogous to the president's authority to enter into executive agreements to resolve foreign claims, and that just as though that is not an explicit authorization provided to the president, it's also not exclusive, and the agreements entered into by the president cannot contradict or run counter to the express will of congress.
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with regard to the international response to this, the consequences, first of all described by the solicitor general are grossly exaggerated. and what the world knows could be the first of all, the united states state department could make clear in their statements as they did with taiwan, that this does not change the united states' policy with regard to the sovereignty over jerusalem. and because the passports would be indistinguishable from those who are born elsewhere, there's no continuing statement. while this may initially have some impact, over time, and i propose a short time particularly if the united states makes that statement, this will become a nonissue because there's no continuing -- justice kagan: can i say that this seems a particularly unfortunate week to be making this kind of, "oh, it's no big deal" argument. i mean, history suggests that everything is a big deal with respect to the status of jerusalem. and right now jerusalem is a tinderbox because of issues
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about the status of and access to a particularly holy site there. and so sort of everything matters, doesn't it? ms. lewin: well, it is a sensitive issue, but to suggest that what will go on a passport as a place of birth is going to implicate or make it worse there's no evidence of that. thank you. >> thank you, counsel. the case is submitted. [captions copyright national cable satellite corp. 2015] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> president obama speaks at later, the center for american progress looks at the supreme court term.
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on the next "washington journal congo bloomberg editor derek wall back gives it -- gives the week ahead in congress. and, a case challenging federal subsidies for health care. discussing how states are preparing for the decision. later, we hear from a representative from the kessler foundation and they university of new hampshire. they discuss a survey on the state of the workplace for disabled people. "washington journal" is live every morning. you can join in the discussion on facebook and twitter. the senate foreign relations committee meets tuesday to consider legislation and ambassadorial nominations. one bill would fund the state department's operations for 2016
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. another would officially condemn war crimes in syria under the direction of president bashar al-assad. that is on c-span three. president obama spoke to reporters in germany. this is the second summit held without russia, who was disinvited over their actions in crimea. the president said leaders were able to impose sanctions against russia. if they don't abide by the current minsk agreement. other topics included immigration policy and a trade agreement with europe. president obama: good afternoon. let me begin i once again thinking chancellor merkel and
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the people of germany and bavaria for their hospitality and this summit. my stay here has been extraordinary. i wish i could stay longer. one of the pleasures of being president is scouting out places that you want to come back to, where you don't have to spend all your time in a conference room. the setting is breathtaking. our german friends have been absolutely wonderful, and the success of this summit is a tribute to their outstanding work. the g-7 represents some of the largest economies in the world but in our g-7 partners, united , states also embraces some of our strongest allies and closest friends in the world. even as we work to promote the growth that creates jobs and opportunity, we are also here to stand up for the fundamental principles that we share as democracies. for freedom, for peace for the , right of nations and peoples
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to decide their own destiny, for universal human rights and the dignity of every human being. i am pleased that here we showed that the most pressing global challenges, we stand united. we agree the best way to sustain the global economic recovery is by focusing on jobs and growth. that's what i am focused on in the united states and on friday, , we learned our economy created another 280,000 jobs in may, the strongest month of the year so far. more than 3 million new jobs over the past year, nearly the fastest pace in a decade. we have now seen five straight years of private-sector job growth, 12.6 million new jobs created, the longest streak on record. the unemployment rate is near its lowest level in seven years and wages for american workers continue to rise, and since i took office, we have cut our
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deficit i two thirds. in the global economy, america is a major source of strength. at the same time, we recognize that the global economy, while growing is still not performing , at its full potential. we agreed on a number of necessary steps. here in europe, we support efforts to find a path that enables greece to carry out the key reforms and return to growth within a strong and stable and growing eurozone. i updated my partners with congress to fast-track promotion authority so we can move forward with tpp in the asia-pacific region, and ttip in the european area. high standards to protect workers, public safety, and the environment. we continue to make progress toward a strong global climate agreement this year in paris. all the g-7 countries have now put forward our post-2020 targets for reducing carbon omissions and will continue to urge other significant emitters to do so as well.
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we will continue to work our climate finance commitments to help developing countries transition to low carbon growth. as we have done in the u.s., the g-7 agreed on the need to integrate climate risks in the development assistance and investment programs across the board, and to increase ask s -- access to risk insurance to help developing countries respond to and recover from climate related disasters. building on the power africa initiative i launched the g7 two years ago will work to , mobilize more financing for clean energy projects in africa. with respect to security, the g-7 remains strongly united in support for ukraine. we will continue to provide economic support and technical assistance that ukraine needs as it moves ahead on critical reforms to transform its economy and strengthen its democracy. as we have seen in recent days russian forces continue to operate in eastern ukraine. they are violating ukraine's
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sovereignty and territorial integrity. this is now the second year in a row the g-7 has met without russia, another example of their isolation. every member of the g-7 continue to maintain sanctions on russia for its aggression against ukraine. now it's important to recognize , the russian economy has been seriously weakened. the ruble and foreign investments are down, inflation is up, the russian central-bank has lost more than $150 billion in reserves. russian banks and firms are virtually locked out of the international markets. russian energy companies are struggling to import the services and technology they need for complex energy projects. russian defense programs have been cut off from key technologies. russia is in deep recession. so russia's actions in ukraine are hurting russia and hurting the russian people. here at the g-7, we agree that even as we will continue to seek a diplomatic solution, sanctions against russia will remain in place so long as russia
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continues to violate its obligations under the minsk agreement. our european partners reaffirm that they will maintain sanctions on russia until the minsk agreements are fully implemented which means , extending the eu existing sectoral sanctions passed july. the g-7 is making clear if necessary we stand ready to impose additional significant sanctions against russia. beyond europe, we discussed the negotiations over iran's nuclear program and remain united adding to the final stages of the talks. iran has an historic opportunity to resolve the international committee's concerns about its nuclear program and we agreed iran needs to seize that opportunity. our discussion with the iraqi prime minister and the president of tunisia and nigeria were a chance to address the threats of
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isil and boko haram rom. as many of the world's leading partners in global development are joined by leaders of ethiopia, liberia, and nigeria senegal and the african union, we discussed how to maximize the impact of our development partnerships. we agreed to continue our initiative to provide foods security and nutrition part of , our effort to lift 500 million people in developing countries out of hunger and malnutrition by 2030. we'll continue to work with our partners in west africa to get ebola cases down to zero and, as part of our health security agenda, i am pleased the g-7 made a major commitment to help 60 countries over the next five years achieve specific targets to better prevent, detect, and respond to future outbreaks before they become epidemics. finally, i want to commend chancellor merkel for assuring the summit included educational
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and economic opportunities for women and girls. the g-7 committed to expanding career training for women in our own countries and increase technical and vocational training in developing countries , which will help all of our nations prosper. again i want to thank angela and , the people of germany for their extra ordinary hospitality. i leave here confident that when it comes to the key challenges of our time, america and our closest allies stand shoulder to shoulder. with that, i will take some questions and i will start off with jeff mason of reuters. >> thank you mr. president. after your meetings here, you mentioned greece in your opening statement. do you believe the europeans are being too tough on greece in these talks and what else needs to be done on both sides to ensure there is a deal and to ensure there is not undue harm to financial markets? on a separate in somewhat related topic, the french told reporters today that you said at
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the g-7 meeting you are concerned that the dollars to strong. what did you say exactly and are you concerned that the dollars to strong? president obama: first of all don't believe unnamed quotes. i did not say that. i make a practice of not commenting on the daily fluctuations of the dollar, or any other currency. with respect to greece, not only are g-7 partners, but the imf and other institutions represented here, feel a sense of urgency in finding a path to resolve the situation there. what it's going to require is greece being serious about making some important reforms not only to satisfy creditors
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but more importantly, to create a platform whereby the greek economy can start growing again, and prosper. so the greeks are going to have to follow through, and make some tough political choices that will be good for the long-term. i also think it is going to be important for the international community, and the international financial agencies, to recognize the extraordinary challenges that greece faces. if both sides are showing sufficient flexibility, i think we can do this problem resolved. but it will require some tough decisions for all involved, and we will continue to consult with all the parties involved to try to encourage that kind of solution. >> will it happen before the deadline? president obama: everybody wants
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to make it happen. they are working hard to get it done. >> thank you, mr. president. how are frustrated are you that after you personally raised concerns about cyber security with the chinese president that there was a massive attack? it seems to have originated from china. was the chinese government involved, and as a sports fan, can you give us your reaction to the fifa scandal? president obama: with respect to fifa, i cannot comment on a pending case by our attorney general. i will say that in conversations i have had here in europe, people think it is very important for fifa to be able to operate with integrity and transparency and accountability. and so, as the investigation and charges proceed, i think we also
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have to keep in mind that, although football, soccer, depending on which side of the atlantic you live on, is a gain it is also a massive business, a source of incredible national pride. people want to make sure that it operates with integrity. the united states, by the way, since we keep on getting better and better at each world cup, we want to make sure a sport that's gaining popularity is conducted in an upright manner. i don't want to discuss, because we haven't publicly unveiled who we think may have engaged in these cyberattacks. but i can tell you that we have known for a long time that there
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are significant vulnerabilities , and that these balder abilities are going to accelerate as time goes by both in systems within government and within the private sector. this is why it is so important that congress moves forward on passing cyber legislation, cyber security legislation that we have been pushing for. over the last several years, i have been standing up for new mechanisms inside of government , for us to investigate what happens and start finding more effective solutions. part of the problem is we've got very old systems. we discovered this new breach in opm precisely because we have initiated this process of inventorying and upgrade existing vulnerabilities. -- upgrading old systems to address existing and what we are doing is growing
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agency by agency, and figuring out what can we fix, with better practices? and, better computer hygiene by personnel? and where do we need new systems and new infrastructure to protect information, not just government employees or government activities, but also most importantly, where there is an interface between government and the american people. this will be a big project. we will keep on doing it because both state and nonstate actors are sending everything they've got at trying to bridge these systems. in some cases, it is nonstate actors engaging in criminal activity and potential theft. in the case of state actors, they are probing for intelligence or, in some cases trying to bring down systems in pursuit of their various foreign-policy objectives.
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in either case, we will have to be more aggressive and more attentive than we have been in -- and this problem is not going to go away. it will accelerate. that means that we have to be as nimble, as aggressive, and as well resourced as those trying to break into the systems. justin. >> thanks, mr. president. i wanted to ask about two things on the agenda at the g-7. the first was the islamic state. you had -- you said yesterday ahead of your meeting that would assess what is working and what wasn't. i'm wondering what is not working in the fight against islamic state. in today's bilateral body, does that include additional u.s. military personnel? on trade, chancellor merkel said she was pleased to get fast-track authority. does that mean you gave her
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and other leaders assurance that it would go through the house and if it doesn't, what does that say about your ability to achieve meaningful agreements with congress for the remainder of your time in office? president obama: i'm not going to hypothesize about getting it done. i will get it done and we will hopefully get a vote soon because the right thing to do. with respect to isil, we have made significant progress in pushing back isil from areas in which they had occupied or disrupted local populations. but we have also seen areas like in ramadi, where they are displaced in one place and they come back in another. they are nimble, and they are aggressive and opportunistic. so one of the areas where we will have to improve is the speed at which we are training iraqi forces.
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where we have trained them directly and equipped them and we have a train and assist posture, they operate effectively. where we haven't, morale, lack of equipment, and other things may undermine iraqi forces so we , want to get more security forces trained and well-equipped and focused. the president of iraq was the same thing so we are reviewing a range of plans for how we might do that, essentially accelerating the number of iraqi forces that are properly trained and equipped and have a focused strategy and good leadership. when a finalized plan is presented to me by the pentagon, then i will share it with the american people. we don't yet have a complete strategy, because it requires commitments on the part of the
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iraqis as well, about how recruitment takes place, how training takes place. the details of that are not yet worked out. >> what about additional u.s. military personnel? are they under consideration? president obama: i think what is fair to say is that all of the countries in the international coalition are prepared to do more, to train iraqi security forces, if they feel like that additional work is being taken advantage of. one of the things we are still seeing in iraq is places where we have gotten more training capacity than we have recruits. so part of my discussion with the prime minister was how we make sure we get more recruits in? a big part of the answer is our outreach to sunni tribes. we have seen sunni tribes not
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only willing and prepared to fight isil, but have been successful at rebuffing isil. but it is not happening as fast as it needs to. one of the efforts i am hoping to see the prime minister and the iraqi legislature, when they are in session, is to report on a national guard that would help to devolve some of the security efforts in places like an bar to local folks, and get sunni tribes involved more rapidly. this is what helped defeat a key why -- aqi, the precursor to isil in 2006. without that participation success is more difficult to
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hold those areas. the other area where we have to make a lot more progress is on stemming the flow of foreign fighters. you will recall that i hosted a human general's -- a u.n. security council meeting on this issue. we have made some progress but not enough. we are still seeing thousands of foreign fighters flowing into first syria, and oftentimes ultimately into iraq. not all of that is preventable but a lot of it is. , if we have better cooperation and coordination and intelligence, if we are monitoring what's happening at the turkish-syria border more effectively, this is an area where we have been seeking deeper cooperation with turkish authorities, who recognize it's a problem, but haven't fully
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ramped up the capacity they need. this is something i think we have to spend a lot of time on. if we can cut off some of that foreign fighter flow, then we are able to isolate and wear out isil forces that are already there, because we are taking them off the battlefield. if they are being replenished, it does not solve the problem over the long term. the final point i would emphasize is the political agenda of inclusion remains as important as the military that is out there. if sunnis, kurds and shia all feel as if their concerns are being addressed, and that operating within a legitimate political structure can meet their need for security prosperity nondiscrimination
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then we will have an easier time. the good news is the prime minister is very much committed to that principle. but he is inheriting a legacy of a lot of mistrust between various groups in iraq, and has had to take a lot of political risks, in some cases, there are efforts to undermine that trust. we will continue to monitor that and support those who are on the right side of the issue. colleen nelson. >> thank you mr. president. you mentioned the u.s. and its european allies have reached a consensus on extending the sanctions against russia. is there a consensus about what specifically the next step should be if russia continues to violate the minsk agreement? and also, can you determine -- can you deter russian aggression in other parts of eastern europe without a permanent u.s. troop presence? i wanted to ask you about the possibility of the court battle of your actions on immigration.
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could that extend late into your term. you think there's anything you can do for the people who would have benefited from that program, and now are in limbo? how do you view the possibility of your term ending without a -- without accomplishing your goals on immigration? president obama: on ukraine and russia and minsk, there is strong consensus that we need to keep pushing russia to abide by the terms of the minskto support and encourage ukraine to meet its obligations under minsk. until that is completed sanctions remain in place. there was discussion about additional steps that we might need to take if russia, working through separatists, doubled down on aggression inside of ukraine.
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those discussions are taking place at a technical level, not yet at a political level, because i think the first goal going into the european council meeting coming up is just rolling over the extinct -- rolling over the existing sanctions. at a technical level, we want to be prepared. our hope is that we don't have to take additional steps. the minsk agreement can be met and i want to give enormous , credit to chancellor merkel , along with the president, who have shown extraordinary patience in trying to get that done. ultimately, this is going to be an issue for mr. putin. he's got to make a decision to either continue to wreck his
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country's economy and continue russia's isolation in pursuit of a wrongheaded desire to re-create the glories of the soviet empire, or does he recognize that russia's greatness does not depend on violating the territorial integrity and sovereignty of other countries? as i mentioned earlier, the cost that the russian people are bearing are severe. that is being felt. it may not always be understood why they are suffering, because a state media inside russia and propaganda coming out of state media in russia and to russian speakers.
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the truth of the matter is, the russian people would greatly benefit. ironically one of the rationales putin uses is to protect russian speakers in ukraine. but they are bearing the brunt of the fighting. their economies -- their economy has collapsed. there homes may have been to -- destroyed. they are suffering. the best way for them to stop suffering is if the minsk agreement is fully implemented. oh, immigration. with respect to immigration, obviously, i am frustrated by a disparate court ruling that is winding its way through the appeals process. we are being as aggressive as we can legally to first and foremost appeal that ruling and
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then to implement those elements of immigration executive actions that were not challenged in court. obviously, the centerpiece, one of the key provisions for me was being able to get folks who are undocumented, to go through a background check, a criminal background check, pay back taxes, and then happy legal status. -- then have a legal status. that requires an entire administrative apparatus and us getting them to apply and come clean. i made a decision which i think is the right one, that we should not accept applications until the legal status of this is clarified. i am absolutely convinced this is well within my legal
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authority, the department of homeland security's legal authority, if you look at the precedent, if you look at the traditional discretion that the executive branch possesses when it comes to applying immigration laws, i am convinced what we are doing is lawful and our lawyers are convinced what we are doing is lawful. but the united states is a government of laws and separations of power. even if it is an individual district court judge making this determination, we have to go through the process to challenge it. until we get clarity there, i don't want to bring people in and have them apply and jump through a lot of hoops only to have it delayed and deferred further. of course, there is one great way to solve the problem which is congress going ahead and acting. that would obviate the need for executive actions. the majority of the american
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people, i think still want to , see that happen. i suspect it will be a major topic of the next presidential campaign. and so we will continue to push as hard as we can on all fronts. we want to fix the broken immigration system, administrative leave, we will be prepared if and when we get the kind of rolling i think we should've gotten in the first place about our authority to go ahead and implement. ultimately, this has never fully replace the need for congress to act. my hope is that, after a number of the other issues we are working on currently get cleared, that there will be quiet conversations that start back up again particularly in , the republican party about the shortsighted approach they are taking when it comes to
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immigration. ok. christie. >> thank you, mr. president. more than 6 million americans may soon lose health insurance if the supreme court backs the latest challenge to the care act. a growing number of states are looking for assistance as they face the prospect that their residents may lose federal insurance subsidies and their insurance markets may collapse. yet your administration is given , very little to no guidance on how states can prepare. what can you tell state leaders and advocates who worry that the health care markets in half the country maybe thrown into chaos? president obama: what i can tell state leaders is that, under well-established precedent there is no reason the existing exchanges should be
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overturned through a court case. it has been well-documented that those who passed the legislation never intended for folks who were going through the federal exchange not to have citizens get subsidies. that is not just the opinion of me, of democrats. it is the opinion of the republicans who worked on the legislation. under well-established statutory interpretation approaches that have been repeatedly employed, not just by liberal democratic judges but by conservative judges like some on the current su