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tv   Key Capitol Hill Hearings  CSPAN  May 31, 2016 6:00pm-8:01pm EDT

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one of the reasons way i want to show this, this is all about the impeachment process over the years. how many times has the senate convicted after impeachment by the house a judge or president or supreme court justice? betty: we have had 20 impeachment trials so far and about half have resulted in conviction. brian: the supreme court justice samuel chase? was he convicted? betty: he was acquitted. he was the third impeachment trial ever. the first impeachment ever was a senator from tennessee. the time he got to the trial he had already been expelled by the senate so they expelled the case for lack of jurisdiction. the first to be convicted was in new hampshire judge name john pickering. he was removed from office. samuel chase was a very politicized case. thomas jefferson really had a
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lot to do with that as president. it was an effort by the jeffersonian republicans to remove federalists from the bench. chase was an outspoken federalist. he was not removed from office. brian: what happened to andrew johnson? what happened to him? betty: he was impeached by the house in 1868, but he was saved from conviction by one single vote. the vote was one short of the 2/3 necessary for conviction. brian: and then the second president was bill clinton. betty: william clinton. here is some video from senate mitch mcconnell in 1986. [begin video clip] >> you were guilty of defrauding the government on your tax return, and you are now serving a prison term for that. i want you to state for me, judge clyburn, the best possible justification this senator could state to overturn that criminal conviction. and allow you to continue to serve as a federal district
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judge. why you cannot perform the duties. >> if you honestly feel in your heart that i got a raw deal and i should not have been convicted, and that i in good faith disclosed all of my income to buy tax preparer and they made brutal errors in my returns for which i was not responsible, therein as i see, the choice you have to make. [end video clip] brian: they thought he was guilty. he went on to practice law. betty: that was harry claiborne. we had three impeachments in the 1980's which is interesting because there had not been a single one since the 1930's. by the time we got to the 1980's, they had no personal knowledge of impeachment trials.
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they had to kind of start with the process from scratch. there are several things they can do with impeachment. the main purpose of impeachment is to remove someone from office, but in the senate can vote to also disqualify that person from serving in any future office, and they often do hold those votes separately so they can convict someone but not squalify them from future service, and that is what the case with hastings, for instance -- he served in the house after being convicted. brian: judge clyburn committed suicide before was all over, years later. the audience did not see the hastings clip. the congressmen now from florida, here is jeff hastings talking about it. [begin video clip] >> i am being tried for the exact same thing that i was tried for before, and i don't know how to call it other than double jeopardy.
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so when congress says that the standard, that the standard for impeachment is not the same standard as in a criminal trial, well, i kept waiting to see what the standard of impeachment is. and he never said, because there is no standard. and the standard is in the feelings of the particular senators sitting at the time. [end video clip] brian: is he right? betty: he is. he is making an interesting point. impeachable high crimes and misdemeanors have never been well-defined through the years. so with each new impeachment trial, the senate is faced with new impeachment hurdles to determine if that particular set of crimes committed by this individual reached the point of impeachment standard, and they somehow qualify as high crimes and misdemeanors.
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that is the only guidance they have from the constitution, so they have to redefine, redefine these impeachment crimes over and over, which is what they have been doing for 200 years. brian: overall, no supreme court justices have been convicted, no president has been convicted, and most judges have been district court judges? betty: we had two presidents, one cabinet official, one supreme court justice, and the rest have been judicial. brian: you were in the senate as an assistant historian when bill clinton was impeached? betty: i had just arrived. i came in june of 1998 as a new minted senate historian. my colleague john richardson said to me it will be quiet, we have an election coming. you have lots of time to read and settle into your new job. within a few weeks, the house to impeach bill clinton and we got very busy very quickly. we had to do a good deal of
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research on impeachment trials. we had not had a presidential impeachment since 1868. the senate leaders at that time really wanted to follow historical precedent as much as they could. we did a good deal of research into all of the impeachment trials, particularly the johnson impeachment trial, to see how the chamber was set up, with the prosecutor said, who were the house managers, where the defense lawyers sat. we even went to the point of looking at how the tickets were printed for the johnson impeachment trial and did similar gallery tickets for the clinton trial. history was a very strong guide throughout the clinton impeachment process. brian: how free are you in the historian's office to say whatever you want to say? betty: we try to be cautious we are dealing with current members. we have never been censured or censored, so to speak.
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we are pretty free to speak about former members in senate history. we do have a policy in the office that we do not comment on current members or current issues. we wait for them to become history before we do that. but the secretary of the senate, our chief boss, has been very supportive of our office for 40 years and has been very helpful in letting us to get information out to reporters and the public when we need to. we are cautious but we are not restricted in a very strong way. brian: do you have to call the secretary of the senate to get permission to say something? betty: not necessarily, no. depends on the study. if i'm going to do an on camera interview like this for instance, i will make sure they are ok with that. they have never turned me down.
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we speak to reporters, and the public all the time, and we don't need permission to do that. brian: senator robert byrd, deceased for a couple of years, here is something he used to do all the time. put this into context. [begin video clip] >> spring has arrived. haha, how sweet it is, how sweet it is. spring has arrived. after a long gray winter, made darker by the spectre of war, and with that confidently upon us, it is heartening to be reminded of the great rhythm of the seasons, and the renewal of the earth and the life upon it. now, nature hangs her mantle green on every blooming tree, and spreads her seeds of daisies white out o'er the grasses lire. so wrote the poet robert burns. [end video clip] [laughter] brian: put him into context.
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betty: senator byrd was the model of the senatorial decorum in so many ways. he was a great student of history, a great master of senate procedures, and was very tuned into the constitutional role of the senate and the important role it plays in our federal government. when he went to the floor he usually went to the floor well armed with information, but also attempted to put the debate into a broader context. a broader historical context. he often did that by doing history lessons on the floor. he often quoted poetry like you see there. he also would bring an element of camaraderie, an element of friendliness to the debate. i will give you one example of that. back in 1964 when the senate was
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in the midst of a filibuster against the 1964 civil rights act. it was the very last night of that final speech, part of that filibuster came from senator byrd who did a 14 hour speech opposing the civil rights act of 1964. as that speech wore on during the night, senator humphrey, who was the democratic floor leader, came to the floor and asked senator byrd if he knew when he would finish his speech because they had scheduled the all-important culture vote for 10:00 the next morning. senator byrd said, i have enough material to go on for another 14, 15 hours, but i promised the senator from minnesota that i will finish by 10:00 in the morning. and then he went on to quote poetry, and he talked about red roses on his neighbors' vines. and in the end, hubert humphrey thanked him for ending on time and the next morning at 9:55,
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senator byrd did finish his speech just in time for the closure vote, and hubert humphrey's showed up and he and the red rose to his lapel. so there you have a case of two people on opposite sides of the issue, one part of the filibuster against the civil rights bill and one going for the civil rights bill coming together in this way that allows them to have a personal connection despite their political differences. brian: if you are going to recommend one book about the united states senate to people listening or watching now, what, who would it be? betty: one book would be my colleague dick baker's book which came at a couple of years ago. it is the most comprehensive history that you will find in
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one volume. i often say to people when they ask me back, which era of senate history are you interested in? because if you want to capture the senate of the 1940's to 1950's, i might recommend one book in the senate has evolved a great deal through the years and so, even from the 1960's until today, it is a very different institution. so i would ask them that question first. but if you are really looking for a one volume comprehensive history, i would go to richard baker's "the american senate." brian: give us another one. betty: if you want to capture something from the mid-20th century, look at william white's "the citadel." it was written about the senate in the 1950's and really sort of looks at how the senate this did -- existed in a very club atmosphere way. it goes through the types of people who become senators and how they relate to each other. it is kind of a time capsule of the senate of the mid-20th century.
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if you want to look at the senate of the 1950's with lbj, go to robert carol's "a master of the senate." it does a good job of capturing t;he majority leadership of lyndon johnson. if you are looking at the 19th century, there has been some books recently on the 1850 compromise that does a wonderful job of exploring that pre-civil war senate where debate and legislative compromises were the rule of the day. brian: here is robert carol when his book came out, "master of the senate", sitting in the taj mahal room where lyndon johnson used to sit. i guess the question to you is, is there anyone like that today? [begin video clip] >> the lyndon johnson had so much space that they used to call this wing johnson ranch east. on the floor above us, he had the entire western end of the building, six floors for his various offices. and down here he had this room and in office over there where
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his secretary sat. he had various hideaways in the basement. but this was his favorite office. what you realize is that what was going on in this room, we see exercise of power. this is where he would talk to people about their committee assignments, about important bills that they had to get past or the constituents would not forgive them, and they would not be able to get passed unless lyndon johnson would get it on the calendar and then off the calendar for a vote. brian: anybody like him have that much space today? betty: the leaders have a lot of not that much, the leadership suites have expanded and back in the 1980's, they created sent leadership suites for both republican and democratic leader. they do not come in and take space the way johnson did. he did take over a lot of space
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in the senate wing. he was also a much larger than in personality as well as space and was very dominant, domineering, had the senate under a strong heavy hand of control in a lot of ways. it is hard to compare him with people today. that is partly because the leadership has changed. it works in different ways, but the senate has changed a lot since the 1950's, and so a lot of the things that johnson did, the means of making progress that johnson used would not necessarily be accepted today. brian: i know that you have been working on the old senate chamber, and we have some video that when we did our special on the capitol show, the old senate chamber. why are you interested in changing routine in this particular place, because a lot of tourists see this place.
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betty: a lot of tourists see this place, and a lot of staff take tours of the space with constituents that visit. i'm interested in taking a new look at this room. for 40 years, my colleagues and i have been giving talks and tours in this room. talking to the vips and guests. really for many decades, the stories have not changed. people get the story of the great triumvirate of clay, webster, and calhoun. they hear about the caning of sumner. our knowledge of the senate of the 1840's to 1850's has grown a lot. we have some much larger historiography than we once had, and we know more about the individuals, not just the famous trio, but many others that served in that space. part of my mission as senate historian is to bring fresh eyes and fresh perspective to how we look at these spaces in the capital. with the old senate chamber, i have started giving talks to
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people that focus not so much on the great triumvirate and the compromise of 1850 but the debates that led up to the moment, and the diversity in the chamber. even though women did not serve as elected members or senators until 1922, in the 19th century, women were a very visible presence in the old chamber. they were in the gallery, there are diaries and letters and articles about that. and so i started to make the story more inclusive of a much broader array of audiences, and partly to make it accessible to modern audiences, but also to show that the senate, even though it was a white male membership, wasn't necessarily a wealthy all-male environment. and we now have some of the information we need to start to tell some of those stories. brian: i cannot resist this. you talk about the books. i want to show what impact shows like "house of cards" -- here is
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kevin spacey. it is the house of representatives and not the senate, but i am sure you have an opinion on this. [begin video clip] >> 22 years in congress, i can smell the way the wind is blowing. jim matthews, former governor of pennsylvania, did his duty delivering the keystones date. bless his heart. but now it is time to put him out to pasture. for some, it is simply the size of the chairs. linda vasquez, walker's chief of staff. i got her hired. she is a woman, check, latina, jack, and more important than that, she is as tough as a two dollars stake. check, check, check. when he did a key in your back pocket, you take what you can. as for me, i am just a lonely house majority whip, i keep things moving in a congress. my job is to keep the pipes moving and the sludge going. but i won't have to do that much longer.
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i have done my time. welcome to washington. [end video clip] brian: what impact has that had? do you get questions about it? betty: we do. i was speaking to a large group of foreign scholars a few weeks ago, and one of them raised his hand and said, i know absolutely nothing about the u.s. congress or the senate. the only thing i know about what i see on "house of cards." and i said, well, that is not in accurate for trail. -- trial. people have to recognize it is fiction, not real. but what i love about "house of cards" is it these personalities. -- it creates this variety of personalities and congress, the senate, and the house are made up of personalities and some of them you like. some of them you do not like. some of them are completely honest. some of them are not. in that has been the case since 1789.
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i do love that variety you get. but that is not a very accurate depiction of politics. largely the public views of what it is like to be a u.s. senator is not very well informed. that show does not really help. brian: so, i am a student somewhere, it could be college, high school, could be having a phd and i want to get the absolute best information i can about the senate. and i can't. but when i get if i came to your office or came to the senate that i could not get on the internet? betty: a lot of senate history is not on the internet, believe it or not. even though we have a lot of pages on, a lot of what you get on the internet is not necessarily factual so you have to be careful what you get there. if you come to our office, you will get, in addition to the thousands of research files we have in the office that are available to researchers, you
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will get a staff that is very well informed and well trained at and well schooled in senate history will stop so anybody speak to in the office would be able to help guide you to the sources you need. archival sources and secondary sources and would help to find photographs you want to or document you are looking for. we help the public all the time with those kind of requests. brian: what kind of credentials you have jeff to get into see this kind of stuff? betty: anybody can come into the off is an open office. if you want to use our resources to get into the national archives and that can stuff, you have to be a serious research files top you need to be someone who was a scholar or somebody working on a phd dissertation or even if you are working on an honors project for high school project or something like that, we help many people. brian: how many oral histories do you have on file? betty: we have done hundreds of oral histories through the years. we have about 50 of the
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transcripts online but in addition to those we have another 60 or 70 volumes that are not online for a variety of reasons. some are just not open to research yet. some of them keep your oral histories closed for a while. in the last year, we have done about 70 interviews. so it is an ongoing process. brian: she is the associate? betty: she is the associate historian. brian: so, what part of this job didn't you expect? you were sitting over there for as 16 years not the historian. now that you are, what changed? betty: the demands on your time are tremendous when you're in a historian's position because when you are the assistant or the associate, you are dealing with the day-to-day operations of the office, but you don't
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necessarily get all the calls from senators of the senate office. that usually goes to the historian, and i have a newfound respect for both did baker and don ritchie for how they handled all of those calls. i get a lot of requests from senators to the special projects, special tours, to come talk to their staff, to do research for a speech they might be writing, to help better to speech they are writing, and in it and have to deal with that so much when i was an associate historian. so there is a lot of demand on time, but fortunately i have a wonderful staff and it has all been working very well. brian: and where can you go? betty: go to and go to history and click on our page. brian: thank you very much for joining us. betty koed, the historian for the united states senate. betty: thank you, brian. ♪ [captions copyright national cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit]
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announcer: for free transcripts or to give us your comments about this program, visit us at q& q&a programs are also available as c-span podcasts. we are catching up with 20th century. we have been the invisible half of the congress the past seven years. we have watched our house colleagues with interest, at least i have with interest, and the tv coverage of members of our colleagues in the house. senate comesu.s. at of the communication's we create another historic moment in the relationship between congress and technological advancements in communications through radio and television.
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50 years ago our executive branch began appearing on television. today marked the first time when our legislative branch in its entirety will appear on that medium of communication through which most americans get their information about what our government and country does. senate chamberhe proceedings also represents a wise and wanted policy. media coverage recognizes the basic variety in need of the citizens of our nation to know that -- there the -- to know the business of their government. >> c-span marks the 30th anniversary of our live level to gavel coverage. featuring key moments from the senate for from the past 80 years. the body ofut you evidence from this question, do you trust william jefferson clinton? we have just witnessed something that has never before happened
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in all of senate history. the change our -- of power during a session of congress. >> what the american people still cannot understand in this bill is there are three areas in this bill that in the next five years will that the government in charge of everyone [indiscernible] >> i am sure i have made a number of mistakes in my political career. but voting against having c-span television -- televise the senate was one of them. >> watch 30 years of the u.s. senate on television. beginning thursday on c-span. and see more about 30 years of coverage of the u.s. senate on c-span2. go to >> congress is in recess but the news out of house speaker paul ryan's office today is that there is no funding shortage to fight the zika virus. this is in direct opposition to the white house and democrats
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were pressing for 1.9 billion dollars to fight the zika virus. the house speaker gave the commencement address at carthage college in kenosha, wisconsin and encouraged graduates not get bogged down by a plan and follow a path that leads to fulfillment. >> thank you. dr. ryan. sounds a tom clancy novel. i forgot about that. thank you very much. to the class of 2016, congratulations. [applause] this is a big moment in your life and no matter how much fun
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you're are going to have tonight you are bound to remember some of it. [laughter] if you forget the speech, no big loss. i will get over it eventually. just for member one thing. remember the people that got you here. saying which i may have made up a few minutes ago. is for the couple. the wedding is for the family. think of your graduation the same way. it is their achievement as much as it is yours and yet they have gladly given you all of the so if your mom or dad or brother or your sister or your grandparents are your cousins, if they get a little teary-eyed or if they break down and sobbed, bear with them. thank them. appreciate them. k love you more than you'll ever know.
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-- they love you more than you will ever know. i want to say to you job well done, fantastic. this is what gives us hope for the future of our country, our society, our community. it was basically 10 years ago since i spoke at this commencement the last time and last time i was here was basically my first encounter as a catholic with our new then-bishop, his eminence cardinal dolan which was the archbishop of milwaukee. he did the prayer, i did the speech. i went to keep things casual so my topic was the need for truth in the modern world. as expected, it was a total hit. i got wild applause. i mean cheering, shouting, crying. and that was just from the archbishop. you know tim me, dolan, a jovial and funny guy and he said i love your speech,
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it was so short. so if you're feeling a little stir-crazy right now rest assured -- i will get right to the point. the biggest piece of advice that i'd give to all of you is this -- don't worry too much about the plan. go where you can make a difference. sometimes fulfillment lies in very unpredictable places. all your life people are going to hound you about the plan, the plan, the plan have you found a job? are you going to graduate school? where do you see yourself in 20 years? it will seem like nobody cares what you do so much as where you end up. and you will start to wonder whether you shouldn't care either.
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but beware -- careerism, in the wrong way, is cynicism in perpetual motion. before donor services drags me off the stage, let me clarify what i'm saying here -- i am not telling you to reject that job offer and move into your parents' basement. what i am saying is, wherever you end up, the work itself is the reward. treat it that way. because the truth is, life can put your best-laid plans through the paper shredder. you may never get that dream job-or if you do get that dream job, it may turn out to be a nightmare. but maybe you're meant to do something else. what seems to you like catastrophe could end up becoming opportunity. don't be so quick to dismiss that opportunity if it doesn't fit into the plan. when you come to a fork in the road, and you are deciding between two paths, instead of thinking, "how do i stay on course?
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" think to yourself, "where can i do the most good? where do i get real fulfillment? " if you realize it is the detour, then take it. that, in a nutshell, is my advice. but it would be rude to give a three-minute commencement address, so let me just proceed to elaborate. when i was your age, i had a plan. 1992. it seems like yesterday, doesn't it? i thought i had a plan i wanted to be an economist, which goes to show just how much fun i was in those days. the plan was, work in public finance for a few years. get some experience. go to grad school. get my ph.d. join a think tank. and then i'd give policymakers advice. a few years in, everything was
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going according to plan. i was working in economic policy getting ready for grad school. and then, life intervened. the congressman who represented my home district decided to run for senate. he asked me to be his campaign manager. that's just not my thing. i'm a policy guy, not a political guy. when i declined, he said, "in that case, you should run for my seat." i said, "run for your seat? that's crazy. i'm 27 years old." he asked me, "why not? " i told him i was young and no way could i win. it wasn't my plan. and he said, "you know, if i listened to all the people who told me what i could not do, i'd never get anything done in my life. what do you care about? what do you believe in?" i told him i believed in the principles of our founding fathers. i loved public policy because i wanted to solve problems. well, that was all he needed to hear. he told me, "then, run." but i still wasn't convinced.
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i called my mentor. i lost my father when i was a kid, so i grew up with mentors. one of my best mentors was a guy named jack kemp, a former congressman from new york. i asked him, "should i do this?" and he said, "absolutely. you can make such a difference. you're a wisconsinite, but you're a public policy guy. go do it. " then i called another mentor of mine, a guy named bill bennett. and i asked, "does this pass the laugh test?" and he said, "yes barely." actually, he was quite encouraging. then i called my mom and i told her what i was thinking. she thought i was crazy. she said, "really? you would want to do that?" so ultimately, i ran and i won. but soon, i had another plan. soon, i realized in the house of representatives, where i wanted
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to go, where i wanted to carve my space and make my difference. the issues i cared so much about, the issues my employers were telling me they wanted me to work on were the issues in front of the house ways and means committee -- the tax code, health care, retirement security, poverty. my goal was to become the chairman of that committee because i thought i could at least make a big difference in these areas that i cared about. so i worked for years to achieve that goal. and finally, last year, in 2015, i became chairman of that committee. but seven months in, the speaker of the house, john boehner, resigned unexpectedly. the next in line kevin mccarthy, dropped out of the running. and my colleagues drafted and asked me to run. i never wanted to be speaker, and i had said so in no uncertain terms many times
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before. i was a policy guy. i didn't like the idea of spending my time on other things. i live with my family in janesville. every weekend i am here with my family. yesterday was turkey hunting and track meet and then dinner at my mom's. today, here in kenosha with you. i couldn't give those weekends up. but john told me, if you don't like the job, then change it. keep your weekends at home. focus on policy. make it work. turn it around. so, i took his advice, and soon i realized -- i can do this. i actually liked the job. now, i feel like the dog that finally caught the car that i wasn't chasing it in the first place. and you see? we have something in common -- at the beginning of your senior year, i also didn't know what i'd be doing after graduation. this job isn't anything i ever expected-or even wanted. and yet i'm still doing what i love -- public policy. i learned eventually in my
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journey that public policy was my vocation, public service was where i found fulfillment.through all the twists and turns, that has been the consistent theme of my life. now you have to figure out what is yours. it may change as you get older, but the only way you will find out is if you take your work seriously. it is your contribution to our country. now, when i say this, i'm not saying that your work is what you get paid for. your work is all of your responsibilities, like your family and your friendships and your community. it is funny but as life gets more complicated, it gets a whole lot simpler as well. status will matter less, and doing your part will matter more.
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so don't worry too much about the plan. as i was preparing these remarks, i had a mild panic attack that my advice wasn't sufficiently practical. so, for good measure, let me put it in a quick three-part postscript. first, a lot of people will tell you not to fear failure, but learn from it-and that is a great piece of advice. i would also say that you need to forgive it too. you will make mistakes, and so will other people-your friends, your coworkers, your family. don't sweat the small stuff. take it in stride. it is good life advice. it is also good professional advice. nobody likes a debbie downer. nobody likes somebody that is lecturing all the time. there are lots of smart, young, talented, hardworking, ambitious people in society-you among them. attitude is everything.
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have a good attitude. be an uplifter. fill the glass, don't take from the glass. second, read as much as humanly possible. john adams once told his son, "you will never be alone with a poet in your pocket." i was always more of a history and economics guy. but the lesson still applies. the greatest asset you have is your mind. but it really is like a muscle. you have to keep it in shape. don't forget that. third, if you're believer, keep going to church. if you're believer, keep going to church. don't let that fall by the wayside. i know that might sound a little preachy or even a little cheesy.
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but you don't have to make a big show of it. just go. prayer has sustained me in many difficult moments of my life. i think it will do the same for you. because as you get older, you realize that life does actually follow a plan. it just may not be your plan. it is god's plan. and coming to accept that fundamental fact-not begrudgingly but peacefully-that is the essence of faith. you might not be able to make all the changes you wanted. the question is, did you make a difference wherever you could? did you meet the moment? did you look yourself in the mirror that morning or that evening and think "yeah, okay. i am doing this the right way." are you endeavoring to be fulfilled and be a good person in all of your works of life? so if you remember one word from this speech, let it be "faith." that should be all the planning
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you need. may god bless you and keep you in his care. congratulations once again. and thank you all very much. [applause] >> another commencement address by any pritzker. [applause] secretary pritzker: thank you very much, president degioia, for this honor. it is really an honor to receive this degree.
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it is also wonderful to be here with our esteemed graduates on what feels like the first nice d.c. day in weeks. the world that i entered as a 25-year-old business school graduate was a bit different than the one you are entering . i understand one of the new classes offered to you as a student is "strategic management of social networks." when i was in business school, mark zuckerberg hadn't been born yet. and the closest thing i had to a social network was a rolodex. trust me, you are so lucky to have missed the era when business operated at the speed of fax machines, pagers, and "while you were out" sticky notes. while the business world has changed a great deal since then, the keys to success are largely
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the same. each of you has earned an mba from one of the most prestigious business schools in the country. a school whose mission is to turn you into, and i quote, "ethically responsible and effective business leaders." you ." you should take pride in the hard work that brought you to this moment. but you would not be here today without your support system. so let's take a moment to give your parents, your families, and your friends a big round of applause. [applause]
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secretary pritzker: georgetown has armed you with a strong foundation and the personal network required to succeed. but whether or not you become an "ethically responsible and effective business leader" will ultimately depend on the choices you make over the course of your working life. do you have integrity and the awareness that every decision you make will impact your reputation? do you have the vision to understand the long-term needs of your company and the courage to overcome your mistakes in pursuit of that vision? are you using your influence as a business leader to be a force for good in your community? when i started in business, both my grandfather and mother told me, "there are only two things you take with you throughout your life -- your education and your reputation.
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nothing else is guaranteed." when you receive your diploma today, your formal education is completed. but your reputation? that is something you will have to nurture your entire life. think of your reputation as your biggest asset. in today's increasingly digital world, where mistakes and triumphs alike are immortalized on social media and in your google search history, managing that asset is harder than ever. as you begin your careers, you need to start building your reputation from day one.
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there is no honeymoon period. i am not just referring to obeying the law, but to the way you treat people and how you behave. if you conduct yourself with integrity and kindness, i promise you, your reputation will serve as the bedrock on which you build your career, and you will have control of your narrative. today, i want to tell you two stories about the power of choice, and how the choices you make will shape your life. let me begin with the story of my first business, which i started when i was 27 years old, two years after i graduated with a jd-mba. both of my parents had passed away, and i was responsible for taking care of my grandmother. one day, i realized that there must be people like me all over the country, who not only had to care for an aging family member, but with the added challenge of raising children. i am a data person, so i did my research and discovered that a
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product was missing. with a lot of help, i started vi senior living. sounds like a recipe for success, right? unfortunately, i made every mistake in the book. some of the early product development was not precisely right. i hired people who did not share my work ethic or my values and vision for the company. and the savings and loan crisis in the late 1980's made it hard for our customer to sell their home and afford our product. things were not going well, and i was absolutely terrified. i went to my uncle, my mentor and the chairman of the company, and said, "this is not going to work, we should liquefy the company." but my uncle, in all his wisdom, told me not to panic and to look at the long-term prospects. he understood the big picture: .
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we were about to undergo a massive demographic shift in our country as the baby boomers moved into their 70's and beyond. so, we re-tooled our approach, revised the product, and hired better talent whose values were more in line with the mission of the company. changing our approach was not easy. it was really hard. it took not just the recognition that we needed to pivot, but the perseverance to make significant shifts. and today, vi is an innovative leader in senior living.
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and the lessons that i learned from that experience have informed my entire life. like me, over the course of your career, you are going to make mistakes. big mistakes. don't panic. be confident. if your idea is good, don't let it be derailed by the missteps you will inevitably make along the way. my experience with vi taught me to look beyond the immediate challenges, beyond the quarterly earnings report, and take the long view. i also learned that business is a team sport. and you must be intentional about the talent you choose. to get it right, though, first, you need to know yourself, to know your strengths and your weaknesses.
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for example, i am good with numbers, sales, and tactics, but i struggle with marketing, branding, and strategy. find a team who fills in your gaps and complements your talents, because the people you surround yourself with are the key to your long-term success. this brings me to my second story. a good friend of mine is the ceo of a fortune 100 company. like many companies in today's economy, his business has a large number of job openings, but too few people have the specialized skills needed to fill those positions. he told me a couple weeks ago , we were together having breakfast and he said "i am constantly approached about by people looking for jobs, but do not have the skills they need to succeed." my friend knew that might be charitable in the short
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term, but would not end well and would not be sustainable for those he hired or his company. he understood that his community needs more than charity. it needs a thoughtful, entrepreneurial solution to a systemic problem. so, the ceo is considering setting up an academy to give people in his community not only the skills they need to succeed at his company, but the skills needed for long-term success. he wants to build this academy in the poorest part of the city, and he plans to invite other companies in his sector to participate. you heard me -- keep in mind, he's talking about working with businesses with whom he has to compete, who are all fighting for the same market share and the same new hires. and yet, my friend wants to bring them to the table to
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develop a holistic solution that actually works for both businesses and workers. i have met a lot of business leaders in my life, and the ones who i admire and remember are those who are committed to their community. make no mistake, being committed to your community is not inconsistent with being an extraordinarily successful business leader. in fact, it enhances your reputation, the bedrock of your success. so, as you move up the ladder, you are going to find yourself becoming more and more responsible for the wellbeing of the people of your neighborhood, your city, and your region. as a business leader, you will have the power to become a force for good.
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the question is what you choose to do with that influence. just look at what happened in georgia earlier this year, when governor deal vetoed a so-called "religious liberties" bill following pressure from disney, time warner, salesforce, and others. whether you spend your entire career in the private sector or take a detour into public the public sector, like i did, you will have the ability to not just affect our economy but to affect the very fabric of our nation. as a famous jesuit you may have heard of and one of my personal heroes has said, let me quote pope francis, "business is a vocation, and a noble vocation , provided that those engaged in
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it see themselves challenged by the greater meaning in life." challenge yourself to a greater meaning in life. become a force for good. seize the opportunity afforded to you as a business leader to change our country and our world for the better. so, congratulations to the georgetown university mcdonough school of business class of 2016. i wish you all the success in the world. hoya saxa! [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] [captions copyright national cable satellite corp. 2016]
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>> i have approximately seven years of being a truck driver. how long does the process take to drive these trucks? you are talking three months of training before you can make any trip. how many trips do you do? roundtrips.tely two four boxes daily. >> what does that mean? to import exports and daily. dayell me about a typical on the road. what time do you begin? >> i begin at 8:00 a.m. and end around 11 p.m..
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process is i get to the yard, i get my truck, i check off my seal, head to the mexican process for customs. arrive at customs i show my documentation, if i cross and card.w my visa their unofficial decides if i continue straight, if i have a green light or if i go through extra. it all depends where the official sends me. today i got intensive search. inspectiono through and x-rays. and then continue on to laredo, texas. >> what is your salary?
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>> approximately as a truck pesos totween 4500 6000 pesos weekly. >> how much is that in dollars? >> 300 to $400 a week. it is not a high or low salary but we provide for what i earn. i'm able to pay my mortgage. we don't live luxuriously but we don't live too bad. it's enough to survive. >> you can see more over the next couple of days as washington journal will be live from the us-mexico border. editoraging director and talks about illegal immigration
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in the area. local immigration lawyer nelly feel my talks about citizenship and deportation laws. examines the impact of mexican drug cartels. washington journal, live from texas on c-span. >> the supreme court ruled unanimously making it toier for landowners challenge decisions by federal regulations under the clean water act. landowners to have to go through a long and expensive permitting process before they could bring their case to court. here is the oral argument that led to today's decision. >> we hear an argument of this morning in case 15 to 90, united chief justice roberts: we'll
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hear argument next this morning in case 15290, the united states army corps of engineers v. hawkes company. mr. stewart. mr. stewart: mr. chief justice, and may it please the court, a jurisdictional determination issued by the army corps of engineers is not final agency action because it does not order any person to do or refrain from doing anything and does not alter anyone's legal rights and obligations. the jurisdictional determination, or jd, expresses the corps' opinion about whether a particular tract contains waters protected by the clean water act. that stated opinion may affect the recipient's assessment of the options available to it, but it does not affect the actual legal status of those options. this court's precedents made clear that the practical effects on which respondents rely are not a sufficient ground for treating an agency communication as final agency action. now, the respondents primarily emphasize the practical impact that the corps' jurisdictional determination would have upon themselves, the recipients and the intended audience.
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and they say the jurisdictional determination indicating that the corps believes there are waters of the united states on the property will force them to choose among three unattractive options: one, would be seeking a permit which could be an expensive process and wouldn't be by any means certain to succeed, the second would be discharging pollutants, discharging fill onto the property and taking their chances in a future enforcement action, and the third would be playing it safe, forgoing development entirely. and the problem with respondents' argument is that that choice would have existed before the jurisdictional determination was issued. it would have existed if the corps had never adopted its practice of issuing jurisdictional determinations upon request. it's simply a choice that is posed by the clean water act. justice alito: if there were a
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provision of law saying that a jurisdictional determination by the corps or by the epa is binding on the federal government in future litigation, would that be reviewable? mr. stewart: i think if the if the statute said that, we would have a very different case, because in that case we would have something much closer to bennett v. spear. in bennett v. spear, the corps the court was dealing with a biological opinion issued by one federal agency, the fish and wildlife service to another federal agency, the bureau of reclamation, and it included an incidental take statement. and the terms and conditions of the incidental take statement affected the legal options that were available to the bureau of reclamation. justice alito: well, it would be a different case, but are you able to say whether that would be reviewable under the epa? mr. stewart: yes. i think if the if the corps' jurisdictional determination
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were legally binding upon the epa, if it foreclosed the possibility of an enforcement of an epa enforcement action that was inconsistent with the terms of the jurisdictional determination, yes, we think that the jd would be judicially reviewable. but i think it's important to point out how far removed that is from the actual statute before us. justice alito: well, let me just ask about how far removed it is. there is no such statute, that certainly is true, but there is a memorandum of understanding between the army and the epa, and it says, quote, "case-specific determinations" and i think that includes jurisdictional determinations " made pursuant to the terms of this memorandum of understanding will be binding on the government and represent the government's position and any subsequent federal action or litigation regarding the case." so is your would your argument be that because this is in a memorandum of understanding as opposed to a statute or a regulation, the situation is different, and that is insufficient to make the jurisdictional determination reviewable? mr. stewart: that would be one argument, but the other argument, and i think we've made this point in the reply brief, that particular memorandum of understanding was dealing with what are referred to as "special
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case determinations." there are situations occasionally arise where the agencies perceive at the outset that there could be dicey questions. there could be questions of coverage on which the corps and epa might disagree. and since -- justice roberts: well, i don't i'm sorry to stop you right there, but i don't think that's right. i'm looking at the memorandum as well, and it says in section 2 -- no, i'm sorry, (4)(c)(ii), it describes nonspecial cases. it says, "for those projects not involving a special case, the de" in other words, the district engineer, the army corps, not epa " the de shall make final determinations and communicate those determinations without a requirement for prior consultation with epa." so while it talks about the division of authority between special cases and the mine run cases, it certainly says something about nonspecial cases. that's what section 2 is titled "nonspecial cases." mr. stewart: but we understand the language about the ultimate determination being binding on the government in subsequent
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litigation as referring to special case determinations. justice roberts: well, but i don't see how you can do that. i'm looking, you know, at 6(a). it says all final determinations must be in writing and signed by either the da either the army corps person or the regional administrator the epa person. and it says that those will be binding on the government and represent the government's position in any subsequent federal action or litigation concerning that final determination." it is referring to those that are it's referring to all final determinations by either the army corps of engineers or epa. mr. stewart: i take it we're looking at the 1989 memorandum, memorandum of agreement? justice roberts: it's the one -- yeah, the one you cite in footnote 3 of the reply brief, where you say that it does not address mine run core jurisdictional determinations.
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mr. stewart: i think we would still think of the general the final determinations as referring to special case determinations, but even if the memorandum of -- justice roberts: well, just to pause there, how can you do that when it says all final determinations signed either by the d the district engineer, who does not have authority over special cases, or the regional administration administrator? how can you read that as applying only to the special case determinations? mr. stewart: well, we are it is saying final determinations of the dea or ra made pursuant to this moa, which is referring to which is a moa that is referring
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specifically to special case determinations. justice roberts: yes, this moa decides what's a special case and what's not, and it tells you what happens when it's not. so i just don't see how you can say that talks only about special cases. mr. stewart: i think even if the memorandum is read that way if the memorandum is read that way, i don't think it reflects current government policy. it doesn't reflect the current understanding of the corps and epa. and i don't want to -- justice sotomayor: well, that's fine. give me an example of a case where the government has gone after someone, absent changed circumstances, who's had a negative jd in hand, any situation past, prememorandum, post memorandum -- mr. stewart: i don't think -- justice sotomayor: where you've actually taken the army corps' determination and said, we're going to go after this person anyway. mr. stewart: i don't know that it's ever happened, and i certainly don't want to suggest -- justice sotomayor: the fact that you're reserving your power is enough, even though by this memo and practice you've never done it? you think that that's not within bennett's second prong. mr. stewart: it's not within bennett's second prong in the same way that in franklin v. massachusetts that the practice of the president had always been to transmit the figures and do the apportionment in accordance with the figures that were prepared by the secretary of commerce. but the court said what mattered
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was there was no legal -- legally binding obligation on the president to do that. i would also say that independent of the possibility of an epa enforcement action, there is a more realistic possibility of a private citizen suit. the fact that the corps concludes that jurisdictional waters are not present wouldn't preclude a citizen suit from being filed challenging that premise of the discharge activity -- justice roberts: well, the question is, i think, whether it's final with respect to the corps' determination, not with respect to whether somebody else might be able to bring a suit, and i think what justice sotomayor is suggesting is that in practice and, what i was suggesting, in law is it's final with respect to the corps. mr. stewart: and that would be the first prong of bennett. that is, even with respect to the corps, it is still subject to reexamination if somebody
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presents new information, if the if in the course of a permitting process the applicant asks the court to reconsider its prior jurisdictional determination, the corps is not going to reconsider it sua sponte during the five-year period while it remains in effect. justice roberts: well, it seems to me what you are arguing, then, is that there are exceptions to what is otherwise a safe harbor. mr. stewart: it's not intended to be first of all, the jurisdictional determination that we're talking about here, the one that's actually being challenged, was one that concluded that jurisdictional waters were present. and it's clear that that sort of jurisdictional determination has no binding effect on anyone. the landowner is still legally free to disagree and to discharge -- justice roberts: well, a great a great practical risk. i mean, the corps comes in and says these are jurisdictional waters. and you say, yeah, well, you can go ahead. you can still dump and do everything you want and take your chances that there will be a different ruling later on down the road.
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mr. stewart: and the other i agree that it is a legally available alternative, but i agree a practically difficult one. the other alternative that the property owner has is to seek a permit to discharge fill lawfully. and the permitting process, that really is the mechanism that congress designed to allow people to get an advanced ruling on the legality of their discharges without subjective -- justice ginsburg: well, it's very arduous and very expensive. so for a landowner who thinks, i shouldn't be under this clean water act at all, and now they have to go through this whole process, it's going to take years and cost me a lot of money. mr. stewart: and i think the legal our legal system confronts that type of problem and that type of tradeoff in a lot of different contexts. for example, that was exactly the argument that standard oil made in ftc v. standard oil. the ftc has commenced an
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administrative proceeding in which standard oil was charged with violating the law. and there was i believe the phrase was reason to believe. there was a statutory threshold that the ftc had to surmount before administrative proceedings could be initiated. and standard oil's complaint was i should be able to challenge the initiation of the proceedings because it will put me through great expense to defend against them, it will impugn my reputation -- justice breyer: sometimes it doesn't. but i joined bennett, and the reason i joined it is it says in the second prong, "or from which legal consequences flow." so i would assume that nothing in bennett or i would have dissented is intended to overrule what i think is the great case on the matter, which is abbott labs. and harlan, in abbott labs, explains completely and thoroughly what this court has done in frozen food express, what the court did in storer. and on the point you're now making, what he says specifically is the icc order is right for review, even though it would have no effect until
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later. someone decided to bring a particular action. he says that in storer, the commission, policy determination is ripe, even though it would not issue a television license that's what the policy said even though no specific application was before the court. so it wouldn't take effect until later. and the same thing is true precisely of the order in abbott labs itself. it was a statement of interpreting what the commission would do, and nothing was going to happen. nothing happened, unless later on somebody decided to violate it. much like this. and even if they violated it, nothing would happen, unless the commission decided to prosecute.
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so what justice ginsburg said was, once this is in effect, ok, now what happens? the person who is subject to it has to take certain steps because of the law. one, spend $150,000 to try to get an exception and fail, or two, do nothing, violate it, and possibly go to prison. those sound like important legal consequences that flow from an order that, in respect to the agency, is final, for it has nothing left to do about that interpretation. and b, is perfectly suited for review in the courts. so we have harm flowing from a change in legal relations, we have an agency that has nothing left to do on this particular matter, and we have a court that is perfectly suited to review it. i would say it flows from abbott labs, almost qed.
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so what is your response to that? mr. stewart: well, with respect to abbott labs specifically excuse me abbott labs dealt with a regulation that essentially required that on each instance where the trade name of the drug appeared, including it on the labeling, the generic name of the drug had to appear as well. and the regulation, as rules typically do, was phrased as a as a directive. it said manufacturers shall do this. it was a legal command. in standard oil, the court dealt with -- said in various contexts, we have held that regulations are immediately reviewable as final agency action, although the court engages in a separate ripeness discussion. the second thing i would say about bennett is the bennett court, i think, was quite careful not to rest its decision on the practical impact that the order would have on the recipient. it rested its decision on the fact that the biological opinion
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constrained the legal obligation options available to the bureau of reclamation, because only by complying with the fws's terms and conditions could the bureau of reclamation get the immunity from endangered species act liability that it wanted. the third thing i would say, and to return to my prior point about ftc v. standard oil, it happens a lot in the law that we are confronted with a situation like this, where a particular government decision is made. be it an agency order, a district court order that denies a motion to dismiss for lack of subject matter jurisdiction or for failure to state a claim on the merits, and the losing party, the person who disagrees with the order, says i should be able to get immediate review of this because if i don't get immediate review, then even if i'm vindicated at the end of the day, i will be put to substantial burden and expense in the meantime.
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justice sotomayor: mr. stewart, may i ask you, please don't panic by asking this question. and please don't resist it, because i know all your arguments resisting it. but assuming we disagree with you that that should be appealable, what's the narrowest way to right this that the government would like? mr. stewart: i guess if the if the court ruled against us on the ground that it understood the epa and the corps to have entered into a binding agreement, such that the epa would be foreclosed from taking action based on its disagreement with the corps' jurisdictional determination, i think if that were the gravamen of the opinion, it would be one that if the agencies wanted to fix it, they easily could, simply by issuing a new moa clarifying their view of the jd's effect. justice kagan: well, on the same lines, could i ask more generally?
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i mean, one of the reasons i find this case very difficult is because all over the federal government there are compliance offices of various kinds whose function is to give advice to people. and often that advice comes with very specific recommendations. it says we will not take enforcement action if, or, we do not consider it a violation of law on the following facts. and i guess what i want to know is your view of how this program compares to various other kinds of programs like this, whether it's the whether it's tax opinion letters, or sec opinion letters, or fcc or whatever, how this program compares to those and where you could draw sensible lines, because mostly we want government agencies to do these things. we think that this helps people, to actually know what the government thinks about particular factual situations. so how do we draw lines in this area, in your view? mr. stewart: well, i mean, it i guess part of the difficulty i have with your question is or i should say i think if you were
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drawing lines, the jurisdictional determination at issue here would be fairly far removed from anything that ought to be judicially reviewable, because in many of the instances, the informal advice that agencies are giving, it is specifically advice about the legality the perceived legality or illegality of specific contemplated private conduct. somebody may come to the agency and say i'm thinking about doing x, would that be legal or illegal? and the agency might say we think that that would be one or the other. we the likelihood that an agency would say to somebody that's legal and subsequently pursue an
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enforcement action is -- justice kennedy: well, i think underlying justice kagan's question is that the clean water act is unique in both being quite vague in its reach, arguably unconstitutionally vague, and certainly harsh in the civil and criminal sanctions it puts into practice. what's the closest analogous statute that gives the affected party so little guidance at the front end? mr. stewart: well, i think with respect to the vast majority of sites in this country, it's readily apparent whether the clean water act applies, that is -- and this point is somewhat removed from the actual facts of this case, but it happens all the time that at construction sites around the country, industrial parties will dig up a lot of dirt and deposit it somewhere else. and they're doing something that would be illegal if it occurred in waters of the united states, but nobody thinks there's a problem, because in the vast bulk of its in the vast bulk of locations, there really isn't a quandary.
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and if you imagine a statute that said before you can do anything like that, you have to come to the corps and get advance assurance that these are not waters of the united states, it would be exponentially more burdensome. i take your point that there are certainly a significant range of tracks where the application of the act is authentically ambiguous. but the thing i would say about that is congress has designed the permitting process. there are other statutes in which regulated parties have no statutory mechanism for getting an advance ruling as to the legality of their conduct. they have to either do it and take their chances, or forego it, or perhaps seek informal
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advice from the agency. justice alito: well, let's say in a case where there hasn't been a standalone jurisdictional determination and the landowner applies for a permit. the first part of the permitting process, as i understand it, would be a jurisdictional determination, is that right? mr. stewart: that's correct. justice alito: ok. and at the end of that, can the landowner get judicial review if the determination is that it is subject to the clean water act, or does the landowner have to go forward, in your view, with the entire all the rest of the permitting process before there is a possibility of an administrative appeal and judicial review? mr. stewart: i think it would still have to go through the rest of the permitting process. and part of the point for that is it may be that during the rest of the permitting process, the landowner will have no prospect, except, perhaps, of an administrative appeal, of persuading the court to reexamine its jurisdictional determination. that becomes -- justice kennedy: why isn't the permitting process a legal consequence under the second prong of bennett? mr. stewart: it's not a legal consequence because the landowner always has the legal option of discharging without a permit if it feels that -- justice breyer: then he goes to jail. i mean, you put in your brief he risks it. in your brief and i think the point raised, of course, you -- it's a good idea to give people advice. abbott labs takes care of that.
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one of the three important features of abbott labs is you look at it from the point of view of the agency. and you say, how formal is it? what was there left to be done? and in this case, we have a whole set, a whole part of the cfr which is devoted this, which goes to varied it's called "jurisdictional determination from instructional guidebook." the army corps of engineers is brought in. once they make a determination, it's called the agency's official view. it's stated it remains in effect for five years, unless conditions change. and you, in your brief, say that the issuance of an approved jurisdictional determination marks the culmination of the distinct process by which the corps informs a landowner whether the corps believes that covered waters are present. so that doesn't sound like someone giving informal advice, and there's an appeal process. it sounds like a formal system of answering a question, which question is: are these lands wetlands, federal or not? now, if you give some kind of
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informal advice, fine. you'd come to a different result. but i've just listed the things here that suggest it isn't at all formal. it's a five informal. it's a five-year formal, definite procedurally guided cfr determination. mr. stewart: i would agree that the process that culminates in the approved jurisdictional determination is much more formal and elaborate than the process that would usually culminate in the kind of advice letters that justice kagan is talking about. justice breyer: all right. well, if that's so, we have the other part of the problem. mr. stewart: but i don't think the formality of the process really has much to do with the basis on the practical basis on which respondent wants to get into court, that is, if this had been a much less formal document, but it had still manifested the corps' view that jurisdictional waters were
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present, i think respondents would say they would be under exactly the same practical pressure either to go -- justice breyer: it isn't just the pressure. justice kagan: indeed, that -- justice breyer: it's both. and the concern on the other side, beyond the epa, is this is a vast federal government. and this vast federal government can operate can issue many, many formal determinations on aspects of the statute. and if people are people are required to follow those, without court review, on penalty of going to jail if they don't just follow it, or are paying hundreds of thousands of dollars, what happens to judicial review? that, i think, is also a public policy question. mr. stewart: i agree that it's a public policy question, but as i was saying about standard oil and the and the same principle applies to our legal system's general resistance to interlocutory appeals within the judicial system, that is, it happens all the time that a motion to dismiss is denied. the party who thinks that the complaint ought to be dismissed
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could say to an appellate court, i will have to pay hundreds of thousands of dollars litigating this case to its conclusion before i can achieve potentially -- justice ginsburg: at least there's an opportunity to certify the question to say it's interlocutory, but there's a good reason why it should go up immediately. so there's nothing like 1292(b) here. mr. stewart: there is nothing like -- i mean, there is the permitting process. there is an alternative mechanism to get into court, and during the -- justice ginsburg: the jurisdictional determination, you -- well, first, can you explain to me why the under the clean water act, it's done this way it's not, you can request advice, and we'll give you advice. that's what we think now, but it's not binding. it's a deliberate attempt to make this determination formal and binding on the agency. this is our position. it's a final adjudication of our position on the jurisdictional question.
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mr. stewart: i think it is formal, and the corps doesn't revisit it because it sua sponte because it would usually seem like a waste of time, unless somebody had presented the corps a reason -- justice ginsburg: why was it done this way, to make it this formal adjudication, rather than we'll give you advice? mr. stewart: i don't know why the formality including the administrative appeal was provided. i think it was intended as a service to landowners, that the corps wanted to give the best advice. the only other thing i would say about justice ginsburg: was there was there anything in it for the epa or the corps? i mean, i understand we want to inform the public of the agency's position. but is it all altruism, or is there was there a reason that that the epa or the corps wanted it done this way? mr. stewart: it certainly has
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benefits to the enforcement agency in the sense that if landowners receive what the corps believes to be accurate information about their property, the likelihood of their complying will be greater. as justice kennedy, i believe, was pointing out, the preparation of a jurisdictional determination would be the first step in the permitting process if one was -- justice sotomayor: mr. stewart, in regular litigation, there is an inducement, potentially, for one or other party to appeal to delay the resolution of the case. in this situation, i don't see that inducement as existing, meaning i doubt very much that landowners are who wanted to use their property for a particular purpose are going to appeal just to delay the government's adjudication of an issue that's going to either permit them or not permit them to go forward.
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mr. stewart: i would agree there is less danger of manipulative appeals. there is still a real danger of duplicative appeals, because you could have an appeal on the jurisdictional question. the court says the court's jurisdictional determination was not arbitrary and capricious. now you go through the permitting process. and there's a separate suit about whether the terms and conditions were too -- justice sotomayor: well, i -- mr. stewart: if i may, i'd like to reserve the balance of my time. justice sotomayor: yes. go ahead. justice roberts: thank you, counsel. mr. hopper. mr. hopper: thank you, mr. chief justice, and may it please the court, we read the moa to be binding in every way. we have found not a single word -- justice sotomayor: that doesn't help you for very long, because he just said they'll change it. so is that the argument that you want to rely on? mr. hopper: i'm sorry? justice sotomayor: he just said before that if we rule that way, they could change it. they'll just eliminate the moa. mr. hopper: well, it's existing today. and in addition to the moa, the fact that this is a
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site-specific adjudication suggests that this isn't binding that this is a binding determination. in fact, that's the very purpose of an adjudication. also, as has already been mentioned, it represents itself as being the official view of the agency, the final agency action of the agency, and will be relied on for five years. even during the permitting process, that will not be revisited. all of those things suggest that this is a binding adjudication and -- justice kagan: mr. hopper, can i ask, you know, i was just looking through some other agency's rules and practices.
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and i'll just give you a couple of examples. the fcc put out rules just this past year, and it says with respect to some particular matters, the fcc rules say, the bureau will not bring an enforcement action against a requesting party, a requesting party meaning somebody who requested an opinion, with respect to any action taken in good faith reliance upon an advisory opinion if all of the relevant facts were fully, completely, and accurately presented to the bureau. now, there's another that i just came across. it's in just a standard sec, securities and exchange commission, opinion letter. and it says, based on the facts presented, the division will not recommend enforcement action to the commission. so i guess my question is, this appears to happen all over the place around the federal government, people setting up offices whose specific purpose is to say come to us, tell us our problem, and we are going to
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give you a view, and not just a view, we're going to essentially commit that if you have told us the truth, here is your answer, and you can take it to the bank. and i guess i want to know what's different about this than any of the other cases in which the federal government does that. for good reason. because people want to know these things. mr. hopper: what you're describing, your honor, is what is what we would be referred to in this case as a preliminary jurisdictional determination. the regulatory process has built into it the option of an advisory, informational, preliminary jurisdictional determination to be issued to the applicant that is nothing more than advisory. it's not binding and can't be appealed. justice kagan: well, these are this is very strong language that are in these letters. we will not recommend action. we will not bring an enforcement action. so, you know, just as you say, this basically says to us we were in the clear if we passed this. so do these letters. mr. hopper: that is strong language, your honor, but not as strong as an adjudicative determination, where rights and obligations are actually decided. in this particular case, the process is so formalized, and purports to be final, and
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purports to be binding, that it that's that it's quite distinguishable from the situation that you are describing. justice kagan: let me ask you about that, because that's certainly this process does last a long time, and it's even mr. stewart, i think, would say this is a more formal process than many that are that exist around the federal government. but i guess i'm wondering about the incentives of the kind of distinction that you would make. because it would suggest, you know, that agencies should not should draw back, should not give a fully informed view, should not do the fact finding that the board that that the corps does here.
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you know, should just make their processes less formal, but in making their processes less formal, also less accurate and less helpful. and i guess i wonder who that benefits in the end. mr. hopper: well, i think that the agency has more to lose than the landowner has to gain by refraining from issuing these kind of formal adjudications. they indicate that they issue about 54,000 permits. and most of and they 54,000 nationwide permits and about 3,100 individual permits, and of those, only eight have ever been appealed administratively. so there's really no incentive for the government here to draw back on this formal adjudicative process, because in almost all cases, the landowner is simply going to defer to the agency on jurisdiction. and that that would be my response to you.
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justice kagan: well, i guess i don't quite understand that, because it seems as though they could make it less formal, and they could provide less assurance, and still, there would be very few people who would want to run the gauntlet. and so you wouldn't gain anything. all you would do was to lose something, and what you lose is accurate, reliable information provided to people about whether, in fact, these waters are fall within the clean water act. mr. hopper: well, that's the problem, because until there has been because the clean water act is so difficult to because under the clean water act, it is so difficult to determine, the
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reach of the act, and it can only be done through expert analysis, you would never get the kind of detailed, reliable information that would define the scope of jurisdiction if you didn't have such a formal process, which would never occur in the type of generalized ruling that you've suggested, like through the preliminary jd. the preliminary jd says we think you may have waters of the united states on your property. the approved jurisdictional jd says just the opposite: we've made a definitive determination, you can rely on that, you're obligated to get a permit, and you have a right to use property that is not subject to the waters of the united states. justice kennedy: tell us just it's in the briefs, but what what's the cost to get a jd determination in a case such as yours?
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second, can the agency, if we adopt the sort of rule that you want, simply decline to give jurisdictional determinations? mr. hopper: all that's required in order to receive a jurisdictional determination under the regulatory guideline is to ask. and under the regulatory guideline, the agency is required to respond. the language says the corps will give a formal approved jurisdictional determination if one is requested, even if they don't request it in that specific language. justice ginsburg: the -- justice kagan: did mr. -- justice ginsburg: the point was made earlier that in that in court proceedings you have a jurisdictional question, you may think that the court was very
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wrong, but apart from 1292(b), you are stuck there. you may have to go through a lengthy trial, and that's just too bad. it is a complete adjudication of the jurisdictional question. the court's not going to return to it. even so, you don't get any kind of appellate review until there's a final judgment in the whole case. why should this be any different? mr. hopper: i'm not sure that i follow your question, your honor. would you please repeat that? justice ginsburg: well, you are urging that you should have you should be able to challenge in court this jurisdictional determination, right? mr. hopper: immediate judicial review. justice ginsburg: and if you were in a district court, you would have no immediate right to challenge a jurisdictional determination. so why should this situation be different in an agency setting and in a court setting?
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mr. hopper: that's the whole question at issue, your honor, is whether we can get district court or judicial review. justice ginsburg: but if you were in the district court and the district court made a jurisdictional determination, you are in our power, and you disagree, and you think the case should be you should be allowed to be free to do what you will, and -- but you've lost on the jurisdictional issue, you have to stay there. the equivalent would be going through the permitting process. mr. hopper: we don't know why we would not be able to appeal that, your honor. that would be a purely legal question on summary judgment. we could appeal it as -- justice ginsburg: a summary judgment, you'd have to take a judgment on the whole case. you can't appeal an adverse ruling on jurisdiction. you want to get out of the case? mr. hopper: we don't believe that we don't believe that we need to go through the permit process -- justice breyer: the question is
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why. justice alito: the difference between -- justice breyer: why. i think i think, if i understand the question, you go into district court and you say we're from alaska, and here we are in florida and we don't belong here, there's no jurisdiction. and the court says you're wrong. now, that means you have to stay there. you have to go through the whole proceeding. it's going to cost you one million dollars. it's going to take a long time, but you don't get independent review of the jurisdictional question. so i think the question is, if i may say it -- justice ginsburg: please. justice breyer: is why doesn't that apply here, too? because this is just like one part of the whole thing. mr. hopper: it -- justice breyer: nothing -- mr. hopper: in what -- justice breyer: is like the jurisdictional question. mr. hopper: in what sense is it one part of the whole thing? justice breyer: well, this says that nothing's going to happen to you until they decide that they're not going to give you a permit, which is part of it. mr. hopper: under abbott labs -- justice breyer: yeah.
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i mean, i've made mine, but i'm going to the question. mr. hopper: yes. and under i understand. under abbott labs this court made the determination that if one is in this catch22 situation, this no-win situation where even no action results in great loss because you have your option is to only abandon the project at great loss, or go for a permit at great cost, or subject yourself to an 36 enforcement action at great cost, that that type of hobson's choice is sufficient to get you judicial review. justice alito: do you see any distinction between a jurisdictional determination by an article iii district judge and a jurisdictional determination by an enforcement agency? do you think there might be an argument that it is tolerable to wait until the end of the case when a neutral article iii judge makes an adverse judicial -- an
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adverse jurisdictional determination, but perhaps less appealing to wait till the end of the adjudication when the jurisdictional determination is made by an enforcement agency? mr. hopper: well, there when an adjudication has already been made, there's no further adjudication to be made unless you're talking about requiring a permit prior to judicial review, and that's what we find objectionable, your honor. justice kagan: mr. hopper -- mr. hopper: it's not an adequate remedy in court. justice kagan: a more general way to ask this question. i mean, there's no doubt that some people face themselves in real predicaments when they're looking at the when they're trying to figure out what to do under the clean water act. but of course, you know, that's true with respect to many regulatory statutes.
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and i think what mr. stewart's point was, was that the predicament is the same regardless of the jd process. if the jd process didn't exist, your client would be facing the exact same predicament. and indeed, the jd process's reason for being is that it's supposed to help people in dealing with this predicament because it's supposed to provide them with information that they otherwise wouldn't have. mr. hopper: exactly. justice kagan: well, that seems to be a good reason for mr. stewart to prevail in this case. but the predicament is the predicament, and it's a predicament that comes from the clean water act. the jd process is the only thing it's supposed to do is to give you more information so that you can make the choices that the statute puts to you.
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mr. hopper: it does more than that. under bennett, your honor, the second prong of finality is satisfied if any of three requirements are met. number one, a right is determined, or 38 an obligation is determined, or legal consequences flow. by virtue of the adjudicative determination in this case, an obligation has been established that hawkes cannot use 150 acres of their property without being obliged to get a permit. they also -- justice kagan: well, that's the question, is whether there's any obligation or whether there's -- it's simply information about what will happen given different courses of action. mr. hopper: the clean water act itself doesn't say anything about this particular property. and the clean water act doesn't cover all waters. and the only way to find out if there are jurisdictional waters which will trigger the requirement for a permit is to go through this laborious site-specific analysis --
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justice kagan: that seems right. but it's also why people go to the treasury department for tax letters, and it's also why people go to the sec for advice about what they can and cannot do with respect to securities. and it's also i mean -- mr. hopper: not -- justice kagan: at least a hundred different examples. mr. hopper: i'm not aware of them, all those examples having an appeals process that results in a final agency action, that by treatment and regulation and practice constitute a binding conclusion. justice alito: well, the premise of the question is that the army corps of engineers is doing this just out of the goodness of its heart, that this is a lot of work for them but they just want to be nice to landowners and that's why they've set up this process. and maybe that's correct, although i understood what you were saying earlier to suggest that that's not quite how you see the process, that they do this for their own purposes because they it expands their enforcement power, because landowners who have a question
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about the status of their land have strong incentive to ask for a jurisdictional determination. and if so that alerts the corps to the fact that this is a property that might be subject to their jurisdiction. and if they issue a negative i'm sorry an affirmative jurisdictional determination as a practical matter, that's going to mean in most instances that the project is shut down. is that -- mr. hopper: well, if -- justice alito: is that your argument? mr. hopper: yes. and even further than that, this is really a problem of the agency's own making. when congress passed the clean water act, it prohibited discharges to navigable waters. and as this court addressed in rapanos, that that's so broadly interpreted now that it covers virtually any wet spot in the country. justice breyer: it isn't just that isn't the issue, i think, is this what i thought your
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answer would be is that informal advice is not final agency action normally. there is a statute. it was passed in 1946. it's called the administrative procedures act. it tries to divide such things with that word, "final," as rulemaking by the agency, from accomplishing roughly the same result by never having a rule but just telling everybody informally what the agency will do in such circumstances. it might be that the formal is, other things being equal, final agency action in respect to that matter. it might be that the latter is not. so i think what you're telling me is what i should do next is go read those federal rules and regulations and see, is this more like informal advice, or is it more like formal rulemaking? and you have the latter, and they have the former, i guess. i don't know. and i go and make up my mind. i guess that's my job in this instance.
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mr. hopper: well, to help you make up your mind, we would refer you to frozen food, which you've already -- justice breyer: yeah, yeah. i mean, if frozen food, storer and abbott labs, and bennett too, are examples of what falls on the formal final side of the line. mr. hopper: right. justice breyer: a few other things will be on the other side of the line. mr. hopper: and in fact, if frozen food is virtually indistinguishable from this case, frozen food was essentially a jurisdictional determination case. justice kagan: well, mr. hopper, can i ask, do you think that this would count as a formal adjudication under the apa? mr. hopper: yes. justice kagan: a formal adjudication under the apa. mr. hopper: yes. there was a the agency applied the law to a specific set of facts, had a formal hearing, and -- justice kagan: would it be mr. hopper: issued a final -- justice breyer: it's not -- justice kagan: would it then
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receive chevron deference? mr. hopper: oh, i'm sorry. well, not in that sense, no. justice kagan: yeah. not in that sense, no. i wouldn't think so in that sense. i wouldn't think it's formal adjudication, and i wouldn't think it would receive chevron deference. and you know, there's a very fine opinion by judge sutton on this question, and he basically says the kinds of things that are not final, the kinds of advisory-type rulings that are not final are the ones where there's no chevron difference given, that that's the proper line to draw. those that's when you know that there's a kind of formality to it that should count with respect to the to the question of finalness. mr. hopper: well, we have met in every way the finality standards of the bennett second prong. we have identified right that has been determined, an obligation which has been determined. we've talked about legal consequences flowing. all of those any one of those satisfies the finality standard, and therefore, under the apa they
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give us review. justice kennedy: what what's the best example of a legal effect that follows from a jurisdictional determination as opposed to a practical effect? it seems to me that the practical effects are quite what's the legal impact? mr. hopper: increased risk of enforcement, because the very existence of the jd constitutes prima facie evidence of a violation if one were to discharge without a permit. justice kennedy: that sounds to me practical, not legal. mr. hopper: i think that is legal, your honor, also -- justice roberts: you -- mr. hopper: also, i would suggest, as this court recognized in sackett that this jurisdictional determination increases the risk of civil and criminal liability. justice roberts: does it affect the determination of willfulness on the part of the landowner? mr. hopper: it does, in two in
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two respects, your honor. when the when the court is looking at an agency at civil penalties, the clean water act requires that the court look at the good faith efforts, and by extension, the bad faith efforts. and now that we have a formal determination that these are waters of the united states, there's a knowing violation, which brings in potential criminal sanctions against the landowner, so -- justice kagan: mr. hopper, i'm sorry, please. mr. hopper: yes. justice kagan: isn't that true in every case of an opinion letter, whether it's from the government or for actually, from a private party, that, you know, there's always cases in which people say you had an opinion letter, it said x, you did y. or, conversely, i had an opinion letter, it said x, i did x. i mean, that happens all over the place in litigation with respect to every single compliance 18 piece of compliance advice that the government gives. mr. hopper: yes, with the with the one exception that that the weight that the that the court is going to give to those types
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of opinions and suggestions is much different than what the court will give to a final determination as to jurisdiction after having gone through a formal appeals process. so the weight is quite different. and let me also make a comparison between this and sackett, when this court considered whether double penalties would apply in that case. you might recall that during oral argument, mr. stewart said that with respect to double penalties, that is, there will be $37,500 a day assessed because of violation of the statute, and then $37,500 a day because of a violation of the compliance order. he said that that reading of the law was entirely theoretical, and didn't even know if it would even fly. here, we don't have a theoretical risk.
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we have an actual risk. the clean water act says a knowing violation shall result in a in a civil fine of no less or a criminal fine of no less than $5,000 and no more than $50,000 a day, and will increase the prison time from one to three years. so even though you're right, a simple letter may put one on notice, it certainly doesn't have the same weight as a final binding determination. the main problems we have with the requirement of going through a permit process before one can seek judicial review under the apa are fourfold. first of all, the permit process adds nothing to the jurisdictional question.
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it doesn't add any facts which are relevant, and it doesn't clarify the law. it is simply an idle act which the law abhors. secondly, it puts the timing of the judicial review entirely in the hands of the agency. it is an open-ended invitation to the agency to delay forever the final permit issuance, denying the landowner a right to ever have judicial review. that was important to this court in sackett, when this court was looking at whether an enforcement action if you could instigate an enforcement action whether that would be an appropriate remedy. and this court said it wasn't because the even though you the landowner may be able to commit a violation, has no control over
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when the enforcement action would follow. so the fact that there's no control in the landowner to as to when the judicial review would occur, we think is volatile of the apa. the apa suggests immediate judicial review is required. that's falls under the presumption of reviewability. that's the intent of congress. once finality has been established, it seems to me that that the court should be looking at ways to facilitate judicial review and not find ways to deter it or delay it or obviate it. justice ginsburg: suppose the response to your to your argument on the part of the agency is, well, we didn't have to get into this in the first place, there's no statute that required us to hold these jurisdictional to make these jurisdictional determinations, so forget it.
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your client is exposed to the very same things under the statute, right? so because the agency has provided something that at least is some benefit to the public it served, it becomes subject to immediate review, where, if it if it had done nothing, all we had was the statute, then your client is still left with the same choices, right? mr. hopper: you might recall, your honor, that this is a 12(b) motion where we take the facts as asserted in the in the complaint as correct. and the complaint suggests that
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this jurisdictional determination should never have been issued, that 18 that the waters on this particular property are not waters of the united states, and a negative jurisdictional determination should have been issued. justice roberts: i thought your -- mr. hopper: so that that's a unique result of the of the jurisdictional determination, and does not follow from the from the statute. under the statute, we should be exempt. under the jurisdictional determination, we have to get a permit. justice roberts: i thought your answer might focus on the fact that this is of great benefit to the agency, because by issuing the determinations, they are able to exercise extraordinary leverage without going through the formal enforcement process. so it does give them it is a way for them to exercise their authority without effective judicial review. and that's a significant enforcement tool for them. so they might be unwilling to give it up if they had the option. mr. hopper: i think there's no question they're not going to give it up. they have they have nothing to lose.
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the in almost all cases, the recipient of the jurisdictional determination defers to the judgment of the agency. and as you say, it is used for leverage. in fact, i would even say it to extort mitigation from a from an individual that they could never do if they could establish, through judicial review, whether there are jurisdictional waters on the site. so i agree with you. i think that that's one of the problems. we also think one of the difficulties with going through the permit process is the cost, not that the cost is definitive, but if the cost is prohibitive, then it then it raises a problem because you can't it raises, i think, a potential due process problem. i think it raises another problem of practicality. justice sotomayor: how do i determine how much is too much?
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i mean, for some people, given their financial situation, $3,000 is too much. and for others i don't know your client's financial wherewithal, but 10,000 would be reasonable. so when do we decide how much is too much? mr. hopper: well, i don't think it's a question that needs to be answered generally, because it can be answered specifically in this case. in this particular case, the landowner has been asked to provide over a hundred thousand dollars in additional studies. you might recall that the applicant actually started the permit process and was willing to go through the permit process until it became unreasonable and too cost prohibitive to proceed.
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and that's when they asked for the jurisdictional determination. justice roberts: thank you, counsel. mr. stewart, two minutes. mr. stewart: thank you, mr. chief justice. first, with respect to the costs of the permitting process, there there's no basis for assuming that the permit process is systemically unavailable. as mr. hopper was referring to, the corps' statistics indicate that a little over 50,000 general permit authorizations and a little over 3,000 individual permits are granted each year. the process may be expensive in individual cases, but it is a process that is regularly invoked, and regularly invoked successfully. and in many instances, if the corps and the landowner come to an agreement, the corps offers to permit the activity on terms and conditions that the landowner regards as acceptable, that may obviate the need for a court ever to resolve the question of whether these were jurisdictional waters. and that's the kind of consideration that is often invoked as a justification for
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not submitting interlocutory review, that the issue on which a person seeks immediate review may turn out not to be necessary to resolve after all. with respect to the analogy to district court litigation, i think in standard oil, this court has already taken the step of saying the same principle applies to administrative adjudication. my point in analogizing to district court litigation is simply that this is not a quirk of administrative law. this is a fundamental precept of our legal system -- that on the whole, we are more worried about piecemeal litigation than about deferred litigation. finally, formality is not the key. in franklin and in dalton, the agency process at issue were intensely formal, intensely structured, and they were designed to have an effect on the president's decision making. they were held not to be final agency action because they were not legally binding on the president. and the same thing is true here with respect to the binding effect of the jurisdictional determination on the recipient. thank you.
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justice roberts: thank you, counsel. the case is submitted. announcer: coming up tonight, pros him to republican -- coming up presen tonight, donald trump on donations. now, donald trump's news conference detailing which veterans organizations receive the money he raised at the january on razor. event, he challenged the media and other critics for questioning the donations. from trump tower new york, this is 40 minutes. [applause]


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