roberta this is the last thing : in the world republicans in congress want to deal with. mayors no way. you see the presidential republican candidates contorting themselves and pretzels odyssey. they say they are against marriage equality but they would go to a gay marriage. ari: broadly, let's be careful to visit pretzel are just pieces of the wedding cake? roberta they would like to have : waited longer but the sixth circuit me that not really a choice. ari: i want to get, let's take to questions at a time. >> my question is regarding the fair housing case. as far as if disparate impact if they decide it has no place in the fair housing act, how does that affect some hud programs? i know they have a program coming out this summer, or a proposal coming out this summer which basically was going to require state agencies to look at data on the map and assess

where their services are. ari: hold it and we will take one more. >> i'm with the financial consulting firm. one issue that it neither interestingly on the gay marriage issue was they came out, both justices, is that these arguments just a pretense? doesn't a pretext argument hold for the two other issues that we also elaborate both senator -- both in the fair housing and the obamacare argument? lisa so, if the supreme court : strikes down disparate impact under the fair housing act actually will not affect the affirmative we are housing will. that particular rule is being promulgated under a different section of the law. affirmatively furthering their housing and disparate impact are two distinctly different things.

but one of the things that you may consider when you're conducting your analysis, under the provision, is whether or not there are any policies, for example, zoning ordinances that had been passed by the principality that have a disparate effect on a particular protected class. the disparate impact is a component in terms of considering whether you are affirmatively furthering fair housing but they are cute distinct things that i don't think disparate come into court to strike and disparate impact what you do not expect it to do, but let's say that it does, it will not impede the furtherance of the rule. afro deadly furthering fair housing is not anything new. it's been in existence for decades. municipal seven doing it for decades.

it's just that for decades they've been calling it the analysis. now that would be called the fair housing assessment. it is empowering the municipalities with the data that they will need to adequate and accurately 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 kind of online, using a third branch which is supposed to be a part of our checks and balances, our system of checks and balances would align itself more with this kind of ideological who saved that we see taking place in the conservative movement? and so whether it's an issue like immigration that we are currently dealing with down in texas or if it's an issue around environment or civil rights,

there are questions that are currently happening come with this roberts court ally itself where what we are seen as a naked direction to push the court and to push the country in very specific ways. and so i think a lot of us would say for the court to overturn years of precedent, finding situations where there hasn't been a circuit split, taking cases that many people just assume the court would never 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 kind of partisan politics, is something changing with this particular court? i think it's a fair question. lisa can i jump in real quick? : i want to go back to an issue that elizabeth had raised

earlier if we don't have another question. ari: do we have other questions or comments? go right ahead. lisa: thanks. so i want to begin a little bit deeper on this sort of plaintext of the issue. and alito focusing at least another housing case on the fact that no, you just look at the plane text of the law as it was written in 1968. and if the plaintext of the law as it was written in 1968 didn't mean to include disparate impact you cannot include disparate impact. but in opposition to that justice scalia went to a very prolonged discussion about the fact that you to look at the law holistically. if you look at the law in all of its elements when you are trying to determine whether or not there was a statutory intent for whatever the question is.

and i think that's very important going back to the point and made earlier, because in my mind, if scalia votes against disparate impact in this particular case, he's going against the precedent -- the belief he is already set forth and it does raise for me this protection issue, michele, you're talking about like what is your real purpose? and i think it opens up a whole new can of worms at least for scalia, not for a leader but certainly for scalia it does. ari: want to go to kind of closing foster i want to doublecheck, commit any other questions or comments? there is one. >> i'm not affiliated with anything, but my question is what will the republicans do if obama, the obamacare gets decided the other way?

they will have the same kind of problem that they would in a same-sex marriage thing. they will have a mess. everything is kind of build on this one thing and they will pick it apart and then what will they do? no one is going to like the chaos that results. elizabeth you are absolutely : right. of course a lot has been written in the preceding weeks and months about exactly the issue that you're identifying, it usually no backup plan for what's going to happen if the supreme court strikes down the subsidies. what's interesting about that is what impact that has 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 getting reprinted care for the first time are going to have it snatched away from them. you know, the justices are people. they read the newspapers. their clerks with the newspapers. what those of us that are difficult these issues are always talk about what can we do, what can we do? we really don't know how much of an impact it has on the justices to realize that we hope that it makes a difference for the justices to understand just how horrible it will be if the tax subsidies are struck down. ari: but in fairness, they would say that a punitively or negative outcome does not bind their decision because they policy concern. elizabeth: that's exactly right but in this case as in a number of cases that have gone the wrong way, there is at least a

fair reading of the statute that comes out the right way. and as clinton has said, a much fair reading of the statute that comes out to uphold the subsidies. ian: i will say two things. one is to the extent that are justices who are partisan reasons motivated to decide what the point is, i think it is really helpful a lot of helpful a lot of political analysts have weighed in and pointed out that this may not be so good for the republican party. so if they aren't willing to do the right thing because they're just following the law, maybe they will do the right thing out of some other concern. that said, if they do to the wrong thing i think we already have a pretty good indicator of what's going to happen because we have seen it happen that the medicaid expansion.

what we've 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 him literally turn down free money. effect with the soviets the affordable care act don't even have to country with this extension at all because they have an ideological to all things obamacare. so i don't think there's any question regardless of what the politics are that there will be many states what the supreme court does the wrong thing. subsidies would get cut off and that means there's a brief that was submitted by several public health advocates have predicted that 10,000 people, about 10,000 people will die every year if the tax credits are cut off. that's a lot of mothers who don't get to hold the suns again, a lot of husbands who don't get to kiss their wives again if this goes the wrong way. ari: i want to go to closing comments, which can be whatever you want to wrap on. we will go down the line for anything you didn't get to say. for a response to a bit of a paradox of the court that it would close on as we think about

so many of these important public issues that the court is potentially right, right in and of acting one way or another. i think there's a paradox about the supreme court as the third branch of government is always interesting for folks who care deeply our want of impact, unlike the other two branches the court doesn't exist to respond to the public. it's very as we said this rule is the opposite. at the most basic level if you write a letter to your member of congress our find it anything they would be at least some notion of respond to you or pretended to care what you think at least one of your idealistic or cynical. is at least that structure. therebut isn't it into court are quite the opposite. it would've been around the culture of the court is the idea of insulating the court and justices. they do that themselves in small ways they don't allow television

cameras in come at our structure and constitution does with tenure and a lack of elections and a real strong tradition in -- and forced in our body politics against we michael obligor political pressure on the justices. and yet when you think about several of these cases and others term will be defined, there is an extensive discussion i was even in oral argument as we saw in the marriage case about what the public gets it. and for marriage equality is an area of lower many people who fashion themselves as egalitarians, a quality oriented to progressives, are very positive about the role of the court might not have much of 1.1 people positive about the court's support of the civil rights movement. it is a point of pride in our history and yet it is not one of the think can be fairly argued as independently arising from justices who often talk about how strings of these concepts are to them, however growing up

as kids the notion people as syngenta getting married were unimaginable to quote one judge. there was an interesting paradox when the one in the court is insulated and once to be so come and get on the other hand, particularly on airs of what many people consider a march march for social progress, there is incredible attention to what the public is that, are we being pushed from the grassroots up? if we have what many people consider that a marriage equality, a historic event this month potentially coming from the court it would seem to me to get a response for those who want to speak to this is not a closing thought, it would seem to me to be very much a direct response to what we the people have been doing and growing and evolving on and not some other independent legal conclusion that came from some legal doctrine. so that's one thing about thinking about with this term. let's get thoughts and closing for each of her expert panelists. michelle first off i think we're : all time but probably descended because we're at a panel talking about supreme

court, right? but i think what's fascinating is the kind of look at the arc of history. you can look at dred scott and then you can look at where the court was in brown and you can see the evolution, you see a growth. the same thing as you look at kind of the marriage equality cases. you can see where we were even when windsor happened to where we are now. i would like to believe that the most americans like to believe that somehow the court is a part of our system that is just untouchable, that you can't reach, that somehow they are not connected to all of us broadly. they are. they are real people. they look at the news. interconnected and they pay attention to the arc of human history. and so something in me believes that the roberts court particularly the chief justice here, is looking and paying attention to the way that people are continuing to lose faith in

the institution of the court as a whole, as a separate kind of independent about the politics body. i think that that's a real concern for the chief justice, as it should be. because we see a 10% approval rate for congress. i am a former congressional staffers on why people hate on congress. it makes sense sometimes, but the court doesn't want to have those same numbers. and so it's very real for them to watch what the american people, where the american people are, how these decisions affect real people. the fact that they're potentially 10,000 people who could die when subsidies are taken away, the fact that jeff -- you have some states where you can be married in other states that you can't seems kind of, does it seem, doesn't comprehend for some of the justices ensure that with some of it back and forth in the most recent oral arguments.

and so i would like to believe again this is my optimistic i think my head was raised all the questions that the court will do the right thing. i think the court is paying attention to deplete the american people have a role to play as the court considers these decisions. and with a question obviously the fidelity must always be to the constitution and to the interpretation. the believe that the constitution is a living and breathing document for a reason because the arc of history in our people and we are as americans move and changes through history. and that counts for something. roberta i'm just going to echo : the comments that have been made. judges after all as i said are human beings. i think even they would admit

that. so there impacted by the same kinds of things that human beings are anti-think, based on not only legal arguments, kind of emotion and morality et cetera. we all do. what's amazing in america called the contest is the arguments have not changed. one of the reasons e.g. wind had to go to toronto to get married instead of in our home state of new york is it's my fault the i argued that new york marriage case in 2006 and lost it. not a single argument change. every argument they make it is exactly the same. what has changes the ability of judges to hear those arguments. there's no doubt that what made that change is change in american people. it is a change in moral understanding about who you are gay neighbor and gay colleague and friend and family member is. that only happened because people came out of the closet. all of the justices know people who are gay. that makes it very hard in that context is it's ok to treat

them, to have discrimination under the law. ari: so this is a very interesting transitional period i think for the supreme court. and blaming by that is if you go back 100 years in supreme court history, the supreme court was an abomination. they struck down child labor laws, they struck down minimum wage. the court had basically set itself up as a nation since sure, if they saw a lot of it like they would strike it down just because they didn't like it. and we got out of the air and then there was the warren court era with the court, i think the extent do people think of the warren court as being protected in pushing the boundaries of law, i think that is exaggerated but it is certainly true that liberals saw it loss of life -- like. other interesting thing happened in nixon's that the second bush administration, which is that conservatives having seen what it was like to go over and over again being on the losing end of the supreme court decision

decide it didn't like getting very much. they decided they did not like that feeling very much, so much he started to have a meaningful movement for conservative judicial restraint and. you see that in the rhetoric that comes out of reagan on the second president bush. they were quite bad on some but a lot of issues, nixon, reagan bush way of looking at judges was extraordinarily constrained compared to conservatives have looked at the law in the past. now, and it happened sometime around january 20, 2009, that

emphasis, that focus on restraint is very much on the wane in conservative circles or you go to the site and i can put every year, they had a whole panel of why we shouldn't have discrimination laws last year. to help them weather should have a minimum wage. and so i think the question right now for the supreme court is whether the conservatives on the court are going to still embrace a more restrained vision that was dominant for a while, but whether they will take us back to the bridge in in the 19th century competitor know the answer to that question. lisa: i totally agree that justices are human. and that evolve and that they do pay attention to public opinion. i also believe they are very smart and crafty. and that when they make decisions to impede on our rights or to limit or takeback rights that we already have, that they can frame those decisions in a way that on its -- a façade that has its

appearance of trying to see, seem like they're moving us in the right direction, so take justice roberts quote, right, at best way to stop discrimination based on race is to stop discriminating based on race. it seems like the right thing to say, it sounds right on its face but when you give back the layers of that onion, a very very dangerous thing because it is rooted in something, rooted in an argument that i hear oftentimes in my consulting work when i work with lenders and i get this response from executives who say, we don't discriminate. in fact, i don't even see race , i don't even see color. and on one element that's offensive. it is like you coming to me and saying i don't recognize that you're a woman that i am a woman. yes, i am a person of color. it's insensitive for utility don't see that educate be prejudicial over discriminate because you don't see race.

you are colorblind, right? and that is the argument that justice roberts is saying their admirers bonds to that is the best way to stop discriminating based on the race is to see it in the first place. and if you adopt laws that impede us from being able to see race discrimination, you are perpetuating segregation. you are perpetuating the systemic practices and institutions that promote race discrimination, gender discrimination, et cetera. elizabeth i share ian's look at : the arc of the court began to say earlier what i fear is this court is counter progressive in that there will be efforts to address social problems as we go forward and the court make it cash may stand in the way of those. i don't think we can afford as a country not to address some very

serious social issues. one of the impacts of the court decision not to expand or not to allow expanding medicaid is that there are a million african-americans in texas florida and georgia who are in the coverage gap, who get no health insurance as a result of that decision. a million african-americans. and just in d.c., residents of ward seven are much more likely than anybody else in the city to suffer from cardiovascular disease. residents of ward seven and eight are tied for the top obesity rates. we can't 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 three cases is that there is so much momentum across the nation.

there's been so much momentum toward marriage equality. and as we talked about there's been so much publicity about the fact that people who have health care don't want to give it up. and maybe what we have to do that we just have to be that loud about what we care about, if the court is tending toward stopping those efforts to address social ill. then we just have to be louder. ari: all right. these join me in welcoming thanking our panel for this great conversation. >> on the next washington journal, editor darrell walbeck gives an update on the week ahead in congress. then as the supreme court prepares to rule on king versus burwell, challenging subsidies we are joined by alan wild to

discuss how states are preparing. it are we here roger derose from the kessler foundation and andrew from the university of new hampshire disability research. they discuss and new survey on the workplace for disabled people. washington journal is live every morning. the supreme court monday struck down a law that requires the state department to list israel as the birthplace for americans born in jerusalem on u.s. passports. the high court decided 6-3 that congress overstepped bounds in 2002. the president has the exclusive power to recognize foreign nations. chief justice john roberts and justices scalia and alito attended. next, the oral argument. this is in an hour.

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, 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? 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 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 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, 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 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 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 -- 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 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 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 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 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 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 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 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 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 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? 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. 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. 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 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 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. 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 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 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 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. >> 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. 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 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 -- 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 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 -- 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 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. >> 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 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 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 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 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 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. 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. 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. 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 -- 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 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 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 -- 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 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 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? 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 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 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 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 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 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 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. chief justice roberts: 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 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. 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. 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 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.

>> the house rules committee meets today to consider four rules for the defense spending bill and a rule that relates to labeling food from a broad. see it live on c-span3. next a discussion on how the clintons raised the $2 billion for the global initiative. this is 40 minutes. as promised, david fahrenthold of the washington post. he is a reporter. a recent look at the clinton foundation. how the clintons built a $2 billion military. good morning. one look at this? guest: it has been in the news. as hillary clinton got it -- got

into politics. we were struck by how you had contrasting images of the clinton foundation. people saw it as the red cross that did all this great good before she started writing the second time. but as we see more of her connections to the foundation it has been cast in it different light as he saw the stephanopoulos coverage. it was like the slush fund. it was a clinton put cooperation that have the name foundation. so we wanted to explain from the beginning what it was and what it was not. host: with that in mind, what is it not and what is the hybrid? guest: it is a charitable foundation. a large and wealthy one. it does a lot of good. it channels money to great causes. interesting thing is that it is not -- it was not built in any deliberate way. it was not like they sat down when clinton got out of cause asked when clinton got out of office and say we will go into this area or that.

jimmy carter has done focused things with similar topics, so it was not like that. the topics the clinton foundation is involving itself in is the things that caught clinton's eye. age in africa. child obesity. the only thing they have in common was him. he saw something he was interested in or his friends sought so they branched out. also, clinton thinks of himself as a convener. he is not a philanthropist that gathers money and spend it. if you have $1 billion, you can use the clinton foundation as a conduit and as it goes by clinton gives it his prestige. the foundation also has an apparatus to see if or you are giving is working. that is the charitable part. along the way, there has been this involvement with the clinton political machine.

bill clinton's a's had jobs in the foundation and as hillary clinton has prepared a second presidential run, some of her eight have been paid employees are consultants for the foundation. her political operation has been entwined with the foundation. host: what is the specific role of bill, hillary, and clinton and do they get paid? guest: they are not pay. they are on the foundation -- hillary is not. she was but now she is not. bill clinton gets paid to do speeches. he is paid by people who do donations and also gets paid for speeches on how the foundation works. so he does not get paid by the foundation but by people who donate. host: it is not pay to the foundation and then directed to him? guest: been your times had a story about this charity run by a czhech model and he was paid

to show there. and sometimes, you can pay him to show up or you could pay him to talk about the foundation how it does for the world. host: what about hillary clinton and -- guest: bill clinton set this up to be close to the wealthy and powerful. it is close to wealthy and powerful interests, take their money, and it blesses their money as it goes by and gives it the pristine each. that is how it works. that is how bill set it up. not a hillary clinton wants to run for president, this same feature, all those people, it looks like they paid exclusively to be an exclusive clinton family network. and if she becomes president

these interests can say they gave to the bill, hillary, and chelsea clinton foundation. she could have firewall this off, saying this is her husband's foundation and she admires the work. but she chose tom price find herself with it that makes it hard for her to say that -- host: whether firewalls in place when she was secretary of state? guest: yes. she had a different job and there was a lot of this closure. the moment the administration set limits on what kinds of countries and people could you to the foundation. that was imperfect because the foundation had rogan and said independent entities. it appeared some of those did not follow those rules as well as the main foundation, but that was the arrangement when she was secretary of state. now that she is not anymore, those rules have changed. host: david van pelt, lead

writer of a piece looking at the clinton foundation at how it works on "the washington post." if you want to ask questions about what you have heard, (202) 748-8001 for republicans, (202) 748-8000 for democrats, and for independents, (202) 748-8002. if you want to tweak your thoughts, @cspanwj and post on our facebook at facebook.com/cspan. the foreign governments angle how many foreign countries is the clinton foundation have a roller presence in? guest: i would say 180 were their work is in. only about 195 countries according to the state department. they have their presence in a lot of countries. a lot of the work is done by the clinton health access initiative which was supposed to lower the cost of aids drugs and countries. they lower the cost, gets drugs

to provide lower-cost drugs, but also do work to make sure the countries that get those drugs find aids patients, test people and get the drugs that most efficiently. that is what a lot of there on the ground impact area but they get impact in 180 countries. host: one of those countries that came out in those is sweden. could you tie that up for us? guest: i do not know much about that. someone else handle that. if i talked about it, i might be wrong. as far as i understand, it had to do with the rules of whether certain countries could donate to the foundation but i do not know enough to talk about it. host: john from montana, you are on our independent line. go ahead. caller: your young guest mentioned the fact that what caught bill clinton's i was

foundations he wanted to get to and things he wanted to help. i can think of other things that caught his eye. i will like your guest to a comment on the past scandals. even the pedophile guy who flew to an island. where there is smoke, there is fired, young man. i would like him to comment on that. guest: the scandal part of bill clinton, one of the things i will say, the role -- you can read this foundation as a way for clinton to transform his persona. he goes out of office under a sort of cloud. we talked a lot how in 2001 after leaving office, he sort of lost. his wife is in the senate, his daughter is at stanford and then oxford. he is stuck at home and stewing about legal bills and all the

bad press. apparently someone had given him a tivo -- steven spielberg -- and he sat watching old movies. i think he was both a loans -- alone and lost it did not have a sense of his role in the world and unhappy that he had gone out on this low note after being president eight years. a lot of the work he has done in the foundation is him repositioning himself in the world. if you look back at where he was and where he is now being able to be in a global conference dedicated to him the wealthy being with him -- giving money to be with him. that is an amazing turnaround. host: chicago heights, illinois annette, you're up next. caller: i have a, and question about hillary clinton. i think that nobody really cares about how much money she has. most people are concerned about what she can do for us. we are not concerned about who

she is working with as far as the initiatives. she sounds like someone who cares about our issues. income inequality. voting rights. trying to help every day blue-collar workers get ahead. that is all we care about. we understand that republicans are angry and they are the ones who kind of a strict and make things difficult for working-class people. my question is, why it is no one talking about the republican money? there are a lot of rich republicans running and no one is talking about their money. i can tell you one thing. myself and my friends, we only care about what she can do for us. we think she's and's -- we think she stands for the working-class americans. guest: that is an interesting question about whether clinton's money matters.

i see your point about what it matters is what she cares about. it is different with the foundation. the clinton foundation is a charitable organization that does not pay hillary clinton. the question is her associations with people on wall street and around the world, rich countries. and the political context, there is something related to her wealth. the problem for her politically is going to be we have seen her casting herself as a champion of the middle class. taking some of the language john edwards and those of war and has used. there are two americas. the rich have too much and the poor have too little and there is too much income inequality. the associations she has treated in the foundation and the connections she made their and her own personal wealth will be used against her if that is the message she is trying to use because in an academic or political sense, she understands

the importance of pushing for the middle class, but it is not something she can feel and her bones with the life she leaves and the people she is associated with. host: does she get called out for that kind of thing? guest: i am sure. think about marco rubio, scott walker. if we get into a general election, one of those guys says my dad grew up bussing tables, in the case of marco rubio. i built myself up from nothing i still ride my motorcycle. all of the cultural associations those guys will bring up if they end up running against hillary clinton in the general election. even if she has the right rhetoric, she has no cultural touch downs and part of these associations and because she has basically been in public office since 1992 and even before then, the governor's mansion. it will be hard for her to create the sense that she understands it. host: little rock, arkansas. richard, good morning. caller: we have no they -- we

have known about the clinton since they started here. a quick question and comment. as i understand, the foundation pays out less than 25% of the money it takes in to charity. so if you donate one dollar, $.75 goes in and they are paying for meals and salaries in all that and $.25 or less goes to the actual charities. as far something else another caller said, you hang around with and how you make your money is important. there is a reason the clintons have not carry arkansas in any presidential election. just see what hillary has done since she got into public office. judge her from that. guest: the question about the way the foundation accounts for its money. there have been a lot of reports about that. there are two main organizations that rate charities. they look at their finances and decide whether they are giving enough to the causes they claim

to focus on. something like 80 or 90% of their money actually goes to a charitable purpose. it is confusing because it depends on whether you count travel pair a lot of what the clinton foundation uses is called the clinton global initiative, what i was discussing earlier. a giant convention in new york every year. produces a lot of the pledges and commitments they use the rest of the year. if you count that as a convention, it looks like they give a less fraction of their money to charitable work. if you counted as charitable work, it looks like a lot more. the foundation got an a out of a skill ago's to a plus. -- scale that goes to a+. host: does provide a way to measurably prove whether this foundation is having an effect?

guest: the clinton foundation as i said earlier, if you give a bunch of money, $100 million part of my gift is giving money to the clinton foundation to monitor that gift. they say all but a tiny fraction less than 10% of their commitments after know to be successful. that is their accounting for it, not my accounting. we did not go back and look at all of those hundreds of pledges. but if you listen to them, they say more than 90% are successful. host: is a normal for a foundation not to be funded by the people setting it up? guest: that is what is so interesting about this story. you think of a foundation, you think of andrew carnegie or any of these american philanthropist swear they matched money and gave it away. clinton has this interesting view he calls himself the convener. he takes rich people's money and

wrangles it, packages that for war people. it has a much greater impact than his own personal wealth though that is pretty great. the downside is you are tied to the people whose money -- back to come down in a couple of wasted one thing you're worried about is people whose money you convene might run out of money. clinton sat next to a interparty nest a millionaire. they go to africa together. they set up a $100 million fund funded by this guy. that is before the financial crisis. tom was is a lot of money and cannot spend $100 million. the thing they set up with him with his money helping small farmers and coffee farmers come all the sudden he can only afford to fund part of it. that is one downside and the other is what we are seeing lately.

both in haiti and in other places, it turns out those people by associating with clinton, at these big conferences, they have made lucrative deals and those folks have used the clinton foundation in a way that was not completely charitable. you could argue whether that is an unfortunate side effect or a fine side effect. that affects your view of the clinton foundation there that is the downside, you do not control whose money comes in. you do not control what they do with that. host: david fahrenthold talking about the clinton foundation. europe next, good morning. caller: i want to recap what the german said about the clinton foundation. i know he is trying to remain neutral. it seems to me going thing he can report is that the clinton foundation, a hybrid.

however he said is not useful for political purposes. they're not getting paid off of it. they do not receive a paycheck. if bill clinton did not run the clinton foundation, he still would see large checks. george bush, 30% in our own country, but he still receives large checks. it seems to me someone can run a capitalist company and they receive less questions about her husband who is an organization that takes from the wealthy and gives to the poor. the clintons have been around a long time and i think maybe if foxnews wants to focus on something, they can find it out there. to use a charity i have heard the number on fox news. 25%?

you are saying they're giving more than 80 or 90% going directly to the work. can you answer this question for me -- do you find any quid pro quo? that is what we have heard. clinton goes to people and promises them favors in order to get a donation to the clinton foundation, as if she cannot do it in a better way. i appreciate ringing on such a neutral guy, but you can let the cat out of a bag. there is nothing wrong with this program. thank you very much. guest: let's start with that question. we did not find any p or what we were doing in the story was not to look for that kind of thing in any particular donation third it was to tell the story of how it began any -- and got to where it is today p or my colleagues did a lot of other reporting about individual gifts and relationships through the

clinton foundation. today we did not find it or included in the story, it was not really the purpose to dig that deeply into the relationship. i do not think secretary clinton's is greater detractors or promise a secret quid pro quo. i know a lot of folks will be looking at that. it does not exist. to talk about the foundation and how we should think about it related to hillary clinton, to me the most important point is what i said earlier about the idea where there should have been or could have been a firewall between her and the foundation. if the foundation were purely bill clinton's, and there were be a second order of whether somebody give a big order to clinton's's foundation, he has his own global standing. it is operably easier for her to defend. the degree to which she hand her aides and ideas have been

wrapped into this, after she is secretary of state she comes back to the foundation and starts a couple of initiatives that are primarily her ideas about helping women around the world, small businesses. the degree to which she has wrapped her own people and ideas and identity in the foundation, not to say there is anything wrong with that but it will make it harder for her to say, there was nothing there. because she has chosen to be part of the foundation in a way she had not been before. host: one name that comes up is sidney blumenthal. guest: a long time clinton aide for a long time. after bill clinton left office, he had one point got a consulting job from the clinton foundation geared at that time, hillary clinton was secretary of state and sidney blumenthal was a reporter for the new york

times, that channel intelligence from libya. libya was sort of chaotic and they were trying to figure out what to do there. he was sending these that channel television reports. he was working for businessmen who had investments in libya hoping one particular group of people in one particular set of outcomes happen spare passing this intelligence to hillary clinton not an entirely new trolled server. it was an interesting view. you can see it in the mouth. a hacker found them. even though this guy is not in libya, does not know that much about libya as soon as that intelligence comes in, she passes that out to the main state. it raised questions about the degree to which cronies would have that kind of influence even though they do not have actual expertise. that person was employed by the clinton foundation briefly. host: amir, hello. caller: thank you for accepting

my call. as we were warned 30 years ago tom a we must stand up against evil. as your guest is implying, the clinton foundation, the clintons are evil. thank you. guest: i have gone from neutral observer downhill pretty quickly. it is important for us to talk about this foundation in as detailed a possible way. understand how it works because it will be a big deal in the next year. it is one of the most important things in her family's's life and her life. it certainly will be a campaign issue. the sooner we understand what it is and how it works, the better we will evaluate her. if we do strawmen, one that it is a red cross or an evil slush fund, we will not figure out how it works. host: texas, pat, go ahead. caller: i was wondering how much

investigations you have done on similar foundations like the reagan foundation, carson foundations, they all do the same thing here is what is so different from the clintons and how much does jeb bush -- benefited from obamacare? guest: the interesting comparison with past residential foundations, it is interesting but not that obstructive shared none of those, at least the most recent folks would run again for president. a lot of times, the foundation mainly focuses on the library. jimmy carter has done some work on habitat for humanity. that is what makes this an interesting story for us.

there is a potential, this was created to be a permanent residency for bill clinton. it is seen by outsiders in a and you see the foundation trying to retool itself to be the foundation of a future possible president. two totally said -- total sets of needs. no one is really looking hard at what our next president does and future presidents because it is totally different and a much more severe set of needs. greater demand for transparency. one transition into the other we have never seen that before. host: have there been discussions about how it should operate if hillary clinton becomes president of the united states question mark -- states? guest: yes. the fundraising has been great when hillary clinton is running for president. they made a lot of money. hillary clinton runs for and

becomes resident, then you cannot have a sitting president taking donations from these equal. her role would have to diminish and the foundation itself would have to change. he wanted to do things mainly overseas because he wanted to stay out of the way of domestic politics. a sitting president, where would you put something that it would not affect the domain of the president of the united states, that would be really hard. the last few years of the clinton foundation, the fundraising has been partly based on the idea that maybe hillary clinton will become president or become powerful again. if that does not happen where does this go? what is the endpoint and what does it take him? either way, the outcome of the election will change the foundation. host: washington, d.c. caller: i had a question and a

brief comment. who were the top 10 donors to the foundation or to you the most interesting donors and what do they expect to gain from giving that money and rubbing elbows? my question or suggestion is i wish they would also, and i like bill clinton and i think he is a nice guy. but i wish they would focus on 600,000 residents of our nation's capital who cannot vote according to the constitution for u.s. senate or the house of representatives. some of that money helping us people here in our own capital who are legally prohibited from casting the vote for office. we have no voice or our own government at all. also, how about a few more public toilets. their only two and the whole city of washington dc. that is my comment, my requests. guest: on d.c. voting rights,

one thing that has not been done at all is political activism. they had not really done a political accent -- you just have to find bill clinton. you can find bill clinton, shake his hand and talk to him, there is a chance that will happen. this foundation focuses on elephant poaching in africa, childhood obesity in america crop yields in rwanda, they are all over the place. it could be one of their causes. host: another question, if bill clinton decided he wanted to place her time in the white house -- guest: i do not know. because it is not a typical philanthropic organization and it is not like there is a giant sum of money, there is some money, it where you just headed off in that person could give

the money away, he is the engine that makes it work, and you need him flying around the world giving speeches. it would not be there if he were the first gentleman. i cannot imagine he would have the kind of freedom to do his own freelancing project. imagine the headaches that would create if the gentlemen were there shaking hands with all these people, all these heads of countries, which we have very nuanced relationships. host: roger, new hampshire. caller: the republicans are the ones that, because they're trying to do stuff hillary ended up having citizens united past, citizens united has allowed a lot of donors donors to be tax-free. to me, it is ridiculous. i would like to see transparency of all the donors, political

organizations. that is my comment. guest: anyone wants to run including her will have to take advantage of that system. no way she could win without disarming herself to her when she comes into the office, she would be crusading for fighting politics and probably be an north beneficiary of politics. you can see that now it is created, it would be hard to fix. host: new york, caps on, you're up next with our guest. caller: i would like to say, the democrats try to see what hillary will do for everybody. she is just lying the does the last time i saw her talking, it was the lady asking for a picture and said, you better get to the back of the line. back of the line. the rich ones in the front.

for everyone to see what she said, that his state. she does not agree to talk to any reporters yes, everybody for everywhere. [indiscernible] the rest of what is going on. thank you very much. thank you. good morning. guest: talking about hillary clinton's put glass durations. i wrote another story this morning about was interesting about hillary clinton in iowa in 2008 and why she did not catch on and what caused her political demise back then. it will be interesting to see, aside from the foundation whether hillary clinton do what obama did last time around, which is not just inspire people to respect her but actually make people feel like they're being swept along in something greater than themselves.

part of that will be cultural identifications. people will feel like hillary clinton is like them or understands them in some way. given the life she has led to the success of herself and her husband, she is coming from a different place. host: you wrote a line in your piece. the clinton's charitable causes for aids and allies and indirectly for the clintons themselves, for the a's and allies. we talked about sidney blumenthal. guest: the state department was paid a second salary by the clinton foundation. was paid consulting between the state department and hillary running for president. there have been other fundraisers and it worked for hillary clinton and also the foundation. that is just her aides and allies. look back at bill clinton. the top person at the white house runs in a's drug

initiative. there been other folks, the body man in the white house, is sort of one of the top people in the foundation for a long time, who sort of came up with the idea for the clinton global initiative. a lot of infrastructure from the clinton foundation was carried over from the white house. you can see a lot of the same infighting for bills time that you saw in the white house among people. host: do businessmen benefit from that especially from their associations through the foundation? guest: of course. frank, a canadian mining tycoon who has funded a lot of clinton's's work at the foundation especially helping countries through mining is prevalent. met the president of a couple of different countries. met two countries who later signed a lucrative uranium

mining deals. not only does your name get to be on the gift, but you often physically go with him to these countries to inspect what you have done or set up a deal. often folks who have come along with clinton have made lucrative deals with the heads of state. host: tony is up next. caller: good morning. everyone knows bill clinton is an economic genius. he balanced the national budget. left george bush with a surplus that he squandered. the comment i really want to make is everybody is trying to make this a campaign issue for hillary. she went for the democratic nomination, but she is not here there are a lot of democrats that feel like me. they are just -- they just

really do not trust hillary. i am looking at some other candidates. bill clinton is going to make money, but talking like she is an automatic nominee, i do not think that is the case. that is my question or comment. thank you for your time. guest: it is interesting you say that. the folks with hillary clinton bernie sanders and martin o'malley, no one are taking them seriously as challengers but that could change. the perception a lot of folks have of the clintons, even folks who are democrats see the clintons as ending the rules. just the idea if they remember the first clinton presidency that you have to spend a lot of your time defending the clintons in these ways were it is not really cut and dry what they did, that kind of frustration are we about to go into another time of what is the meaning of