. >> this week, author and historian robert kagan discusses his latest book. "the world america made." robert kagan, where do you get that title? >> iskandariyah in the middle of the night. i was looking for a title to describe this book and i was having a hard time. it is basically the world order we live in today was created almost entirely by america. after world war ii. it is a different kind of order that preceded the united states. if the u.s. declines will have a different world order again. >> it takes a long time to write a book and to get it published. when did you get this book? >> this was pretty quick. i probably started in spring 2010. 2011. i submitted it to the publisher in november. and they turned it around quickly. >> the first time we heard anything i think was in this new -- this is not that actual magazine. it is the cover. there are lots of pages devoted to it. how did it get into "there public? >> i had been talking to him about the book for a while. he wanted to run with it as a cereal before the book came out. i was happy to do it. it

kagan serves on the foreign-policy adviser board of hillary clinton. more notably, the policy of mitt romney. what about the first one? >> secretary clinton set up this foreign affairs policy board. it is a bipartisan group. it is modeled after what they had at the pentagon for many years. it meets with the secretary of defense periodically. i think we need to the secretary of state maybe three or four times a year. we spend the day thinking about issues. we talk to her. it is a lot of fun. >> you what to say is there a dime's worth of difference? >> election seasons are when people try to sharpen the views. i have been writing that there is a lot of continuity, more than we expect. there is a broad consensus. what you are seeing is the kind that exists in the foreign policy committee. on the extremes, there are differences. it does matter who is president. there are decisions that it made. american for policy has been remarkably consistent over the decades regardless of democrats or republicans. there's a lot of continuity. >> what are the main point

this book: "the world america made," by robert kagan.kagan's a well-known figure inside the beltway, that matrix of think tanks, policy intellectuals, and research centers that have so long and faithfully served to uphold the empire. in it, kagan dismisses what he calls "the myth of american decline," and compares the united states to jimmy stewart's character in the frank capra movie "it's a wonderful life." america is to the world, kagan contends, what stewart was to the town of bedford falls. >> to my big brother george, the richest man in town. >> which without him would have fallen into unseemly hands and disrepute, as the world would have without america. to think otherwise, he writes, is "wishful thinking." not surprising that president obama, according to "the new york times," has "brandished mr. kagan's analysis in arguing that the nation's power has waxed rather than waned. and just who is robert kagan? well, he served in the state department when reagan was president. he advised john mccain in 2008 and these days is special ad

kagan, with all due respect, i don't think that's a limiting principle. my unwillingness to buy an electric car is forcing up the price of an lech drik car. if more demanded an electric car -- >> this is very different, mr. clement and it's different because of the nature of the let care service that you are entitled to health care when you go an emergency room, when you go to a doctor, even if you can't pay for it. so the difference between your hypotheticals and the real case is the problem of uncompensated care. >> well, justice kagan, if i don't buy a car and somebody goes on welfare, i'm going to pay for that, also. there's a real disconnect between the focus on what makes this different and the statute that congress passed. if all we were concerned about is the cost sharing that took place because of uncompensated care in emergency rooms, presumably we'd have before us a statute that only addressed emergency care in catastrophic insurance coverage, but it covers everything. soup to nuts and all sorts of other thing. that gets at the idea that there'

>> not necessarily, justice kagan. we're not here with a one trick pony. we point to three statures. one is the size of the program. and if you want a gauge on the size of the program, the best place to look is the government's own number. footnote six. >> so when does a become too big? give me a dollar number. >> $3.3 trillion over the next ten years. >> the amount approximately if you look into it as a percentage of gdp, it's big. but it was about 2.0% of gdp. it will go up to 3% of gdp. now look at the kovrp rabble numbers, which i did look at, with the expansion that we're talking about before. or even from 0 to 6. and while you can argue those numbers, it's pretty hard to arg argue. if i'm right on those numbers, or even roughly right, i don't guarantee them. then would you have to say, well, indeed. medicaid has been unconstitutional since 1964. and if not, why not? >> the answer is no. that's because we're here saying three things make this unique. >> what is it? i'm on pins and needles? >> one is the sheer size. two is it's uniquely tied to a manda

elena kagan?> i don't know the answer to that but by wide acclaim, i've read the arguments, the solicitor general did not do a very good job. i know these issues pretty well. i found him hard to follow. it is funny to read the arguments. the liberal justices like breyer and ginsburg think this guy is not doing the job he needs to do and they begin butting in to make his arguments for him. so it is widely believed he did not represent the bill all that well. one of the justices is elena kagan who was barack obama's solicitor general. i don't know if she would have done a better or worse job. if he had chosen another pick for his second supreme court nominee, she might well still be his solicitor general and she would have been arguing the case today instead of sitting on the other side of the bench. whether or not the obama administration in the long run will wish she was there, it is anybody's guess. >> you know this point. i've heard it before from the white house. one of the reasons why presiden

ginsburg, breyer, sotomayor, kagan.was even more striking was the conservatives, right out of the box. it was 15 minutes before a liberal justice got asked a questi question. justice scalia, justice alito and even justice kennedy who was often described as the swing vote but today was very sympathetic to those challenging the law. he did not say one thing in the course of two hours of argument that gave me the sense he was thinking of upholding the law. among the conditionsservatives, only justice who seemed sympathetic to the obama administration side was chief justice john roberts and i didn't think he was that sympathetic but did say some things that he understood that congress saw this was a national problem that needed a national solution, and you could see a scenario where he might vote with the four liberals. if i had to bet i would certainly bet after hearing this argument that this court is going to strike down the individual mandate. >> i'm trying to do the chess pieces in my head. look, if this is political i

you know, and that seems strange to us today because today for the -- well, since elena kagan came on the court that's no longer true, but leading right up to elena kagan's nomination for the first time in american history we had a supreme court all of whose members had as the most recent line on their resuÉe having been a federal appeals court judge. the framers would have found that remarkable because they really envisioned the supreme court being drawn from the heart of american life, american political life. the last justice we had who actually held herself out to the people for elective office was justice o'connor who had been majority leader of the arizona state senate. and she, her jurisprudence was unique on the court at that time, and i think it had a lot to do with pragmatic sense of getting down to it and getting things done that she was nurtured in her, by the fact that she had been an elected office holder. so that's certainly been a change. there's, obviously, been a change in religion on the court. it's quite remarkable, though, when justice stevens retired two years ag

. >> well, justice kagan, i'm not sure that's right. i think what health insurance does and what all insurance does is allows you to diversify risk. it's not just a matter of, i'm paying now instead of paying later. that's credit. insurance is different than credit. insurance guaranteed you an up-front locked in payment you won't have to pay more than that even if you incur much greater expenses. every other market i know of for insurance we let people basically make the decision whether they're relatively risk averse, non-risk averse and they can make the judgment. >> but we don't in car insurance? meaning, we tell people -- not we, the states do. although you're going -- i'll ask you the question. do you think if some states decided not impose an insurance requirement that the federal government would be without power to legislate and require every individual to buy car insurance? >> well, justice sotomayor, let me say this which is to say, you're right on the first point to say the states do it, which makes it different right there.

the state and figures out a way for the secretary not to use the power. >> that's correct, justice kagan -- >> no. >> i'm sorry, go ahead. >> it's another way of trying to say what i was trying to say to justice scalia earlier is that the states and the federal government share a common objective here which is to get health care to the needy, and in the vast majority of instances they work together to make that happen. >> but the question is not -- obviously the states are interested in the same objective and they have a disagreement they have budget realities they have to deal with and states say, well, we're going to cut by 10% what we reimburse this for or t federal government says, well, you can't. no one is suggesting that peopl they have different views about how to implement a policy in this area, and the concern is that the secretary has the total and complete say because the secretary has the authority under this provision to say you lose everything. no one has suggested in the normal course that will happen, but so long as the federal government has that power, it seems to be a

kagan's question was anything better than that that hypothetical. but the nature of the things, that i do think the amount of the money, even considered alone does make a difference and it's precisely because it has an effect on their ability to raise revenue from their own citizens so it's not just free money that they're turning down if they want to. >> if we go back to that era of matching what a state pays to what a state gets, florida loses, its citizens pay out much less than what they get back in federal subsidies of all kinds, so you can't really be making the argument that florida can't ask for more than it gives because it's really giving less than it receives. you don't really want to go back to that point, do you. >> then i'll make that -- it's one aspect of what makes this statute uniquely coercive, and i think if you ask the question, what explains the idea that if you don't take this new money, you're going to lose all your money what you've been doing for 45 years to help out the vizly impaired and the disabled. nobody wants the cong

>> that's correct, justice kagan. it's never been used - >> what about the arizona letter we just heard about today? >> it has never been used to cut off - >> it's been used to threaten - >> of course not. >> of course no state is going say, okay, go ahead, make my day, take it away. they're -- they're going to give in. >> if we could go to the situation we have here, mr. chief justice, this -- with respect to the medicaid expansion, the states' argument is, as they've said in their briefs -- they articulated a little bit different this morning -- this afternoon. but as they said it in their briefs was it's not what you stand to gain, but what you stand to lose. but i think an important thing in evaluating that argument in this context is fully 60% of medicaid expenditures in this country are based on optional choices. and i don't mean by that the optional choices of the states to stay in the program in '84 or '88 or '89. but -- but states are given choices to expand the beneficiaries beyond the federal minimum and to

they operate as advisory rather than mandatory. >> but justice kagan, i should think booker supports our point as well. there are two aspects of the remedial holding of booker. in the first part which i think supports our point is where the majority rejects the report of the decent which would have required nothing to be struck. this court said if you do that then all of the sentencing is basically going to be done by the jury and the prosecutors. that's not the manner congress thought this should operate. they make a different judgment about which provisions to cut out. but i think booker's consistent with this way of looking at it. certainly, that court reached that part of the opinion after they found that the must hire provision operated independent from the legislative -- >> there are so many things in this act that unquestionably okay, i think you would concede that reauthorizing the indian health care improvement act, changes to the -- why make congress redo those? it's a question of whether we say everything you did is no good, now start from scratch. or to say yeah, there ar

. >> i was facing the same dilemma, justice kagan. >> let me ask a question that i asked mr. clement. it just seems -- >> what it means to be the junior justice. >> it just seems very strange to me that there's no question we can have a social security system besides all the people today, i'm being forced to pay for something i don't want, and this would seem to me to try to get care for the ones who need it by having everyone in the pool, but it's also trying to preserve a rule for the private sector, for the private insurers. there's something very odd about that, that the government can take over the whole thing and we all say, oh, yeah, that's fine. but if the government wants to preserve private insurers, can't do that. >> well, i don't think the test of a law's constitutionality is whether it more adheres to the libertarian principles of the kato institute or the status principles of someone else. i think the test of a law constitutionally is not the policy questions. it's whether or not the law is regulating things that negatively affect commerce or don't, and since ob

elena kagan, highly accomplished mainstream nominee, was bothered by the whole business of harvard law school not allowing military recruiters to be lawyers in the military. as if she made up that policy. it was a standard policy of the law school trade association. all were supposed to behave that way. it was 90 elena kagan creation even fewer republicans voted for perth and soda might your one year earlier. so in the landscape of the senate confirmation is a battleground. both of the vacancies these are nine game change years. with those vacancies filled will not change. but one day it will. eventually all we'll leave but i have no idea when but a justice who holds a central position the day that nomination the game changer will have been. and have been when the was powell retired. rehab the titanic battle still going on today. it informs how we think about the nomination process. i personally hate to think of what will occur when that vacancy occurs. talk about the work battle, recent political events should make us rethink the take away which was a definition of the political mains

>> i don't think that's a fair characterization of the actions of congress here, justice kagan. on the december 23rd, a point of constitutional order was called too, in fact, with respect to this law. the floor sponsor, senator baucus, defended it as a result of the taxing power in his response to point of order. the senate voted 60-39 on that proposition. legislative history is replete with members of congress explaining that this law is constitutional as an exercise of the taxing power, was attacked as a tax by its opponents. so i don't think this is a situation where you can see that congress was avoiding any mention of the tax power. one thing if congress explicitly disavowed an exercise of the tax power. given that it hasn't done so seems to me that it's not only fair to read this as an exercise to the tax power but this court has got an obligation to construe it as an exercise of the tax power if it can be upheld. >> why didn't congress call it a tax then? you're telling me they thought of it as a tax, defended it on the tax power. why didn't they say it was a tax? >> they

robert kagan was featured last week on this network. his review this morning in "the washington post." joining me from washing, d.c. good morning. caller: i do not believe we are in decline. it is relative in the sense that our country is about to catch up. it is also education. if we reinvest in education, we will be ok. right now, we do get the most nobel prizes. countries like singapore and taiwan, they like our ships. they like our presence there. we invest in ourselves and our technology, our human resources. try not to fight. i think we are not in a decline. host: thank you for the call. we're checking with many of you are saying on our twitter page as well. you can also join us on facebook. this is from one of our viewers about why the u.s. is in very terrible space, but less-worse than any other the words of we go back to clarence page from "the chicago tribune" website. is america in decline? no way, says president obama. but some grim news reports on our educational gap. some surprising good news/bad news. the gap between whit

you leave that, i'd -- i'd appreciate it if you would expand a little bit on the answer to justice kagan's question for the reason, when i read the cutoff statute, which as i said has been there since 1965 unchanged, it does refer to the secretary's discretion to keep the funding, insofar as the funding has no relationship to the failure to comply with the condition. and as i read that, that gives the secretary the authority to cut off all the money, but the states' refusal to accept the condition means they shouldn't have. but nothing there says they can go beyond that and cut off unrelated money. now, there is a sentence says maybe they could do that. i thought they had to exercise that within reason. >> right. well - >> i don't know when it be reasonable. so, you've looked into it, and that's what i want to know. >> right. >> is there -- i could find no instance where they went beyond the funds that were related to the thing that the state refused to do or things affected by that. i would like you to tell me, when you looked into it, that what i thought of in this isolation chamber here

host: about justice kagan?st: that issue was that she was the solicitor general on the day the bill became law. very shortly after that, i think the bill was signed in late march of 2010. early may, she was appointed to the supreme court. her view, and she said it at her confirmation hearings, is that she would not participate in any cases where she did any legal work on the case, where she signed a brief, approved a filing. if she did legal work, she set out those cases. she said she did not do any legal work on a challenge to the health care. it was just getting under way. her view is that if she did not do legal work on the case, she could participate. there's no rule that says a new justice cannot participate on laws that came out or that were supported by the administration that he or she came from. host: american hero on twitter said this. guest: all of us are select citizens who are allowed to go in. we take notes. host: you are referring to the reporters? guest: yes, and i think the lawyers can also set

>> well, justice kagan, i think there are situations where half a loaf is actually worse. >> reporter:aul ement prests 2stat figing e afrdable care act. if the court declares the individual mandate is unconstitutional, clement says keeping the rest of the law makes no economic sense. the new marketplaces for insurance would not function well, and insurance companies would be saddled with huge costs. that hit home with justice anthony kennedy, who often casts the deciding vote in the court's closest cases. >> we would be exercising the judicial power, if one act was... one provision was stricken and the others remained, to impose a risk on insuranccompies at coressad ner intended. by reason of this court, we would have a new regime that congress did not provide for, did not consider. that, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike... than striking the whole. >> reporter: health care stocks may have had a muted reaction to the supreme court arguments, but after three days opinion has clearly shifted from a low probability the c

justice kagan.owd "booing"] as president obama's top pleasant lawyer she was involved -- apellent lawyer in the beginning. they was involved in preparing legal defenses for the president's health care law as early as january 2010. two full months before the mandate was a law. imagine that. preparing to defend a bill that is not even a law yet. i think someone was a little worried. given the past involvement, kagan ruling on obama care is like a football coach leaving the football game at half time and returning in the second half as the referee. i don't like that idea either. kagan made the coaching calls to involve the department of justice in the case. she hand picked her own political deputies to manage the case defending obama care. kagan read the administration's playbook as her team of lawyers e-mailed her about the arguments they would use in court. title 28. chapter 455-b requires recusal in any case where a judge or justice has served in governmental employment and in such capacity particip

you can go back to, go back to justice kagan. don't forget her question. >> i've forgotten my question. [laughter] >> i was facing the same dilemma, justice kagan. >> let me -- let me ask a question i asked mr. clement. it just seems -- >> see what it means to be the junior justice? [laughter] >> it just seems very strange to me that there's no question we can have a social security system besides all the people who say: i'm being forced to pay for something i don't want. and this it seems to me, to try to get care for the ones who need it by having everyone in the pool, but is also trying to preserve a role for the private sector, for the private insurers. that, that the government can take over the whole thing and we all say, oh, yes, that's fine, but if the government wants to get -- to preserve private insurers, it can't do that. >> well i don't think the test of a law's constitutionality is whether it more adheres to the libertarian principles of the cato institute or the statist principles of someone else. i think the test

. >> brookings institution fellow, rob better kagan is not only am advisers to the romney campaign but serves on secretary of state hillary clinton's advisory board. >> what i've been writing for years, actually, there's a lot of continuity in american foreign policy. a lot of broad consensus and i think what you're seeing here is the kind of consensus that exists in the foreign policy community and probably, there's a lot of overlap between the two parties. >> more with robert kagan an foreign policy and his latest, "the world america made" that's sunday night at 8:00 eastern. >>> survivors of the costa concordia ship wreck today testified that the crew on board told passengers to go back to their cabins more than an hour after the ship ran aground off the coast. the death toll from the accident now stands at 25. the house transportation subcommittee on maritime transportation held a hearing on cruise ship safety that also included witnesses from the coast guard and the cruise ship industry. >> i want to thank the witnesses for appearing today. and we want to note on behalf of the sub

. >> i don't think so, justice kagan, because we have an adversarial system, not inquisitive. the parties maintain their lawsuit i think is the more natural way of thinking of it. if i could turn to the merits question on the aia before my time runs out. the purpose of this lawsuit is to challenge a requirement, federal requirement to buy health insurance. that requirement itself is not a tax and for that reason alone we think the anti-injunction act doesn't apply. what the amicus effectively seeks to do extend the anti-injunction act not just to taxes which is how the statute is written, but to freestanding, non-tax legal duties. and -- >> the whole point of the suit is to prevent the collection of penalties. >> of taxes, mr. chief justice. >> well, prevent the collection of taxes, but the idea that the mandate is something separate from whether you want to call at penalty or tax doesn't seem to make much sense. >> it's entirely separate. let me explain to you. >> it's a command. mandate is a command. if there is nothing behind the command, what happens if you don't follow th

. >> brookings institution fellow robert kagan is not only an adviser to the romney campaign, but also serves on secretary of state clinton's foreign policy advisory board. >> what i've been writing for years actually is that there is a lot of continuity in american foreign policy, more than we expect. a lot of consent, a lot of broad consensus. and i think what you're seeing here is the kind of consensus that exists in the foreign policy community, and probably there is a lot of overlap between the two parties. >> more with robert kagan on foreign policy and his latest, the world america made, sunday night at 8:00 eastern on c-span's q&a. >>> interior secretary ken salazar discussed the department's 2013 budget requests before the senate energy and natural resources committee tuesday. president obama has requested $11.4 billion for the department. salazar says it's a gad budget, but it also requires the agency to do more with less given the tough fiscal times. this is just under two hours. >> okay. why don't we get started. this morning the committee's reviewing the president's propos

general verrilli: i don't think so, justice kagan. first, we think i guess i'm repeating myself and i apologize, but we think the closest analogue is the very next provision in the united states code, 7422(a), which this court has held is jurisdictional, and is phrased in exactly the same way as 7421(a). in fact, as i said, they were the same provision back in the earlier days. that's the closest analogue. this isn't and it's actually 7422 that's a statute that says do something first. but this - this statute is just a flat-out command that no suit shall be maintained to restrain - justice kagan: i take the point - general verrilli: the assessment or collection. justice kagan: bu if you would comment on the similarities of reed elsevier to this case. how do you think it's different, if at all? general verrilli: well, because the the i think the best answer to that is there are no magic words. and that history and context matter, as the court said in henderson. and the history and context here is that 7422 and 7421 function together to

policy community and probably there is a lot of overlap between the two parties. >> more with robert kagan on foreign policy and his latest the world america made sunday night at 8:00 eastern on cspan's q&a. >> all weekend long, american history tv joins our comcast cable partners in sri pohrevepo louisiana. shreveport, founded in 1836, has a population of about 200,000 people and is located about 250 miles northwest of baton rouge. you're watching american history tv on c-span3. >> we are standing in oakland cemetery, which was the original city cemetery that dates back to 1847. and it was the primary city cemetery until about 1895 or so. one of the reasons that 1873 is so important to this region and to this city is that the great yellow fever epidemic decimated the city and really changed the course of the history of north louisiana. and this city in particular. within two weeks, we lost a quarter of the population to the city inside the city limits. 800 to 1,000 people are in this cemetery. if you pan over and you look at the top of that hill, that's the yellow fever mound. a common tr

the solicitor general was emphatic in discussing this in questions asked by justice kagan and justice alito that if you don't want to have insurance, don't want to buy it from a private party all you have to do is pay the penalty which never exceeds 2.5% of adjusted gross income and you're fully in compliance. justice kagan said "suppose someone didn't abidey the ndate but theyid pay the extra percentage point or two with their income taxes and they're asked later when they apply for a job have you ever violated a federal law? what would their answer be?" and the solicitor general said "the answer to that question is no. this law just gives you an incentive to either have coverage or pay a relatively modest penalty and therefore it doesn't..." he didn't go on to say this but it doesn't raise the great issues of liber th people who are challenging say that it does. >> rose: okay. >> well. >> rose: go ahead. >> look. the liberty issue i think... it's always nice when you do these things so soft pedal the implication bus in terms of the tax injunction act, 2015 is a long time away and ri