Skip to main content

tv   Key Capitol Hill Hearings  CSPAN  June 8, 2015 8:30pm-10:31pm EDT

8:30 pm
we will continue to push as hard as we can on all fronts to fix a broken immigration system, administratively, we will be prepared if and when we get the kind of ruling i think we should have gotten the first place to go ahead and implement. ultimately, this has never fully replaced the need for congress to act. my hope is that after a number of other issues we are working on currently get cleared, that there will be quiet conversations that start back up again particularly in the republican party about the shortsighted approach they are taking when it comes to immigration. ok. >> thank you, mr. president.
8:31 pm
more than 6 million americans may soon lose health insurance if the supreme court backs the latest challenge to the care act. the growing number of states are looking for assistance as they face the prospect that their residents may lose federal insurance subsidies and their insurance markets may collapse. yet your administration is given very little to no guidance on how states can prepare. what can you tell state leaders that the country may be thrown into chaos? president obama: what i can tell state leaders is under
8:32 pm
well-established precedent there is no reason why the existing exchanges should be overturned through a court case. it has been well documented that those who passed this legislation never intended for folks going through the federal exchange not to have their citizens get subsidies. that is not just the opinion of me or the opinion of democrats. that is the opinion of the republicans who worked on the legislation. the record makes it clear. under well-established statutory interpretation approaches that have been repeatedly employed, not just by liberal democratic judges but by conservative judges like some on the current supreme court, you interpret a statute based on what the intent
8:33 pm
and meaning and the overall structure of the statute provides for. this should be an easy case. frankly, it probably should not have been taken up. since we are going to get a ruling pretty quick, think it's important for us to go ahead and assume the supreme court will do what most legal scholars who have looked at this would expect them to do. i have said this before and i will repeat it again -- if, in fact, you have a contorted reading of the statute that says federally run exchanges do not provide subsidies for folks who are participating in those exchanges, that throws off how that exchange operates. it means that millions of people who are obtaining insurance currently with subsidies suddenly are not getting those
8:34 pm
subsidies and many of them can't afford it and they pull out and the assumption is that the insurance companies made when they priced their insurance is that it gets thrown out the window and it would be disruptive for folks in the exchanges but also for those insurance markets in those states generally. it is a bad idea. it is not something that should be done based on a twisted interpretation of four words. as we were reminded, a couple of thousand-page piece of legislation. what's more is the thing is working. part of what is bizarre about this whole thing is we have not had a lot of conversation about the horrors of obamacare because no of them come to pass. 16 million people gotten health
8:35 pm
insurance. the overwhelming majority of them are satisfied with the health insurance. it has not had an adverse effect on people who already had health insurance. the only effect it has had on people is they now have an assurance they won't be prevented from getting insurance because of pre-existing conditions. the costs have come in substantially lower than even our estimates about how much of cost. health care and inflation overall has continued to be at some of the lowest levels and 50 years. none of the predictions about how this would not work have come to pass. and so, i am optimistic that the supreme court will play it straight when it comes to the interpretation and i should mention that if it didn't, congress could fix this whole thing with a one sentence provision. i'm not going to go into a long
8:36 pm
speculation anticipating disaster. >> why not have a plan b? >> i want to make sure that everybody understands -- you have a model where all the pieces connect. scenarios not just with relation to health care but all kinds of stuff that i do where if somebody does something that does not make any sense, it's hard to fix. this would be hard to fix. fortunately, there is no reason to have to do it. it does not need fixing. thank you very much. thank you the people of germany and bavaria.
8:37 pm
you have been terrific posts. -- hosts. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] germ >> german chancellor and -- angela merkel was the host of this conference in of aria, germany. -- bavaria
8:38 pm
chancellor merkel: we all believe we should do everything we can to make progress with minsk. we said that the g7 ambassadors in kiev should be a supporting group which will help ukraine implement its economic reforms and in its battle against corruption. we also focused on the middle east, north africa, and the near east. we also talked about combating terrorism there. we talked with the presidents of nigeria and tunisia and with the prime minister of iraq. then we talked about counterterrorism in a separate meeting. these countries are faced with an extreme amount of terrorism.
8:39 pm
they have, in part, poor infrastructure. it is our common job to support tunisia, to better monitor and control its border with libya. there have been some efforts already but these have to be pooled. we have also said that counterterrorism has two aspects. often, it is a lack of structures which allowed terrorist groups to have access to the population. on the other hand, these are hate-filled groups. you can see this in boko haram as well as isis. we have said that the possibilities we have be successful in combating terrorism isn't inclusive and a consistent process in order to include all of the different minorities. this is discussed in my jerry a. -- this is discussed in nigeria.
8:40 pm
the nigerian president wants to be inclusive, as did the prime minister of iraq when he talked about the shiites and the sony's -- sunnis. he wants us to work together in his country and only in this way will there be a possibility for success. we had a lengthy discussion on libya. we can see that the negotiators of the new united nations will be given all the support we can. we have to come up with a national system in libya. the refugees coming through the mediterranean are related to the situation in libya. a conventional topic for g7 deliberations is the global economy. we are seeing there is recovery in the world's economy. all g7 countries will grow this
8:41 pm
year. we had an intense discussion on new challenges and also on the fact that the emerging countries take on it growing role in -- role. this is something that will be continued in turkey in the fall. we also talked about trade and we are committed to the items of the wto. the head of the wto asked us to support this process. we had intense discussions on bilateral trade agreements. we want to have the free trade agreement with the united states, we want to make progress there. we want to make good progress there so that we can come to an agreement. we see that that transpacific agreements are close to a
8:42 pm
conclusion when it comes to the united states, canada, and the pacific area. we also believe that negotiations as seen by europeans and the eu japanese free-trade agreement should also be negotiated and the g7, if we talk about internal trade, it accounts for 50% of world trade. that means that we have a major responsibility, also with regard to supply chains. in other words, we have to make sure we have good working conditions, not only in our own area, but we have to make sure that good working conditions prevail in the manufacturing countries. remember those terrible pictures from bangladesh. we are pleased to see that, together with the ilo, we are able to come it -- commit this
8:43 pm
to be made available. this has now been achieved. we are also committed to have a vision zero fund. in other words, a general fund so that insurance and improved conditions at work can be insured. we believe that better working conditions in asia and many countries in africa are still not satisfactory. that is why this is an issue that will be on our agenda in the years to come. we also discussed financial market regulations and, together with the global economy, i would like to remind you that we still need to talk about the regulation of the shadow banks. i will come back to that with the g 20. the timetables need to be adhered to. we need to fight corruption. this is another topic.
8:44 pm
the japanese presidency will also deal with combating corruption at the next g7 summit meeting. another important point, what will the g7 say when it comes to climate protection and change macro -- change? we made a clear commitment. we want binding regulations in the agreement. we don't have any right now, and that is why that has to be the object of -- the objectives in paris. we want all countries to be able to develop a path so that the average temperature is less than two degrees centigrade. in other words, clear commitment to the two degree objective. you know that this will mean major reductions in greenhouse gases worldwide, and we have committed to the fact that in the course of this century, we want to see and we need a decarbonization of the world economy. we also agreed that, in order to
8:45 pm
achieve this climate objective we will need major reductions in climate gases and greenhouse gas emissions. we also commit ourselves to the recommendations made by the ipc see, which is 40% to 70% reduction in climate gases between 2010 and 2050. -- ipcc 40% is clearly not enough. we also need to make our own contributions in the g7 countries. we will be entering into these commitments for these reductions. we also committed to climate funding. we want to and sure -- ensure that we can't do that on her own
8:46 pm
but we are committed to the objective. why 2020, we want to have $100 billion. this is before the climate conference in paris. we need to present this objective because many developing countries and islands will have an objective for coming up with an agreement in paris. this is something we have to commit ourselves to. we also have two initiatives. the first one is that the number of insured when it comes to climate related damages are being increased fourfold. by 2020 there will before hundred million people. our second objective together with the african countries, was an initiative for renewable energies where we will be working with it -- on a plan. we want to have african countries' access to clean
8:47 pm
renewable energy. in other topic which played a very important role is health care. we all saw that we did not react well to the challenges resulting from the ebola crisis. today, we had an intense discussion on what needs to be done. the health care systems in many countries need to be improved. the united states has proposed an initiative for 60 countries so that they can have sustainable health care systems. we have committed to this. we also need international mechanisms that need to be more coordinated. that is why we decided at the g7 that we want to have a financial facility in the world bank. this would deal with combating pandemics. the president of the world bank presented this to us today.
8:48 pm
it showed us how the international community will have to react and united nations will also set up a panel for ghana, norway, and this is suggested by ghana, norway and germany. with the who and the world bank, we will work on such a mechanism so that we can react better internationally to pandemics. this is something that can save many lives. health care issues also included two other topics. the moldy resisted antibiotics -- multiresistant antibiotics. it is very difficult to come up with new antibiotics if they resist. the national academies of the g7 countries have helped us develop
8:49 pm
measures and actions which we can use to better develop antibiotics and also to administer them appropriately. the g7 countries have committed to this one health approach. that means people and animals should be kept in mind when it comes to prescribing antibiotics. they need to be prescription drugs. this is important if they are to be administered properly. the development targets have to be passed this year. this is the sustainable development goal. these pick up on millennium development goals which are valid until 2015. we also dealt with this as well. one of the main ideas here was that we are committed to the objective that as of 2030 hunger should have been eradicated in the g7 countries. we have committed another 500 million people should no longer
8:50 pm
be in a situation where they suffer from acute famine. that is why we are committing to making a substantive contribution to the fight against hunger in the world. this should be completed by 2030. the final point is women's empowerment. again and again, whether we are talking about food security good working conditions, women are the focus. the oecd made it very clear that it is not only in the developing countries where a lot of work needs to be done, but even in developed countries. structural differences between men and women exist. for example, when it comes to independence. this was an issue and i will be inviting -- i will be convening a conference on women in september and we will be working on this issue again.
8:51 pm
it is a question of better vocational training for women from developing countries. we, the g7, have committed to seeing to it that one third more women receive a vocational education by 2030 compared to the situation today. that is a very specific objective. we now have a process in place and there are some independent institutions that monitor what we do. we have an achievement rate of about 87%. next year, when japan has the conference, we will see where we stand. a lot this was agreed on here
8:52 pm
and these are things where we will be working very hard in the next few months. i do believe that we have achieved more than just taking responsibility for prosperity in our own countries. that is why we have the outreach meeting today with guests from abroad. that is why that is very important to us. thank you very much for your attention. >> president putin wasn't here. you and your g7 partners talked about russia quite a lot. giving these sanctions, you can imagine that's not going to happen. what is the process of solving the syria crisis?
8:53 pm
are you thinking of a post-putin era? chancellor merkel: we didn't talk a great deal about russia in terms of proportions. we talked about other points as well. for example counterterrorism activity. we had various formats for talks . russia has been -- other
8:54 pm
international issues can be dealt with in conjunction with russia and syria. it ran is also a very important player when it comes to the war in syria and the fight against isis. -- iran we are hoping for the cooperation in international matters with russia. to give you some idea of what the atmosphere and content was in our talks, this was a discussion. >> your non-european partners asked what you have in mind with regard to greece and the euro zone. i would like to know what your answer was. perhaps we were told that the
8:55 pm
americans or reference was made to the lehman brothers back in 2008. can you say that is comparable? chancellor merkel: i think that these are two very different issues, but we did discuss greece. i would also say we didn't spend too much time on it. with regard to the international economy and the economic situation in the euro area there are those who are not part of the eu. they also wanted to know how negotiations are going and the head of the international monetary fund was there as well today. this is one of married -- this is one of many topics we touched on. we said that we want greece to remain part of the eurozone, but we also made a very clear statement.
8:56 pm
we said solidarity in european countries and with greece means that greece will have to implement measures. there is a common position in the three institutions that is a great amount of progress. that is what the discussions are now based on. i must say, there isn't much time left. that is why we really have to work very hard on this. the day after tomorrow, we will be able to discuss this with a greek prime minister in brussels with the eu latin america summit. every day counts. >> you said that the g7 talks
8:57 pm
as they occurred, did you feel that you were all like-minded? would you extend this to australia or india? secondly, often the g7 summit has been between the u.s. and europe. it that happen this time and if not, why not? chancellor merkel: i think everybody is on the path to growth now again. the question is -- the question of which economic path you take is no longer at the center of the debate. that is why we had a very harmonious discussion on that. we have to recognize that worldwide, there are some countries which are changing direction, for example, china doesn't have the high birth rates anymore because they are changing the quality of their growth. it wasn't a controversial
8:58 pm
discussion at all. that is really down to the fact that, although the growth rates are very moderate, they are on the upward path. i think we had a very intensive debate. it was very exciting, really. we do have the format of the g20 and all the other important economies are represented there. those are very different social systems, be a china, india. i think we do have these other formats, but we haven't contemplated any different formats and are very pleased with the working atmosphere here. i think we have a set of
8:59 pm
challenges and those would look rather different if you had india on board because of the question of india's own development agenda would be very different from what we can do to africa and others. according to everyone's feeling i think it is perfect. >> i have two questions. the first is a commitment to the climate objective to present. now, the japanese. how could you move them to support this two-degree goal? also, the question of free trade agreements. president obama, could he assure you that that was still on the
9:00 pm
agenda in washington? next week it looks like the pta will also be carried out very quickly. then you might think the transatlantic free trade agreement might fall back somewhat. maybe you could comment on that. chancellor merkel: the first question japan, right. the two-degree objective, not 2%. all of the formulations on the climate were the result of a a lot of hard work. binding is a very important term. a commitment to the two-degree objective, a commitment to the upper and of the 40% to 70% reduction. as well as a commitment for funding. the shepherds had to do a lot of work but there was no one that presented a problem there.
9:01 pm
it was good that we dealt with this and managed this together. the president of france as host of the climate conference think that is very important. they want to work together on this. t tip, write. we spoke very openly and we were pleased that the president will probably get this fast track from the congress and the pacific agreement is basically finished. the good news is that in just a few weeks, it will be time to focus on the eu free-trade agreement with the united states. we went through all the different things that are still out there. the american president committed
9:02 pm
to a request to come up with a result. you can't overlook the fact that, in europe, there are some very controversial discussions owing on. it is up to the europeans, we made that very clear, we want this agreement and we agreed that there are some who are more difficult to us. for example, the question of arbitration courts. we are aware of the fact that there are parts that are not easy for the americans. we have to be open and honest with one another. not only europe has problems with the agreement, but the united states as well. we have to make progress in our negotiations and discussed this at length. by the end of the year we said we want to come to a successful agreement. >> you mentioned corruption,
9:03 pm
anticorruption. david cameron said that it wasn't just in fee for -- fifa that corruption had been mentioned. corruption is something that causes questions in the public and that is why terrorists get a grip on certain countries. that's why it needs to be looked at.
9:04 pm
>> yesterday, we heard an announcement that there would be changes in the deutsche bank. was this a decision that surprised you and how do you judge this decision? chancellor merkel: that is a decision taken by a company. it was not really a surprise. i don't really want to comment on that. i want the deutsche bank to be successful, and the deutsche bank takes their own decisions as does any other company in germany. reporter: chancellor, you said that you are committed to reduce the number of people suffering by 500 million.
9:05 pm
how is this going to work? are there going to be financial commitments? how are you going to bring that about, and i would like to know in the case of the climate issue, as well, what about all these targets that you set today? what does this mean for the domestic german discussion about the climate levy? chancellor merkel: with regard to us wanting to tackle and eradicate poverty, it remains clear that we in germany will increase our development commitment by 8.3 billion, and and we made other pledges, associated with food security -- of course, we haven't got the finances, but we made various estimates. we talked about these targets and whether we could achieve them. i think this goal can be achieved and will be achieved, but only if we keep it up there
9:06 pm
on the agenda. we must finance our state budgets by 2030, but through stages, we will have some idea of how we can achieve this. reporter: the german internal discussion about the climate target is something which -- chancellor merkel: the german internal discussion about the climate target is something which -- we have targets around 40% production cuts, and we are doing pretty well in regard to the european protocol. germany has emphasized it wants to meet its european target, as well as its german target. we will in the next few days be discussing how to achieve that. the economic ministry is still in talks, as you know. last week, there were many
9:07 pm
talks. there will be talks this week. i'm sure we will be able to achieve a good solution. on questions associated with energy -- reporter: i can pick up on that question. you are calling for decarbonization. will you also have a transformation of the energy supply, and will you manage to avoid reducing coal? chancellor merkel: we will only achieve our goals if we undertake efforts everywhere. there are a number of weak points in germany. first of all, it's hard for me to understand that despite all of the red-green state government, we haven't been able to have state subsidies for building improvements.
9:08 pm
we have to make a contribution. we have to distinguish when we talk about meeting the targets for 2020, and when it comes to de-carbonization, we are talking about over the course of the century. a number of things need to be distinguished here. right now in europe, our instrument, which we discussed as well, is what we have in mind for the world, the complete world. that would be emission trading. this could also not give us the price message that we would like. germany will have to make an effort here, because in the european electricity market, we have a lot of coal-fired exports, not for our own use but where the electricity is generated. that's where the emissions are calculated.
9:09 pm
we hope to come to a uniform european energy market, so that national objectives will be of a different value. an integrated european market can only have one goal, and this is something that will not be until after 2020. that is when that will be taken into account. reporter: good afternoon, dr. merkel. my question is, please, allow me to speak in english -- my question is on the issue of terrorism and boko haram. because i am a nigerian, and i've lived here 60 years with my family -- in 2012, there was a meeting in your office of berlin
9:10 pm
with goodluck jonathan, the former president of nigeria. i was there. i was raising my hand more than five times. you even told me to ask a question, but the press secretary to goodluck stopped me. i had this dvd in my hand. i went to a nigerian national assembly in 2011. a young man came to my room in the hotel room where i was staying. he told me -- that was before boko haram was formed -- he told me that president goodluck should not run for government.
9:11 pm
i asked him, did goodluck jonathan tell you you should not participate? >> sir, can you ask a question? reporter: my question is, if somebody provides information of something that can help you or help the government of nigeria to track terrorists or to fight it, would your people be willing to collaborate? chancellor merkel: well, we will always try and check the information that we receive. it's not easy, of course, because one needs to look at the sources, but whenever we can do something, we do. there are sovereign states that
9:12 pm
you can't interfere with. intervening from outside is very difficult. you would have to look at it on a case-by-case basis. >> in the first row. reporter: during your discussions, did you discuss military aid in the form of training for the ukraine military? someone is stepping down at the osce. maybe you know the reasons for this? chancellor merkel: he has done excellent work, but it's only normal. this is very difficult, far away from home. you can't do that forever. we are doing everything we can to make sure that we find a good successor who will be just as
9:13 pm
good and will work with just as much energy with this contact group, and that this working group can continue to do its job. this is very important to implement the minsk agreement. as far as military training is concerned, these are bilateral initiatives. there were no conclusions drawn at the g7. reporter: thank you very much. i would just like to come back to greece. how big is the understanding among international partners that this crisis has been ongoing for five years, and are they concerned about a default? chancellor merkel: everybody who was around the table wanted greece to stay in the eurozone. as i say, there were two institutions, and we have rules. we pointed out in the
9:14 pm
discussions there were rules about the eurozone. for example, ireland has been through a very tough program and it is now the country that has the highest growth rate of our member states. if we look at spain and portugal, new jobs are being created, although unemployment is still quite high. we can see the measures, or the measures which were proposed by the troika, have led to success elsewhere. if you look at interviews with the cypriot politicians lately you will remember not necessarily tough talks, but they are saying cyprus is once again on the right road. you have the imf program for ukraine. ukraine has terrible structural reforms ahead, which are going to ask a great deal of people, and therefore, there is no doubt we always say, there needs to be
9:15 pm
effort and solidarity on the part of other countries, and these have to be two sides of the same coin. >> the gentleman in the back. reporter: let's come back to sanctions. was there a discussion as to how you could toughen the sanctions against russians, embargoes for spare parts and civil aircraft and was there a discussion on the frequent provocations in the airspace in the sovereign area of many democratic european countries? chancellor merkel: the second one was something we did not discuss, and we did not talk about toughening or making the sanctions even tougher.
9:16 pm
at the european council in march, we came up with a political decision, and we said that the sanctions will be extended for the period of time for the implementation of the minsk agreement. we committed to that once again. we had an agreement between the united states, japan, and the members of the european union, and we said that this process is something we intend to maintain. that's why we came to the common conclusions there. reporter: the connection with fossil energy and using less fossil energy over this century -- has there been a discussion about using nuclear energy, and is there any movement in connection with japan? do you know to what degree they are going to use less nuclear energy?
9:17 pm
chancellor merkel: we did discuss this, continuing to use nuclear energy. japan, the u.k., france, for example. among the g7 countries, there are a series of countries who do have peaceful nuclear energy and we didn't make stipulations that anyone should renounce nuclear energy. that was a german decision that was respected. the g7 countries have different approaches. >> the lady in the front row. reporter: i know that the global climate change has been the good, important issue of the summit, and it involves the participation of every country. under this framework, have the g7 countries discussed the contributions china can make?
9:18 pm
since china is also promoting a greener economy, how do you see business opportunities for german companies? chancellor merkel: we did discuss the fact that the g7 countries alone, even if they didn't have any co2 emissions themselves -- let me start again. can you hear me now? can you hear me now? i will begin from the beginning. i saw that you were having trouble. can you hear me now? can you hear the interpretation? you can hear me now? great. we know that the g7 countries alone, even if they had no co2
9:19 pm
emissions as of tomorrow, that still wouldn't solve the climate problem. we couldn't meet the two-degree objective. emerging countries such as china would have to make a contribution. this was taken into account in our discussions. we are pleased to see china has undertaken a number of efforts in order to focus more on renewable energies. china has had a major increase in wind parks, solar energy, and also hydroelectric power. we know that, and this also shows the change that chimed in -- china is going through. china made it very clear when it comes to the climate conference in paris that for the first time they will be dealing with the question of the co2 emissions, that after a phase of increase they will be going down again, and this is an important commitment. we know we have a common
9:20 pm
responsibility here, different responsibilities depending on how developed we are, but china has said, there will have to be a day we will change our economy so there will be fewer co2 emissions. this is a very important step, and i do believe germany has possibilities there in order to help when it comes to technologies, but china also has excellent skills in developing their own technologies. this will be a win-win situation, and we will cooperate very closely. >> time for two more questions. i will take you next. reporter: madame chancellor, can i come back to the question which you very much care about
9:21 pm
which is health. you talked about pandemics, and on the agenda, you mentioned research into diseases related to poverty, malaria, tuberculosis, for example. many people are affected every year. can you say how nationally altogether as a g7 you will be promoting research on this in the future? we surely should be learning from it. there should have been research at an early stage on the vexing, and that would've solve a lot of problems. chancellor merkel: right. as you mentioned, malaria and tuberculosis, we are very attached to this global fund which produces some of the funding for this. when it comes to the tropical diseases, neglected and poverty-related diseases, often you have the medicines but you can't distribute them properly to the countries. that is why we've talked about building national health systems, and logistics is mentioned in the communique.
9:22 pm
we need to coordinate above all. we need to inform each other of what we are researching. where and where the gaps are. all of this will run better. >> the final question. reporter: thank you. a couple years ago, you said spying on friends is impossible. does this apply here, as well? when you talk about an area 50 kilometers from here, or are you just going to take a break afterwards? chancellor merkel: no, i have other obligations, and that is why i won't be at the meeting, but i wish the conference every success, and i certainly hope that the discussions will serve as a basis for information so that they will know everything you need to know about the
9:23 pm
attitude of the participants at the g7 summit. thank you very much for your attention, and for the entire summit. thank you all very much. [captions copyright national cable satellite corp. 2015] [captioning performed by national captioning institute] which is responsible for its caption content and accuracy. visit] >> coming up on c-span. the supreme court oral argument a case derived from listing jerusalem as the birthplace -- israel as the birthplace were people from jerusalem. on the next washington journal
9:24 pm
deryl wold bank of bloomberg takes a look at the week ahead in congress and what measures the house and senate will be debating. alan while of health affairs discusses how states are preparing. roger derose of the kessler foundation and andrew how often -- houghtonville discussed the results of a recent national survey on people with disabilities. we will take your facebook comments and tweets on "washington journal" live at 7:00 a.m. eastern on c-span. last week, melvin carraway was removed after tsa agents failed
9:25 pm
to find explosives and weapons during internal test. tuesday, the senate homeland security pulled the conference. -- holds a conference. the new congressional directory is a handy guide to the 114th congress with color photos of every senator and house member, plus bio and contact information and twitter handles. also, district maps, a full doubt map of capitol hill, and a list of congressional committees, the president's candidate, federal agencies, -- agencies. order your copy online. the supreme court term ends at the end of this month with major decisions expected on health care, same-sex marriage, and housing dissemination. earlier today, the scent -- the center for american progress
9:26 pm
held a discussion on the court's decisions and why there could be a lasting impact on the u.s. and constitutional law. it's an hour and a half. winnie: it is my pleasure to welcome you to cap for this important conversation. as americans and as progressives, we are well aware of the central role that the united states supreme court has played in the history and well-being of our country. their charge to provide a level playing field and ensure equal justice under the law, has continually broadened our nations definition of we the people and expanded the circle of opportunity for americans once excluded and exploited. when the court has met its
9:27 pm
charge and propelled progress and equality forward, our nation has been the better for it. through brown and loving, griswold and roe, gideon and maranda, the court has upheld that the promise and protections of our country are meant for all, that our constitution is a thriving and living document and that our justice system should be fair. that is why courts matter. but just like the broader story of america, the progress facilitated by our courts has not always been consistent or constant. the power to change america for the better also comes with the authority to do the opposite, to restrict access, and able corruption, and deny freedom to americans left behind by other institutions. that's why courts matter. they can tip the scales even further in favor of the powerful and privileged. after 60 years of advances, a majority of the justices on the
9:28 pm
court have increasingly and certainly too often reversed the progress of the 20th century. over the last 15 years, they have corrupted the notion of religious liberty, transforming it from a shield to protect religious organizations and minorities, to a sword to impose harm on the arty marginalized. they have restricted and diminished the voices and votes of everyday americans in our elections by gutting the voting rights act and deregulating money in politics. the three major cases we are discussing today face the most conservative court in decades. each of these three major decisions is integral for the functioning and future of our country. a positive decision in any one or two of these cases does not diminish and will not diminish or negate the damage of a
9:29 pm
negative decision in just one. in their hands this month rests the hopes of thousands of loving and committed same-sex couples waiting for decades to walk down the aisle with the person whom they love. in their hands this month rests the ability of the federal government to effectively combat housing discrimination aced on race, color, national origin family status, or religion. housing discrimination has remained one of the most persistent and insidious forms of racial discrimination since the 1960's, and should the supreme court strike down one of the major avenues for recourse, they will provide cover to prejudice and bias that have kept the american dream out of reach for far too many families. in their hands this june rests the stability and future of the
9:30 pm
american health care system and quite literally, the lives of 6 million americans who receive subsidies in the federal exchanges. or president obama's health care law. we are talking about whether the american health care system will continue to work for all or whether one action by the supreme court will send our health care system into chaos with prices skyrocketing and affordable access shot off for millions. the stakes could not be higher. millions of lives hang in the balance. legal progress is the legal policy arm at the center for american progress. no matter the issue health-care immigration, marriage equality, privacy, ethics, the judiciary will play an increasingly important role in the lives of
9:31 pm
hard-working americans as well as the success of the progressive legislative agenda. through legal analysis, policy analysis, communications public education and key stakeholders, legal progress is pushing the legal american system in a more progressive direction and educating the public on issues they care about most. each of the decisions we will discuss will impact the health, well-being, and security of millions of americans. to introduce our distinguished panelists, it is my pleasure to introduce the moderator of the discussion, ari melber. ari melber is chief legal correspondent for msnbc and cohost of msnbc's "the cycle" and the writer of law and politics, which covers politics -- and constitutional rights on
9:32 pm
msnbc. in his addition to his work on msnbc, ari melber's writings have appeared in atlantic politico. he worked for the john kerry presidential campaign and as a legislative aide for maria carol. thank you for joining us. the floor is yours. mr. melber: thank you. good morning. very excited about our panel which is going to get underway. you know the tv show i am on his popular because she said so. that is a good rule of thumb. keep that in mind and keep telling everyone that. i want to quickly call up each of our panelists one at a time. not unlike a popular concert or if anyone has been to coachella
9:33 pm
you do the names one at a time. we do not have to do loud applause. let me welcome michelle jawando to the stage, vice president at legal progress. she worked as general counsel to senator kirsten gillibrand and serve as a election manager. many other things. i will keep this moving. trust that there is more to the bio. robbie kaplan is a partner at paul weiss, a major firm. she argued for edith windsor something else you may have heard of. [applause] ian millhiser is a senior fellow at cap. he has written extensively about the law. he was a clerk for judge eric clay on the sixth circuit. lisa rice, executive vice
9:34 pm
president for the national housing alliance. very much involved in the fair housing case we will discuss. elizabeth taylor, executive director of the national health law program. she works in the washington office. she spent her career advancing justice in the courtroom and the boardroom and worked at the doj. as you can imagine, there is very brief. i want to spend time hearing from these folks. i moving over here because i do not want to do a big, formal thing. how do i sound? can you hear that? are you all on? say something. >> hello. mr. melber: so we want to talk about these three cases as promised. for an opening, i think one way to think about the current supreme court, and this may run through all three cases this
9:35 pm
period in the court where the nine justices are a friend of yours -- some are a little nervous about this hypothetical -- i think you could argue they would be like a friend that wants to be considered laid-back. i do not care where we go to dinner. but if you pick a restaurant they have very strong opinions about ray go to dinner. or they say, let's just go to the stadium. but they have strong opinions about where to go. what i mean is, we have a court that talks a lot about judicial minimalism, a constrained role for unelected judges, that talks
9:36 pm
about deferring to congress. or congress's ability to fix. congress can get in and change this. there seems to be a lot of references by this court into the idea that you guys can figure it out. we know our role and we are easy-going. anything is fine with me until you get to the point that there is something the court cares about. that it seems to reach deeply into the lives of americans and into the political process. to the extent it has limiting principles, if you think about voting rights, many of the limiting principles seem empty as a practical matter today. you're going to speak about whether that is a fair concern or not.
9:37 pm
whether the court has every right to say, these are statutory problems. to the extent that congress cannot do so, maybe that is not the problem. and they have every right to do what they need to do and not adjust based on where the congress is at. i would like to start with a simple restaurant analogy before we get too deep. i would like to turn it over to our panel. the way we will do this so you hear more of them and less is me -- of me, we are going to do roughly 20 minutes with each case being explained by one of our panelists. then we will go to the audience. and for everyone watching on live stream or c-span, please identify yourself. we can do only a question. if you want to do a comment that
9:38 pm
is equal in length to a question, that is fun. with that said, we want to start with fair housing and lisa. tell us in plain english what the case is about. ms. rice: i will try to tell you in plain english. the case was initially brought by the inclusive community project, a nonprofit fair housing organization based in texas, doing work in texas. the mission of inclusive community project is to try to undo centuries long, systemic residential segregation. perpetuated by the federal government and perpetuated by private actors. that is their goal. one of the ways they do that is to help place persons of color
9:39 pm
in communities where their race is not predominant. it does so by using and taking advantage of a voucher program offered under the tax credits the low income housing tax credit program, which is administered at the federal level by the treasury. but the treasury leaves it up to each individual state to come up with its own formula for how the tax credit will be apportioned. the state of texas used a formula for placing the tax credit housing development in a way that icp argued perpetuated racial segregation. in fact, they showed evidence in court that 92% of the low income housing tax credit projects had been placed in predominant
9:40 pm
communities of color. icp challenged the formula and said it had an impact based on race. the lower court agreed. the appellate court also agreed. then the state of texas appealed the case to the supreme court. the question before the supreme court is whether or not the whole theory of impact is recognizable under the federal act. so this case is laid out and unfolded against a very interesting backdrop. that is that 11 appellate courts , every appellate court who had heard the matter, d has agreed thatisparate impact is it -- cognizable under the law.
9:41 pm
what you do not have unanimity on is the test, a three-pronged test to determine whether or not there is an impact. but that question is not before the court. mr. melber: defined disparate impact. ms. rice: a policy that seems neutral on its face. let me give you an example that is not related. let me give you an example from one of the insurance redlining cases i have worked on. an insurance company says, we will not insure any home valued under $65,000. if the market value of your home is under $65,000, you cannot get insurance with our company. the policy seems neutral on its face. it does not seem to have racial connotations. but if you apply that policy consistently uniformly across-the-board, it has the discriminatory effect of
9:42 pm
excluding african-american and latino homeowners since a large percentage of african-american and latino homeowners have homes under $65,000. mr. melber: explain how this works as a statutory case. did congress mean to provide this kind of protection even where there is not explicit evidence of individual racial discrimination, and what other ways might the court deal with the ruling? ms. rice: that is a great question, one that was raised during the hearing. it is clear that congress did intend for disparate impact to be included when it originally passed the law in 1968. and also when it amended the law in 1988. there was a congressional brief co-authored in part by senators
9:43 pm
walter mondale and ed brooks the original authors of the fair housing act. they say in their brief that they did intend for disparate impact to be included. and the original law that was passed in 1968. and actually, as the brief points out, there were amendments made at the time the law was passed in 1968 to infer unintentional standards. and congress rejected that amendment. so not only did the framers or authors of the law intend for there to be disparate impact, but when those who were opposing the law meant to infer or confer intentional standard in the statute, it was rejected by the congress.
9:44 pm
subsequently, in multiple years senator orrin hatch tried to amend the fair housing act by adding an intentional standard. when the law was passed in 1968, senator hatch tried on many occasions to change the law by adding this intentional standard. every time, it was rejected by the court. in 1988, when the law was amended to broaden coverage to include protected classes -- disability status and familial status -- at that time again the intentional amendment was introduced and rejected. what congress did do when it amended the law was it said there are three instances we do not want to apply to disparate impact. one example would be familial
9:45 pm
status is a protected class. congress said if local minister pawleys -- municipalities pass a reasonable occupancy standard we do not mean for that reasonable occupancy standard to be challenged by the fair housing act under the disparate impact analysis, saying that the occupancy standard will discriminate against families with children. you can see, logically, how about what happened. -- how that would happen. you have a person in a bedroom every 70 square feet. that will limit opportunities for family with children. but that is a reasonable opportunity and you cannot use disparate impact to challenge that. >> one of the interesting things about disparate impact, we think about discrimination through a prism of white and black. what is important about this
9:46 pm
standard is how we look at discrimination. as we think about familial status. you think about young families. we have seen hud have an uptick in disabled residents. we often do not see over discrimination that they do not want to rent or land to disabled citizens, but you find difficulty with finding appropriate housing. to the extent that many of the conversations have only centered on talking about race and not thinking about other protected classes, my hope is that the court considers the far-reaching effects that will come into play if you think about striking down that. mr. melber: can you speak to what the court views as the
9:47 pm
dilemma? on the one hand i think many people can relate to the concern that we have a lot of "racism without racists." what we would call systemic racism that is unfair and built on a legacy of what was formal racism. it is no longer officially announced in the same way. so people can relate to that. and yet, it is not so easy an issue. on the other hand, being fair-minded about legal limitations, people would say if you are going to use the the legal punishment or regulation of saying that something is racist, that has formal legal consequences and a great deal of stigma. and you have people saying, wait a minute. we set up a neutral policy based on numbers. the government will say this is
9:48 pm
racist. how does the court deal with that dilemma? ms. kaplan: i have spent countless hours thinking about -- and i will talk about this later -- the different journeys the court has been on comparing lgbt civil rights and more traditional african-american civil rights. the supreme court handed down windsor in 2013. two days before, they had shelby county, which could not have been more opposite. i spent time thinking about why lgbt rights are seen as progress. on the other hand, we are not seeing the same thing in court decisions with respect to african-american civil rights. i think you hit on an issue that is important to the court, this issue of labeling people as racist or homophobic in the
9:49 pm
context of windsor. that is something they are extremely sensitive to. some of the most intense questioning i got in windsor was this view that i was expecting -- doma was passed with a huge majority and signed into law. the question i got is, are you saying the huge number that voted for it, are you saying they are homophobes? whether it is african-american civil rights or gay civil rights , you kind of have to dance of it. the honest answer is yes. some of them were probably homophobic. on the other hand, if you say that, it kind of creates a reaction you do not want to have. i kind of said no, i am not saying it is prejudiced.
9:50 pm
it is probably based on a misunderstanding, which i also think is true. i think your question gets to the core of what may be motivating the court in the sense that they do not want to label anyone a bad person or racist or prejudiced. ms. jawando: some argue that is the beauty of disparate impact. disparate impact says are not labeling anyone a racist. ms. rice: you are saying, you did not intend to discriminate. you are not a racist. but you employed a policy that has a discriminatory effect. you did not need to do it, but you did it. let's change that. some argue that is the beauty of disparate impact. ms. taylor: the court reports to
9:51 pm
be just reading the law. we are just interpreting what the word say. a lot of the arguments where the fact that there were not words in the fair housing act about adverse effects. it does say "make unavailable." there was a lot of conversation of whether that is the same as adverse effects. making housing unavailable. so the question is, it is the language that says make housing unavailable, does that mean congress intended to look at the impact and not just the intent? the proponents of disparate impact focus on those words make unavailable. but in some statutes, there is language, "adversely affect."
9:52 pm
and those are ok to use the disparate impact analysis. what is interesting to me is that justice breyer, in argument said why should we change a law that is working? it is working and has been for many years. to use this disparate impact analysis. he made a similar point in a case several years ago, the family for community schools against seattle. where justice roberts said the way to end discrimination is to end discrimination. sore the court struck down efforts to the school system that was not de facto segregated.
9:53 pm
in this case, to bring it back to where i live, in health care the impact of where you live on your health is enormous. there was a study done recently in two different areas of richmond. life expectancy changes by 20 years just because of the area you live in. in low income communities african-americans are 15 more likely to die of aids than in other communities. there is a tremendous amount of work being done on the socioeconomic part of health disparity. and it all has to do with where you live, whether you have access to healthy food, whether you have access to primary care providers. and simply the stress of living in a community like that, there was an article in the "new
9:54 pm
yorker" about the impact on a developing child's brain on living in a low income community because of the stress of living in a community. there is up to a 6% change in the development of the brain of a child solely because of where he or she is born. to shut our eyes to that and simply say we will focus on two words in the statute has the impact of being counter progressive and counterproductive. mr. melber: that context is a limitation we seen -- have seen applied selectively. it will not tell you whether people under the constitution or evolving notions of decency should be allowed to marry regardless of gender or how they met. the text will not get you there.
9:55 pm
which will get you to the next case. there will be injustices on this panel. it is an injustice that the man who knows so much about this is not going in on it. we will definitely get you on the next case. robbie, tell us what this case is about. there are probably people watching who remember some of the previous cases. what specifically is in this case this month that will potentially create the first national standard for marriage equality? ms. kaplan: i never thought i get to be the good news bears on civil rights issues. but i'm hoping that will be the case. when i walked into the office this morning, they had cnn on the tv. there is a new poll that says 63% of americans nationwide support marriage equality.
9:56 pm
i have to pause every time i see those numbers. if you told me that when i brought the windsor case, i would have told you you need to be on medication. what this case is about is a journey our country has been on. 2003 was the first case brought by mary donato in massachusetts the first time gay people could get married. now we are in 37 states. the question is whether that inequality will extend to the remaining 13 essentially. whether not only does the federal government have to recognize the equal dignity of gay people in marriages, but to state like mississippi or florida have to allow gay citizens to have equality in marriage? that is what the case is about.
9:57 pm
that is why it is getting the attention it is getting. we shall see, fingers crossed. mr. melber: ian, why don't you walk us through the outcomes. one would be saying that states have to recognize marriages performed in other states regardless of their own law which is sort of a federalism issue that has wider connotations. the other, a national standard for marriage equality. mr. millhiser: i think the most likely outcome will be some version of all 50 states are required not just to recognize out-of-state marriages but required to issue marriage license or the equivalent to gay couples under their own law. so that is good news. but i think how the court reaches that decision is almost as important as if they reach a decision.
9:58 pm
one thing i think is interesting about this case in light of fair housing, the fair housing case is a proxy war over a broader ideological battle where conservatives wanted to limit civil rights. where you have to show intent in order to prove discrimination. if you believe, which i do not, that the only type of civil rights violation is where you have intent, marriage discrimination qualifies. even if the person does not hold animus it is the intent of the laws to provide less rights to same-sex couples than they provide to opposite sex couples. it is the case if you look at the supreme court's doctrine gay rights is an easy question.
9:59 pm
what the supreme court has said is that when a group has historically experienced discrimination which bears no relation to their ability to perform duties in society, they are entitled to heightened protection under the constitution. there is no question that sexual orientation should fit that bill. i will throw a few numbers at you. new york city arrested 50,000 people over the course of four decades because they were seeking consensual sex with a person of the same sec. philadelphia formed a moral squad that arrested 200 gay men every month. it used to be the policy of the united states of america that the federal government would not hire gay people. i will not bore you with a long quote i have when the federal government explained the policy.
10:00 pm
but it uses words like "revolves in -- "revulsion." half the states had laws allowing "sexual deviance" to be held against their will so the state could you or what they saw as a pathology. and yet the court has slow walked to civil rights. there have been a number of gay rights decisions, starting in 1996 with romer, but what strikes me is how incremental the decisions have been. the courts have resisted the notion that gay people should be entitled to heightened protection. i suspect they will resistant in this case. if that is true, that has
10:01 pm
profound implications for the future. while it means same-sex couples will be allowed to marry, it also will not mean that states won't be able to engage in other forms of discrimination. the kansas governor recently rescinded an order that said the state will not discriminate gay people in its own hiring. that may be constitutional after the supreme court rules that marriage equality is the law of the land. i think it is likely that the narrow victory will be a complete victory. we will get marriage equality in all 50 states. but it is much less likely that the court will recognize what the constitution commands, which is that discrimination against gay people of any kind by the government should be treated with skepticism. mr. melber: you mentioned the
10:02 pm
federal government's obligation to explain itself. in all these cases, we see some discussion of where these rules come from. there is something positive about the judiciary in that it is the only part of government that has binding rules in having to explain itself in its thinking. even when you disagree with something, it can be held up to the light of day as why they did this. some of these decisions do not wear well in real time. i want to broaden out to the sixth circuit decision, in which ohio decides to argue against marriage equality. it is striking because it feels like such a weak argument. let me read from it. a brief quote saying "it is rush
10:03 pm
holt to recognize that marriage was adopted not to regulate law but to regulate sex, most especially the intended and unintended effects of mail-female intercourse." the argument being made is that because marriage was initially structured to deal with what society viewed as the potential problems of procreation, it is therefore limited. speak to us about this. it seems like a very weak argument when you look at the endurance of marriage as something that exists and is legally protected with or without children and for elderly people who would not be able to have natural born children. ms. kaplan: you will be shocked to hear that i agree it is a silly argument.
10:04 pm
most of the justices think it is silly too. it was prominent in oral argument at the end of april. there are really no arguments left. this is the only distinction that the people opposing equality can come up with between gay and straight couples is the idea that straight couples sometimes, biologically appropriate. it has pushed them into a view of marriage that is so divorced from reality, so divorced from what i think any american thinks of as marriage. i do not think anyone thinks they get married to someone so if they accidentally procreate in their marriage, that kid will be protected. no one says i would like you to marry me because you may get pregnant by mistake. i want to make sure the kid has protection. i do not know what universe
10:05 pm
marriage exists in that world, but it is no universe i know of. the image of marriage that was for trade, if you are the council for michigan and tennessee, you could have a married straight couple who have a horrible marriage. they are abusive to each other, violent to each other, throw bottles at each other. but they are fine to their kids. under the theory that these people purport to hold, it should be the state policy for that couple to stay married because it is good for the kids. obviously, that makes no sense. that is crazy world. i think the justices recognize that. hopefully, in the dissent in this case, you will see that a marriage.
10:06 pm
>> one piece i want to go back to, in the expansion of marriage equality that we will create a legal environment where there are protection for same-sex couples to marry. the very next day, they could go to work, share that they had been married, and for a host of reasons, potential he lose their job or health care. the question is, are we setting frameworks where we are protecting and moving forward with marriage equality in this country. but at the same time, when we expand our discussions around discrimination, and you are not talking about the relationship between individuals, do we find
10:07 pm
ourselves in a disparate impact world, where we are looking at civil rights for all persons where you have the potential to lose out on long-held traditional ideas or notions of civil rights, but in a different context? because now, you are talking about losing your ability to work live, health care. a host of different protections that, as many of us are thinking about what nondiscrimination looks like, as we think about kind of the long reaching effects of discrimination and the way the court has thought about it, has potential ramifications for same-sex couples the same way we have seen in traditional civil rights. ms. kaplan: there are still
10:08 pm
people who get fired because you are a faggot. but you are exactly right. people are coming around to the idea that i should not fire you because you are gay. what do you do in situations where there is a disparate impact? that is exactly where the commonality comes to the four. mr. melber: dr at halftime and will go to obamacare. i think folks have a deep sense of obamacare. for the folks who have been listening, the poll will be, do you think the fair housing disparate impact approach will be upheld? or will it be overruled?
10:09 pm
show of hands, how many think it will be upheld? >> i am progressive. >> i am abstaining. >> how many think it will be struck down? mixed. mr. melber: on marriage equality , i will not do every possibility, but do you think a case will advance? show of hands? most of the room. no? look at that. we can do the obamacare one. this is nice halftime. you may have heard a little bit about it, whether the way the law is written should deny subsidies. how many think the law will be upheld? yes? how many think it will be essentially struck down? some pessimists.
10:10 pm
that gives us a sense of where we come from and where we are going. ms. taylor: most of you know about king versus berwell but congress enacted the affordable care act to address serious problems about access to health care. there are basically three prongs to the affordable care act. one is you have to get health care unless you make so little money that you are exempted from the requirement. two, insurance companies have to provide insurance to people regardless of pre-existing conditions. for the first time, people who were diagnosed with cancer or multiple sclerosis, those people are entitled to get insurance. a third prong is the tax
10:11 pm
subsidies. the only way this stool works is for tax subsidies to be available. if you do not buy the tax subsidies, you have a big pool of people exempted from the requirements to get health care. all of a sudden, people getting insurance are just the sick people with pre-existing conditions. and insurance companies cannot afford it. they need a big base of healthy people to be able to spread the risk of covering people with pre-existing conditions. the problem was that we had a lot of people in the country who were getting their health care by showing up at the emergency room, which is really bad economically. it is also really bad for your health not to get preventative care and just show up at the emergency room door. on top of the people with pre-existing conditions who were not getting treatment, you had everyday people who could not
10:12 pm
afford health care because they did not have health insurance. and congress is trying to fix a significant social problem. the affordable care act was passed. the opposition to the affordable care act has not yet given up. i cannot remember how many times there was a bill passed to repeal it. i think it is 49. >> 50. ms. taylor: the opposition continues. after the supreme court decided in the nib case that it passed constitutional muster because it was pursuant of the taxing power of the united states. opponents came up with another idea, to find four words that say "exchanges created by the
10:13 pm
state," and to argue that meant there could not be subsidies that were created by the state. it is a technical argument because the language is in a provision of the statute that just addresses how you calculate the subsidy someone is entitled to. there are various provisions that relate, a provision that says states shall create exchanges. another provision that says if the states opts not to create and exchange, the federal government will create an exchange. exchange refers to the exchange created by the state and the exchange created if the state opts not to create an exchange. it is pulling the words out of context to say that because the
10:14 pm
calculation of subsidies is in a provision that refers to exchange created by the state -- and it is more complicated than that because it refers to another statutory section that refers to another statutory section -- but in any event, the argument is that these words mean you cannot give tax subsidies in an exchange created by the federal government. 34 states have subsidies that are federally subsidize marketplaces. there are millions of people getting coverage on those marketplaces. if the court goes the wrong way not only will those 6.4 million people lose their subsidies and insurance, the estimates are another 1.5 million will lose insurance because, as i said, if you pull out the base, everybody's costs go up.
10:15 pm
even the people who are not getting subsidies will have their insurance priced out of reach because the cost of coverage is going to go up. mr. millhiser: i want to bring it back to something lisa said about fair housing. about how orrin hatch has tried over and over to get the result that they are now trying to get out of the court. you see the same dynamic with the affordable care act. this is the weakest statutory interpretation argument i have ever seen reached the supreme court. elizabeth listed some of the evidence. i will name one more. the plaintiffs hone in on the words "through an exchange established by the state." if you read that divorce from anything else, you may think they are onto something until
10:16 pm
you see "exchange" is defined to mean a government agency or nonprofit entity established by a state. so any exchange, regardless of whether it is started by the federal or state government, is deemed to be established by a state. this case borders on frivolous. that said, there is an argument for how it got here. while there is something that the lawyer has not been candid about, he was unusually candid in a conversation with a friend of mine, a reporter with tpm and bloomberg. he had a conversation with mr. carvin. a similar case was pending in the d.c. circuit. the d.c. circuit actually bought the very -- theory and decided
10:17 pm
to look at it over again. this is while discovery was going to go on. and in that context, mr. carvin said he does not think the appointees on the supreme court will "give much of a damn" about what the circuit thinks. and my friend asked him, do you think you will lose any judges who are appointed by a republican? he said no, i do not think i will lose a republican appointed judge. so this is not a case about statutory interpretation.
10:18 pm
>> it is important that we use the language of statutory interpretation. the reason for that is because it is patently obvious what congress intended. if you just say, congress intended for subsidies to be available on federal exchanges but you concede congress screwed up in accomplishing that, then you lose or we may lose. because the courts answer is let congress fixed it if congress screwed up. that is why it is important to do what ian bid, which is look at the statute as a whole, which is the basic tenet of statutory context. the context of the entire statute. statutory interpretation -- mr. melber: but to make sure we
10:19 pm
are staying accessible, it seems we are collapsing two different analytical structures of how the case would be decided. one is the actual inquiry the court purports to be doing which is, what does this log you? --law do. in this context, it seems far-fetched that this law discriminated based on geography. but no one who opposed the law talked about that as a good or bad thing. the president signed the law and that was just a secret design that was somehow never discovered and needs to be applied by the court in a way that other branches never wanted to discuss. and the democrats who were pushing the law included in it a
10:20 pm
secret suicide trigger. it is very far-fetched. the second analytical structure you are referring to is, well, isn't this political? i wonder if we could tease that out a little bit. i think it is fair to say the justices are human and at times will be moved by their own instincts, lyrical, personal, or ideological. but how does that actually work? certainly, it is fair to say in defense of the court, there are plenty of examples to point to where justices depart from what they may want to do or feel constrained by. the rules. i take this out to ian and the panel. if this is a far-fetched
10:21 pm
argument, to say the law does not do what you think it does, why would this be appealing? as a more far-fetched and potentially controversial way to limit the aca when the court has clearly not on that route on more mainstream chances? mr. millhiser: it is true there is a two tier litigation strategy. there is the strategy at the surface where the doj wrote an excellent brief which lays out what elizabeth and i have been talking about, which shows it is absolutely clear that the statute can be read one way. below the surface, there is another strategy going on that basically consists of trying to embarrass the justices who are inclined not to do what the statute clearly says it should do. a lot of it consists of pointing to how obvious the legal
10:22 pm
argument is and going, come on, guys, you cannot get away with this. one person whose be embarrassed is justice scalia. he wrote in a 2012 book that he co-authored that there is no interpretive fault more common than the failure to follow the whole text canon which calls on the judicial interpreter to interpret the higher text in view of its structure and logical relation to its many parts. again, i would hope that the year fact -- mere fact this is an easy case would be enough to convince nine justices. there is only one way to read the statute. but in the event that, through motivated reasoning or a conscious partisan desire, they are not inclined to do their job, i would hope they realize the argument in this case is so
10:23 pm
weak it would be embarrassing not just to themselves but to the court as an institution. mr. melber: robbie gave a good argument against. one of the questions posed if you are sympathetic to that, why do you think that the justices are leaning in to consider a weaker argument against the aca? ms. kaplan: no one is allowed in the room when in a decision. anyone who tells you they have some insight is someone who never went to law school. my guess is that they knew they were going to have to do this sooner or later. there was going to be a decision. certainly, at the d.c. circuit
10:24 pm
there would be great pressure. my guess is that they wanted to get it over with now. that is why you saw it. hopefully, i agree with the panel it does not speak to the merits of the plaintiffs argument. i am amazed as a supreme court advocate to hear the comments that the plaintiff's council made. even if that is what you think i cannot imagine a -- saying, i will get all the republican-appointed judges on my side. maybe i am idealistic. i have never being -- been accused of being hopelessly idealistic, but i think there are a lot of republican appointed judges that have decided for equality. it is a degree of cynicism that
10:25 pm
is a little surprising to me. ms. jawando: it only takes four justices to grant cert. in fib it should have went a different way. so i think that is another part of the conversation to add. the other thing i will say is that there is a larger conversation taking place about the roberts court, kind of the direction in which the court is moving. i think most americans, there was a poll out today in "the washington post" that wrote over 55% of americans want the supreme court to uphold subsidies. mr. melber: within the states that would be denied? ms. jawando: within the states
10:26 pm
that would be denied. there are 34 states. most of these are swing states presidential primary states have republican leadership. in those states with a more conservative population, they want the obamacare subsidies to be upheld by the supreme court. just looking at the backdrop of what is happening, i think that is an important point to make. mr. melber: what to go to the audience, and final thoughts on obamacare. ms. taylor: i want to broaden on why the court might want to read these words into interpretation. there are a number of decisions of the roberts court, where they are sort of standing in the way of efforts to address social problems by either the states or the federal government. striking down section five of the voting rights.
10:27 pm
the other part of nfib, the court struck down medicaid expansion of the affordable care act. mr. melber: the first obamacare case? ms. taylor: yes sorry. the court upheld the first part of the three leg it stool i described. but the court struck down the mandate under the affordable care act. i fear that the pendulum has swung so we not only not have an activist course -- court looking at social ills and use the law to address them but is standing in the way of efforts by publicly elected officials to name and address social problems. mr. melber: you are also putting your finger on a looming inconsistency. in the first obamacare case, the
10:28 pm
notion of having high demand on states to get money was considered coercive. in this case, they could potentially reinterpret the statute to deny funds. if that was the scheme, that would also seem course of. that is a lot of hypotheticals. ms. taylor: it is a problem for down the roads. mr. melber: we look for more problems as attorneys. for three cases of this complexity, really wonderful. you guys are really good at this. let's go to the mic. please introduce yourself. comments are fine, questions are fine, but let's leave time or response. >> i was previously at the university of baltimore for the center of preparative law. now a consultant in private practice. one general question i have for the panel, what if the entire
10:29 pm
court were to punt to congress since we will have a congress under the control of one party chomping at the bit to really sink its teeth into these three issues? and it would not be the first time the court would have embarrassed itself in american history, but what if it were to punt to congress on all these three issues? what about all three of them? ms. rice: in fair housing, this is something we have been grappling with. the potential fix, if there needs to be a legislative fix will depend on what the court says in its opinion. so one of the key hangups
10:30 pm
happened in the icp case reading the plaintext of the law. alito really wanted the court to do that and made arguments for that and. justice scalia and justice scalia said, look if you read the entire law including the amendments, it's very clear that disparate impact is a lot of that is a lot of the -- is alive under the fair housing act. but i think, look, we don't have any fallacies that at least the house would put forth the cure it would be a legislative fix. that would meet our end. i don't necessary think that the senate, this particular senate might do that as well, but i think that if there was a potential fix that would harm


info Stream Only

Uploaded by TV Archive on