to catch up. as we know from the pole experiences, -- from various experiences, the very great tendency to overestimate costs happens. section 74 which is the provision that governs a listing of categories, it mentions the availability of subcategories. the last sentence -- >> it is 35a and this is c1 and it talks about the epa's authority. nothing limits the authority to establish subcategories as appropriate. >> duties apply to the minimum

standards? >> you identify the category and then you generate the standard. >> i thought the standards are automatic. on the basis of the study that these things should be listed. i thought there was an automatic requirement imposed which is the reason they are complaining. >> it depends on how you categorize and so if there were a situation in which one segment of the industry was so vastly different from another segment of the industry in terms of its economics and technology, epa would have the authority to break those into separate categories. you do not calculate the best performing 12%. >> the language that does that

is the first sentence of three which says the maximum degree that is deemed achievable, not less stringent, that is achieved in practice by the best controls similar source as determined by the administrator. that is what allows him to apply the minimums. >> am i right? epa did that in this case. it broke out our plants that generate power burning natural gas. that is a separate set -- subcategory. >> where can you point me into the record where this argument was made or considered by the agency? because it is an important principle of administrative law that we will only uphold based on the arguments that were considered and addressed by the agency. it is not something i recall.

mr. verrilli: chief justice, you're absolutely right in stating that principle, but our argument in this case is this question here under n1a, n1a says epa shall regulate under this section if it determines regulation is appropriate and necessary and therefore when epa makes a judgment to regulate epa is triggering all of -- justice scalia: you're just saying that the argument is right. not that the agency made it. the agency must have rested its decision on the point. mr. verrilli: i think the agency on the order of being challenged here did use the approach, but beyond that, it would be one thing if this were a case in which you had a situation in which the epa faced a situation in which 50%, 75% were going to

face those consequences -- justice sotomayor: can i simplify your answer for you? [laughter] mr. verrilli: that would be great. justice sotomayor: you said, we do not consider costs. we consider it rate. everyone gave a few examples. whether this example was given or not is irrelevant. the issue here is, do you have to do it? if only some of my colleagues here were concerned that when you issue standards you never consider costs.

mr. verrilli: that's exactly right. the question here is whether epa had to determine a cost-benefit analysis at listing and the logic of the statute does not -- justice kennedy: at that point the game is over. mr. verrilli: no, i don't think it is. the standard for setting emission standards, once you have decided to list, that is your honor's question -- that does take costs into account and it says that the industry -- justice scalia: i don't understand that. i thought there were automatic requirements imposed once they are listed. mr. verrilli: once epa list, then the automatic that is applied has to match the .1%. justice scalia: i really don't like that your friend on the other side was not permitted to mount an argument in opposition to this argument that justice breyer's chambers devised.

this is an argument i have never heard of and i am not sure it is right. a did not expect the agency to say, oh, we are just listing but we're going to categorize the listing. mr. verrilli: the point that we are just listing, we say that over and over again in our brief. this is in page 6 on the reply brief -- of course, if this is just about listing been the costs are irrelevant. that is the way the statute works. chief justice roberts: it is a fairly dramatic disparity. you respond with a different calculation that looks -- i would call it collateral.

ancillary. and then the argument -- it's not quite proper because you are using the regulation to get at the criteria that you otherwise would have to go through a much more difficult process to regulate. in other words, you cannot regulate criteria pollutants. so that's how were going to get an additional regulation of the criteria. so, it's kind of a runaround restrictions that otherwise would give you less control. mr. verrilli: let me address that. there are seven points and i think to make all of it -- all of them to make this clear. this is an argument that i do not think any party has raised

-- justice breyer: my chamber argument. [laughter] mr. verrilli: here's the problem. the problem with the argument -- there are two problems. once epa concludes that a source emits hazardous pollutants, epa has concluded that it admits mercury of levels that are unsafe. i do not think the petitioners can dispute that. the epa is under not keep -- obligation to regulate all hazardous pollutants the source emits, and in a case called national line 15 years ago -- chief justice roberts: i understand how it works. i am just questioning the legitimacy, because what they would say -- list what you want to list, but you ought to

consider only the benefits of regulating that. you should not consider -- mr. verrilli: that's the next point i would make, mr. chief justice. it is not an end run and it's not a bootstrap. it's regulating these surrogates is a well recognized methodology that goes back decades, that epa has used for decades. and the very argument your honor is positing here is one that was made in the same national line case in the d.c. circuit 15 years ago that the d.c. circuit rejected. what epa is doing what the d.c. circuit said they were required to do with respect to regulating every hazardous pollutants that the source is a myth, and what the epa has said and the d.c.

circuit has said for decades -- chief justice roberts: the issue that raises the red flag at least if there is such a tiny proportion to benefit from the program in such a disproportionate amount of benefit that would normally be addressed under the criteria. so, if you are regulating one, that is a good thing. but if your basis of regulating -- what is the benefit from the co-pollutants that you get? mr. verrilli: many, many billions. chief justice roberts: do you remember how much? mr. verrilli: 30 billion to $90 billion. chief justice roberts: mercury is what? mr. verrilli: $4 billion. chief justice roberts: so, we get to regulate $35 billion of cost on the other side. i understand that it's a good thing if regulation benefits in other ways, but when it is as proportionate you wonder if it

is an illegitimate way of avoiding the limitations that do not apply to other criteria. mr. verrilli: i really do not think that. i do not think that is a fair way to put it. what epa did with respect to mercury was quantify one of the public health benefits. it did not quantified many of the other public health benefits. i think this is page 910 to 940. there are many, many charts. part of the reason it did not try to quantify these benefits is trying to quantify these benefits can be difficult and challenging and that is one of the key reasons why congress adopted the program and the new source performance standard

program, because they did not take costs into consideration at the listing stage -- justice sotomayor: tell me about the natural gas. you were cut off earlier. mr. verrilli: sure, epa said that natural gas should be a separate category because they did not generate the public health problems -- justice sotomayor: so, they were part of the listing, but -- mr. verrilli: correct. justice sotomayor: they were part of the listing, but they were not regulated? mr. verrilli: yes, your honor. justice alito: your argument is under the last sentence, 74.12.c1.b, the epa can create subcategories in whole or in part based on cost. is that correct? mr. verrilli: i think it is more

subtle. it is not just that provision. there are numerous provisions within 74.12. but there is such a vast difference in the technologies that there be that vast a difference in cost, there might well be a basis to treat them as a different subcategory. justice scalia: i thought epa said we are not going to take into account cost's with regard to be listing. they could have said, we're going to take into account costs as to whether some category should be listed or not. that is not what they said. they said we shall not take into account cost with regard to listing. that is what they said. i think -- mr. verrilli: i think this is critical.

what they said was, with respect to power plants, consider costs at emission standard settings and the reason we think that is appropriate is because that is the standard, that is the regulatory logic that congress feels not only appropriate, but mandatory for every other source category, so one would have to conclude then what congress said was mandatory and therefore necessarily appropriate for every other category -- justice scalia: that is not how i understood their argument. i do not understand it to say we can exempt some people from these minimum standards because we categorize them differently. it definitely was not -- mr. verrilli: i think the point

of the logic is you make the listing decision and then you regulate under section 74.12. >> as i understood it -- justice alito: without those subcategories we do not know if costs are taken into account when doing subcategories, do we? mr. verrilli: i think -- i do think -- it's going to be based on differences in technology in operation, i think, from which you might be able to defer cost, but that is hypothetical in this case. it was not part of what epa had to consider except with respect to natural gas plants which were so different because they did not have the problem that justice breyer raised. you did not have that problem. you did not have to face this issue. if i can just me this point that i think is quite critical. given 74.12's regulatory logic

mission setting standard based on cost and given that that is exactly the same logic under the program, a exactly the same logic under the motor vehicle program, exactly the same logic under the resource performance standards, if congress intended to mandate that epa cut so deeply against the grain and make such a radically different approach with respect to this one category, you would expect to see very clear legislative language. you would to see a direction to epa and 74.12 two study cost before making this judgment. justice scalia: there are economic costs. there are other costs.

is it the agency's division that no cost can be taken into account? for example, they may find a particular material has an effect on health. they may find it eliminated it will have other effects that are even more deleterious to health. could that cost be taken into account? mr. verrilli: i think that cost would be taken to account in the regulatory impact analysis, but not -- chief justice roberts: thank you, general. [gavel raps] chief justice roberts: mr. smith. mr. smith: mr. chief justice, we agree that the epa was not required to engage in a cost benefit analysis before making the decision to regulate hazardous admissions.

clearly, congress did think power plants needed to be treated differently. what did they give them? they gave them three years and which the epa was instructed to take account of the health effects. it did this under an appropriate and necessary standard. if i can address the issue of what those mean in the reading, i refer the court to pages226-227 of the national mining association appendix. i do not think it is necessary to read from it, but what the epa has said consistently throughout this record, they looked at two things. there was a claim made that these chemicals are simply not harmful enough to require further regulation, that the effects were manageable, and they looked at that issue under the appropriateness rubric. they said, these are harmful.

the necessary rubric was to look at the post clean air act, post acid rain health effects that would persist. they said, a, these are harmful chemicals, harmful pollutants and they will continue to be harmful after the acid rain program has kicked in. that is how they saw the different words -- justice scalia: who would have guessed? that is such an artificial division of necessary and appropriate. i did not really understand it. mr. smith: necessary means there will still be health problems after the acid rain program kicks in. justice scalia: appropriate means? mr. smith: appropriate was meant to meet the claims by the industry that these chemicals are sufficiently harm free that

we do not need to regulate -- justice scalia: wasn't that part of the first one? mr. smith: it could have been. justice scalia: ic, your honor. mr. smith: the issues that were supposed to control the listing decision were the health effects of the pollutants that come out of east power plants, and they deferred the issue of considering the cost to the second stage, just as occurs with every other source of the other 89 hazardous pollutants they were dealing with. if i can pause to clarify one thing that happened at the listing stage. natural gas fired plants were not turned into a category. they looked at the health effects and said, we are exempting them entirely from regulation under this section, under the appropriate and necessary standard because they do not him if these chemicals in more than trace amounts and

there's nothing for us to regulate. natural gas plants get taken out at the listing stage. then we have coal-fired plants where they begin to look at the subsection d standards standards designed by congress to limit the omission regulation. because the floors are in fact limited to what has been achieved by comparable plants in the same category. there were questions about whether this category was something that epa recognized. they did create a separate category for coal burning plants that burn lignite. but it turned out that none of the lignite plans -- plants [indiscernible] look at the issue of categorization. they started out with two

coal-fired, they ended up with one category and then there were five separate categories depending on what they burn and how they operate, so this whole process of separating out these categories was built into that process under subsection -- justice kagan: could you clarify for me the categorization happens after the listing? is that correct? mr. smith: yes, your honor. then you go to the standards of what commission sources occur, sometimes years after the listing decision is made. they then have a process of saying, what are our categories going to be? what in fact are the omissions? they have to report them.

justice scalia: are these just requirements above the minimums? mr. smith: no, your honor. they are -- justice scalia: i'm saying the categorization that allows you to reduce some people and not to reduce others. that applies to the requirements above the minimums now. mr. smith: your honor, the minimums are set by mathematical calculation above the categories area -- categories. justice scalia: yes. mr. smith: the only thing not using express consideration of cost, but based on regulations of what the top 12% are doing is the minimum and the minimums are altered depending on the categories established. that is the way all of the sources have been regulated.

justice kagan: could you clarify that? mr. smith, you categorize this way, and then you're down here. you categorize another way and then you're down here. that makes a tremendous difference in what the minimums are. mr. smith: right, and they put out a notice. they then get comments in, and then they make different categories in the final rule -- justice alito: how can we take into account what the costs are without creating criteria for these subcategories? mr. smith: your honor, the that is -- justice alito: the 12% come into play after you created the categories. had i know how they create the subcategories? mr. smith: it is in the notice of proposed rulemaking. here are the proposed categories. then they get comments about how

we are not -- what happens then, people and comment say, we are so different from that category. we have special problems. we need a separate category. justice kagan: it is a rulemaking after the listing, is that right? mr. smith: they balance it all at the same time but only because they have 11-year delay. justice breyer: this was not taken up in my chambers. [laughter] the brief said congress -- unambiguously required epa to consider cost of the second stage of the regulatory process. i read the statute. in reading the statute leads me to think it works along the lines you just said. if you did have the most expensive set of generators in the world, you would ask epa to create a separate category for them, in which case the top 12%

would no longer be in your category and you would not have to do it. what i am asking you is, the sg thinks that is the system. is there a treatise? is there an explanation epa has put out so it is clear it was not made up, it is clear this is the system that they follow? would you refer me to a source? mr. smith: your honor, the only source i could refer you to is the notice of proposed rulemaking in the final role in which all of this categorization process is laid out in exquisite detail. you can see the comments that come in that sake these categories to not work. then they produce different categories. justice breyer: excuse me -- chief justice roberts: excuse me, is there something in the administrative record where epa adopts that? if someone says, you're not considering cost?

we're going to the supreme court. the epa says, we will consider cost. is there a reference to the administrative record where there is something like that? mr. smith: they said in the notice of proposed rulemaking that we interpret the regulations to be only based on health -- chief justice roberts: the listing decision is not based on cost. i want to know if there's anything that says, but don't worry we will consider cost through the categorization process. mr. smith: i do not know if they said that explicitly. it was so implicit in the system. this has been in operation since 1990 area -- 1990. chief justice roberts: implicit does not work when you're talking about categories in the administrative record. justice kennedy: i thought you did not need to consider cost of the first step? mr. smith: no, the categories are at the first step.

it is at the second step -- justice kennedy: but you did not take that second step? mr. smith: they did. that was done through a notice and comment process -- justice kennedy: are you saying that was done based on cost? mr. smith: what was feasible with the different technologies. justice scalia: how much money did that save? did we know how much would be reduced by that calculation? mr. smith: i do not have that calculus. it is important to recognize something like 90% -- 90% of the capital cost has now already been spent. industry has not experienced the upheavals that are being described. the idea that the result was somehow ludicrous or outlandishly expensive is belied

by the fact that the industry is -- justice scalia: nobody is going to jail. is that it? it had to be done. mr. smith: the $4.6 million benefit as being a comparator is wrong on so many levels. that was one single -- justice scalia: a nine million dollar justice kennedy: -- a $9 million recurring -- mr. smith: most of these were capital expenditures that of already been made, and all he briefs, the petitioners. something like 40% of operating costs and 60% are advertised costs, your honor. the industry has been able to do this and the situation now is we finally have national standards. the states have been regulating very strenuously.

they will not have money flowing across state lines. they have this highly competitive electricity market where some companies have costs that reflect these appliances and some don't and that is something that really needs to be soft -- justice sotomayor: if i may finish your point, the $4 billion they are referring to for mercury, the agency did not quantify all of the other costs, correct? mr. smith: absolutely. it did not quantify many, if not all of the cost for mercury because it creates attention deficit disorder olive these other things -- party vascular problems. -- cardiovascular problems. it's extremely poisonous. the other thing about the $30 billion to 90 billion dollars, that is particulate reduction

and some of the particulate produced is non-mercury metals that go out and particles, mercury sometimes goes out in the form of particles, the acid gases that turn into particles because they become aerosolized and they become tiny droplets. all of those are in fact being taken care of in the control of particulates. it is true in controlling those you use the sync technology and you end up controlling a lot of other kinds of particulate it -- primarily sulfur dioxide which costs premature deaths. we did the calculation and we decided if we put these particulates in these, that saves a lot of lives because these sulfur tax side is not being controlled. justice alito: is this a basis of the epa's position. i thought the epa position was it does not matter how much the costs exceed the benefits.

we just will not take costs into account at the listing stage. mr. smith: that is correct, your honor. that is there quite reasonable interpretation of the statute, which every other source has conceded. we do not do the cost benefit analysis upfront and this came out of a time of regulatory paralysis for 20 years where the epa was just not regulating effectively in congress came in and said we're going to force regulation of these chemicals that are being spewed into the environment and causing all of these health effects. it gave one benefit to the power plant industry and said you have three years. they gave them -- it did not give them a benefit of doing the cost-benefit analysis upfront to say we do not think we should regulate this category. chief justice roberts: thank you, mr. smith. >> thank you, mr. chief justice. any sub categorization where

talking about has already occurred. we are talking about a role that has been promulgated. there are still -- justice sotomayor: that was not the question presented. the question presented is if that makes any emotion standards wrong, for some people, it is not that breaking to do it? mr. lindstrom: the question is -- justice sotomayor: it does say. mr. lindstrom: what happens is you have a listing decision at the first stage and then you have the standard -- justice

sotomayor: you're taking out the categorizations. they do not establish the floor, so they have categorized. mr. lindstrom: correct. my point is what happens under n1, these first two steps are merged. you are looking not at the list, but whether such regulation is appropriate and necessary. that is the language in the statute. is such regulation appropriate and necessary? not just if it is going to be listed. if it is going to happen. they made this at the same time. they publish the standards. they were looking at the costs ahead -- justice scalia: are you saying that they purported to make the categorization decision without taking into account cost? mr. lindstrom: yes, any categorization they have done has been done and they did not consider cost. justice scalia: did not consider cost. mr. lindstrom: this turns on what the agency actually did below.

they have made determinations. they said costs are not relevant. they ignored an part of the regulatory problem -- justice sotomayor: i'm sorry, the proposed categories and they have the opportunity to say it was the wrong category, correct question mark -- correct? mr. lindstrom: yes, your honor. justice sotomayor: and some people submitted costs relative to their technology in their kinds of plants. mr. lindstrom: yes, your honor. justice sotomayor: so, it is not true. they propose, but everyone gets a chance to tell them this technology is different from the others or this kind of plant is different from the others and this has costs that are much greater. mr. lindstrom: i am saying they have passed to that phase.

any categorization they were going to do is done. justice sotomayor: you are saying that it is passed because the final rule has been issued. mr. lindstrom: correct. justice sotomayor: i am talking about during the rulemaking process. the rulemaking process does allow the agency to consider the cost of technology. mr. lindstrom: they have adopted the exact opposite position -- justice breyer: the lignite people -- i cannot remember if that is the right name. they said, we produce our stuff that is much more expensive, so please do not put us in the same category. and the agency said, right separate. did that happen? mr. lindstrom: yes, sir. justice breyer: all right, how to we do that without considering cost? those people said our cost her more expensive. mr. lindstrom: i do not know how they did it, but they said

throughout, we are not considering cost. thank you, your honor. >> thank you, council. the cases is submitted. >> bob deans with the natural resources defense council on the supreme court decision overturning the obama administration's air quality rule. the epa must consider cost before deciding to issue regulation. and then a 10-year-old ruling that allows the government to seize property under certain circumstances and how the memory of the civil war is affecting the debate over the confederate battle flag. "washington journal is quote every morning at seven eastern. you can join the conversation on facebook or twitter.

the supreme court and a 5-4 decision ruled that states may use the drug in executions. inmates alleged a three drug combination enclosing the drug causes an extremely painful death but justice samuel alito said the prisoners failed to prove that and identify a better alternative. the death penalty may come before the court in the future as to judges writing the dissent asserted that capital punishment is probably unconstitutional. here is the oral argument from the case in april. >> we will hear argument first this morning in case 147955. ms. conrad: oklahoma chooses to execute our clients with the three drug formula that includes a paralytic and potassium

fluoride drugs that cause intense pain and suffering. the second and third drugs are constitutional only if a prisoner will not feel the pain and be aware of the suffocation caused i those drugs. the district court erred as a matter of law and as a matter of fact when it found that the first drug is constitutionally tolerable. justjust asjustice scalia: you are asking us to find this report was clearly erroneous, do we usually do that kind of thing? ms. conrad: there is a question of law and a question of fact. the fact that the district court found that this three drug formula was constitutionally

tolerable in spite of two facts. the consensus that this drug cannot be used -- justice scalia: the question of law is that the court ignored two facts. ms. konrad: the question of law involves the district court found this drug creates a greater risk of harm than sodium thiopenthol. this drug that creates a greater risk of harm that could not quantify and it had evidence this drug is not used for the purpose at which the state intended use. justice sotomayor: if i disagree

with you, if i think that i have to give deference to the district court factual finding on how this drug works but it is a legal question of whether how that drug works creates a risk of harm that is constitutionally intolerable. is that how you divide up the legal and? let's go to my real question. a judge ignores evidence is not necessarily a abuse of discretion or clear error. what are the clear errors in terms of the reasoning that the district court used?

ms. konrad: we have to look at with this case is about and this is about known information and undisputed facts that were before the court. this rug is a different class. this drug is not known, it is not a pain reliever. the district court recognized these two. it is known that this dress has thus -- the district court recognize that. the expert recognize that. the petitioners expert recognize that. >> it was not able to tell when the effect kicked in. when they hit the ceiling. that is when pain as possible when it has the ceiling. ms. konrad: it takes effect at

the spinal cord. it effectively paralyzes the brain and eliminates awareness of pain. we have to look at what undisputed facts were before the court in making that finding. justice roberts: undisputed facts? i thought you had the burden of showing the determineses were erroneous. it is not a case where the facts have to be undisputed. ms. konrad: i'm sorry if i missmoke. what we have to look at before in order to show why the was an -- this was an erroneous finding is what the undisputed facts before the district court. justice sotomayor: the state doesn't propose that their doctor was right. they're not defending it. they don't say it's true. they -- i conceded, as a read

their brief, that it does not work the way the doctors said it worked. that it does not paralyze the brain. correct? ms. konrad: that is correct. justice sotomayor: so it's clear error. now we have an admission that the expert was plainly wrong so what else -- nothing else that the district court could have based its conclusion on, correct? ms. konrad: that is correct. the district court reached this decision based on no scientific evidence and with a medical consensus to the contrary, that this drug is not able to pharmacologically do what the state's expert said it could do, and that clear error is combined and as the district court said at joint appendix 47, that this is partially a mixed question of fact and mixed question of law. justice kagan: konrad, can i

make sure i understand this. i read that the part of the opinion that you are referring to and i couldn't figure it out. so, is it that the court said, we don't know what the ceiling effect is? generally? but the ceiling effect only goes to how something operates at the spinal cord level, doesn't go to how it operates at the brain and this takes what we care about is how it operates at the brain so we don't have to worry about the ceiling effect. is that right? ms. konrad: that is -- that what the court said. >> that is what the district court found based on the testimony of the state's experts, not supported by any scientific literature, any medical information, and in fact it's inconsistent with the state's expert's own testimony because he testified and explained that the way this drug works is it works throughout the central nervous system. he -- justice kagan: you are saying we

do have to worry about the ceiling effect there isn't this dichotomy my between the drug at the spinal cords and the drug at the brain, and it's actually crucial what kind of ceiling effect this drug has. in contradiction to what the court said which is we didn't have to worry about the ceiling effect. is that how it goes? ms. konrad: yes. justice alito: did you introduce any evidence to show the doseam at which the ceiling effect would occur? ms. konrad: we had testimony from our expert who indicated it could be calculated but was not. justice alito, that doesn't matter because what matters is we know the drug has a ceiling effect -- justice alito: what is the ceiling effect is a thousand milligrams? ms. konrad: there is know evidence in the record to support that, and -- no. justice alito: any evidence to show it is any amount below 500? ms. konrad: it doesn't matter.

it doesn't -- justice alito: of course it matters. justice sotomayor: proof we do have is the wood execution. that is the one that was botched. mr. wood was given 750-milligrams. correct? ms. konrad: yes, justice sotomayor. justice sotomayor: and he laid writhing in pain for 20 minutes, 25 minutes. ms. konrad: mr. wood was two hours -- justice sotomayor: i'm sorry two hours. now, there's been some defense that the 750 wasn't immediately delivered but it was still 750 that went into his system, and caused that kind of pain. correct? ms. konrad: yes, and our expert testified that mr. wood's execution demonstrates the ceiling effect, that giving more of this drug is not going to put a prisoner into a -- justice alito: how many executions have been carried out using this drug? ms. konrad: using midazolam. 15. justice alito: you're talking about one.

ms. konrad: no, we're actually talking of several executions that -- the execution in this case in oklahoma that haven't happened a year ago of mr.locket, demonstrate why midazolam is does not put a prisoner in a coma. justice alito: i thought they were issues of the -- justice roberts: i thought there were issues of the administration of to the drugs, the nature of the veins and so forth. i got a different one in the locket case? ms. konrad: mr. chief justice -- justice roberts: that was not then -- were there issues about -- i thought there were issues involve thing veins and the ability to make a intravenous connection. ms. konrad: there were problems with the catheter, but mr. lockett received enough miiidazolam and the discussioner found he was unconscious and regained consciousness and that is the key issue. here --

justice scalia: not if he didn't receive the proper dosage. you're saying it's okay that he didn't receive the proper dosage so long as he was unconscious? ms. konrad: he received -- justice scalia: i don't see how that follows. if in fact the execution was not properly conducted, i don't see how you can blame it on the drug. ms. konrad: what we know about this drug, justice scalia, is that it can never paint the deep coma-like up consciousness necessary to prevent a prisoner from feeling the painful effects of this -- justice kagan: how do we know that? i thought that what we knew was just that we can't know. in other words, that there's this huge range of uncertainty about what happens when somebody is given this drug. you're suggesting something more than that. which is that we know what happens, we know the drugs can't maintain deep unconsciousness, which is right?

ms. konrad: justice kagan, we know because of the properties on the drug. the way when the drug was being tested and being introduced, it is not used for the sole purpose of preventing somebody from feeling pain during a painful procedure. justice kagan: i thought it wasn't used for that purpose just because we don't know whether it's capable of being used for that purpose. as opposed to, we know it's incapable of being used for that purpose, if you see the difference. ms. konrad: i do see the difference. i think what is important here is this court in bays explains it's important to re-emphasize that a proper dose sodium penthol is that the prisoner will be sufficiently sedated. that is the key aspect. justice alito: why is oklahoma not using that drug? ms. konrad: it isn't using it -- you could ask my friend here but -- justice alito: you don't know?

ms. konrad: the findings here is it was unavailable at that time of the hearing. justice alito: let's be honest about what's is going on here. executions can be cared out painlessly. there are many jurisdictions in this country and abroad that allow assisted evidence suicide and i assume they're carried out with little if any pain. oklahoma and other states could carry out executions painlessly. now, this court has held that the death penalty is constitutional. it's controversial, as a constitutional matter, it certainly is controversial as a policy matter. those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. some efforts have been successful. they're free ask the court to overrule the death penalty. until that occurs is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty? which consists of efforts to make it impossible for the

states to obtain drugs that could be used to carry out capital punishment with little if any, pain, and the states are reduced to using drugs like this one, which give rise to disputes about whether in fact every possibility of pain is eliminated. now, what is your response to that? ms. konrad: well, justice alito, the purpose of the court is to decide whether a method of execution or the way that the state is going to carry out an execution is in fact constitutional. and whether we're going to tolerate, is it objectively intolerable to allow the states to carry out a method in this way, and so -- justice scalia: i guess i would be more inclined to find that it was intolerable if there is even some doubt about this drug. when there was a perfectly safe other drug available. but the states have gone through

two different drugs, and those drugs have been rendered unavailable by the abolitionist movement, putting pressure on the companies that manufacture them. so that the states cannot obtain those two other drugs. and now you want to come before the court and say, well, this third drug is not 100% sure. the reason it isn't 100% sure is because the abolitionists have rendered it impossible to get the 100% sure drugs, and you think we should not view that as relevant to the decision that you're putting before us? ms. konrad: justice scalia, i don't think that it's relevant to the decision as to what is available because what this court needs to look at is whether the drug that the state is intending to use to cause what they say is a -- put the prisoner in a place where he will not feel pain, that drug is good enough.

justice kagan: i understand -- justice ginsburg: is any state using a lethal injection protocol without this questionable drug? we know that two are not available. is there another combination that has been used by states? it doesn't involve the questionable drug. ms. konrad: yes, justice ginsburg. they were then 11 executions using colorful -- pentohol --justice kennedy: that doesn't answer question question. the question is what bearing, if any, should we pit on the fact there isn't a method but it's not available because of opposition to the death penalty. what relevance does that have? none? ms. konrad: justice kennedy, the fact that the state chooses a certain method should not have bearing on whether that method is constitutional --

justice kennedy: i would like an answer to the question. you have been interrupted several times. you still haven't given -- is it relevant or not? ms. konrad: no. it's not relevant. the availability of an -- justice sotomayor: there are other ways to kill people regretably. there are. that are seamless, doesn't have to be a drug protocol we elect that has a substantial risk of burning a person alive. who is paralyzed. correct? ms. konrad: that is correct. justice sotomayor: i know you'll get up and argue that the other ways are not constitutional either, potentially, but people do that with every protocol. but the little bit of research i've done has shown that the reason people don't use the other methods is because it offends them to look at them. like, you could use gas. that renders people not even knowing that they're going to sleep to die.

and people probably don't want to use that protocol because of what happened during world war ii. but there are alternatives. oklahoma found some. it's used the firing squad now. so i don't know what the absence of a drug -- what pertinence it has when alternatives exist? ms. konrad: i would agree, justice sotomayor -- justice ginsburg: doesn't a firing squad cause pain? ms. konrad: justice ginsburg, we don't know. we don't know how if the state chose to carry out an execution by firing squad, whether in fact it would cause -- rise to the level of unconstitutional pain and suffering. justice roberts: well, you don't know. do you have a guess? there is a reason states moved progressively to what i understand to be more humane methods of execution? hanging, firing squad, electric chair, gas chamber, and you're not suggesting that those other

methodses are preferable to the method in this case, are you? ms. konrad: i'm not suggesting that, mr. chief justice, but the reason why states moved to more humane methods is as we learned more and as we learned more about science and developed, then as a society we moved forward. we have evolving standards -- justice roberts: you have no suggestion what would be an acceptable alternative to what you propose. right now, for oklahoma. do you've have any -- the case comes to us in a posture where it's recognized your client is guilty of a capital offense. it's recognized your client is eligible for the death penalty. that has been duly imposed, and yet you put us in a petition with your argument that he can't be executed, even though he satisfies all of those requirements. you have no suggested alternative that is more humane. ms. konrad: i actually disagree with the characterization that he can't be executed. oklahoma has just passed a new

statute and they are continue -- continuously looking for methods and ways -- justice roberts: what does the new statute provide? ms. konrad: the new statute provides if the ehly that injection protest cal is found unconstitutional or drugs are unavailable, then they can go to other methods. justice roberts: what other method? ms. konrad: they go to nitrogen gas and then go to -- justice roberts: are you suggesting that's okay with you? ms. konrad: i don't know anything about that protocol. they have not not -- justice roberts: what do you think? do you of an instinct whether or not the gas chamber is preferable to this lethal injection or not. ms. konrad: mr. chief justice it's hard for know say whether it's preferable. the legislature has said that this could be a painless method. i don't know. they haven't come out with any information about how -- justice scalia: suppose it were true. the facts here, your client was already in jail with a life sentence. right? for murder. some while in jail on that life

sentence, he stabbed and killed a prison guard. and that is the crime for which oklahoma is seeking to execute him. is that the fact we have before us? ms. konrad: one of the petitioners here before the court. justice breyer: there is that larger question, that if in fact -- for whatever set of reasons it's not new. didn't purposely hide these these other kinds of drugs. if there is no method of executing a person, that does not cause unacceptable pain, that in addition to other things might show that the death penalty is not consistent with the eighth amendment. is that so or not, in your opinion? ms. konrad: that perhaps could be true, justice breyer. justice alito: is that your arguement? ms. konrad: no. >> you can make one of two arguments. one is that the death penalty is unconstitutional

i do not understand you to be making that argument. you want to reverse the finding of fact. >> lee cited in the opinion a few years ago and takes lanes there are erroneous findings and this is obviously erroneous. you are looking at findings based on no scientific evidence. >> the drug does not work in the way. >> 500 milligrams is lethal.

that is capable of causing death ms. konrad: that is -- >> i do not know. the expert talk to the toxic dose. there is no evidence. >> is an there a fair few to dose? >> no. >> is the fact that something is lethal not mean that is painful. >> the point is, if it is we focus how do you do the study to determine whether or not it renders the person. >> you do not need to do the study. we know from the science of how

the drug works and that is what the court got wrong. there is a clear error. >> since we are on a narrow question. , i would like to hear the argument. it is held that, if the person is not unconscious, there is an on constitution -- unconstitutional pain. that this drug that you're talking about, midazolam will result in central nervous depression, rendering the person unconscious and insensate during the procedure, that's his finding. a sufficient level of unconsciousness to resist the later stimuli of the other two drugs.

you had an expert testify that that is not the case. the expert said, citing an article, said it would not reliably put the person in a coma. isn't that what he said? ms. konrad: that's correct. justice breyer: the other side produced the expert which just said the contrary. so you have to say that conclusion, namely, quote, the 500-milligrams will be at -- will make it a virtual certainty that he will be at a sufficient level of unconsciousness to resist the stimuli of the other two drugs. so i'm sorry you don't -- i'm run out of your time. maybe i'll ask the other side the same questions. i want to know what underlies that, sufficient to make you say -- clearly wrong, but the other side is just as good to ask that question. in way to reserve your time. mr. wyrick: the district court

found as a matter of fact that a 500 milligram dose with near certainty would render these unconscious. regardless of our other disagreements, all parties agree that petitioners bear the threshold burden of establishing that there is a substantial or objectively intolerable risk that they would feel the pain from the second and third drug. and let that finding of fact affirmed by the court of appeals, mirrored by three other

trial courts in florida, affirmed by three other appeal courts in florida set aside, they cannot satisfy the threshold burden. justice kagan: as i understand it, there were three subsidiary findings that underlay this conclusion. the first is the one we talked a little bit about with miss konrad. it has to do with the ceiling effects, which as i understand it, you don't at all defend. and the second is the idea that 500 milligrams of this would likely kill a patient in 30 minutes or an hour. that seems to me irrelevant given that a lethal dose is consistent with the unbearable. and the third is that the dose would keep a patient unconscious

while a needle is inserted into his thigh. which also seems irrelevant given the -- what everybody understands to be the much much, much greater potential of pain of potassium fluoride. so those were the three findings and one of them nobody thinks is anything other than nonsense and the other two are irrelevant. is than the case? mr. wyrick: i will take those in reverse order. the third actually is relevant. these petitioners and the amended complaint describe the setting of the iv as an invasive procedure involving pain. justice kagan: it does not sound pleasant to have a needle put into the thigh. to read the descriptions of what it does, to give the sensation of being burned alive sound to be considerably more than put a needle in the thigh. mr. wyrick: no one argues that it causes pain upon injection, is a sedative hypnotic. earlier, the question if this is lethal or not, it would involve great pain. a lethal dose would not cause pain.

and a lethal dose of that. justice kagan: it's a lethal dose of myth as a lamb -- medazelam.. so in that sense. the fact that this is a lethal dose has nothing to do with the question that is before us. whether before the 30 minutes or the hour passes. potassium is wreaking unbearable pain on the individual. mr. wyrick: the question for the court is whether this district courts findings that they would be unconscious is erroneous and on that point. to look at the record case that petitioners would put on before the district court. there was three reasons why it was inappropriate. they said paradoxical reaction

those have disappeared from the case. would you not see them in the supply group. they are extraordinarily rare and to the extent that they will happen the trained medical staff will catch those and never call the person unconscious. and secondly, they said lack of analgesia. phenobarbital is not an analgesic. that is never been relevant to the question. the question is that does the drug render them unconscious. justice sotomayor: so, pain relief medication. justice scalia: what is the third point that you had. i was anxious to hear the third point. mr. wyrick: in response to justice kagan's question. justice scalia: yes, yes.

mr. wyrick: i forget right now. justice kagan: the fact that this is a lethal dose again, completely consistent with the possibility of the potassium chloride causing grave pain. there is a fact that it will render and keep a patient unconscious with a needle. completely consistent with that not keeping a patient unconscious. with potassium chloride running through his body. and again, this statement that nobody can figure out about the feeling of the effects.

mr. wyrick: the ceiling effect is what i want to focus on. what the district court said is whatever the feeling effect may be, what we are concern about the, is whether this will keep somebody unconscious and unaware of pain. when you talk about that phenomenon that is not anesthesia. what he was referring to is their expert. the doctor said in the medical sense to have true anesthesia you need to have unconsciousness. inability to have pain and immobility, and the district court is saying that what we care about is will this render them unconscious and unable to feet pain. under their experts opinion, it may not be in the medical sense. that is the constitutionally relevant question. justice ginsburg: and what do we do with this professor in the state. it will not continue with -- induce coma like unconsciousness. mr. wyrick: several effects it would reduce unconsciousness.

that is something that nobody agrees with. and induction of anesthesia is a commonly -- justice breyer: can i have the ask the same question. that is, as i read this record that you would remember what i say is a standard. you remember what i said of the district court findings that i believe that what this is about is whether that finding is clearly erroneous. why have or two sentences. the first sentence is from their expert. and he quote, when you could be unconscious, he means that this drug is an anti-anxiety drug like xanax and people use to go to sleep every night. it can render you unconscious. and not reacting to minor stimulus -- that is their expert. but, when major stimulus such as the introduction of the two drugs that we are talking about here come into play, you are jolted into consciousness and you are quite aware and you wake up. if we stop there, you would lose. right? we stop there. mr. wyrick: if any of that were -- justice breyer: he pointed to two articles and base that had statement. and i will look at the two articles and seemed that he was facing a statement on medical articles and okay. we will have to look at the support for that. all right. let's look at the other side. your side says -- he says right here. he says it will put you into a coma. that is his point and the reasoning was that if you take enough of it, you will be dead. then he says, and this is essentially the extrapolation from a toxic effect.

by which he means, if you take a lot, you will be dead. but before you are dead, you will be in a coma. that is his reason. i did not find any other reasoning. now, we obviously are two -- lot of things kill you without putting you into a comb a such as the next two drugs. lots of things do. and he did not support anything that putting it into coma. it was just an extrapolation. that is what i want for to you focus on. if what i said is correct, i think there is no support in that record for his conclusion. if what i have said is incorrect there may be support. mr. wyrick: a couple of things. first that would assume a deep coma like level of consciousness is the relevant question. they argue that court's cases in the constitution would require that. that is beyond a surgical plain of anesthesia to use in the

operating room to remove one of the limbs. a coma is brain dead. justice ginsburg: would any doctor use this drug -- any doctor conducting a surgical procedure who doesn't want the patient to suffer pain, wants to induce this unconscious state -- would any doctor in the country give this drug to induce that coma like unconsciousness? mr. wyrick: it is routinely used to induce anesthesia, it is not commonly used anymore for the maintenance of the anesthesia for hours for surgeries. their source -- this is the saarri article, this is spelled saarri. and i am quoting. it has been used to induce and maintain the general anesthesia. and the recovery period is approximately three times longer than propofol. the genuine use is the sole induction and maintenance agent for general anesthesia is exceptionally uncommon have has been replaced by propofol. for organizational and economic reasons, fast-track recovery has gained popularity.

justice sotomayor: i have a real problem with whatever you are reading. i will have to go back to the article. i am substantially disturbed that in your brief that you made factual statements that were not supported by the cited sources and directly contradicting. i will give you just three small examples among many that i found it. nothing that i say or read to me will i believe frankly. until i see it with my own eyes. the context. the three examples. on pages four and five of the brief, you cite the fda approved label. as holding that this drug can get you to mild sedation and to deep levels of sedation.

virtually equivalent to the state of the general anesthesia, where the patient may require external support for vital functions. this quote was not on general use, but it came from the section of the fda label where it was saying that this drug's effects, when taken with other drugs that suppress the central nervous system. this can happen. that to me, is really -- there is no other central nervous system drug at play in the protocol.

justice scalia: do you have an answer to that one? mr. wyrick: justice sotomayer. in the brief we explain that the fda label says that the effects of the drug depend upon three things. the rate of infusion. the maintenance, the rate, the dosage and the rate of infusion and whether it is others to see in us.

justice sotomayor: you quoted this for the proposition that this could cause a fatality because of the depression -- it can produce general anesthesia. mr. wyrick: ja 217. their expert agrees it could cause a fatality. justice sotomayor: sure. he said that. with old people.

mr. wyrick: they described the potential affects. and they described. they said three things matter when you look at the affects. how much of the drug you are getting the rate of which you are giving it. and given with another drug. their expert said the fda tested this. justice sotomayor: all right. the melkin study says that this is how it happens. it gave this drug in doses of .02 to .06 and what it showed is that .06 dose, that there was less effect than.02. and this suggests that there is a ceiling effect to the drug. that it is less potent as you go in higher doses. now you quoted for saying. and you took up -- you quoted by saying that the melvin study for the position that studies on humans have found that the anesthetic effect increased with dosage and the estimates that 2 milligrams is enough for the full surgical anesthetic.

what melvin actually said, after pointing out that the ceiling effect is shown by his study. he said but presuming that there was no ceiling effects extrapolation of the data suggests that such a dose would be sufficient. you took out that -- mr. wyrick: respectfully, what they were comparing is a dose of a different drug to the .6 per kilogram dose. they said that we would have expected it to have a greater effect than the other drug which is more poetant than the other drug. but there are two things going on. either there is a dose dependent relationship with the other drug or they said that there may be a ceiling effect here. they hypothesize that there may be. and they say there is no extrapolating what we know about the drug that you would get that anesthesia. justice sotomayor: we are back to is there a ceiling effect? mr. wyrick: let's talk about the

evidence. neither of their experts could say at what level a ceiling effect will occur. and it is not whether it is or is not a ceiling effect. their expert said all drugs have a ceiling effect at some point. what matters is that there is a ceiling effect that will kick in

before we get to the level where there they are unconscious and unaware of the pain that is the constitutionally relevant inquiry. and on this point, they presented the district court with two-pieces of evidence and the material data safety sheet that is in the brief that never even mentions the ceiling effect. justice sotomayor: it would be very different --justice kagan: it would be very different if the court had said, look we do do not think you presented enough evidence that it doesn't take in at this point. right? that is not what the court said. the theory that it did not have to concern itself with whether the ceiling effect had kicked in. that is the thing that you don't defend as well. that is what the court said. mr. wyrick: that is not how we read the district court's opinion. you recount the explanation of what the ceiling effect was.

ja 77 or 78 and he said what ever it may be, with respect to the anesthesia that occurs with the spinal cord level. justice kagan: and whatever it is, all we have to whery about is brain and not spinal court and in the brain, there is no ceiling effect. that is just wrong. you know that is wrong. mr. wyrick: yeah. we know that a central nervous system depressant works throughout the central nervous system. so this is affecting the receptors that are located in the spinal court and in the brain. his point was, perhaps that the receptors may be fully saturated at the spinal cord level. and the brain level. and in his words we paralyzing the brain that the extent that the person is unconscious and unaware of the pain? and he thought that the evidence sufficient to conclude that there was. justice kagan: i think if we go back and read it, that it will show that what he was saying is that we just do not have to worry about the ceiling effect. because the brain level, the ceiling effect has no relevance. let me ask you another question. maybe this is one that we will agree on. maybe not. i am not sure. do you think that if we conclude that there is just a lot of uncertainty about this drug -- in other words, you may be right or miss konrad may be right this. is just impossible to tell. given no studies on the drug. we simply cannot know the answer to the questions. if that is the state of the world, do you think that this is the violation of the 8th amendment to use it?

mr. wyrick: if there is a risk of serious pain that rises to intolerable. justice kagan: you are just repeating the standard. we just do not know. it may be substanltial pain. it may not be. we can't quantify it at all. mr. wyrick: if what you are suggesting is shifting the burden to the state to show that there is some medical consensus that a drug in fact can do it at these doses -- justice kagan: i'm talking about a district court presented with evidence. just put yourself in the district judge. the evidence is -- who can tell? no one can tell. what is the district court going to do at this point. mr. wyrick: in the 9th circuit court. and temporary challenge to the efficacy of lethal injection drugs vacated a temporary injunction granted by the lower courts to show that they will

likely suffer from the harm. they said speculative evidence isn't enough. that is the burden that they bear. justice kagan: have i not found a place. and that seems to be quite something that would be like something. people say that this potassium chloride is like being burned alive. we had talked about being burned at the stake, and everybody agrees that it is cruel and unusual punishment. suppose that we said, we are going to burn you at the stake. but before we do that, we are going to use an anesthetic of completely unknown properties and unknown effects. maybe you will not feel it. maybe you will. we can't tell. you think that would be ok? mr. wyrick: a petitioner in that case would have no problem

satisfying the court. showing that it is a substantial risk of objectively untolerable risk of severe pain. that threshold would be incredibly easy to make in the case. justice kagan: i am saying you do not know about the anesthesia. and maybe the anesthesia will cover all of that pain of being burned at the stake or maybe it will not. the court does not know. mr. wyrick: that isn't the world that we live in, and it's not the world this district court lived in. we know for a fact. this is the conceded facts. their experts say this dosage is going to be rendering the petitioners unconscious, 60 to 90 seconds. we know that induction of anesthesia -- justice kagan: -- induction, but not maintenance. mr. wyrick: and maintenance is keeping it at the state for so many hours for surgery. justice kagan: or the time it takes for potassium clear idea to kill somebody.

mr. wyrick: it is commonly used for painful procedures like setting of a femoral iv. and example is a good example. and we have pointed out that the drug is regularly. and routinely used for rapid sequence intubation. we have experts saying that as i just said that this drug will not keep you sleep, when two -- keep you asleep once these two others are introduced, you will be jolted into consciousness. that is his testimony. i believe he supported that with medical articles. i will look to see. justice breyer: and if support weed have to look to the other side to see what was refuting. what is refuting it on 327. i agree with you that the ceiling effect is a big red

herring here, when actually he said it would go against it was that he said there is an extrapolation from his conclusion that a 500 milligrams could cause death. so if that much is likely to cause death, it certainly is likely to cause a coma. and a coma would prevent the person from pain. but his evidence for that was zero. we know that in fact, lots of drugs can kill people without putting them into a coma so we will look to see what he thinks is if this kills you will first put you into a coma. and when i looked, we found zero. that is my question. what can you point me to that will show that what i think is the key reputation of their expert rests upon zero? that is what i'm asking you. that is what i have tried to ask, in articulately, perhaps. mr. wyrick: again, i have to make this point or not whether it will create a coma or not is not the contusionly relevant question. based on how the nervous system depressant works. justice breyer: i think what he was driving at is that you were in a state such that you would

feel no pain. and the reason he thought you were in that state was because 500 mg will probably kill you. and if it is going to kill you it must, of course -- at least first, put you in that state. so i'm asking the same question but i'm using the words that state in substitution for the word coma. mr. wyrick: because of how a central nervous system depression works -- justice breyer: i want to know where the record he provides support for that statement, that

state proceeds the death. caused by this drug. mr. wyrick: first he described the action by with the drug works as a central nervous system depressant. by causing death. it works by paralyzing the brain to such an extent that you your respiratory drive is knocked out. justice sotomayor: that is the clear error here. it starts right there, because the reason evans thought that is he thought it worked on the spinal cord.

nobody argues that it works on the spinal cord. this is not a central nervous mr. wyrick: this is a central nervous system depressant, just like a barbiturates. justice sotomayor: it has no pain relieving qualities. mr. wyrick: they are both central nervous system depressants. the barbiturates have no pain relieving qualities as well. justice sotomayor: i don't know where you are getting. justice breyer said -- the proof of that. mr. wyrick: it is a conceded fact on the record. a 500 milligram dose will render them unconscious in a matter of 60 to 90 seconds. that means that the central nervous system is working to paralyze their brain and to render them unconscious. it is a conceded fact -- justice sotomayor: they will be that will not tell me that you are not feeling pain or the

noxious stimulant like being burned alive will not cause pain. look at what happens with the integrations. they paralyze your throat then give you a drug. and they are paralyzing your throat. that has its own anesthetic effect and pain relief. so what you are arguing is very different from what is happening here. they are putting a chemical in the inside of you that it is burning you to death. that is the most noxious stimuli i can think of. mr. wyrick: respectfully, you have that backward. they give the paralytic. the second drug here, first, to keep the patient for moving. they give this to anesthetize them, and then give them the paralytic. the same paralytic these petitioners say caused unconstitutional agonizing suffering. rapid sequence intubation is done routinely, giving patients a small dose of this and then paralyzing them with the paralytic. justice sotomayor: they paralyze

them also with the local throat anesthetic. i read it. mr. wyrick: this is a first-line choice. justice sotomayor: it's a first-line on a lot of things. but it doesn't keep you in anesthetic stage. it doesn't keep you during the procedure. mr. wyrick: it can. look at the article cited by their experts which describe the use of the anesthetic. everything i want to point out is the 16 professors briefed. this is the ceiling effect in a nutshell. it shows that a benzodiazepine get you right to a surgical plan of anesthesia but not to beyond. first we would say a surgical plane of anesthesia is sufficient. but go to the source. the source that they cite is the textbook, and read what it actually says with respect to this chart.

here is what it says. benzodiazepine exhibit a ceiling effect which preclude severe cns depression after oral administration of the drug. intravenous administrative and can produce anesthesia. that is what the text actually says. that is what the article actually says. you can produce anesthesia with these drugs. the fact they are commonly not use a general anesthetic's is because we have better choices not because the drug is incapable of producing an effect. here is where their expert started, here is where they started. they said because of the ceiling effect, this drug is incapable of producing a coma. we said someone forgot to tell the fda this, because the warning is right there in the fda labeled coma. they retreated now saying it can't get them reliably to a coma. where's the ceiling effect? is there a basic pharmacological principle that prevents the drug from ever getting to a coma were not? we establish there is not.

we ask you to look at the cases out of florida. the anesthesiologist who was the anesthesiologist for the inmate. justice sotomayor: can i come out of this argument, because you presented a lot of things to us that wasn't before either the district court or the court of appeals. i believe that your experts didn't prove their point at all and that they do showed enough -- why don't we let the district court below sort out whether it still holds to his opinion based on the plethora of materials you have given us. mr. wyrick: two quick responses. one is they didn't meet their burden that it is sure were likely on the record they presented, second, we put plenty of rebuttal evidence on -- enough to support the district court's finding. there is no clear error here.

and the two court rule applies. we have a court of appeals ruling. justice roberts: to an extent that is unusual, you have been listening rather than talking. we are happy to give you an extra five and it. hopefully we will have a chance to hear what you have to say. mr. wyrick: i appreciate that. i will told you about the 1st source, the material safety data sheet. nothing in the reply brief. a study about rats.

we read that study. no mention of the ceiling effect. no responsible reply brief. that is the evidence they put before the district court on what they said clearly demonstrates that there is a ceiling effect. after the fact, at the court of appeals, their experts submitted an additional declaration. they cited two more sources. they took five dogs, give them big and clamps their tails. they said that the effect of the drug slows that a certain time and concluded there may be a ceiling effect because they slowed. but the study concluded if you take the results and extrapolate out once you get to 30 grams per kilogram you have achieved full surgical anesthesia. full surgical anesthesia. there are other experts, the the article for the proposition said that there is a ceiling effect. then it goes on to say this drug has been used for general anesthesia as the sole drug. it has been discontinued because propofol came along it was the better choice. when they stand up and say they clearly demonstrated that there

was in fact a ceiling effect they are just wrong. the doctor claims that the greenblatt study showed that .3 milligrams per kilogram were in effect. we read the study. .3 milligrams per kilogram were never given to the patients. that study was about what happens if you have .1 milligram per kilogram of varying doses were given. we pointed that out. nothing in the reply. their evidence is indefensible. if you go and read the sources and they just don't say what he said they say. paradoxical effects have fallen out of the case. we have pointed out it is only relevant if someone is not unconscious. they just can't avoid the fact the district court made this factual finding and said it is a virtual certainty.

they cannot establish a substantial probability. thank you. >> ms. conrad, why don't you take eight minutes? ms. conrad: justice kagan, i want to address your hypothetical, in this case, if the risk from using the land if petitioners of -- the drug, if petitioners are correct. it will manifest itself in unconstitutional pain and suffering. my friend admitted that. if, in fact, a person is burned alive and did not have appropriate anesthesia it would be unconstitutional. justice kagan: my question was if the person was burned alive and we did not know if they had

appropriate anesthesia, would that be unconstitutional? ms. conrad: it would be. the district court below found that there is a greater risk of using the drug but found it was unquantifiable. if that risk manifests itself there will be a constitutionally intolerable execution. the drug formula issue was using sodium benzo. justice alito: if they rendered version and completely unconscious and then burned alive, would that be cruel and unusual? ms. conrad: i think the problem is not rendering someone unconscious. the problem is is it necessary to ensure the person maintains a deep anesthesia level. justice alito: it is not whether or not they feel no pain at all -- ms. conrad: being burned alive

from the inside. >> that is exactly what it is, justice kagan. >> you think there are certain phases in which burning someone at the stake would be consistent with the 8th amendment? you are not certain about that? ms. conrad: the founder say burning at the stake is unconstitutional. in a amendment violation. in your hypothetical if there was a way to ensure that was done in a humane way, i do not think that any state would go to try to do that because we -- justice alito: you think there are circumstances that burning alive or not be a violation of the eighth amendment? justice kagan: potassium

chloride is burning somebody alive. it is just turning it through the use of a drug. ms. conrad: which is what we have here. and what we found here is that there is a risk. a risk that they cannot quantify. that risk violates the eighth amendment. with this court needs to understand is that the barbiturate that was known to provide a deep coma experience. it does not matter that barbiturates do not have analge sic properties. science tells us it will induce produce a deep coma-like unconsciousness. the reason that is important, it does not matter that they don't have analgesic properties because we know that science and medicine and tells us that they will reliably induce a deep coma-like unconsciousness. the cited study in exhibit two shows the emacs curve explained in his testimony. the state expert has no

support for the testimony that explanation or support for the testimony that he presented when he testified. he did not have data to cite. he was incorrect. he made a mathematical error. what this court needs to understand is that giving the drug, even if it could cause a toxic effect, it will not protect against the unconstitutional pain and suffering from the second and third drug. thank you. >> case is omitted. >> of the high court released two other decision. they ruled 5-4 that the epa must consider cost and decided that arizona can use a commission to draft a federal congressional district. we'll hear more about that in a few minutes. >> on "washington journal," bob

deans of the supreme court decision overturning the obama administration's air-quality will. the justices said the epa must consider cost before issuing regulation. a professor from george mason university school on a 10 supreme court ruling allowing the government to seize private property. and a history professor at the university of virginia on how the memory august of war is affecting the current debate over the confederate battle flag. you can join the conversation by phone or on facebook and twitter. >> the story and the national journal says the supreme court avoided a shakeup upholding the constitutionality of independent commissions rather than striking down the congressional maps in arizona and possibly other states.

really 5-4, is a declined an argument that the constitution only gives ability to draw legislative and could rationalize to state legislatures per the oral argument that led to the decision is about an hour. >> your argument for us this morning, the arizona state legislature versus the arizona independent redistricting commission. mr. clement: mr. chief justice and may it please the court, proposition 106 permanently depressed the state legislature of its authority to prescribe congressional districts and re-delegates that authority to an unelected and unaccountable commission. the elections clause of the constitution clearly vests that authority not only in the states but in the legislatures thereof.

thus, this a valid effort to re-delegate that authority to an unelected commission is repugnant to the constitution vesting of that authority to the legislatures of the state. justice ginsburg: it's all right for the state redistricting. arizona being able to use this commission for the state representation. mr. clement: it only applies to the congressional redistricting. that means that, if these commissions are as effective as the other side says, then we would have nonpartisan districts that would elect the state houses and the state senate. then the nonpartisan gerrymandered perfectly representative bodies would take care of congressional districting. justice sotomayor: are you suggesting that the lack of legislative control of this issue only or are you saying that we have to overturn gillibrand and smiley?

mr. clement: we don't have to overturn gillibrand and smiley. the court was in fact that the legislature would do -- that it means than what it means now which is the representative body of the people. justice sotomayor: we made it clear that we are defining legislature in this clause as meaning legislative process. mr. clement: i'm especially disagree. one side was saying the legislature means the legislative process in the state whatever that is. the other side said, no, he means the representative body of the people. this court said, actually, we don't have to decide that dispute but we certainly agree that it means the representative body of the people just as we said five years earlier.

what the court said is, first, the delegate is clearly the legislature, the representative body of the people. but that is the second question. what kind of authority is delegated to the state legislatures? the authority is a lawmaking authority. that means that the state legislature has to engage in lawmaking subject to -- justice sotomayor: this makes no sense to me. i think it is either or. if the legislature has the power, how can the governor veto it? how can a popular referendum veto it? either they have the power or they don't. the constitution says the people hold the power and they can choose a commission or however else they want to do it. isn't that the legislative process? mr. clement: no, it's not, but i disagree with you, justice sotomayor, but that is not particularly important. what they say is that the delegee remains the same.

they say the function differs. so when a state legislature it tells you it is going to ratify something, there is no pressure or agency of anybody else in a process. but the courts is that is a delegation of lawmaking authority. of course the legislature does its lawmaking pursuant to the ordinary rules. and if they provide for a gubernatorial veto, if they say it has to spend 30 days in committee, then those rules apply to the elections clause just as they do to other lawmaking. but it's a completely different matter to say we are going to cut the state legislature out entirely and revisit the framers decision to delegate this important responsibility to the state legislatures and we will redelegated to a completely different body, a body that has the one feature that a representative body does have.

this commission is unelected. justice ginsburg: can congress substitute its commission for the state legislature? mr. clement: i don't think that congress would say that, at the state level, we are going to redelegate this to the state commissions or two independent commissions. if, as was to do it at the federal level and set up a federal commission, i think that would be a very different issue. obviously, congress has power under a separate subclause. justice ginsburg: if congress does the same thing that arizona has done in saying that that is the way federal elections will be held. mr. clement: i don't think they consider play bless what arizona has done. i think that would undermine the decisions the framers had made in the first clause. we are actually going to take those commission districts and make them our own and impose them.

justice kennedy: if it is the latter, it can only be a commission. mr. clement: what we object to is the permanent resting of authority from the state legislature -- justice kennedy: there is a law that says a portion of the commission must submit its proposal to the legislature and the legislature has 30 days and only can overturn it by a two thirds vote. mr. clement: i think that would be a harder case. the question i think you would ask is does that residual authority from the state legislature amount to the authority prescribed districts? i think you can decided either way. you can say they are not cut outcome lately. they have residual authority.

what you can do under smiley and hildebrandt is apply ordinary rules for legislation to the state legislatures. but what you can to do is come up with separate roles that apply to only congressional redistricting to make it harder for the state legislature to act. justice kennedy: your statement partly answers questions about -- voter id laws. you say those are ok because the legislature is not completely cut out? mr. clement: i think it might depend on the details a little bit. justice kagan: i thought the legislature was cut out in most of these things. you take the 2007, oregon voting by mail. 1962, arkansas, voting by voting

machines. these things were done by the legislative process completely cut out. would they all be unconstitional?there are zillions of these laws. various laws that are put in the -- mr. clement: if you look at the various laws that are put in the appellees appendix, not one of those constitutional provisions purports to on its face three delegate authority away from -- on its face re-delegate authority away from state legislature. if you want to look at the north carolina provision on page 27 -- justice kagan: all they are is laws passed not through the legislative process. mr. clement: exactly. we don't think that is the defect here.

justice kagan: i would think that if your primary argument is legislature means legislature, there has to be legislative control, in none of these laws there is no legislative control. there is no legislative participation at all. mr. clement: we distinguish two situations. we could say the problem with proposition 106 was that it was done by initiative and not by legislature. we would have the same objections here if this were imposed by gubernatorial edict. this court has already said that it's ok for a judicial body like a state court, to do redistricting on a one-off basis. justice kagan: how do you make that consistent with the textual argument that you are making? the argument you are making is that legislature is legislature.

there is no two ways around that. but now there are these many many laws throughout the united states in which the rules are not being made by a legislature and that is perfectly ok because the legislature isn't involved at all. mr. clement: two things. it's not the problem that someone got into the legislatures lane. the problem is that, once they got into that lane, they decided to rest the legislature from the process on a permanent basis. i would invoke this court's case that dealt with an analogous clause that gives the state legislatures the authority to prescribe rules for presidential electors. this court took a practical view of the matter. if the state legislature lets other parts of the state do something, we are not going to jump in. we can think of those us delegation of authority. but it protects the legislature from other parts of the state coming in and permanently resting that authority.

kagan: i thought that our separation of powers juris prudence abdication is as consequential as aggrandizement. if there is a problem, the problem continues to exist irrespective of whether the legislature protests are not. mr. clement: nothing would prevent a state legislature from delegating its authority to one of these commissions. that is not the problem. the problem is that the law either by initiative or gubernatorial edict would be the same, from without to say that the framers thought it would be great. we disagree.

justice kennedy: suppose the legislature propose the referendum. mr. clement: i don't think that would make a difference in my own view. justice kennedy: that is a case where the legislature would make the decision. clement: that is not the situation we are dealing with here. they couldn't get it back. justice kennedy: it is not completely remote because the legislature in our zone a test in arizona can seek to overturn what the commission does by putting its own referendum before the voters saying, please voters, change this proposal -- change this redistricting plan. i suppose the legislature can do that. it has the power to submit a referendum or initiative -- i guess a referendum to the arizona -- mr. clement: i think they have the power to do an initiative. i don't think they have the

power to do a referendum. one of the ironies is the other side i should talk about the power of the people. but the maps are not subject to override. i think all the legislature could do is what any citizen could do, which is to propose an alternative map by initiative process. but whatever that is, that is not the primary power to prescribe congressional districts or to make election regulations. that is what the state legislature -- that puts the state legislature on the same plane as the people. justice scalia: it would be okay if the legislature itself establish this commission, would it not be the same? mr. clement: i would say that is ok because that is a delegation of authority. you may disagree with me, but i think it is consistent with what

this court said in the mcpherson case about the authority of the state legislature to prescribe rules for electors. they can delegate that to some commission. but if they want to take the authority back, as they did in mcpherson, you bet they can do that. and if the state tries to stop them from doing that, that is a constitutional problem. justice kagan: the independent commission has veto power on the states redistricting. in other words, the state can do redistricting and then submit it to the independent commission. the independent commission will say, no, go back and do it again. mr. clement: i guess it depends a little bit on the details of how that works and who's got the ultimate last say in the matter. justice kagan: they have the veto, the independent commission. mr. clement: can it be overridden? justice kagan: does it matter?

mr. clement: i think it does. it would give the legislature a lot more authority than arizona is allowed here. it is a different case. the principle that would allow you to decide that case is to ask yourself the russian of whether or not it allows the state legislature to prescribe congressional districts. which is why it is a hard case. justice kagan: there is a veto at the end of this. mr. clement: if you think it doesn't, then you should decide that case in the favor of the state legislature. justice kagan: this is what we are going to have to do for every time they set up some process further -- for where there is some independent commission involvement. what we have to ask is what exactly? mr. clement: whether or not it is consistent with the constitution -- justice kagan: tell me exactly how we are going to decide all these cases in which an advisory commission plays some role but

-- not just some role, but a very serious role and a little piece left of the legislature? mr. clement: i don't think it will be that hard. let's look at commissions that exist in the world. we have some that are purely advisory. there's nothing that suggests they are constitutionally problematic. a backup commission comes in when two sides can i get it done. justice kagan: what if they commission says we will give you two maps and the legislature has to pick one and only one? mr. clement: i would say that's probably unconstitutional. obviously -- justice kagan: why is that -- justice sotomayor: why is