i don't know about that kind of document -- doctrine. the because you can say that because they prefer not to be regulated, the agency loses its power. parks that's not quite the point we are making. the first is necessity. if everyone is vaccinated, it's not in great danger. >> i would like to return to the question of who decides. we have all come to the point where states have a wide police power under our constitutional system. congress has to regulate consistent with the clause and make the major decisions while agencies can do the work the congress is given them to do but not other kinds of work. the major questions doctrine regulates that interaction between congress and agencies. it is not that judges are supposed to decide public health, it's about regulating the rules of the system to ensure that the appropriate party does. the question in my mind turns a lot on the major questions doctrine. this one that has been given to the agencies to decide or ones that congress has to make is a major question under our federal system. i h

is also a doctrine that would avoid nondelegation concerns. even if there were clear can statute -- statutory concerns, non-statutory concerns -- the term necessary here there is plenty of room to implement the major questions doctrine in addition to all of the workplace tethered languages and the plaintext. >> secondly, i would like to understand your argument and your colleagues argument from ohio, i believe it is. why the court should enter a stay. immediately. you have asked for immediately relief. the -- why should the court give immediate relief? >> the short answer is, as soon businesses have to put off their plans, workers will quit. it will be a permanent worker displacement that will ripple through the national economy. we talk about the nonrecoverable costs that the government concedes. we can talk about the businesses that will be put out of business. there are appendix of pages 375 to 80 saying many businesses say it would be catastrophic and bankrupt their company and be the most devastating event their company experienced. that

do you think there are two separate doctrines, or is it just one doctrine? mr. kneedler: we think it is just one doctrine. the question of the privilege in the first instance goes to the exclusion of the evidence from the proceeding, but then the next question is, what happens if the evidence is excluded? in that situation, where the evidence is so central, at least to the case, or its adjudication would risk disclosing information at the core of the case, the case should be dismissed. in fact, this court's decision in tenant vs. doe rejected the claim, in contention that the doctrine of cotton was simply a contract doctrine. the court said kotten was not so limited. the court, quoting the hazard from kotten, said public policy for bids the maintenance of any suit in a court of justice. the trial would inevitably lead to the disclosure of matters which the law itself regards as confidential. in reynolds, it spells, while the court was dealing with a privilege, it pointed out that kotten was a particularly clear case, and it was not necessary to even get into the

do you think the two separate doctrines or just one doctrine? >> we think it's one doctrine. what happens if the evidence is excluded. the evidence is so central. the contention of the doctrine of cotton was a contract doctrine. the court said it was not according to the famous passage from cotton said public policy makes it any court of justice. the court was dealing with the privilege that pointed out that cotton was a particularly clear case and not necessary to even get into the question of evidence because the case concerned the existence of a agreement that was central to the case. the o complaint was alleging existence of a secret item that was protected by the security. the adjudication of the case would concern the sources and methods of foreign intelligence investigation. >> thank you. the nineth circuit. the state secrets prifr ledge with respect to the with respect to the ability of the judge to determine whether after reviewing the information that was necessary, that it thought necessary, that it then should determine whether the seizure was lawful or unlawful u

do you think they are two separate doctrines or is it just one doctrine?>> i think at bottom it is one doctrine. the question of the privilege and in the first instance, it goes to exclusion of the evidence. >> yeah. >> but exclusion of the proceeding. but the question is, what happens if the evidence is excluded? in that situation, as we've heard here, the evidence is so central, at least the evidence that this is central to the case, where it's adjudication would risk disclosing information to the court case, the court case should be dismissed. and in this court, in -- versus though, it rejected the contention that the doctrine of tottenham was simply a contract doctrine and the court said that cotton was not what -- it concluded that public policy forbids the maintenance of any suit in a court of justice the trial of which would lead to the disclosure of matters which the law itself regards is confidential and itself, the court was dealing with a privilege it pointed out that was a particularly clear case and it was not necessary to even get into the qu

i was 11 of the 2 foundational techniques and the c, a doctrine of a psychological torture. they discovered a self inflicted pain. what they described in that, in their, in their co author article was that the most devastating technique that the k g b or the inc apd practice was not crude physical beatings. but simply making subjects stand immobile for hours and days at a time. if you force a human being to stay in a certain position, especially position that puts a little stress on ligaments or muscles or bones, joints. it doesn't take very long for the pain involved to become absolutely excruciating. but nobody slain figure finger on you. you are doing it to yourself. ah, that was one of the techniques, the over technique i discovered was from the a, the biomedical research. there was dr. haps work. it was the chair of the psychology department, and mcgill university in canada. students volunteered to participate in the study of human behavior under extreme and prolong monotony. their hands and arms were softly covered to muffle a sense of touch, all harsh lines, some due

he has constitutional lysing aspects of the doctrine, limitations on the doctrine. he says the constitution specifies the binding law, constitutional law, not what judges say about. in that sense he may be moving things away from a provincial inquiry and take it as an opposite of a recent suggestion justice kavanaugh that constitutionalize is not limits on the doctrine, but the basic doctrine is an aspect of how judges decide cases under article three. our panelist have decided not to do opening stasis -- statements. we are going to jump right in. i will start posing some questions, i hope the discussion takes off and i can sit back and catch my breath here the first one is, i gave you a very simple definition of originalism. there is a bunch of different variations when my look for, intent, meaning. this is something greg max has written and thought about it greg, once you give us a primer on what the fossils looking for. greg: let me say thank you to the heritage foundation and putting this together and inviting me. it is a great honor. in terms of originalism the

we are not sure exactly how much the repeal of the fairness doctrine actually led to his rise. more broadly, we can talk about how something like the fairness doctrine should be reinstated or how effectively it was used at the time, but i do want to say that is something you hear a lot is actually pretty complicated. i think the forces that are behind something like, you know, the disinformation by fox news about vaccines, the pandemic more broadly, i am not sure you can pin all of that on the fairness doctrine -- or the repeal of it. host: who are all those other, you know, people that people point to, as far as the key, you know, shapers of the conservative movement? caller: sure. well, this is something we try to think through on the show. you have more popular radio hosts, fox news hosts, like rush limbaugh, and then you have more highbrow, intellectual thoughts, like the national review. but you see that bill buckley was a big fan of rush limbaugh's. the national review has given rush limbaugh awards. we make a decision between highbrow and low-brow, but sometimes the line

you didn't want to say that you also didn't want to challenge the state action doctrine entirely and say that there is no there's no there's no distinction between the state on the one hand the public and instead the private and instead you introduce, you know, an interesting three-part set of categories in which we have a public and governmental. public and nongovernmental and private and non-governmental these are these are categories that i hadn't encountered before in my reading in this in this space and i imagine that what's going on there. is that if you want to create a charter for individual liberty that restrains the state it's dangerous to start inviting the state to manage conduct between private parties. and so that's a complicated line for you guys as you as you walk this 14th amendment out in to the private sphere. am i my right to sense some some stage management on your parts. well, i think you're absolutely right to call attention to the three categories. in fact, i'm about to give a talk to the national national lawyers convention of the federalist society to on fri

russia has an equivalent doctrine and capabilities to coerce u.s. behavior. today ukraine is facing coercive threats from russia. the deployment of additional russian forces along the border, designed to shape u.s. behavior, vis-À-vis ukraine. and nuclear-capable russian bombers are flying over belarus airspace near the polish border. ongoing information operations are important, but at any moment -- in the taiwan straits, eastern europe -- we could fall into an edge of war crisis. let's get ready for operations designed to divide the west and discourage us from coming to the aid of those that we need to. the recommendations that elisabeth and john have offered offer a terrific foundation for defeating coercive operations, but much more remains to be done. i look forward to discussing those defensive options, and elisabeth, your ideas on deterrence, in the minutes to come. thank you, john. mr. ferrari: thank you, paul. i would like to now invite elisabeth to say her opening remarks. ms. braw: thank you. if i can add to what paul said, because he didn't mentio

and how they apply it and how they come together and how they think about they are creating doctrinesa black woman, someone whose life experiences are shaped by how race, how gender have shaped their perspectives, will be really important on the bench. it will be really important, given the kinds of controversial cases coming up, roe versus wade, affirmative action, having somebody who might bring that lens, who might see something that a fact that may see a legal doctrine, who might — the harms of a particular case from someone who has not had that life experience, might not understand them, is really, really important. it's also really important because even if you don't have the majority, it will shape the nature of the conversation that's happening behind the doors when the supreme court justices are discussing the cases, right? and that conversation is so important to what the majority decision comes out like. now, after growing up in care thinking he was an only child, bbc journalist ashley john—ba ptiste suddenly received a message from a man who said he was his older brother.

russia has an equivalent doctrine and capabilities to coerce u.s. behavior. today ukraine is facing coercive threats from russia. the deployment of additional russian forces along the border, designed to shape u.s. behavior, vis-À-vis ukraine. we could fall into an edge of war crisis. let get ready for information that divides the west and discourage us from coming to the aid of those we need to assist. the recommendations that elisebeth and john have offered in their respective studies offer a terrific foundation for defeating coercive operations. much more remains to be done. i look forward to discussing those defensive options and, elisebeth, your ideas or deterrents in the minutes to come. thank you. ms. braw: thank you. if i can add to what paul said, because he didn't mention it himself, he has written a fantastic study. i think it is the most important study that has been written about electric grid security, primarily electricity, but it may seem like an irrelevant question until we don't have electricity. so, what i would like to talk about is what d

and how they apply it and how they come together and how they think about they are creating doctrines are shaped by race and gender, have shaped by race and gender, have shaped their perspectives, will be really important on the bench. it will be really important, given the kinds of controversial cases coming up, roe versus wade, affirmative action, having somebody who may bring that lens and see something that a fact that may see a legal doctrine and the harms of a particular case from someone who has not had that life experience, might not understand them, is really, really important. it's also really important. it's also really important. it's also really important because, even if you don't have the majority, it will shape the nature of the conversation happening behind the doors when the supreme courtjustices the doors when the supreme court justices are the doors when the supreme courtjustices are discussing the cases, right? and that conversation is so important to what the majority decision comes out like. the person who is writing the opinion at the supreme court is trying to

of article 3 standing doctrine. it is to limit the jurgs of of article 3 courts to disputes that arise because the plaintiffs conduct of his own life is being interfered with in some way. it is to prevent the courts from being used to resolve purely abstract disputes that don't arise out of any actual injury to the plaintiff. and if the plaintiff can circumvent that restriction by manufacturing. >> turn my question on standing into one on the merits. how are you supposed to way such imponderables, such as the marginal burden on the exercise of first amendment rights against the marginal assistance in preventing corruption? is there isn't a sufficient anti-corrupt interest up to 250,000 but then all of a sudden there is. exactly how is that analysis supposed to proceed in concrete terms? >> we don't pretend that it is a bright line rule. but i think we would say two or three different things. the first is there are severe restrictions on gifts to officials in all three branches of government. so there is an establish

he then does the same thing with the overbreadth doctrine in the smith case a few years later.he criticizes the overbreadth doctrine and says, look at what we are doing in the name of due process. instead of evaluating whether this individual's speech is protected by the first amendment, we are asking whether this state law, so this both has horizontal and vertical structural restraint concerns for justice thomas, both vagueness and overbreadth doctrines were with respect to both structural restraints, we are asking, well, in a hypothetical case, this law might be applied to protected speech. we are not asking whether this individual has a real injury here. we are asking whether it might be problematic in another context. again, we are pretending that we have this power, what is essentially a legislative power, to balance certain cost and benefits and to protect certain speech that is not the speech engaged in by the person who is before us. in a real sense in this area, he is parting ways with justice scalia, but here is justice thomas, who is the defender of the limits of jud

there is a ready made doctrine for the situation i'm describing and that's skidmore. what do you think? i'm not as definite as i sound. >> i'm not here to reject any deference you want to give us -- >> we want to get this right for the reason it has implications well beyond this case. >> justice breyer, the provision we're interpreting here says as calculated and adjusted by the secretary as necessary for purposes of this paragraph, i think you'd be hard-pressed to find a more implicit delegation of authority -- >> of course there's delegation, but the question is does that word purposes mean purposes more directly related to section 14? or does it mean purposes that might be broad enough to come in under two? and that would underscore justice kagan's point about eviscerating through the use of two the limitations that is set in one. now, having listened to this and not before i now think that's a fairly -- i do think it's a fairly important question. >>> i don't see how the agency would be given the power to shift from the one to the other. at this moment i'll change

did believe the soviets sought the fruits of war and the indefinite expansion of their power and doctrinesonly proper response was to hold fast. i am convinced that there is nothing they admire so much as strength. predictably, the world's reaction was outrage, and his stance against moscow was thought to be dead wrong. president truman, who had personally invited and introduced churchill, insisted that he had no idea what was in the speech ahead of time although many historians now believe truman was aware of what churchill had written. the chicago sun times called the speech poisonous. ing one new york paper described the speech as an ideological declaration of war against russia while many in congress called it shocking. on the trip back to london, crowds gathered outside his hotel chanting, winnie, winnie, go away. united nations is here to stay. a british foreign office report on the speech found churchill's conclusions were supported in military departments but condemned by congress, the media and the public. nevertheless, it stated the speech gave the sharpest jolt to american think

and certainly in the school context where you have the tock do flynn of -- doctrine of apprentice.er sort of interesting area,g campaign finance and anonymous speech which i know someoneai else will get into. he recently in a concurrence in united states v. or smith which was really not at all about free speech because it was about the principlee of party presentation which he also really cares about, he wrote a concurrence questioning the whole concept of the overbreath doctrine where you can come in and say, well, you know, it may not be unconstitutional to me, but there are all these other hypothetical third parties that might be affected that we should strike this down. and i'llat come back to that. i think there's an interesting observation there about how he really, really, really doesn't likeob rules that allow judges o insert policy judgments, right, and do things on an ad hoc basis. the, there's obviously a huge one is commercial speech. he does not think that there should be with really a doctrine of commercial speech, and i think this gets to his idea of, you know, it's

congress will not limit itself and it will not stop violating the nondelegation doctrine which the court fringes from enforcing that, it should which it says legislatures can make laws not other legislators. the congress to stop delegating legislative powers to executive agencies. such as the power to have an erection moratorium for the centers for disease control or the power of osha occupational safety and health administration to impose mandates on private sectors and companies. >> what do you think there is a reference left overturn the band which when outside the emergency powers in the mass media can be a question, what do you think of the most important decisions that impact american lives in the modern time i remember john being reluctant to overturn obamacare and going to tax ecology on the tax mandate. i find it hard to have a lot of faith in i what's coming and tht there will be a counter to many things. they get judged out of the trump administration kavanaugh. >> it depends what you can consider modern which is education which gave an enormous prestige and perfusion because

we have a north nordic solidarity, a doctrine, and we also have a solidarity doctrine in the we're p and union. but being a partner to nato doesn't provide the guarantee of mutual def. instead, allies get and wit, pull yonce, in head of the swedish parliament's defense committee, feels his country needs. we can hope we can assume we can wish that we get the support from nato. but we cannot no longer rejoined alliance. a recent poll shows an increasing number of swedes support nato membership. but that still only amounts to about a 3rd of the population. for now, anyway, if something very serious would happen in this part of the world with mr. booth and decided san something him in the baltic region here. i think we would apply very quickly. but then the question would be whether need or would accept a country already in dire straits, especially if gauntlet were gone. terry, from your reporting there, what is your impression, how realistic is it that gotten really is in the kremlin sites? well, you could see from that map just how important got lend is. so it's not necessarily that th