tv Powers of the States CSPAN December 24, 2015 4:30pm-5:29pm EST
the things society. it's a privilege of all of you here in washington, d.c. or our annual convention. i hope you're enjoying all different sections. we are going to have a conversation this morning about state attorneys general and this is an issue of great importance to the federalist society and should be of great importance to the american people, because in many states, state attorney just one of the most important constitutional officers, oftentimes only one of two or three or four constitutional officers in a state. and there's been an enormous amount of activity in the state attorneys general space over the past few years. we are seeing an unprecedented amount of activity by state particularly with regards to push back against federal overreach that oftentimes comes in the form of litigation. not only are the unprecedented number of lawsuits being brought
against the federal government by state ag is but an unprecedented number of state ag's doing in each of those losses. it's a very interesting time, and we've got a group of great people here who are going to have a conversation about this. i'm going to introduce our facilitator, our moderator, adam white, who has been a long time volunteer leader in the federalist society, is now widely certainly some distinction at the hoover institution, starting on monday. and he just came out with a wonderful piece in "the weekly standard" which is out today i believe, called judge robert, the chief justice of the united states 10 years in. so not on this particular topic but well worth the read. so with that i'm going to turn over -- so what i'm going to turn things over to adam. [applause]
>> thanks, leonard. state attorneys general occupies one of the most important, complex roles in american government. though elected or selected politically, in office of their duty is to the rule of all. they are are responsible for indicating both the laws of the state and the right the rights e citizens come at a tiny the constitution separations of powers and federalism. here today we have to come it's hard to think of to bear stickers on the subject right now. one newly elected and serving out for this year is the attorney general of the state of nevada, and another who serve as the attorney general for the statstate of alabama before joig the 11th circuit. judge william pryor, judge of the u.s. court of appeals for the 11th circuit. judge pryor has been serving on the 11th circuit since 2004 but perhaps more direct relevance this morning he served as attorney general of alabama from 1997-2004.
first appointed him as attorney general in the nation. is elected and reelected in 1998 and 2002. in 2002 he received the highest percentage of votes of any statewide candidate. graduated magna cum laude from tulane law school, clerked for judge wisdom on the fifth circuit, and in private practice, pocket compass global and now the university of alabama school of law. we are also joined by the honorable adam laxalt. he has been serving as attorney general from january 2015, formative and the u.s. navy, he served as judge advocate general, volunteered to serve in a combat zone in iraq, operating base camp victory where his team was in charge of keeping more than 20,000 detainees during the search. he was awarded the joint service commendation medal and the iraq campaign medal, and his unit was awarded a joint meritorious unit award.
he has been a private practice comes with a special ausa, has taught law, advisor john gold that the state department. users of the board of trustees for catholic charities of southern nevada and he cofounded the st. thomas moore society in nevada. graduated magna cum laude from georgetown and received his law degree from georgetown. let's welcome our speakers and we will begin. [applause] >> and if i may begin with you, judge pryor, since you served a little while ago, what was it like serving as attorney general then? >> it was a different world. i became the attorney general of alabama in january of 1997. jeff sessions, former boss, had just been elected to the united states senate, and the governor appointed me to finish his term. and the first issue really on my plate was whether the state
would join a national tobacco litigation. i had served as the chair of the task force the year before for both the governor and the attorney general, as i was jeff sessions deputy ag, in evaluating whether the state should file such a lawsuit. our neighboring states mississippi and florida had. and our recommendation was that we not do so. we thought it was contrary to law, so into the law of alabama. that was our perspective. and bad public policy on a lot of levels. and, of course, there were a growing number of states that were joined in that litigation. it was very much akin to the kind of litigation that states did collectively back then. a lot about i think really was
an outgrowth of the era during the reagan administration when antitrust enforcement changed at the federal level and we went more to a consumer welfare model perspective and law and economics kind of perspective. and states what a more populist perspective of antitrust enforcement, old school kind of liberal populace respected, resisted that an engaged in some collective litigation. so it was very much an era where states were pro-regulation, looked in many ways to the federal government for leadership. the tobacco litigation which i refused to join, eventually landed in the hands of congress for a while. many of the states wanted congress to step in. so it was really a different era. there was a time when there was
a case before the supreme court of the united states involving whether congress had the power under the commerce clause to create a civil remedy, but toward a remedy, for a victim of an intrastate rape. and whether that was a proper exercise of congressional power -- tort when we. 36 state attorneys general filed a friend of the court brief in support of federal power, and when the power of congress to create that right. i was the only state attorney general who filed a friend of the court brief on the other side and said this was really -- [applause] -- is usually the province to the states and that's of course the way the supreme court of the united states world. but it gives you i think the flavor of how different the environment was. >> so how did things begin to
change towards where we are now? >> that's a tougher question for me to answer, because my service ended in 2004. there were a bunch of us, a core group of us who were dissatisfied with it and started working together both politically and through litigation. course dates solicitor's general, when we were in the process of creating those kinds of positions in our office, i created one in my office, started working together more in supreme court litigation. but you know, really in many respects during my whole era i felt as if we were under siege and we were fighting back. i mean, if you look at the tobacco litigation alone, this was a truly remarkable era when states attorney general
collectively brought an industry to agree to a settlement that would bring billions and billions of dollars to state governments, what could only really be viewed as a form of taxation that they've achieved through litigation without any kind of boat of legislative chambers -- vote. they get a huge percentage of those billions of dollars to the lawyers who filed that litigation and conducted that litigation and had been campaign contributors to the attorneys general. they were really some corruption issues associated with that, prosecutions -- prosecutions associate with it. so you know it was entirely different about it. and i'm not sure, i think maybe the seeds of changing that
perspective were laid back then. but when i left office in 2004, i don't think it was anything like the environment that use e-mail. >> let's talk about the environment we see no. just explain for us what it's like to arrive in office. i be curious what spurred you to run for office, and then once you settle in with your expense been in the first your? >> well, you know, federalism was one of the things that inspired me to run for office. if you can believe it, when i was campaigning last year, that isn't a single person that knew our solicitor, you want a solicitor did get our office had not filed a lawsuit protecting a western state that's been under siege from the federal government for some time now. and politically, you know,
republicans and democrats fight federal overreach in a state like nevada, but for whatever reason the attorney general's office had never been used to protect the state. and i had to literally come in kind of a grassroots fashion, in a short year, go tell people while i was running, go to the people what they are missing from their ag's office and what more we could bring to the table. as you can imagine if excited a lot of people once they said oh, wow, the attorney general isn't just some boring floor that nobody ever hears from? so that's been a big motivating factor for me. and we've got great opportunity to actually step into that space. we had a solicitor general technically, but did not
function and the capacity that i think you guys are all used to as a solicitor. that was the first thing i did was bring in a new solicitor general, so that most of you, many of you know, lawrence van dyke good many solicitor general and said all right, i need you to help me build an office. we had zero. and we got into the immigration litigation within a few weeks of being in office. and so we really kicked into high gear and once people started realizing we can, whether it's water and he is, endangered species, a bunch of things we'll talk about going to spell, people have been very excited that the attorney general's office can do this and that we can protect the state. unfortunate i now have to keep the people around the state, places like texas have 20 in their office and now i still only have one. so we've been a victim of our success. people are why aren't we
fighting this or that? give me some time. we've got to build this office. but it is i think a very different time from when pages were predominantly used to basically crush businesses. there is now nearly 30 republican ag's. i think there's a huge hesitancy to go down that path. i know my philosophy is, if we think a business is doing something wrong, we are going to reach the basis and see what's going on, give their expedition first, see if we can reach an accommodation. as opposed to i think in judge pryor's day, basically surprise lawsuits without ever speaking to the other side. it's not really my goal. we have to protect the consumer, but there are more effective ways of protecting consumers. it's got to be a huge sea
change. probably weekly. we have something involving federalism in our space that we are looking at. and it is, i suspect the judge was in the wilderness for four or five ag's that were willing to do a quote-unquote multistate litigation against an administration. and now when we are looking at joining a lawsuit, i believe all this started most with the obamacare lawsuit, you know, you're looking at 20, sometimes 30 or more ag's with republican democrat crossovers. so i think we're entering a new era that, whether we got our new voice or whether this administration, the timing of how this administration has acted a long with all of these new ag's has provided a perfect
point of inflection where there's a lot for us to do. >> i'd be curious for both of you, your office requires you to interpret the law, interpret the constitution and then decide as a practical matter whether to bring suit against the federal government, join a federal suit, or in the other direction you were defending state laws for choosing me in some time not to enforce state law on constitutional grounds. i which is be curious, how do you approach a question like that, both sort of interpretive question and then the practical tasks of carrying out the office? >> that's a fun topic. i have a perspective that is perhaps a little bit different from what has been expressed by many of the state attorneys general who currently serve, and i think it's been illustrated during the marriage litigation.
so my perspective is that a lot of this depends on state law. not all attorneys general offices are treated the same way. 43, there was a 50 elected, five oh appointed by the governor i think steel, and one by state supreme court, one by the state legislature. you have to make you sure you understand what the state law is in each jurisdiction. but as a general rule, the attorney general, the chief legal officer of the state and individual elected and has come we don't have a unitary executive at the state level, and the state attorney general has the constitutional authority to state the legal position of the state government in court. and the attorney general takes an oath. and my perspective always asked the state attorney general was, i had an obligation to take the
constitution seriously, and to state the correct legal position. and if that meant that i had to confess that a state law was unconstitutional, i did so. i didn't think that it was productive to have debates about doing my job. we have seen in the context of the marriage litigation, a year ago i gave a lecture at case western, and i've criticized by conservatives who say that the answer to the marriage litigation was to say, well, i'm doing my job, i'm defending state law, without regard to what the merits of the argument are. from my perspective, you want to be talking about the merits, what is the constitution actually require? what is the correct legal
position? i don't think it's productive to just have a debate about process. and we have a long history in our country of executive review that each branch has come we forget about it, that each branch has the responsibility of taking the constitution seriously, interpreting the constitution independently. thomas jefferson refused to prosecute under the alien sedition act, although they've been upheld by the federalist court, by the federalist appointed judges. he pardoned those who have been convicted under the law. andrew jackson veto the national bank act on unconstitutional grounds even though it'd been upheld by the supreme court, go to examples of lincoln and others. executives have an independent role in reviewing the constitutionality of legislation and other actions.
and i think that applies at the state level as well. state attorneys general take oaths of office, and i thought rather than having a debate recently in the marriage litigation about whether attorney general were quote doing their job in defending the law, the argument really should be about what's the correct legal position. >> picking up on the duty to evaluate the constitutionality of the law, i think we're in a unique era right now where the administration and various federal agencies are virtually relentless in what they're willing to do to expand their initial statutory grounds for doing whatever they're doing. and so i think it's incumbent on congress, and i know some of the
congress, elected congressmen and women and senators do start, they're starting to take seriously that they have their own responsibility in evaluating whether laws pass a constitutional. i think many of our judges and a few, i know a few of our supreme court judges expect that. but as soon that's going on. unfortunately, you here in the political space all the time hey, it's our job, you just pass the law. we will let the judges figure out whether it's constitutional. i think it's important we reverse that course. because first of all, judges are 50/50 at best these days of actually holding those lines of what constitutional and not constitutional. because obviously there's a leaning towards deference that continues to go against our direction. so i think the ages have provided this incredibly
important role in the last few years. this year i just feel so fortunate to be in the position i'm in at this moment of time in our history to be able to file lawsuits end game very important junctions. we make that argument all the time. we are not policy folks. but it is our job to come if we need to come to defend the constitution, i get something like the waters of the u.s. our executive amnesty, get these things frozen, if you will come into court system so they can go back to the body where they are supposed to be handled. >> let's touch on that more. i would never years ago and law professor said that the new comp the federal government is a new form for federalism issues of. not the senate anymore. that was years ago and is probably more so now as we see with these industry programs. endangered species act i dislike your perspective on operating
because initial offers on behalf of the state look at these programs, looking at how they interact in their state and deciding what action to take to push back against federal overreach. >> sure. well, we've had two big ones since i've been in office, and these are very western issues. so i won't come hopefully i don't bore you guys to death, but waters of the u.s. come hopefully many of you have heard about, has changed for many decades on the phrase navigable waters. and you know, most any got to speak to of the waters of the u.s., anyone can articulate what they think i navigable water is. and, obviously, for a federalism type crowd, that was the hold, something that was interstate, the only reason federal government had any capacity to be in this space. so what's happened with this
rule is they decided to reinterpret that phrase. it moved into, i barely exaggerating, to backyard pools. roadside ditches, wetlands, any cooling water that lasts for a handful of days in a year. so for a state like nevada, and many states, in the case of the waters of the u.s., it's a transformative thing that they were trying to do to the executive branch, to the administrative state. and that's a great one to see the interaction of the new ag space. so you knew that shut about 35 states that were opposed to waters of the u.s. there was a lot of democratic crossover in the case of the waters of the u.s. a lot of discussion occurred amongst the sg's across the
country to figure out the best way to approach this. what you ended up with i believe this five different lawsuits in many different circuits. we, being in the ninth circuit, we went into north dakota litigation and we are part of the 13th states that counties first injunctions. so this is a perfect example. the prior ag of our state would not have been involved in that case. spent that's prior. >> the other. my predecessor would not have been involved in that litigation for the state unabated. and we ended up not only getting litigation and we happened to pick the right one that was granted injunction the afternoon before the rule was set to go into effect. so we are absolutely basically
apoplectic about this rule in our state. it's the west but we only have the water. it's a very tough world. just boom, you know, and injunction. something that nevada hasn't been on the good side of in a long time. but, unfortunately, you run into the pressure of whether or not yoyou in the right litigation, whether or not you joined the right policy. and this time we picked the right one. the federal government then said, well, they're going to move forward with the rule in the of the 37 states can which usually gets gas. i guess it's too early because you this way. but imagine that. they are so determined to transform administratively our country that they said okay, we're going to have a two track rule on what it means for navigable waters in america. fortunately, some weeks later at
the circuit level they ended up doing a nationwide injunction. but that's just a real example of what an ag that is trying to preserve the constitution, preserve the separation of powers can do to help protect the state. >> anything to add? >> it's about half past the hour now. we will start taking audience questions in about 10 minutes so anybody wants to line up, by all means. if you don't you mentioned the state solicitor general office. as it happened you, one guy in office was a law school pal of mine. lawrence van dyke. if you can only have one person in your office, take a moment. you help establish this trend at the time of trading the sg's office, didn't you? >> i created a state ag, i mean solicitor general post in my office that, in fact, there were
already dozens of states that have bee done so. i was really following an example that had been said by others. i think the or even more now who have done so. what we wish you? >> since there's a lot of young lawyers here at this convention is a good sort of described that job in the top of the office and what sort of lawyers traditionally have served in that role may be of interest spent let me tell you parts of what i did. so this was during the rehnquist court era, and federalism was a big part of the supreme court docket. and i was pretty heavily involved in some of the major cases that were decided by the court, a joint florida-alabama case. the alexander versus sandoval
case. they. versus the university of alabama board of trustees case, all of which in challenge congressional authority to subject state governments to certain kinds of lawsuits, and i had hired a good friend of mine who is now a circuit judge on the sixth circuit to revisit our state in some of those cases before the supreme court. but i became convinced that the state solicitor general model would be something that would allow us to do even more, get even bigger bang for our buck. and we can bring in young lawyers, many of whom had clerked on the supreme court of the united states, just a few years out of law school but were very talented and would love the
opportunity to be involved in high profile litigation, representing state governments and state supreme court's and federal courts of appeals, and occasionally even in the supreme court of the united states, opportunities that they would not get as more junior lawyers at big law firms. we had to pay them a salary that would be competitive to attract them, but we could pay them far less than it would cost to hire big law firms to represent us in those cases, particularly before the supreme court but in other courts as well. and i learned kind of that model from some other states. that's how ted cruz started in many ways. in public service. and i think it's been a highly successful model and it's not
surprising that more states are doing it. >> for us, like i said, the sg's office really wasn't active in this space, mostly doing a bs work. so converting -- habeas. we have said so there's always a represents the natural resources, with individual boards that may represent the agencies that are affected by this, but we needed a dedicated appellate practice. ..
>> we've been in litigation for a w years, and my new sg that's got the appellate view looks through and says, hey, there's no sovereign immunity argument in this case. he's sort of shocked. and we ended up putting together a multi-- we, first of all, we filed the sovereign immunity, but we also got a, i want to say, 40-state amicus that supported this sovereign immunity position. within weeks california files a sovereign immunity case against nevada on an unrelated case -- [laughter] and they hire paul clement to do it. so both cases went up to the supreme court.
and, unfortunately for poor lawrence, the clement case was granted and not ours. but we know that our lawsuit along with getting all of these states to join, you know, how hard it is to get granted, it was that combination that got this case granted. so having that type of thinker, that appellate-minded thinker that can, for us -- and this just may surprise you guys -- if you're the lawyer for the department of education in our state, you are the lawyer whether it was looking at a contract or whether it was litigation, and if your litigation went to the nevada supreme court and somehow to the u.s. supreme court, that lawyer stayed on that case. as you can imagine, that was not acceptable more me, you know? that's just not the way we were going to continue doing work. so making sure that we have a solicitor's office that's now engaged at the beginning of these tough cases to make sure we're setting ourself up for the long run has already been very
big for our office. >> just one more -- >> and, quickly -- >> yeah. >> we have a new deputy solicitor, and he left from gibson and dunn in san francisco, huge pay cut, absolutely loves his job. and these guys, i mean, they thank me every day, i kid you not, for how exciting their work is, how much they love what they do. and here they are basically two guys that are shaping this major litigation for a sovereign state. and so it's exciting work. i think sg's office has got to be as good as it gets. >> just one more question from me while folks are patiently waiting. y'all campaigned for office successfully. i'm just, i'm interested to hear how you translated rule of law issues which aren't always, you know, majoritarian or popular, how did you translate that into a popular campaign that won votes? what -- how'd you approach that?
>> well, let's take the federalism litigation as an example. you know, in defending our state in a disability discrimination case, a case where i argued that congress exceeded its power in subjecting state governments to suits for money damages under the americans with disabilities act, there were certainly advocates from the disability community who did not agree with our legal position and made arguments in the public square against it. but for me it was important not to get lost in the weeds about the legal argument, but when communicating with voters, to tell them really what was at stake. we didn't argue that state governments were free to discriminate against the
disabled. our argument was one of protecting the taxpayers against a lawsuit that would open up the tate treasury -- the state treasury to money damages awards which we said, you know, we were arguing the federal government can't do that. we can do it to ourselves and, in fact, as a matter of state law we had an administrative process where damages could be awarded to a state employee who had been discriminated against on the basis of disability. but our argument was, sure, the americans with disabilities act is constitutional, but subjecting state governments and state taxpayers to this kind of remedy is going too far. and the supreme court agreed with us. so it helps a lot to win. [laughter] i'm a big believer in picking your lawsuits wisely when you're
an advocate. and we did a pretty fair job of picking winners. and i think over time voters will see wins and say that, that guy must know something about what he's talking about. i had a big school prayer case where the governor, you know, took the position that teachers and school officials should be able to lead organized prayer and religious activity. i didn't take that position. you know, i argued that there was a federal injunction that restricted the free speech rights of studentses and that the federal injunction -- students and that the federal injunction right had gone too far and actually violated their free speech rights. the aclu was involved in the same litigation representing a student and was arguing that the injunction was proper and that stool -- school officials needed
to clamp down on it and censor the student's speech. well, in that kind of battle we chose the winning argument. the 11th circuit twice ruled that we were right. you know, i think you have to pick your battles carefully, and you have to be able to communicate 'em. but over time i think voters will recognize that if you're winning more than you're losing, you might know what you're talking about. >> you know, i would say that i think there's a notion that maybe the average voter doesn't know what rule of law is, and i would submit that i did not experience that last year at all. i mean, everywhere i went in the state when i gave my stump speech that revolved around the importance of the rule of law, following the law, people absolutely got it.
i think, i always used to joke it was amazing, it didn't matter if it was a town of 500 people, eric holder was, like, the first name on people's -- [laughter] first question i ever got, what are you going to do about eric holder? [laughter] and the thing that they reflexively knew is laws are not being followed out there, you know? what's going on? why are people picking and choosing which law they're going to follow? so i think that was good timing for me. i mean, we just had sort of the extreme time of this, i think, in our country where people absolutely just knew looking out there in the big space that laws are not being followed. and i think federalism for us -- and there was a little discussion about how hard that is to sell last night, and i didn't have any trouble selling federalism either. and, again, maybe that's because i'm in the west.
but everybody very much understands how hard it is for a state to operate when the federal government is coming in on top and changing the rules all the time. and whether it's our water, our lands, you name it, you know, we're fighting for our lives out there in many ways. we already have 85% of our land controlled by the federal government, you know, which astonishes probably most people in this room. so i guess it could be state to state, it could be the region you're in, but federalism, the rule of law, those things are absolutely hitting home in our state. and, again, we've been lucky. we've been on the immigration case, we've been on the waters of the u.s. case. we are now defending against the aclu the nation's first education savings accounts. it's a $5,000 can go to any parent for any type of school, and we're being sued under or a blaine amendment that many of
you may know the history of that that had a lot of anti-catholic bigotry and, you know, we were able to, again, getting a solicitor involved along with your trial litigators from the beginning of the case, you know, we're ready. we're ready for this case. we're ready to win it on the merits, or we're willing -- or we're ready to take it to the supreme court if we have to on the blaine amendment grounds. so people are seeing the activity, people know that this is helping our state. this is returning decision making back to the people, and they're getting that, i believe. >> judge pryor, do you have anything to add before we go to questions? >> just two things. all politics is local. you know, i talked in terms of federalism when i was the state attorney general, but in alabama i tried as much as possible really to refrain from the use of states' rights which caroled caroled -- which carried a connotation which really hearkened back to the days of
governor wallace and, i think, a flawed perspective of constitutional law. and i tried to be careful about that. so, you know, there's a western perspective, sometimes there's a southern perspective that makes the position different. but i was going to ask you, so you've got a lawsuit that's challenging these education savings accounts, and i take it then that either your state constitution or some state law provides the blaine amendment which prohibits taxpayer dollars from being used to support some kind of religious education. am i right? >> yes, your honor. we have a constitutional amendment that bans for sectarian purposes. >> well, here's the thing i was going to ask. so it sounds as if you're getting ready to argue that your state constitution, in fact,
violates the federal constitution. is -- am i right? [laughter] and by the way, that's totally consistent with my perspective of what the state attorney general should do and what your oath of office is. but it's very different from what a lot of state attorneys general, conservative state attorneys general have been running around the country saying, well, i have a job, i have to defend state law no matter what. no, you don't. you have a duty to defend the constitution. >> well, we've -- [laughter] thank you very much for that, your honor. [laughter] we've stopped about a half step short of that, is the long and short. our -- it's a three, i won't bore you guys to death, there's three prongs. the third prong is the blaine amendment, and what we've basically said is that we suggest they find in this on very narrow -- find this on very narrow, they do not overturn the
esas on blaine amendment grounds, or they will risk bumping into the u.s. constitution. >> okay. so it's a constitutional avoidance argument. >> it is a -- exactly. >> okay. >> everybody's been very patient, thank you very much. there's three microphones, and i'll try to be as fair as possible. i believe the gentleman in the middle stood up first, so i'll start with him, and then back, front, and we'll go from there. so, sir? >> thank you. art mackenberg from the gem state. it appears the u.s. supreme court is in conference today, and we've heard some, i've heard some noises lately about undertaking new look at the death penalty based on a cruel and unusual argument. and putting the idea aside about whether or not the death penalty itself may be cruel and unusual, there seem to be two other arguments that come up. and my question is about what the state ags are doing about those two arguments which appear
to be the length of time it takes for the imposition of the penalty, and the second one being the method of the penalty. some states have gone away from the new chemical impositions and gone to, you know, firing squads and all this type of stuff. of how do the state ags handle those two issues related to i believe they would be a sixth amendment speedy trial and then a due process fifth amendment issue. >> is that an issue that you've -- >> i was going to say it's not something that's ever hit my desk so far, so guess we'll have to wait and see if something comes down the pipe. but the way it typically does go down as far as, as long as we're having this ag panel is that if a few ags get motivated on an issue, then they will circulate around the rest of the states to see if there's some support for one side or the other of a case. but i haven't seen anything like that.
which doesn't mean it's not in the works, by the way. it just means i've got a huge office that doesn't do just this space. so -- >> it hits my desk as a judge, and i'm not going to talk about it. [laughter] >> fair enough, thank you. >> doctrine of constitutional avoidance again. [laughter] the back microphone. >> good morning. john -- [inaudible] county government attorney from new york. my question originates from my advocation which is a writer for box score news.com. fantasy football. 20 states have weighed in and identified it as -- >> [inaudible] [laughter] >> -- a gambling issue. and given the professional sports leagues' partnership with these companies, given the amount of astronomical sum of money being involved and the fact that now we have sports talk radio hosts suggesting that a possible resolution would be a
federal gaming czar, i was just curious what is the likelihood that we could end up with a, an addition to -- >> you're from nevada, not me. [laughter] i mean, i'll tell you right now -- [inaudible conversations] >> the hard questions are coming next. >> general, i'll tell you this, you know, in alabama -- i'm kind of old school. we play real football, not fantasy football. [laughter] [applause] >> you play it pretty well too. occasionally. >> yeah. [laughter] >> i can't imagine that i would have thought i would have gotten a daily fantasy question at this panel. [laughter] but it was a long question. i would say nevada certainly would not want a federal czar of gaming. i think that the american gaming association and gaming companies both in nevada and around the
country have worked very hard to clean up the reputation of gaming, to the make sure it's regulated, to make sure there's solutions for problem gaming. all of these things have been an eye towards making sure the state -- [inaudible] so we were actually asked, my biggest client is the gaming control board which is the biggest, you know, most important gaming regulator in the world, and we were asked for an opinion on daily fantasy. and under nevada state law, it was as black letter as you can imagine that it fell directly in the definition of gambling and sports betting. so they'll either have to apply or, you know, as they're deciding they've just left the state. nevada's probably 1%, and they'll make their economic decision of how they want to move forward. these are tough questions, and obviously there's a lot of movement going on in the daily fantasy world.
but, you know, my job is. in ths situation was what's nevada law, and nevada law was pretty clear. i will say in defense of our industry as i have heard on talk radio like what you're talking about, that somehow this was protectionism. and i would say that's absolutely not true. i mean, our gaming companies would love to have daily fantasy. it brings a lot of people, it's a great driver of traffic. what our gaming companies wanted was just certainty, you know? they're so highly regulated, if they do anything wrong, they risk losing these licenses. so they're frozen out of innovation in all of these spaces until a attorney general or til the gaming control board says they can operate in this space. so that was one of the reasons why this opinion came down when it did, is just to signal for the industry what the rules of the road were.
>> great. thank you for your patience. >> no problem. jerry are welden, board of visitors. it's with some trepidation that i am questioning something judge pryor said, especially since i think that judge pryor is one of the greatest legal minds many this country and would be a great guy for consideration for the next republican president. [applause] >> if nominated, i will not serve. [laughter] >> i doubt that. [laughter] >> i'm talking about president. >> oh! [laughter] i said supreme court -- >> oh, i didn't hear that. [laughter] >> the question of an ag or solicitor general of a state following his own view of the constitutionality of a statute and deciding not to defend it in court --
>> right. >> -- i have to give you an example of new york city. it's not a state, but the same thing would apply. where we had a wonderful program called stop and frisk, and the new mayor, mayor de blasio, didn't like it. there was a court case decided by a federal district judge -- >> right. >> -- who, when it went up to the court of appeals, the district judge was so bad that she was replaced. and it was quite clear that the panel in the court of appeals was going to declare the stop and frisk constitutional even though she had declared it unconstitutional. >> right. >> and mayor de blasio's lawyer -- >> right. >> -- withdrew the appeal. >> i'm totally familiar with in this. >> okay. and it troubles me -- >> i think everyone knows about that. >> okay. where is, after all that person said that he was exercising his view of the constitutionality -- >> right, right.
>> -- of the police action. didn't that deprive citizens? >> the citizens of new york had an opportunity to vote for a mayor, and they had a public debate about what the correct view was. now, you can have -- you may not agree with how the voters settled that debate, but in my view -- all right, let me take an example from my experience, okay? we have a state law in the school prayer litigation that i mentioned. the state legislature had passed a law that said students can pray in a nonsectarian, nonprosthelytizing way at school events. now, you know, i'm not a theologian, but i'm not sure what a nonsectarian, nonprosthelytizing prayer would look like. but i was pretty sure that that was viewpoint discrimination,
that that was choosing one form of prayer over another and that it violated the first amendment. the state legislature passed that law. now, i could have defended it or tried to defend it, but it was clear to me that it violated the first amendment. so we didn't fight about that. i agreed with the plaintiffs, that's a bad law. that's a law that's unconstitutional. if the voters disagree with me, they could elect at the next election an attorney general who would defend that kind of law. they didn't, they reelected me. but each branch of government has a role in constitutional interpretation. and here's the thing. we've gotten to the point in this country where when presidents sign bills that congress pass where lots of scholars say that's got a constitutional problem, this is a constitutional defect with that provision, the president
will, you know, do the ultimate copout and say, well, we've got expedited review provided in this bill. it'll get up to the supreme court. we can find out whether it's constitutional or not. the members of congress who vote on laws have taken an oath to the constitution. the supreme law of the land. they have an obligation to figure out for themselves whether that violates the constitution before it ever gets to a lawsuit. the president of the united states who signs bills into law has the same oath and has an obligation to evaluate its constitutionality. every branch of government, every official of government takes an oath to the constitution. and, you know, to some degree these issues need to be settled in the political process through elections, not just through litigation. so i would say to you, you know, the mayor of new york made his pitch, and maybe in a few years
the voters won't like what the result has been x maybe you'll get a -- and maybe you'll get a new mayor with a different kind of perspective. but we can't cede all the power, and i say this as a federal judge, all the responsibility and all the power to the courts to make the ultimate constitutional determinations. other branches have that responsibility too. [applause] >> attorney general laxalt, do you have anything to add? >> i don't think so. [laugher] no, i -- >> can't top that. >> everybody's been very patient, but i do see we're coming up on 10:00, and i feel that the red light on the podium is going off. if you have any closing thoughts, either of you, we'd love to hear them. or with that -- [laughter] we'd like to thank you for your time. [applause]
[inaudible conversations] >> each night this week at eight eastern we're showing booktv programs normally seen only on weekends here on c-span2. tonight on booktv prime time, history books, starting with first ladies: presidential historians on the lives of 45 iconic american women from the c-span first ladies' series. also historian david mccullough on his book, the wright brother, and eric larson, author of "dead wake: the last crossing of the lucetania." >> three days of featured programming this holiday weekend on c-span. friday evening at seven eastern, congressional republican leaders honoring former vice president dick cheney at the capitol with the unveiling of a marble bust in emancipation hall. >> when the vice president had his critics just going off the
deep end, as they often did, he asked lynne, his wife, does it bug you when people refer to you as darth vadar? and she said, no, it humanizes you. [laughter] >> saturday night at 8:30 eastern, an in depth look at policing in minority communities. speakers include former st. louis police officer hudson, the atlantic's taan has city coats, and washington, d.c. police chief kathy lanier. >> most people get defensive if they feel you're being offensive. so being very respectful in encounters and requests if it's not a crisis, not a dangerous situation, requests versus demands, those things change the dynamics a little bit. >> and sunday afternoon at two, race and the criminal justice system with white house senior adviser valerie jarrett and others. then at 6:30, portions of this
year's washington ideas festival. speakers include virginia senator mark warner, former vice president al gore and author ann marie slaughter. >> we've got to banish the word he's helping at home, right? helping is not actually taking the burden off you. you are still figuring out what needs to be done, and you are asking him to help. he's not the agent, right? he's the assistant. and if we're going to get where we need to go, men do have to be lead parents or fully equal co-parents. >> for our complete schedule go to c-span.org. >> as 2015 wraps up, c-span presents congress: year in review. a look back at all the nudes-making issues -- news-making issues, debates and hearings that took center stage on capitol hill this year. join us thursday, december 31st, at 8 p.m. eastern as we revisit
mitch mcconnell taking his position as senate majority leader, pope francis' historic address to a joint session of congress, the resignation of house speaker john boehner and the election of paul ryan, the debate over the nuclear deal with iran and reaction from congress on mass shootings here and abroad, gun control, terrorism and the rise of isis. congress, year in review on c-span thursday, december 31st, at 8 p.m. eastern. >> the health and human services department held a forum on pharmaceutical innovation and drug costs. this portion of the event included keynote remarks by centers for medicare and medicaid services' acting administrator andy slav visit and a panel discussion on innovative purchasing strategies for the pharmaceutical industry. this is an hour and 25 minutes. >> enjoyed your lunch and your break. we're now going to move on to our next pres