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tv   Key Capitol Hill Hearings  CSPAN  September 24, 2014 4:30am-6:31am EDT

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an idea that is just one simple word. together. together. together we can restore faith in the future. together we can build a better future for the working people of britain. together we can rebuild britain. friends, together we can. [applause] together says it is not just the powerful few at the top whose voices should be heard, it's the voice of everyone. together says that it is not just a few wealthy people who create the wealth of our country. it's every working person. together says that we just can't won't succeed as a country with the talents of a few, we've got to use the talents of all. together says that we can't have some people playing under different rules, everybody's got to play under the same rules. and together says that we have a
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duty to look after each other when times are hard. together. the way we restore faith in the future. together, a different idea for britain. [applause] now you might be thinking this sounds like a pretty big undertaking, changing the way our country is run, a totally different idea, that's quite a big task, is it really going to be possible? can we do it? i mean, it's the 21st century, is that going backwards? well it isn't. and the reason it isn't is because that idea is everywhere around us to see. in every walk of life. the inspiration is everywhere of a different way of doing things. see, earlier on i mentioned gareth, who works at a software company, who's worried about his daughter and worried about the
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future. i didn't just meet him, i met his colleagues as well. and that software company, the thing that shines through about it for me is it is full of bright, savvy young people, full of great enthusiasm. but it isn't about the boss at the top. it isn't each individual on their own. go to every person at that company and they say the same thing. you need to use the talents of every single person. not just the software designers, but the customer service. not just the developers, but those who manage the accounts. and go to so many great businesses across our country and they'll the same thing to you, that is the ethic of the 21st century in business. we need great entrepreneurs. britain needs great entrepreneurs. but the greatest entrepreneurs recognise that they're only as strong as their team. and it's not just in business. they'll be people here who work in our brilliant national health service.
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our brilliant national health service, friends. [applause] earlier this year, i spent a couple of days at an nhs hospital in watford. i wanted to go there to see how things look from the front line. mainly i sort of got in the way really, but that's what politicians tend to do. and i remember one evening i was in a&e at 9:00 p.m. and i was watching nurses from different backgrounds different walks of life, all coming together. i was incredibly moved, i was incredibly inspired by the team work. i was so proud of our national health service. [applause]
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go to any great hospital, go to any great school, it is the team that makes it strong and then think about our brilliant armed forces and let us pay tribute to them today friends. [applause] our brilliant, heroic troops serving our country in the most dangerous places. talk to any of them and they will talk about the team and the team that make sit strong. -- makes it strong. so it's true of business, it's true of public services, it's true of our armed forces, it's true of so many walks of life. you see, if the ethic of the 20th century was hierarchy, order, planning, control, the talents of just a few, the ethic of the 21st century co-operation, everybody playing their part, sharing the rewards, the talents of all. together. friends, it is time we ran the country like we know it can be
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run. [applause] now here's a question for you. if the challenge is to run the country on this principle of together, can the tories be the answer? can the tories be the answer? i'll tell you why they can't be the answer, because if you want the best example of the you're on your own, rig the system for the powerful few, insecure, throwback dogma then just look at this government. [applause] if you're a low paid worker struggling to make ends meet, you're working harder for longer for less and you're on your own. if you're a family in the squeezed middle you feel like
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you're just treading water and you're on your own. if you're on a zero-hours contract, getting up at 5:00 a.m. every morning to find out whether you've got work, they'll tell you that is how an economy succeeds and you're on your own. if you are one of the people worried about the railway company, the payday lender, they're not going to do anything to help you. you're on your own. and if you're one of the 9 million people who rent your home in the private sector, they're certainly not going to do anything for you. they're going to tell you you're on your own. and why? because they say intervening would be like venezuela. that's what they say. you see they say they don't believe in government intervention. really? of course they do. because if you are a millionaire who wants a tax cut, they're certainly going to intervene to support you. you're not going to be on your own. [applause]
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if you are a banker, who's worried about your bonus, well it's good news for you because george osborne is going to go all the way to europe to fight tooth and nail to try and protect it. you certainly won't be on your own. [applause] if you are an energy company whose prices and profits are soaring, good news again. you've got a prime minister who'll be your own pr man. you won't be on your own. and by the way, if you are a conservative supporting, gold mining, luxury hotel owning, putin award winning, russian oligarch, and you have got a
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£160,000 to spare to bid in an auction, you won't be on your own -- you will be on tennis court playing doubles, with david cameron. that tells you all you need to know about this government. [applause] now, look, we know the kind of election campaign they are going to fight. in the next eight months, david cameron is going to talk a lot about the past. he's not going to want to talk that much about the present or the future. now why? he's going to tell you, he's going to tell the british public that none of the problems in our country are anything to do with him. he's done a really outstanding, tremendous job and he really deserves a lot of congratulations and thanks.
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so he has done a great job. all the problems are nothing to do with him and if you just hang on until after the general election things are about to turn the corner for your family. now the british people will have to be the judge of this. but i think there are some things to bear in mind. the record of this government, friends, isn't just mediocre. it is one of the worst ever. [applause] the longest fall in living standards since 1870. wages rising slower than prices for 50 out of 51 months. for your family five years of this government; five years of sacrifice and zero years of success. now you might think that david cameron's right and things are about to turn round for you and
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your family. as i say the british people will have to be the judge of this. but isn't there a second, more plausible explanation for their record? a tory economy is always an economy for the few. because that's who they care about. that's the basis on which they think a country succeeds. and so the past with this government is a good guide to the future. your family worse off. you can't afford to take that risk. the british people can't afford another five years of david cameron. [applause] now, i've got an idea for our prime minister, he likes the
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surfing, he likes playing that game angry birds and he likes the tennis with the russian oligarchs. friends, i've got a great idea, why don't we give him all the time in the world to do all of those things. come next may, let's send him into opposition. [applause] it's up to us. we have to build a future for you and your family. that's what labour's plan for britain's future is all about. today i want to lay out six national goals. not just for one term of office. or even for one year. but a plan for the next ten years. britain 2025. day one of me as prime minster, this is the plan, and these are the goals i want us to pursue. now you might ask why ten years?
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i'll tell you one of the reasons. people are fed up with politicians who come along and say vote for me and on day one everything will be transformed. friends the british people won't believe it. it's what i call doing a nick clegg. [laughter] [applause] look, when nick clegg broke that promise on tuition fees, he didn't just destroy trust in himself and the liberal democrats. he did something else. he destroyed trust in politics. every time a promise is broken, every time a false promise is made, every time we say vote for us and tomorrow everything will be totally different, people get more and more cynical. people get more and more turned off. people think politics is more and more a game and that all we're in it for is ourselves.
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that's why i plan for the next ten years. not a plan for the next ten years which says nothing changes. but a route map. a route map for the country. a route map for people like gareth that i talked about earlier. for the young woman who wanted to see benedict cumberbatch and ended up with me and said my generation is falling into a black hole. i want to know there's a future for me. that's what this plan is about. our plan starts with rewarding hard work once again because that's what we've got to do as a country. one in five of the men and women go out to work in our country, do their bit, make their contribution, put in the hours and find themselves on low pay. with britain's traditions, with labour's traditions, that should shame us all. so our first national goal is that we halve the number of people in low pay by 2025. transforming the lives of two million people in our country. [applause]
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the principle of together says we don't just use the talents of all, we reward the talent of all. and the minimum wage has got to become a route to bringing up your family with dignity. so we will raise the minimum wage by £1.50 an hour by 2020. to over £8 an hour. a rise in pay of £60 a week for a full-time worker on the minimum wage. or more than £3,000 a year. [applause] the tories are the party of wealth and privilege. labour is the party of hard work fairly paid. and it's not the low paid but it's all working people who should have their talents rewarded. so our second national goal is that all working people should
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share fairly in the growing wealth of the country. that means, as the economy grows, the wages of everyday working people grow at the same rate. you know what's amazing friends, is that statement, that goal is even controversial. it used to be taken for granted in our country that's what would happen. that's what the cost of living crisis which the tories don't understand is all about. to counter it you need a government with a singular focus on tackling it. key to this is transforming our economy so we create good jobs at decent wages. that requires a massive national effort. the principle of together, everybody playing their part. for government it means no vested interest, no old orthodoxies, no stale mindset, should stand in the way of restoring this basic bargain of britain. it means reforming our banks, much bigger reform of our banks. breaking up the big banks. [applause]
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so that we have the competition we need in our banking system. it means getting power out of whitehall. we are far too centralised a country. it's time we did something about it. it's time we transferred power out of whitehall. to our businesses, towns and cities, so that they can create the jobs, the prosperity, the wealth that they need. [applause] it's about businesses and trade unions engaging in cooperation not confrontation. , and it's also about something else friends for this party. it's using our historic values to fight for those at the frontline of the modern workforce. i'm talking about a group of people that we in the labour party haven't talked about that much and we need to talk about
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them a lot more. the growing army of our self-employed. five million people in our country. often the most entrepreneurial, go-getting people in britain who have a hard, insecure life very often. you see, because of the job they do, two out of three don't have a pension. one in five can't get a mortgage. they don't want special treatment. they just want a fair shot. the task for this labour party is to end this 21st century modern discrimination. it is to fight and deliver equal rights for the self-employed in britain. [applause] i said earlier that we need to
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create good jobs at decent wages. to transform our economy. the jobs of the future. so our third national goal is that by 2025, britain becomes truly a world leader in the green economy, creating one million new jobs as we do. under this government, we're falling behind germany, japan, the united states and even india and china when it comes to green technologies and services. there are so many brilliant businesses who are desperate to do their bit but government's not playing its part. with our plan, we will. this is what we're going to do. we're going to commit to taking all of the carbon out of our electricity by 2030. we're going to have a green investment bank with powers to borrow and attract new investment. and as caroline flint announced tomorrow, we will devolve power and resources to communities so we can insulate 5 million homes over the next ten years. [applause]
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you see the environment isn't that fashionable any more in politics as you may have noticed with david cameron. but it matters. it's incredibly important for our economy. and there is no more important issue for me when i think about my children's generation and what i can do in politics, than tackling global climate change. [applause] now we need a plan for jobs. we need a plan for wages. we need a plan that is actually going to help the working families of our country.
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at the heart of our plan for our country and for your family is also a future for all of our young people. i met somebody called elizabeth the other day. where is she? she's here. elizabeth, why don't you stand up for one second. [applause] elizabeth is an apprentice. she's an auto-electrician. i think it's fair to say elizabeth that you are breaking through in what's been pretty much a man's world. now, let's have another round of applause for her and the great job she's doing. [applause] she is one of the lucky few. actually elizabeth's school, because i met her yesterday, elizabeth's school helped her to get an apprenticeship. but so many other schools don't do that.
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in fact, lots of the people i meet who are on apprenticeships say my school said apprenticeships were rubbish and they wouldn't help me but now i'm doing it, it's really great for me. frankly there aren't enough of them and they aren't high-quality enough. so our fourth national goal is that by 2025 as many young people will be leaving school or college to go on to an apprenticeship as currently go to university. [applause] now, i've got to tell you this is an absolutely huge undertaking. we are such a long way away from this as a country. it is going to require a massive national effort. it's going to require young people to show the ambition to do well and to get on. it's going to require schools to lead a dramatic change in education, with new gold standard technical qualifications.
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and it is going to need business and government to lead a revolution in apprenticeships. you know, government is very good at preaching to business about what it should be doing. let me just tell you, government is absolutely useless when it comes to apprenticeships. it's true of governments of both parties. look at other countries. they do a fantastic job in giving apprenticeships to the next generation. we don't do that in this country. first we've got to tackle the failure by government. then we've got to say to business that you've got to play your part. if you want to bring in a worker from outside the eu, that's ok but you must provide apprenticeships to the next generation. [applause] you see we can't have what's happening at the moment in it where you've got more and more people coming in but actually the number of apprenticeships falling in it.
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and we've also got to say to business this, we're going to give you control of the money for apprenticeships for the first time but in exchange, if you want a major government contract, then you must provide apprenticeships to our young people. [applause] a plan for jobs, for wages, for education. but what is it, what other things give us confidence and security in life? it's the love of the people we care most about. decent work properly rewarded. but it's also the confidence and security of having our own home. so many people don't have that today. that very british dream, of home ownership, is fading for so many people. you know, under this government, we're building fewer homes than at any time since the 1920s. so our fifth national goal is
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that by 2025, for the first time in fifty years, this country will be building as many homes as we need. doubling the number of first time buyers in our country. [applause] again it is going to require a massive national effort, a massive national effort. we won't let large developers sit on land, we will say to small developers and construction companies that we will help them to build homes again in our country. we will build a new generation of towns, garden cities and suburbs creating over half a million new homes. and we will also make housing the top priority for additional capital investment in the next parliament. this party will get britain building again. [applause]
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your family also needs public services you can rely on. education policing, transport, and nowhere is that more true than our national health service. i mentioned earlier on that i spent a couple of days at a hospital in watford earlier on this year. and while i was there i met an amazing man called colin in his 80s, who sadly died a few weeks later. but i will always remember my conversations with him. you see he remembered the foundation of the nhs, he remembered what life was like before the national health service. and i remember him saying to me, ed, the problem then was you were on your own. on your own having to pay for medical treatment. friends, we are so proud of our national health service. and i know my duty to colin and
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to the british people. it is to make sure our nhs is there when we need it. [applause] so our sixth national goal is that we create a truly world-class 21st century health and care service. because a hospital is only as good as the services in the community. so see that's the biggest lesson i learnt in watford. if people can't get to see their gp, if elderly people can't get the visits they need then they end up in hospital when it could have been avoided. and that's bad for them, and it is bad for the taxpayer it costs billions of pounds. and let's face it friends those services are creaking. those services are creaking just now. one in four people can't get to see their gp within a week.
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we've had the scandal of home care visits for the elderly restricted to just 15 minutes. in this day and age. the nhs does face huge challenges over the coming years. we will transform our nhs. it is time to care about our nhs. we need doctors, nurses, midwives, care workers, who are able to spend proper time with us, not rushed off their feet. so we will set aside resources so that we can have in our nhs 3,000 more midwives, 5,000 more care workers, 8,000 more gps and 20,000 more nurses. an nhs with time to care. and in order to pay for it we won't borrow an extra penny. [applause]
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and in order to pay for it we won't borrow an extra penny. or raise taxes on ordinary working families. we will clamp down on tax avoidance including tax loopholes by the hedge funds to raise over £1 billion. [applause] we will use the proceeds from a mansion tax on homes above £2 million. [applause]
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and we will raise extra resources from the tobacco companies, who make soaring profits on the back of ill health. [applause] because friends the principle of building it together means everyone playing their part in making our nhs what it needs to be. [applause] in total we will set aside £2.5 billion in an nhs time to care fund and tomorrow andy burnham will set out our integrated plan for physical health, mental health and care for the elderly. truly a 21st century national health service. [applause]
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the stakes are incredibly high at this election and nowhere more so than on the national health service because we know the nhs is sliding backwards under this government. we know they are privatising and fragmenting it. just imagine what another five years of david cameron would mean for our national health service friends. we are not going to let it happen, our nhs is too precious, too important and we will not let it happen. [applause] friends, we built the nhs. we saved the nhs. we are going to repeal the health and social care bill and we are going to transform our nhs for the future. that is what the next labour government will do and friends, we will do it together. [applause]
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goals to transform our country. not a false promise. not some pie-in-the-sky idea that cannot be delivered. concrete ideas that can transform our country, they can restore faith in the future. a plan for britain's future. labor's plan for britain's future. to make that happen, we also have to do something else.
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we have to transform who has power in our country, so that those who feel locked out feel let back in. people think westminster politics is out of touch and disconnected from their lives and that somebody who stands at prime minister's questions each wednesday -- and as somebody who stands at prime minister's questions each wednesday, i know what they mean. [laughter] we have got to change it. we don't need to restore faith changefuture, we need to -- we will give the vote to 16 and 17-year-olds.
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[applause] it is time to complete the unfinished business of the reform of the house of lords so we truly have a senate of the nation. i'm incredibly proud of our proposal, our ambitious proposal to reverse a centralization. there can be no better place to be talking about this than here in manchester. devolving power to local government. bringing power to people right across england. [applause] reform of our constitution. given everything we know about
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what people think about westminster politics, it has got to be led by the people. it cannot be some westminster stitch up. to harness we need the people right across our land. england, scotland, wales, every part of the united kingdom. i have relies something else. -- a relies something else. -- realized something else. we are four countries and one. england, scotland, wales, northern ireland, and britain. each nation making its contribution. we are not just better together, we are greater together. that is not something to fear. that is something to be proud of. something really
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important, as i'm sure we all did in this referendum campaign. all of those people who were proud to be scottish and proud to be british. our brilliant first minister of wales. let's hear it for him today. [applause] so too, we can be proud to be english and proud to be british. i say to this party, we must fight for these traditions and not cede them to others. , fromory of solidarity , tobattle of cable street the spirit of the bullets.
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of's,hness, tradition fighting for equal pay, today's campaign for the living wage. englishness, a spirit of internationalism. those overseas. there will be some people who tell you that being english, welsh, or scottish means dividing or setting ourselves against each other. rubbish. here is what we the labour party now. the injustices facing working people face them right across the united kingdom.
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we can only tackle them together. the lasthat we spent two years fighting for. i'm not going to let anyone if david cameron cares so much about the union, why is he seeking to divide us he is learning the wrong lessons from scotland. he is learning the wrong lessons from scotland. ist he doesn't understand that the lessons are about the nottitution but they are about playing political tactics here is why use doing it.
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awakecameron does not lie at night thinking about the united kingdom. he thinks about the independence .arty and i say pandering to them is just one more reason why he is not fit to be the prime minister of this great country. [applause] better together. across the united kingdom. but better together in terms of our internationalism. more true than
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when it comes to europe and the european union. our future lies inside and not outside the european union. [applause] we need to reform europe. we need to reform europe on the economy, on immigration, on benefits, on all of these big issues. but here is the question for britain. how do we reform europe? do we reform europe by building alliances or by burning alliances? well, look, what's really good is that we've had a recent experience, a test case, by david cameron of his strategy. i don't know whether you missed it, but it's about somebody called jean-claude juncker. [laughter] and in case you missed the score, it's not so good from his point of view, that's david cameron, is he lost by 26 to 2. now, why did he lose?
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because at the start people thought he might win that vote. i'll tell you why. because you see the problem for our country is that when david cameron comes calling, people don't think he's calling about the problems of britain or the problems of europe. they think he's calling about the problems of the conservative party. and here's the funny thing friends, here's the funny thing. if you're elected the chancellor of germany or the prime minister of italy or the president of france you don't really think you were elected to solve the problems of the conservative party. [laughter] [applause] that's why he can't succeed for our country. and, look, what we had over jean-claude juncker is just a preview of what could befall this country if david cameron was back in power after 2015.
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because he lost 26 to 2 over that. he has to win 28-0 to get reform of europe. unanimity. no chance for david cameron. he's got no chance of fighting for this country. because people think he's got one hand on the exit door and his strategy has failed. if you want to reform europe. if you want to change the way europe works. if you want to keep britain in the european union and if you realise that the biggest threat to our prosperity is now the conservative party, the right answer is a labour government. [applause] i'm determined that as prime minister, i promote our values all round the world and one of the things that that means friends is seeking a solution to a problem that we know in our hearts is one of the biggest
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problems our world faces and that is issues in the middle east and israel and palestine. i tell you, i will fight with every fibre of my being to get the two state solution, two states for two people, israel and a palestinian state living side by side, that will be a very, very important task of the next labour government, friends. [applause] there's one other thing i want to say about what we need to do abroad. you know we have made extraordinary progress on lesbian and gay rights over the last twenty years. if i think about the transformation that i have seen growing up into adulthood, the biggest transformation. we've made such progress on
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equality. but we have to face the fact that internationally things are, if anything, going backwards. we can't just let that happen. the next labour government will fight to make sure that we fight for our values and for human rights all round the world. so today i can announce that i am appointing michael cashman, lord cashman, as our envoy on lgbt rights all round the world. [applause] so it's about a plan, at home and abroad, but it's also about leadership. friends - you know, i know, that the next eight months represent my interview with the british people for one of the most
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important jobs in our country. let me tell you what i care about. i care about big ideas that can change our country. the principle of together. i care about hearing the voices of people right across our land and not shutting them out. and i care about something else. i care about using the power of government to stand up against powerful forces when we need to do so. it came home to me the other day, when i met rosie, a doctor from devon, and she said to me: what we need is someone who will stand up for working people, for everyday people, because you will have the power and we won't. that's why i stood up to rupert murdoch over phone hacking. that's why i stood up to the banks over bonuses. that's why i stood up to the payday lenders over their exploitation of the poorest people in our country. that's why i stood up to the energy companies over their profits and prices and, yes, it's why i stood up to the daily mail when they said my dad hated britain because i know my dad loved britain. [applause]
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ok, that's me, but what about the other guy. now this isn't a conventional job interview so i get to say something about him. he stands up for the principle of you're on your own. he stands up for the privileged few. and here's the thing that gets me the most about him perhaps. he really thinks that a good photo opportunity will fool people into thinking he doesn't just stand up for the rich and privileged, he stands up for you and your family. in this day and age, when people are so cynical about politics, i just think it adds to that cynicism. but here's the thing. he's been found out. he's been found out because he hugged a huskie before an
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election, and then said cut the green crap after an election. he's been found out because he stood outside an nhs hospital before an election with a placard saying no hospital closures, and he closed that very same a&e department after the election. he's been found out because he changed his logo to a tree before an election, and tried to sell off the forests after the election. [laughter] [applause] and he's been found out because he said he was a compassionate conservative before the election, and he imposed the cruel, the vindictive, the unfair bedroom tax after the election. [applause] and you know what gets me even more?
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you know what gets me even more? is that even now, with all the tales of misery, hardship, injustice, he thinks a bit of rebranding will get him off the hook. so he calls it the spare room subsidy as if that will make the problem go away. well, david cameron, you've been found out. [applause] so friends, there is a choice of leadership at this election. a real, stark choice of leadership. leadership that stands for the privileged few or leadership that fights for you and your family. and as i said earlier, this isn't just about leadership and government and labour's plan for britain's future. it's also about all of you. see, we can't build the country
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we need without you. without mobilising every part of britain. so i say to young people: we need your hope, your energy, your vitality. i say to every older person: we respect your service and we need your wisdom. i say to every business: you can be part of this and we can't do it without you. i say to every entrepreneur: we need your ideas, your enthusiasm. i say to every charity: we admire your spirit and we want to hear your voice. i say to every nurse, every teacher, every public service worker: we salute your dedication and we know why you do what you do. [applause]
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i say to every person in our country who believes that tomorrow can be better than today: we need you. together we bring up our families. together we look out for our neighbours. together we care for our communities. together we build great businesses, the best in the world. together we teach the young. together we heal the sick. together we care for the old. together we invent cures for the most terrible of diseases. so, of course, friends, together we can rebuild our country. together we can reward hard work. together we can ensure the next generation does better than the last. together we can make our nhs greater than it has ever been before. together we can make britain prouder, stronger in the world. together we can restore faith in the future. on our own, we can't but together we can. in the next eight months the british people face one of the biggest choices in generations.
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a choice between carrying on as we are, on your own, for the privileged few. or a different, better future for our country. we are ready. labour's plan for britain's future. let's make it happen. together. thank you very much. [applause] [captions copyright national cable satellite corp. 2014] [captioning performed by national captioning institute] ♪
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♪ ♪
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>> on the next "washington journal," we look at the role of the national institutes of health and research, funding, and role in combating outbreaks like ebola.
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later, northwestern university is our stop on the college tour. collegetalk to the president about public policy issues impacting higher education. journal" is live every morning at 7:00 eastern. you can join the conversation on facebook and twitter. 's weekend inobama new york city continues today when he speaks at the united nations general assembly. we will be live starting at 2:00 eastern on c-span. you can join the conversation on facebook and twitter. cdcy, the head of the speaking at the university of pittsburgh medical center about
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the ebola out reich in west africa -- outbreak in west africa. c-span see this live on 2. >> c-span debate coverage continues thursday at 9:00. sunday, the iowa u.s. senate debate. 2014, more than 100 debates for the control of congress. >> throughout this election cycle, we will be bringing you cycle from all across the country. you can see the debates we have covered at c-span.org. here is a look at the candidates and the texas governor's race. -- in the texas governor's race. >> do you regret voting for barack obama?
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what i am working on right now is running for governor. for this incredible state. and bringing policies forward that will benefit the state. i am working to make sure that every hard-working texan, no matter where they start has an opportunity to go as far as the dream. 30 years ago, i couldn't have imagined that i would have the privilege, when i was a young, single struggling mother, of sitting on the stage and having the opportunity to hack -- ask texas for its vote. texas is at a turning point. that is what is important in this election. will we create a 21st-century future economy that works for all hard-working texans were just some? i believe that we need a governor who will fight for all hard-working texans every single day because their future depends on it.
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i believe we need a governor who was going to make sure that our children receive a world-class education because our future depends on it. it is your turn to ask a question. , the judge has recently ruled in favor of the schoolchildren of texas, ruling that our schools are unconstitutionally underfunded. the only thing right now coming between our children and appropriate funding of their schools today is you. on behalf of the 5 million children of this state, will you agree tonight that you will drop your appeals and allow our schools to be appropriately funded? actually another thing coming between me and selling that loss it. law that you voted on and helped pass in 2011 that
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removes from the attorney general the ability to settle lawsuits just like this. but it is important to understand that what i want to do is focus on creating as governor a better education system in the state. it is time that we set our partisan differences aside when it comes to building a better future for the next generation. not a am focused on is school system that was constructed in part in the last century, when i am focused on is building a better education system for the next generation. >> the supreme court term begins monday, october 6. constitution lawyers and scholars previewed notable cases coming up before the court. by theent, hosted federalist society, is 90 minutes.
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>> good afternoon, and welcome. it is the season of the supreme court preview. this is the federalist society version of it and it's a very good one. this is also the season where you have two kinds of cases before the supreme court. they have granted perhaps 40 cases, some of them quite interesting. you'll hear about them today, mostly. also on the horizon are some real blockbusters that can really transform american life. including seven petitions the justices will consider at their first conference of the new term of september 29 concerning the question of if there is a constitutional right to same-sex marriage. and not far behind that, a challenge to another aspect of the affordable care act.
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perhaps also on the horizon, conceivably this term, affirmative action and abortion. you have two things going on at once as is so often the case. we have a very distinguished panel today. i have never been to a panel that has not been introduced as a very distinguished panel but this one has that mark. with us today, warren kerr. he teaches a george washington. he is quite possibly the leading expert on the fourth amendment. it's a pleasure to have you here. he was a clerk to justice kennedy. a partner at the wiley rein firm, and the clerk to justice thomas. virginia sykes who has recently gone back to her practice in austin after service as assistant attorney general in the office of legal counsel at doj. she was a clerk to justice brennan. , counselor at boyd
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and green associates and well known to a lot of us as a frequent contributor on legal matters to the weekly standard, the wall street journal, and other publications. severino, chief counsel and policy director of the judicial crisis network, and also a frequent voice in the media. she clerked for justice thomas. i should introduce myself. i cover the supreme court for the new york times. what we are going to do is set up maybe a dozen different cases, mostly granted, a couple on the horizon. moving from panelists to panelist with maybe a little bit of exchange between us if someone has a insight or dissenting view. and every discussion among ourselves and we will turn to your questions.
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>> thank you, adam. thank you to the federalist society for the invitation here. i will run through three cases in five minutes, so it will be really fast. just introducing three cases and we can come back to them later if you'd like. one of the cases this term, yates versus the united states, raising the question which i know is on everybody's mind, our red grouper fish tangible objects under the law? this is a case involving a criminal statute that makes it a crime to knowingly destroyed, alter, or mutilate any record, document, or tangible object. the question is if a tangible object means a storage device for some sort of record or document or if it means anything that is an object that is tangible. and the fact of the case are drawing a lot of attention. i think properly so. involving an individual who through -- he was convicted of ordering his employees a throwback red grouper that were undersized, facing an
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investigation of civil violation of harvesting fish that were too small. the question is whether the fish are tangible objects. it's really a statutory construction case about the aqua law, and i should also add that i joined an amicus brief on the defense side arguing that the statute to be narrowly construed under the rule of validity. that is you versus the united -- ye versus the united states. another is the facebook threat case involving a question of how to construe the interstate threat statute, section 875 c involving transmitting a threat. it involves an individual that posted on his facebook status updates involving what can be construed as threats against his wife.
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at one point he threatens to go to an amusement park or go to a school and perhaps commit a violent act at the school. he argued he was simply joking around, he is an aspiring rap artist and during his status updates, he is talking about true threat through his prudence and all what he is doing is first amendment protected. a very meta-situation of what is the true threat. the first issue in the case is whether there is a subject requirement. if he thought he was doing was not a serious threat, you interpret what is a threat based on what a reasonable person would think or what the individual subjectively believes. can you have an accidental threat? a big issue online because you read something online and you don't know what the person was thinking. are they really intending that or was it just a joke?
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they can be hard to tell from context. if the court construe the statute as not requiring a subjective requirement, the next question is whether the first amendment allows that. whether it is the first amendment that prohibits a negligent threat statute effectively. there is a statutory question and the first amendment question if the court does not resolve that case. i should add that i gave a very small amount of assistance on the defense side for that case. the last case owner to talk about a time versus north carolina, a fourth amendment case involving reasonable suspicion to stop the car in which drugs were found. it involves a north carolina traffic law that says you have to have an operating stop lamp. the individual stopped because they had a tail light out and the officer pulls over the car for having the tail light out, finds drugs in the car. the north carolina court of appeals construe the statute as
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requiring a stop lamp. you only need one operating taillight, a traffic law drafted a long time ago. the court says, there was no violation actually. it's totally lawful to drive with one taillight out. news you can use. [laughter] and the question in the case is whether you can have reasonable suspicion to stop someone under the fourth amendment based on a mistake of law. a reasonable mistake that you think it is unlawful but it is not. or whether you have to hold the government to the law as it is actually construed by the courts even if that construction happens later and it's kind of a counterintuitive construction. that is the question under the fourth amendment of how to determine reasonable suspicion and probable cause. if there is a counterintuitive reading that happens later, you hold the officers to that interpretation or not.
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>> you are the rare panelist that has been told to spend five minutes and spends maybe fewer than that. let me ask you a question about this last case. in general, you avoided giving a kind of take on the right answer or a prediction about what the court might do. i wouldn't mind each. let me ask you this. am i right thinking there would be a gap between the criminal defendant who as i understand it from the cop shows i have seen, can't say that i did not know that was the law, therefore i get off and the cop saying i didn't know the law but yet i can search her car? >> my own view is the defense should win because the ignorance of the law is no excuse. it should apply as much to officers as it does to individuals. i think it is very easy for the government.
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it is hard to drive without violating a traffic law. that includes one mile an hour over the speed limit. it is not like the executive branch of the state has the -- lacks the power to go to the legislature and say we should have a law that makes it on lawful to drive with one broken taillight. this is something very easily fixed by the legislature and ultimately if the court was right in its construction of the statute, which i think you have to assume they were, the individual driving was doing nothing wrong and should not be pulled over for it. >> what do you suppose the court will do? >> it's hard to know. it is tricky because you can interpret this case in two ways. not handling the remedy aspect of this case -- i suspect if the court had the exclusionary rule aspect of this, they would say that it does not apply.
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it may be a case that ultimately makes no difference that is conceptually interesting but may not have a lot of ramifications. >> i have two cases to cover briefly here today. the first one is holt versus hobbes. the question of federal law under the religious land use and institutionalized persons act of 2000. this statute granted religious freedom to people in federal prisons. were -- receive federal funds. arkansas does accept federal funds, and they restricted an inmate who, for religious reasons, and to grow a half inch beard and only grew a quarter
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inch beard. the question here is, was that the least restrictive means available to advance when the institution claimed was a compelling government interest? there was an extensive hearing in district court. the prison one based on deference to prison administrators. before last term, you might have thought that it was to come out. i think what has happened in the interim is hobby lobby. a lot of people are seeing this as a direct follow-on. the companion, statutes, they are interpreted the same. given what the court did in that case, why doesn't the inmate have broader religious freedom here? when we are going to see in this case is tension. between historic deference to person and ministry does on how to run a prison -- there is a lot of evidence in the states brief which demonstrates and illustrates some of the things that can be hidden in a beard.
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weapons, contraband, more than you might think in a half inch beard. at the same time, there were lots of alternatives offered up as for ways to accommodate the interests and meet the safety needs which the eighth circuit all rejected. here you have a situation of the inmate having a very strong case and terms of -- in terms of the right to religious freedom in the right to practice it as he sees fit. there are really two companion cases involving alabama redistricting. one brought by the democratic conference and another brought by the alabama legislative black caucus. this is about as complicated a case you're going to find and i will try to quickly walk through the various issues. after 2010, alabama faced a problem. the problem was they had majority minority districts that were underpopulated.
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when you cut to the legal jargon, you get down to the fundamental question of you have to move people into those districts. it will you move minority citizens or will you move white citizens? alabama was facing four different legal regimes that they had to navigate. one, they had to meet one person one vote which means you have to move roughly equal population in every district. they had to deal with section five of the voting rights act that says you cannot retrogress minority voting power. they believed as they move white people into those districts, it would reduce the forwarding -- minority voting strength. but if they move minorities, they ran into an equal protection problem because they have been accused of packing minorities into districts to create safe minority districts and undermining the broader representation of rights in other districts.
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that would violate the 14th amendment. they had to deal with section two of the voting rights act that creates arguments both equal protection in section five grounds. alabama focused on one person, one vote. in their argument, to the exclusion of the other issues. they won 2-1. the dissenting judge said they did not have strong enough arguments and they were packing. that is the grounds that are supported. >> i welcome comments from the other panelist but let me ask you a question on each of these cases. the you think it makes a difference for the man that wants to grow a half inch beard, they seem to think there is no security problem? >> i think it does make a difference. i think we are seeing
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increasingly, in a variety of criminal cases, we have seen where the court does care about the other states and issues of prison security and inmate rights. >> you all recalled that in 2013, the court effectively struck down a key feature of the voting rights act in section five that required states to the history of discrimination to obtain clearance before it can make changes to its voting procedures. section five was the reason offered by alabama officials to do what they planned to say was packing. now that section five has gone away, does that change the contours of the case? >> is a really complicated issue and i think the answer is yes. all disclosure, i was one of the lawyers on the legal team for shelby county. it's a very strange case because you have a central issue when it was decided in the district
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court and if they find with the office has asked, making a decision below and sending back for analysis, you will be vacating a class on the ground that may not have pertinence to the case. i think the question is, how much capital is the court going to want to invest? it has been in the briefing. >> virginia? >> i will talk about a case that involves the conflict between the president and the congress in the very controversial and difficult setting of middle east domestic and international politics. the foreign relations authorization act directs the secretary of state on request to record the first country of an american citizen born in
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jerusalem as israel on that person's u.s. passport. president bush signed the law but said the requirement is not consistent with the constitutional authority to conduct foreign affairs and in fact requires nomination. the statute in 2002 refuses to enforce the law, to establish neutrality as part of either palestine or israel. u.s. parents when their baby was born, this arises from the denial of their request. the child was born in 2002 and demonstrates this statute has been controversial from the beginning. this is only one in a procession in of statutory provisions that
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create conflict between the executive branch and congress, pushing the u.s. policy towards the recognition of israeli sovereignty over jerusalem. the supreme court has seen this case before, a couple years ago the d c circuit held that the statute had to be observed, whether the state department could rightly resist is a political question. that issue went up to the supreme court and they said it is not a political question. now they are going to reap what they have sowed. they have to decide if the president indeed has exclusive recognition authority or what congress has done, with its control over passports and over the regulation of immigration, is it really a significant infringement on recognition? does it amount to an official act of recognition? the court will find itself in a very difficult western having to
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-- question having to resolve this power question between the executive branch and congress. the d c circuit held that the president's authority was exclusive and plenary. in fact, the requirement that congress imposed would infringe on recognition power. in part, the statute itself creates the problem here. the statute itself says that it is the policy of the united states that jerusalem is the capital of israel. this is one of the things that creates a significant infringement on the president's recognition authority rather than opening up somebody's passport and seeing israel instead of jerusalem. it doesn't change the practical reality of the point of view of the state department which, i
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think, is that if the supreme court were to reverse and say that the statute were to be enforced, there would be a perception, at least the state department believes there would in the middle east, that the u.s. has retreated from the long-established policy on neutrality of the status of jerusalem. there is a practical problem presented to the supreme court in this case. the difficult constitutional interpretive collection on whether the president's authority is exclusive since the time of george washington and if this particular statute was an infringement on that exclusive recognition authority. an extremely difficult and important case that creates theoretical and practical difficulties for the court. from that, we discuss the second case is in much more normal areas. labor employment law.
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courts have granted five labor employment cases. four of them involve traditional issues of statutory interpretation, a question of whether a certain time is compensable under the flsa, under title vii. and the pregnancy discrimination act about how exactly that prohibition on pregnancy discrimination should be interpreted. but i will not talk about any of those cases. i will talk about the labor case that was granted. it seems notable to me because for 10 years, people have been petitioning the courts to grant this issue. it is difficult to see why now, after 10 years of conflict of the six, third, and seventh circuit circuit that they all of a sudden would now. the question is, way back, the unions routinely negotiate for health care benefits for retirees as well as active employees. for decades, i represented the steelworkers. it includes negotiated provision for health care retirees. a couple of decades ago, as health care costs started to accelerate substantially,
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employers were operating under a recent versions of health care costs and started to think about things like using hmos, cost contributions, co-pays. and as they would change the plans that apply to retirees, they would sue and say my health care benefits were vested. i require a vested right to lifetime benefits under this collective bargaining agreement. the sixth circuit said yes, when you think about what retirees presume, almost any language in the collective bargaining agreement should be interpreted with a thumb on the scale towards belief that retirees have lifetime vested benefits. fast forward a couple of years, and they say no.
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if there is not a clear statement that the benefits and are beyond the collective bargaining agreement, the benefits are not vested for life. the seventh circuit ended up coming down somewhere in the middle saying we need some language that is indicative of continuation to lifetime benefits. we don't require a clear statement the way the third circuit does. i think there have been 12 since the stabilization raising the issue with the court. i have been racking my brain about why it would be granted this year. some of the explanation is in the increased public attention to the availability of health care and to possible increased public interest and what kinds of -- where and how you attain a legal right to coverage. that is speculation on my part. it has been a long-established conflict in an important area to employees that have reliance on the fact that they have health care coverage for life. and employers that face
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increasing health-care costs that they simply don't know how to manage as they negotiate new contracts with their unions. a very important case. it will not get the most public notice. >> let me take you back to the passport case. i am scratching my head and i see a reference to the president's power, duty, or obligation to receive ambassadors. where else in the text of the constitution is this recognition power you speak of? >> the source i think is in the president's authority of what the court has long held as the sole instrument of u.s. diplomacy and u.s. international relations. that, in combination with the provision and that residents have acted unilaterally is what i believe the government will rely on to say it is plenary and exclusive authority.
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>> i will talk about two cases and discussed the relationship between congress, the courts, and the administrative state. these are both cases the supreme court has agreed to hear. furthermore, they are cases where my firm is filing the amicus briefs. in both cases, challenging the government action. the first case has to do with amtrak. the basic issue is this. in 2008, they passed a law instructing amtrak to promulgate new regulations involving standards for performance of trains on these tracks. the catch is that amtrak is basically a competitor with the other trains that will be regulated by these rules. the other trains are mostly freight. but they are competing for scarce time on the tracks.
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the freight rails were none too happy about suddenly being regulated by one of their competitors. after they promulgated the regulations, the freight rails suedd in district court -- in district court saying that the statute violates the nondelegation doctrine. when you hear the nondelegation doctrine, you might think of the so-called intelligible principle. this is a slight variation on that. the court decided a case called carter cole, that congress can't delegate rulemaking power to private entities. the challenges in this case say this is a direct application of that case. amtrak is private and can't exercise rulemaking power. is amtrak private? a good friend of mine, when he heard about this case, if you
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have any doubt that amtrak is government, just try the food. [laughter] that is a fair point, but there's a little bit more nuanced than that. there is a statute out there that says amtrak is not a department or agency of the federal government. it is to be operated as a for-profit corporation. there will be a big fight in the case over weather amtrak is public or private. it has nothing to do with the nondelegation doctrine. this is perez versus mortgage bankers. this is a case about what circumstances is the case have to go through notice and comment rulemaking before it changes its interpretation of the regulations. we know how a bill becomes law. we know how you promulgate regulations, you go through notice and comment rulemaking. what happens when agency changes interpretation of rulemaking? the labor department in the past has interpreted regulations regarding overtime pay.
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the mortgage loan officers, are they exempt from overtime rules? originally -- i don't think that's right. in the past, the labor department said yes, they are exempt from the overtime rules. the labor department reversed that interpretation and said they are entitled to overtime pay. the association challenge the rule saying that because the labor department made a significant change to the definitive or authoritative interpretation, it needed to go through comment rulemaking before making that change. under the administrative procedure act that sets the standards for the administrative procedure, there is a black letter rule that interprets rules and policy statements and guidance that are exempt from the comment requirement. there are a couple of precedents
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for paralyzed veterans that say that when an agency makes a so-called significant change to a past authoritative or definitive interpretation -- it is more than interpretation. they are, in effect, changing the rule. the d c circuit decision sparked no small outcry. 70 filing amicus brief saying that the standard is completely wrong and at odds with the administrative procedure act that compared it to the seminal case in which the supreme court said the court of appeals can't add on to the standards already set forth by the administrative procedure act. cases like this, they might seem like they are very narrow issues but in the last few years there has been this interesting series of cases in the supreme court about the relationship between the courts and congress and the agencies.
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a few years ago, justice scalia started to question the deference that the court should give agencies in interpreting regulations. recently there was a case called city of arlington about, do the courts defer to interpretations of agencies' own jurisdiction? there was a statutory interpretation case. at the heart of it was that epa's effort to interpret, some would say rewrite, the straightforward numerical i think the health care exchange act case is in a similar vein. it is interesting to watch the court little by little past the boundaries of deference, of the separation of powers. it manifests in interesting cases. >> does it tend to divide the court ideologically?
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>> let me start with the second question, in terms of the divide, it cuts across the justices. we see this especially with justice scalia, who on the one hand, a lot of conservatives cheered him on when he started to question deference to agency interpretation of rules, but in the city of arlington case, he writes the opinion saying the court will continue to defer to agency interpretation. the justices often say very interesting things. chief justice roberts as well. in terms of the theme, maybe i am overthinking this. maybe the justices take these cases one at a time and they stand on their own merits. for me, i think there is the sort of broader -- not broader rethinking, but this much more thoughtful reconsideration of the relationship between the courts and the agencies in terms
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of deference. >> we have given you a nice overview about the cases on the docket already. you can judge how big they are. i would suggest that the end of june they are not going to be on the front page of my newspaper. a couple that carrie is going to discuss might well be. >> i had the challenging job to look at what is coming up, the long conference where many cases will be considered. much of what i say could be moot within a week. we will see what happens. at any rate, at the bottom, all of the issues i am discussing, even if they aren't considered by the court this term are something the court will decide probably next term. if it turns out they don't take any of these cases, i will give exactly the same talk next year.
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the first cases i want to talk to are the hounding and king cases. these are the next big challenge to the obamacare regime. this one is interesting because the challenge is trying to get the text of the affordable care act enforced according to how it was done. it is not trying to overturn the affordable care act, it is trying to enforce it. in the act, there is a provision that the subsidies available for plans purchased under an exchange at established by the state under section 13.11 of the act. the irs, in the face of an unexpected three or four states -- 34 states that did not
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establish exchanges, wanted to make sure the subsidies were available nationwide and not in the minority of the states. they interpreted it, going back to our question of agencies interpreting the statutes, they interpreted it in a way that was called somewhat a mismatch with the text of the statute. they set -- cases for the state that didn't stat establish an exchange, the federal government did so instead. what we have is, in the king case, we have individuals and in the other case, individuals and employers who sued, arguing that this was in violation of the law. the agency may have the right to interpret the statue but not the right to rewrite the statute. in this case, the implications are not only that the people would not get the subsidies, but also that millions of people will also not be subject to the individual and employer mandate.
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the numbers i have seen are about 5 million people, if the irs is incorrect, if the text reads as a plaintext meaning, about 5 million people would not get subsidies but another 8.3 million would not be subject to the individual mandate and 57 million would not be subject to the employer mandate. there is huge implications for a lot of people. what we saw in these two cases was basically the circuit split. the morning of july 22, the d c circuit held that this was an improper interpretation by the irs. by early afternoon, the fourth circuit held that it was fine, that this was ok and the irs has the authority to do this. normally, one thing the supreme court is looking for is a circuit split.
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they had one right there. the king plaintiff who had lost wasted no time in filing their petition. they turned it around in nine days. then it could have been considered by this first conference. because the government was given a 30-day extension, it would be considered in october, possibly early november. in the meantime, the government asked the d c circuit to take the case. the court which is now composed of a 7-4 majority of democratic appointees, if they vote along party lines, they will overturn the decision of the panel and a -- you raise the circuit split. the question is whether the court will even take this case given the fact that the split is in question.
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there is a lot of argument as to why they would. the court does consider cases that are major questions when there is not a circuit split. even if there isn't a circuit split at the time the case is argued, there is a good chance there will be a circuit split down the road. these states are in 10 different circuits. until all of those circuits have decided the issue, it is still going to be a question that is causing uncertainty for everyone in the state who wants to buy insurance. all the employers who aren't sure whether they need to offer it. a lot of employers feel forced to cut hours for their employees to make it possible to continue not offering health care. and for the states themselves, how to be regulating. it is a major issue and we will see if there is more. this is another case that could fit into the pushing back on chevron. does chevron even apply here? does the irs maintain a health care law?
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whether you feel like it is a tax might fit into that question. whether the statute is ambiguous and whether that interpretation is reasonable, there is that. this also fits into the theme of the growth of federal government, growth of the administrative state and the pushback on these constitutional limits on government. particularly on the constitutional issues we have had with this president having less respect for the separation of powers and the limits on his own authority as long as he has got his phone and his pen. he seems to take a less serious view of his constitutional obligations than something he should. we have seen a pretty dismal success rate and some of these aggressive positions make claim
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to that. the second set of cases is marriage cases. there is a slew of circuits that have petitions already on monday's conference. the fourth circuit, the seventh circuit and the 10th circuit have multiple cases with petitions. there are also decisions in the fifth circuit, sixth circuit and ninth circuit. one challenge is, there is not actually a split right now. it may go away. all the circuits that have considered the issue have looked at it the same way. they have all overturned state laws and constitutional amendments that limit marriage to a man and a woman. the -- how the court will take the cases is hard to predict. we had justice ginsburg a week or so ago commenting that we
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have to wait for the sixth circuit to find out what they do. she would seem to be suggesting, why rush into these cases? we will wait until one occurs. it is reasonable to think there may be one. the sixth circuit oral arguments in which they considered four different state laws seemed to lean in favor of upholding those laws. that would create the first split in this issue. there is also the fifth circuit, which is seen as -- depending on the panel, it has a decent chance of upholding the state laws. that is a case that has not been scheduled for oral argument. one of the ones in louisiana also upheld a state law. which case might be considered? there is a lot of very complicating the vehicle issues in terms of problems in the various cases. some of them, like the fourth
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circuit case, there is a question because the attorney general isn't actively supporting the law. you come up with questions like the prop eight case. what do you do when you have the state executives -- who can defend it? and whether they are allowed to petition for appeal when they have lost a case that they wanted to lose? both the seventh circuit case and the 10th circuit case out of utah have solved many of those questions between states that have governors and attorney generals supporting their laws. we have an interesting combination. you have a question of licensing as well as recognition from out of the state. whether you have to recognize marriages contracted in other states. on the seventh circuit, they
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have due process challenges. that might be a chance for the supreme court to get all these issues on the table. all of these cases are beating the great pace of petitioning that we saw in the king cases. they were -- not only did judge posner turnaround the decision, but i believe it was only two days after the decision came down that they filed -- no, it is five days after the decision that they filed. the response was in the same day the petition was in. everyone seems to want to hear these cases. the states have responded saying, we won, but please take our cases anyway. this is a brush for who gets to be the case that has its name on it. that could also affect how the court views it as well.
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everyone is making slightly different arguments. in terms of -- some of the issues will be similar in either this case or the affordable care act cases because the split is in question. it is affecting a large number of people. maybe not the 57 million that are affected by the health care mandate, but there are many people who want to see this solved. i am sure the court will have to deal with the case eventually. >> thank you for that. i think some of the things you touched on are so interesting. let's take them one at a time. let's talk about the king cases. i don't think you said directly, if the challenge succeeds, it is very hard to be sustained. >> how fast it does so is going to be a question. having the subsidies unavailable
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in those states will be a severe blow to the law. not as severe as the original challenge to the case, but definitely it would fall under its own weight. >> if there is that fear, how likely is it, understanding that the plaintext is very supportive of what you laid out, how likely is it that congress wanted to put such a time bomb in section 13.11? >> there is evidence that they did know what it was and one of the architects of the law commented on this. they didn't think of it as a time bomb because i don't think they thought the case could go through without establishing these exchanges. they thought it would force the states to play ball. but at the end of the day, what
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congress intended is unknowable. you have hundreds of individuals. for the same reason, it is and what the court should be looking at. i think we need a full conference. their job is to write a law. and not have the irs going back and try to cover their back and not have the supreme court going back and trying to rewrite the law for them. we need to maintain that accountability. we need congress to know that his words actually make sense. you really do need to do your homework up front. >> sticking with the aca case, i would be eager for anybody's thoughts on the point carrie just made. is the court likely to grant certain under support and question?
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you are a hell of a group. >> nobody wants to make a prediction. >> i wrote an op-ed when the hearing petition was pending, walking through the d c circuit history of hearing cases. it seemed to me that it would pause before rehearing the case. obviously i got that one wrong. caveat emptor. this case was so important, the d c circuit needs to rehear it, such an important case, but it is strange to hear the administration supporters say that over and over again and then say it is not that
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important. it is important enough that the circuit needs to rehear this immediately, but not the sort of thing we need the supreme court justices to weigh in at this point. having seen the ferocity surrounding the debate, you have to wonder what the justices were seeing and watching. they don't live in a vacuum. they see all this happening around them. you have to wonder whether the cacophony that surrounded the rehearing request might influence the court's eagerness to take this case up. it is extremely important, they said. >> if i had to guess, i would guess the court won't take the case as a split, in part because i think in their mind they think they are done with the affordable care act. it was the case of the term not long ago. it was, from what we can tell, traumatic and really a big,
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difficult case internally. i suspect they would be your to jump back into this unless there is a split, which would be the traditional criteria. >> let me ask you a counter scenario, which is, a couple of years ago when they decide of the last case, there were four justices who were pretty unhappy and eager to take down this law. it only takes four votes and those justices might be eager to jam up the chief justice, or at least that is one way of thinking about the court. but that is probably too cynical. >> even if that cynical view is right, i think -- if the case is seen as a way of getting back at the chief justice, then presumably they fall along the lines they did last time.
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if you favor the challenge, it looks a lot more credible coming from a split than it does if there is no split. >> in addition to the four justices in the individual mandate case, not to drag us back to administrative law, but there were five justices last year who voted against the epa's frontline arguments in the clean air act case. they said under the greenhouse gas statute, words in statute to mean something. you can't just claim the results of an interpretation are absurd and rewrite the statute to maintain the program. it seems to me that there are strong echoes of that epa case in the health-care exchanges case. i think -- the other epa case the last term where justice ginsburg said the job of the court isn't to promote the
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policies they think would be best but apply the statute as it is written, that works in this case as well. >> that will tell you something about where they come out on the merits. other thoughts on the aca cases? let me move to the marriage cases, which are very likely to be the centerpiece of this term, and turn it into whatever else they have taken, whatever cases they have taken. if they take same-sex marriage as they are likely to do, that is going to mark this term. let me not get ahead of myself. as carrie pointed out, there is also no circuit split here. what is our thinking about whether this is the kind of case where the court cares about a circuit split? it is no small thing for federal judges around the country to be striking down state laws.
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is that enough? i am going to start calling on people by name. >> i will start. it is a very unique posture. they are not getting any boost from any party. i think that is what puts the court off the situation here. when you saw how the california case came out last time, and then you see the comments justice ginsburg is making, there is a hesitancy that cuts across party lines. at the same time, i think the undercurrent is having to deal with all these state requests which are very complicated, which are causing real difficulties in terms of lower courts. one judge said, i understand the court has granted other cases.
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we are not issuing opinions stating why. i am not going to grant one. i think there is an institutional cap in terms of how many cases to deal with. >> i think the importance of this case is so great. they take cases of much less weight based on importance ground. i think they will take these cases. one of the facts that got talked about a lot of couple years ago, even justice ginsburg kept on talking about the aftermath of roe v wade. the way the court took that case in her description, instead of taking a step by step view, went broad on that case. do we want marriage to be the next roe v wade?
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i think that is something the court is concerned about. maybe it is part of the reasons she was suggesting we want to wait before getting involved in this case. the challenge is that we do have almost a fever of lower courts that are rushing as fast as they can to overturn every state law they can find. whether the supreme court gets involved or not, you have courts that have gotten involved. whether you have the case of courts overriding democratically elected positions, it may be possible for the court to avoid a specter of a repeat on that. >> one wonders what justice kennedy is thinking. justice kennedy preview panel
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with special guest -- on the marriage cases, it is especially so. he wrote about liberty and also wrote about state authority and federalism. it wasn't clear to anybody where he was going with this. what we have seen in the aftermath is a lot of courts focused on their version of liberty with much less care for state power and federalism. maybe justice kennedy is happy to watch this play out. maybe he is looking for another opportunity to clarify what he wrote. >> so it is the case that justice kennedy is the author of all three major gay rights decisions. it will likely be his legacy and it would be surprising if he would make a turn now when the polling numbers are moving in one direction. or do you disagree?
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>> i am not going to make any money betting on what justice kennedy is going to do. he has written a lot about federalism. he has written a lot about individual liberty. often times it seems that federalism is a means to the end of liberty. it is not clear how it is going to play out. this takes these two lines of justice kennedy's thoughts and puts one against the other. >> actually the poll numbers recently show that support for same-sex marriage has dropped. whether that is a blip, i don't know. you wonder if that is that same affect. when you have people who feel like the courts are jumping in, usurping territory that should be worked out in the political and social spheres, maybe him making the decision would undermine his being viewed as a positive legacy.
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i don't know. i don't know whether justice kennedy wants to make that decision. he probably would have done it last time. >> you are quite right. >> he would probably rather -- >> when the court issue came before the court last year, not the doma case, it was plain as day that justice kennedy didn't want the case to be before him. he was delighted to see it go away. i don't think anyone predicted that windsor would be received as it has been, with everyone focusing on one of the two theories in the case, the liberty theory. whether the court wants to or not, i think this is probably something like a consensus, it is going to be hard to avoid getting into it. let me ask one more general question and then turn to your questions. at the end of the last term, it
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was hard to write, because reporters like conflict. there was substantial conflict at the very end of the term in hobby lobby, but it was also a term that had an extraordinary amount of unanimity. the largest in the modern era. about two thirds of the cases were decided unanimously. not all of them unanimous on the rationale, but many of them. i am wondering whether there are thoughts here about whether that is a blip or whether that is testimony to the court trying to get together, testimony of the chief justice playing a role in getting the court together, or whether it is the nature of the docket on the cases we have been talking about, which may be areas in which the justices are less apt to disagree. >> i will take the guess that it
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is a blip. i think we have only seen the trend over one term and there was nothing specific that would have suggested an overall shift. the personnel is going to change within a year or two probably. my guess is that it is just a one-term event, maybe two-term advance. but we are not going to enter a new period of unanimity of the supreme court. >> i tend to agree with one minor caveat. i think the chief justices in major cases have led to more unanimity than you would have otherwise seen. justice kennedy has been on most of those and most of the court has come with him. in other cases of that kind, the court was on the brink of making
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a major ruling, stepped back. when you see cases like that come up, i think it is part of that. >> i think there is broad agreement on a method of statutory interpretation that would cause some convergence and the major interpretation cases. for example, the fair labor standards act case. i would predict some unanimity. i think in cases that are not directly in the limelight, there is agreement on the method of looking at statutes. you might see more agreement in those areas than the hot button cases that have more interpretive play. >> it ebbs and flows. other panelists would know these cases better than me. in cases involving the voting rights act, campaign finance, the court was able to achieve unanimity on a statutory interpretation, on an issue basically returned to the court.
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i think accounts indicated that some justices were not too pleased on how things played out in the long run. it changes over time. >> i agree. 13 unanimous losses by the administration. when they take extreme positions, that aids the cause of unanimity. some of the cases they were considering, the ninth circuit helped with unanimity. they were able to unanimously overturn them. sometimes good rashes of serious error, the court can look really unanimous. there are certainly more cases where there is absolutely an ideological divide but they managed to come together. that means sometimes you get cases where that kind of unanimity can survive.
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once they are forced to look back at the case, it is going to break apart eventually. >> personnel changes. what is the outlook? assuming there were to be a resignation in this administration, what kind of chances with the president have to appoint someone -- let me ask it this way. justice ginsburg has said words to the effect of, who are you going to get better than me? i don't think that was the statement of an egomaniac but it was the statement of a political realist. >> certainly in terms of who is likely to step down, everybody focuses on justice ginsburg. in part it is because there is no sign of anyone else having

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