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tv   Key Capitol Hill Hearings  CSPAN  October 7, 2014 8:00am-10:01am EDT

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corrupt. that kind of reform, is it the basis for a partnership between russia and the united states in advancing it, or to return to the previous question, do the russians here's a set reforms? >> what is russian -- >> i'm not quite sure i understand, either of us understands the question. reform in ukraine that poroshenko is talking about, reform in ukraine? >> yes. >> and the question is that would be the basis for some type of cooperation? if you want to -- >> eyed, i didn't -- med i don't know the details of the settlement. but you spoke about corruption. yes or no? >> yes spent about corruption.
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corruption, i think this is one of the problems which was reason of explosion in maidan one year ago. that's what it's going you have corruption is one of the problems, but i think ukraine, it's not only problem of ukraine, corruption. corruption is one of the main problems but, unfortunately, unfortunately for different reasons after the situation of the soviet union, the situation of the ukraine as independent state, not only corruption but the principle of democratic countries, institutions, parliament, judicial system and economic system, that's what i
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don't think it is so easy to say only with corruption. first of all if you don't have the whole system they cannot struggle against corruption. for corruption unique institutions. without institutions you cannot have corruption. that's why when i said before, we need bold roadmap which we can propose or elaborate, we live with ukrainians, ma not without. but we can help them political, economic, social, including corruption, big joke for many years. you cannot settle direction in one year. quite difficult in society of ukraine. spent we have time for about two more questions so let's do the jump and was right there there in the middle standing up and then we will come down here. >> thank you. i represent georgia television
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station. let me remind you of the statement that appeared in august 2008 when started competition against georgia. the question is about russia-georgia relations, how you see the relations in the future when country already signed sufficient agreement with the european union and governments declared policies to join nato one day. thank you, sir. >> well, i read with subsection of the statement on georgian prime ministry in new york during the general assembly of the united nations that the publisher -- [inaudible] normalization with relations with russia. i think this is the same attitude from moscow. it is clear that we have problems. we have history. and we need from both sides work
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to restore the normal relations between our two states. i think it is possible. we have a lot of, we have good and important history, long history among our people, among our cultures. and i think that moving ahead with this political will, i think the normalization, it is possible but it will need time. >> i think this will be our last question. one of the fellows here at the wilson center. >> thanks. my name is doctor. i am one of the fellows at the wilson said of issue. unlike to return to the question about the right to protect.
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and by question specifically is what russia's policy in particular is on right to protect if it construes it as being appropriate to intervene when cultural rights are being threatened, whether and existential threat would have to be present. in other words, russia's policy and the way it construes the idea of right to protect. thanks. >> well, i think that for the first time we started to speak about the military force was used against civilian population. and i don't think that we can today define in all detail when you can use this right or when you don't use this right, but it was the real violation of human rights with the killing civil population, and it was
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considered important. how it can be used in other occasions, i don't think that today i or someone can define that. i don't think that you can use that right as -- it's not norm but it has to be something exceptional. in ukraine we had exceptional location and that right was used. >> well, on that note, which reminds us that a lot has not been defined in this area, but i really want to thank you very much for a wonderful explanation. it is very rare that we get the view from moscow directly, and i'm very appreciative speak it's not really from moscow. i'm not official. this is my personal view. that's why tasha i don't think
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everybody not agree with me. >> in fact, that's true. do you feel lonely? do you feel lonely in your positions to? all, i don't know, maybe. >> thank you very much. it is deathly not an official but a very educated opinion based on your stellar diplomacy. and thank you very, very much. >> thank you. [applause] [inaudible conversations] >> the center for strategic and international studies also has a discussion to a hispanic voters and the possible impact of u.s. foreign policy in latin america on their vote. that is alive starting at 10 a.m. eastern on c-span. at 1 p.m. the wilson center
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hosts a panel on the keystone xl oil pipeline and the american and canadian perspectives on the project. that's also live on c-span. >> c-span2 providing live coverage of the u.s. senate floor proceedings and key public policy events, and every weekend booktv, now for 15 years the only television network devoted to nonfiction books and authors. c-span2 created by the cable tv industry and brought to you as a public service by your local cable or satellite provider. watch us in hd, mike is on facebook and follow us on twitter. >> now the colorado senate debate between incumbent democrat mark udall and republican challenger cory gardner. this event courtesy of politico and the denver metro chamber of commerce is 40 minutes. >> hostminutes.
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>> thank you for being here today. i'd like to remind you all that we are live filming today so we ask that you please hold your applause. today the candidates will speak in random order which was determined via coin toss. immediately for the program begin. candidate one is far different order and candidate two is senator udall. candidate 1160 once to respond. candidate to have 60 seconds to respond as well. following the 60-second response there is an option for a 30-second rebuttal and the 15-second rebuttal if you want to continue the conversation. we will continue repeating the sequence until the debate ends. there will be no official opening remarks. however, we will have closing statements for each candidate so you can speak for about two minutes each. candidate one will begin followed by candidate two. with that, any questions
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candidates? ready to go? okay. great. thank you again. congressman gardner, i'd like to ask you about some of your recent that's. you call yourself a quote new kind of republican. yet according to some ratings are voting record has been ranked as one of the most conservative in the house. why should voters enjoy a new kind of republican when you voting record suggests he was aligned with conservatives in the congress. gardner: it's great to be with you all the talk about colorado business issues, things that better. i look forward to a debate focuses on how we can get this country back to work. that's what voting record has represented. it's a voting record that is about the four corners of this state, a voting record that is about helping small businesses, 97% of employers and colorado are small business. it's about creating a tax of i'm x-rays and opportunity for people to hire, to invest. the four corners plan i have
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come i put together is about growing jobs, the economy, north american energy security and independence. it's about making sure we have chances for our children to be educated and the greatest of our education system and making sure we protect our environment to the policies of this campaign that are at issue, on debate right now, the president just said yesterday, his policies are on the ballot and that's what you're going to be discussing, the policies of the president and the fact mark udall has voted with the 99% of the time. >> moderator: senator udall, i'd like to respond, as well when you respond come address this. is confident with the most historically dysfunctional and unproductive in history. if you're reelected the chances the democrats keep control of the senate will increase significantly. so why should voters here think anything will be different for them and our economic security if the senate stays democratic? udall: let me start as well by thanking the chamber for hosting
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this important event. we have worked together during my tenure in the senate on all kinds of ways in which we have moved the state forward. we have an aerospace consortium that's part of the chamber. we worked to protect and enhance the presence of military embassy which was a key role in our national security needs. we have worked on a test of the above energy approach together, just on a drive in seeing what we've done with union station is so uplifting and inspiring. our member working to make sure the patent office that fast tracks initiative is under way. that together we proposed and brought to successfully see and be back when the state was beginning to language. we have a great clean tech committee. so i look forward to working with you going forward because this is the best chamber in the country and this is the best states and countries we want to welcome you here. i've used all my to i think but let me just say that congressman gardner didn't answer the question.
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is the 10th most partisan record in the house of representatives. 's record is out of the mainstream. it in the extreme and that's the contrast you have industries and other for to the debate going for because i know we will have very different points of view on where the state ought to be heading. >> moderator: you can rebut that and if you do a couple of issues were you break from your party in washington to suggest you are a different kind of politician? gardner: i'm glad you brought up aerospace because when the second highest aerospace jobs did in the country but the fact is the national defense authorization act has a provision that senator udall they'll to strip out all the bill that could cost thousands of jobs in colorado. this is about business, about opportunities for colorado businesses and employment opportunities. that language could devastate the alliance in colorado. i was one of 33 republicans to vote against the house of violence against women act because it was watered down and they voted for this inversion of violence against women act.
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>> moderator: you want to respond? udall: you know there's no better champing of aerospace and not only in this day but in the country and i sit on the intelligence committee and i share the strategic forces subcommittee and colorado's aerospace committee has been well supported by me and will continue to be well supported by me. we are playing a very important role in three crucial areas, and civilian space, commercial space, and in military space. congressman gardner knows a been a big supporter of aerospace and i will continue to be so. gardner: except for the thousands of jobs that will be lost. udall: we have language that will protect ual and -- this is a part of how we're going to build new rocket engines and colorado believe the way, i can assure you. gardner: if they have a job here. >> moderator: we can get back to that. senator udall, to you. you called for putting a price on carbon pollution, enacting cap-and-trade legislation and
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you lauded recent epa proposals to slash carbon dioxide emissions, coal producing power plants. industry officials say such action would dramatically increase -- cost jobs. why shouldn't the epa and washington consider the economic burden on your home states energy industry when moving forward with these policies? udall: this is an exciting time because colorado is leading the way. with the best of the above energy community. everything from the clean burning coal in the northwestern part of the state to the natural gas we're producing here on the eastern plains to abundant wind and sun what you're saying today. we were ready. carbon pollution israel. coloradans know the climate science, a lot of which is generated here issuing as we have to act. coloradans see this as an opportunity. we are prepared to put a price on carbon to the last time we put a price on pollutants was under the leadership of the first president bush and there
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was a whole host of horrible describe is going to occur. it didn't occur. we develop new technologies. we move this country for. we're the lowest energy prices in the country right now in colorado. we're up to this challenge. congressman gardner doesn't think climate change is occurring. he doesn't think we should have been across the board best of the energy approach. he opposed a renewable electricity standard on three different occasions when we could've been moving the state forward. thank god the voters at the legislature understood this is the way we ought to be going. >> moderator: you do still support cap-and-trade legislation? udall: i support putting a price on carbon. a lot of mechanisms. we can do is wait the middle class and working americans are lifted by. call about is incredibly well-positioned to take the leadership that i know there are people industry want to take that leadership and the epa's rules are a start but we will be leaving the country and i would daresay leading the world when it comes to new energy technologies. >> moderator: congressman gardner, one of the things he
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mentioned is in the past you have expressed some skepticism of whether humans are causing the climate to change. do you believe now that humans are causing climate change? gardner: i've said all along i believe climate is changing but what i am not willing to do is destroy the economy for policies to address that. that's what i support natural gas, strong supporter of renewable energy. that's why i have as part of my plan to grow jobs to make sure we have renewable and natural gas energy as part of our future. i helped lead the way for liquefied natural gas that will great 45,000 jobs lifting them off the unemployment rolls around this state. let me tell you what some of these new regulations would do. this is hard of the policies the president said will be on the ballot this election, part of the policies send you dollars to with folk line and sinker but the fact the epa regulations on energy will cost the average colorado family $700 per family. the fact two and 50,000 als 50,s
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would be lost as a result. our own study in this day that it could cost as much as $50 billion, the economic impact that he has embraced. i would just ask this question of senator udall. what is the price you would put on carbon? udall: the price i would put on, the opportunity will miss if we don't go all in, we that floods, fires, droughts, the leading climate scientist in the state telling us it's happening. we know it's happening. the farmers know it, the ski areas know it's happening. we all know it's happening so let's lean forward. let's create our future. congressman gardner is looking backward. let's look forward and embrace the future and embrace these technologies. they are right there for the taking's. gardner: i'm looking forward to the next energy bill. what is the cost you put on carbon with your tax? udall: congressman, the point is that we've shown we can put a price on pollution. we have done over and over again. when we send a signal to the market, we have a lot of
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market-oriented people here today. when we send those signals, our market respond to the best system, the best entrepreneur's and we will innovate but that's how we make the future. we innovate. we're in a global economic race and you innovate. >> moderator: i want to pin you down on that question about who is causing climate change because it's so important in determining the solution to it. are humans causing climate? gardner: there is no doubt but what i'd refused it is support a climate tax bill like waxman-markey would've cost over $5000 per sprinkler that would cost small businesses the opportunity to grow, that would increase the bills that come with a $1700 a year. we hear people talk about putting a price on carbon, but they won't talk about how much the price of carbon is. let's have an answer on what is the price. is a $5 a month? $20 a month? senator udall, am i not going high enough?
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udall: again, i've answered his question. >> moderator: move onto similar energy question i want to stay with you, senator udall, about the keystone pipeline. you've had reservations about moving forward with the keystone xl pipeline. your votes in the senate suggests just that. this issue has been studied for years and even the state department own analysis that it would not alter global greenhouse gas emissions. so why is now not the time to move forward on this? udall: let me put a colorado look at this. we develop our energy sources here in a safe and responsible manner come again whether coal resources, natural gas, producing shale oil. we have abundant sun and wind. we're seeing a real surgeon geothermal energy potential in colorado. i think that's the screen and the measurement by which the keystone pipeline ought to be considered. that science is underway and i think it's not too much to ask the keystone pipeline be built that is done in a safe and
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responsible way. i would also suggest that the keystone pipeline were being built through eastern colorado, that the farmers and the rangers and the businesspeople who live in eastern colorado would want to make sure that their soil and air and the water in those regions were protected. that's all the people in nebraska are asking for. that's where this started. that's where the concerns are expressed most notably. to us to wade in and say this will be driven to the center of their state without them having their say doesn't make sense. it's not respectful. transit shouldn't you be respectful of local control? does this conflict with your ideology? i talk to energy independence and part of energy independence means we build the keystone xl pipeline. pipeline. we that studies, department status but study after study for talk about this. the senate has voted against the keystone pipeline and i want to put a colorado face to the keystone pipeline. thousands of jobs could be created right here in the state if we move forward with the keystone pipeline.
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overwhelming support for the state of colorado for the keystone pipeline. they believe we should move forward. why? increased jobs and opportunity it creates north american energy security. let me take about two companies in denver. this is about denver business. and engineering firm could create jobs because of the keystone pipeline. there's a company, large-scale because they'll burden sense to expand at the keystone pipeline were to be built. that would allow them to add jobs, great opportunity. this is about doing what's right for the public. it's not standing up for special interest. it's about creating jobs for people who desperately need a $20 an hour job welding on the keystone pipeline that they don't have today because the failed policies of this administration. udall: let me respond a couple ways. there will be jobs great when the keystone pipeline is built by the long-term jobs number in the hundreds. congressman gardner is overstating the economic effect of this pipeline. the pipeline process has been
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politicized. my focus has been on making sure the colorado continues to lead. we are a best of the above energy state. we have remarkable leaders, remarkable technology it and i woulwould ask congressman gardnr why isn't he supporting the governor's blue ribbon commission to find the right hospital and local control and protecting jobs? he has been missing in action. congressman gardner has not been present in that discussion. issued because this is too important to. gardner: what did you mean we set hydraulic fracturing kids is tracked -- trapped in the old system? udall: that was a right wing blog approach that the mainstream media disregarded but i didn't say. i don't believe it. gardner: okay. >> moderator: the issue of immigration. congressman gardner first you. you voted against a republican bill in august that would have stopped the president deferred action for children's arrival, or the daca program that allowed
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certain people that came to the country illegally to stay in the trendy pick your critics say this has been election year conversion. giving your vote in august, does that mean that you now would vote to enact the dream act if it came up for a vote in the senate if you are elected in november? gardner: i think agreement will be a part of the solution of immigration reform, that it has to be. i believe in immigration reform. over a year and half ago i testified before the house judiciary committee on the need for immigration reform. obligations start with border secured. we can have a guest worker program that has to go part and parcel of the border security. entry-exit system probably the pinnacle be part of that and i believe we should have a solution for the people of the state the executive order process which the president has decided he wants to pursue, even the president has said he lacks the legal authority to go around congress and now he's trying to go around it.
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is also string people along saying he will issue an executive order and then he won't. look, we need to work with congress. the house, senate, president to pass meaningful immigration reform and i certainly will continue to support that. my opponent senator udall has voted in an document individuals a felon but even those people who system include what could be a schoolteacher. voted to make themselves. when he had a chance in 2010 to pass immigration reform he said that no, let's move forward on climate change legislation first, cap-and-trade first before we pursue immigration reform because he was afraid immigration reform when first, then you wouldn't be able to pass his cap in tax legislation. >> moderator: before i get senator udall to respond, why did you change a vote on this bill in august? gardner: again, this vote was about a bill that i think it unintended consequences that would've been further than just addressing the issue of deferred action and has been. it could have affected other visa holders. >> moderator: senator udall,
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george respond? udall: congressman gardner can talk about votes 10 years ago but let's talk about today. they're sitting in the house, a package that passed with almost 70 votes in the united states syndicate it has bipartisan support. as the support of the people here in the room. you all know america is a country built on immigration did you will know when we fix a broken system, which by the way with congressman gardner sported a broken system, we fix this system. will see the deficit come down, labor market certain. this is something got to be done. congressman gardner says he believes in immigration reform but he has lifted a finger to move it in the house of representatives. >> moderator: congressman, do you still oppose the pathway to citizenship for the 11 million people who are here illegally? udall: i believe it would be the ultimate solution. i believe in armistead is going to be ultimate a part of the solution. here's the thing. this and believe it or not doesn't have a monopoly on good ideas but i believe it was and
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he rolled off his siblings speaker of the house the senate does have the novel it on good ideas. what i would like to know is from senator udall, why did you vote to make a document individuals felons? udall: i want to respond to the opportunity languishing right now in the house of representatives. congressman gardner we are to do this in small steps. he hasn't taken a single step to move immigration reform to the goal line. it's time to pass immigration reform. this is a clear contrast. this brace i think is the most obvious race in the country when it comes to contrast between the two candidates. this is one prime example. you know the importance of getting comprehensive immigration reform past. >> moderator: moving forward. another immigration question to you, senator udall. i'd like to talk about the president acting elaborate on immigration. you said you were disappointed with his decision not to move forward before the election on this issue. why is it okay and constitutional for the president
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to circumvent congress as he is done time and time again and has demanded to on immigration? udall: look, i reject your premise. the president like many of the ceos industry has a responsibility to move u.s. 84. the cops has been missing in action in a number of respected i just mentioned will when it comes to comprehensive immigration reform. if you look it's been more the house of representatives cannot which is been the graveyard a lot of great ideas. they present is frustrated that congress isn't acting. he doesn't relish moving to a set of actions whereby families won't be broken up. right now we are deporting families, splitting up members of families rather than focus on criminals and people who are pashtun the president is challenging the congress to act. i was disappointed. our state is 20% hispanic of our state has a number of other immigrant communities. expect i think legitimate that we are going to step up and reform our system, secure the borders, make sure you in this room have the tools to know you're hiring people who are
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here illegally, also hold you responsible and we will provide a way for people to earn citizenship. some 13 years, but this is too important. for it to be left on the sidelines. >> why shouldn't the president move forward? udall: the president . gardner: the president admitted he lacked the legal authority to do this and now, i don't know what legal authority he has. you said he didn't have a before. look, we are to work with house and the senate and the president we are in this mess because of failed leadership from the white house, because of failed leadership in 2010 from senator udall and others when they had a chance to pass immigration reform, decided to pursue a carbon tax legislation instead of immigration reform. we are a better, stronger country because of our nation of immigrants. most of us come here from somewhere else and that is what made our country stronger. i look forward to pursuing and fighting for immigration reform.
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on the ballot in just a few weeks will be the president's policy. mark yudof has voted for the president's policies 99% of the time and that's what we'll be voting on. .. udall: at the same time, he's proposed deporting their family members. you can't have it both ways
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here. you've got to keep us moving forward. what congressman gardner's doing is, at best, maintaining the status quo. he's moving us backwards. let's move forwards. >> moderator: and why did you support, as senator udall said, deporting -- gardner: i want to thank the senator for acknowledging saying that i supported immigration reform. he just admitted that i have supported immigration reform, and i'm grateful for it, so thank you. >> moderator: senator. okay, thank you. we'll move on to the next topic, health care. december 24, 2009, senator udall, you were one of 60 senate democrats to vote on final passage in the senate of the affordable care act. given the problems that have occurred with the implementation of the law and insurance companies threatening to cancel coverage of 250,000 colorado cans, would you still have voted to pass that bill, or would you have voted no before moving forward?
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udall: we had a broken system. insurance companies were in charge. if you were a woman, you paid more for your coverage. if you had a family member who suddenly became sick, you could be dropped overnight from your insurance policy. insurance companies could jack up your rates at a moment's notice. many of you in this room know that was the situation we pace pace -- we faced. i voted to provide more coverage to more americans, and we're seeing the benefits of that here in colorado. the governor, in a bipartisan group in the state legislature, created the colorado exchange. we have over 400,000 people in that exchange of quality health care they didn't have a year ago. we saw just recently that the premium increases for this year are being projected at 2 percent. we've seen the uninsured rate come down from 17 percent to 11 percent here in colorado. this is the difference between congressman gardner and me again. he's voted some 50 times to repeal the affordable care act, take us back to the old system without a proposal as to how you cover the people who are now covered. that's, again, a difference
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between the two of us. i want to move us forward, and we're going to make the affordable care act work. it's not perfect, you all know that, but we're going to make it work for the short term, the medium term and the long term -- >> moderator: and you still would have voted yes -- udall: thank you. hindsight is 20/20, there's some changes i would have made, and i'm happy to share those with you today or on the campaign trail. >> moderator: congressman, you've called for the law's repeal, but what would you say to those 263,000 coloradona who have signed up for the medicaid expansion? gardner: i agree we don't have to go back to the old system. i understood what we had wasn't working, and we watched those costs increase dramatically. that was in our small business, the family implement dealership. but senator udall says it doesn't take 20/20 visions to know there are some problems, but in 2010 he had an opportunity to vote for an amendment that would have prevented the 340,000 people to
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keep their insurance policies from being canceled. look, the people who are hurt the most by obamacare are the people that they made the promises to, that if you like your health care plan, you can keep it. not true. the fact that if you like your doctor, you can keep your doctor. turned out to be not true. that this would reduce the cost of health insurance. not true. 2.5 million fewer workers in this country as a result of obamacare, 18 percent of small businesses aren't going to be hiring because of the impact of obamacare. and you know who's hurt by this, it's not the big corporations as much as it is the little corporations, the little businesses, the small businesses. those that start inside a small garage. because they can't afford high-priced lawyers and accountants to figure out how to get around how to make the books look like it works so that they can afford the kinds of regulation and mandates --
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>> moderator: but wouldn't people who lose their health care coverage if it's repealed, particularly if they're relying on medicaid? gardner: we can make sure that we can pay for medicaid. i haven't seen a plan yet of how the state of colorado is going to pay for the medicaid expansion once the federal government is no longer paying. so once we have this in place, how on earth is this program going to be paid for, adding hundreds of billions of dollars in debt to this country that we simply can't afford. look, the primary promises that were made in obamacare -- and senator udall repeated every single one of them -- that if you like your health care plan, you could keep your health care plan. 340,000 people found out -- he didn't say if i like your health care plan, you can keep your health care plan. he said if you like your health care plan, you could keep it. turned out not to be true. >> moderator: to respond? udall: the amendment that congressman gardner mentions was offered by senator enzi, and it looked great on paper, but when you investigated what it would
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have done, it would have taken us back to the old system where women are discriminated against, and pre-existing conditions mean you couldn't get covered. that was in 2010. we're in 2014. congressman gardner also mentions that 350,000 letters that had cancellation notices in them. what he doesn't tell you is most of those letters had a renewal option as well. and when i found out that the insurance companies weren't keeping faith with the law, i was as angry as anybody. i authored a piece of legislation so people could keep their plans, i was in the face of the white house saying you've got to keep every measure to give insurance companies every flexibility and also let them know this isn't appropriate. and we worked with governor hicken looper and the legislature to make sure the division of insurance could give that kind of flexibility here. ten out of ten colorado cans have access to coverage they
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couldn't -- what are you going to say to kim, congressman? her daughter was paying $600 a month for diabetes coverage. her daughter's now paying $100 a month. that's $6,000 a year to that working class family that you would strip away. >> moderator: would you strip that money away? gardner: what about the person sitting in this room who had their insurance canceled and isn't able to renew it? a minority-owned business and they can't keep their insurance. udall: congressman, you didn't -- gardner: no, if you would let me, i will. did you break your word when you said you could keep your insurance and now they can't? did you break your word? udall: congressman, you didn't answer my question, and you know that we're going to continue working so that every -- [inaudible conversations] udall: that's the challenge for us, that's the way we move forward. i love this state is such a wonderful state.
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i have such a pride when i'm in washington, d.c., get to brag about state. we are what i call rugged collaborators. we're leading the nation, and that's how we're going to make sure the affordable care act continues to improve and evolve, and we're a long ways to meeting that goal. we have more work to do, but let's work together. that's how we roll. gardner: if you don't mind, i'd like to -- because he had plenty of time, if you don't mind. this goes to the very heart of the contrasts between the senator and i. i've introduced legislation that would allow people with pre-existing conditions to be covered. i believe we should allow insurance to be sold across state lines, that we should have health savings accounts, that we should undo the damaging provisions of obamacare that repealed parts of the 1990s, mid 1990s laws. to the woman that you were talking about, i believe that we can provide and we should, and we have an obligation to provide low cost health insurance. but we need to make sure we understand opportunities for people regardless of income, regardless of where they are,
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where they work, that they should have the opportunity to have affordable insurance. but the 2700-page partisan bill of obamacare was not the solution. in 2010 senator udall had an opportunity to vote on an amendment that would keep his word, and he voted against it. >> moderator: do you want to respond briefly before -- udall: i share the perspective on the background on that amendment. congressman, that all sounds great, but when you vote some 50 time toss repeal the affordable care act and your only response is how you're going to replace it is some ideas that make sense but wouldn't meet the goal of making sure every person has coverage, i just don't know how that stands up to scrutiny. i would also remind everybody in this room that a year ago right now, we were in the throes of a government shutdown that congressman gardner supported when we were trying to recover from the floods, biblical tblodz. and congressman gardner out of, i guess, a misplaced loyalty,
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ideology to the tea party, i don't know to who, to whom and to what, voted to shut down the government because he wanted to show everybody i don't know what. and here at our greatest time of need an ideology took ahold of congressman gardner when we needed all hands on deck. congressman, that was irresponsible. you delayed the recovery, you put additional emotional weight on all the people who were affected by the floods, and i just think it was reckless and irresponsible -- >> moderator: that was one of my other questions later, but we can talk about it now. [laughter] the government shutdown last year, of course, we were shut down at this time last year. house republicans included a provision in the must-pass spending legislation that would have defunded and delayed the affordable care act. looking back at it one year later, did house republicans make the right decision in starting that fight? gardner: look, i never supported the government shut down. in fact, i was roundly criticized by conservative
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outlets when i refused to sign letters demanding that the government be shut down. i worked closely with senator udall during the government shutdown to make sure that we took care of the people in colorado who had needs from the flood. there were significant needs, and i was proud of the work that senator udall and i did together. we went on a blackhawk helicopter together in the days following the flood, together. i have a picture of him with a cat on his lap that i think made it into some of the national, some of the local media coverage about this moment. we worked together. there wasn't a moment of partisan politics then. i'm saddened that there is now as he tries to politicize a tragedy where people's lives were lost, thousands lost their homes. i can remember traveling to weld county in the days after the flood trying to make sure that i could actually cross highway 34 to get to the weld county emergency operations center because i know we have a city council member from loanmont -- longmont, and i was proud to to
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stand with you then and with senator udall. together we worked on legislation that would provide emergency transportation relief dollars, $350 million of relief money that we passed, senator udall. remember, i was in your office working together with you on that. >> moderator: we can keep our answers to the time limit here since we're running short on you want 30 seconds to respond, you can. udall: congressman gardner and i did spend half a day in a helicopter, and the devastation was stunning. when we got off that helicopter, we were unified. went congressman gardner got off an airplane a week later in d.c., his actions belied that unified feeling we had that day. this was unacceptable. this hurt our state. the government shutdown nationwide cost our economy $24 billion. you in this room know that it was reckless, and it was irresponsible. go falk to the people in -- go talk to the people in estes park. they needed rocky mountain national park to be open so people would come up there after
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the devastation of flood to see the elk and view the leaves. it the gateway communities of mesa verde national park. this is a fundamental difference. yes, we worked together later in the year because we needed to be a delegation. but congressman gardner wants to represent the entire state of colorado in the senate, he has to understand you've got to stand up for the government. >> moderator: you can have a chance to respond and a closing statement. gardner: again, senator udall, i don't think it's appropriate to politicize tragedy. udall: congressman, you politicized it. gardner: you had plenty of time to talk, if you don't mind. i think we should take great pride in the fact that we worked together. what i think the state of colorado sneads a vision based on -- needs is a vision based on growing jobs. i know that you want to play politics and try to politicize things that simply are, i believe, out of bounds. udall: one of the issues that
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you'll have to deal with in the next congress, congressman gardner, is taxes. the business community is, of course, concerned about that issue. but in 2009 you also signed grover norquist's no-tax increase pledge. while you have advocated for tax reform, would you oppose any tax reform deal that includes a dime of a net revenue increase from taxes? gardner: i don't think increasing taxes is the answer. i think the federal government has plenty of money. we ought to focus on ways we can actually reduce spending, make the federal government balance its own books, make sure the federal government is spending its money wisely before it turns around and asks the people of colorado for one more dime of their hard-earned dollars. look, if you look at a bill i introduced on wasteful spending, over $200 billion simply could be saved because we eliminate duplicative and overlapping programs. we must make sure that we are reducing spending. reforming taxes, we have to reform taxes, we have to make
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sure that small businesses are able to keep more of their own dollars in their own pocket to invest in job creation. that's why i support comprehensive tax reform, that's why i believe we can allow people of our state to invest more money into their ideas and families if they're allowed to keep that money. senator udall has voted for the largest estate tax increase in the history of our country, he's voted for higher taxes time and time again. he had a balanced budget amendment that exempted a great degree of spending. he likes to call himself a fiscal hawk, but senator udall, i think you plucked the fiscal hawk when you voted for the stimulus bill. >> moderator: senator udall, a minute to respond. udall: you all know, and i've worked with many of you in this room that i've been a longtime proponent of the simpson-bowles proposal. in fact, i think it's one of the major mistakes this president made, not fully embracing it, in 2010. in the plan there's corporate tax reform that i support. i think we ought to start out with the goal of getting ourselves to 25%. we now have the highest
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corporate tax rate in the world, we're higher than japan, of all things. but we ought to do it in a way that doesn't balance the budget on the back of the middle class and working people. he's voted for budgets in the house that would gut social security and turn medicare into a voucher program. do you know what that means? our seniors would be out on the street trying to deal with the insurance companies one-on-one. you know who's going to win that exchange. congressman gardner's voted to lift tax rates on billionaires and millionaires while increasing tax rates on middle class and working people. i am the proud author of the first democratic balanced budget amendment in 20 years. and in that balanced budget amendment -- because we're going to work hard to get our deficits under control -- >> moderator: we're running short on time here. udall: but we're going to protect social security, medicare, medicaid. those are earned benefits, those are important to our seniors, they're important to our society's stability. >> moderator: congressman, would you vote for -- i'll let you respond to that, would you vote for the paul ryan plan to
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overhaul medicare again if you were in the senate? gardner: well, i would vote for a bill that allows us to balance the budget, that protects medicare, and that's what i did, senator udall, was vote for a bill that protects medicare, protects retirees and their social safety nets. we will fight hard to protect them. your plan is bankruptcy for those social safety net programs because you haven't come up with a solution, but you have cut medicare by $700 billion when you voted for the affordable care act. now, i want to talk about something else, too -- >> moderator: you need to wrap up -- [inaudible conversations] we do -- udall: i'd like to weigh in quickly. >> moderator: 15 seconds. udall: congressman gardner voted for $800 billion that went to tax cuts, i voted to medicare advantage that went to shoring up medicare and extending the solvency of it. again, there's a contrast. how do we move colorado forward? >> moderator: so we've run out of time, but 90 seconds each for closing statements. congressman gardner, since you
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won the draw, you get to go first. gardner: thank you. and thank you again to the hosts of today, and thanks for the opportunity to share this contrast of ideas. growing up in yuma, colorado, if you go to that hometown today, there's a little cornerstone on second avenue and main street that says jas and son 1910. that was a business that was started by my great great grandfather. a hundred years later, my great grandfather took over the business, turned it into farmers implement company. it's till there today. and my wife and i go for a walk with our children, we walk by that and wonder will they have the same kinds of opportunities that their great, great, great grandparents did to create a better way of life, to create business, to create new opportunities for themselves and their families, and the answer is no. when senator udall, unless we do something different and change the direction of this country. when senator udall was elected to congress, our national debt was over $5 trillion. today it's over $17 trillion. over the last several years,
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median household income in this state has declined by over $4,000. in fact, it's been since 1999 that middle class wages have stayed the same. that's under the leadership of mark udall. and the president made it very clear in his statements this week that his policies are on the ballot, that what we will be voting on are his policies. now, if we elect mark udall who's voted 99% of the time for these policies one more time, what makes any of us think that things are going to be different than they were over the last 16 as we've watched median household income decline, as the labor participation rate is lower than it has been in 36 years? my four corners plan, we will grow jobs, energy independence, get our education on track, make sure it's stronger and make sure that we protect our environment. >> moderator: senator udall. udall: thanks again to the chamber. it's been the most amazing privilege of my life to
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represent in the united states senate the wonderful state of colorado. we've accomplished a lot over the last six years. i alluded to some of those. we've recovered from biblical floods, we've tuned up our capacity to fight fires, we have the best of the above energy regime that's the envy of the nation, we see our economy coming back. i know all of us in this room are excited about what we're feeling and seeing in the numbers. but there's more to do. we need to make sure that college is affordable. we need to make sure that women are paid the same as men in the workplace. we need to invest in infrastructure, all of the things that the chamber knows are crucial. congressman gardner and i love colorado, both. i'm a fourth generation resident as well on my mother's side. elections ought to be about the future. congressman gardner talks about being a member of the next generation and a republican. the next generation doesn't want to shut off science, shut out immigrants, shut down the goth.
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the next generation -- and i should say all generations, frankly -- see the world my way. they see colorado moving forward. and i, therefore, ask for your vote, because working together we can keep colorado moving forward. >> moderator: well, thank you both. thank you all. thank you, both candidates, congressman gardner, senator udall. [applause] >> today, a discussion on presidential war powers and president obama's authority to combat isis. we'll join life coverage of the he vent from the cato -- of this event from the cato institute at noon eastern on c-span2. >> c-span's 2015 student cam competition is underway. this nationwide competition for middle and high school students will award 150 prizes totaling $100,000. create a 5-7 minute documentary on the topic, "the three branches and you." videos need to include c-span programming, show varying points of view and must be submitted by
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january 20, 2015. go to for more information. grab a camera and get started today. >> on monday the supreme court began its new term by refusing to hear appeals challenging same-sex marriage in utah, virginia, wisconsin and indiana. up next, lawyers and scholars preview the cases and petitions coming before the court in the new term. this is an hour, innocents. ten minutes. >> i think -- are we set? okay. on behalf of national review and the pacific legal foundation, i want to welcome everyone, including those viewers who are seeing us on c-span, to our first monday supreme court preview event. our focus today is going to be on the cases the supreme court just recently granted for this term and those which they denied that they would hear this year
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and some cases that our experts think that the court may grant for the second half of the term. my name is todd gatziano, and i'm the executive director of the new d.c. center. but before i introduce our moderator and our panelists, i need to thank the national review for hosting us here in their offices and for all that they've done to make this program a success, especially amy mitchell who's really been the person behind the scenes doing so. national review, of course, is has won great recognition for its own reporting on the supreme court and other legal developments both with its own staff and with learned contributors who have already commented on some of today's developments. as for our panel today, i need to necessarily truncate all their accomplishments to allow them enough time to speak, but i do want to hit some important elements. lisa blatt, wearing the very
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attractive cowboy boots -- i'll explain those in a minute -- has argued more, is the woman who's argued more cases before the supreme court than any other woman who currently practices before the court. so far she's only argued 32 -- >> 33. >> 33, i'm sorry, 33, but she won 32 of them. i know of no other lawyer, living or dead, who's argued a significant number of cases who has that kind of record. but lisa has also earned great respect in many quarters for her oral advocacy and her written advocacy. the supreme court law clerk has included her very easy going oral argument style which i've seen on many occasions as exemplary in its guide for counsel and cases to be argued before the court to. lisa also teaches advocacy and procedure at georgetown
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university law center. to her left is john elwood. john elwood is a partner in a supreme court and appellate practice group. he has argued seven cases before the supreme court which is an enviable record, especially for someone so young -- anyone younger than me is young -- except by comparison maybe to lisa. he also has won acclaim in various quarters and among his peers as one of the leading appellate court lawyers including his argument before almost every one of the federal courts of appeal. john is also on the standing committee for the aba which helps the aba review its appellate briefs that it files before the supreme court and other courts. john also is a frequent commentator in the legal blogs, he is a so-called conspirator at the -- [inaudible]
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and he frequently contributes to scotus's coverage of the supreme court. to the moderator's left but generally to the right is my colleague, jim burling, from the pacific legal foundation. he has not argued as many cases in the supreme court, but he's earned his grounds to be here today for several reasons. since he's one of my boss, i will try to leave off the personal praise and stick to the facts. he is currently the litigation director for the pacific legal foundation. in 2001 he argued and won a case for pacific legal foundation's client anthony palazolo. but i think that that is one of seven wins in the last seven appearances that the pacific legal foundation has had directly for its clients. several of those were under his leadership as litigation director. but perhaps even more
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importantly are the dozens of amicus briefs that jim supervises that the pacific legal foundation files each year. there have been a couple of studies, and it's not just my self-interested assessment, that have found that pacific legal foundation is the most prolific filer in the supreme court for a public interest law firm, and its effectiveness is among the highest as well. jim's own focus is in takes, eminent domain, wedlands, and he's a frequent speaker at academic conferences. our host today and pardon my one-handed shuffle here, our moderator today is greg store who has been covering the supreme court for bloomberg since 1998, and he also writes for "businessweek". greg clerked for a federal judge after graduating from harvard
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law school himself. but before that he was a congressional ask campaign press secretary. -- and campaign press secretary. many journalists later become press secretaries. greg went the other course, and we all benefit from it. we benefit from his clear and effective reporting, particularly on the big stories that are in the law like the health care coverage. greg also has been part of investigative reporting teams for bloomberg news, and as such has shared several journalism awards. he has received the sunshine award from the society of professional journalists for his coverage of the financial crisis and some nontransparent loans the fed has made to gigantic banks. he has received the society of american business editors' award for his coverage of the supreme court health care cases, and an investigative reporter and
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editors' award recognizing outstanding great investigative work. he's also an adjunct professor for george washington university where he lectures on the supreme court and constitutional law. i finally want to mention his book, "black and white case: how affirmative action survived its greatest legal challenge," because that's an issue that could come up again this year. the book covers the effort by public interest lawyers, students and others to end racial preferences in college and universities in two university of michigan cases, and those who were equally committed to seeing that it survived. that issue, of course, resulted in a kind of muddled set of opinions that -- [inaudible] that issue has come up again in recent years involving lisa's alma mater, the university of texas. but what we found most interesting about greg's reporting of the case was his
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focus on the players and their amicus brief strategy which i think only a very gifted supreme court reporter could have, could have written about. so with that, i'll turn it over to greg for the rest of the program. >> thanks very much, todd, and thanks, everybody, for coming. this is going to be the panel that talked about all the supreme court stuff this year other than gay marriage, and as i think everybody in the room knows, we had some gay marriage news out of the court today, so i think we should address that. the court denied cert on seven pending petitions which, essentially, lets same-sex marriage goes forward in 31 states -- 11 states, and we will now have 30 gay marriage states, many of which, perhaps even most of which, are that way because of court decisions. and the supreme court has decided it doesn't want to rule on that issue just yet.
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so i'll ask the panelists their thoughts on that development in a minute. what we're then going to do is we'll talk about some of the pending cases that the court has agreed to hear this term and then try to get into some things that are a little bit down the pipeline that maybe the court could take up later on in this term. be as we're talking about things if anybody in the audience has questions, i'm going to try to leave time for questions at the end, but if you have questions on certain things as we go along, please feel free to raise your hand, and i will try to facilitate that. so let me turn to the panelists, and you all can start, whoever wants to start start. you know, i think there was a widespread expectation, certainly pretty much everybody i talked to, that the court had to take gay marriage. and instead the court said, no, we'll wait for now. first of all, are you all as surprised as i am that they are not getting involved, and what
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does it mean that the court is letting three federal appeals decisions from three federal appeals courts stand and allowing gay marriage to go ahead there without them being the ones to decide it? >> well, the thing that impressed me, and i am surprised. like i didn't think that we would have a grant today, i didn't think the court would take them today, but the thing that surprised me was that there wasn't a peep out of the court and they were able to resolve it all, basically, in one try. because the court routinely, when it confronts a difficult case, even some marginal cases, it will take, it will have to consider the case, you know, again and again over several conferences. and it only takes one of nine justices to say i'd like more time to consider this to have it kicked on to the next conference and chew it on a little longer. the thing that strikes me about this is, apparently, not a single person was moved to write a dissent from the failure to grant it or that not a single person wanted to have more time to consider it. so it does seem to be a very
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conscious decision to kind of let it ride at the moment. and, you know, sure, there is unanimity among the courts of appeals that have addressed it so far, but, you know, it's not nothing that several courts of appeals have invalidated state statutes. and, you know, ordinarily that is considered a criteria for cert, and when you consider some of the other cases on the docket such as the undersized fish case, it does seem there is kind of a disconnect between the importance of one issue versus the importance of another. so with that, having taken as many laugh lines as i can, i will throw it over to you. [laughter] >> we're going to talk about the undersized fish case later on. >> when i think about why the court didn't take this case, i have to go back a number of years to roe v. wade and think of the aftermath of that case where the public was outraged on one side and happy on the other. and a lot of people aid since then that if the court did not decide roe v. wade the way it did at that time, the issue would have percolated longer
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through the states and they would have achieved, essentially, the same thing through various state and federal decisions. so maybe the court was counting faces here and saying, look, the liberals essentially have what they need with the momentum from these lower courts, so why take this up and bring all this attention and unhappiness upon us again, and the conservatives may have been counting votes and said we don't know where justice kennedy's going to go. that leaves four, you need five, let's just hold off and not doing anything for a while. so maybe they were playing politics in a sense, trying to avoid the issue. >> i'm actually not that surprised. there was something a little unsettling about the fact that both sides to a controversy were telling the court to resolve it, and usually the person who prevailed wants to keep that decision, and there was a little bit of unseemly infighting among the lawyers of who would take this case. the other thing that's remarkable, remarkable about it, and you guys can correct me if i'm wrong, but i think only the
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states of oklahoma and utah were actually defending their bans on gay marriage. >> you also had wisconsin and indiana. they filed later. >> defending? >> were defending their own bans. and virginia was not defending. >> so maybe it was only virginia then and nevada? i don't remember. >> of the five on the supreme court, virginia was the one -- >> i get the sense why should they take the heat and all this controversy and angst when they are going to, i agree with jim, they're going to make a lot of people unhappy either way. but i'm not convinced they're still not going to take it. i know justice ginsburg was saying publicly a lot of this turns on what the sixth circuit does. if there's ever a split, the court will have to take it. so i don't think we know yet that the court's not taking it -- >> you explain why the sixth circuit so significant? [inaudible] >> i think, i'm actually not familiar except i don't count the pollices or who appointed them, but according to the argument it was not clear that the challengers were going to
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win, so i think there's a chance that there could be a decision in favor of the states. there was this unanimous sway of opinions and so the federal district judge, i think it's in new orleans, upheld the ban by judge feldman. so i'm not convinced that they're done yet or that this is the last word. >> one more question and then we can move on. is it now inevitable that we will have a ruling legalizing same-sex marriage at some point? and the reason i ask it that way is there are now going to be 11 new states in the next few days where same-sex marriage can go forward, and can the supreme court conceivably say to all those states all those marriages you entered into, those were based on a mistaken view of the law, and we are now going to change the law, and future people, future same-sex couples in those states cannot get married? is that even conceivable the supreme court could do that? >> the longer it goes on, the
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harder it's going to be. >> i mean, i frankly think if there are justices who do not believe that the due process clause has anything to say about this, that issue's not going to matter to them. everyone knows this turns on one justice. it's kind of hard to think that that justice doesn't already know how he's coming out, and this is all irrelevant, what we're discussing. >> [inaudible] >> oh, justice kennedy, sorry. [laughter] >> yeah. i think that's probably right. but it is, you do have to kind of keep in the mind though that for the supreme court, i mean, at least the area where it comes up the most is in criminal procedure cases where they will, you know, change the rules of criminal procedure and, you know, throw, you know, 40,000 criminal convictions into question. and so that's the thing is i think that it does matter to them how long it goes on somewhat or at least it matters to some of them, but they also, there is a strong teak of, you know, do what is right though
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the heavens may fall amongst their members. >> okay. let's move on to some of the cases the court has. john, why don't you tell us about mr. lones and your case. really one of the -- there's some really good cases that have really good stories about them, and your client's case is certainly a good factual story. he may not be your client -- >> well, it is an interesting case for this term, and i feel a little bit like being a time slot hit, to use a joke from seinfeld, because, you know, this is a year without a lot of blockbusters so far, and i was surprised to see one of my cases as being one of the leading cases of the term. i be i think partly that is because there aren't blockbusters, but it is partly because it is an interesting case. anthony was a 27-year-old working at a regional amusement park in the lehigh valley when his wife of seven years left him and took both of their kids. and this being the united states, he decided the best
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thing you can do about that is to post about it to 200 of your closest friends on facebook. and interspersed along with, you know, a remarkable, some statements showing, i think, a remarkable degree of understanding of first amendment law, there is one line in one of his posts, "me thinks the judge needs an education in true threats jurisprudence." there is, there are some statements that are, you know, use fairly violent imagery which earned him a visit from the fbi. first it earned the attention of one of his other facebook friends who was in charge of the security patrol at the amusement park who turned it it over to the fbi and got a visit from fbi which eventually led to him being arrested. and he was tried. he argued throughout that under the first amendment what mattered was his subjective intelligent, whether he intended to threaten somebody, and the
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government argued with the view of most courts of appeals that to quote the government in the closing statement, it doesn't matter what he thinks. what matters is what a reasonable person would view those posts as saying. if the reasonable person would look at them and view them as a threat, well, it's tough. if you didn't mean it that way, it is a matter of irrelevance to the first amendment. brought it up to the supreme court, and the supreme court added a second question which was, you know, we were happy to see it because to the -- well, if we had raised the argument, one might have said the argument was not preserved. but when the government -- or rather the supreme court can add as many questions as it wants. and by coincidence, since the outstanding sixth circuit gay marriage case involved judge sutton, judge sutton wrote the opinion basically not agreeing with us on the first amendment point, but he concurred separately in his own opinion and labeled it a concurring duke
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tan today, dubious, because he said that he didn't think, you know, the use of the word "threat" means you've got to mean it to be a threat. it doesn't matter, you know, that the criminal law very rarely has criminal liability turn on what a reasonable person thinks. it's got to be the guilty mind of the person doing it. so the court added that second question presented. i think the sort of importance of this case depends on whether this case goes off on the statutory ground or the constitutional ground. if it goes off on the statutory ground, you know, this is just one federal statute, and you can start again, you can try again later although the roberts court has somewhat of a practice of throwing cold water on an issue and calling people's attention to constitutional issues and giving everybody a chance to kind of trim their sails before they actually invalidate any statutes. it'll, obviously, be more important if it -- if it goes off on constitutional grounds because, you know, at one fell
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swoop you have 50 states' threat statutes not all of which include a sowjtive intent -- subjective intent requirement and there are several different threat statutes. so, obviously, much more interesting or important if it goes up on the constitutional ground. >> lisa, why don't you tell us about the undersized fish case at this point. >> this is an undersized red grouper fish. this is a case, young v. united states, and a case that was, i think, probably distressing for the government when the court took it, but this is a commercial fisherman who apparently their, i guess, state licensing rules on fishing, you can't take the grouper if it's a certain size, 20 inches or under. and this gentleman something equivalent to the state game warden or the fish warden
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boarded his boat and saw what appeared to be or measured them to be undersize fish, and they were -- i guess he got a citation, they were locked in a crate, but several hours later the fisherman threw the fish overboard. and he was actually prosecuted under this, basically, a sarbanes-oxley which is, basically, the fallout from enron. and so it's, the statute makes it a crime to knowingly alter, destroy, mutilate, conceal, falsify or make a false entry in any record, document or tangible object. and the government said a fish is tangible object and, therefore, he was guilty of a felony. you know, i have a strong negative reaction to that kind of prosecution. i mean, it seems to me this is beyond silly, that the federal government is devoting its resources to bringing federal prosecutions under a statute that is supposed to prevent another enron to this guy who
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destroyed his red grouper. or improperly fished red grouper. i guess the fish did not belong to him. but the government wrote a shockingly good brief, a really, really good brief, and i think a lot of observers are now -- i mean, i think everyone at least when it was granted predicted this was going to be another big loss like government overreaching. so we'll see what happens. i mean, the argument on the defendant's side is record, document, tangible object. the tangible object is something like a computer or a file cabinet, i guess, that would hold documents. but i don't know, i think the government at least makes a pretty obviously convincing case that there's no question that a fish is tangible object. so in terms of people who like to watch, i think i like to make fun of both conservatives and liberals. if you're a conservative, this case is very difficult because on the one hand, it's just outrageous prosecution. it's government abuse.
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but on the other hand, there's a strong statutory argument the government has if you believe in plain language and so fort. so forth. so it's interesting to' people's reactions to this case. >> lisa, i guess i was surprised, i didn't realize that at least before this provision there was no general federal ban on destroying evidence of, of a federal violation, right? >> it was witness tampering and this was, i guess, a companion statute to witness tampering. but that was, again, a lot of the outrage post-enron, sarbanes-oxley. so it's definitely a statute and statutory scheme and impetus about financial fraud, not fishermen fraud or fishermen destruction. >> but the government's argument is that this fills in that gap, that -- [laughter] >> the government's argument is the statute says "tangible object." [laughter] >> all right. jim, why don't we, let's talk about -- this is one of my favorite cases of the year, the
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department of housing case -- the texas department of housing case. and i'll load this up a little bit. this is a case the court granted last week. it is an issue they have granted cert on three times. the question is whether under the fair housing act -- i'm sorry if i'm stealing your thunder -- under the fair housing act, you have to show intentional discrimination or instead can show what's known as a disparate impact, that some government policy or a lending practice has a disproportionate impact on minority borrowers. the -- minorities. so as you talk about this case, here's what i want to ask you. eleven federal appeals courts have ruled on this issue. all 11 have said, yes, the fair housing act allows disparate impact liability. so why is the supreme court taking this case? now, with that load -- [laughter] with that loaded question, dive in, please. >> because 11 times doesn't mean it's right until it gets up to
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the big nine. and the issue here is does the fair housing act, the plain language of the fair housing act, does it encompass disparate impact claims, those kind of claims that only look at the impact that a action is having on a statistical bay vis rather -- basis rather than whether there's any intent to discriminate. now, the fair housing act says that it shall be unawful to refuse to sell or rent or negotiate the sale rental or otherwise, make unavailable or deny because of race, religion, sex, familial status or national origin x. that's because of if it's read literally means that that is why you are denied. so here the texas department of housing was issuing various grants to allow for and promote low income housing and affordable housing in various neighborhoods. and it happened that most of the neighborhoods where these grants were directed happened to be where poor and low income people live. it's not very hard to explain that, that's where the need was,
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that's where the grants were being directed. and so statistically it shows that there is a disparate impact of these, as this grant program on low income communities. now, with those sort of facts, is that what congress is trying to outlaw with the fair housing act? and i don't think so. and i think the court is clearly concerned about this because, as you mentioned, there are two other grants, the magner case and the mount holly case in the year and the year before the terms. in each one of those cases, it got up, it was ready to go, the pitch was being pitched, and just before the home run was struck at the court, the cases were settled. the department of justice and some friends of disparate impact analyses, if you will, wanted to make sure these cases didn't get before the court. and a lot of money was spread around to make these cases settle. there's nothing unethical about that, but it clearly does show that the department of justice really doesn't want the court to
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look at this. because it's concerned that 11 courts or not, that we're talking about five justices that have expressed a certain amount of dissatisfaction about the state of the disparate impact. i mean, if you go back to the ricci case dealing with firefighters a few years ago, we are quite aware that some of the court's comments in that case indicate some skepticism about disparate impact. and we think that the court is ready to take this case and ready to look at it, and i don't think the texas d. of housing -- texas department of housing is going to settle this case. they're probably a little less inclined than the other cases and then as happened in the other cases before. we have a other interesting aspect about this case is that in the prior two cases the court asked for the opinions of the solicitor's office, should we take it, should we not? this case they just granted without asking the opinion of the solicitor.
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why? probably because they knew what the solicitor thought already and, two, they probably didn't want to give this case more time to just languish while the solicitor takes the solicitor's sweet time to file a brief and just delay things. i think the court wants to get this, and it wants to get it -- and if i could predict an outcome, i think a majority of the court is going to look askance at applying disparate liability where a statute doesn't expressly call for it. because behind all this we have potential equal protection claims or issues. because if government entities have to look at whether or not their actions are neutral actions that do not have any discriminatory intent, if those actions are going to create a disparate impact, will those agencies start to have to count by race, start to have to have an informal system to avoid a disparate impact claim? if they're doing that, are they having an equal protection problem in doing that?
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>> let me turn this to lisa and john. lisa filed a brief in the mount holly -- >> in both. >> in both cases on behalf of the american bankers association agreeing with jim's analysis that disparate impact liability -- >> yeah, so it's hard to underestimate how important this issue is to not just housing, but insurance companies, lending because very similar -- different, but the same issue comes up urn lending -- under lending practices for banks. and so it is an extremely important issue. there is a lot going on with this, with drama because the civil rights community has definitely been doing a lot to get these cases to settle, and i could not agree more with jim, this is going to be impossible because the state of texas is now a party, and the plaintiff, they're out of business if they settle this case. they're either right -- they need an up or down. so, and i could not agree with
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him more. i think the court is sick of this case being in front of them, having it briefed and then the parties taking it away. so they're going to take it, and they're not going to waste any more time. so interestingly, just because it's interesting to those of you who are not lawyers, the statute says to deny or make unavailable, and so the government when they did brief this issue, you know, it's easy to see or make the argument that that requires intent. if i slam the door in your face, i'm certainly denying you and making unavailable entrance. but what if i just changed my opening hours? am i making my place unavailable? >> that's kind of race neutral. but i think i do agree that this is not going to come out well for the civil rights community. it is hard to predict until the case gets argued and briefed though. so it's unclear. >> really, you think it's unclear? >> yeah. because things change once it gets briefed and argued. >> i mean, isn't this amazing -- well, let me ask it this way
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because i think i may need to play the devil's advocate on this particular issue. what does it say about the court that it wants so badly to decide this issue that has not divided the lower courts? especially when we contrast it with what happened today in gay marriage where advocates on both sides called for the court to get involved and they say, no, we don't have to, but on this issue they clearly want to do something. >> but it started out with mount holy. there was certainly a conflict in the circuits on how to apply disparate impact. but i agree, now they're taking out the second question, the court only taking it. there's an argument that their case law has created ambiguity even though the courts of appeals have said there's disparate impact, they're not given a fulsome discussion of the issue. >> yeah. and i think she's right about the lower courts looking at various balancing tests, and they have impacts to a
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certain -- impasse to a earn degree, and there is all kinds of confusion. an easy way to deal with this is say it's not part of the fair housing act. i'm not sure we're going to have to wait until we see the briefing because we've seen it twice before already. what's going happen at oral argument? >> you can lose a case, but you can't necessarily win one. unless the oral argument is absolutely horrible, i cannot imagine that's going to change from what we've already seen in the briefing. >> greg, can i ask a quick question from the hallway? what all do you about the impact of this beyond fair housing, and -- [inaudible] >> a lot of briefs. and is some would say that what's driving a lot of the money in the civil rights community is worrying about what's going to happen in the financial industry way more than housing. but there's a way, i think, actually, i think the financial institutions have even a stronger argument under their
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statute. so i think they'd be very pleased with this decision, but they still have a very strong argument. but this would be a nice clean win for them. >> and then you've got to look at every other statute and decide based on this decision does this statute allow for disparate impact or not? so i think it is going to open the door for some further questioning of a variety of other statutes. some of them survive, some of them might. >> well, title vii is at least settled for now, and that's a big one -- >> title vii uses the wording "impact." >> "adverse effect." but he's also right that there was the constitutional claim made in ricci, so we'll see. >> all right, john, why don't we jump to another one of the new cases. i guess we call this a case even though there are some technical issues with it, the arizona state legislature case involving independent commissions doing the redistricting. >> right. this is the arizona redistricting case. it originates in a ballot
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initiative that was enacted in arizona that sought to take the politics out of redistricting. you know, in the old days or before the referendum the redistricting was done by the legislature the way its sort of default rule. it was, instead, given to a newly-created independent commission composed of two republican appointees, two democratic appointees, and they together would pick the ip dependent which, obviously, that puts a lot of focus on the independent commissioner. the republicans in the legislature who did fairly well under the last redistricting didn't complain about its unconstitutionality that time, but this time they said that the commissioner was unduly pro-democratic in redistricting. as an aside to any supreme court nerds out will who are watching this, one of the candidates, i think the runner-up to be the independent commissioner was
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paul bender, and, you know, he may be very happy that he didn't get that spot now. because it wound up being a very contentious redistricting. the state independent commissioner impeached her and removed her. the supreme court of arizona reinstated her only three hours after oral arguments, and so, i mean, it's had, you know, a fair amount of, well, it's been contentious. and to somebody who doesn't live in arizona, it's been interesting. but a three-judge district court sided with the, with the independent redistricting commission. the republican legislators challenged it, and they voted 3-0 on standing in favor of the republican legislature, you know, said that they didn't have standing to challenge this, but they voted 2-1 is on the constitutional question in favor of the independent redistricting commission. this came up to the supreme
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court on an appeal for those of you who understand the kind of nuances and the differences. this is one of the few areas where there's mandatory appellate jurisdiction in the supreme court as opposed to discretionarier is schori jurisdiction. and the supreme court, it could have done a lot of things with it, but it took the case and did so, expressed some doubt about its ability, about its jurisdiction over it. now, the legislature presented the question as whether the arizona constitutional provision, the referendum added to the arizona constitution, whether that provision divests the legislature of authority to proscribe congressional districts violates the elections clause of the constitution, and the reason i'm looking down is because i'm about to read it to you. i wanted to very conspicuously bring out my pocket constitution, but i left it at my damn office. the time for electing representatives and senators shall be prescribed by the legislature of each state
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thereof. that's their favorite part. but not unlike the treehouse of horror, there is more to it. but there the alien blue on the cover of the book that read "how to cook humans" and revealed that it actually said "how to cook for 40 humans," here it's just a second clause. it's not quite as dramatic. but it says, um, let me see here. it says, the next clause says the congress may at any time by law make or alter such regulations except as to the place of choosing centers. and the commission sites that provision. that's the provision that helps them. because in two usc2a, a codified statute, it says until a state is -- i'm sorry, i'll start over again. i get so excited, i can't even read it. it says, "until a state is redistricted in the manner provided by the law thereof after any apportionment, the representatives shall be picked in this manner." and the independent
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redistricting commission says, aha, it says by the law thereof, not by the legislature. and there is, in fact, a 1916 unanimous supreme court decision which says that more or less that was adopted for the very reason of making sure that people could do reapportionment by referendum. and on the side favoring, if you're going to read the tea leaves, there is some stuff that is, i think, very favorable to the commission and how the court restructured the question presented. ordinarily, the court lets the case be argued based on the question presented by the person who brings the case to the court, but in this case it actually rephrased the question presented. the fact that they took the case, i think, is a sign indicating that maybe the court wants to revisit that only 1916 precedent, or maybe they think there's something inadequate in the law so far. but the fact as they rephrased the question is an indication that they think that, you know, it is a sign the commission may have the stronger hand here.
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if they don't have standing they don't have jurisdiction? >> it was the jurisdictional issue but it might be that there are other things waiting in the wings. a >> why don't we move on to peggy down and the case -- >> the grouper case is yates versus the united states. the ups is versus the united states. a >> i love these kind of cases so in exclusively because i am a woman. this one is going to be one of the more interesting cases if the court sides with ups.
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this is involving ups drivers but as one might expect you have to lift the packages and walk and this involves peggy young who is pregnant and her doctor said no more than 20 pounds and she had a weight restriction. to make a long story short, she didn't fall. she wanted a temporary defense assignment to not have to lift the talks is. and the quote on quote accommodations policy we have temporary work assignment in the case of workers that suffer suffer an on-the-job injury, has a disability, covered disability or lose the department of transportation certification so that means any number of reasons they will accommodate you. included is not a pregnancy. the court said that's fine that is a natural law this doesn't violate the pregnancy discrimination act. so that's the question.
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is it a neutral law okay and that is conceded as neutral that doesn't discriminate on the basis of pregnancy but there's another definitional term in the statute that talks about the treatment of pregnant women and others who are similar in their ability to work and there is no question that a pregnant woman is similar in her ability to work as someone that has an on-the-job injury, disability or loses her certification meaning she's temporarily out-of-pocket. i don't think -- the only thing that is newsworthy, to be really newsworthy if it were 63 but presumably there are at least four votes inside with peggy young but there has been very contentious contentious sextus commission cases with justice ginsberg reading from the dissent or justice breyer rating from the dissent from the court fights against the woman in the case. so come on the surface it is a construction case but like all
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the cases -- and i'm more interested in the view of the law from the nonlawyers. it's difficult for for the nonlawyers to parse this. they want to know can ups discriminate against pregnant women, and that's how it's going to be perceived. >> but me ask you a question. i like dealing with lawyers like jim and lisa and john because they read the statutes and think about what the right legal answers could be. i spent time reading based on how the case is treated. in this case, they had an interesting dynamic where peggy asked the supreme court hear the case. the court asked the solicitor general for his views on it. and the solicitor general often relieves himself, and in this case decided he would recommend to the court don't take the case
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of picky young. >> even though they thought the court was wrong he loved. >> but peggy young had a case and we don't know if the solicitor general didn't say because we are worried with the solicitor general might say that it's reasonable to infer that they were aware of that. and then the court agreed any way to hear the case. that's one factor. the second factor there are a lot of amicus briefs on peggy on's site and there are a number of pro-life advocates are chiming in on her site saying we don't want to be putting women in the position where they have to choose can i keep my job or can i have this baby. so, with all that's going around, and my right in thinking maybe peggy young has a pretty good situation here?
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>> i don't know about that. i'm going to tell about come about something more interesting. there is a mail lawyer and they are arguing a woman for the case. that's more interesting than what you raised. [laughter] >> i didn't know that. >> i don't think that is a factor at all because the office does things like that all the time and that is definitely something you can quote. the pro-life thing is interesting but i don't think that's going to move the court. i really don't. the dynamics of women in the workplace is sort of the undercurrent. i don't know. the brief is too strong. it's natural. so what does it mean to discriminate? doesn't mean it doesn't treat pregnant woman backs you could say that with ledbetter and all the cases that involve gender
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discrimination. >> now we are going to try to shift to some cases the court could hear and in some cases there are petitions -- [inaudible] >> the question about federal regulations that they had on the larger fact of the case. would you agree? suspect maybe i'm confused at how many times the government does this but i this guy think he issued a regulation in the time that the case was decided in the lower court. and in the time now that says companies can't do this. i don't know. it could have a different element, chuck you refer to the eoc. i don't know how much that has been briefed yet. >> let's jump to some of the potential cases. in light of the time we will probably have to move through this quickly. i know we have some great issues
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out there. why don't you convince us that the supreme court should and perhaps will take up the case of the delta blacks >> because they took up another cases dealing with small fish, they have to take up this one. [laughter] this deal is as a little 3-inch fish to the delta smelt which has wreaked into the california central valley because the water supplies has been cut off hundreds of thousands of acres. unemployment among the farmworkers are skyrocketing. and it's only made a terrible drought is much worse. so, it is the biological opinion that the the fish and wildlife service issued the 400 page mess. that is the ninth circuit words this thing is a mess. you can follow it. it doesn't make sense. and the trial court judge talked about saying this doesn't make sense. it doesn't look into the impact it's having on humans. it doesn't look at the adverse
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impacts of the biological opinion was tossed out. the ninth circuit reversed to saying despite the fact the biological opinion is 400 pages of incomprehensible mess it is still subject to deference. the problem is that under the dangerous species act as it is written now, an agency must look at alternatives including the economic feasibility. in the agency and the ninth circuit agrees i economic feasibility, all we care about is can the agency authority to implement the biological opinion. economic feasibility does not think -- be economic feasibility to the people that are actually affected by the actions protecting the delta smelt by cutting off water. and so, what our petition first heard it is recommended, economic feasibility must be looked at only in terms of the impact on the agency but on the impact of the affected people. moreover, the agency is interpreting its own regulation and the question as to what extent should the agency's
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deference to its own regulations, excuse me, the agency's interpretations be given deference. there was the case a year ago called decker versus the communities and in that case some of the justices questioned the leah especially giving the interpretation of its own regulation saying under the case called chevron many years ago should not apply in that case. last and most important what but we are asking the court to look at, does the language of the decision still have the force today? be dealt with another small fish, and a large government some say boondoggle project was stopped in its tracks because of the impact on the garter. the court said under our reading of the endangered species act that the fish must be protected
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at whatever the cost. that whatever the cost link which is something we are asking the court to revisit in light of the fact that the endangered species act now requires you to look at prudent and feasible alternatives that has economic elements to it and moreover, the interpretation of the tellico some under the tennessee valley authority versus hill many years ago is no longer as persuasive as it used to be because of the way the court interpreted it dealing with looking behind the scenes of the act and we just don't think it's a good reading of the danger den species act. there have been greater scholarships done in the recent years showing that whatever the cost language really shouldn't apply and we think that could have a huge big deal around the country of the court were to look at the language of the endangered species act and
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consider whether or not. they throw the workers out of business and of the thousands of acres of fields and the economic devastation on the central valley in california. that we think is something the court may pay attention to. >> i was getting. >> the biological opinion is such a mess i think the jury is still being decided whether or not the fish is going to be affected by our protected by stopping the water. it is a factor in a variety of other concerns about why the delta smelt is in trouble. but certainly the court should at least look at the people that are in trouble, too.
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as mcveigh decided the same day so we could have fun writing these. >> there's agricultural marketing order that requires the farmers to basically give up part of their crops which is used to ensure that schoolchildren have a box of raisins everyday with their lunch. [laughter] i'm sorry to the industry out there but i've always been freaked out i do think it's. i didn't know that when you agreed to talk about the case. case. a >> we >> we can talk about my phobia. it's already been to the supreme court before. basically on the reversal map of
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the opinion from the ninth circuit which is the court of appeals from the west coast to the united of the united states and much maligned and reversed and unjustifiably i have to add in any event they said you couldn't take the challenge. that was reversed 9-0 and sent back down to the ninth circuit again. at this time they held essentially that there isn't a taking and in the process they'll apply to the regulatory framework and is ordinarily not applied when you basically are taking the property outright to make it more difficult and ad hoc that you ordinarily applied for the regulatory taking which i wouldn't wish on my worst enemy. the people that thought this a couple of years ago are back and
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filed of the repetition with within our judge at stanford. and they have in a godly number of amicus briefs supporting them including one by me. so, although it doesn't file until next week. but i'm interested to see whether the court takes it because, you know, there is lisa coined the term and outraged docket and there are a certain number of cases that are sufficiently outrageous that the court will take without a split. i think there is a split at least a colorful split. it will be interesting to see if they take it a second time creates a whether to raise the whether it will cause them to turn it down. >> do you disclose your fear of raisins? scenic there isn't an ethical requirement. >> the reason lisa wore her
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cowboy boots today is because she's prepared to talk about a case involving license plates in texas. also a first amendment case. >> any case about the first amendment is wonderful because you don't need to know the law like are you allowed to say that that's john's case. i don't know the name of the texas official but it's the state that's the state of texas versus the sons of the confederacy and with the fifth circuit held is this group whatever they are they wanted a license plate issued with the confederate flag and texas said no and the fifth circuit said that violated the fifth amendment in two steps. and this is where we can all take a sort of public vote. is that license plate a public forum and if its government
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speech they have much more leeway to decide what it wants to say and is a private speech and the court said its private speech because you own it i guess you have title to the license plate and vanity plates. and if it is private speech, this is both to say we aren't going to produce the confederate flag. is that the viewpoint discrimination, speaker discrimination, concept discrimination blacks and the court circuit circuits that basically all of that. the result being that texas now presumably another state would be required to, you know, issue license plates that say child abuse is great, black people are inferior, anything. and texas understandably doesn't want to do that. there is a circuit conflict with almost all of the circuits siding with the fifth circuit so the law is in favor of the free
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speech challengers in the private speech. what texas is arguing in the second record court is even if the private speech were not discriminating on the the feed to beat the basis of the viewpoint it's not that we are saying it is a bad thing. we wouldn't issue a license plate that has a confederate flag so we are seeking a natural view on the confederate flag. we will see. the court is likely to take the case and adjust is one of those cases everyone can have an opinion about should the state issue a license plate that says anything even if they completely disagree with what is on the message. >> can you give a short version of the panhandling case as well? >> i don't know the name of the case but it's a city out of illinois -- >> springfield, yes that's right. it bans within a two-mile of the
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radius requesting money that only for an immediate exchange. so that basically means not panhandling can you spend a dime but can you pledge a dine and mail it to me. so it is so transparently targeting homeless people but they say this is totally fine and if the circuit agrees and says yes you can have this law. so it is quite extraordinary that a politician could not say i'm running for mayor would you mind contributing and i will take your money now she would have to say i have a mailbox and address. i find these kind of walls and laws and offensive because i'm a fan of the first amendment that the city one and there is a split. once again is that discriminatory against the
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nature of the speech? >> all of the cases that you just mentioned, the three first amendment cases they are all times the court could agree to hear them this time next year? >> unless they were extensions granted. not necessarily the panhandling because of how fast it moves. >> how quickly can you sum up all of healthcare? hispanic we have three cases that could make it to the supreme court. in two of these cases out of the dc circuit they involved the question of we have the state exchanges and subsidies according to the statute for people who are getting healthcare through an exchange created by the state. as even though most states did and create an exchanges with a stepped in with their own.
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to those people getting federal money are they entitled to the subsidy and there's all sorts of reasons why that is a good thing or bad thing there was a split in the circuits but as the justice department pointed out in the brief because the dc circuit has taken the case up the decision has been vacated that the case is going up. finally, that case you remember out of florida where the supreme court upheld the healthcare act where it sat under the commerce clause you cannot require people to get health insurance but under the taxing power you can require that people pay a penalty and the issue is if the penalty is attacked as the court said it was then done was a properly filed and probably adopted by congress. the origination clause says for the purpose of raising revenue it must originate in the house
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of representatives. this case started with a military benefits bill was six pages long and every one was put into it by the senate. it's the purpose for doing things in healthcare. we don't see the purpose of fact any kind of precedent is that there is a potential for hearing that today. it is up in court will have a chance of fixing whatever it is the last cheer on healthcare. >> if there is no split i don't buy the court would weigh in. that i may dissent from this. i don't see the court as dining district obamacare but i'm telling you is people will tell
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you the court will take it. the court took the spending clause challenge on the first obamacare challenge even though that issue became the first court in history to strike down the law so it's hard to say but i don't think it is beyond the pale that they might want to stay out of it if the issue remains clueless. >> they are reluctant to get into the controversy about marriage. they have to take take healthcare to reading themselves. >> the conventional wisdom is they will take it even if there is no split. the reason is because the people that are against the law think that they are so contrary to the government's position that it
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deserves the votes of the challenger side. but i don't know and maybe there will be a split. i don't know. >> they are rather difficult to follow and difficult to justify and by that i mean they are trying to create a statutory conflict and ambiguity which the agency can deter and to the question should there be difference or not is their ambiguity in the first place where one side says absolutely no ambiguities. the other side says there's complete ambiguity and then we have the court sided with the original decision from the dc circuit so there's going to the be conflict coming up and i think the court is going to have to take this at some time.
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>> i will open it up for questions now. can anybody agree that there may be a difference declaring the law unconstitutional on the one hand like the interpretation [inaudible] i am not sure that it comes up anymore. >> you're talking healthcare susceptibility right? pates about the subsidies whether the chief justice might
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be willing to avoid constitutional questions by integrating the statute in a certain way by striking down the law might be willing to say it is the statute and it reads if you cannot get the subsidies that have the federal exchange. >> that is completely divorced from reality. if you remember he did say obama care was unconstitutional so he had no problem going along with others and the four of them were willing to take down the whole statute. i don't think he's going to be able to pretend that it's not striking the whole law and congress is going to be able to fix it. i just say that that's laughable
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>> if he really thinks that's my guess is that five of them think that there is no ambiguity and you are not entitled to the subsidies under the exchange they will say that is the interpretation of the statute. >> she's proven that she's not in a tube over turn obamacare. he's neutral. so at this time if you read the statute and find it unconstitutional it's not because i was out to get the statute. i proved already that i'm not out to get the statute. >> that can't be what is intended. >> had they thought this far? they can't be expected to read what they pass.
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>> [inaudible] >> can you start the question over? hispanic wouldn't that require the others to deal with the chiefs of obamacare? >> they were largely silent on that issue and that's in the rules of the united states right now that is a fact and by if they are going to declare that we don't agree on the attacks than the whole basis of the original of holding would have to fade away as well. i don't see that as an insurmountable problem. that is the president of the case. it's going to be part of what goes up to the court.
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>> is a bigger issue of that case that your position is going to require the court to essentially tell the senate and house the house your procedures are not what you say they are. there is a separation of power power but to think what think we addressed this in the past in the case where it is in this case in the municipal or the case will see whether or not it is violated and in at least the senate wasn't violated because of the particular attack was an assessment or fee. so the court has shown that it's willing to second-guess what happens and i think there is a duty to look at that to determine whether what we are dealing with is a lawful tax or not. this is something that was of critical importance to the founder of


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