tv Key Capitol Hill Hearings CSPAN June 29, 2015 8:00pm-10:01pm EDT
all right, how to we do that without considering cost? those people said our cost her more expensive. mr. lindstrom: i do not know how they did it, but they said throughout we are not considering cost. thank you, your honor. > the court today ruled by the weapon for that the epa must consider cost before deciding whether regulation is appropriate and necessary. over the next couple hours, we will continue with what happened at the supreme court. this is the last day of the term. in the next case the justices vision will allow oklahoma to continue to use the drug and its lethal injection protocol and later, a ruling that says arizona can use a commission to dropped federal congressional districts. -- draft federal congressional districts. usa today writes a fiercely divided supreme court refused to
limit state use of a controversial execution method that the centers compared to being burned at the stake. the majority said oklahoma prisoners challenging the use of a free drug cartel filled to prove it cannot mask excessive pain and identify a better alternative. all four liberal justices dissented vehemently with two of them writing that capital punishment is probably unconstitutional and urging the court to consider a broad challenge in the future. here is the oral argument in the case from april. >> euler argument first this morning in case 147955. >> mr. chief justice oklahoma chooses to execute our clients with the three drug formula that includes potassium chloride, drugs that cause intense pain
and suffering. the second and third drugs are constitutional only if a prisoner will not feel the pain and be aware of the suffocation caused by those drugs. the district court aired as a matter of law and fact. when it found that the first drug is constitutionally tolerable. justice scalia: why is that a manner of law? a district court found that it did illuminate the pain and you are asking us to find that the district court was clearly erroneous? do we usually do that kind of thing? >> there is a question of law and a question of fact. the question of law includes the fact the district court found this formula was constitutionally tolerable in
spite of two fax. the first being that there is a medical consensus that this drug cannot be used -- justice scalia: that is a question of fact. the question of law is the district court ignored to fax. ignoring facts does not make it a question of law. it is still a question of fact. >> if i can come in the second point is the question of law also involves the district court found this drug creates a greater risk of harm than --but it could not quantify. it sounds that this drug that creates a greater risk of harm that it could not quantify and it also had before it evidence that this drug is not used for the purpose in which the state intended. justice sotomayor: if i think
that i have to give deference to the district court's factual findings on how this drug works but that it is a legal question of whether how that drug works creates a risk of harm that is constitutionally intolerable. is that how you divide up the legal? the facts are now -- let's go to my real question. that a judge ignores evidence is not necessarily an abuse of discretion. or a clear error. so what are the clear errors? in terms of the reasoning that the district court used?
ms. konrad? this case -- this drug is in a different class than barbiturates. this drug is not known, not a pain reliever. he district court recognizes these two facts. it is known this drug has a ceiling effect so there is a certain point at which giving more of the drug is not going to matter. the district court recognized that, the petitioners experts recognize that. justice roberts: the district determined they were not able to tell exactly when the ceiling effect took place. that is your theory for when the pain as possible, when it hits the ceiling. ms. konrad: what the district court found was whenever the ceiling effect may become it
takes effect only at the spinal cord and that 500 milligrams will create a phenomenon which is not in this dj but -- not anesthesia but effectively eliminates awareness of pain. that finding -- we have to look at what undisputed facts were the for the court. justice roberts: it is certainly not a case where the facts have to be undisputed. ms. konrad: i am sorry if i misspoke. what we have to look at in order to show why this was a clearly erroneous finding is what the unders he did fax were before the district court in order for it to reach that conclusion. justice sotomayor: the state does not propose their doctor was right on this point. they're not defending it. they don't say it is true. it does not work the way the
doctor said it worked. that it does not paralyze the brain. correct? ms. konrad: that is correct. justice sotomayor: so it is clear error. we have an admission that the expert was plainly wrong so how -- what else i guess -- there was nothing else the district court could have based its conclusion on, correct? ms. konrad: that is correct. he district court reached the decision based on no scientific evidence and with a medical consensus to the contrary that this drug is not able to pharmacologically do what the states experts said it could do and that clear error is combined and as the district court said, this is partially a mixed question of fact and law.
justice kagan: is it that the court said, we don't know what the ceiling effect is generally? puppy ceiling effect only goes to how something operates at the spinal cord level, not to how it operates at the brain and this takes what we care about -- we don't even have to worry about the ceiling effect. is that right? ms. konrad: that is what the district court found based on the testimony of the states experts not supported by any scientific literature come any medical information and in fact is inconsistent with the state's own testimony because he testified and explained that the way this drug works is it works throughout the central nervous system.
justice kagan: you are saying we do have to worry about a ceiling effect. there is not a dichotomy between the drug at the spinal cord and the drug at the brain. it is crucial what kind of ceiling at that this drug has. in contradiction to what the court said which was we did not have to worry about the ceiling effect. ms. konrad: yes. we had testimony from experts who said it could be cap lidded but was not calculated. that does not matter because what matters is we know the drug has a ceiling effect and that is what matters. justice alito: what if the ceiling effect is 5000 milligrams? it says any amount below 500. ms. konrad: it doesn't matter.
justice alito: of course it matters. justice sotomayor: mr. wood, the botched execution was given 750 milligrams. and he laid writhing in pain for 20 minutes, 25 minutes. ms. konrad: it was two hours. justice sotomayor: there has been some defense that the 750 was not immediately delivered but it was still 750 that went into his system and caused that kind of pain. it? ms. konrad: yes and our expert testified that mr. would -- wood's execution demonstrates the ceiling effect. justice alito: how many from
this drug? ms. konrad: using midazolam. 15. justice alito: you're talking about one. ms. konrad: no, we're actually talking of several executions that -- the execution in this case in oklahoma that haven't happened a year ago of mr.locket, demonstrate why midazolam is does not put a prisoner in a coma. justice alito: i thought they were issues of the -- justice roberts: i thought there were issues of the administration of to the drugs, the nature of the veins and so forth. i got a different one in the locket case? ms. konrad: mr. chief justice -- justice roberts: that was not then -- were there issues about -- i thought there were issues involve thing veins and the ability to make a intravenous connection. ms. konrad: there were problems with the catheter, but mr. lockett received enough miiidazolam and the executioner
found he was unconscious and regained consciousness and that is the key issue. here -- justice scalia: not if he didn't receive the proper dosage. you're saying it's okay that he didn't receive the proper dosage so long as he was unconscious? ms. konrad: he received -- justice scalia: i don't see how that follows. if in fact the execution was not properly conducted, i don't see how you can blame it on the drug. ms. konrad: what we know about this drug, justice scalia, is that it can never paint the deep -- maintain the deep coma-like up consciousness necessary to prevent a prisoner from feeling the painful effects of this -- justice kagan: how do we know that? i thought that what we knew was something different. i thought that what we knew was just that we can't know. in other words, that there's this huge range of uncertainty about what happens when somebody is given this drug.
you're suggesting something more than that. which is that we know what happens, we know the drugs can't maintain deep unconsciousness, which is right? ms. konrad: justice kagan, we know because of the properties on the drug. the way when the drug was being tested and being introduced, it is not used for the sole purpose of preventing somebody from feeling pain during a painful procedure. justice kagan: i thought it wasn't used for that purpose just because we don't know whether it's capable of being used for that purpose. as opposed to, we know it's incapable of being used for that purpose, if you see the difference. ms. konrad: i do see the difference. i think what is important here is this court in bays explains it's important to re-emphasize that a proper dose sodium penthol is that the prisoner will be sufficiently sedated. that is the key aspect. justice alito: why is oklahoma not using that drug? ms. konrad: it isn't using it -- you could ask my friend here but -- justice alito: you don't know? ms. konrad: the findings here is it was unavailable at that time
of the hearing. justice alito: let's be honest about what's is going on here. executions can be cared out -- carried out painlessly. there are many jurisdictions in this country and abroad that allow assisted suicide and i assume they're carried out with little if any pain. oklahoma and other states could carry out executions painlessly. now, this court has held that the death penalty is constitutional. it's controversial, as a constitutional matter, it certainly is controversial as a policy matter. those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. some efforts have been successful. they're free ask the court to overrule the death penalty. until that occurs is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty? which consists of efforts to make it impossible for the
states to obtain drugs that could be used to carry out capital punishment with little if any, pain, and the states are reduced to using drugs like this one, which give rise to disputes about whether in fact every possibility of pain is eliminated. now, what is your response to that? ms. konrad: well, justice alito, the purpose of the court is to decide whether a method of execution or the way that the state is going to carry out an execution is in fact constitutional. and whether we're going to tolerate, is it objectively intolerable to allow the states to carry out a method in this way, and so -- justice scalia: i guess i would be more inclined to find that it was intolerable if there is even some doubt about this drug. when there was a perfectly safe other drug available. but the states have gone through
two different drugs, and those drugs have been rendered unavailable by the abolitionist movement, putting pressure on the companies that manufacture them. so that the states cannot obtain those two other drugs. and now you want to come before the court and say, well, this third drug is not 100% sure. the reason it isn't 100% sure is because the abolitionists have rendered it impossible to get the 100% sure drugs, and you think we should not view that as relevant to the decision that you're putting before us? ms. konrad: justice scalia, i don't think that it's relevant to the decision as to what is available because what this court needs to look at is whether the drug that the state is intending to use to cause what they say is a -- put the prisoner in a place where he will not feel pain, that drug is good enough.
justice kagan: i understand -- justice ginsburg: is any state using a lethal injection protocol without this questionable drug? we know that two are not available. is there another combination that has been used by states? it doesn't involve the questionable drug. ms. konrad: yes, justice ginsburg. they were then 11 executions using it just this year. justice kennedy: that doesn't answer question question. the question is what bearing, if any, should we pit on the fact there isn't a method but it's not available because of opposition to the death penalty. what relevance does that have? none? ms. konrad: justice kennedy, the fact that the state chooses a certain method should not have bearing on whether that method is constitutional -- justice kennedy: i would like an
answer to the question. you have been interrupted several times. you still haven't given -- is it relevant or not? ms. konrad: no. it's not relevant. the availability of an -- justice sotomayor: there are other ways to kill people regretably. there are. that are seamless, doesn't have to be a drug protocol we elect that has a substantial risk of burning a person alive. who is paralyzed. correct? ms. konrad: that is correct. justice sotomayor: i know you'll get up and argue that the other ways are not constitutional either, potentially, but people do that with every protocol. but the little bit of research i've done has shown that the reason people don't use the other methods is because it offends them to look at them. like, you could use gas. that renders people not even knowing that they're going to sleep to die. and people probably don't want to use that protocol because of what happened during world war ii.
but there are alternatives. oklahoma found some. it's used the firing squad now. so i don't know what the absence of a drug -- what pertinence it has when alternatives exist? ms. konrad: i would agree, justice sotomayor -- justice ginsburg: doesn't a firing squad cause pain? ms. konrad: justice ginsburg, we don't know. we don't know how if the state chose to carry out an execution by firing squad, whether in fact it would cause -- rise to the level of unconstitutional pain and suffering. justice roberts: well, you don't know. do you have a guess? is there a reason states moved progressively to what i understand to be more humane methods of execution? hanging, firing squad, electric chair, gas chamber, and you're not suggesting that those other
methods are preferable to the method in this case, are you? ms. konrad: i'm not suggesting that, mr. chief justice, but the reason why states moved to more humane methods is as we learned more and as we learned more about science and develop, then as a society we moved forward. we have evolving standards -- justice roberts: you have no suggestion as to what would be an acceptable alternative to what you propose. right now, for oklahoma. do you've have any -- the case comes to us in a posture where it's recognized your client is guilty of a capital offense. it's recognized your client is eligible for the death penalty. that has been duly imposed, and yet you put us in a petition -- position with your argument that he can't be executed, even though he satisfies all of those requirements. you have no suggested alternative that is more humane. ms. konrad: i actually disagree with the characterization that he can't be executed. oklahoma has just passed a new
statute and they are continuously looking for methods and ways -- justice roberts: what does the new statute provide? ms. konrad: the new statute provides that if the lethal injection protocol is found unconstitutional or drugs are unavailable, then they can go to other methods. justice roberts: what other method? ms. konrad: they go to nitrogen gas and then go to -- justice roberts: are you suggesting that's okay with you? ms. konrad: i don't know anything about that protocol. they have not not -- justice roberts: what do you think? do you of an instinct whether or not the gas chamber is preferable to this lethal injection or not. ms. konrad: mr. chief justice it's hard for know say whether it's preferable. the legislature has said that this could be a painless method. i don't know. they haven't come out with any information about how -- justice scalia: suppose it were true. the facts here, your client was already in jail with a life sentence. right?
for murder. some while in jail on that life sentence, he stabbed and killed a prison guard. and that is the crime for which oklahoma is seeking to execute him. is that the fact we have before us? ms. konrad: one of the petitioners here before the court. justice breyer: there is that larger question, that if in fact -- for whatever set of reasons it's not new. didn't purposely hide these these other kinds of drugs. if there is no method of executing a person, that does not cause unacceptable pain, that in addition to other things might show that the death penalty is not consistent with the eighth amendment. is that so or not, in your opinion? ms. konrad: that perhaps could be true, justice breyer. justice alito: is that your arguement? ms. konrad: no. justice alito: you can make one of two arguments, and one is that the death penalty is unconstitutional because there is no method that has been used in the past or that can be devised that is capable of carrying that sentence out without inflicting some pain.
pain that is unacceptable. that's an argument you can make. but i don't understand you to be making that argument. am i right? ms. konrad: you are correct. justice alito: you want us to reverse a finding of fact of the district court on the ground that it is clearly erroneous. when is the last time we did that? ms. konrad: the court in comcast, we cited that opinion a few years ago and explained where there are clearly erroneous findings in this case, this is obviously an exceptionally erroneous, looking at the findings based on no scientific evidence, no studies, and all of the evidence shows that this drug does not work in the way that the state -- justice alito: 500-milligrams is a lethal dose? capable of causing death?
ms. konrad: that is -- i don't know, justice alito. if the expert who testified for the state talked about a potential toxic dose but there's no information of, yes, this dose will cause death. justice alito: is a therapeutic dose? is it ever administered in that quantity for any therapeutic reason? ms. konrad: no. justice kagan: the fact that something is a lethal dose necessarily mean that it's not incredibly painful? ms. konrad: no, justice kagan. justice kagan: could be a lethal dose and be -- justice alito: that's not the point. if it's a lethal dose and how do you do a study to determine whether in fact it renders the person insensate. ms. konrad: you don't need to do a study because we already know from science and the pharmacological of the drug, how the drug works, and so that is what the district court got
wrong and there's clear error here -- justice kagan: maybe -- justice breyer: justice kagan, it's your turn. justice kagan: please go ahead. justice breyer: since we're on the narrow question, the narrow question that you want to present, i would like too hear the argument, as far as i know we held in bays in this context, that if the person is not rendered unconscious where when the two drugs come in there's a constitutionally unacceptable risk of suffocation and pain. that's the holding. and in this case, the court of appeals says that the district court found that this drug that you're talking about, midazolam will result in central nervous depression, rendering the person unconscious and insensate during the procedure, that's his finding. a sufficient level of unconsciousness to resist the
later stimuli of the other two drugs. you had an expert testify that that is not the case. the expert said, citing an article, said it would not reliably put the person in a coma. isn't that what he said? ms. konrad: that's correct. justice breyer: the other side produced the expert which just said the contrary. so you have to say that conclusion, namely, quote, the 500-milligrams will be at -- will make it a virtual certainty that he will be at a sufficient level of unconsciousness to resist the stimuli of the other two drugs. so i'm sorry you don't -- i'm run out of your time. maybe i'll ask the other side the same questions.
and him i want to know what underlies that, sufficient to make you say -- clearly wrong, but the other side is just as good to ask that question. in way to reserve your time. him mr. wyrick: the district court found as a matter of fact that a 500 milligram dose with near certainty would render these unconscious. regardless of our other disagreements, all parties agree that petitioners bear the threshold burden of establishing that there is a substantial or objectively intolerable risk that they would feel the pain from the second and third drug. and let that finding of fact affirmed by the court of appeals, mirrored by three other trial courts in florida, affirmed by three other appeal courts in florida set aside, they cannot satisfy the threshold burden.
justice kagan: as i understand it, there were three subsidiary findings that underlay this conclusion. the first is the one we talked a little bit about with miss konrad. it has to do with the ceiling and effects, which as i understand it, you don't at all defend. and the second is the idea that 500 milligrams of this would likely kill a patient in 30 minutes or an hour. that seems to me irrelevant given that a lethal dose is consistent with unbearable pain. and the third is that the dose would keep a patient unconscious while a needle is inserted into his thigh. which also seems irrelevant given the -- what everybody understands to be the much much, much greater potential of pain of potassium fluoride.
so those were the three findings and one of them nobody thinks is anything other than nonsense and the other two are irrelevant. is than the case? mr. wyrick: i will take those in reverse order. the third actually is relevant. these petitioners and the amended complaint describe the setting of the iv as an invasive procedure involving pain. justice kagan: it does not sound pleasant to have a needle put into the thigh. to read the descriptions of what it does, to give the sensation of being burned alive sound to be considerably more than put a needle in the thigh. mr. wyrick: no one argues that it causes pain upon injection, is a sedative hypnotic. earlier, the question if this is lethal or not, it would involve great pain. a lethal dose would not cause pain. and a lethal dose of that. justice kagan: it's a lethal dose of medazelam. so in that sense.
the fact that this is a lethal dose has nothing to do with the question that is before us. whether before the 30 minutes or the hour passes. potassium is wreaking unbearable pain on the individual. mr. wyrick: the question for the court is whether this district courts findings that they would be unconscious is erroneous and on that point. to look at the record case that petitioners would put on before the district court. there was three reasons why it was inappropriate. they said paradoxical reaction those have disappeared from the case. would you not see them in the supply group. they are extraordinarily rare and to the extent that they will happen the trained medical staff will catch those and never call
the person unconscious. and secondly, they said lack of analgesia. phenobarbital is not an analgesic. that is never been relevant to the question. the question is that does the drug render them unconscious. justice sotomayor: so, pain relief medication. justice scalia: what is the third point that you had. i was anxious to hear the third point. mr. wyrick: in response to justice kagan's question. justice scalia: yes, yes. mr. wyrick: i forget right now. justice kagan: the fact that this is a lethal dose again, completely consistent with the possibility of the potassium chloride causing grave pain.
him him there is a fact that it will render and keep a patient unconscious with a needle. completely consistent with that not keeping a patient unconscious. with potassium chloride running through his body. and again, this statement that nobody can figure out about the feeling of the effects. mr. wyrick: the ceiling effect is what i want to focus on. what the district court said is whatever the feeling effect may be, what we are concern about the, is whether this will keep somebody unconscious and unaware of pain. when you talk about that phenomenon that is not anesthesia. what he was referring to is their expert. the doctor said in the medical sense to have true anesthesia you need to have unconsciousness. inability to have pain and immobility, and the district court is saying that what we care about is will this render them unconscious and unable to feel pain? under their experts opinion, it may not be in the medical sense. that is the constitutionally relevant question. justice ginsburg: and what do we do with this professor in the state. it will not induce coma like unconsciousness. mr. wyrick: several effects it would reduce unconsciousness. that is something that nobody
agrees with. and induction of anesthesia is a commonly -- justice breyer: can i have the ask the same question. that is, as i read this record that you would remember what i say is a standard. you remember what i said of the district court findings that i believe that what this is about is whether that finding is clearly erroneous. why have or two sentences. the first sentence is from their expert. and he quote, when you could be unconscious, he means that this drug is an anti-anxiety drug like xanax and people use to go to sleep every night. it can render you unconscious. and not reacting to minor stimulus -- that is their
expert. but, when major stimulus such as the introduction of the two drugs that we are talking about here come into play, you are jolted into consciousness and you are quite aware and you wake up. if we stop there, you would lose. right? we stop there. mr. wyrick: if any of that were -- justice breyer: he pointed to two articles and base that had statement. and i will look at the two articles and seemed that he was basing the statement on medical articles and okay. we will have to look at the support for that. all right. let's look at the other side. your side says -- he says right here. he says it will put you into a coma. that is his point and the reasoning was that if you take enough of it, you will be dead. then he says, and this is essentially the extrapolation from a toxic effect.
by which he means, if you take a lot, you will be dead. but before you are dead, you will be in a coma. that is his reason. i did not find any other reasoning. now, we obviously are two -- lot of things kill you without putting you into a comb a such as the next two drugs. lots of things do. and he did not support anything that putting it into coma. it was just an extrapolation. that is what i want for to you focus on. if what i said is correct, i think there is no support in that record for his conclusion. if what i have said is incorrect there may be support. mr. wyrick: a couple of things.
first that would assume a deep coma like level of consciousness is the relevant question. they argue that court's cases in the constitution would require that. that is beyond a surgical plain of anesthesia to use in the operating room to remove one of the limbs. a coma is brain dead. justice ginsburg: would any doctor use this drug -- any doctor conducting a surgical procedure who doesn't want the patient to suffer pain, wants to induce this unconscious state -- would any doctor in the country give this drug to induce that coma like unconsciousness? mr. wyrick: it is routinely used to induce anesthesia, it is not commonly used anymore for the maintenance of the anesthesia for hours for surgeries. their source -- this is the saarri article, this is spelled saarri. and i am quoting.
it has been used to induce and maintain the general anesthesia. and the recovery period is approximately three times longer than propofol. the genuine use is the sole induction and maintenance agent for general anesthesia is exceptionally uncommon have has been replaced by propofol. for organizational and economic reasons, fast-track recovery has gained popularity. justice sotomayor: i have a real problem with whatever you are reading. i will have to go back to the article. i am substantially disturbed that in your brief that you made factual statements that were not supported by the cited sources and directly contradicting. i will give you just three small examples among many that i found it. nothing that i say or read to me will i believe frankly.
until i see it with my own eyes. youuntil i see it with my own eyes. the context. the three examples. on pages four and five of the brief, you cite the fda approved label. as holding that this drug can get you to mild sedation and to deep levels of sedation. virtually equivalent to the state of the general anesthesia, where the patient may require external support for vital functions. this quote was not on general use, but it came from the section of the fda label where it was saying that this drug's effects, when taken with other drugs that suppress the central
nervous system. this can happen. the that to me, is really -- there is no other central nervous system drug at play in the protocol. justice scalia: do you have an answer to that one? mr. wyrick: justice sotomayer. in the brief we explain that the fda label says that the effects of the drug depend upon three things. the rate of infusion. the maintenance, the rate, the dosage and the rate of infusion and whether it is others to see in us. justice sotomayor: you quoted this for the proposition that this could cause a fatality because of the depression -- it can produce general anesthesia. mr. wyrick: ja 217. their expert agrees it could cause a fatality.
justice sotomayor: sure. i he said that. with old people. you know, there have been 80 deaths from theraputic doses of this drug. this is almost like you saying because 80 people have died from the use of one aspirin. that means that if i give people 100 aspirins they are going to die. is just not logical. obviously, people die from anything that you give them it. that is why there are hospital fatalities in every procedure, but 80 among the millions given will and the drug do not die. my point is -- what the fda is saying that the general anesthesia will effect and when have you a central nervous drug. central nervous system drug. mr. wyrick: the fda has said no such thing -- justice sotomayor: they put it into that section. mr. wyrick: they described the potential affects. and they described. they said three things matter when you look at the affects. how much of the drug you are
getting the rate of which you are giving it. and given with another drug. their expert said the fda tested this. justice sotomayor: all right. the melkin study says that this is how it happens. it gave this drug in doses of .02 to .06 and what it showed is that .06 dose, that there was less effect than.02. and this suggests that there is a ceiling effect to the drug. that it is less potent as you go in higher doses. now you quoted for saying.
and you took up -- you quoted by saying that the melvin study for the position that studies on humans have found that the anesthetic effect increased with dosage and the estimates that 2 milligrams is enough for the full surgical anesthetic. what melvin actually said, after pointing out that the ceiling effect is shown by his study. he said but presuming that there was no ceiling effects extrapolation of the data suggests that such a dose would be sufficient. you took out that -- mr. wyrick: respectfully, what they were comparing is a dose of a different drug to the .6 per kilogram dose. they said that we would have expected it to have a greater effect than the other drug which is more poetant than the other drug. but there are two things going on. either there is a dose dependent relationship with the other drug or they said that there may be a ceiling effect here.
they hypothesize that there may be. and they say there is no extrapolating what we know about the drug that you would get that anesthesia. justice sotomayor: we are back to is there a ceiling effect? mr. wyrick: let's talk about the evidence. neither of their experts could say at what level a ceiling effect will occur. and it is not whether it is or is not a ceiling effect. their expert said all drugs have a ceiling effect at some point. what matters is that there is a ceiling effect that will kick in
before we get to the level where there they are unconscious and unaware of the pain that is the constitutionally relevant inquiry. and on this point, they presented the district court with two-pieces of evidence and the material data safety sheet that is in the brief that never even mentions the ceiling effect. justice sotomayor: it would be very different --justice kagan: it would be very different if the court had said, look we do do not think you presented enough evidence that it doesn't take in at this point. right? that is not what the court said. the theory that it did not have to concern itself with whether the ceiling effect had kicked in. that is the thing that you don't defend as well. that is what the court said. mr. wyrick: that is not how we read the district court's opinion. you recount the explanation of what the ceiling effect was. ja 77 or 78 and he said what ija 77 or 78 and he said what ever it may be, with respect to the anesthesia that occurs with the spinal cord level. justice kagan: and whatever it is, all we have to whery about is brain and not spinal court
and in the brain, there is no ceiling effect. that is just wrong. you know that is wrong. mr. wyrick: yeah. we know that a central nervous system depressant works throughout the central nervous system. so this is affecting the receptors that are located in the spinal court and in the brain. his point was, perhaps that the receptors may be fully saturated at the spinal cord level. and the brain level. and in his words we paralyzing the brain that the extent that the person is unconscious and unaware of the pain? and he thought that the evidence sufficient to conclude that there was. justice kagan: i think if we go back and read it, that it will show that what he was saying is that we just do not have to worry worry about the ceiling effect. because the brain level, the ceiling effect has no relevance. let me ask you another question. maybe this is one that we will agree on. maybe not. i am not sure. do you think that if we conclude that there is just a lot of uncertainty about this drug -- in other words, you may be right or miss konrad may be right . is just impossible to tell. given no studies on the drug.
we simply cannot know the answer to the questions. if that is the state of the world, do you think that this is the violation of the 8th amendment to use it? mr. wyrick: if there is a risk of serious pain that rises to intolerable. justice kagan: you are just repeating the standard. we just do not know. it might be substantial pain. it may not be. we can't quantify it at all. mr. wyrick: if what you are suggesting is shifting the burden to the state to show that there is some medical consensus that a drug in fact can do it at these doses -- justice kagan: i'm talking about a district court presented with evidence. just put yourself in the district judge. the evidence is -- who can tell? no one can tell. what is the district court going to do at this point. mr. wyrick: in the 9th circuit court. and temporary challenge to the
efficacy of lethal injection drugs vacated a temporary injunction granted by the lower courts to show that they will likely suffer from the harm. they said speculative evidence isn't enough. that is the burden that they bear. justice kagan: have i not found a place where i agree with you. that seems to be quite something that would be like something. people say that this potassium chloride is like being burned alive. we had talked about being burned at the stake, and everybody agrees that it is cruel and unusual punishment. suppose that we said, we are going to burn you at the stake. but before we do that, we are going to use an anesthetic of completely unknown properties and unknown effects. maybe you will not feel it. maybe you will. we can't tell. you think that would be ok? mr. wyrick: a petitioner in that case would have no problem satisfying the court.
showing that it is a substantial risk of objectively untolerable risk of severe pain. that threshold would be incredibly easy to make in the case. justice kagan: i am saying you do not know about the anesthesia. and maybe the anesthesia will cover all of that pain of being burned at the stake or maybe it will not. the court does not know. mr. wyrick: that isn't the world that we live in, and it's not the world this district court lived in. we know for a fact. this is the conceded facts. their experts say this dosage is going to be rendering the petitioners unconscious in no more than 60 to 90 seconds. we know that induction of anesthesia -- justice kagan: -- induction, but not maintenance. mr. wyrick: and maintenance is keeping it at the state for so many hours for surgery. justice kagan: or the time it takes for the potassium chloride to kill somebody.
mr. wyrick: it is commonly used for painful procedures like setting of a femoral iv. the example is a good example. and we have pointed out that the drug is regularly and routinely used for rapid sequence intubation. justice breyer: have experts saying that as i just said that this drug will not keep you sleep. when these two others are introduced, you will be jolted into consciousness. that is his testimony. i believe he supported that with medical articles. i will look to see. and if supported we have to look to the other side to see what was refuting. i agree with you that the ceiling effect is a big red herring here, when actually he said it would go against it was
that he said there is an extrapolation from his conclusion that a 500 milligrams could cause death. so if that much is likely to cause death, it certainly is likely to cause a coma. and a coma would prevent the person from pain. but his evidence for that was zero. we know that in fact, lots of drugs can kill people without putting them into a coma so we will look to see what he thinks is if this kills you will first put you into a coma. and when i looked, we found zero. that is my question. what can you point me to that will show that what i think is the key reputation of their expert rests upon zero? that is what i'm asking you.
that is what i have tried to ask, in articulately, perhaps. now it is more articulate. [laughter] mr. wyrick: again, i have to whether it will create a coma or make this point -- whether it will create a coma or not is not the contusionly relevant question. based on how the nervous system depressant works. justice breyer: i think what he was driving at is that you were in a state such that you would feel no pain. and the reason he thought you were in that state was because 500 mg will probably kill you. and if it is going to kill you it must, of course -- at least first, put you in that state. so i'm asking the same question but i'm using the words that state in substitution for the word coma. mr. wyrick: because of how a central nervous system depression works -- justice breyer: i want to know
where in the record he provides support for that statement, that state proceeds the death. caused by this drug. mr. wyrick: first he described the action by which the drug works as a central nervous system depressant. by causing death -- it works by paralyzing the brain to such an extent that you your respiratory drive is knocked out. justice sotomayor: that is the clear error here. it starts right there, because the reason evans thought that is -- that it paralyzed the brain is because he thought it worked on the spinal cord. nobody argues that it works on the spinal cord. this is not a central nervous system drug. that is the barbiturates. this works very differently than barbiturates. mr. wyrick: this is a central
nervous system depressant, just like a barbiturates. justice sotomayor: it has no pain relieving qualities. mr. wyrick: they are both central nervous system depressants. the barbiturates have no pain relieving qualities as well. justice sotomayor: i don't know where you are getting -- justice breyer said -- the proof of that. mr. wyrick: it is a conceded fact on this record that a 500 milligram dose will render them unconscious in a matter of 60 to 90 seconds. that means that the central is working to paralyze their nervous system depressant brain and to render them unconscious. it is a conceded fact -- justice sotomayor: they will be unconscious but that will not tell me that you are not feeling pain or the knoxous stimulant like being burned alive will not cause pain. look at what happens with the integrations.
they paralyze your throat. they give you a drug. but they are paralyzing your throat. that has his own anesthetic effect and pain relief. so what you are arguing is very different from what is happening here. they are putting a chemical in the inside of you that it is burning you to death. that is the most noxious stimuli i can think of. mr. wyrick: respectfully, you have that backward. they give the paralytic. the second drug here, first, to keep the patient for moving. the same paralytic these petitioners say cause the unconstitutional agonizing , suffering. rapid sequence intubation is done routinely giving patients a small dose of this and then paralyzing them with the paralytic. justice sotomayor: they paralyze them also with the local throat
anesthetic. i read it. mr. wyrick: this is a first-line choice. justice sotomayor: it's a first-line on a lot of things. but it doesn't keep you in anesthetic stage. it doesn't keep you during the procedure. mr. wyrick: it can. look at the article cited by their experts which describe the use of the anesthetic. another thing i want to point out is the 16 professors brief. this is the ceiling effect in a nutshell. it shows that a benzodiazepine gets you right to a surgical plane of anesthesia but not to beyond. first we would say a surgical plane of anesthesia is sufficient. but go to the source. the source that they cite is the brenner textbook, and read what it actually says with respect to this chart. here is what it says. benzodiazepine exhibit a ceiling effect which preclude severe cns
depression after oral administration of the drug. intervention is administration can produce anesthesia. that is what the text actually says. that is what the article actually says. you can produce anesthesia with these drugs. the fact they are not commonly used a general anesthetic's is because we have better choices not because the drug is incapable of producing an effect. remember here is where they , started. they said because of the ceiling effect, this drug is incapable of producing a coma. we said someone forgot to tell the fda this, because the warning is right there in the fda label about coma. they retreated now saying it can't get them reliably to a -- produce a coma. if it can get someone to a coma where's the ceiling effect? , is there a basic pharmacological principle that prevents the drug from ever getting to a coma were not? -- or not? we establish there is not.
we ask you to look at the cases out of florida. the anesthesiologist who was the anesthesiologist for the inmate. justice sotomayor: can i come out of this argument, because you presented a lot of things to us that wasn't before either the district court or the court of appeals. i believe that your experts didn't prove their point at all and that they do showed enough -- when we let the district court below sort out whether it still holds to his opinion based on the plethora of materials you have given us. mr. wyrick: two quick responses. they didn't meet their burden that it is sure were likely on the record they presented, second, we put plenty of rebuttal evidence on -- enough to support the district court's
finding. there is no clear error here. the two court rule applies. justice roberts: to an extent that is unusual, you have been listening rather than talking. i'm happy to give you a net to five minutes if you would like. hopefully we will have a chance to care what you have to say. mr. wyrick: i told you about the first source which was the material safety data sheet that says nothing about a ceiling effect. nothing in the reply brief. the second was a study about rats. we pointed out again -- there is no mention of the ceiling effect. no response in the reply brief. that is the evidence they put before the district court on what they said clearly demonstrates there is a ceiling effect. after the fact, the court of appeals experts demonstrated -- cited two more sources. he cited the dodd study where they took five dogs and gave
been a big dose and clamped their tales and that is there to conclude -- the effect of the drug again to slow at a certain point and there may be a ceiling effect because the effects of the drug are beginning to slow but that study concluded that if you take the result, once you get to about 30 milligrams per kilogram for a dog, you would achieve full surgical anesthesia. there are other expert cited the sari article for the proposition there is a ceiling effect. then it goes on to say that in fact, this drug has been used for general anesthesia as the sole drug and the use was discontinued because a better choice came along. that was their record case for a ceiling effect. when they stand up and say they clearly demonstrated there was
in fact a ceiling effect, they are just wrong. the other study that the doctor cited in his after the fact declaration that was never submitted to the district court was the green glass study. we read the study. .3 milligrams per kilogram were never given to the patients. it was about what happens if you have .1 milligram per kilogram of varying doses were given. we pointed that out. nothing in the reply. their evidence is indefensible. you go and read the sources and they just don't say what he said they say. paradoxical effects have fallen out of the case. we have pointed out it is only relevant if someone is not unconscious. they just can't avoid the fact the district court made this factual finding and said it is a virtual certainty. they cannot establish a
substantial probability. thank you. >> ms. conrad, why don't you take up to eight minutes? >> justice kagan, i want to address your hypothetical, in this case, if the risk from using the drug, if petitioners are correct. it will manifest itself in unconstitutional pain and suffering. my friend admitted that. if, in fact, a person is burned alive and did not have appropriate anesthesia it would be unconstitutional. >> my question was if the person was burned alive and we did not know if they had appropriate anesthesia, would that be unconstitutional? >> it would be. the district court below found that there is a greater risk of using the drug but found it was
unquantifiable. if that risk manifests itself there will be a constitutionally intolerable execution. the drug formula issue was using sodium benzo. justice alito: if they rendered a person completely unconscious and then burned alive, would that be cruel and unusual? >> i think the problem is not rendering someone unconscious. the problem is is it necessary to ensure the person maintains a -- the anesthesia level.
>> it is being bruned -- being burned alive from the inside. >> that is exactly what it is, justice kagan. >> you think there are certain phases in which burning someone at the stake would be consistent with the 8th amendment? you are not certain about that? >> the founders say burning at the stake is unconstitutional. it creates an amendment violation. in your hypothetical if there was a way to ensure that was dive in a humane way, i do not think that any state would go to try to do that because we -- >> you think there are circumstances that burning alive would not be a violation of the eighth amendment? >> potassium chloride is burning somebody alive. it is just doing it through the use of a drug. >> which is what we have here. and what we found here is that
there is a risk. that they cannot quantify. that risk violates the eighth amendment. with this court needs to understand is that the barbiturate functions differently. in bays and lambert again there was the use of a barbiturate known to produce a deep coma-like unconsciousness. the reason that is important, it does not matter that they don't have analgesic properties because we know that science and medicine and tells us that they will reliably induce a deep coma-like unconsciousness. the cited study in exhibit two shows the emacs curve explained his testimony. the state expert has no explanation for support for the testimony that he presented when he testified. he did not have data to cite.
he was incorrect. he made a mathematical error. what this court needs to understand is that giving the drug, even if it could cause a toxic effect, it will not protect against the unconstitutional pain and suffering from the second and third drug. >> thank you, counsel. . the case is submittedl . >> the justices ruling 5-4 the beginning must consider costs before deciding whether regulation is appropriate. they decided arizona can use the commission to draft enteral congressional districts. we will hear more about that in a few minutes. on the next washington journal the natural resources defense council on the supreme court decision over returning the
air-quality rules. the justices said the epa must consider costs before deciding to issue it. ilya somin looks at a 10-year-old supreme court ruling that allows the government is these private property. a professor on how the memory of the civil war is affecting the current debate over the confederate battle front. washington journal every morning at 7 a.m. eastern on c-span. you can join the conversation on phone, facebook or twitter. >> c-span gives you the best access the congress. live coverage of the u.s. house, congressional hearings and news conferences -- bringing you a events that shape public policy in every morning, washington journal is live with elected officials, policymakers and journalists and your comments.
c-span, created by america's cable company and brought to you as a public service by your local cable or satellite provider. >> a story in the national journal says the supreme court avoided a congressional shape up of holding the constitutionality of independent redistricting instead of striking down the congressional maps in arizona and possibly other states. the court rejected an argument by the state republican legislators that the constitution only gives the authority to draw legislative and congressional lines through state legislatures. the oral argument that led to the decision right now. it is about one hour. >> we will hear arguments first this morning, the arizona state legislature versus the arizona independent redistricting commission.
>> mr. chief justice and may it please the court, proposition 106 permanently depressed the state legislature of its authority to prescribe congressional districts and re-delegates that authority to an unelected and unaccountable commission. the elections clause of the constitution clearly vests that authority not only in the states but in the legislatures thereof. thus, this avalid effort to really elegant -- read delegate that authority to an unelected commission is repugnant to the constitution vesting of that authority to the legislatures of the state. >> it's all right for the state redistricting. arizona being able to use this commission for the state representation. mr. clemens: it only applies to the congressional redistricting.
that means that, if these commissions are as effective as the other side says, then we would have nonpartisan districts that would elect the state houses and the state senate. then the nonpartisan gerrymandered perfectly representative bodies would take care of congressional districting. justice sotomayor: are you suggesting that the lack of legislative control of this issue only or are you saying that we have to overturn gillibrand and smiley? clement: we don't have to overturn gillibrand and smiley. the court was in fact that the legislature would do -- that it means than what it means now which is the representative body of the people. justice sotomayor: we made it clear that we are defining legislature in this clause as many legislative process. clement: i'm especially
disagree. one side was saying the legislature means the legislative process in the state whatever that is. the other side said, no, he means the representative body of the people. this court said, action, we don't have to decide that dispute but we certainly agree that it means the representative body of the people just as we said five years earlier. what the court said is, first, the delegate is clearly the legislature, the representative body of the people. but that is the second question. what sort of authority is delegated to the state legislatures. the authority is a lawmaking authority. that means that the state legislature has to engage in lawmaking subject to -- sotomayor: this makes no sense to me. i think it is either or. if the legislature has the power, how can the governor veto
it? how can a popular referendum veto it? either they have the power or they don't. the constitution says the people hold the power and they can choose a commission or however else they want to do it. isn't that the legislative process? clement: no, it's not -- i disagree with you, justice sotomayor, but that is not particularly important. what they say is that the delegee remains the same. they say the function differs. so when a state legislature it tells you it is going to ratify something, there is no pressure or agency of anybody else in a process. but the courts is that is a delegation of lawmaking authority. of course the legislature does its lawmaking pursuant to the ordinary rules. and if they provide for a gubernatorial veto, if they say it has to spend 30 days in committee, then those rules
apply to the elections clause just as they do to other lawmaking. but it's a completely different matter to say we are going to cut the state legislature entirely and revisit the framers decision to delegate this important responsibility to the state legislatures and we will redelegate it to a completely different body, a body that has the one feature that a representative body does not have. ginsberg: can congress substitute its commission for the state legislature? clement: i don't think that congress would say that, at the state level, we are going to redelegate this to the state commissions or two independent commissions. if congress wants to do it at
the federal level and set up a federal commission, i think that would be a very different issue. obviously, congress has power under a separate subclause. ginsberg: if congress does the same thing that arizona has done in saying that that is the way federal elections will be held. clement: i don't think they can simply bless what arizona has done. i think that would undermine the decisions the framers had made in the first clause. we are actually going to take those commission districts and make them our own and impose them. kennedy: if it is the latter, it can only be a commission. clement: what we object to is the permanent resting of authority from the state legislature -- justice kennedy: there is a law that says a portion of the commission must submit its proposal to the legislature and the legislature has 30 days and only can overturn it by a two thirds vote.
mr. clement: i think that would be a harder case. the question i think you would ask is does that residual authority from the state legislature amount to the authority prescribed districts? i think you can decided either way. you can say they are not cut outcome lately. they had -- completely -- they cannot cut it out completely. they have residual authority. what you can do under smiley and hildebrandt is apply ordinary rules for legislation to the state legislatures. but what you can't do is come up with separate roles that apply to only congressional redistricting to make it harder for the state legislature to act. kennedy: your statement partly answers questions about voter id
laws that have provisions. you say those are ok because the legislature is not completely cut out? clement: i think it might depend on the details a little bit. justice kagan: i thought the legislature was cut out in most of these things. 2011 in mississippi voter id requirements. 2007, i guess voting by mail. 1962, arkansas, voting by voting machines. these things were done by the legislative process completely cut out. would those be unconstitutionaly? ? there are zillions of these laws. mr. clement: if you look at the various laws that are put in the appellees appendix, not one of those constitutional provisions purports to on its face three delegate authority away from -- on its face re-delegate authority away from state legislature.
roughly half, 27, delegate authority to implement them. if you want to look at the north carolina provision on page 27 -- kagan: all they are is laws passed not through the legislative process. mr. clement: exactly. we don't think that is the defect here. justice kagan: i would think that if your primary argument is legislature means legislature, there has to be legislative control, in none of these laws there is no legislative control. there is no legislative participation at all. mr. clement: we do stingers to situations. we could say the problem with proposition 106 was that it was done by initiative and not by legislature. we would have the same objections here if this were imposed by a gubernatorial edict.
this court has already said that it's ok for a judicial body like a state court, to do redistricting on a one-off basis. justice kagan: how do you make that consistent with the textual argument that you are making? the argument you are making is that legislature is legislature. there is no way around that. but now there are these many many laws throughout the united states in which the rules are not being made by a legislature and that is perfectly ok because the legislature isn't involved at all. mr. clement: it's not the problem that someone got into the legislature's lane. the problem is that, once they got into that lane, they decided to rest the legislature from the process on a permanent basis. i would invoke this court's case that dealt with an analogous
clause that gives the state legislatures the authority to prescribe rules for presidential electors. this court took a practical view of the matter. if the state legislature lets other parts of the state do something, we are not going to jump in. we can think of those as delegation of authority. but it protects the legislature from other parts of the state coming in and permanently resting that authority. justice kagan: i thought that our separation of powers jurisprudence abdication is as consequential as aggrandizement. if there is a problem, the problem continues to exist irrespective of whether the legislature protests are not.
mr. clement: nothing would prevent a state legislature from delegating its authority to one of these commissions. that is not the problem. the problem is that the law either by initiative or gubernatorial edict would be the same, from without to say that the framers thought it would be great. justice kennedy: suppose the legislature proposed the referendum. mr. clement: i don't think that would make a difference in my own view. justice kennedy: that is a case where the legislature would make the decision. mr. clement: that is not the situation we are dealing with here. they proposed the authority to not get it back. justice kennedy: it is not completely remote because the
legislature in arizona can seek to overturn what the commission does by putting its own referendum before the voters saying, please voters, change this proposal -- change this districting plan. i suppose the legislature can do that. it has the power to submit a referendum or initiative -- i guess a referendum to the arizona -- mr. clement: i think they have the power to do an initiative. i don't think they have the power to do a referendum. one of the ironies is the other side i should talk about the power of the people. i think all the legislature could do is what any citizen could do, which is to propose an alternative map by initiative process. but whatever that is, that is not the primary power to prescribe congressional districts or to make election regulations. that is what the state
-- that puts the state legislature on the same plane as the people. justice kennedy: if the legislature itself establish this commission, would it not be the same? mr. clement: i would say that is ok because that is a delegation of authority. you may disagree with me, but i think it is consistent with what this court said in the mcpherson case about the authority of the state legislature to prescribe rules for electors. they can delegate that to some commission. but if they want to take the authority back, as they did in mcpherson, you bet they can do that. and if the state tries to stop them from doing that, that is a constitutional problem. justice kagan: the independent commission has veto power on the state's redistricting. in other words, the state can do redistricting and then submit it to the independent commission.
the independent commission will say, no, go back and do it again. mr. clement: i guess it depends a little bit on the details of how that works and who's got the ultimate last say in the matter. justice kagan: they have the veto, the independent commission. mr. clement: can it be overridden? justice kagan: does it matter? mr. clement: i think it does. it would give the legislature a lot more authority than arizona is allowed here. the principle that would allow you to decide that case is to ask yourself the question of whether or not it allows the state legislature to prescribe congressional districts. which is why it is a hard case. justice kagan: there is a veto at the end of this. mr. clement: if you think it doesn't, then you should decide that case in the favor of the state legislature.
justice kagan: this is what we are going to have to do for every time they set up some process further -- for where there is some independent commission involvement. what we have to ask is what exactly? mr. clement: whether or not it is consistent with the constitution -- justice kagan: tell me exactly how we are going to decide all these cases in which an advisory commission plays some role but -- not just some role, but a very serious role and a little piece left of the legislature? mr. clement: i don't think it will be that hard. let's look at commissions that exist in the world. we have some that are purely advisory. there's nothing that suggests they are constitutionally problematic. others are backup commissions. if there is a stalemate, a backup commission comes in.
justice kagan: what if the commission says we will give you two maps in the legislature has to pick one and only one? mr. clement: i would say that's probably unconstitutional. obviously -- justice sotomayor: why is that constitutional and an impasse of the legislature and leaving it to a third party who is not the legislation will -- not the legislature, why is that constitutional? mr. clement: if the legislature has the primary authority and they can't get it done, we know as a matter of fact that some body else will provide that rule. if the legislature as a stalemate, what happens in the real world, you cannot use the existing map because they violate the one person one vote is also the state court comes in. justice sotomayor: so they will bypass 2ac altogether.
mr. clement: everybody wants to because there is a default rule. justice sotomayor: i know you will say it is a constitutional requirement, but if i read gillibrand and smiley differently to say that what the election clause means is the legislative process, isn't that just simple? we don't have to worry about how the state's experiment, what they do in their own self-governance. why is that of federal interest? mr. clement: it is of federal interest because the framers fought hard and long about this justice sotomayor: no, they didn't. if you look at the federalist papers, there is not a whole lot on this particular clause.
mr. clement: part of the reason there is less discussion of the first sub clause is that it seemed so remarkably obvious to the framers that, if this was to be done at the state level by anyone, it would be done by the representative body of the people. it's not like they didn't know about popular lawmaking. it's not like they didn't have the conception of an initiative. they simply said we like representative government -- justice ginsburg: [indiscernible] at the time of the founding, the initiative -- by the legislatures. mr. clement: the referendum is as we came to know them in the late 19th century, not the time of the framing. but direct democracy was. the framers, when they
formulated article 5 and had alternative mechanisms at the federal congress could choose to provide for ratification, they gave the choice, state legislatures are the people in convention. the framers understood the difference between direct democracy and representative democracy and they made a conscious choice. it is hard to argue they are creating a house elected by the people and a senate appointed by the state legislatures. when they get to the voter qualification clause, they say the people will vote for the congress. they are the same people that get to vote with the most numerous body in the state house. at various points, the framers obviously mistreated -- justice kagan: that suggests a pure rule. you have made many exceptions to
that over the course of the last 20 minutes. you said as to anything that is not redistricting, it can be done by referendum or initiative without any legislative process whatsoever. you said all these kinds of different schemes about the interaction between a legislature and advisory commission are all going to be have to be reviewed on a case by case to be determined whether the legislature has primary control. and when you get through all of that, the sort of purity of the originalist argument that a legislature means a legislature, we are miles away from that, aren't we? mr. clement: i don't believe that, justice kagan. smiley said that of course the delegee is the state legislature. the questions of whether the
contraints -- there may be some hard questions but there is no hard question here. there is no hypotheticals. if the election clause means anything, it means you can't completely cut out of the process the state legislature entirely on a permanent basis. justice kennedy: suppose the challenge the one voter/one vote rule and it goes to a federal court and it goes a year before the election, does the state court have an obligation under the constitution to simply pass on the validity or invalidity of the plan? and if it doesn't, can it has a back to the legislature? mr. clement: the -- first of all, there should be a preference for the state court over the federal courts.
if there is time for the legislature to go back and draw a new map -- justice kennedy: you think that is constitutionally required? mr. clement: i think it is constitutionally required. if it is not, it is surely prudent. the reason it's prudent is the recognition of this court time and time again redistricting -- kennedy: we are talking about what is required. if we rule in your favor, we will have to tell every court involved in a redistricting litigation that they will have to submit it to legislature. even if the court made its own plan for one election, it would have to submit it back to the legislature for the next eight years. clement: for the most part, that is what this court has already said. weiser said that, in the initial challenge phase, if there is time, you let the legislature do it.
this court has also said -- kennedy: you mean a redistricting plan approved by a court has to have a fixed deadline? a legislature can pass a cob forming plan but the court plan stays in place until it does. that's what you're talking about here. clement: it is a displacement in there are two different circumstances. one is when the redistricting plan is challenged very early and there's time for the legislature to take a second crack at a constitutionally compliant plan. i read white v.wiser to say if there is time, allow the state legislature to do it because it is their primary task. the second question is when there is not time and there is a judicial plan. that's say the first cycle of elections -- let's say the first cycle of elections takes place under the first plan. i read the court's suggestion
as, there is nothing that prevents the state legislature from going in and redistricting. this court rejected the idea that you get one shot at this and you are done for the whole census. there's at least one state, colorado, that said if you get into that situation, you have to live with the judicial plan until the next census but the legislature still kicks in and has the primary role. what i like to think is that colorado has done this inconsistent with the elections clause. but whatever you decide that issue, your position of deciding our argument here doesn't fore ordain the answer to that question. i am very happy to address the hypotheticals but it's worth remembering that this is about the most extreme case that you are going to have. if the election clause means anything at all in terms of its delegation of responsibility to the state legislature, we may talk about taking part of it away but not the entire thing away on a permanent racist and -- basis and give it to a
commission whose defining feature is that it is not representative. if i may reserve the balance of my time. >> thank you, counsel. feigin: thank you mr. chief justice, i would like to make one point. on standing, this is an unusual lawsuit in which the state legislature is asking the federal accord -- federal court for assurance for a law that has -- that it has not even said it will pass. the law will be enforced by a state official who hasn't denied she would enforce it. we don't normally conceive of legislatures as having an
interest in the enforcement of laws they might pass and there's nothing in the arizona constitution or the arizona courts -- sotomayor: isn't this about the diminishment of the power to legislature? not of a particular plan or of a particular law and plan? this is the removal of power from the legislature. feigin: i don't think there is anything that is as a practical matter that prevents the legislature from passing a bill that would redistrict the state, which they believe in good faith they can do under the view of the elections clause. there are numerous cases in which the arizona legislature has passed laws that conflicted -- conflicts with a popular initiative or with the arizona constitution and arizona courts do treat them as laws and the consequence of their passage, their own constitutionality or conflict is that they are not enforceable so their enforceable
is enjoined. roberts: so you want the legislature to pass a law that is not enforceable? and suggest they don't have standing to challenge what the referendum has done until they go through that process? feigin: i think the plaintiff had to allege and lujan against the defenders of wildlife -- the second one -- plaintiff had to allege that they were going to buy a plane ticket to see the not crocodile -- the nile crocodile. in order to complain about the nile crocodile. the legislateture said it would put do everything in its power to bring this to a head. roberts: did they not just have to allege that they plan to exercise what is in their normal authority, to engage in the redistricting? despite the fact that they're litigating it implies that they have some interest in doing that. feigin: i think that can be true of any legislation. it may be difficult to call us
on some particular redistricting plan. but that is no reason to excuse them the space from the normal standing requirements. let's assume they pass their own redistricting plan and the secretary said we are going what the commission because that is what state law requires us to do. i still don't think they'd have standing here because again legislatures don't have an interest in the enforcement of the laws they pass as a general matter. sotomayor: they have an interest in the constitutional powers that they pass. fei fwmbings in: let me give you an example. let's suppose congress passed a law and there were a constitutional challenge to that law. i don't think anybody would believe that the state legislature acting in its own name would be the proper party to bring that constitutional challenge on the theory that its police powers have been infringed on the preemptive federal statute. although this case arises under the elections clause, the elections clause doesn't give
the state anymore lawmaking power than it would ordinarily have. ginsberg: are you saying, if anyone has standing as an institution -- feigin: i think there would be people more directly affected, if they were in one district versus another, or if there were a voting rights challenge to bring that claim -- kennedy: is it part of our jurisprudence that, if it is likely that another person is affected, that that goes into the balance and we say legislature do not have standing because other people out there are more directly affected? do we say that? feigin: quite the opposite. even if it means that no one would have standing, that does not in that is reason to find standing. we think the legislature doesn't have standing to sue here regardless of whether anyone
else does. i want to make a couple of points on the statutory section 2ac. i think the statutory issue is easy because the court decided all the relevant issues in ohio against gillibrand and -- against hilldebrand and constructed word for word the language of the 1911 act. roberts: it's meant to apply when the state has not redistricted under its law. here, the question is whether the law is valid. feigin: just to take your question on, i think the question of the preparatory clause is best understood in context. a neighbor you -- a neighboring statute states that states will be divided into districts. that makes it a question of federal statutory law how that redistricting is met and how it is met. that's the question section 2s a
ac answers. it says one of these will apply until the state is redistricted by the law thereof. i think the necessary and logical corollary of that is once the state is redistricted provided by the law thereof, those are the districts that are going to be used. it's hard to expect congress would have expected anything different. in fact, given they were legislating in light of hildenbrand, i can't imagine anything different. hildebrand, in construing nearly the identical language as the 2011 at destiny 1911 act, it had the express purpose to provide democracy procedures -- alito: it would be one thing if congress passed a law that said a state may apportion congressional districts in any manner conditioned with the laws of the state. but that is not what this statute says. this statute may have been
enacted on the assumption the that would be constitutional. but it is not the exercise of congressional authority implementing that. it is just an assumption in which the statute is otherwise completely irrelevant to this case may have been enacted. feigin: hildebrandt is interpreting the same statutory language in the 1911 act, that it has the express purses to provide the democracy procedures. then it went on to say that congress did have the power to do it. sotomayor: i guess they bottom line question is, let's assume 2ac said something totally different, we remove redistricting from the legislature and we require every state to pass redistricting by referendum. is your position that congress has the power to override the constitution?
feigin: i don't think that would exactly be overwriting the constitution. if that was the law, we might defend it. but we won't go that far this case for two reasons. here, congress is not try to enforce upon the state a process that the state doesn't want. congress is trying to recognize that these legislature requirement of redistricting is done under its own procedures. i would think that the power of congress should be at its apex when both commerce and the state -- congress and the state want to do the same thing. the second thing i would say is, in this circumstance -- scalia: no, no, no, not if the same thing violates the state constitution. just because congress agrees with the state they can do it, does that make it constitutional? the objection here is a constitutional objection. feigin: i do believe this was in the authority of congress. my friend just said that, if the
state legislature wanted to, the state legislature could have given this power to the commission. under the second sub clause of the elections clause, congress can do anything that a state legislature can do, which means congress can also give this power to the commission. the only difference between my friend's scenario and mine is that in my friend's scenario, the state legislature would retain the authority to override what the commission has done. but that is only in consequence of state legislation over federal legislation. it's not something that a state legislature can override and it is a consequence of congress superseding authority and congruent authority under the subclaus of the elections clause. scalia: the second clause is being used to revise the first clause. the second clause can -- congress can do something on its
own. but can congress use the second clause to revise what the first clause says? feigin: one thing i want to emphasize is i think the court settle this issue in hildebrandt when it said it was simply doing something that the constitution expressly gave the right to do. i don't think the right way to think about this is congress using the second subclause to rewrite the first subclause. it's using it to do something the state legislature could have done. thank you. >> thank you, counsel. >> mr. waxman. mr. waxman: mr. chief justice and may it please the court, if a suit -- we have before us a
suit that usurps power, both raises a claim that the framers would have been aston herbed to consider that federal district courts have jurisdiction to adjudicate and more fundamentally is misconceived. arizona defines its legislature in its constitution to include both the people and two representative bodies. the appellant's argument hinges on the premise that in drafting the elections clause, the framers intended to ignore a state's definition of its own legislature. it is deeply inconsistent with -- scalia: whatever the state calls a legislature suffices under a federal constitution, is that right? suppose the state says the courts are the legislature will that suffice under the federal constitution? waxman: by using the word legislature in connection with the accepted definition of that
term in the founding generation. we cited both noah webster and samuel johnson's dictionaries and they were in accord but it was understood that legislature meant the bdy that makes the law. scalia: give me one provision of the constitution that uses the term legislature that clearly was not meant to apply to the body of representatives of the people that makes the laws. one provision of the constitution that clearly has your meaning. i looked through them all. i can't find acing the one. -- a single one. waxman: the one that most clearly has our meaning which accords with understanding is the one that this court has said in hildebrandt and in smiley best scalia: just name only one.
waxman: this may not be the only one. kennedy: until 1913, for close to 100 year, many states wanted to have direct election of the senators. they had all sorts of proposals primaries and -- not one state displaced the legislature. it took the 17th amendment to do that. waxman: that's correct. kennedy: that history works very much against you. the word legislature is not in the constitution. it was taken out by the 17th amendment. the senators shall be chosen by the legislature. there was no suggestion that this could be displaced. waxman: there is no question that this court has explained repeatedly, first in smith versus hawk which distinguished hildebrand and the legislative power addressed in article
section 1 from the election of senators in article 1 section 3 and again in smiley that made clear that, just as this court reiterated just last week in yeats, that the term may differ depending on the function the term is serving. kennedy: you are saying that the legislature in the now repealed section, choosing senators means something different than what it means in the following section. waxman: as this court explained in smith versus hawk, which was decided, which was in article 5 meaning, in smith versus hawk, this court said, in article 1 section 3, election of senators by the legislature, and in article 5, the ratification power.
what was at issue was the power to elect and the power to ratify that specifically comported with the elected representative body. and it used those as examples where often, justice kennedy, often the term legislature in the constitution has that meaning. but smith goes on and distinguishes hildebrand on precisely the grounds we are urging, that what was at issue in hildebrand under the elections clause is not a particular body, a brick-and-mortar legislature necessarily. it is the legislative power of the state.
alito: hilled brand is very help -- hildebrand is very helpful to you, but back to the question is there any other provision where legislature means anything other than the conventional meaning? how about applying for a constitutional convention? calling on the president to send in troops to suppress the mystic violence? creating a new state out of part of the state of arizona, for example? all of those provisions will use the term legislature. does it mean anything other than the conventional meaning of legislature? feigin: i don't know the answer to that question. alito: do you think it might? feigin: this court has never said that it doesn't.
it never said that it does. it has focused a lot of attention on three particular uses of the word legislature in the constitution. the article 5 ratification power, the former article 1 section 3 power to relax senator -- two elect senators in the legislative body, and the article 1 section 4 power to make the laws in the provision that is at issue here. i think it is particularly important. i want to get to the language of smiley which my friend embraces. breyer: i would like you to because as i read it, they don't help you very much. a particular statute passed in 1911 helps the government with its statutory argument because a different statute uses similar words. we don't know if it was with the same intent. smiley talks about a sitting legislature and asks whether its exercise of map-drawing power is a legislative exercise or say more like an impeachment exercise. it doesn't talk about what's at issue here, where you have people outside that building
making the judicial, making the legislative decision. so i didn't see those two cases as helping you that much. please argue to the contrary. but the open question here is when legislative power over time expands from a group of people sitting in the state capital to those people plus a referendum. and there i don't find much help in the case is one way or the other. feigin: justice breyer, i think that hildebrand, smiley, hawk, and also this court's case decided a few months after smiley and was block quoted last week in the opinion in yates, the atlantic cleaners and dier case all support the meaning of the word legislature that we advocate and that was in fact
the consensus definition of legislature. i agree with you -- scalia: a consensus definition that you can't give us a single place in the constitution where it was clearly used. i don't think it was a consensus definition at all. you plucked that out of a couple of dictionaries. breyer: the dictionary can be used as to determine how they word is used. legislature is the power that legislates. we don't use that word that way much anymore, power. but the power of the legislates, the power that legislates in arizona is the people in the capital plus the referendum. feigin: one thing is for sure,
-- waxman: one thing's for sure, if there was any other definition, but the framers on recent term, if i may, charles -- own use of the term if i may. charles pickney, these are on page 39 and 40 in our brief, charles pickney who wanted to do away with the second part of the clause that gave congress any power because he thought it was an impairment on the states' rights said, quote, that america is a republic where the people at large either collectively or by representation form the legislature. madison made clear in discussing the constitution that, when he referred to "the legislatures of the state," he meant the existing authorities in the state that comprise the legislative branch of government. james wilson repeatedly interspersed legislature, state, and the people acting --
scalia: let's say the legislature means the body we normally can think of as the legislature. however, at the time there was no such thing as the referendum or the initiative. so when the dictionaries refer to the power that makes laws, it was always a legislature. it was never the people at large because there was no such thing as the referendum. now that there is a such thing what about saying, ok, legislature means what everybody knows a legislature is plus the full citizenry, which is a level higher of democracy. but what we have here is not a level higher of democracy. it is giving this power to an unelected body of five people.
as it is constituted here, two of them are elected or selected by the majority party and two selected by the minority party. what if they decided that all four would be selected by the majority party? waxman: any delegation question -- the issue in this case is what does legislature mean. my friend concedes that whatever the legislature is, it can delegate its authority. so the delegation questions, well, i will endorse whatever i believe my friend would say because the arizona legislature has negative -- has delegated all manner of time, place and manner of regulations to a single person of the secretary
of state, an executive officer, and the individual counties that set the precinct, places, the places where you can vote and register, etc. so the question is what is the legislature. if your question is, well, now we know there is something called an initiative -- of course, we knew this 120 years ago when the first states started reserving in their constitution legislative power to the people by initiative. but to echo something that justice kagan reverted to in the earlier argument there are -- we're talking here about a construction of the word legislature as to all time, place, or manner regulation. roberts: why doesn't your interpretation make the words, by the legislature thereof,
highly superflouse. why didn't they just say the rules would be prescribed by each state? waxman: as the court explained in smiley, what the framers wanted was it to be done by a legislation. it wanted a "complete code of holding congressional elections to be acted." roberts: i understood your argument to be, if they exercise legislative power, it satisfies. so if you had, for example, a governor doing it, it would be pursuant to a delegation either from the people or from the legislature. either way, nothing happens until there is an exercise of lawmaking power by the state. it should have been sufficient for the drafters of the institution to simpry -- simply say it would be drafted by each state. whether they do it by referendum or legislateture or by committee, whatever.
to say by the legislature is totally superfluous. waxman: it is in the power of each state that makes the laws. as to justice scalia's hypothetical, could they dell gate it to the chair or just let one party choose, as justice ka fwmbings an's opinion pointed out, there might be other problems arising from that from either the first or 14th amendment. but i believe that mr. clement would agree on rebuttal that if the legislature, whatever the legislature means, if the legislature decided, look, we are going to delegate this responsibility to the governor, that would be a constitutional delegation because it would have been a decision made by the law making body of the state. if i could just make one point and then address justice breyer's question about smiley,
hildebrand and hawk. it would be deeply inconsistent with the enterprise in philadelphia to harbor and to effectuate the notion that our framers intended to set aside both a cornerstone principle of federalism and their aim to bind the people as closely as possible to the national house of representatives. yes, it is true that that related to the second part giving congress authority. that is because no one questioned the fundamental principles that the sovereign states could choose to allocate their legislative power as they wanted. if there is any suggestion, the anti-federalists would be screaming bloody murder that the states could not do so. smiley specifically said that --
i am quoting from page 367 -- as the authority is confirmed for the purpose of making laws for the state, it follows in the absence of an indication of a contrary intent that the exercise of the authority must be in accordance with the method the state has chosen as prescribed for legislated enactments. ginsberg: what he has addicted to his taking the legislature out of the picture entirely. waxman: yes, justice ginsburg. we concede that in neither case was the power at issue. that distinction was never made by the court until smiley. and smiley says, we find no suggestion in the federal constitutional provision of an