tv Politics Public Policy Today CSPAN March 1, 2013 8:00pm-10:30pm EST
caller: i think the government should be shut down and reorganize. host: thank you for all your calls this evening. more tomorrow on washington journal at 7:00 a.m. eastern. some time before midnight, president obama will sign the executive order implementing those $85 billion in spending cuts for this year 2013. here is president had the say to reporters following the meeting at the white house this morning. >> good morning, everybody. as you know, i just met with leaders of both parties to discuss a way forward in light of the severe budget cuts that are taking effect today. i told them these cuts will hurt our economy, cost jobs, and both sides need to be willing to
compromise. the american people are strong and their resilience. they have fought to recover from the worst economic crisis since the great depression. we will get through this as well. even with these cuts in place, folks will work hard to make sure that we keep the recovery going. washington sure is not making it easy. a time when the businesses have finally gotten to get some traction, bringing jobs back to america, which should be making a series -- we should not be making a series of arbitrary cuts on things that workers depend on like education, research, infrastructure, and the defense. what is important to understand is that not everyone will feel the pain of these cuts right away.
the pain will be real. beginning this week, many middle-class families will have their lives disrupted in significant ways. businesses that work with military, they have to lay folks off. communities on a military basis. border patrol agents, fbi agents, civilians that work in the pentagon will suffer a significant pay cuts. all of this will cause a ripple effect throughout the economy. it means people have less money in their pockets and they have less money to spend at local businesses. it means slower profits, fewer hires.
the longer these cuts remain in place, the greater the damage to our economy. economists are estimating that as a consequence to the sequester, we concede growth cut by over 0.5%. it will cost 750,000 jobs at a time where we should be growing jobs more quickly. every time that we get a piece of economic news over the next month or two, the next six months, as long as the sequester is in place,sequester, we concee news could have been better if congress had acted. let's be clear. none of this is necessary. this is because of a choice that republicans in congress have made. they have allowed these cuts to happen because they have reduced -- refused to budge on closing a single loophole to reduce the deficit. they decided to protect special- interest tax breaks for the well-off and they think that is
more important than protecting our military or middle-class families. i do believe that we can and must replace these cuts with a more balanced approach and ask something from everybody. smart spending cuts, entitlement reform, tax reform that makes the code more fair for families and businesses without raising tax rates. and we can responsibly lower the deficit without laying off workers or forcing parents to scramble for child care or scramble for financial aid for college students. i don't think that is too much to ask and i don't think that is partisan. it is what i ran on last year. the majority of american people agree with me on this approach. including a majority of republicans. they need to catch up with their
own party and their country on this. i know there are republicans in congress that privately say they would rather close tax loopholes that let these cuts go through. i know there are democrats that would rather do smart entitlement reform that led these cuts go through. -- than let these cuts go through. there is common sense on capitol hill, but it is a silent group right now. in the coming days, we will keep on reaching out to them, both individually end as a group of senators and say to them, let's fix this. not just for a month or two, but for years to come. the greatest nation on earth does not conduct its business in month-to-month increments or by going from crisis to crisis. america has a lot more work to
do. we can't let political gridlock stand in a way of other areas where we can make progress. i was pleased to see that they passed the violence against women act. it is a big win and not just for women, but for families in the american people. it will save lives and let more americans live free from fear. we have been pushing on this for a long time, i was glad to see that done and it is an example of how we can get some important bipartisan legislation through this congress even though there are still these arguments taking place. i think there are other areas where we can get progress even with the sequester unresolved. i will keep pushing for high- quality preschool for every family that wanted it. i will keep pushing to make sure that we raise the minimum wage so it is one the families can lower. i will keep pushing for
immigration reform and for reforming our voting system and reports on the transportation sector. i will be pushing for more reforms because i figured a reserve -- and they deserve that. this is what the american people voted for, these are the priorities. i am going to keep pushing to make sure that we see them through. with that, i will take some questions. >> how much do you -- and how much responsibility do you feel like you there? is the only way for republicans to depend on these alternatives? >> we have already cut 2.5 trillion dollars of the deficit. everybody says it will need to cut $4 trillion. we have to come up with another trillion and a half. the vast majority of economists agree that the problem when it comes to deficit is not
discretionary spending or that we're spending too much on education. it is not that we are spending too much money on jobs. or that we are spending too much on roads and bridges. it is a long-term problem in terms of the health care costs. in programs like medicare. what i have said very specifically and very detailed is that i am prepared to take on the problem where it exists on entitlements, and do some things that my own party really doesn't like. if it is brought -- part of a broader package. and so the deal i have put forward over the last two years, the deal and i have put forward as recently as december, i am prepared to do hard things and push my democratic friends
to do hard things. what i can do is ask middle- class families, seniors and students, the bear the entire burden of deficit reduction what i know there are a bunch of loopholes that they are not contributing to growth and our economy. it is not fair and it is not right. the american people don't think it is fair or right. i recognize that the speaker who has challenges in his caucus. i recognize that it is very hard for republican leaders to be perceived as making concessions to me. sometimes i reflect, is there something else i can do to make these guys -- i'm not talking about the leaders, but maybe some of the caucus members.
tanabe paid horne's on my head. and i genuinely believe there is an opportunity for us to cooperate. but what doesn't make sense, and the only thing we have seen so far is to replace this set of arbitrary cuts with even worse arbitrary cuts. that is not going to help the economy. it will not help growth or create jobs. as a number of economists have noted, ironically, it does not even reduce the deficit in the smartest or fastest way possible. in terms of going forward, my hope is that after some reflections, as members of congress start hearing from constituents that are being
negatively impacted, as we start seeing the impact that the sequester is having, that they step back and say, is there a way for us to move forward on a package of entitlement reforms, tax reforms? not raising tax rates, identifying programs that don't work. coming up with a plan that is comprehensive and makes sense. it may take a couple of weeks or a couple of months, but i will keep pushing. my view is that ultimately, common sense prevails. but what is true right now is that the republican party has made a choice that maintaining
an ironclad rule that we will not accept an extra dime worth of revenue makes it very difficult for us to get larger, comprehensive deals. that is the choice to make. it is more important to preserve tax loopholes then these arbitrary cuts. and what is interesting, the speaker just a couple months ago, he identified these tax loopholes and tax breaks and said we should close them and raise revenue. it is not that it is impossible, they have suggested it is impossible to do. if they believe that, in fact, these tax loopholes and breaks are not contributing to growth, they are not good for the economy, not particularly fair,
why don't we get started, why don't we do that? it might be because of the politics of the republican party, they can't do it right now. my hope is that they can do it later. i think it is very important to understand, democrats are not being asked to do anything either, to compromise. members of my party have who violently disagree with the notion that we should do anything on medicare. i'm willing to say to them, i disagree with you. i want to preserve medicare for the long haul. we are going to have tough politics in my party to get this done. this is not a situation where i am only asking for concessions from republicans and nothing from democrats. everybody is going to have to do
something. the one key to this whole thing is to try to make sure that we keep in mind who we are here for. we are not here for ourselves, we are not here for parties. we are not here to a advance the electoral prospects. we are here for american families that have been getting battered pretty good over the last few years. businesses are just starting to see confidence come back. this is not a win for anybody. this is a loss for the american people. if we step back and remind ourselves what is we are supposed to be doing, hopefully common sense will win in the end. >> it sounds like you say it is a republican problem and it
doesn't have anything to do with you. >> give me an example. i have called for a plan for spending cuts, entitlement reforms, go right at the problem that is at the heart of a long- term deficit problem. i have offered negotiations beyond that kind of approach. we have gotten rebuffed because they said we can't do any revenue. what more do you think i should do? i just wanted to clarify. because if people have a suggestion, i am happy to -- this is a roomful of smart folks. >> the next point seems to be the continuing resolution that
it expires at the end of the month. would you continue the sequester, and have you reached the limit of your persuasive power? is there any other leverage you have that this is not the way to go? >> i would like to think that i have some persuasive power left. let me check. look, the issue is not my persuasive power. the american people agree with my approach. the question is, can the american people help persuade their members of congress to do the right thing. i have a lot of confidence that over time, if they express their displeasure about something, eventually, congress responds.
there is a gap between what the american people think and what congress thanks. -- thinks. in respect to the budget and keeping the government opened, want to make sure they know we are not talking in washington gobbldey gook. the extension of last year's budget and this year's budget to make sure that the government functions continue. i think it is the right thing to do to make sure we don't have a government shutdown. we agree to a certain amount of money that will be spent each year, and certain funding levels for the military education system. if we stick to that deal, i will be supportive.
it is the deal that i made. our additional cut on top of that, by law, until congress takes the sequester a way, we would have to abide by those additional cuts. there is no reason why we should nhave another crisis like shutting the government down. >> even at the lower levels, even if you -- >> i never want to make myself 100% clear with you guys, but i think it is fair to say that i made the deals for a certain budget, there is no reason why that deal needs to be reopened. it is a deal that the speaker made as well and all of the leadership may. a bill that arrives on my desk reflects that commitment that we
previously made. i will sign it because i need to make sure that we keep doing what we need to for the american people. >> can you have them down here and refused to let them leave the room? [laughter] >> jessica, i am not a dictator. i am the president. ultimately, if mitch mcconnell or john boehner say they're going to go, i can't have secret service block the doorway. i understand. i know that this has been some of the conventional wisdom that has been floating around washington. that somehow, even though most people agree that i am being reasonable and i am presenting a
fair deal, the fact that they don't take it means that i should somehow do a jedi mind meld with these folks and convince them to do what is right. they are elected. we have a constitutional system of government. the speaker of the house and other folks have responsibilities. i can make the best possible case for why we need to do the right thing. i can speak to the american people about the consequences of the decisions congress has made. ultimately, it is a choice they make. and this idea that somehow there is a secret formula to get the speaker or mitch mcconnell to
say, mr. president, you are right. we should close loopholes for the well-connected in exchange for serious the entitlement reform and spending cuts that we don't need. i think that if there was a secret way to do that, i would have tried it. i would have done it. what i can do is make the best possible argument. i can offer concessions, i can offer compromise. i can negotiate. i can make sure that my party is willing to compromise and we are not be an ideological or thinking about things in political terms. i will continue to do that. what i can't do is force congress to do the right thing. the american people may have the
capacity to do that, and in the absence of a decision on the part of the speaker of the house and others, to put middle-class families ahead of whatever imperatives they have right now, we will have these cuts in place. i am hopeful about nature, over time, people do the right thing. i will keep reaching out and seeing if there are other formulas for ways to get these things into place so we can get a better results. >> those that and doors he argues that there is posturing in these plans, there will be big layoffs. >> let me give you an example. the department of defense has to
figure out how the children of military families are going to the schooling next several months, teachers are therefore subject to furlough. it means they are may not be able to teach. i expect they will be able to manage around it. but if i am a man or woman in uniform in afghanistan right now, the notion that buys a house back home-- my spouse back home to worry about getting the best education possible, they might be destructive because congress did not act. mayor bloomberg may not feel that impact.
but that family will. the border patrol agents there in the hot sun, doing what congress said they are supposed to be doing, finding out that they are getting a 10% pay cut. going home to explain that to their families, they probably don't feel like this is an exaggerated impact. i suppose it depends on where you said. not everybody is going to feel that all at once. what is true is the accumulation of those stories holocaust this country, folks that might have been working all their lives and getting an education so that they can get that job and get out of welfare, they're trying to figure out how i am going to keep my job because i can't afford child care for my kids.
some of these suppliers for those builders in virginia, you have some supplies that all they do, they may shut down those companies and the employees are going to be laid off, the accumulation of all those stories of impact will make the economy weaker. it will mean less of growth and hundreds of thousands of jobs lost. that is real. we are not making that up. it is not a scare tactic, it is a fact. starting tomorrow, everybody here -- now that congress has left, somebody is going to be vacuuming and cleaning those floors. they will have less pay. the janitors, the security guards.
they just got a pay cut. they have to figure out how to manage that. i want to be very clear here. it is true that this is not going to precipitate the kind of crisis that we feel about america defaulting and the problems around the debt ceiling. i don't even anticipate a huge financial crisis, but people are going to be hurt. the economy will not grow as quickly as it would have. unemployment will not go down as quickly as it could have. that is real. that is real, that is the problem. >> mr. president, your administration way and on the
proposition. i'm wondering if you can talk a little bit about your deliberations and how your thinking about that, the conversations that were important to you, things that you read? >> as everybody here knows, last year, upon a long time of reflection, i concluded that we cannot discriminate against same-sex couples when it comes to marriage. that the basic principle that america is founded on, the idea that we are all created equal, that applies to everybody. regardless of sexual orientation, race, gender, religion, ethnicity.
i think that the same evolution i have gone through is the evolution the country as a whole has gone through. so that when the supreme court calls the question by taking this case about california oppose the law, i did not feel like it was something this administration could avoid. it is important for us to articulate what i believe, what this administration stands for. and although i do think that we are seeing a state, progress being made, more states recognizing same-sex couples and giving them the opportunity to get married and maintain all the benefits of marriage that
heterosexual couples do. asks,he supreme court's do you think the california law, which does not provide any rationale for discriminating against same-sex couples other than just the notion that they are same-sex couples. do we think that meets constitutional muster, i felt it was important to answer the question has no. >> given the fact that you hold that position, i wonder if you have thought about if you made the decision to way and, argue that marriage is a right that should be available to all people. dodge that as an argument that i made personally. the solicitor general, he is
obliged to answer the specific question before them. and the specific question presented right now is whether proposition 8 is unconstitutional. we put forward a basic principle which applies to all equal protection cases. whenever a particular group is being discriminated against, the court asks the question, what is the rationale for this. if you don't have a good reason, we're going to strike it down. we have said that same-sex couples are a groove, a classic that deserves heightened scrutiny, and the supreme court needs to ask the state why is doing that and if the state does not have a good reason, it should be struck down. the court may decide that if it
doesn't apply to this case, it probably can't apply in any case. there is no good reason for it. that is the view that i put forward, but i am not a judge. the basic principle is, let's treat everybody fairly. let's treat everybody equally. i think that the brief that has been presented accurately reflect our views. >> thank you, mr. president. you have said that the country has to stop reading from crisis to crisis. with a few behind us and if you have us, taking a step back from the specific debate, how you plan to stop the country from careening from crisis to crisis? >> #1, we have to make sure that we keep making progress wherever we can on things that are
important to middle-class americans. if you set aside budget fights for a second, the violence against women act is gone. the conversations taking place on a bipartisan basis are moving forward. we have seen great interest in a bipartisan fashion around how we continue to improve the education system including early childhood education. there are discussions about how we reduce gun violence. i will keep on trying to make sure that we push on those things that are important to families and we won't get everything done all at once, but we will get a lot done. that is the first point. with respect to the budget, what i have done is make a case to
the american people that we have to make sure that we have a balanced approach. deficit reduction alone is not an economic policy. part of the challenge that we have here, not only congress, but washington generally, spends all its time talking about deficits and not a lot of time talking about how to create jobs. i want to make sure that we're talking about both. for example, congress wethis is. i know we will have to do it. i went to a bridge between that which mcconnell's stake and john boehner's state, and it was
awful. we should improve that bridge. reduce commuter times, improve safety, create jobs. that has to be part of this conversation, not just this constant argument about cutting in spending. safety, create jobs. i guess my point is, what i want to try to do is make sure that we are constantly focus so that true north is on how we are helping american families succeed. deficit reduction is part of that agenda, an important part, but not the only part. i don't want to be penalized on everything because we disagree on this one thing. as i already said, i am also hoping that over time, after republicans step back and maybe they can say this is tough on
the sequester, this makes us feel good. maybe we can have a more serious discussion about what the real problems are. the good thing about america is that sometimes we get to these bottlenecks and we get stuck. we have the sharp fights. the american people are common sense and practical. that approach when it out. in the could put a lot of people back to work right now. meantime, to make the final point about the sequester, we will get through this. this is not going to be an apocalypse of some people have said. it is just going to hurt
individual people and the economy overall. but if congress comes to its senses a week from now, a month from now, three months from now, there is a lot of open room there to grow the economy much more quickly. and advance the agenda of the american people dramatically. this is a temporary staff in what i believe is the long-term outstanding prospects for american growth and american greatness. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] >> john boehner spoke with
reporters briefly after meeting with the president and said they will vote on a budget bill next week. >> the american people know that washington has a spending problem. while there are smarter ways to cut spending, the house should not have to pass a bill before the senate does anything. i would hope that the senate would act. when the president got his tax hikes, this discussion about revenue is over. it is about taking on the spending problem in washington.
i did say the house is going to move a continuing resolution next week to fund the government. i am hopeful that we won't have to deal with the threat of a government shut down while we are dealing with the sequester at the same time. the house will act next week and i hope the senate will follow suit. thanks. >> after the meeting with president obama, an anti pelosi talk -- nancy pelosi talks that cuts must be done in a way to sustain programs and additional tax expenditures to be part of an agreement for an alternative budget plan. this is just over 20 minutes.
>> good afternoon, just barely. as you know, this morning the president held a meeting at the white house with the vice president and the leaders of the house and senate in a bipartisan way. it was an important meeting, pointing out the clarity between the democrats and republicans in the congress. we believe we should build the economy from the metal out. the republicans believe in trickle down. that is the essence of our difference. today begins the cuts, the mindless cuts as a result of
sequestration. across-the-board cuts that do not reflect priorities but a blunt way to make cuts, which even the chairmen of the fed has said that cuts of this size made this quickly means we will lose jobs and slow the growth of our economy. and keeping deficits larger than otherwise. the point is to reduce the deficit, growth is essential to that. mindless cuts made in such a large amount over such a short time do not reduce the deficit. the president challenged us all to look at all of the expenditures that government makes and if it is about
entitlements, taxes, discretionary spending, and see if we can come to some agreement on how we go forward. to govern is to choose, and when we want to subject our expenditures to this group, we know the taxpayer is getting his or her money's worth out of this. and the initiative is doing the job that sets out to do. we have to make judgments. is a particular initiative still a priority? is it obsolete? is there wasteful spending? we have to always subject the initiative to that scrutiny. but we have to be careful about how we do it. for example, education is probably the best investment we can make in our future and our
families. nothing brings more money to the treasury than the education of the american people. higher education, post graduation, and nothing brings more money to the treasury that investing in education. cutting education does not reduce the deficit. cuts in education did not deter the growth of innovation, so are we going to cross the board cut science? we must continue to be number one. we do not do that by making cuts. the president mentioned cuts in infrastructure. what we do know is that no maintenance is the most expensive maintenance. investing in infrastructure create jobs immediately as well
as the infrastructure of our country which is essential to our economic growth. nothing brings more money to thebroadband infol time high-speed. why would we cut those kinds of things? across-the-board cuts are libelous. the president mentioned the tax reform. we must reduce the deficit, we must look at another set of expenditures. we have to prioritize. they may not be the best and they may not make the cut. we have to prioritize. the next thing is that we look at entitlements. we want to look at how we can prolog and sustain social
security, medicare, medicaid. and certainly for our economy. -- if theo the purpose is to prolong, sustained, a fiscally sound way, medicare and social security, that is what the american people want us to do. to say we want to privatize its voucherize it.to dr looking at how we can strengthen those, we should do that. there are two levels of expenditure. investment and entitlement. a very important bit of this is
tax expenditures. there are probably $1 trillion in tax expenditures that occur each year. we have a $3.50 trillion budget, $1 trillion of its tax expenditures. some are very worthy of support the middle-class. some of them are wasteful and our special interest gifts to special interests. some of them are excessive. these tax expenditures cost the taxpayer. what are we getting for that? the speaker has said there are hundreds of billions of dollars, and you look at what mr. mccall has said. the only way is to lower rates. about reducing the deficit by
removing wasteful tax loopholes for special interests, and some of them are just a bit excessive for the wealthiest individuals in our country. we can't ask seniors and children and families to make all the sacrifices and said this is going to be -- we have a proposal that would have been better. the proposal that cuts spending and has a revenue peak and does not deter growth, which have not been able to bring it up. we tried three times in the last two months, i don't know what the republicans are afraid of. this is a marketplace of ideas and they might be afraid that their members will vote for it. it has to be with the commitment
to the american people, to the middle class. and not for us to be the opening our eyes to the fact that if this is going to happen, it has to be done shared sacrifice. we have to look at domestic discretionary spending, entitlement spending, and tax expenditures. that is where the big money is and what has remained untouched in all of this discussion. that is a place i think we can find some area of agreement. >> the president suggested talking about replacing the sequester. [inaudible] >> i have not seen yet. have you seen it? i don't know what it is, i can't
tell you if i would vote for it. but we came to an agreement on the budget control act which says there the a certain level that the appropriation -- or when we see that, i can tell you what is because it is at that level, the republicans can produce the votes to pass it. but we certainly don't want a shutdown of government. i think some people thought sequester meant that it was a shutdown of government, but it doesn't. just describing this this way, it notifies you that the department of justice proposes to furlough you no later than 30
days from receipt of this notice. we recognize the difficult personal implications, no matter how limited. that is what this is about. they will have an impact on people's lives, individually, that is really important to them. many of your there and saw the impact sequestration has on women, taking a big hit on this in addition to other cuts that have already happened. it also has a tremendous impact on our economy. again, losing jobs, deterring growth, and not reducing the deficit. >> [inaudible] how hopeful should people at home be that a deal can eventually be reached?
>> my own hope springs from the american people. they know what the choices are that have to be made here. hopeful for our republican colleagues that we can have a situation where there are no absolute statements, revenue that will be cut. remind us we have $1.60 trillion in cuts, 1.2 in the budget control act, other legislation that was passed in the last congress. my hope springs from the fact that we should be able to focus on the tax expenditures, big money there. and we cannot have a situation where one party is saying we're going to protect these wasteful tax giveaways to special interests, but we're going to stop meals on wheels for seniors.
i don't think the american people would tolerate that. yes, i think so. i've been the place that we can go -- there are different categories. the categories are domestic discretionary spending, we have cut a lot of money from that, over $1 trillion. we're always ready to fly more if we can, it does not impede growth as cuts in education, infrastructure, science and innovation would impede growth. but if there is a the wasteful spending, or just not a priority in light of the realities that we have in our budget, there may be some spending cuts we can find there. we're always ready to strengthen medicare, medicaid and social security. let's go with the table to do that. if we want to strengthen them
and not destroy them. if people are aware of what the choice is, the more hopeful we can be. but in terms of actual dollars, the tax expenditures, listened to the words. they are spending. when there is a recognition by the term that they are spending. they are spending the taxpayer'' dollars to give tax subsidies to big oil and in order to drove to the tune of $48 billion. an incentive for them to grow at a time that it will make $1 trillion in profit. what incentive do they need to drill for more than that? the list goes on. i think there is a recognition that there is money to be had there. that is a place where we can try to bring into focus and in the balance what we're trying to do.
dodge the president has said today to prepare for tough politics in the democratic party. our house democrats prepared to work with him to make deeper cuts, indexing benefits? >> when i sent my people -- our caucus to the table, i knew that it was simply -- or when they went to the table, they went with the confidence of our caucus that we have shared values and that we trust their judgment and their knowledge about what could be accomplished. everybody knows we don't have one government. but there would have to be compromises. by said -- i said to be agnostic. that is how they went to the
table. they went into a wall of the closures and no revenue. i vaguely can persuade our caucus amid a balanced, bold approach that has revenue and reform, the tax code as well as making judgments about entitlements. you can't do it in isolation. these others are getting off scot-free. it has to be balanced. the house democratic caucus will not be an obstacle to reaching a balanced and bold agreement. again, we supported the president in the summer of 2011.
we did not like some of the particulars of it, but the way the equity against what you get for it. you get growth in the economy. again, you can't do it 1-sided. it exalts the wealthy and the special interests and you can see how open we are. i am optimistic that something that can be done if the judgment is that the democrats are ready to go to the table and recognize the need that we nefog cuts and to sustain medicare and social security. we want to see movement on the other side in terms of tax breaks for special interests and excessive deductions for the wealthiest people in the country.
you can take deductions, but not to a point where they have you pay ia lower rate than the other people that worked. >> have you been informed about the mechanics of the sequestered? how does it play out? how will people be notified? >> this is one of the manifestations of it. the saddest part of it is that when i signed on to the budget control office, it was something that we didn't like but we had to do. i made sure there were certain things exempted from sequester. it is in my purse, because i brought it. you don't have to do that anymore. anybody else can get my purse.
what was the question? we try to protect as much as we possibly could it because it is across-the-board cuts, they are senseless and violence. nobody ever thought that they would happen. there are so brutal that everybody will cooperate in order to make this happen, but again, protecting special interests and the high-end individuals with a priority more for the republicans have been to avoid these mindless cuts. we make some protections just in case. but the saddest thing i heard because it means some much all of us was that psychiatric nurses who were meeting the needs of our returning veterans with post-traumatic stress
syndrome, they have to be furloughed. i heard this anecdotally from some of them, but nonetheless, that is not what the american people think is the right priority for us. do we have it yet? here are some of the things that we tried to protect to mitigate the damage. social security, of veterans programs. civilian employees. the president describes the civilian employees that teach our children of military bases, he talked about those furloughs that are hurtful. all the income tax credits will be for a earned income tax credit, and those that are important to america's working families. children's health insurance program, food stamps, this is
the category of insurance like child nutrition programs, though france, and some other initiatives. those are a few of the ones that we tried to protect. but even with that, the impact of america's working families is something that could have been avoided. we lose jobs, it impedes economic growth, it does not reduce the deficit as would otherwise be reduced. it should have been avoided and the fact that it hasn't been is unfortunate, but i think it highlights the fact that we must work together to get this done. in terms of the particulars, people will be getting their furlough notices. you will see that unfolded it will probably be different for different agencies. one of the things we really have
to do is we really have to work together to enable our defense and national security sector to be able to >> that does not mean we do not think that we should be reducing the defense budget. what is our mission? what is the cost geck? this is not the way to have a defense budget that harms our national security needlessly. and mindlessly. thank you all very much. >> next, the u.s. supreme court oral argument on challenging provisions in the 1965 voting rights act. then defense secretary chuck hagel and a meeting on the automatic cuts.
after that, house republicans on the impact of defense cuts. the supreme court heard oral argument wednesday on a key provision in the voting rights act of 1965. the court will decide if section five of the actors outlived its purpose and it poses an undue burden on states that are subject to federal supervision under the law. section five requires certain states, mainly in the south get approval from the justice department or the d.c. district court before changing voting laws. republican appointed justices were skeptical of the continued relevance of the law. a decision is expected by late june. this is about an hour and 15 minutes. >> we'll hear argument first this morning in case 12-96, shelby county v. holder. mr. rein? >> mr. chief justice, and may it please the court, almost 4 years
ago, eight justices of the court agreed the 2005 25-year extension of voting rights act section 5's preclearance obligation, uniquely applicable to jurisdictions reached by section 4(b)'s antiquated coverage formula, raised a serious constitutional question. those justices recognized that the record before the congress in 2005 made it unmistakable that the south had changed. they questioned whether current remedial needs justified the extraordinary federalism and cost burdens of preclearance. >> may i ask you a question? assuming i accept your premise, and there's some question about that, that some portions of the south have changed, your county pretty much hasn't. >> well, i -- >> in -- in the period we're
talking about, it has many more discriminating --240 discriminatory voting laws that were blocked by section 5 objections. there were numerous remedied by section 2 litigation. you may be the wrong party bringing this. >> well, this is an on-face challenge, and might i say, justice sotomayor -- >> but that's the standard. and why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with? >> well, i don't agree with your premises, but let me just say, number one, when i said the south has changed, that is the statement that is made by the eight justices in the northwest austin case. and i certainly -- >> and congress -- congress said that, too. nobody -- there isn't anybody in on any side of this issue who doesn't admit that huge progress has been made.
congress itself said that. but in line with justice sotomayor's question, in the d.c. court of appeals, the dissenting judge there, judge williams, said, "if this case were about three states, mississippi, louisiana, and alabama, those states have the worst records, and application of section 5 to them might be ok." >> justice ginsburg, judge williams said that, as he assessed various measures in the record, he thought those states might be distinguished. he did not say, and he didn't reach the question, whether those states should be subject
to preclearance. in other words, whether on an absolute basis, there was sufficient record to subject them -- >> but think about this state that you're representing, it's about a quarter black, but alabama has no black statewide elected officials. if congress were to write a formula that looked to the number of successful section 2 suits per million residents, alabama would be the number one state on the list. if you factor in unpublished section 2 suits, alabama would be the number two state on the list. if you use the number of section 5 enforcement actions, alabama would again be the number two state on the list. i mean, you're objecting to a formula, but under any formula that congress could devise, it would capture alabama. >> well, if -- if i might respond, because i think justice sotomayor had a similar question, and that is why should this be approached on face.
going back to katzenbach, and all of the cases that have addressed the voting rights act preclearance and the formula, they've all been addressed to determine the validity of imposing preclearance under the circumstances then prevailing, and the formula, because shelby county is covered, not by an independent determination of congress with respect to shelby county, but because it falls within the formula as part of the state of alabama. so i -- i don't think that there's any reluctance upon on this -- >> but facial challenges are generally disfavored in our law. and so the question becomes, why do we strike down a formula, as justice kagan said, which under any circumstance the record shows the remedy would be congruent, proportional, rational, whatever standard of review we apply, its application to alabama would happen. >> there -- there are two separate questions. one is whether the formula needs to be addressed. in northwest austin, this court addressed the formula, and the circumstances there were a very small jurisdiction, as the court said, approaching a very big question. it did the same in rome, the city of rome. it did the same in katzenbach. the -- so the formula itself is
the reason why shelby county encounters the burdens, and it is the reason why the court needs to address it. >> interestingly enough, in katzenbach the court didn't do what you're asking us to do, which is to look at the record of all the other states or all of the other counties. it basically concentrated on the record of the two litigants in the case, and from that extrapolate -- extrapolated more broadly. >> i don't think that -- >> you're asking us to do something, which is to ignore your record and look at everybody else's. >> i don't think that's a fair reading of katzenbach. in katzenbach, what the court
did was examined whether the -- the formula was rational in practice and theory. and what the court said is, while we don't have evidence on every jurisdiction that's reached by the formula, that by devising two criteria which were predictive of where discrimination might lie, the congress could then sweep in jurisdictions as to which it had no specific findings. so we're not here to parse the jurisdictions. we are here to challenge this formula because in and of itself it speaks to old data, it isn't probative with respect to the kinds of discrimination that congress was focusing on and it is an inappropriate vehicle to sort out the sovereignty of individual states. i could tell you that in alabama the number of legislators in the alabama legislature are proportionate to the number of black voters. there's a very high registration and turnout of black voters in alabama. but i don't think that that really addresses the issue of the rationality in theory and practice in the formula. if congress wants to write another statute, another hypothetical statute, that would present a different case. but we're here facing a county, a state that are swept in by a formula that is neither rational in theory nor in practice.
that's the -- that's the hub of the case. >> i suppose the thrust of the questions so far has been if you would be covered under any formula that most likely would be drawn, why are you injured under this one? >> well, we don't agree that we would be covered under any formula. >> but that's -- that's the hypothesis. if you could be covered under most suggested formulas for this kind of statute, why are you injured by this one? i think that's the thrust of the question. >> well, i think that if -- if congress has the power to look at jurisdictions like shelby county individually and without regard to how they stand against other states -- other counties, other states, in other words, what is the discrimination here among the jurisdictions, and after thoroughly considering each and every one comes up with a list and says this list greatly troubles us, that might present a vehicle for saying
this is a way to sort out the covered jurisdictions -- >> suppose congress passed a law that said, everyone whose last name begins with a shall pay a special tax of $1,000 a year. and let's say that tax is challenged by somebody whose last name begins with a. would it be a defense to that challenge that for some reason this particular person really should pay a $1,000 penalty that people with a different last name do not pay? >> no, because that would just invent another statute, and this is all a debate as to whether somebody might invent a statute which has a formula that is rational. >> i was about to ask a similar
question. if someone is acquitted of a federal crime, would it -- would the prosecution be able to say, well, ok, he didn't commit this crime, but congress could have enacted a different statute which he would have violated in this case. of course, you wouldn't listen to that, would you? >> no, i agree with you. >> the problem with those hypotheticals is obvious that it starts from a predicate that the application has no basis in any record, but there's no question that alabama was rightly included in the original voting rights act. there's no challenge to the reauthorization acts. the only question is whether a formula should be applied today. and the point is that the record is replete with evidence to show that you should. >> well, i mean -- >> it's not like there's some made-up reason for why the $1,000 is being applied to you or why a different crime is going to be charged against you. it's a real record as to what alabama has done to earn its place on the list. >> justice sotomayor, with all respect, the question whether alabama was properly placed
under the act in 1964 was -- it was answered in katzenbach, because it came under a formula then deemed to be rational in theory and in practice. there's no independent determination by the congress that alabama singly should be covered. congress has up -- you know, has readopted the formula and it is the formula that covers alabama and thus shelby county -- >> now, the reason for the formula -- of course, part of the formula looks back to what happened in 1965. and it says are you a jurisdiction that did engage in testing and had low turnout or or low registration? now, that isn't true of alabama today. >> that's correct. that's correct. >> so when congress in fact reenacted this in 2005, it knew what it was doing was picking out alabama.
it understood it was picking out alabama, even though the indicia are not -- i mean, even though they're not engaging in that particular thing. but the underlying evil is the discrimination. so the closest analogy i could think of is imagine a state has a plant disease and in 1965 you can recognize the presence of that disease, which is hard to find, by a certain kind of surface movement or plant growing up. now, it's evolved. so by now, when we use that same formula, all we're doing is picking out that state. but we know one thing -- the disease is still there in the state. because this is a question of renewing a statute that in fact has worked. and so the question i guess is, is it rational to pick out at least some of those states? and to go back to justice sotomayor's question, as long as it's rational in at least some instances directly to pick out those states, at least one or two of them, then doesn't the statute survive a facial challenge? that's the question.
>> thank you. justice breyer, a couple of things are important. the court said in northwest austin, an opinion you joined, "current needs have to generate the current burden." so what happened in 1965 in alabama, that alabama itself has said was a disgrace, doesn't justify a current burden. >> but this is then the question, does it justify? i mean, this isn't a question of rewriting the statute. this is a question of renewing a statute that by and large has worked.
>> justice breyer -- >> and if you have a statute that sunsets, you might say -- i don't want it to sunset if it's worked, as long as the problem is still there to some degree. that's the question of rationality. isn't that what happened? >> if you base it on the findings of 1965. i could take the decision in city of rome, which follows along that line. we had a huge problem at the first passage of the voting rights act and the court was tolerant of congress's decision that it had not yet been cured. there were vestiges of discrimination. so when i look at those statistics today and look at what alabama has in terms of black registration and turnout, there's no resemblance. we're dealing with a completely changed situation -- >> you keep -- you keep -- >> to which if you apply those metrics -- excuse me. >> mr. rein, you keep emphasizing over and over again in your brief registration and you said it a couple of times this morning. congress was well aware that registration was no longer the problem. this legislative record is replete with what they call second generation devices. congress said up front -- we know that the registration is fine. that is no longer the problem.
but the discrimination continues in other forms. >> let me speak to that, because i think that that highlights one of the weaknesses here. on the one hand, justice breyer's questioning, well, could congress just continue based on what it found in '65 and renew? and i think your question shows it's a very different situation. congress is not continuing its efforts initiated in 1975 to allow people -- >> counsel, the reason section 5 was created was because states were moving faster than litigation permitted to catch the new forms of discriminatory practices that were being developed. as the courts struck down one form, the states would find another. and basically, justice ginsburg calls it secondary. i don't know that i'd call anything secondary or primary. discrimination is discrimination. and what congress said is it continues, not in terms of voter numbers, but in terms of examples of other ways to disenfranchise voters, like moving a voting booth from a convenient location for all voters to a place that historically has been known for
discrimination. i think that's an example taken from one of the section 2 and 5 cases from alabama. >> justice sotomayor -- >> i mean, i don't know what the difference is except that this court or some may think that secondary is not important. but the form of discrimination is still discrimination if congress has found it to be so. >> when congress is addressing a new evil, it needs then -- and assuming it can find this evil to a level justifying -- >> but that's not -- >> the extraordinary remedy -- >> what it did with section 5. it said we can't keep up with the way states are doing it. >> i think we're dealing with two different questions. one is was that kind of remedy, an unusual remedy, never before and never after invoked by the congress, putting states into a prior restraint in the exercise of their core sovereign functions, was that justified?
and in katzenbach, the court said we're confronting an emergency in the country, we're confronting people who will not, who will not honor the fifteenth amendment and who will use -- >> and in 1986 -- or excuse me, 2006 -- congress went back to the problem, developed a very substantial record, a 15,000- page legislative record, talked about what problems had been solved, talked about what problems had yet to be solved, and decided that, although the problem had changed, the problem was still evident enough that the act should continue. it's hard to see how congress could have developed a better and more thorough legislative record than it did, mr. rein. >> well, i'm not questioning whether congress did its best. the question is whether what congress found was adequate to invoke this unusual remedy.
>> indeed, congress must have found that the situation was even clearer and the violations even more evident than originally, because originally, the vote in the senate, for example, was something like 79 to 18, and in the 2006 extension, it was 98 to nothing. it must have been even clearer in 2006 that these states were violating the constitution. do you think that's true? >> no. i think the court has to -- >> well, that sounds like a good argument to me, justice scalia. it was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation. >> or decided that perhaps they'd better not vote against it, that there's nothing, that there's no -- none of their interests in voting against it. >> i don't know what they're thinking exactly, but it seems to me one might reasonably think this -- it's an old disease, it's gotten a lot better, a lot better, but it's still there. so if you had a remedy that really helped it work, but it
wasn't totally over, wouldn't you keep that remedy? >> well -- >> or would you not at least say that a person who wants to keep that remedy, which has worked for that old disease which is not yet dead, let's keep it going. is that an irrational decision? >> that is a hypothetical that doesn't address what happened, because what happened is the old disease, limiting people's right to register and vote, to have -- >> no, i'm sorry. the old disease is discrimination under the fifteenth amendment, which is abridging a person's right to vote because of color or race. >> but the focus of the congress
in 1965 and in katzenbach in 1964 and in katzenbach was on registration and voting, precluding -- >> it was on voter dilution as well. it had already evolved away from that, or started to. >> i beg your pardon, but i think, justice sotomayor, that this court has never decided that the fifteenth amendment governs vote dilution. it has said the fourteenth amendment does, but the original enactment was under the fifteenth amendment. >> well, the fifteenth amendment says "denial or abridgement." what would "abridgement" mean except for dilution? >> well, "abridgement" might mean, for example, i let you vote in one election but not in another, for example, separate primary rules from election rules. abridgement can be done in many ways. i think dilution is a different concept. we're not saying that dilution isn't covered by the fourteenth amendment, but i was responding to justice breyer in saying there was an old disease and that disease is cured. if you want to label it "disease" and generalize it, you can say, well, the new disease is still a disease.
>> well, some of -- >> but i think that's not what happened. >> some of the questions asked to this point i think mirror what the government says toward the end of its brief, page 48 and page 49. it's rather proud of this reverse engineering -- we really knew it was some specific states we were interested in, and so we used these old categories to cover that state. is that a methodology that in your view is appropriate under the test of congruence and -- and proportionality? >> no, i think it is not. first of all, i don't accept that it was, quote, "reverse engineered." i think it was just, as justice breyer indicated, continued because it was there. if you look at what was done and was approved in 1964, what congress said, well, here are the problem areas that we detect. we've examined them in detail.
we've identified the characteristics that would let somebody say, yes, that's where the discrimination is ripe. they're using a tester device. the turnout is below the national average by a substantial margin. that spells it out and we have a relief valve in the then- existing bailout. so it was all very rational. here you'd have to say is the finding with respect to every state -- alaska, arizona, the covered jurisdictions in new york city -- is the designation of them congruent to the problem that you detect in each one? even assuming -- and we don't accept -- that any of these problems require the kind of extraordinary relief, what's the congruence and what's the proportionality of this remedy to the violation you detect state by state. so merely saying it's reverse engineered, first of all it says, well, congress really thought about it and said, we made up a list in our heads and, gee whiz, this old formula miraculously covered the list. there's no record that that happened. >> counsel, are you -- >> suppose -- suppose there were and suppose that's the rationale, because that's what i got from the government's brief and what i'm getting -- getting from some of the questions from the bench. what is wrong with that? >> if -- if there was a record
sufficient for each of those states to sacrifice their -- their inherent core power to preclearance, to prior restraint, i think that you certainly could argue that, well, how congress described them, as long as it's rational, might work. but i don't think that we have that record here, so -- >> well, and -- and i don't know why -- why you even go that far. i don't know why under the equal footing doctrine it would be proper to just single out states by name, and if that in effect is what is being done, that seemed to me equally improper. but you don't seem to make that argument. >> well, i think that -- >> i thought -- i thought the same thing. i thought it's sort of extraordinary to say congress can just pick out, we want to hit these eight states, it doesn't matter what formula we use, so long as we want to hit these eight states, that's good enough and that makes it constitutional. i doubt that that's true. >> justice scalia, i agree with that. what i was saying here is that congress did -- >> why? why does congress have to fix
any problem immediately? >> i would like to hear the answer to the question. >> ok. the answer, justice kennedy, is congress cannot arbitrarily pick out states. congress has to treat each state with equal dignity. it has to examine all the states. the teaching of katzenbach is that when congress has done that kind of examination, it can devise a formula even if it understands that that formula will not apply across all 50 states. >> well, the formula that has -- >> so we accept katzenbach. but in terms of just picking out states and saying, i'm going to look at you and i'm going to look at you, no, that --that does not protect the equal dignity of the states. >> well, mr. rein, the formula that -- that is applied right now, under that formula covered jurisdictions, which have less than 25 percent of the nation's total population, they account for 56 percent of all successful published section 2 lawsuits. if you do that on a per capita basis, the successful section 2 lawsuits, four times higher in covered jurisdictions than in noncovered jurisdictions. so the formula -- you can, you know, say maybe this district
shouldn't be covered, maybe this one should be covered. the formula seems to be working pretty well in terms of going after the actual violations on the ground and who's committing them. >> there are -- there are two fallacies, justice kagan, in -- in that statement. number one is treating the covered jurisdictions as some kind of entity, a lump -- let us treat them. and as judge williams did in his dissent, if you look at them one by one, giving them their equal dignity, you won't reach the same result. >> well, all formulas are underinclusive and all formulas are overinclusive. congress has developed this formula and has continued it in use that actually seems to work pretty well in targeting the places where there are the most successful section 2 lawsuits, where there are the most violations on the ground that have been adjudicated.
>> well, if -- if you look at the analysis state by state done by judge williams, that isn't true. congress has picked out some states that fall at the top and some that do not, and there are other states like illinois or tennessee, and i don't think they deserve preclearance, that clearly have comparable records. and second, dividing by population may make it look it look better, but it is irrational. it is not only irrational when we object to it, but note that in the brief of the harris respondent they say it's irrational because, after all, that makes delaware, a small state, look worse on a list of who are the primary violators. it's not a useful metric. it may make a nice number. but there is no justification for that measure. >> and it happens not to be the method that congress selected. >> correct. >> if they selected that, you could say they used a rationale that works. but just because they picked some other rationale which happens to produce this result doesn't seem to me very persuasive. >> your time is -- >> thank you. >> about ready to expire for the rebuttal period. but i do have this question -- can you tell me -- it seems to me that the government can very
easily bring a section 2 suit and as part of that ask for bail-in under section 3. are those expensive, time- consuming suits? do we have anything in the record that tells us or anything in the bar's experience that you could advise us? >> well -- >> is this an effective remedy? >> it is -- number one, it is effective. there are preliminary injunctions. it depends on the kind of dispute you have. some of them are very complex, and it would be complex if somebody brought -- a state brought a section 5 challenge in a three-judge court saying the attorney general's denied me preclearance. so it's the complexity of the question, not the nature of section 2. and might i say, if you look at the voting rights act, one thing that really stands out is you are up against states with entrenched discriminatory practices in their law. the remedy congress put in place for those states was section 2. and all across the country, when you talk about equal sovereignty, if there is a problem in ohio the remedy is section 2. so if congress thought that section 2 was an inadequate remedy, it could look to the specifics of section 2 and say,
maybe we ought to put timetables in there or modify it. but that's not what happened. they reenacted section 2 just as it stood. so i think that section 2 covers even more broadly, because it deals with results, which the court has said is broader than effects. it's an effective remedy, and i think at this point, given the record, given the history, the right thing to do is go forward under section 2 and remove the stigma of prior restraint and preclearance from the states and the unequal application based on data that has no better history than 1972. >> mr. rein, i just remind, because it's something we said about equal footing, in katzenbach the court said -- "the doctrine of the equality of the states invoked by south carolina does not bar this approach, for that doctrine applies only to the terms upon which states are admitted to the union and not to the remedies for local evils which have
subsequently appeared." that's what -- has the court changed that interpretation? >> i think that that referred in katzenbach -- i'm familiar with that statement. it referred to the fact that once you use a formula you are not -- you are selecting out. the court felt the formula was rational in theory and practice and therefore it didn't on its face remove the equality of the states. they were all assessed under the same two criteria. some passed, some did not. but i think that that really doesn't mask the need for equal treatment of the sovereign states. >> i'm going to have a hard time with that because you can't be suggesting that the government sees a problem in one or more states and decides it's going to do something for them and not for others, like emergency relief, and that that somehow violates the equal footing doctrine.
you can't treat states the same because their problems are different, their populations are different, their needs are different. everything is different about the states. >> well, i think when congress uses the powers delegated under article i, section 8, it has substantial latitude in how it exercises the power. we are talking about remedial power here. we are talking about overriding powers that are reserved to the states to correct abuse. when congress does that, it has to treat them equally. it can't say -- >> would you tell me what you think is left of the rational means test in katzenbach and city of rome? do you think the city of boerne now controls both fourteen -- the fourteenth and the fifteenth amendment and how we look at any case that arises under them?
>> justice sotomayor, i think that the two tests have a lot in common because in city of boerne, the katzenbach decision was pointed out as a model of asking the questions that congress in proportionality asked us to address. number one, how does this remedy meet findings of constitutional violation? you've got to ask that question. they asked that question in katzenbach. what is the relation between the two? and then i think you have to ask the question -- all right, you know, is this killing a fly with a sledgehammer, a fair question, because when you start to invade core functions of the states i think that a great deal of caution and care is required. so i think that the rational basis test, the mcculloch test, still applies to delegated powers. but here on the one hand the solicitor defends under the fourteenth and fifteenth amendment saying, well, if
something doesn't violate the fifteenth it violates the fourteenth. and the court's precedent under the fourteenth amendment is very clear that the city of boerne congruence and proportionality test applies. the court has applied it, but i don't think we -- we wouldn't really need to get that far because we believe that if you examine it under mccullough, just as they did in katzenbach, it would fail as well. if there are no further questions. >> thank you, counsel. our questions have intruded on your rebuttal time, so we'll give you the 5 minutes and a commensurate increase in the general's time. general verrilli? >> thank you, mr. chief justice, and may it please the court: there's a fundamental point that needs to be made at the outset. everyone acknowledges, petitioner, its amici, this court in northwest austin, that the voting rights act made a huge difference in transforming the culture of blatantly racist vote suppression that characterized parts of this country for a century. section 5 preclearance was the principal engine of that
progress. and it has always been true that only a tiny fraction of submissions under section 5 result in objections. so that progress under section 5 that follows from that has been as a result of the deterrence and the constraint section 5 imposes on states and subjurisdictions and not on the actual enforcement by means of objection. now, when congress faced the question whether to reauthorize section 5 in 2006, it had to decide whether -- whether it could be confident that the attitudes and behaviors in covered jurisdictions had changed enough that that very effective constraint and deterrence could be confidently removed. and congress had, as judge kagan identified earlier, a very substantial record of continuing need before it when it -- >> can i ask you just a little bit about that record. do you know how many submissions there were for preclearance to the attorney general in 2005? >> i don't know the precise number, but many thousands.
that's true. >> 3700. do you know how many objections the attorney general lodged? >> there was one in that year. >> one, so one out of 3700. >> but i think -- but, mr. chief justice, that is why i made the point a minute ago that the key way in which section 5 -- it has to be the case, everyone agrees, that the significant progress that we've made is principally because of section 5 of the voting rights act. and it has always been true that only a tiny fraction of submissions result in objections. >> that will always be true forever into the future. you could always say, oh, there has been improvement, but the only reason there has been improvement are these extraordinary procedures that deny the states sovereign powers which the constitution preserves to them. so, since the only reason it's improved is because of these procedures, we must continue those procedures in perpetuity. >> no. >> is that the argument you are making? >> that is not the argument. we do not think that -- >> i thought that was the argument you were just making.
>> it is not. congress relied on far more on just the deterrent effect. there was a substantial record based on the number of objections, the types of objections, the findings of -- >> that's a different argument. >> but they are related. they're related. >> just to get the --do you know which state has the worst ratio of white voter turnout to african american voter turnout? >> i do not. >> massachusetts. do you know what has the best, where african american turnout actually exceeds white turnout? mississippi. >> yes, mr. chief justice. but congress recognized that expressly in the findings when it reauthorized the act in 2006. it said that the first generation problems had been largely dealt with, but there persisted significant -- >> which state has the greatest disparity in registration between white and african american? >> i do not know that. >> massachusetts. third is mississippi, where again the african american registration rate is higher than the white registration rate. >> but when congress -- the choice congress faced when it -- congress wasn't writing on a blank slate in 2006, mr. chief justice. it faced a choice. and the choice was whether the
conditions were such that it could confidently conclude that this deterrence and this constraint was no longer needed, and in view of the record of continuing need and in view of that history, which we acknowledge is not sufficient on its own to justify reenactment, but it's certainly relevant to the judgment congress made, because it justifies congress having made a cautious choice in 2006 to keep the constraint and to keep the deterrence in place. >> well, there's no question that -- >> counsel, in the reauthorization -- >> there's no question -- >> justice alito. >> there is no question that the voting rights act has done enormous good. it's one of the most successful statutes that congress passed in the twentieth century and one could probably go farther than that. but when congress decided to reauthorize it in 2006, why wasn't it incumbent on congress under the congruence and proportionality standard to make
a new determination of coverage? maybe the whole country should be covered. or maybe certain parts of the country should be covered based on a formula that is grounded in up-to-date statistics. but why -- why wasn't that required by the congruence and proportionality standards? suppose that congress in 1965 had based the coverage formula on voting statistics from 1919, 46 years earlier. do you think katzenbach would have come out the same way? >> no, but what congress did in 2006 was different than what congress did in 1965. what congress did -- congress in 2006 was not writing on a clean slate. the judgment had been made what the coverage formula ought to be in 1965, this court upheld it four separate times over the years, and that it seems to me the question before congress under congruence and
proportionality or the reasonably adapted test in mccull- -- or whatever the test is, and under the formula in northwest austin is whether the judgment to retain that geographic coverage for a sufficient relation to the problem congress was trying to target, and congress did have before it very significant evidence about disproportionate results in section 2 litigation in covered jurisdictions, and that, we submit, is a substantial basis for congress to have made the judgment that the coverage formula should be kept in place, particularly given that it does have a bail- in mechanism and it does have a bailout mechanism which allows for tailoring over time. >> this reverse engineering that you seem so proud of, it seems to me that that obscures the -- the real purpose of -- of the statute. and if congress is going to single out separate states by name, it should do it by name. if not, it should use criteria that are relevant to the existing -- and congress just didn't have the time or the energy to do this, it just reenacted it. >> i think the -- the formula
was -- was rational and effective in 1965. the court upheld it then, it upheld it three more times after that. >> well, the marshall plan was very good, too, the morale act, the northwest ordinance, but times change. >> and -- but the question is whether times had changed enough and whether the differential between the covered jurisdictions and the rest of the country had changed enough that congress could confidently make the judgment that this was no longer needed. >> general verrilli -- >> what the question -- >> general verrilli, could you respond to the question that justice kennedy asked earlier, which was for why isn't section 2 enough now? the government could bring section 2 claims if it seeks privately to do. why isn't -- he asked if it was expensive. you heard the question, so. >> yes.
with respect to --start with katzenbach. katzenbach made the point that section 2 litigation wasn't an effective substitute for section 5, because what section 5 does is shift the burden of inertia. and there's a -- i think it is self-evident that section 2 cannot do the work of section 5. take one example -- polling place changes. that in fact is the most frequent type of section 5 submission, polling place changes. now, changes in the polling places at the last minute before an election can be a source of great mischief. closing polling places, moving them to inconvenient locations, et cetera. what section 5 does is require those kinds of changes to be pre-cleared and on a 60-day calendar which effectively prevents that kind of mischief. and there is no way in the world you could use section 2 to effectively police that kind of mischief. >> well, i -- i do think the evidence is very clear that section -- that individual suits under section 2 type litigation were just insufficient and that section 5 was utterly necessary in 1965. no doubt about that. >> and i think it remains --
>> but with -- with a modern understanding of -- of the dangers of polling place changes, with prospective injunctions, with preliminary injunctions, it's not clear -- and -- and with the fact that the government itself can commence these suits, it's not clear to me that there's that much difference in a section 2 suit now and preclearance. i may be wrong about that. i don't have statistics for it. that's why we're asking. >> i -- i don't -- i don't really think that that conclusion follows. i think these under the -- there are thousands and thousands of these under-the-radar screen changes, the polling places and registration techniques, et cetera. and in most of those i submit, your honor, the -- the cost- benefit ratio is going to be, given the cost of this litigation, which one of the -- one of the reasons katzenbach said section 5 was necessary, is going to tilt strongly against bringing these suits. even with respect to the big ticket items, the big redistrictings, i think the logic katzenbach holds in that those suits are extremely expensive and they typically result in after-the-fact litigation. now, it is true, and the petitioners raised the notion that there could be a preliminary injunction, but i really think the petitioner's argument that section 2 is a satisfactory and complete
substitute for section 5 rests entirely on their ability to demonstrate that preliminary injunctions can do comparable work to what section 5 does. they haven't made any effort to do that. and while i don't have statistics for you, i can tell you that the civil rights division tells me that it's their understanding that in fewer than one-quarter of ultimately successful section 2 suits was there a preliminary injunction issued. so, i don't think that there's a basis, certainly given the weighty question before this court of the constitutionality of this law, to the extent the argument is that section 2 is a valid substitute for section 5, i just don't think that the -- that the petitioners have given the court anything that allows the court to reach that conclusion and of course -- >> can you tell us how many attorneys and how many staff in the justice department are involved in the preclearance process? is it 5 or 15?
>> it's a -- it's a very substantial number and -- >> well, what does that mean? >> it means i don't know the exact number, justice kennedy. >> hundreds? hundreds? dozens? what? >> i think it's dozens. and so the -- and so it -- so it's a substantial number. it is true in theory that those people could be used to bring section 2 litigation. >> right. >> but that doesn't answer the mail, i submit, because it's still -- you're never going to get at all these thousands of under-the-radar changes and you're still going to be in the position where the question will be whether preliminary injunctions are available to do the job. there is no evidence that that's true. and i'll point out there's a certain irony in the argument that what -- that what petitioner wants is to substitute section 2 litigation of that kind for the section 5
process, which is much more efficient and much more -- and much speedier, much more efficient and much more cost effective. >> then why shouldn't it apply everywhere in the country? >> well, because i think congress made a reasonable judgment that the problem --that in 2006, that its prior judgments, that there --that there was more of a risk in the covered jurisdictions continued to be validated by the section 2 evidence. >> well, you do really think there was -- that the record in 2006 supports the proposition that -- let's just take the question of changing the location of polling places. that's a bigger problem in virginia than in tennessee, or it's a bigger problem in arizona than nevada, or in the bronx as opposed to brooklyn. >> i think the combination of the history, which i concede is not dispositive, but is relevant, because it suggests caution is in order and that's a reasonable judgment on the part of congress, the combination of that history and the fact that there is a very significant disproportion in successful section 2 results in the covered jurisdictions as compared to the rest of the country, that congress was justified in concluding that there -- that it there was reason to think that there continued to be a serious enough differential problem to justify -- >> well, the statistics that i
have before me show that in, let's say the 5 years prior to reauthorization, the gap between success in section 2 suits in the covered and the non-covered jurisdiction narrowed and eventually was eliminated. do you disagree with that? >> well, i think the --the -- you have to look at it, and congress appropriately looked at it through a broader -- in a -- in a broader timeframe, and it made judgments. and i think that actually, the the right way to look at it is not just the population judgment that mr. rein was critical of, the fact is, and i think this is in the katz amicus brief, that the covered jurisdictions contain only 14 percent of the subjurisdictions in the nation.
and so 14 percent of the subjurisdictions in the nation are generating up to 81 percent of the successful section 2 litigation. and i think -- >> general, is it -- is it the government's submission that the citizens in the south are more racist than citizens in the north? >> it is not, and i do not know the answer to that, your honor, but i do think it was reasonable for congress -- >> well, once you said it is not, and you don't know the answer to it. >> i -- it's not our submission. as an objective matter, i don't know the answer to that question. but what i do know is that congress had before it evidence that there was a continuing need based on section 5 objections, based on the purpose-based character of those objections, based on the disparate section 2 rate, based on the persistence of polarized voting, and based on a gigantic wealth of jurisdiction-specific and anecdotal evidence, that there was a continuing need. >> a need to do what? >> to maintain the deterrent and constraining effect of the section 5 preclearance process in the covered jurisdictions, and that -- >> and not -- and not impose it on everyone else? >> and -- that's right, given the differential in section 2 litigation, there was a basis for congress to do that. >> so what's the answer? i just want to be sure that i hear your answer to an allegation, argument, an excellent argument, that's been made, or at least as i've picked up, and that is that -- yes, the problem was terrible, it has gotten a lot better, it is not
to some degree cured. all right? think there is a kind of common ground. now then the question is -- well, what about this statute that has a certain formula? one response is -- yes, it has a formula that no longer has tremendous relevance in terms of its characteristic -- that is literacy tests. but it still picked out nine states. so, so far, you're with me. so it was rational when you continue. you know, you don't sunset it. you just keep it going. you're not held to quite the same criteria as if you were writing it in the first place. but it does treat states all the same that are somewhat different. one response to that is -- well, this is the fifteenth amendment, a special amendment, you know?
maybe you're right. then let's proceed state by state. let's look at it state by state. that's what we normally do, not as applied. all right. now, i don't know how satisfactory that answer is. i want to know what your response is as to whether we should -- if he's right --if he's right that there is an irrationality involved if you were writing it today in treating state a, which is not too discriminatorily worse than apparently massachusetts or something. all right? so -- so if that's true, do we respond state by state? or is this a matter we should consider not as applied, but on its face? i just want to hear what you think about that. >> let me give two responses, justice breyer. the first is one that focuses on the practical operation of the law and the consequences that flow from it. i do not think that shelby county or alabama ought to be able to bring a successful facial challenge against this law on the basis that it ought not to have covered arizona or alaska.
the statute has bailout mechanism. those jurisdictions can try to avail themselves of it. and if they do and it doesn't work, then they -- they may very well have an as-applied challenge that they can bring to the law. but that doesn't justify -- given the structure of the law and that there is a tailoring mechanism in it, it doesn't justify alabama -- >> i don't -- i don't understand the distinction between facial and as-applied when you are talking about a formula. as applied to shelby county, they are covered because of the formula, so they're challenging the formula as applied to them. and we've heard some discussion. i'm not even sure what your position is on the formula. is the formula congruent and proportional today, or do you have this reverse engineering argument? >> congress's decision in 2006 to reenact the geographic coverage was congruent and proportional because congress had evidence -- >> to -- to the problem or -- or was the formula congruent and
proportional to the remedy? >> the court has upheld the formula in four different applications. so the court has found four different times that the formula was congruent and proportional. and the same kinds of problems that mr. rein is identifying now were -- >> well -- i'm sorry. >> were true even back in city of rome, because of course the tests and devices were eliminated by the statute, so no no jurisdiction could have tests and devices. and city of rome itself said that the registration problems had been very substantially ameliorated by then, but there were additional kinds of problems. the ascent of these second- generation problems was true in city of rome as a justification that made it congruent and proportional. and we submit that it's still true now, that congress wasn't writing on a blank slate in 2006. congress was making a judgment about whether this formula, which everyone agrees, and in fact mr. rein's case depends on the proposition that section 5 was a big success.
>> well, maybe it was making that judgment, mr. verrilli. but that's -- that's a problem that i have. this court doesn't like to get involved in -- in racial questions such as this one. it's something that can be left left to congress. the problem here, however, is suggested by the comment i made earlier, that the initial enactment of this legislation in a -- in a time when the need for it was so much more abundantly clear was -- in the senate, there -- it was double-digits against it. and that was only a 5-year term. then, it is reenacted 5 years later, again for a 5-year term. double-digits against it in the senate. then it was reenacted for 7 years. single digits against it. then enacted for 25 years, 8 senate votes against it.
and this last enactment, not a single vote in the senate against it. and the house is pretty much the same. now, i don't think that's attributable to the fact that it is so much clearer now that we need this. i think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. it's been written about. whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. i don't think there is anything to be gained by any senator to vote against continuation of this act. and i am fairly confident it will be reenacted in perpetuity
unless -- unless a court can say it does not comport with the constitution. you have to show, when you are treating different states differently, that there's a good reason for it. that's the -- that's the concern that those of us who -- who have some questions about this statute have. it's -- it's a concern that this is not the kind of a question you can leave to congress. there are certain districts in the house that are black districts by law just about now. and even the virginia senators, they have no interest in voting against this. the state government is not their government, and they are going to lose -- they are going to lose votes if they do not reenact the voting rights act. even the name of it is wonderful the voting rights act. who is going to vote against that in the future? >> you have an extra 5 minutes. >> thank you. i may need it for that question. [laughter]
>> justice scalia, there's a number of things to say. first, we are talking about the enforcement power that the constitution gives to the congress to make these judgments to ensure protection of fundamental rights. so this is -- this is a situation in which congress is given a power which is expressly given to it to act upon the states in their sovereign capacity. and it cannot have been lost on the framers of the fourteenth and fifteenth amendments that the power congress was conferring on them was likely to be exercised in a differential manner because it was, the power was conferred to deal with the problems in the former states of the confederacy. so with respect to the constitutional grant of power, we do think it is a grant of power to congress to make these judgments, now of course subject to review by this court under the standard of northwest austin, which we agree is an appropriate standard. that's the first point. the second point is i do -- i do say with all due respect, i think it would be extraordinary to --to look behind the judgment of congress as expressed in the statutory findings, and -- and evaluate the judgment of
congress on the basis of that sort of motive analysis, as opposed to -- >> we looked behind it in boerne. i'm not talking about dismissing it. i'm --i'm talking about looking at it to see whether it makes any sense. >> and -- but -- but i do think that the deference that congress is owed, as city of boerne said, "much deference" -- katzenbach said "much deference." that deference is appropriate because of the nature of the power that has been conferred here and because, frankly, of the superior institutional competence of congress to make these kinds of judgments. these are judgments that assess social conditions. these are predictive judgments about human behavior and they're predictive judgments about social conditions and human behavior about something that the people in congress know the most about, which is voting and the political process. and i would also say i understand your point about entrenchment, justice scalia, but certainly with respect to
the senate, you just can't say that it's in everybody's interests -- that -- that the enforcement of section 5 is going to make it easier for some of those senators to win and it's going to make it harder for some of those senators to win. and yet they voted unanimously in favor of the statute. >> do you think the preclearance device could be enacted for the entire united states. >> i don't think there is a record that would substantiate that. but i do think congress was -- >> and that is because that there is a federalism interest in each state being responsible to ensure that it has a political system that acts in a democratic and a civil and a decent and a proper and a constitutional way. >> and we agree with that, we respect that, we acknowledge that northwest austin requires an inquiry into that. >> but if -- if alabama wants to have monuments to the heros of the civil rights movement, if it wants to acknowledge the wrongs of its past, is it better off doing that if it's an own independent sovereign or if it's under the trusteeship of the united states government? >> of course it would be better in the former situation. but with all due respect, your honor, everyone agrees that it was appropriate for -- for congress to have exercised this express constitutional authority
when it did in 1965, and everybody agrees that it was the was the exercise of that authority that brought about the situation where we can now argue about whether it's still necessary. and the point, i think, is of fundamental importance here is that that history remains relevant. what congress did was make a cautious choice in 2006 that given the record before it and given the history, the more prudent course was to maintain the deterrent and constraining effect of section 5, even given the federalism costs, because, after all, what it protects is a right of fundamental importance that the constitution gives
congress the express authority to protect through appropriate legislation. >> before your time expires, i would like to make sure i understand your position on this as-applied versus facial issue. is it your position that this would be a different case if it were brought by, let's say, a county in alaska as opposed to shelby county, alabama? >> no. not -- not -- no. let me just try to articulate clearly what our -- what our position is. they've brought a facial challenge. we -- we recognize that it's a facial challenge. we're defending it as a facial challenge, but our point is that the facial challenge can't succeed because they are able to point out that there may be some other jurisdictions that ought not to be appropriately covered, and that's especially true because there is a tailoring mechanism in the statute. and if the tailoring mechanism doesn't work, then jurisdictions that could make such a claim may well have an as-applied challenge. that's how we feel. >> thank you, general. >> thank you, mr. chief justice. >> mr. adegbile. >> mr. chief justice, and may it please the court -- the
extensive record supporting the renewal of the preclearance provisions of the voting rights act illustrates two essential points about the nature and continuing aspects of voting discrimination in the affected areas. the first speaks to this question of whether section 2 was adequate standing alone. as our brief demonstrates, in alabama and in many of the covered jurisdictions, section 2 victories often need section 5 to realize the benefits of the -- of the ruling in the section 2 case. that is to say, that these measures act in tandem to protect minority communities, and we've seen it in a number of cases. >> but that's true in every state, isn't it? >> justice scalia -- >> i mean, you know, i don't think anybody is contesting that it's more effective if you use section 5. the issue is why just in these states. that's it. >> fair enough. it's beyond a question of being true in any place. our brief shows that specifically in the covered jurisdictions, there is a
pattern, a demonstrated pattern of section 2 and 5 being used in tandem whereas in other jurisdictions, most of the section 2 cases are one-off examples. we point to a whole number of examples. take for example selma, alabama. selma, alabama in the 1990s, not in the 1960s but in the 1990s, had a series of objections and section 2 activity and observers all that were necessary to continue to give effect to the minority inclusion principle that section 5 was passed to vindicate in 1965. >> but a section 2 case can, in effect, have an order for bail-in, correct me if i'm wrong, under section 3 and then you basically have a mini -- something that replicates section 5. >> the bail-in is available --bail- in is available if there's an actual finding of a constitutional violation. it has been used in -- in a number of circumstances. the united states brief has an appendix that points to those. one of the recent ones was in port chester, new york, if memory serves. but it's quite clear that the pattern in the covered
jurisdictions is such that the repetitive nature of discrimination in those places -- take, for example, the case in lulac. after this court ruled that the redistricting plan after the 2000 round of redistricting bore the mark of intentional discrimination, in the remedial election, the state of texas tried to shorten and constrain the early voting period for purposes of denying the latino community of the opportunity to have the benefits of the ruling. what we've seen in section 2 cases is that the benefits of discrimination vest in incumbents who would not be there but for the discriminatory plan. and congress, and specifically in the house report, i believe it's page 57, found that section 2 continues to be an inadequate remedy to address the problem of these successive violations. another example that makes this point very clearly is in the 1990s in mississippi. there was an important section 2 case brought finally after 100 years to break down the dual registration system that had a discriminatory purpose. when mississippi went to
implement the national voter registration act, it tried to bring back dual registration, and it was section 5 -- section 5 enforcement action that was able to knock it down. >> do you agree with the reverse engineering argument that the united states has made today? >> i would frame it slightly differently, chief justice roberts. my understanding is that the history bears some importance in the context of the reauthorizations, but that congress in -- in none of the reauthorizations stopped with the historical backward look. it takes cognizance of the experience, but it also looks to see what the experience has been on the ground. and what congress saw in 2006 is that there was a surprisingly high number of continuing objections after the 1982 reauthorization period and that -- >> i guess -- i guess the question is whether or not that disparity is sufficient to justify the differential treatment under section 5. once you take away the formula, if you think it has to be reverse engineered and -- and
not simply justified on its own, then it seems to me you have a much harder test to justify the differential treatment under section 5. >> this court in northwest austin said that it needs to be sufficiently related, and i think there are two principal sources of evidence. >> well, we also said congruent and proportional. >> indeed. indeed. i don't understand those things to be unrelated. i think that they're part of the same, same test, same evaluative mechanism. the idea is, is congress -- the first question is, is congress remedying something or is it creating a new right. that's essentially what boerne is getting to, is congress trying to go -- do an end-around, a back doorway to expand the constitution. we know in this area congress is trying to implement the fifteenth amendment and the history tells us something about that. but specifically to the question -- >> well, the fifteenth amendment is limited to intentional discrimination, and, of course, the preclearance requirement is not so limited, right? >> that's correct. but this court's cases have held
that congress, in proper exercise of its remedial powers, can reach beyond the --the core of the intentional discrimination with prophylactic effect when they have demonstrated that a substantial problem exists. the -- the two things that speak to this issue about the disparity in coverage and continuing to cover these jurisdictions, there are two major inputs. the first is the section 5 activity. the section 5 activity shows that the problem persists. it's a range of different obstacles, and section 5 was passed to reach the next discriminatory thing. the case in -- >> well, section 5 -- the section 5 activity may show that there's a problem in the jurisdictions covered by section 5, but it says nothing about the presence or absence of similar problems in noncovered jurisdictions, isn't that right? >> absolutely, justice alito. >> all right. >> and so i come to my second category. the second category, of course, is the piece of the voting rights act that has national application, section 2. and what the evidence in this case shows, and it was before
congress, is that the concentration of section 2 successes in the covered jurisdictions is substantially more. justice kagan said that it was four times more adjusting for population data. the fact of the matter is that there is another piece of evidence in the record in this case where peyton mccrary looks at all of the section 2 cases, and what he shows is that the directional sense, that the ellen katz study pointed to dramatically understates the disparity under section 2. and so he found that 81 percent -- >> all of the noncovered states are worse in that regard than the nine covered states, is that correct? >> justice scalia -- >> every -- every one of them is worse. >> justice scalia, it's -- it's a fair question, and -- and i was speaking to the aggregate -- >> it's not just a fair one, it's the crucial question. congress has selected these nine states. now, is there some good reason for selecting these nine? >> what we see in the evidence is that of the top eight states with section --favorable section 2 outcomes, seven of them, seven of them are the covered jurisdictions. the eighth was bailed in under the other part of the mechanism that, as justice kennedy points
out, can bring in some jurisdictions that have special problems in voting. and so we think that that points to the fact that this is not a static statute, it's a statute that is -- >> yeah, but his point, i think the point is this -- if you draw a red line around the states that are in, at least some of those states have a better record than some of the states that are out. so in 1965, well, we have history. we have 200 years or perhaps of slavery. we have 80 years or so of legal segregation. we have had 41 years of this statute. and this statute has helped, a lot. so therefore congress in 2005 looks back and says don't change horses in the middle of the stream, because we still have a ways to go. now the question is, is it rational to do that?
and people could differ on that. and one thing to say is, of course this is aimed at states. what do you think the civil war was about? of course it was aimed at treating some states differently than others. and at some point that historical and practical sunset/no sunset, renew what worked type of justification runs out. and the question, i think, is has it run out now? and now you tell me when does it run out? what is the standard for when it runs out? never? that's something you have heard people worried about. does it never run out? or does it run out, but not yet? or do we have a clear case where at least it doesn't run out now? now, i would like you to address that. >> fair enough, justice breyer. i think that the -- what the evidence shows before congress is that it hasn't run out yet.
the whole purpose of this act is that we made progress and congress recognized the progress that we made. and, for example, they took away the examiner provision which was designed to address the registration problem. in terms of when we are there, i think it will be some point in the future. our great hope is that by the end of this next reauthorization we won't be there. indeed, there is an overlooked provision that says in 15 years, which is now 9 years from where i stand here today before you, congress should go back and look and see if it's still necessary. so we don't think that this needs to be there in perpetuity. but based on the record and a 2011 case in which a federal judge in alabama cited this court's opinion in northwest austin -- there were legislators that sit today that were caught on tape referring to african american voters as illiterates. their peers were referring to them as aborigines. and the judge, citing the northwest austin case -- it's the mcgregor case cited in our brief --said that, yes, the south has changed and made progress, but some things remain stubbornly the same and the trained effort to deny african
american voters the franchise is part of alabama's history to this very day. >> have there been episodes, egregious episodes of the kind you are talking about in states that are not covered? >> absolutely, chief justice roberts. >> well, then it doesn't seem to help you make the point that the differential between covered and noncovered continues to be justified. >> but the great weight of evidence -- i think that it's fair to look at -- on some level you have to look piece by piece, state by state. but you also have to step back and look at the great mosaic. this statute is in part about our march through history to keep promises that our constitution says for too long were unmet. and this court and congress have both taken these promises seriously. in light of the substantial evidence that was adduced by congress, it is reasonable for congress to make the decision that we need to stay the course so that we can turn the corner. to be fair, this statute cannot go on forever, but our experience teaches that six amendments to the constitution have had to be passed to ensure safeguards for the right to vote, and there are many federal
laws. they protect uniform voters, some protect eligible voters who have not had the opportunity yet to register. but together these protections are important because our right to vote is what the united states constitution is about. >> thank you, counsel. mr. rein, 5 minutes. >> thank you, mr. chief justice. >> do you think that the right to vote is a racial entitlement in section 5? >> no. the fifteenth amendment protects the right of all to vote and -- >> i asked a different question. do you think section 5 was voted for because it was a racial entitlement? >> well, congress -- >> do you think there was no basis to find that -- >> was reacting -- may i say congress was reacting in 1964 to a problem of race discrimination which it thought was prevalent in certain jurisdictions. so to that extent, as the intervenor said, yes, it was intended to protect those who had been discriminated against.
if i might say, i think that justice breyer -- >> do you think that racial discrimination in voting has ended, that there is none anywhere? >> i think that the world is not perfect. no one -- we are not arguing perfectibility. we are saying that there is no evidence that the jurisdictions that are called out by the formula are the places which are uniquely subject to that kind of problem -- >> but shouldn't -- >> we are not trying -- >> you've given me some statistics that alabama hasn't, but there are others that are very compelling that it has. why should we make the judgment, and not congress, about the types and forms of discrimination and the need to remedy them? >> may i answer that? number one, we are not looking at alabama in isolation. we are looking at alabama relative to other sovereign states. and coming to justice kennedy's point, the question has is alabama, even in isolation, and those other states reached the point where they ought to be given a chance, subject to section 2, subject to cases
brought directly under the fifteenth amendment, to exercise their sovereignty -- >> how many other states have 240 successful section 2 and section 5 -- >> justice sotomayor, i could parse statistics, but we are not here to try alabama or massachusetts or any other state. the question is the validity of the formula. that's what brings alabama in. if you look at alabama, it has a number of black legislators proportionate to the black population of alabama. it hasn't had a section 5 rejection in a long period. i want to come to justice breyer's point because i think that -- i think he's on a somewhat different wavelength, which is isn't this a mere continuation? shouldn't the fact that we had it before mean, well, let's just try a little bit more until somebody is satisfied that the problem is cured? >> don't change horses. you renew what is in the past -- >> right. >> where it works, as long as the problem isn't solved. ok? >> well, and i think the problem
to which the voting rights act was addressed is solved. you look at the registration, you look at the voting. that problem is solved on an absolute as well as a relative basis. so that's like saying if i detect that there is a disease afoot in the population in 1965 and i have a treatment, a radical treatment that may help cure that disease, when it comes to 2005 and i see a new disease or i think the old disease is gone, there is a new one, why not apply the old treatment? >> well, mr. rein -- >> i wouldn't -- >> that is the question, isn't it? you said the problem has been solved. but who gets to make that judgment really? is it you, is it the court, or is it congress? >> well, it is certainly not me. [laughter] >> that's a good answer. i was hoping you would say that. >> but i think the question is congress can examine it, congress makes a record, it is up to the court to determine whether the problem indeed has been solved and whether the new problem, if there is one -- >> well, that's a big, new power that you are giving us, that we have the power now to decide
whether racial discrimination has been solved? i did not think that that fell within our bailiwick. >> i did not claim that power, justice kagan. what i said is, based on the record made by the congress, you have the power, and certainly it was recognized in northwest austin, to determine whether that record justifies the discrimination among -- >> but there is this difference, which i think is a key difference. you refer to the problem as the problem identified by the tool for picking out the states, which was literacy tests, et cetera. but i suspect the problem was the denial or abridgement by a state of the right to vote on the basis of race and color. and that test was a way of picking out places where that problem existed. now, if my version of the problem is the problem, it certainly is not solved. if your version of the problem, literacy tests, is the problem, well, you have a much stronger case.
so how, in your opinion, do we decide what was the problem that congress was addressing in the voting rights act? >> i think you look at katzenbach and you look at the evidence within the four corners of the voting rights act. it responds to limited registration and voting as measured and the use of devices. the devices are gone. that problem has been resolved by the congress definitively. so it can't be the basis for further -- further legislation. i think what we are talking about here is that congress looks and says, well, we did solve that problem. as everyone agrees, it's been very effective, section 5 has done its work. people are registering and voting and, coming to justice scalia's point, senators who see that a very large group in the population has politically wedded themselves to section 5 are not going to vote against it, it will do them no good. and so i think, justice scalia, that evidence that everybody votes for it would suggest some of the efficacy of section 5. you have a different constituency from the constituency you had in 1964.
but coming to the point, then if you think there is discrimination, you have to examine that nationwide. they didn't look at some of the problems of dilution and the like because they would have found them all over the place in 1965. but they weren't responding to that. they were responding to an acute situation where people could not register and vote. there was intentional denial of the rights under the fifteenth amendment. >> thank you, counsel. >> thank you. >> counsel. the case is submitted. >> next defense secretary chuck hagel on the automatic budget cuts. after that the republican opposite the impact of defense cuts. then education secretary and health and human secretary on the importance of early education programs. on "newsmakers" senator ron
wyden. he discusses his ayen da for the committee. "newsmakers" at 10:00 a.m. eastern on c-span. >> i was fascinated by her feminist view, you know, remember the ladies, or you're going to be in trouble. she warned her husband. you can't rule out including what women want and what have to contribute. this is 1700's she's saying that. >> this monday night on c-span's new history series "first ladies" she was outspoken about her views and slavery as one of the most prolific writers. she provides a unique window into her life with john adams.
join in the conversation on abigail adams live on monday night at 9:00 eastern on c-span and c-span.org. >> next chuck hague until a pentagon briefing to discuss the impact on automatic spending cuts on defense program program. he was joined at this half hour briefing by deputy defense secretary ashton carter. >> good afternoon. >> i wanted to take a few minutes to talk a little bit about sequestration, which was
announced today. many of you saw the president a few hours ago. i will make a statement and then the deputy secretary and i will entertain questions. thank you for coming. i just spent an hour between -- between an hour and an hour-and-a-half with the joint chiefs to talk about this issue and to talk about the consequences and how we will continue to adjust to the reality that faces our country and faces this institution. in particular, i would like to address the uncertainty that
sequestration is causing and will continue to cause this department. at the outset of my remarks, let me make it clear that this uncertainty puts at risk our ability to effectively fulfil all of our missions. leadership at the pentagon, all of us, have two serious concerns. first, the abrupt and arbitrary cuts imposed by sequester. second, the lack of budget management flexibility that we now face under the current continuing resolution for the past 8 months, d.o.d. has begun to see the effects and consequences of that -- passed two months, d.o.d. has begun to see -- past 2 months, d.o.d. has
begun to see the effects and consequences of those actions. the actions we are taking as a result of these budget restraints. the navy will stand down gradually at least four wings. air force flying hours will be cut back. this will have a major impact on training and readiness. the army will curtail training for all units except those deployed to afghanistan, adversely impact the nearly 80% of army and operational units. later this month, we intend to issue hesitations to thousands of civilian employees who will be furloughed. these steps come on top of those the department began in january
to slow spending in view of this uncertainty. those include the deployment of naval assets, hiring freezes, beginning to lay off temporary employees, sharply cutting back facility maintenance and beginning views to delay contracts. -- refused to delay contracts. if the continuing resolution is extended in its current form, other damaging effects will become apparent. our number one concern is our people, military and civilian. the millions of men and women at his department to work hard every day to ensure a merkel's -- america's security. i know that these budget cuts will cause -- to insure
america's security. i know that these budget cuts will cause pain to military families. we are all concerned about the impact on readiness and these cuts will have a cross our force. for these reasons, the department's senior leadership will continue to work with the administration and congress to help resolve this uncertainty, specifically, we need a balanced deficit-reduction plan that leads to an end to sequestration. and we need congress to pass appropriations bills for d.o.d. and all federal agencies. we will need to make hard choices. i will do everything within my power to see that america of hold its commitment to our allies and our partners. and most importantly, to our service members and their families. today, america has the best fighting force in the world, capable of responding to any challenge. this on necessary budget crisis makes that job much harder.
-- and necessary -- unnecessry budget crisis makes that job much harder. i will take a couple of questions and then i will ask ash for his response. >> the language you use is not as dramatic as that that has been used in recent months talking about catastrophic results if sequestration happens. do you think this is not a situation where the u.s. will be reduced to a second great military power? may ask a question on syria? what is your opinion on whether the u.s. should be doing more militarily to help the rebels? >> america, as i concluded my remarks, has the best fighting force, the most capable, most powerful fighting force in the world.
the management of this institution, starting with the joint chiefs, are not going to allow this capacity to erode. we will manage these issues. these are adjustments. we anticipated these kinds of realities. we will do what we need to do to ensure the capabilities of our forces. on syria, i think it is clear what our policy is. non-legal assistance. secretary of state john kerry has recently commented, as you know following his trip around the world. >> sequestration has been described as a slope and not a cliff. in your opinion, how long can sequestration go on before there
is real damage to the defense of the united states? >> we are adjusting for reality, not just for what happened today. as i noted in my remarks, we have a continuing resolution that expires on march 27, an additional complication. i have confidence in the president and the congress that decisions and consensus will be reached at some point to avert tremendous damage to this institution. this is the security of the united states of america we are talking about. that is the highest order of any government, in the leader. we will do what is necessary, what it takes to assure that
that security to assure that security -- to assure that security. >> others in your department has -- have expressed concerns that the budget sequestration will prevent the department from implementing the defense strategy that the obama administration announced last year. do you share that opinion? and when do you begin to start modifying that strategy? >> adjustments are being made and we have anticipated required adjustments to our budgets to ensure the capabilities and readiness of our forces. as to the issue of the president's strategic guidance, that is the policy. in my opinion, it is the correct policy.
we have been implementing that conceded that is over the last year and we will continue -- that strategic guidance of the last year and we will continue. >> given your role inside nato, what is going to happen to nato? will you be in contact with the allies and the secretary-general to explain the situation? >> we have been in touch with our nato allies. as you know, we are in constant communication with our nato allies. they are not unmindful and not unaware of this issue that we unaware of this issue that we are currently engaged in.