tv U.S. Senate CSPAN September 16, 2013 2:00pm-8:01pm EDT
energy crisis and on a social collision. all of this is part of our agenda you can see all of the rest of this on c-span.org to the we are going live to the u.s. senate as they begin their day with a general speeches and look for reaction to today's washington navy yard shooting. about 4:00 eastern the senate resumesesna debate on a bill se. up programs to encourage energy saving building construction across the country. and about an hour later they will set that aside for the date on judicial nominations to provh refuge and strength. we don't boast about tomorrow, for no one really knows what a day may bring. lord, we ask you to comfort the victims and families of the
deadly navy yard shooting, providing them with a peace that the world can't give or take away. use our senators today to hasten the time when harmony will dominate discord and hope will triumph over despair. we also ask your richest blessings upon our u.s. capitol police, who daily risk their lives for freedom. bless also all the members of our armed services. thank you for giving us these guardians of freedom and servants of liberty. we pray in your great name.
amen. the presiding officer: please join me in reciting the pledge of allegiance to the flag. i pledge allegiance to the flag of the united states of america, and to the republic for which it stands, one nation under god, indivisible, with liberty and justice for all. the presiding officer: the clerk will read a communication to the senate. the clerk: washington, d.c., september 16, 2013. to the senate: under the provisions of rule 1, paragraph 3, of the standing rules of the senate, i hereby appoint the honorable christopher murphy, a senator from the state of connecticut, to perform the duties of the chair. signed: patrick j. leahy, president pro tempore. mr. reid: 49 mr. president? the presiding officer: the majority leader. plild the sergeant at arms is here on the senate floor, the republican leader is here.
mr. reid: when i was doing my exercises this morning i heard there was an incident in the navy yard and traffic was tied up. they didn't know what it was. and, of course, coming into the capitol i knew something was up because i saw our police officers with their weapons, automatic weapons that they usually don't carry. at least in view of everybody on constitution avenue and other places. so, mr. president, i waste, fraud, and abuse sad to hear about the events here in washington. this was alluded to in the prayer by the chaplain, at the navy yard this morning there were a number of people who have been injured. i don't know the details, we know at least there's one dead and i don't know all the details, don't know a lot of the details of this tragedy, or
who the per traitor or perpetrators may be. but according to reports we've gotten several people were killed and several more injured injured, including a washington metropolitan police officer and a military police officer. my sympathies are, of course, with those families who died. with those that have been injured, and my wishes go out to all those who work in the navy yard complex. which is just a short distance from here. and the surrounding neighborhood. as usual in these events you have to recognize the first responders who rushed to the scene, their professionalism. i don't know all about it but i'm certain it was there. and my thanks go to the brave law enforcement officials who were on the scene and who put their lives on the line and
today we realize that they really do put their lives on the line to keep this capitol complex safe and the city safe. i urge everyone in the area to follow law enforcement direction for their own safety, whether means sheltering in place or or avoiding the navy yard area today. shooters to my knowledge have not been apprehended. i've been told that they have their fixation on where one of them might be but we'll all continue to follow the situation that develops. so, mr. president, based upon this, as i indicated i've spoken with the sergeant at arms, the republican leader has been advised of everything that i've said and going to suggest, but in light of the events at the navy yard, we've decided to recess the senate until tomorrow morning. the vote scheduled for this evening would be rescheduled, we'll have an announcement later on the timing of those sloats.
so i ask unanimous consent --. mr. mcconnell: if the majority leader would suspend, a few observations about the events of the day. mr. . mr. reid: i'm sorry i didn't do that. mr. mcconnell: we're thinking about today's tragic shootings at the navy yard, about the victims and about their families. the men and women in our military courageously put their lives on the line in mearn dangerous places around the world. it's painful to think about them having to worry about their safety when they come home, too. many people in the area and across the country will be directly affected by this terrible tragedy and we pray for them all. these kinds of incidents always remind us how fragile life is. they also remind those of us who work in and around the capitol how much we all owe to the men and women to work so hard to keep us safe every day. so i want to take this the country to thank terry gaynor
and his team, the chief and the capitol police force for all they do day in and day out and for everyone else who is working through this tragedy, the first responders, medical personnel, d.c. police, i want you to knowing one one thing, we're all thankful foreyour hard work and your sacrifice. everyone is deeply grateful especially on days like this. mr. reid: mr. president, i appreciate very much my friend's statement. coincidentally, earlier this morning i had in my office a capitol police officer. i said what's the number on your badge? i don't remember exactly, three thousand six hundred, mine was 363. so senator mcconnell is absolutely right. we take for granted the work
that these men and women do for us here but it's significant that they do everything they can. to protect us and all the thousands of people who work in this capitol complex. i ask unanimous consent that as if in executive session the order for the campbell-smith and kaplaning nominations be modified after sexuality consultation with senator mcconnell with all other provisions remaining in fek fect. the presiding officer: without objection, so ordered. mr. reid: i ask when the business completes its business it adjourn, plolg the prayer and pledge, the morning business be deemed expired, the time for the leaders, fooling any leader remarks the morning business until noon with senators during that period of time permitted to speak up to ten minutes each with the majority controlling the first 30 minutes and the republicans the next 30 minutes.
they have a lot of legislative leverage they think the president doesn't want to see a government shut down if they go ahead and give him a bill to fund everything the government accept for the health care law. they think that they can force them to do that and the question is who is willing first? we had this the last three years this has been standard stuff when you go into the debt and spending bills you have this question of who is going to be willing to blink first and say no the pressure is too much and the consequences are too bad and which party is suffering the blame in the public's eye at this point so that is the big fight going on. they realized they didn't have the deal that could even get the republican leaders couldn't get the deal for the house. but they've already told other members the house was supposed to be off on vacation next week. they called it district work period. the leadership to other members we might have to cancel that if we don't get this done.
>> host: what are they eyeing? stellas about this deal that fell apart last week and then tom pryce on fox news sunday talked about the initiative to keep the pressure on in these negotiations. that they would like to delay the affordable care act. >> last week was a sort of crazy parliamentary move that would have allowed a couple symbolic votes but it wouldn't have produced final action. it's a little complicated. the house republican leaders every bill that comes through the floor comes under special rules for how it is the dated and its different in the senate that we so the leaders that come up with the essentially a way that they would allow their members to vote for the spending bill and to vote for defunding obamacare both bills would essentially be sent over to the senate. it's a little more complicated than this but what matters it is the senators could then vote. they would have to hold a vote on the defunding of obamacare part but all sides expected them
to defeat that and then they would be able to go ahead and vote on the basic spending where they would fund the entire government and without -- when the defeat the obamacare funding without stripping out in the government would be funded regularly and we would essentially skip ahead to the next crisis. >> host: and avoid a government shutdown. >> guest: they said to the republican members we can give you a deal where we will avoid a government shutdown. we won't get blamed for that but another vote to defund obamacare. the republican rank-and-file said no that's not good enough. we actually need to see action here. there's a couple things going on. first the october 1st deadline for the health exchanges under the health care law happens to coincide with the september 35th deadline for getting the spending bills tons of there's a lot of republicans who say if the exchange is going to affect them obamacare -- the big parts have gone into effect we can't allow that to happen. the fact both of these dead
lines have been at the same time we have the perfect leverage and we think the american people dislike this enough that they will be willing to blame democrats for the government shut down rather than republicans. the polling suggested that is not the case yet but that is their calculation. and they think they can get there in the next two weeks and so they are trying to stiffen the republicans' plans. the other thing on that is that there is some sense sort of from the leaders, but also just a growing sense that this fight should have been done and maybe better on the next crisis we face a couple weeks later on the debt deal or limit that we were about to bump into the federal government borrowing limit again. the government shutdown is tied sort of specifically to the cer and this is complicated but that is what funds the basic operations of the government. if they run up against the borrowing limit that is a different situation. the government can only spend the exact amount of money that it's taking in and in the past couple that we had the was a
problem because the report and $0.40 on every dollar so you would be talking about instantly eliminating 40% of government. now because the economy is doing better and because the tax increases this year the spending cuts the government financial picture is really not in great shape it's in better shape than it was. the government is borrowing $0.20 on every dollar so there are some republicans who are thinking we would be willing to take either the defunding of the health care law if we win that on the debt deal or to exeat an instant 20% cut in the government and matteo by administration decide where they are they would get blamed for the cuts just like the sequesters haven't turned out to be bad like some folks thought and republicans think they either when the cuts or they get to extract the concession. >> host: so with all of that laid out what did the republicans here from the president in his interview with this week with george stephanopoulos?
>> guest: no deal. the president has been adamant that he doesn't want a deal on either of these things and this has been his position all along in the past in the negotiations and we should always be careful here. right now we are in the negotiation stage when it comes time for staring at the deadline there have been deals in the past like the 2011 debt deal that left us with the spending caps and the antisequesters that have reduced our spending which is part of the reason the finances are looking better. some of them have been more political faces such as the last time we had a debt limit fight at the beginning of this year republicans allowed the debt to flow and said no specific limit in exchange they forced the senate to take a vote on a budget which the full senate hadn't done for three years. so there are some facing symbolics to get out of it and there are actually real substantive spending changes to get out of it. >> host: well we have seen a
test of the president's leadership with syria in this last week. some were saying that now awaits the house speaker tom boehner's turn to be tested on his leadership in this issue. >> guest: i think that we are going to see tests of both of them. one real question here is syria fading into the background it is a major issue for the president. it remains something they have to deal with all together and something that congress is going to keep watching and we will talk about and that will take up a lot of oxygen here in washington. so there is no specific vote facing the congress right now which a lot of members of congress are relieved about on both sides they are willing to let diplomacy take its course. two things happen first use of a president's approval ratings stagnate and drop a little bit with syria, and in particular he suffered among some of his own base. we will have to watch the polls to see if the congress actually in the gallup polling left the
approval rating in the year. i believe he went from 13 or 14% to 19 or 20 to the >> host: is that related to the reluctance to go to approve military strikes and syria? >> guest: the gallup poll said it happened to coincide, whether it was causing shimon or not we don't know. but it coincided and i guess there are two things happening between august and september. congress was out most of the time which might be one thing that helped their approval ratings rather than being here doing things. but again, i don't think it is a surprise to say that when congress in particular you have bipartisan agreement in congress to fight another branch, you know, the congress finally looks like it is getting together and doing something in this case very popular which was opposing the syria strikes. that does suggest we will have to see what happens with those approval ratings with the president regains his political footing and that whether the congress returns to its regular low numbers there and looks like
it can't get anything done. but specifically on john boehner it is absolutely a test pitting it he has i guess three big test coming up a first how he handles the continuing resolution and second is what deal he gets out of the debt limit on the debt limit he has long said a daughter of spending cuts for every dollar in the debt limit increase. he won that fight back in the 2011 debt deal and that is why we have a sequester and the spending caps that left us in the better financial position. in the last go around he didn't win a dollar of the spending cuts but the symbolic vote on the senate budget. whether he will be able to stick to that pledge again is one test of his leadership suite of the continuing resolution on obamacare and the debt limit to get the spending cuts and then the question of what happens with immigration and whether he brings that bill to the floor. there's a lot of pressure from outside and from democrats and from the senate, senate republicans, to bring that bill to the floor. but his conference doesn't want to see that bill on the floor or
see much of an emigration fight on the floor so those three together are all big tests for that. .. >> came through june and did immigration, and all sides agreed to keep that debate specifically on immigration because it was such a hot topic and there's pressure to get a bill done. then they spent most of july in the middle of mom nation fights,
and -- nomination fights, and that's a different thing. they were gone in august. three months where there were a lot of policy debates that have built up that folks are eager to get amendments on and force each other to vote on. so while it's an energy bill on the floor, most of the conversation right now is over amendments such as do we stop obamacare. that's a real push from a lot of republicans. there are also amendments dealing with keystone energy production which is an energy issue but not necessarily straight on the energy efficiency. so there are a lot of these big policy e debates that folks just want to make people go up on the board. another thing that happens in the senate, as president obama be starts using his regulatory approach, he said congress isn't working, so i'm going to take executive action through regulations or executive orders or what not to do what i want to do my agenda. congress says, no, that's our job, republicans offer amendments to disapprove of what the president did and sort of have their say after the president's acted. the number of amendments are
basically disapproval amendments saying we disagree with the president on this, this and this. so all the stagnation sort of builds on itself. in the house you're likely to see a lot of housekeeping sort of normal measures, the big thing is whether they do the continuing resolution again, whether they do spending. a lot of the big action's going to happen in committees this week where there's some real hearings going on. >> host: okay, and we'll talk about those coming up here, but i want to get our viewers involved. as you can hear from steven dinan, a lot of moving parts. jack this in sarasota, florida, democratic caller. hi, jack. >> caller: hi, good morning. >> host: morning. >> caller: i'd like to, when the gentleman said we're borrowing 20 cents of every dollar we spend, i'd like to remind everybody that ronald reagan's first budget borrowed 25 cents for every dollar he spent x the republican party has never looked back. he doubled the national debt in
his first term, tripled it in the second term. bush i added, and bush #-r -- ii added $6 trillion to the national debt. i don't like republicans. i'm a yellow dog democrat, got a little blue streak in me, but, you know, these republicans, six republican recessions i've lived through. i'm 71 years old, fought in vietnam in '63-'64. these people are crazy. shut down the government? you've got to be nuts. >> host: steventy man? >> guest: yeah, his numbers are correct, that's exactly right. the republicans -- well, we've only had balanced budgets for i think it was four years from '98 through 2001, i believe, and then before that you have to go back to either the '50s or '60s to find balanced budgets. so this has been a continuing problem for years and years and years. it's absolutely gotten worse in the last 10, 12 years. one interesting thing that we are actually headed for, though, there is some good financial
news out there. first of all, we're about to have the first year of under trillion dollar deficits in president obama's tenure. second is we are about to have the second year in a row where the government overall will have actually spent less than it did the previous year. and the last time, you know, that happened in the years after world war ii as government spending dropped as we geared down from the war effort. but i believe the previous time that's happened, the only other time that's happened since world war ii is, i believe, '52-'53 or '53-'54, so we're talking nearly 50 years since we last had two years where government spending actually developed. so some -- dropped. so some good financial news. >> host: don, houston, texas. independent caller. >> caller: yes, question. >> host: yeah, we're listening. >> caller: okay, that question is with all of this fighting and people hurting this way, a
divided house won't stand. if mom and pop ain't getting along, something's going to happen, and the two are going to suffer. and that's where it seems to be in our situation at this point in time. and if all these things that you're saying is true as it pertains to spending being cut the way it is, then how can we afford, first of all, to try and be the world's police if that's one question. the second question is this: what component is germinated in the redistricting? because it's those people who are opposed to these things, if they -- if we were, first of all, a government by the people for the people, today couldn't do that.
>> host: all right. stephen dinan. >> guest: you know, those are actually really good questions. the issue will take care of the issue of gerrymandering very quickly is i think that has a lot to do with this. both questions actually tie together very well. you know, for the last i'd say probably two decades or so, maybe even longer, we've essentially been playing with monopoly money. the government has been able to borrow, republicans have gotten their low tax rates, democrats have gotten the spending they wanted, and republicans have gotten their military spending. so all sides have been able to get what they wanted here many washington. but we've all put it on tab percent future, you know? we pay for -- we papered over a lot of differences on these issues because we took from the future and spend now. that time is over. that was sort of the tea party movement in 2010 and the pushback to the bush years and then to the first couple years of the obama administration. all sides agree that we now have to live within some sort of limits and some sort of means. what that's done is it's made
all the fights up on capitol hill a lot more pointed. once we decided we couldn't just paper over these differences, you have the fights over taxes, over spending, the reason we have these fights on the debt deal i suddenly those issues are a lot more pointed. going back to the part about jerry mappedderring though, the issue is -- gerrymandering, the public hasn't solved this yet. today think the people are read for a conversation on spending and deficits. the american people still want their social security benefits and their medicare benefits. they want education spending, they want a lot of the spending that comes out of washington, and they want their low tax rates. so i don't think the american people are quite ready for this adult conversation on spending. members of congress are beginning to have that conversation. the voters are still saying, no, i want it all, and that's why you get the gridlock here. so part of the issue, the caller mentioned gerrymandering and, of course, that is where you stick a lot of folks from the same party into the same district so
that the competitive elections or the primary elections rather than the general elections, when you go that, you don't really have this conversation in the middle. you have the republican conversation going on in about 200 house districts, and you have the democratic conversation going on in about 200 house districts, and really the fight is for those extra 35 districts in the middle there. those two sides, you don't end up getting -- i guess i would say that ends up hurting the chances for an adult conversation, because the conversation on the republican side is cut a lot of spending and give we low taxes. give me low taxes. on the democratic side, keep spending and raise taxes, the wealthy can spend more, so when the public doesn't get involved in the debate, the folks up here get stagnated. >> host: with all due respect, the democrats in congress made it clear they do not work for the president in his first term. >> guest: that's interesting. i don't know that i agree with
that. i'd say that, i mean, health care certainly was them working for the president. in fact, you know, the first two years of the presidency he got a lot of what he wanted. he didn't get a environment bill, a cap and trade bill out of the senate, but he did get one out of the house. he got a lot of the smaller parts of his agenda. i'd say what syria showed and what maybe the last year and a half have showed is that honeymoon period is over. he will no longer get what he wants just by being president. he's going to have to make an argument if more that. that happens to every second term president. there was a point in the bush administration, might have been 2003 when president bush asked for congress to pass a prescription drug bill as part of medicare. that was a tough vote more a lot of republicans -- for a lot of republicans, in particular in the house who didn't want to do that, and that was sort of the last free be vote president bush got. that's why he had such trouble getting immigration and social security through at beginning of his second term. president obama is in that
position now as well. it's interesting to watch. >> host: bob many baltimore, republican caller. >> caller: hi. yes, i am, i am a republican in a very, very, very blue state, so i get very little representation. the president is not going to get everything that he wants or a lot of what he wants in a continuing resolution or a debt ceiling situation s. and when he says he's not going to deal with anybody, you know, that just gives the resolve of the republicans, at least in the house and to a certain extent in the senate too, you know, enough ammunition to say this guy won't compromise, he won't do what needs to be dope. and he -- to be done. and he still is trying to push through his progressive agenda which would be wonderful if we had unlimited money, but we don't.
>> you you know, the key questin there is what sort of deal he is willing to do at the end. his argument, and, you know, his arguments are twofold. first is that, you know, if the spending levels that were agreed to in the, in the priest year, in the debt deal, if those are in law, so the question is why should we go ahead attach other political fights to that as the cr, he's made it clear he's won the obamacare fight. he did not get unseated in the last election. the senate remains a democratic senate. the democratic argument is, republican, you had enough votes on this. those votes have not gone anywhere. if you want to stop obamacare, the way to do that is to win over the public's mind and to win more elections, not to hold the hostage, hold hostage the rest of government spending. on the debt limit, you know, there's one where the president makes and argument and a lot of
folks on capitol hill, too, the debt limit -- that's money that's already been contracted by government, essentially. they've already decided they're going to spend that, they've already appropriated for it, and they've already set the tax levels that give them the funding that comes in less than the amount they're spending. so those are debts they've already rung up, this is simply a matter of saying we're going to pay the debts we've rung up. so he says there's no reason to negotiate with that, you're negotiating with the full faith and credit of the united states. one of the things i should have mentioned on the cr, and this is a problem the republican leadership is running into, the bill that they were going to put on the floor last week actually came in, i believe it was $20 billion or so higher than the level that was supposed to be set with the sequesters and what not. and that, the cbo released that report late last week, and that was also another problem, not just the fact that they have this tricky way of allowing a vote but not insuring success on obamacare, but they also had
different funding levels which angered republicans. we saw senator tom coburn actually issue a letter to his colleagues saying, guys, you know, we made a commitment in the debt deal, in the budget control act, and he said we ought to stick with that. so if they're going to undo that, they're going to have a major fight. >> let me show our viewers some headlines about what's going on with the republican party. tea partiers' ties to go to p fraying, tipping points include syria and obamacare. and then some more recent ones, here's "the washington post": group looks to force the gop's hand on defunding obamacare. club for growth spends more and sees bigger successes, so there's that. and then from "the new york times" yesterday -- monday -- excuse me, today, here's this headline that says young newcomers challenge the leadership in the house. and then the hill newspaper, angry house republicans demand better communication. >> guest: yeah. what you're seeing there is sort
of the perfect storm, and this is exactly why they had to pull the bill last week. so much tension there. you know, leadership always has this problem. leaders, their job is to get the basics of government done. in this case that means spending, it means keeping the government rolling at some sort of level. the rank and file folks, they want to win. they're not necessarily as interested in process as they are in victories, and that's sort of the fight you're seeing right now. the republican leadership is focused on profits. hey, we've got to do some basic things to show the country we can govern this place, and the rank and file, no, we've got to show people back home that we are succeeding in stopping the president's agenda, and we're rolling it back. we were elected not just to go lu the motions and not just to stop new things, but to roll it back, and we have the opportunity to do that. that's the crux of the fight you're seeing right now. >> host: leonard in michigan, democratic caller. remind me how to pronounce your
town. >> [inaudible] >> host: great. thanks, leonard, go ahead. >> caller: good morning, gretchen, steve and america. my question is, basically, with congress the way they're acting within the constitution they're supposed to put their political agenda as far as republicans and democrats aside once they're elected. do you think that this congress is going to be like the 112th where they don't accomplish anything? and as far as this benghazi thing that they're going back to one of their agendas, is it going to be just put away on side as john f. kennedy was assassinated? they just don't want to get together to make america strong like it really should be. >> host: okay. >> guest: you know, the benghazi's an interesting issue. sort of early on, i guess i'd
tie together benghazi and the irs. we actually saw some bipartisan questions there in congress challenging the administration over the administration's actions and whether, you know, whether the benghazi consulate was safe enough, irs we saw a lot of bipartisan questions at the beginning about, okay, clearly something bad happened here, let's get to the bottom of it. both of those have sort of frayed as republicans have made their questions more political and tried to tie them closer to the wows white house and to actual mismanagement, rather than mistakes. democratic support for those inquiries has sort of dropped off. when congress acts together against the executive, we talked about the polling earlier, i think that's when congress is most popular and probably strongest, when you do have both parties acting in concert to do oversight of the executive. real quickly to the first point the caller made on putting partisanship aside, i actually -- i don't think that
that's, i don't think that's in the minds of many of the folks up here in congress. they don't believe that when they're elected they put their politics behind them. they believe they were elected to see that through. the politics and their elections are one and is the same for them. they got elected to do those things. one of the things i do at the times is i run the futility index which tracks how much gets done, and, yes, we're on track for a very few legislative year. >> host: justin amash, speak elect him speak speaker of the house. >> guest: i think it's his second term. he came in with the 2010 tea party class, and he's absolutely become the face of a number of the folks who are challenging both their leadership and president obama. he was one of the leaders on some of the syria legislation and anti, you know, not going to war. >> host: nsa --
>> guest: exactly. he's, in some ways, some folks think he's sort of taken over for dr. ron paul who was known as dr. no up here for voting against, voting against policies and excitement being the soul -- sometimes being the soul lawmaker. amash definitely has a strong stance that's getting him noticed. >> host: larry summers withdrew his name to be the next federal reserve chairman. what do we know about when the president will make this announcement, and how's it looking? >> guest: the word is soon, and the word is always soon. now, summers' removal absolutely clears this up a little bit. that's a -- there'd been a lot of reporting and, you know, we don't know for sure. there's been a lot of reporting that the white house really wanted him. he's been a part of the president's team several times before, and the president was sort of eager to turn to him for advice on a lot of things. so he was seen as the president's favorite, and then there were a lot of folks outside pushing for him.
i'm sorry, pushing for ms. yellen, vice chair of the fed right now, as sort of the other candidate. and it was seen as this big debate, does the president go with the person he really wants, or does he go with the person that a lot of his base wants in particular and, you know, summers has now made that issue a lot easier. the question is does the president choose yellen or go for one of these dark horse candidates? >> host: and what do you make of the president, i mean, summers' letter says that he's withdrawing his name, but what do you make of a democratic president having to withdraw a candidate that all reports say he really wanted because there were a number of democrats on the senate banking committee which is where that nominee has to go first that were saying from the beginning, no, we're not going to vote for him? >> guest: yeah, there are a couple of things about it. larry summers in particular, you know, i have a lot of friends who still remember some of his comments when he was, i believe, president of harvard on women and their role in academics and
what not. he's built up, e guess, two sides of this. there are a lot of folks who think he's an economic genius, he's in line with what the president wants to do and, in fact, may be responsible for a lot of the president's economic policies which is why the president, obviously, feels comfortable with him. but there are a lot of folks who, first of all, don't like some of the president's economic policies, but second of all, just sort of his personal style have turned into a real problem for a lot of the democratic base and some republicans, but a lot of the democratic base, and that's why this was a huge fight within the democratic party, and president obama could not continue to fight his own party on that with all the other fights he has going on. >> host: matt, concord, new hampshire. independent caller. >> caller: yes, hello. good morning both of you, thank you for c-span. >> host: morning. >> caller: steve, you mentioned you tracked the progress of congress and what they get done. i wish shall be would track the bills that don't get passed and what the cost to the american people. we send $76 million trying to
repeal obamacare. it's never going to happen. the president who sits in the white house is going to veto it. two, the deficit. no president has reduced the deficit faster than this one since 1950. tax rates. tax rates are at hair lowest ever since -- their lowest ever since world war ii. people forget, people don't remember their history. but when we went to world war ii, we taxed people. rich were paying 95% tax rates. people forget this. so now they're paying 30%, 13%, mitt romney last year paid 9%. i pay 9% of my social security because my wife still works. we just, and congress somebody said that bipartisanship should be put aside. and it's not that it should be put aside, but when you elect candidates who refuse to negotiate, when their starting point is this is my line and i will not cross it, then
negotiation can never happen. the direction country has gone -- and i am not blaming the president, i'm not blaming any past presidents -- but the whole direction this country has gone is it has now become a me. everything is about what the government -- me, me, me. i can get rich because i get a tax break, i can ship jobs overseas and get no must be for it. when i got out of high school, i had my choice of careers because it was manufacturing. there were auto repair shops, plumbers, electricians, all these people are willing to train me. now a nowadays you buy anything, made in china, made in india, made in pakistan. people call this an exceptional country, but the only thing exceptional about us is we've enabled the disparity between poor and rich. because -- >> host: okay. all right, i'm going the leave it there. you mentioned something about tax breaks, and i just want to share, you might be interest
inside the "usa today." the biggest beneficiary of tax breaks is you. more than 90% of federal expenditures go to the individual. but what about matt's comments? >> guest: he sort of captures both sides of what i was talking about earlier with the american people not necessarily ready for an adult conversation. at the beginning, he clearly captured a lot of the argument here which is that the rich should be paying more, the government can afford what it's doing and should be able to afford more and, as he said, the president has dropped the deficit dramatically because he had the highest deficits by be far under his term, so ing whering them down was not necessarily difficult. one thing that i find interesting, i've done a couple of stories over last few years, this changed at the beginning of the year, butyou went back to last year, the congressional budget office which is the scorekeener for the congress and
the government, basically, if congress got out of the picture and let laws take effect, if it let the tax increases that were built into effect and let the spending cuts take effect, the government's financial picture got a lot better a lot quicker than it did when congress started meddling with those keeping tax rates low and keeping spending higher. so, you know, this is one of those classic debates, and every time i do the futility index, i have conservatives saying i wish congress didn't do anything. we'd be in better shape. and so, you know, it's a classic fight we have. the question is how far along are voters in deciding what exactly they want out of their government and conveying that to their folks. >> host: more than 60% of economists say fed policymakers will dial back their 85 billion in monthly government bond purchases when they meet tuesday and wednesday, almost a third pick either october or december.
.. confusion and misinformation about the law haven't significantly updated, especially among the law's main targets. the front page of "the wall street journal" as this goal. latest "wall street journal" nbc poll, results show the depth of the obama administration's challenge on the eve of the rollout of the federal health
care while core provisions as many american say they don't understand the law and don't think it will help them. >> guest: it's interesting. we have the supreme court case last year that found most of it constitutional, found some of the medicaid provisions in terms of whether you could force them to have to accept the medicaid expansion, but most of the law including individual mandate was constitutional. i sort of looked at that and thought both sides were surprised by that. sort of surprised by the fact it was less so in tact. i think they're all caught unaware. republicans were adamant all along, let's get with it. the administration i think all evidence is they really have been sort of surprised at the fact it hasn't been changed, congress has a come back and made a significant in any. the court didn't change it. the fact that are all these reports from the auditors, the gao and whatnot that say how far behind they are, how many deadlines they are missing. they really are in danger of hurting their own cause by not
being up and running, i'm not solving the confusion. no question republicans have added to the confusion and have made the job for the administered a lot worse. one thing in particular, the polling you should insist on parker or more on fiber than it's ever been. that's what republicans are looking at and that's what's energizing to say look, we are winning the fight. it is getting less popular. if we just did to our guns we can win a government shutdown. having said that, chuck schumer last week made an interesting point. i think is correct, the republicans may be right about that but those who believe the entire government spending should be held as hostage to that is probably only about five or 10% of the people. so republicans are looking at the overall level of is it unpopular, yes, it is unpopular. but are people willing to see the federal education spending stop, you know, basic federal health spending stop, labor spent in all these things
stopped? no. they probably aren't. so the question is where's the wiggle room for republicans? how far can they push without getting blamed? >> host: port st. lucie, florida. go ahead. >> caller: what i'm calling about, these republicans crying about obamacare, but what is their plan? i would like for him to find out what is their plan. because i'm sick and tired of them crying about obamacare when they don't have a plan. and number two, the american people view the problem -- we don't go out and vote and we should have more people, more districts be a split district it what i think and we should never district where he can go on republican are all democrat. we should have a district where it could go either way every time. so these people -- [inaudible].
america works better than this. we worked together. now they're always trying to politicize everything and don't work together. my next thing about the republicans, where do they come out about tax reform act they haven't even touched tax reform. i want to see them walk the walk. now i would like to have all you people in the press put them on all these issues. if they want us to take the cat -- a tax cut all the time, how about them have a tax cut in the day? track to on health care and the republicrepublic an plan, the caller makes a good point that this is something the president, i guess some of his, i believe it's either august or late july made his points think the republicans keep talking about eliminating obamacare, they promised repeal and replace and we still haven't seen this replace plan out of house republicans are out of senate republicans. it's a good point. right now you do have
republicans saying just get rid of it, with nothing to replace it with. the president says i've got a hand in this. the american people may not like but right now it's better than having 40 million uninsured but it's better than nothing. the question is whether voters agree with the do voters agree that obamacare as it stands right now is better than nothing? when that point, when we get past the point where voters say no, no. it's so bad, so confusing that we would rather just be the status quo, where we were. than the present is in real trouble and you see the membership for people are saying we are willing to see it go shutdown in order to get rid of this law. we're not there yet by the caller is right. this is a problem that has plagued republicans but it's tougher than to come up with a consensus. it was tough enough for the democrats to build the bill when it 60 votes in the senate and an overwhelming majority in house to get where they were. republicans who don't have either those can unify on a solution which is part of the reason why they haven't put one forward. so they're left with no alternative and it's hard their
idea. >> host: let's end on city. the ap is reporting out of geneva right now that the head of u.n. panel on war crimes in syria says it is investigating 14 suspected chemical attacks. this coming, we assume from viewing inspections report that was given to the u.n. security council been briefed on it this morning. the u.n. secretary-general ban ki-moon expected to address the media at 1 p.m. eastern this afternoon, and that his chemical weapons report is going to be assigning blame for who took part in that attack. >> guest: we'll have to see exactly what that does to the debate whether a number of folks in congress have called for and are pushing for a resolution calling for the syrian regime high leaders including this odd to be held responsible at the international criminal court, to get -- to be put on trial for war crimes and things like this. i imagine they will put pressure on all sides to try to do something about what's in syria,
but it could we raise the issue at the capital. it could be the spark that brings this issue back in so that dominates september yet again. >> host: just for our viewers were for joining us, the senator john mccain and lindsey graham have the opposing the of "usa today"'s editorial page is saying that this deal that was worked between u.s. and russia could not be a worse signal for countries like iran in saying that the u.s. needs to go further. and then also john barrasso, republican from wyoming rights in today's "wall street journal" saying why the russians can be trusted in syria and says that he is should be with a plan b if this deal falls through. >> guest: if you do international politics as a zero-sum game in the summer is winning then someone is losing, in this case it would be pretty clear that russia and iran, basically the friends of the syrian regime, are winning right now which would mean president obama and the u.s. policymakers
are losing but if you do that as a zero-sum game, and that's exactly what koran and the king day. their question, we've essentially help the assad regime, given the legitimacy and said yes, you are the crest gum and control of these weapons what we are dealing with you. it is a boost to the assad regime and, therefore, could be seen as a boost to its international partners. >> host: stephen dinan political editor with the "washington times." thank you, sir. appreciate it. >> police say at least 12 people have died in the shootings at the washington navy yard. the washington, d.c. police chief says one of the shooters has been killed and people are being told to stay in their homes and out of the area as authorities searched for two other possible suspects who have firearms and are wearing military style uniforms. the navy yard is just a short distance from the u.s. capitol about a mile or mile and half away. because of this, the u.s. senate has recessed for the day, postponing scheduled votes on judicial nominations until tomorrow. before recessing, senate majority leader harry reid and
republican leader mitch mcconnell talked about the event and said that they appreciate the capitol police. and the senate chaplain offered a prayer for the victims and their families. a number of capitol hill lawmakers have been reading about what's happening. one from senate leader reid says, my sympathies go out to the victims of the navy yard shooting and we're all thankful for the professionalism of our first responders. >> we were intervenors on the side of federal communications commission in this case. so we were supporting the fcc's determination that there was a concern with these bottleneck companies controlling who are
the winners and losers on the internet. and that they have the right combo of the legal authority and the authority under th the first amendment and elsewhere in its medications act to protect consumers and protect competition by prohibiting these gatekeepers from favoring certain content services and applications over others. >> our position has been that to oppose the adoption of net neutrality rules on both policy and legal rounds. i think as commissioner mcdowell said, and this is very important point, just enter -- just in terms of the policy issue, there was clear no evidence in the commission itself didn't make any findings that the internet providers actually have market power. >> can internet service provider block or slow content moving over the internet? the details of the verizon v.
fcc case tonight on the king indicators at eight eastern on c-span2. >> in a couple weeks the, starting october 1 health care change will begin offering packages to consumers. up next, health reform holds a discussion on the emerging telehealth service industry and how these technologies could be financial cost under the new health care law. >> good afternoon. minus ed howard and i'm with the alliance for health reform, and i want to welcome you on behalf of the sender rockefeller, senator blunt, our board of directors to this program to look at one of the most dynamic aspects of health care in america right now, and i'm talking about telehealth, telemedicine. when i first heard those terms,
more than 20 years ago, it was from the head of the west virginia university's health system who explained to me this new system he was having installed all around the remote corners of that rural state to make the rich resources of the university of health system available to the remote areas with scarce or no resources. now, telehealth steel is important to rural areas for sure, allowing better access to health care services that may surprise you to learn like me that a patient benefiting from telehealth was more likely to be an urban resident than a real resident. so the tasks accomplished through telehealth are far broader than they were a generation ago. everything from remote patient monitoring to robotic surgery, to better behavioral health, to
allowing primary care providers to consult with the most highly skilled but distant specialists around. we are less than three weeks away from the sedulbeginning of some key components to the affordable health care. millions of people are projected to obtain health insurance coverage under the new law, and how is kerry going to be delivered to those millions? well, perhaps there is a partial answer in telehealth and telemedicine. now, there are some potential barriers to camping this new technology. everything from reimbursement practices, licensure rules, cost factors, and we're going to try to explore some of those in our discussion today. we are pleased to have as our partner, wellpoint, incorporated, the operator of blue cross blue shield plans in a dozen states covering was in ninth americans i believe. you are going to hear from john
jesser from wellpoint in a few minutes. let me just handle a little bit of housekeeping first. in the packets you're going to find a lot of good background information, including speaker bios, more extensive than i'm going to have time to give them, and copies of the powerpoint presentations of the speakers but if you're watching on c-span, and you have access to a computer, if you go to our website, allhealth.org, you can find the same presentations, slides, and follow along if you would like to. there will be, for those of you in the room now and your colleagues who you want to inform, a webcast that will be available on that same website in just a couple of days, and the transcript a few days after
that. there are in your packets green question cards that you can use during an extensive q&a session to query one of our panelists or more. and a blue evaluation form that hope you will fill out before you leave so we can improve these programs and respond to what you think we are to be bringing to you in the way of topics and speakers. if you're part of the twitterverse, you can see on the screen there is a hashtag, telemed. that's not tell ed. that's telemed. let's get to the program. with a terrific panel for you today. to discuss this issue which is
itself complicated and multifaceted but i think we have a group that's going to be able to give you the understanding that you need to pick this issue up and run with it. we're going to start with neal neuberger. he is the head of health tech strategies who are consultants on policy aspects of health care technology. and he's executive director of the institute for the health policy of the health care information and management system society foundation. better known as and more economically known as hymss. neal has been educating congressional audiences for as long as the alliance has been around for sure in a series of their respective briefings. he has chaired the american telemedicine association policy committee and we would ask them today to give us an overview of the state of telehealth, telemedicine, how they're affecting change in the delivery of health care.
neal, thank you so much for being part of a program. >> thank you, ed, it is great to be invited back. and as the eye of the alliance and ed balls told i would have about an hour or two to do this presentation today and described -- i is a lasting? is ed laughing? >> i'm shocked. >> we used to have eight minutes. i've been warned. i will do this and that length of time. so my presentation has to do with sort of the state of affairs, the policy of adoption status such as it is or is not in many cases over the years and that sort of thing. just given what had just said, maybe we should call this telemedicine, it's not just for rural anymore because truer words were never said as gary, folks from telemedicine association were here in the audience will tell you it is a much different than it was 20 years ago when i got started in this whole field. see if i can make this -- how do
i make this -- so we talk about technology. we don't use it. at least not effectively. and i don't recommend it for anybody actually. so what's driving all this activity. health care reform's writ large meet health i.t. starting in the lower right we're all concerned about some of the following added 30,000-foot level. public health or population how and how we can drive personal health and consumer engagement, something that's been an issue for as long as i've been involved in health care, which is now more than 30 years and including things like personal status monitoring and osha a couple examples of that. and then down as you continue around the circle, disaster preparedness mitigation response, eod, ba, nastiest do a lot of work with nasa, life sciences for years, been involved in natural mandated --
man-made disaster. having to do with quality driving efficiency and provide access in rural remote underserved minority and desperate communities and a population which is a big issue for telehealth and related technologies. so here's the definition from the american telemedicine association. it's more changed over the years but telemedicine is abuse and medical information exchange from one side or another, the electronic communications to improve patient status, including things like video teleconferencing, transmission of still images, e-health including patient portals, monitoring of vital signs, canoeing medical education and more. so we started this issues as ed mentioned in 1993 at the same time as an american telemedicine association formed and reformed the capitol hill brown bag lunch
series, very informal, around telemedicine issues, including all world state u.s. senator starting with senator rockefeller really, and kent conrad of north dakota, al simpson from wyoming, ted stevens of alaska, conrad burns from montana, a congressman from oakland and some others. and are very first program was about hcfa and what we can do about reimbursement and more thingthings change the more this did send it is not much has changed in the reimbursement in telemedicine in 20 years and maybe karen and others want to get into that. fast-forward come we've done 190 lunch programs over that time. punched him station, technology demonstration, next week for information is, for those interested will be doing showcases oath of you on the sender visitor center and on the house side and wouldn't get all the information online. here's the definition of electronic health record by my current organization, himss,
electronic record is to secure real-time point of care, patient centered information resource for clinicians. it automates and streamlines the clinicians workflow. and it's not new. there have been committee health information networks that have come and gone over the years, and all sorts of efforts. right? and so the big trick is the convergence of technologies towards some of these overarching goals that i described in my first slide. this is a well used slide by the office of national coordinator called into the cost curve towards transform health. but if you start at the lower left of this era of, you see where telemedicine and ehr's for the data capture and sharing or the interoperability of that information, their data points at the end of the day, whether it's electronic data in a medical record or whether it's audio or video data in telemedicine, and you start to
capture that towards advanced clinical processes and eventually improved outcomes. these are tools that are meant to reenable the health care environment. nothing more. and so one of my thesis is that that's the easy part, that technology is the easy part. here's a little bit about that. i think karen may have some similar slides. today, there are hundreds if not thousands of various technologies, applications, and content areas that constitute this growing field that we don't even know what to call it anymore, right? telehealth, e-health, who knows? and so it's a $27 billion industry just on the telemedicine side. and if you look at the lower left and you see down there a risk, that's a lifestyle management for the worried well, intrepid runners like me, you, prevention arguably, not a lot to do with clinical care and the more sophisticated applications as you move from left to right including the next box over
which is remote chronic disease monitoring in homes and in nursing homes, or further right, rolled out units in the icu or as ed mentioned, robotic surgery that start out as remote telepresence robotic surgery by doctor mac, ma right? by sadistic and hundreds of technology just and that alone. -- surgery by darpa. far exceeds our ability to adopt use, incorporate and govern tecumseh pulls apart, public and private sector setting any of these -- i don't know how this got any. so this is yours truly. is a highly disruptive technologies. this is a disruptive slide, and my point is that you should choose the appropriate technology. in 1970 for my project at the chicago science fair when i say senior in high school was determining a stone tools use. i was the first person to breed
you could do so. my story starts and 74. it starts 200,000 is going ahead with the tools and the guys on either side of me, and women, have wooden boxes with plexiglas fronts and a lot of electronics in the. can anybody guess what they were doing? illinois institute of technology judge for all of them. anybody? the first pcs, right? 1974. they were putting together the first pcs. two things about that. so the first is that, you know, if you do this and to pursue this field, what happens is you end up, you should be like bill gates. instead you're doing this. the second thing is, if you dress like this, even then you'll never get a date. major policy issues, i've only got another minute. there's a whole series of major policy issue. i've used this slide for about 20 years having to do with
reimbursement standards, infrastructure and human dimension issues. put positively, there are no problems, just insurmountable opportunities as pogo says. and there are a whole series of players at the federal-state, private sector level and i will let you read these at your leisure, having to do with all this. just yesterday, congressman nunes and alone introduce legislation that would make it easier for federal licensure for dod and va types. next week -- next week, a bipartisan bill is going to be introduced to move telehealth and remote monitoring closer to reality. congressman greg harper's staff is here in the room. what they're doing is advantage in some of the programs and talk about to the aca and other reforms. because as ft of the national says, you take with the game gives you. what the game gives you things at low or no cost or savings funds. so this bill is designed to
incrementally chip away at some of the issues we've been facing for a long time, but that little or no cost, as i think we finally learned as an industry, right? a whole series of other provisions relating to acos, medical home, telehealth kind of things, there is a shared savings efforts at different levels, value purchasing and quality reporting that are both in ac eight and in the high-tech legislation. and so, over time my closing point is that there are many opportunities, as ed alluded to, to begin finally getting a coherent federal policy around some of these issues at a various, at various levels in congress, the administration, which you hear from in a minute, and at a private sector level. thanks so much and i'll be glad to answer any questions. >> thank you, neal. >> we're going to turn now to sherilyn pruitt, and if you doubt that the roots of telemedicine and telehealth are
in rural america, note that sherilyn pruitt the office for the advancement of telehealth within the office of rural health policy within the health resources and services administration within the department of health and human services. her agency resides within herself as i said, and her son is the locus of a lot of telemedicine activity. with that, sheraton will guide us through some of these programs and initiatives that are most relevant to telehealth. very pleased to have you with us. >> thank you very much for inviting me. i'm excited to see so many young people here. a lot of you grew up with technology, so it's not as new to you as it is to some of us who are just trying to catch a. i want to talk about the office for the past in a telehealth, and before get started on to give you a quick overview.
hrsa as health resources and some services evisceration at hhs is department of health and human services. you will see that they will have a tenancy to slide and acronyms i just want you all to know what i'm talking about so when i rush through my eight minutes, at lightning speed, you'll know what i mean. this was so tight about the mission of the office is to advance the use of telehealth technologies to improve access for the underserved. even though we're located in the office of rural health policy and our grant funds go to support rural communities, we realize that telehealth can benefit both urban and rural population. and also focuses not on the technology, the focus on what the technology can do to improve the health of people living in rural and isolated areas. we have four different grant
programs, telehealth network grant program, that telehealth resource centers, a new program for veterans and we have partnerships. these programs work together hand in glove to improve access to health care for people through technology. i'll toggle a bit about the licensure affordable to grant program. this grant program has awarded two, three-year grants to one to the federation of state medical boards, and went to the association of state and provincial psychology boards. the purpose of these grant programs or to reduce or eliminate barriers across the state licensure. that's to help facilitate through telehealth or other just if you live in the tri-state area and you want to go to your doctor what your doctor is in the next state. it's just to reduce barriers to help those states that are willing, make it easier for patients to see their doctors about what modality they choose to use. both of these grantees use uniform online applications, centralize credentialing and they use expedited licensure
processes. patel health net grant program is her biggest grant program. right now we have 20 different grantees. we just funded a new cohort of six grantees. the purpose is to demonstrate how telehealth can use to improve access to health care. our grant funds go to support rural spoke sites but the lead applicants can relocate in the urban area or a rural area. the funding is for up to four years at two and $50,000 a year, and one of the things that we've done this year as a result of something i want to talk about a little bit later is we were able to shift the focus from does the technology worked, because we're at the point now in the evolution of telehealth, we know the technology works. but how does it improve health outcomes? and is that the same as a face-to-face visit? that's one of the things we are working on with her new cohort of six grantees. we asked people to submit in the application baseline data and they will follow that over the three-year period and were going
to use this cohort of six grantees as a test bed for the future of all of our grant, this grant program. this next slide talks about our telehealth resource centers. that's what my favorite grant programs. karen rheuban is one where grantees. i'm sure she will talk more about the program and a little bit, but what the telehealth resource centers are, they are centers of excellence. we have 12 regional or statewide resource centers and then we have to national resource centers. one focuses on technology and the other one focuses on policy. the technology resource center, they are there to help keep up-to-date with all of this technology. as neal was mentioned, the technology evolves so fast we have difficulty coming up with words to describe it. the words evolve, the words come behind the technology. sway one resource center that all they do is focus on the technology. that resource is available for everybody.
so that's funded to our telehealth technology assessment program, ttac. you can get to all of our resource centers at resource centers.org. medicaid reimbursed document. that's from the center for connected health policy but once again you can reach that to the talent resource center.org. you see our map. the telehealth resource centers have grown from just for resource centers to almost covering the entire country, except for my home state, new jersey. maybe one day we will be able to serve -- yes. karen is very generous but she keeps taking more and more grants, more and more space. she's able to help them and she is great at helping them, but we don't have any extra money. but anyway, no matter where you are in the country, if you need help, if your interest in starting or enhancing the telehealth program, you can go
to telehealth resource center.org and find your statewide or your regional resource center and also they have monthly webinars. webinars. you can login to any time they had information archived. they're a great resource. i highly recommend that you check out. then the next access program is a brand-new, not brand-new. we are just funded a second cohort of grantees, free grantees, and has just announced yesterday that the winners of this cohort are alaska, maine and montana. the first one, the first round of grantees were alaska, virginia and montana. the purpose of this grant program is to make sure that veterans that live in rural areas have access to health care services via telehealth, no matter whether they're close to the visit or not. there are a lot of rules, we want to make sure that veterans don't have to drive an
inordinate amount of distance to get to the health care that they deserve. so we are working very, very closely in partnership with the veterans administration to make sure that these grantees and rural veterans in the state of accidents or services no matter where they are located. another thing that we down is, last year we were able to have a partnership with the institute of medicine, and we did a two-day workshop on the role of telehealth in evolving helped revive an karen rheuban was the chair of the planning committee. and tracy is our contact. there she is. she's in the audience. we had a great two-day meeting, and workshop summary was published. carriages. it was available, made available in november. and anybody who wants to know anything about come if you want to get a copy for yourself, you can download it for free. is go to the institute of medicine's website and google telehealth and it will come down and be available, free pdf download. one of the things that came out
of this mean that was so important was there needs to be more of an evidence-based that looks at outcomes of health care delivered via telehealth. so that was, our change of our telehealth network grant program was a direct result of what came out of the institute of medicine's two-day workshop. this is a great resource but i highly recommend that anybody can just check it out, download. there's a couple of copies in the room so feel free to thumb through and take a look at it. is a great resource available for everybody. the last thing i want to talk about is the next generation of the joint working group on telehealth which neal referenced briefly. what it is is across government to work on telehealth. when i started this job about three years ago, not only did i want to know what's going on in my office, and o.r. hp and hrsa, i want to know was going on across government with telehealth. we did come calls google part of
the joint working group and we said hey, what's happened with telehealth? we want to know what's going on in parts of the government. we had an overwhelming response so we been waiting for two years. we meet every other month, the conference call and then we have, we meet face-to-face twice a year. we have representatives from cdc, va, cms, commerce, justice, it's amazing how many different federal agencies have some sort of investment in telehealth. so we meet every other month and we have two speakers that present and then we talk about what we're are doing in our own offices, and can we talk about, we work on actual things together. one of the things we're working on is a paper on the federal definition of telehealth every interest. with that, thank you very much for your time. i just went a little over. >> thanks very much, sherilyn. by the way, let me endorse your
endorsement of this iom report. it is a terrific resource. it has everything you're going to want to know at this level about what the issues are in telemedicine and telehealth, and it's readable at a level that, frankly, some institute of medicine documents might not be from time to time. and i guess that is, that is a trigger for introducing the chair of the planning committee of that workshop, dr. karen rheuban. she has the lowest of accomplishments. i commend the biographical information in your kits to you about her, but her primary connection with us today is her position as director of the center for telehealth at university of virginia. there are 108 sites in uva's
telemedicine network, so we're looking to hear about, among other things, about somebody day-to-day challenges and the policy barriers that exists in trying to make the best use of telehealth techniques. karen, thank you so much for coming with us. >> thank you. can you hear me? perfect. let's make sure i can advance this properly. >> here you go. that's the right one. >> okay, so it's a privilege to be your. thanks for inviting me, and and the anakin and thanks for so many of you coming and join us today. this is a very important issue as a look at ask the health care services, access to quality, and certainly post a four look at the our program was established almost 20 years ago and we have fought the battles, and we talked the talk and walk the walk as best as we can.
but we have faced challenges, and many successes as well. i do like to say that we are a proxy for the many telemedicine programs around the country. all 50 states have telemedicine programs, and with a great resource and the american telemedicine association. gary and latoya are here to want to thank them for all their efforts a map of all of our states and all of our patients. to are the primary beneficiaries of telehealth service? it's the patients. it allows for time access to locally unavailable health care services and particularly form of a population from homebound patients as well. patients are spared the burden and cost of transportation, improves quality care and increases patient choice. for health professionals that benefit as well especially in this era of future works short -- workforce shortages. access to continue education and for communities this is a huge benefit as well. more than 90% of patients were engaged in telemedicine encounter stay in their
community setting. so that's important for families. it's important for community health care systems. it dries broadband adoption and it creates an enhanced health care environment, and economic impairment -- apartment for the committee. so again, consider you this program as a proxy for the many programs across the nation. we offer videoconferencing for patient care. so live interactive video conferencing connecting health professionals, specialist with patients and their providers in remote settings. we do telemedicine which is the asynchronous transfer of medical images and medical data for interpretation. and class example of that is teleradiology but there many other applications in the world of the malta, dermatol to, as well. we've establish a remote monitoring program. we called it see three or care queer nation center, to monitor patients in the home care setting. wheezer network for clinical -- clinical trial. for health professionals can for patients and even for students as they're sent out into rural and remote commuters.
we also the program to of workforce development of with great a certified telehealth technology program with hrsa funding. they've got tons of patience to see in their own clinics. so as ed mentioned with a 108 that network and the commonwealth of virginia and with technology it doesn't have to be in a traditional referral area, which is live in the western half of the commonwealth of virginia. you will see we have a preponderance of sites in far southwest virginia, primarily because that's at least we start combat was a rural area and a lot of the grant funding and a lot of our legislative partners were in southwest virginia. but we have sites in the middle of the chesapeake bay and on the eastern shore of virginia as well. so technology, while this is not about technology it is really important to choose technologies that are interoperable and that has been our guiding force is to
choose things that work with another complex and play. there is a continual health alliance of equipment manufactures that are pledged to great interoperable devices. so we a desktop you conferencing, mobile videoconferencing, fix of you conferencing and even ipad and other tablet devices. and we've used robotic technologies as well. as far as our dashboard, we supported more than 33,000 patients, patient encounters, and when we first started our program we didn't connect to a lot of sites. so you can see our volume for rather low. we had a dip which i think the interesting between 2011-2012, when one of our fellows went into private practice of tele- psychiatry. she took a fair out of business the most but i say workforce development and she is serving patients in virginia. that's a good thing. we are marching back up again. more than 40 specialties purchased in our telemedicine program at the numbers of virginia and a metric of want to share with you which were very
proud of them we have saved virginia patients more than 7.9 million miles of driving access to health care. that's a lot of dollars and transportation cost for our medicaid program and for our patients as well. so our program is made based and metrics driven. you've heard about clinical dating are important in the evaluation. just a quick example. high risk will be telemedicine. we've reduced predelivery by 25% in the network. that translates into healthy babies, healthier mothers, lower cost for medicaid program a lower cost for the lifetime of care for children. we had a tele- stroke program and these are just two of the 40 different specialties. hrsa fund a program as well. with increased use of tpa from zero to 17% of stroke patients that show up in thos in the hos. huge outcomes and benefits to patients. i mentioned remote patient
monitoring and home telehealth. this is a very effective tool for chronic disease management come and post affordable care act, very important for hospitals around the country because there are penalties for readmissions that our hospitals are facing. this is a five these tools to reduce reignition, reduce your visits, and there's a lot of data both from the va as well as from committee hospitals and academic hospitals that showed a tremendous reduction in emergency visits and we hospitalizations. so we played telehealth should be both state and federally-based and market-driven service line. our commonwealth of virginia has been incredible supportive of telehealth centroid inception of a program but in particular under governor mark warner's administration when he expand -- is anybody here from senator warner's office? senator warner when he was governor of blue open telemedicine for medicaid beneficiaries. urban and rural beneficiaries are not eligible to receive telemedicine service anywhere in the commonwealth of virginia.
anybody here from cms? we have negotiated in our dual enrollee contract, which is medicare and medicaid patients, 77,000 covered in virginia, to have an expansion of telehealth services, including we're hoping as we go through our final negotiation, urban medicare beneficiaries because they're covered under medicaid in virginia. why not under medicare? to name. we don't have that announcement shortly. virginia department of health has been very supportive and are console originations sites and to fund programs. our state systems of care task force has embraced telehealth. our tobacco commission is funded telehealth programs in southside and southwest virginia. our joint commission health care which is a virginia legislative body didn't workforce analysis, and really created a roadmap for what ultimately became virginia mandate that passed in 2010 from the virginia general assembly to demanded third party payment of telemedicine services. and we are very grateful for that.
our virginia health reform initiative and health benefits exchange all include telemedicine. so we're pretty progressive state when it comes to telemedicine. i mentioned the virgin health workforce development authority initiative, a hrsa fund grant to help train professionals in telehealth. so we would not be where we are without the federal government. we have received grant funding from hrsa, u.s. department of agriculture, usda. anyone from usda? they funded rural phone service. they have a distance-learning and telemedicine grant program and we have relied on that for the procurement of equipment remotely. and nih is funding, department of commerce, art, all federal agencies have some involvement. sherilyn talked about 16 agencies and departments but there are at least 16 agencies with some involvement in telehealth. indian health service ca, va, department of defense and again a huge shout out to tracy in iowa and. that was just awesome for us.
-- tracy in iom. spent one of the things we do need more than anything else as we are trying to advance telehealth nationwide is to improve medicare reimbursement of telehealth services. it's still low. and 2011, cms reported less than $6 million in reimbursements for telehealth services, telemedicine services nationwide. that isn't very much. one of the challenges are some of the limitations in originating sites, the requirement for telemedicine and even the definition of rural. i'm thrilled that the 2014 cms positions proposed payment rule has an expansion in the rural definition which currently is now only non-metropolitan statistical area. there's a real requirement for aco. this changing definition of rural limits assistant on miles and more access to care for our vulnerable seniors. also the rural definition is very poorly aligned with specialty workforce shortages.
the are many issues that need to be addressed. reimbursement being one. credentialing and privileging, cms issued a new regulation two years ago which is very facilitate of telemedicine. we have to be aware of hipaa. very important licensor portability as a child. medical malpractice is itself if we go across state borders we need to be aware of the malpractice cap on non-cap in other states. start an anti-kickback. we can't buy equipment for any site because of my viewed as an advancement taking inducement for true. telecommunication been is very important. integration with the mars. i know neal touch on that and health information exchange but when it be nice to be able to just call up the continuity of care document when we see a patient? we are all in the state moving forward towards hiv. standard interoperability and then a plea for interagency alarm related to policies. great opportunities, national workstation of black elected women, legislative women have
model legislation in the states, now 19 states plus the district of colombia past a mandate. congressman harper's telehealth enhancement act of 2013 about to be introduced. the veterans act to expand the wants it license model at the va. that telemedicine for medicare act, nunez-alone to expand licensure across state lines for medicare beneficiaries, and whatever can be done for elimination of the rule definition eventually under cms. i just want to give an example of some of the areas in virginia that are considered urban areas by the current cms definition. scott county virginia far southwest virginia, that county has one federally qualified health center in the middle of the mountains. inia, that county has one federally qualified health center in the middle of the mountains. it's an urban area. another appellation county, they can this critical access hospital but it's considered an urban area bicmos. washington county, there's the
mountains. that's an urban area by cms definition. and the grand canyon. so thank you for your attention. we look forward to all you continue to be champions for telehealth. i will make myself available at any time. thank you. >> thanks, karen. finally we're going to hear from john jesser, who is the vice president, or via engagement strategy for wellpoint. wellpoint being not only our partner in this program, but the outfit that is charged on finding ways to improve care and improve affordability and improve consumer experience and access. pretty good job -- pretty big job or company that insures one out of every nine americans. telehealth's one major part of the portfolio that john has developed in response to that chart, and he had 12 points live
health online project, which is designed to improve the connections among doctors and hospitals and consumers and their health plan. we've asked him to tell us all a bit about those efforts today. john, thanks for coming with us. >> thank you. good afternoon, everybody. tell you all a bit about it. so and mentioned some of the key points here, so for me health land perspective, you may not know this. health plans are often looking for ways to make health care more affordable, to improve access to care, and also to improve the consumer experience. not something health insurance companies use to historically been known for but it really is important. especially in the advent of the oncoming of exchanges where consumers will choose a health plan one by one. we've been, fortunate at wellpoint of a family of blue cross affiliates across the country attended to attract a lot of the best and brightest ideas in the market that we get to take a look at. and i was very fortunate about
four years ago to run into a company in boston called american well, and american will was found by two physicians, a technology company, that build an online care platform that really redefined telehealth and telemedicine and all the ways we've been talking about it. so i will share with you and help you understand why. so we worked with american health and rebuild this part of called live help online. the question is, what is life help online? so it's you, it's friday night, you're at home. you don't feel well. and today you have a couple of options. you can go to an emergency room. it's going to cost a lot of money to give sit for a couple of hours and wait. you can find an urgent care center, if there happens to be a walk round that's open. that's so going to caution north of about 120 bucks. maybe you live near a cvs or walgreens or another retail
chain, kroger that has retail clinics. there's another option. you could see a nurse practitioner. anyway for an hour. you have to drive there. those are really your options today, or do nothing. wildlife health online has done, we're introducing a fourth option. you can open up your laptop on the webcam or your mobile device tablet or telephone, a cellphone rather whether its android or apple and have new any access to a board-certified primary care doctor on demand from the comfort of wherever you are, your home, your hotel, route ever you are. and right now that is priced at about $49. it's affordability. it will give you more access to care and it improves the consumer experience. people value their time more than anything. clearly the doctor can put hands
on the patient and draw blood, so there are some limitations to what can be seen. but there's an awful things that people would feel a lot better if they could just talk to a doctor. same scenario happens when it's a monday at 10 a.m. you're at work and you don't feel well, and oftentimes you going to have a hard time getting into your doctor that they were even the next day. so the ability to go to a quiet room have access to webcam and have a consult with a physician who come in many states, based on the information you exchange with them in live, real-time audio and video, can be used for them to write a prescription to help you feel better. it will be electronically sent to the pharmacy that you choose. and the payment is done by credit card. if you happen to have and the more one of the other wellpoint family health plans, it may be integrated and acclaim will be submitted and you all be charged your co-pay. no paperwork involved.
sound too good to be true? it really is happening. we are live not in ohio and in california. and we will be, i'll show you a map here soon as to where we're going, but we're introducing this to national employers. i know many of your and the federal employee plan saying when we come to us. that's also on the list. but anyone can use this as a consumer. so the website is live health online.com. it's that simple. out talking more about that in a minute. but why does that matter in this discussion? because you hear a lot of talk, there's been so much wonderful work done in telemedicine, bringing people access in rural areas to urban doctors and improving access to care. the variability that is unique grants, you need money, you have to put expensive them and when such an expensive equipment and another. people still have to drive.
this whole idea of originating sites, all that goes away with the new technology that's coming. so thanks to people like steve jobs at apple, high-definition video impression, high-speed internet, the bandwidth keeps improving. many of you use this time for skype. well, if you think about those technology or that technology in a secure structured hipaa compliant manner, built for health care, that enables people no longer need grants to go toa lot of expensive equipment around. you can think about a medicaid plan, go to the public labor and put and i've been in a room and you suddenly have a virtual clinic. if want to attend some biometric devices, a stethoscope, other things, even have a nurse there, you can even expand for the. i want to walk you through a couple of slides and give you more insight. again, i mentioned this is
meeting consumers wherever they are, whether in a hotel, whether at home, whether at work. it addresses convenience, prevention but there are many people because of various a transportation and there's to care that just don't get seen. the art cost to care savings but at that price point when you avoid an er, when you avoid an unnecessary urgent care visit, you are saving money. and the patient enjoys the experience. these are some of points that we give our sales people went out talking to employers because there some other solutions out there, some of them are purely telephonic. they're not as robust. we make sure that they know that the strength civil we have here with life help on whether i'll let you read that on your own. for the sake of time. this is really the key screen. this is the home screen when you login. and it matches you up with the state or in this case the district of columbia with where you live. it will show you doctors are licensed in that area.
and right now in the model is if you welcome an urgent care in a cloud. so this is primary care, urging to, the kinds of things that can be treated. it's not dermatology yet but i'll tell you, think about things like behavioral health. you know, it's fascinating how the mind begins to work when you start thinking about it. two years ago i had people telling me who would ever get care like this? six month ago i had ceo of a major academic medical center say, i don't think anyone under 30 is going to come into the doctor anymore. somewhere in between and there is the truth, but the ability to see the doctors up front, read about them, find out what he went to medical school, find it if they speak different languages, and choose. that's very important to consumer experience. ..
the. >> we don't want to jeopardize their license. so many terms have the originating site talking about old eligibility but not the new i would ask this group to seek about to help the smart people to come up with a modern definition of telehealth that the important thing is in working with the american academy of family practice can a doctor through technology gained enough information for how we define it.
and we will share that information with you. and in their judgment do they have for prescription for not controlled medications that help to resolve the patient's problem? if so what the doctor uses judgment to do that. that is what we're seeking and what we are involved in. my time is up. thank you very much. we will talk later. >> one of the nice aspects is you get a second bite of the apple when we get into the question and the answer. ha there is a green card you can write to the question and bring it forward for a response by our panel or we
have microphones there and there. if you come to the microphone keep your question as brief as you can and identify yourself. let me start us off. john made repeated references like the term haute originating site. whoever feels the urge on our panel to tell us more tangibly how is telehealth reimbursed now under medicare? and under medicaid has with
others there could be 51 different answers. >> for medicare there is a specific number for the practitioner, the clinic, a health center, hospitals under medicare. for the reimbursement there is only a type of providers that can be reimbursed and with the originating site that is where currently it is the definition of rural and that is a bit of a challenge. although under medicaid is up to the states if we have 50 different definitions and in virginia primarily clinics and hospitals and community health centers. although we have gotten
approval to do patient monitoring in the home. we have not tested for the private payers yet been a doozy that is under your collaboration so now suddenly that is not under medicare. >> we made a big coup for to be the first to commit a and the reason was why don't you pay us for telephonic care doing so much on the phone? it makes us want to bring the child in the office because that is the only way to get paid. quite honestly is it is rational we don't know what happens. digit talk for two minutes or 20 minutes? how much was involved? if we pay for the telephonic is it what does that mean?
the technology i describe is documentation of the patient the doctor reviews that a and they have of live video interaction it creates a medical record if there is a prescription written it is done and documented it is a permanent records of the things that happen in the office visit are built into the technology we feel comfortable to say okay. whether it is in the building or not do the same room we don't care. and there is this the pt code for that and it is online care. so from the private payers standpoint we do have employers to agree to. >> with nursing facilities in dialysis facilities are
original sites we also build with the modifier to medicare. >> here is my quick answer. technology eliminates time and distance to the point we need to stop thinking about everything being done remotely. it doesn't matter if the patient is here in the clinician is there if you get the correct information. endoscopic surgery in the operating room is telemedicine it goes from inside the patient to the physician who views its on a screen no more than 5 feet. what is the difference? there is none is the short answer. a limited member of sites and codes through a patchwork of crazy through hipaa then cms and private insurers scratched their
head try to figure out how we make sense of this nationally? the short answer is we have to get a handle on this. and then to begin pay for it is the only rational one. we have to stop the fence me in practice of state by state licensure that has zero to do with science but everything to do with business practices. of it is time to stop that. [applause] >> i know what to do tromp on either questioner or on to your applause line coming getting back to pave it, and medicare differentiates from one place or another and we know the payments vary substantially from one market to another.
what rate applies when you are in one county and your patient is in another county? is it the originating site again? >> has not been with the actual rate with the code with the modifier for medicaid in virginia was paid with face-to-face care if we are paid and the same is true for private pay as well that is part of the mandate with parity legislation. >> it doesn't make a difference in medicare for example, if you are upstate new york or manhattan, presumably their rates for a particular service are different? >> would never would have been the university of virginia is billing with their code is the same as if we do face-to-face. >> i think that concept of sight of service code will become obsolete.
it had to do with how much resources were used but it was inpatient that was a hospital so there was a load for overhead then there was outpatient and then if you get into home and does it matter if it is a hotel or hall or down the hall? i don't think it will serve us to come up with the best places with the service codes but that is for another day. >> you have been very patient to. >> from potomac research group with the last point this question is more geared to the other type of telemedicine. i notice caribbean your slide you talk about reducing preterm delivery in miss appointments and and i wonder about another piece of information is the total cost of care with telehealth
and what you have the data forthcoming that would describe the latter part of the definition of telehealth to lower the cost of care? i would assume from john's example that he did the analysis this is better for patients and lower the total cost to you think there is a point of diminishing returns where the needs of the patients that there is an improvement of quality and lower costs? and for your patience that participate in the program? >> figure. even if it was breakeven but improved affordability and consumer llord excuse me. if it improves the consumer
experience then that is good enough. but things need to be funded to grow. but one of the blue cross and minnesota did a response to their employs after every online care visit what would you have done if this was not available? we also ran across our number some people would have went to the emergency room a large chunk went to urgent care and other would have waited and some would have done nothing so new costs were incurred so those who do nothing. but adding up on average you are saving anywhere between 45 through when the dollars for every online care visits throughout every other cost justice through primary care. it also makes us target
let's look at the frequent fliers in the e are going there for non-emergency stand at least reach out make them aware there is another solution. this is about marketing. and creating consumer demand looked at the original amazon.com it was very flat. nobody knew about it or you step. the consumer will decide we want to make sure we get it in front of the people of. >> i am not a health economist the we have tried to get this data so we can extrapolate the cost of care to reduce the burden of preterm delivery or in the icy you. socialist get that comprehensive look to gather data of a proposal it is very difficult to get cost of care even from the
medicaid program for even babies that were not hospitalized because they were born at term in their community. then attaching those in the numbers to the mother those days are very difficult for us to get that we're trying. there so weird looking at the tremendous cost savings it is hard to gather that data with the mix of patients and payers. >> one workpiece so with the teachers' unions they have to take a half a day of the it to go to the doctor. the teacher does not want to use up precious half a day to go to the doctor. on average their god between 90 minutes and two hours.
so as they roll this out with some smart people and actuaries to come back in a year to have perry sounded data. >> also that 7.9 miles or those correctional programs were formed by the patients themselves. for those people that have done those studies there are anecdotal studies in be are now finally starting to get some of that data but the industry is falling short. that said it would consider any of that forward thinking or four word meaning information what does steve knight held to do down the road because that is not house cbo scores things that is a major congressional fight that is living in the
background and house over 20 years. how will the cbo consider that when it comes to scoring the legislation? the we have to get our act together better. mr. neuberger talked about disasters with telehealth and ati medicine and talk about the barriers. >> there have been married non dash many conferences with the disaster preparedness act after katrina and examples that for example, clinics in new orleans and in many ways and also hospitals that had the ear of the grants -- that had te ear of the grants -- the community development block grant had used that with
teleand health like activities to preserve systems with everything else went down. those tornadoes in the midwest there is some very good examples of the angels program in my slides that have done some good remote planning with disaster assistance. the armenian earthquake 80 years ago we did a consulate to russia following the revolution when "the new york times" reporter was shot. he sat there and talk to the reporter this is before hipaa. [laughter] he was in the kremlin hospital 20 years ago with the long history of dod using it with instances of the world. almost every deployment the haitian earthquake and others. there is a whole discipline
my former partner is big into this with the state department and usaid in multilateral organizations overseas around just as this issue. >> cavelike to comment virginia has invested a mergee prepared this dollars we connect all hospital almost every hospital in virginia is connected and be tested regularly to communicate and manage to gather. think about it also the data that could be mined with pharmacy utilization in terms of identification or other outbreaks or anthrax. they could not be used for increase in a timely fashion >> epidemiology and disease is the perfect way for electronic health records and telehouse because you don't have the same business
and other issues that you'd otherwise faced with competing interests in various locations around disease surveillance and community care records. that is a good place to start with expectations. >> i of a pediatric hematologist i am othello this year and i was at the pediatrician looking at prescribing it a bad sore in the ear infection i did not examine so clear the will of this medical problems through telethe decision if you actually examine the patient. to have a separate standard of care with the malpractice as opposed if you see a patient and has that been a problem in virginia?
>> to make sure that i clarify i am not a physician but if the goal the point is to allow the doctor to use the information from the patient through that interaction. if they don't believe they can adequately diagnose or should not write to the antibiotics and that is what they should do. it enables a person to get in front of a doctor for those that are symptoms base that can be described and diagnosed by listening and seeing the patient is up to the practicing doctor in the malpractice standard does not change. most of us that work with computers don't often have the live web cams in the
workplace at the desk so there are some fascinating designs that you can play in the workplace with the digital otoscope for a stethoscope or a digital dermis scope and other peripherals. think of the employer that could not afford the work site clinic because the cost of employing the dr. anders now if they set up a quiet room with basic technology and the internet can have a nurse or a medical assistant take bridles to expand what the doctor can't treat. so what can a doctor obtain and are they comfortable in what they are treating? >> with our model and i am a pediatrician, we use
stethoscopes and that is a slightly different model although yours works well for tree dies but we don't separate a separate standard of care we want the positions to feel comfortable they can manage a patient as well as they could in their own office. >> in a way should replace anyone's primary-care doctor but there are physicians to take a call today and they write to antibiotics without examining the patient and that does go on. whenever the standard is to say we're not trying to change it. >> from a policy perspective with terms of technology quality is job one. do no harm. oddly it is more receptive but there is a role for the
food and drug administration with the ongoing discussions -- discussion with what purposes they will fall into and that is a good discussion point at which to enter. all of them are actively engaged in how do we ferret out those issues how does it relate to the metric some of the quality care act? >> i am the pediatric cardiologists. isn't this just simply replacing a physician taking a call before we went to nursing centers the way to get the entity reimbursed? before we were not reimbursed for the phone call. >> but it is so much better to see the images.
our colleagues there is one clinic of what a physician can evaluate over the telephone because a picture is worth a thousand words also there is practice guidelines with the telehelp including primary care and urging care they will be out later this year but they have practice guidelines in a number of different specialties can we improve the standard of care in many communities. in our network no names but the patient was treated in a local community for shingles and not getting better. they ask for the emergency medicine consult it basically was a flesh eating strep not shingle so the access to the specialty service was life-saving bad is the case with the use of telemedicine.
>> we will segue to a question on the card it is also a follow-up if there is data on cost. is available yet whether a population health basis that describes the impact of telemadison? are people getting better on average? for improving quality standards. >> there are many. [laughter] >> i just got to the end. >> guess there are studies but with the affordable care act now look because the environment has changed but groups are doing careful studies on these issues.
>> many are documented in the "journal" that is like a arm of the american telemedicine and it has been over 15 or 20 years and there is a peer review quality related outcome studies that show the benefits of various disciplines is of specialties. >> in the summary report a whole chapter on the current evidence based. >> one of the reasons to get to that question in that summary there was some question to how robust the evidence was. is that a concern with the major take away we deeded to
do more? >> guest. [laughter] there is a very comprehensive discussion that was well done and at this point there is room for more to be dan with larger studies and economic analysis be but there is a role for research and quality within the current mandate with the high-tech funds for these sorts of things whether or not it is on point. a and other but those that in the terms of energizing the evidence based has to be done. >> if your left arm is
holding out to keep the laptop there i think she was at the microphone for. >> good afternoon. i am the executive director for the board of medicine in the district of columbia think you for your informed presentation. mr. neuberger you made a comment about state licensure i'm a big proponent of telemedicine and just want to explore with you your recommendation and how they should be handled and probably more importantly the disciplinary aspects how to control and regulate those that may not be licensed in their state but have performed for outcomes and how are those issues to be handled? >> there was at least, some progress within to at least
explore the whole notion of the interstate licensing nursing contact that has not been that widely adopted but 12 for 15 states? with reciprocity its interchange of nurses licenses. we have to get more real so there is that reciprocity of a federalized system but it has just been too long. with disciplinary actions. the age of a and others but it can be done. >> that is a challenging part. those have no issues with the licensing but to have
control over the provider so with the discipline so it'd standardize now. is the issue they're not in the business but to protect the public and from there what we looked at. >> battle of think or i don't mean they make money but they protect the making of money in some ways like to places of california they have too many clinicians but not the right kind. cannot distributed right it could be viewed those laws are right -- archaic and out of date stemming from the 40's and 50's i used to work
in wisconsin for this day and say sellout with that all has to be reviewed with the disciplinary part spirit that is where we will need some help. getting access to you care we're in a position where we get complaints we address those and and they do that to have control that would be great. >> i have seen health care providers what demographics have you seen? who are the early adopters? >> telehealth is such a
broad term so if you speak to primary-care and to work with indiana they of over primary-care doctors the carrier for the working mom the position is 10 years after having a second or third child because of coming to the practice there is a shortage to bring more and more people if we have the highly trained those that are no longer in the workforce because of the brick and mortar this is a group very interested in the evenings of the weekend's
with of position and with a disability having trouble getting from room to review the office but is the outstanding position. those thinking of retirement or lifestyle but not to have that expensive overhead but denied health allows you along with those other great physicians. >> behavioral health has been surprisingly robust we have charts like this we have the of bar graph that we can get for you offline but correctional help a lot of the state corrections programs like primary-care
so that the appearance of newborns and others can monitor the adults and they see you monitoring. there is a bunch of specialties that has taken off like remote monitoring for cardiac patients speaking of to address those great hair professionals that adoption rate is phenomenal we have just as many gray-haired physicians that don't say no but the under generation is second-hand but with ht video conferencing we there is like being there and it is a whole lot better for us with gray hair who used to travel and can also do a by teleconferencing.
the be uniform but to created and developed the apps as well. >> several questions that half to do with payment one question that has added space and with the pavements to free app the restrictions that flow from the lack of reimbursement for a particular service over a particular profession? >> in with those that cannot pay 49 madison we need other changes. yes it is a great idea but
we have a way to go talking about medicare those that are almost as numerous do they? >>. >> it is everything that you can imagine in terms of telehealth in the fate is that it may be the ground is changing now from under us well we have bent waiting for service reimbursement to make sense to not be incrementally done now with senators conrad the ground is shifting. the cannot let this train pass us by without
consideration with the various shared savings models better so actively pursued within the accountable care act in the private sector. it is happening in the public and private sector. >> we look at health -- telehealth it is just getting them money right. if the health plans were ruling out across the country but now when the doctor is tired and comes home to eat dinner now with these patients will end up in to take thousands of dollars out of the risk share for the total cost of
care they are concerned. social have a service to refer to whether board certified doctors not threatening to take them away and they can see the chart in the morning is very helpful and with those practices that do provide that care around the clock they no longer have to say we have six locations this is so open and television they can say we are available on-line or 24/7 how they can capture revenue for those people that would have wandered into said er or the retail clinic. it provides a lot of flexibility for the physician. >> the other model is managed care under medicaid with low hanging fruit is the program does endorse
telemedicine it is the managed-care model that does very well. >> one other quick thing high-tech does a lot of good things for medicare and medicaid adoption and meaningful users of three stages of adoption. but for no good reason the with which this piece was done and lack of funding there are groups that got left out. so the question becomes even more complicated with continuity of care around issues. in from the outside the key it in terms of high-tech with behavioral health with
the emergency medical providers, and a couple of other categories and tele medicine to a degree because it is not mentioned or talk about but more so in the accountable care act. those things go to the alignment of all the incentives and other models as he looked at the various laws for continuity. and the goals of having care flows through the system. >> i apologize for those of you that put questions on cards we will not get to all of them. if they cannot wait you better go to a microphone over the next 15 minutes. what type of health care services arriviste amenable to tell a health? it will that change?
>> or is everything? >> the number one services requested is behavioral health were then 50 percent is in that sphere but we have more than 40 specialties a view to physically touch the patient dod has done research with a virtual club is not proliferated into general practice if they need to be touched and frankly if they need surgery then we do have robotic surgery examples but in general you need to see a surgeon. and is not mainstream so if you have to feel it, it is probably best to travel. others requests the first
encounter be face to face and the comfort level of the provider. >> does any of you foresee where the consumer could pay a penalty or a premium fee to visit a doctor as compared to telehealth? you want to talk to a teller? you pay the premium. [laughter] >> i don't see it that way but as a series of tools to enable health care and the changing in morphing and advancing goals of health care. now the nurses that provide much of that care and allied health practitioners, the notion the technology will somehow replace the condition to my mind is absurd.
i was reading about poker machines can play better than humans. that is not health care. watergate are doing with computers it is still an art and judgment involved and hands-on that is doing that is going on it taking place. i just don't see a. >> somebody absolutely positively had to get his question in. with the last few minutes i would appreciated as you listen to the question and response, you take the blue evaluation format of your packet. >> guy and an intern with the commission on aging.
what about those of older americans to live in rural areas without access to the best buy or the apple store to purchase a computer or laptop. the with the lack of technology? >> and with this issue at some length then need to level the playing field enter several, older populations to for a lot of reasons can get good care. added that technical support , does not have access to broadband your computers or that sort of saying. historically there has been
that studies have shown the underserved minority are far less however there is some good news the mobile telephony is a technology that least some of those problems like broadband your hard wire communications we see this around the world with a tremendous explosion like billions of handsets it is incredible two or three for everybody on the planet and wireless mobile technology. that could be the instance where the technology offers a good solution to the problem that you describe with at access. everybody has a smart phone now. >> the with like to add that
there is problems with a the of for medicaid patients she used all the revenues to identify the most at risk patients and then in cooperation with the help -- hospital and% them home and trade them how to use it and they took the most foldable patients to have the best outcome we should not give up on those patients and with the implementation hospital systems are intended to embrace these technologies and i think you'll see more projects going forward. >> there are provisions and high-tech that require the senate and house with the senate finance and appropriations the staff in
the room with all the various agencies speak to the fire. when it comes to that kind of reporting what they have all been so busy standing up these related kinds of efforts they have not had a chance but there is a rule efforts not only driven by the veterans health administration there is a lot of money they're so the agencies are well aware to focus attention. >> if you do not have an acronym list some of you may not know the high-tech is not an adjective is a noun it is a piece of legislation that was part of the stimulus package.
let me follow-up on this question because we have several parts discussing different aspects of different involvement in this issue. how persistent is the lack of a durable broadband availability in rural areas these days? >> this is still as big a problem as it was to three years ago? >> i think not. there is like 7 billion made available -- through the utility service that is a longtime grant but for broadband into rural areas and through the commerce department totaling
7.2 billion and that coupled with the investments by at&t and verizon and other big carriers in the tens of billions is starting to cause better penetration of broadband in to their rural areas. it is definitely getting better. it is hard to get good maps dealing with their world tends to be anecdotal but the fcc is definitely working in that direction with their policies and programs are designed that way. >> we also have cable. and we have had no problem going anywhere including the second highest mountain in virginia. nothing was there we call the telecommunications company and within four months we were on top of the
mountain that was supported by be rural support mechanism so those that are interested that has been a fabulous resource. >> and one of senator rockefeller's provisions in 1996 to create that program that was ineffective for a lot of years they have done as much as they could administrative leave without a reauthorization to make it more effective so more of that money that is collected per year of your phone bill does get used for the connect program and the other rule connectivity programs in the stars to have an impact. >> we have a question everybody will want to weigh in on an eye and interested with a panelist the be the
simplest question we have heard who are the winners and losers if telehealth is widespread? >> the patient is the winner >> i don't see any losers. it depends on unfavorable public policy. wants it passed in virginia said to me all the systems be caving gauge with telehealth no losers. just come on board. >> one of the rare things that greasy the patient is the opposition wins the employers wind. i suppose you can say with internet came about who was the losers may be the printing press so maybe it is the petroleum companies because they take people off the road maybe there is always some loser but we've
moved on. [laughter] >> it is a win/win it is fun to work on those issues and for my car i have never met a member of congress on either side of the ideal or me there house that did not think this was a good idea and they think they're there because of their political skills not much could be said about any at other but this is one that is almost a no-brainer that causes us so much a next why it has not happened faster on the regulatory side because because, anyway. >> no losers.
>> how disgustingly positive [laughter] i have to tell you this is the idea to attend the alliance program, one of the most lively and influenced discussions we have had a long time and i would like to think our colleagues at wellpoint helping us to put this program together and to ask you to do be such a good audience and ask you to help me say to our panel one of the best in a long time. [applause] [inaudible conversations] ha
>> the president spoke this morning to make sure'' whoever carried out this cowardly act is held responsible the white house says the president has been receiving frequent briefings here is his statement from earlier today. >> i have been briefed by my team on the situation. we still don't know all the facts but we do know several people have been shot in the sun have been killed. yet another mass shooting and today it happened on a military installation in our nation's capital. a shooting that targeted our military and civilian personnel. these are men and women who we're going to work, doing their job, protecting all of us. they're patriots. they know the dangers of serving abroad but today
they face the unimaginable violence they would not have expected here at home. we offer our gratitude to the navy, local law enforcement, a federal authorities, and the doctors that respond with skill and bravery i want the investigation to be seamless so federal and local authorities are working together and as this investigation moves forward we will do everything in our power to make sure whoever carried out this cowardly act is held responsible. then we send our thoughts and prayers to all at the navy are to has been touched by this tragedy. we thank them for their service and stands with the families of those who have been harmed. they will need our love and support and as we learn more about those courageous americans that died today in their patriotism we will honor their service to the nation that they helped to
make great and obviously we will be investigating thoroughly what happened as we do with so many of these shootings sadly that have happened and do everything we can to try to prevent them. >> because of the shooting of the senate recessed in the sergeant of arms released this statement that in white to the of certainties of the shooting at the navy are this morning in particularly the possibility of suspects at large we have decided to walk down the senate complex. you may move about the building but you may not leave for nor can anyone into the building this is in effect until we've the situation safe in the neighboring community. that statement from the sergeant of arms released earlier. also on capitol hill today the senate chaplain reverend black who is a we are admiral in the navy opened the u.s. senate today with a
prayer for the victims and their families. >> god of all mercies, you continue to provide us with refuge and strength. we don't boast about tomorrow, for no one really knows what a day may bring. lord, we ask you to convert the victims and families of the deadly navy yard shooting. providing them with a piece that the world can give or take away. use our senators today to hasten the time when hardy will dominate discord and hope will triumph over
despair. we also ask your richest blessings upon our u.s. capitol police, who daily risk their lives for freedom. plus also all the members of our armed services. thank you for giving us these guardians of freedom and servants of liberty. we pray in your great name amen. >> here are some tweets about this morning's shooting. senator gauguin thought temperatures with the navy yard shooting victims and their loved ones and thanks to law enforcement and first responders on the scene. praying for the victims involved in the navy yard
shooting today please keep them and the brave first responders and your thoughts and prayers. and truly tragic news coming of washington my prayers are with all the victims and co-workers at the navy yard. >> we were intervenors on this side of the fcc in this case. we were supporting their determination there was a concern with the bottle that companies controlling who are the winners and losers on the internet. they had the legal authority under the first amendment and in the communications act to protect consumers and competition by prohibiting the gate keepers by favoring certain to content applications over others somehow are is with the neutrality rules on policy
i want to say thank you for your time. the council on racial and ethnic diversity in education pipeline is sponsoring this panel. our chair could not be here with us so i'm going to be moderating. i also want to take a minute to acknowledge robin rowan who just stepped out of the room. she is the executive director of the council and has been for a number of years and as those of you who are worked on organizations know the work is done and the committees are all run by the executive directors and the staff and she has just been such a contributor to our work over the years that i have known her. i just wanted to thank her. she has come back in the room so
thank robin for her diligence and dedication because she has really had a path over the years in the diversity in education pipeline so thank you robin. i wanted to just lay the groundwork a little bit for today's panel and then go ahead and introduce our speakers. they are each going to speak for a few minutes and then we will take questions among ourselves and questions from the audience. the idea for today's panel is a discussion of fisher v. texas not from the litigation perspective and not expert litigation strategies but to ask a more fundamental question which is given fishers hold and given the decisions that have been issued by the supreme court and various courts of appeals how should educational institutions respond and react in a way that fosters diversity in the education pipeline? so with that said let me
introduce today's panel. immediately to my right is our first speaker. i tell everyone to turn things often i forget myself. immediately to my right is the first speaker professor garcia. professor garcia is a professor of law at the university of nevada las vegas. prior to joining the unlv faculty in 2011 director of the law program at california western school of law in san diego where he taught for eight years that he is also held academic appointments at the university of california school of law the university of wisconsin and the university of california san diego. before beginning his teaching he worked as an attorney for public and private sector labor unions and employees in the los angeles area. and perhaps as well the incoming president of the society of american law teachers. he has been a participant in the fischer litigation through
various amici filings. karla pressed who is to his right is the associate dean for academic affairs at penn state law school professor pratt teaches and writes in the area of race and the law. prior to joining it penn state law faculty she served as the new jersey deputy attorney general and engaged in private practice as a commercial litigator with biddle and reef in philadelphia. she teaches her his taught constitutional law of federal indian law race and in american law and professional responsibility. and was recently confirmed as the associate justice of the standing law to the supreme court. immediately tore her right is norma cantu. the professor has joined the appointment in the education and the law schools at the university of texas. i think that gives her particular insight into fischer,
obviously coming from utt t. for eight years he served as the assistant secretary for education -- i'm sorry assistant secretary of education for the civil rights division of the u.s. department of education. the clinton administration where she oversaw a staff of about 800 80 and was in charge of implementing government policy for civil rights in the education arena. prior to her service as the nation's chief education and civil rights enforcer or fester cantu worked for 14 years as the regional council on education director at maldef the mexican-american education and legal defense fund and in that capacity she participated in countless cases and litigation strategy on any number of civil rights matters particularly those that involve educational funding, english-language
learners and student policies as well as racially hostile environments. so with that said i will introduce professor garcia. >> thank you and thank you everyone for being here. thanks to my co-panelists who i am sure i will learn a lot from particularly from what's going on in the state of texas. i am actually from texas originally so it's interesting to be on this panel and also i would like to emphasize that we are not talking about doctrinal strategies or litigation strategies here but rather appropriate to this panel how we talk about the dialogue that fisher versus texas in the debate around affirmative action has created and how we might try to shape that dialogue. i am here on behalf of salt as dean acosta said.
we are now almost 40 years old. we are the largest independent organization of law teachers in the country and as dean acosta said we have been involved in race conscious remedies and affirmative action issues for that time. we were amicus counsel in the bocci case in 1978 and in the gruder case in 2003 and in fisher and now in a case that i will be talking talking about a little bit in a moment, a case next term. so what i am here to talk about then is a little bit about where we are post-fisher, what fisher versus texas is and what it means, what i think the next frontiers might ian this particular debate.
then a little bit about the roles that i think solves the aba and the rest of the civil rights community might play and then just to close briefly with some ideas about where the dialogue and the debate about affirmative action and of course how that might impact the educational pipeline which is the reason why we are here. we are concerned about the race and ethnic diversity in the educational pipeline. so what is fisher versus the university of texas? i not going to go into great detail about the case itself but suffice it to say it was the most recent statement by the u.s. supreme court on the issue of affirmative action in higher education and it dealt with -- or it concerned the application of abigail fisher to the state
of texas which at the time in 2008 as fisher -- ms. fisher fisher was applying for admission to the university. texas was using a hybrid admissions program. a 10% program that took from the top 10% of school districts in texas and also used holistic review of the kind that the supreme court approved in the university of michigan versus gruder. and so when the supreme court took this case as you can imagine there was a lot of concern about this dirtiness and the longevity of gruder and to the relief of many the gruder president was unchanged, at least not overruled and we will talk a little bit about on this panel again what exactly the
fisher case means for a affirmative action and higher education going forward but the doctrinal outcome of the case was that the diversity in higher education racial and ethnic diversity in higher education remains a compelling interest but as the supreme court said the fifth circuit had given too much deference to how the university of texas was going to a plied that standards so they sent the case back to the lower courts to try to make sure that the remedy that the university of texas had chosen was tailored for the particular interest, the compelling interest in racial diversity and higher education.
so, again in terms of where the doctrine stands it seems to me and again i would like to hear from my co-panelists and from the rest of the audience, in terms of the doctrine it seems like we are still at least where we were before. there is still no major change in terms of the use of affirmative action and higher education. so that really i guess leads to the question of well what is the public debate or what is the public reception of this case and what is the importance of the public perception in terms of the pipeline into higher education? and you know i think it's important to remember that each time there is an affirmative action case before the court,
there is a dialogue and a counter dialog about what that actually means. i think it's important to remember that after gruder, those who opposed affirmative action never really acknowledged that it was really a reaffirmation of the policy so again i think for the last nine years or so they had it seems like made it seem like gruder was on shaky foundation. we kept hearing in the media that affirmative action is time limited and seemed like good policy for another 25 years and that would have to set set and then of course as i said you had a lot of people arguing that the sun was setting. and i think again it's important to, even given the difficulties that we might face in terms of the next case in fisher won it
does return to the court that the supreme court had the possibility of overruling gruder and saying the university was not a compelling interest in higher education and it did not so the decision again seems to reaffirm gruder for now. now again i think in terms of information and not just to institutions of higher education but also students who are interested in applying to universities or law schools. it's very important to get the message out that you know there are no major changes in the way that universities should be addressing what they have been doing since -- in other words applying gruder as it existed before.
the civil rights community i think also has a role to play in this regard. i know that there was a lot of concern about gruder as well as the shelby counties versus holders the voting rights act case so again the dialogue on that will also -- is also a role that the civil rights community plays in terms of the dialogue. for our own part society of american law teachers, we have even before a fisher came out we have been holding a dh j.d. pipeline programs to try and make sure that applicants to law schools and institutions sort of knew the lay of the land in terms of what was possible in terms of diversity and affirmative action. salt is also very active in accreditation issues before the aba and its issues on legal education committee and is also
very cognizant of changes in accreditation standards that might impact the diversity of the law school student body. as i said we have been involved in amicus briefs with the help of pro bono law firms like schulte roth and stable. later this year salts will also be introducing a consumer guide to law schools so again trying to get information to students who are choosing law schools and also hopefully getting information about what currently exists in terms of the possibility for diversity and affirmative action in law schools. so, i will close justified trying to reaffirm a few things. and again salt will try to press after fisher and obviously into
the next supreme court term. we have salt continue to want to stress educational institutions have a compelling interest and need in racial and ethnic diversity and lead through our affirmative action and equal opportunity in education committee continued to try to provide resources to institutions, mostly law schools but also as i said going into pre-law programs, until we get more guidance in the supreme court that gruder remains the law of the land. and then as i said at the beginning we have another case coming up on affirmative action called shoot the versus cantrell and salt will be filing an amicus brief in that case as well but that case is not as i said not a referendum on affirmative action. it's more of a referendum on the michigan clinical process and political system and it hearkens
back to some old cases about the political structure of a state and how it might negatively impact minorities in terms of getting their legislation through. so that is the next case that will be heard in the supreme court and again i'm sure it's going to be a little bit different than fisher but we also you know want to make sure that people know that it's not necessarily going to be another referendum on affirmative action. and then finally again our role at salt is to continue to try to advocate for diversity, justice and academic excellence and again i think we do that through continuing to remind people about the importance of diversity both in the law schools and also in the pipeline into law schools and
universities like the university of texas. so, thank you. >> thank you professor. professor la pratt. >> thank you for inviting me to speak today and i think professor garcia is the optimist on the panel and i'm a bit of a pessimist on the panel. i agree with him wholeheartedly that fisher does not overrule gruder but i do have serious concerns as an academic administrator about fisher's view of gruder as precedent. fisher make sick clear that we can still consider race as long as our consideration of race in admissions process meets strict scrutiny and fisher gives us a lot of guidance with respect to what that means. fisher for the first time articulate that diversity for diversity's own sake is not a compelling governmental interest and that would be unconstitutional racial balancing so the only
constitutionally permissible goal is to achieve the educational benefits that are derived from a diverse student body which means as an administrator i have to be able to articulate to the chord with those educational benefits are that derive from having a diverse student body which means i have to also work with my faculty to discern what benefits are derived from racial diversity that couldn't be derived from nonracial diversity so for example if we considered a race-neutral socioeconomic status geography gender and other factors outside of race, perhaps we could achieve those educational benefits that flow from diversity without considering race. and so we have to give consideration as an educational institution i think to what exactly is it that racial diversity adds to our
educational process. fisher in my opinion did deviate from gruder. i think most scholars understood gruder to permit deference on both the first in the second prong of the scrutiny test both the compelling governmental prong and now the tailoring prong. fisher makes it clear that while it's appropriate to give some deference on the first prong of the test that it's not appropriate to give educational institutions on the tailoring prong. so fisher says some but not complete deference is allowed regarding a school's educational judgment that diversity is essential to its mission so because the court is only going to give some deference there we need to be ready to justify why we are using race and how the use of the consideration of race in our admissions process is central to our mission and because there's not going to be any different with respect to
the narrow tailoring prong the court says there must be careful judicial inquiry into whether a university could achieve sufficient diversity without using race. a schools experience and expertise in adopting or rejecting certain admissions processes is relevant evidence. that tells me as an administrative that i need to give serious thought to whether we need to try and -- a race-neutral alternatives before we can justified the consideration of race in admissions. i would argue that because in central pennsylvania we have a very difficult time getting a critical mass of any racial minority group and probably don't need to try a race-neutral under a race conscious plan. in texas were arguably you can achieve some measure of racial diversity in a race-neutral fashion there is i think going to be an inquiry by the courts
in terms of what is the justification for considering race given that you can achieve your goal of racial diversity through the texas 10% plan or some other race-neutral means. i think it's interesting to to note too that the schools according to fisher bear the burden of proof. we bear the burden of proving what educational benefits flow from diversity and that those benefits cannot be achieved at a satisfactory level without the consideration of race. so, in order for compliance i think that educational administrators are going to have to show that they gave serious good faith consideration of workable race-neutral alternatives and that they decided that race-neutral alternatives were insufficient for x reason and the court made it clear that consideration of race-neutral alternatives alone was insufficient. you have to show that no
workable race-neutral alternative would produce the educational benefits of diversity so again connecting it to that first prong of the scrutiny test. the court made it clear and fisher the colorblindness is the preferred approach. if a nonracial approach could promote the substantial interest in diversity and it tolerable administrative expense than the university may not consider race so i'd do think we need to ascertain also even if we could utilize race-neutral measures what is the cost of doing so. i don't think the court is going to hold us to the standard of having to conduct many empirical tests or studies on each aspect of our admissions process in order to justify the use of race but i do think that the courts moving forward may require universities to demonstrate that the nonracial approach to university of michigan was not
reducing the sufficient levels of diversity or that it would not produce sufficient levels of diversity and why those levels of diversity are essential to the educational mission of the academic institution. i think the bar is a little bit higher now than it was in gruder in terms of the homework we have to do behind the scenes as educational administrators. but i think again it's clear that the use of race is permissible but we may need to change a few practices. so we might need to define our educationeducation al goals that we seek through diversity so i'm going to try to get my faculty together to define what those goals are. i suspect that those goals may vary depending on whether teaching law or undergraduate students engineering. and so it's going to be a very fact intensive and grade that courts are going to make going forward.
we are going to have to define critical massachusetts i think based on institution specific data. critical mass for one institution may be very differently defined then critical mass at another institution. i think we saw a little bit of hinting at this in the oral arguments in fisher where the court was asking well, does the critical mass differ depending on the location of the schools so in texas for example critical mass you would expect there to be some significant proportion of latino students because of the population in texas whereas in pennsylvania maybe not because we don't have as large as the latino population but maybe so. so it's very unclear exactly what critical mass is and how schools are defining that term and interpreting that term and applying it and i think we are going to have to give some
thought to how we do that going forward. i think we are going to have to give some thought to race-neutral alternatives and why those alternatialternati ves do not yield the sufficient levels of racial diversity that we need and why we need racial diversity in addition to other forms of diversity. i think we are going to have to track and record the effectiveness of all race conscious strategies that we use and i think we are going to have to have a policy to reevaluate the need for the consideration of race in our admissions processes and i would probably suggest we need to do that every few years so that we can continue to justify our consideration of race and admissions processes. i also think that not only to academic institutions have some homework to do but the legal profession itself has some homework to do as well. there could probably be some changed practices in the legal profession. we could adopt diversity is a moral and ethical imperative in our ethics rules which we do not.
we could also strengthen the aba accreditation rules with respect to law schools here the aba requires concrete action toward diversity but really doesn't define that in concrete terms. concrete action could include requiring rigorous academic support programs at all law schools that are aba approved and programs that help increase the number of students who are entering the pipeline to the legal profession. currently those standards are not the aba standards governing aba approved law schools. so thank you for your time. >> thank you. >> so much has already been discussed. i've been drawing lines through my notes of things not to cover. i am from the great state of texas, from deep south texas and affect my community college is called texas community college and it was appropriately named. when i applied to law school i was a teenager.
i finished high school at 16 and i applied to law school when i was 19 and it was at a time where law schools around the country were practicing affirmative action following what was called the harvard plan. i applied to michigan harvard and amputee and a couple of other places, got accepted when i arrived at harvard i asked why me? it's so competitive and is so difficult to get into a place like harvard law school, why was i selected? they said we can't tell you. i said is there a rule that you can't tell me? they said no, we honestly don't know because there were so many parts of your application that we didn't have at harvard. they had few women. there were no tenured women on the faculty. this was back in 1979 and harvard still didn't have a tenured woman on its faculty. there were a few from lower southwest so geographic underrepresentation could've
been the reason they admitted me to harvard. i was the first to apply for my hispanic serving college which is now called the university of texas pan am but back then it was pan american university. i ran into classmates who thought because i went to pan am but i was a pilot so i wore navy blue and told everyone yeah i'm a pilot. it could have been first-time college goer although that's partly true. my mom and i were in college together at the same time. she was the first time college goer and my family so could've been because i was attending college with my mother. there were so many reasons that i stood out. i am an amazing speller. i was regional champion four times. maybe it was my spelling. i think my spelling for the fact that it was the first time i visited a four year college because it was my spelling that took me to visit ut austin in 1978. any of those differences could have been what made my
application quote sparkle because that is what the admissions officer said they were looking for. they were looking for sparkle. so when i'm hearing these three brilliant law professionals, these experts say that it is a challenge to make the right admissions decisions i agree with them 100%. it is difficult when you are talking about tier 1 universities and those are research universities that have high levels of competitiveness for a very scarce number of admissions slots. the admissions officer is one of the hardest jobs and i am very appreciative of people who make those very tough calls. and because it's competitive it is more an art than a science. thank god for that because if it were scientific and you could measure it you would have quotas. he would have what we don't want. you would have strict inflexible
numerical standards and if you didn't meet that hard finite numerical standard, then you would not be given an opportunity to enter a tier 1 top-notch research campus. with these lawsuits are about are the courts agreeing that we should not have quotas. it shouldn't be easy. you shouldn't be able to pull a switch or have your ipad calculate it for you and tell you who gets in and who doesn't. it should be tied to the mission. that is why the word mission is not admission. know what the mission is of your campus and you will start to understand what the questions are that need to be asked about who are the students that would best fit with the mission of that campus. in a top tier research university the mission varies depending on that campus. at u. t. austin are mission is set in the constitution of the state.
we are to provide the university of the first class to serve the entire state of texas. not just the county of travis which is where austin texas is. not just a few high schools that have for many many decades said students directly to ut and the school counselors thought they had entitlement to continue to be overrepresented at ut austin and not just for whites. even though there was a period in our in texas where the word color was part of the official name of the college or in one instance we have a college for white women so gender and color were part of the official state name of the college. so given that history and that context that is part due in admissions because we are not looking for an easy wrong answer and the courts agree that a lot of thought has to go into it, the i will give the last two
minutes of my presentation to what narrowly tailoring means and put that in context for texas. narrowly tailoring is not any term. the supreme court and the fisher case said texas should not be given any shortcuts and given the ability to just grade themselves and give themselves an a in terms of how narrowly tailored they are. in 1978 when the bocci case was coming down narrowly tailored meant first and first of all no quotas. secondly it meant that admissions would be aligned to the mission of the campus so yes there has to be a broad robust conversation about why our admissions process, why it exists? what are we trying to do? what is our purpose? what is their objective? thirdly absolutely what you heard from the prior panelists the admissions process should be race-neutral if race-neutral processes meet the purpose. if you're trying to serve the whole state of texas he can't
come up with a race-neutral way that eliminates most of the students in the state of texas. it's not meeting the objectives. thirdly, there has to be a limit in time so you don't just choose one admissions process and believe it's going to last 100 years. you have got to be realistic and continue to reevaluate periodically. when i was in charge of the office of civil rights we said five years. if it lasted more than five years under the same system it's time to go back and take a look at it again. periodic evaluation to look at the effectiveness of the criteria you have selected, the manner in which you have gone forward and coming up with your criteria for admission. your decisions about admission. they need to be done before the decision is made. when i was at d.c. i would hear people after-the-fact say i made that decision, i can't remember,
it must have been because. at the time the decision there needs to be a clear understanding of what kind of students you are looking for and what criteria and what means you were going to use to identify those students. and your justification for using race does need to be really clear. it's not an either/or as i will either use race-neutral or i will consider race as a fact are. there is a period of time in florida recently where they were both giving preferences in race-neutral needs and giving preferences as race is one of many factors so they aren't mutually exclusive. you can keep data on both of them and finding out which one works better for you or whether it's a combination of both and that is why texas is a hybrid state. and using both geography which is what the top 10% plan is, we are picking the top 10% of high school graduates across the whole state and there've -- part of the state state has high school so they are students who
geographically are automatically admitted because their grades show that they were -- and at the same time for the fourth of the class we were using race as one factor among many factors so it was a hybrid scheme. the last two pieces and i will close off so we can hear some questions and answers, it's absolutely the admission processes need to be changed. it's not a permanent admissions decision as far as what ross is you are going to use. that periodic evaluation is going to inform how to improve the admissions. so if race-neutral doesn't work and by the way when i was in the office of civil rights we did a thorough search and the department of justice did help us with this. there is no legal obligation for admissions committees to test race-neutral when they know they're not going to be effective to meet the mission of that campus, and its faculty and students.
so you cannot require to spend the taxpayer -- taxpayer money on a process that does not work. if it's been tested by another top-tier research university and it does not work, there is no requirement that you pursue race-neutral if you know it won't work. let me tell you why race-neutral works in texas. in texas we have racially segregated, racially isolated racially identified high schools. we shouldn't still have them. it is this year. it's not 1954 anymore but we still have them and because we still have them our admissions process that is race-neutral based on being the top 10% of your high school's, it provides a big role of students that are racially diverse better geographically diverse and economically diverse. they are diverse in terms of
being first college goers. they are diverse and gender. they are diverse in so many different ways. so in texas if we use the top 10% plan then there will be african-americans not fully represented by the way. even the top 10% plan doesn't give us the 12% of african-americans that exist in the state and it won't because fewer african-americans apply. there is still something broken in our system wherein the top 10% years in the year 20121 out of the two anglos who are in the top 10% are in austin. one out of every four -- one out of every four asian-americans apply but only one out of every 17 top 10% hispanics and one out of every 17 african-american high school students applied. even the top 10% plan has something that needs to be evaluated, study considered and
incorporated into our admissions process for undergraduates. so i will close by telling you that race a store race as a factor among many types of admissions will end because part of being narrowly taher does -- narrowly tailored is when you arrive at the goal of your college or university you hit the goal and you throw a celebration party and you stop using race consideration. at some campuses around the country are doing that. they have recruited so well. they have made all races welcome and they are throwing themselves that kind of celebration but for those campuses that have fallen behind and are not meeting their emission, this discussion will go on and the difficult work of making sure that campuses meet their mission will continue. >> thank you.
let me i guess throw out the first question and i wanted to just read a paragraph from the fisher decision that i thought was very relevant in giving an interesting background to the fisher case and then ask the question based on that. the paragraph in the fisher decision points out that in the post-hopwood system when race was not considered but admissions were made based on the top 10% plan where the top 10% students from any high school was automatically admitted to view t. -- ut austin 4.5% african-american and 16.9% hispanic. they then go on to point out that in the subsequent plan where race was explicitly consider diversity in the
incoming class actually declined and it declined by .4% for african-americans and by 2.9% for hispanics. you go into secretary cantu's point in texas this top 10% seem to be capturing diversity. now whether that is true or not i don't know. i'm just reading from the court's decision and i assume that's based on the facts in the record. so one thought that i had is that to what extent is this something that is unique or if not to texas and at least unique to states where this type of diversity can be achieved, which i guess wrings me to the question that i had because secretary cantu was in charge of the office of civil rights at the department of education in
the clinton administration. as you were speaking the way you defined narrow tailoring that it has to be consistent with the mission of the school, is that it has to be reviewable and in her opinion every five years and that there has to be some theoretical end date when race-neutral alternatives can be used to achieve diversity. it strikes me as what fisher said and it strikes me as part of professor pratt's -- i don't know if concern is the right words i don't want to characterize but some of her comments about what fisher is doing to change the law and that require faculties to engage in defining the mission and the robust discussion where they are going to have to justify is in secretary cantu's comment --
so i guess the question is does fisher really change the law or is fisher restating the law as we have come to understand it? >> fisher is not changing the law as universities have already been practicing it. ut has been practicing it this way and narrowly tailoring -- if you are wearing the suit you don't want to have the color too big in the pants too tight. tailoring is not only about race only where you need it. only where you need and not beyond that so when i was in charge of enforcing civil rights with those 850 people in the office, we were very fact specific. what we wanted to hear is what is the objective you are trying and don't tell me it's a percentage or a number because if you are trying to do a "that then you have trouble with us and the federal government.
we don't allow quotas to happen but if your objective is critical mass for example which the supreme court has less, been described for us with that critical mass looks like in your campus. at ut austin there a lot of study and a lot of research conducted and the responses we heard back from faculty and students as a concern they didn't want one african-american student isolated in a big classroom of 150 people with everyone turning to that one student in telling that student okay you represent your race so when you talk you were on the spot 100% of the time. so critical mass was not a number but the concept was enough students so that people didn't stereotype a racial group , didn't put people on the spot because they were the only one of their racial group able to be part of that conversation so we have --
that there's only going to be some measured difference advocate palling no interest prong. and i know i spend most of my academic career and we have taken it as a given that diversity is a necessary component of delivering a top grade education to our students, to all of students. but i am not so sure we can take that as a given anymore. i think we have to link the diversity we seek to commission a pennsylvania state university and we are going to have to do that at both the undergraduate level and allow school level. they think it's a little bit easier in moscow because that's professor cantu mentioned, law school is very robust discussion about social issues that require you to have various viewpoint to
the classroom to discuss them in a robust and educationally sound manner. but when you are in the engineering department at the undergraduate level and undergraduate admissions are down across the board rather than college by college, i think you could face an inquiry by the court with respect to wow, what you conduct business across the board search for diversity and all of those kids are going to the sociology and education departments are not getting diversity in the engineering department and you claim you want diverse enough your classrooms. so you are not practicing what you preach, right? so we have to get back to how we conduct admissions so we are guilty of the diversity and putting it to work in a manner that justifies the consideration
of race and admissions. >> on that briefly, i fully agree with and understand the pressure is the decision puts on administrators. i didn't want to make it seem like i didn't. as i think dean pratt has said, it's going to be a good challenge now going forward and i think she's actually come up with some great ideas about what administrators could do to justify their plans. the other saying that a lot of people were expecting from fischer was this question of whether critical mass would be -- as a concept would be done away with. although that didn't happen, it doesn't mean that, as has been discussed here today that there is an -- that there better ways we can define and operationalize what that is. so again, i am fully on board with all of those suggestions.
but again, not map to mistake note, the pain of relief i guess that it was worse than i think we should send that message loud and clear to administrators and to students. >> one more comment. >> there's a tone in the supreme court decision and fisher where the taliban is one of chastising judges in general, not the universities. the tone is that the courts themselves must accept responsibility of being very conscientious every viewing fact, dealing with the use of race. this was any unusual posture for a case because the way it got to the supreme court was that the district court level there a summary judgment motions made by the plaintiff and by the defendants at the university of texas. so we didn't have a full trial
and testimony and lots of cross examination that we see on television. what happened in this case was very well-written briefs which lots of and research were submitted to the district court. the plaintiffs are so confident that they had a winner of a case, the shoe is going to be automatically admitted by order of the judge at the plaintiff that they would win on some judgment. the university thought they'd follow so carefully the supreme court decision in michigan that they thought they would win without having a trial. some in the case came to the supreme court, it was so without the benefit of a bench trial and the admonishment to the judges let's be sure you understand how your fax deities are factually factually intensive matters here. and there wasn't anything disparaging to the universities universities have not collect it. in fact, there was any hint of
optimism in the supreme court ruling. it's the court of appeals itself could go back through those records that were attached to those motions and not need a bench trial. so we are in a place of the decision has just happened so recently that we don't even know if it's going to get sent back to just the court of appeals. that's why they call it the lower courts. that's why the information we seek is dirty and the record. now i'm optimistic that the information argues for the record because we've invested a lot of time studying, collect and promote reevaluating current during that aligning of our action to our mission that the court has been expecting since 1978. so i will leave you -- i will leave that question up to each university. it's a rich university to know if they do not to satisfy what i don't think is a new standard.
it's an old standard that has a new flashlight that's been applied to it so now you see it more clearly, but it was always there. it was always there. >> questions? >> let me follow up. i am puzzled. if this is a bench trial -- i'm sorry, if this was done on some judgment, just to record explain why diversity decreased when the race conscious, as opposed to the allegedly race conscious as opposed allegedly race control standards were used because one of the use of race conscious standards would increase diversity. >> on if you think of diversity, racial diversity in a very inflexible -- on that spectrum, using affirmative action or none of the spectrum you could just be announcing a sign to submit your application is your
affirmatively encourages ignorance to apply. if you go to one area where inflexible about the use of race, then yes, every time you add another more race conscious measure, numbers will go up. that is not true in the et system circumstances because we define diversity is more than just race. the geography, gender, disability, leadership, work experiences. everything in a holistic review to the undergraduate is going to get combed through. and so, what the numbers of african-americans go up, maybe not because maybe the numbers of underrepresented people who were the first person in their family went up. maybe not. maybe socioeconomic status is more diverse. there's so many different factors. to me the fact is sometimes the racial numbers go up could be an
indicator that you are paid not so access about just that one factor, which you are in fact trying to be the entire state and that campus. now if it keeps going on, there will be a lawsuit. and i say that because i've talked to parents and students who are concerned about trends. if it keeps going down, as it becomes less diverse, remember to keep reevaluating if your tech geeks don't work, changed them. >> question. >> afternoon. derek alford. i wrote an article years ago on proving discrimination and a minority business context. the issue is the racial alternatives -- race news show
alternative is alive and well. i think you're right it's been around for quite some time. it also proved to be good with equal opportunity for minority businesses. my question is how do we look at research alternatives and what they spoke about in terms of residential segregation for the fact go legislation. what types of alternative ways or proxies could one look at our school where? and also not face a question that is just another ruse for race. look in our racial segregated developments. >> thank you. >> well, i think it raises the question that this is the top 10% plan cannot exist without segregation. it cannot work to achieve
diversity. so that was justice ginsburg has been her point in defense for some time. so the question really goes back to talking really only about the state of texas. you know, there's all sorts of other state institutions out there at law schools included that can't use a program like this. so law schools as you may know have experimented with socioeconomic factors, zip codes as non-racial alternatives and that has not produced the benefits are the results that they had before. when you start talking about what are the nonracial workable alternatives, you only have a few alternatives to really look at and none of them have been
particularly successful. and so the question is, again, for dean pratt, what are the alternatives that are still out there? again for all of us, what are the alternatives that might produce a critical mass that were hoping for. >> i don't think the court intimates that proxies for race rok, even if you intended it to be a proxy for race. it's pretty clear that 10% plan is intended to be just that. and so, i am not worried that schools use proxies for race in the admissions process. i think that would be within the constitutional parameters of fisher. so i think you'd be on solid ground to do that. i agree with professor garcia. i don't dink you are going to get the critical mass that you
are trying to achieve through race nature measures. i think very few jurisdictions would be able to do that. socioeconomic status is suggested. sociologists tend to consider race as a component of socioeconomic status. when we talk about scs, it's hard to disaggregate race in that equation. you could look at first-generation college, first-generation lawsuit and. those students are disproportionately minority, but there are a lot of white kids in that category as well. you could also look at events who are are coming from household where english is not the primary language or more than english is spoken in the home as a race neutral measure.
so there are some out there. i'm just not confident that you are going to achieve the masher of diversity that is going to be useful in the classroom that has professor cantu mentioned, you don't have the one stood under the one racial minority group city mayor in the classroom when you're setting armand see how, you're the one asian student and everyone is looking to comment on the case or you study dred scott in the african american is sitting there dreading the opinions because he or she is going to be caught on and has to speak for their race. we don't want anyone to have that experience in their educational experience. i think researcher measures are out there that could be tried, not only optimistic that they would achieve the same measure diversity is race conscious measures. >> and to be clear, all the
court expects is to try those that reasonably offers some opportunity to be effective. so if your brother-in-law is taking a shower and comes up with this wild idea that the weight of the student is important and that's going to get you more racial diversity and more gender diversity by wayne everybody who applies, you don't have to try that, okay? so what we are talking about is an expectation only afflicted that race mutual mechanisms that show reasonable promise that be in effect due to create a more diverse student body. >> and so, it's important for administrators to have a record, then i'm out at the rate that was considered and dismissed because that would get us anywhere. >> i use the weight because in the 60s, they would hire
police officers based on their height because they believe the tall persons were more efficient, effect as police officers and they found out that excludes women and latinos. so they stopped making a decision based on that factor. >> other questions? >> let me ask one of me and sharon. as i was reading justice ginsburg decision and she had, she discussed justice souter's decision as well for their dissent. one of the point that both she and justice souter named i guess was the disadvantage of oxidation and justice ginsburg words for i remain convinced that candidly disclosed in the consideration of race is preferable to concealing it and
maybe that was a lot of that to your question, where these are proxies, to what extent our schools entirely safe, even if they say look, we know the top 10% is a complete proxy for race and we are just using it for that purpose and that purpose alone. our educational institutions, given the defense language face using proxies that are intended for use of race and conceal it. >> i don't believe that a university could find a safe harbor and feel themselves that they are completely invulnerable, that the use of a hundred% proxy for race. the course would look behind that decision.
but there are ways of classifying folks that are course ever proved. geography is flexible enough and allows for this and so you could go to another school district, moved to a close down and therefore have control of whether you fit into that category or not. so geography is one that the courts would say because just like i can't decide that's where i'm asian, but i can decide tomorrow going to go to this lovely city of san francisco. so geography is one of those instant his work won't turn into a racial quota and therefore won't result in a legal challenge. >> i would agree with that. i don't see the 10% plan -- [inaudible] because one of the reasons
politically was able to pass is because a lot of representatives from the rural counties across taxpayers voted for it because they recognized that their students from the small high schools that often would not be given the opportunity to go to the flagship school and state were going to have that opportunity. the geographic diversity that it shows is also a benefit and geographic diversity brings with it the background as being from a town of 100 people as opposed to being from the urban environment, which i've something to the classroom in and of itself. so i think you have to strive pretty hard to find something that's a 100% proxy for race that's going to get you in trouble. >> i'm pretty sure that these five members of the court, maybe a couple more are okay with these proxies. there is some members of the court that are obviously very, very against any kind of race
conscious remedies. justice thomas' concurrence. but in any case, as long as your looking for a five members the court, you are okay with most of these proxies. >> well, absent any additional questions from the audience, i will then close with one final question, which is says universities go forward in a post-fish are bound, are there any other piece of advice you would have for nation offices, university at venice readers, anything else that they should keep in mind and designing a process that fosters diversity in the education pipeline? >> i would end by saying that a policy decision is what we're talking about here. it's more policy than law. the admissions committees are
having to do the political work of engaging faculty and engaging a lot of stakeholders. their region, education leaders, the k-12 pipeline, the parents, students, business leaders, regulators, white house, civil society in general, they are all stakeholders in what city commissions due. so it is a political process -- not a partisan process. if a political process of working out a solution that fits the need of that campus. ultimately, it's about the university or the college being effective. and when admissions works really well, so does campus. >> my piece of advice would be for admissions offices to work very close with the faculty of the academic institution to understand the mission of the academic institution and make
sure the admissions processes are aligned in a way that supports that mission and fixed it or that mission because i think more and more admissions processes will have to be tied to that nation. some law schools don't have a mission, so law schools really need to think about formulating a mission as a faculty and think about how diversity released to the russian. >> i would agree with everything dean pratt has said and i will have to actually talk to you later about some of these ideas and putting them out as advice to law school is. a lot of this has been focused on law schools and some of us who had been in these institutions know we probably spend less time than we should about what we are trying to achieve with it to sharon's policies like these and what kind of critical mass we are trying to get in the classroom. i think at least in terms of our own backyards, we certainly should have her conversations,
not fewer about what we are trying to achieve with our admissions policies. for institutions, undergraduate institutions, it's obviously much more difficult and wide-ranging discussion, so i understand the complexity of that. but really, i think it highly they need for more outrage. you know, in spite of all of that is going on doctrinally, getting the message out, you know, the welcome mat out in terms of these institutions to people of different backgrounds. so again, that is one of the things we cannot do. >> thank you. i want to thank professor garcia, dean pratt and professor cantu and especially rob burwell he said that the room, who's busy managing multiple
capacities, for all of her efforts. thank you to the audience for being with us today. thank you. [applause] [inaudible conversations] >> this morning's shooting at the washington navy yard, the senate went into recess today connect that no legislative business. before the recess, senate majority leader, harry reid and mitch mcconnell both spoke on the floor about the shooting. >> senator johnson is here on the senate floor. republicans later here. when i was an exercise this morning, i heard there was an incident. the navy air traffic was tied up in didn't know what it was. and of course coming into the
capital, i knew something was up because i thought armed police officers with their weapons, automatic weapons that they don't usually carry, constitution avenue in other places. so mr. president, i was sad to hear about the events here in washington. this is a prayer by the chaplain this morning. people have been injured. i don't know all the details. we know at least there is one bad and i don't know all the details of this tragedy. how the perpetrator or perpetrators may be. several people were killed and several more injured, including
a police officer and a military police officer. my sympathies of course with those families who have died. but those that have been injured. that wishes go out to all those who work at the navy or which is just a short distance to here in the surrounding neighborhood. as usual, and he said segments you have to recognize the first responders rushed to the scene, their professionalism. i don't know all about it, but i'm certain of is they are. my thanks to the brave law enforcement officials who are on the scene and who put their lives on the line and today we realize that they really do put their lives on the line to keep this capitol complex faith and the city safe. i urge everyone in the area to
follow law enforcement for safety and simply avoid the dvr today. the shooters to my knowledge have not been apprehended. i have been told they have their fixation on where one of them might be, but will continue to follow the situation as it develops. so based upon this, as i indicated, i have spoken with the surge in arms, the republican leader has been advised of everything i've said it is going to suggest. in light of the events at the navy yard, we have decided to recess the senate until tomorrow morning. those scheduled for this evening will be rescheduled. i'll have an announcement later. so mr. president -- >> if the majority leader was to spend. just a few observations about the events of the day. >> i didn't do that.
>> we are all thinking about today's tragic shootings at the navy yard, about the victims and their families. the men and women in our military courageously put their lives on the line in many dangerous places around the world. it's painful for all of us to think about and have to worry about their safety when they come home, too. many people in the area and across the country will be directly affected by this terrible tragedy that we pray for them all. these kinds of incidents always remind us how fragile life is. they also remind those of us who work in an around the capital how much we also do the men and women who work so hard to keep us safe every day. so i want to take this opportunity to thank secretary gaynor and his team, chief died in the entire capitol police force for all they do day in and day out and who is working through this tragedy.
the first responders, medical personnel, d.c. police. i want you do not want thing. there are think of for your hard work and your sacrifice. everyone is deeply grateful, especially on days like this. >> mr. president, i appreciate this tape it. ultimately, early this morning i had in my ac capitol police officer. i said what is the number on your badge. i do not remember. read thousand 600 something. i looked at mine. mine was 363. so we take for granted the work that these men and women do for us here. it is significant that they do everything they can to protect
those and all the people working this capitol complex. >> the senate reconvene tomorrow at 10:00 a.m. eastern. on the agenda, legislation to promote energy efficiency and to judicial nominations. by the covers from the senate floor here on c-span 2. >> helen taft was a woman at first. helen taft was a woman of conversation. this to me symbolizes all of that. the helen taft and not your old car down. it marked out a later entry into the white house, but a marker first lady some united states but she became the first first
lady to donate her inaugural gown to the smithsonian institution. she is the founding patron and she established the traditions that are slaves who donate their inaugural collections. every first lady after helen have to have an inaugural ball hard in a nod wrote down has donated the smithsonian institution. >> the supreme court begins hearing or arguments next month. next week, solicitor governor verrilli, including those in campaign finance, affirmative action, reproductive health and the president's authority to make recess appointments. this is two hours.
>> afternoon, everyone. imus said good morning, but it's actually afternoon now. many of you spent the morning that the supreme court's, which was a wonderful opportunity. you got to make maged jones, who is a visitor program manager in the curator's office and chat veneer, whose accounts of the chief justice of the united states. this afternoon we have a wonderful panel of experts that are going to talk about the upcoming docket. i've given you a handout with their bios so they can save a little time because i know they want to get right to it and i'm sure you want to get right to listening to it. before he turned over to them, can i please ask you to turn off your cell phones if you have them on. you might notice that some of the names have changed on the bios. attorneys have schedules that are not always in charge of, so we still have an excellent panel here. just as a follow up for a lot of you who are supreme court
aficionados, we have just a set have justice sotomayor coming here in january, so you may want to look for that in our associates catalog. i'm going to turn this over to tom goldstein and he will take it from there and enjoy the session. thank you all for coming. >> thank you, ruth. on behalf of all the panelists, what to think the smithsonian smithsonian associates which is an organization for putting on this program, for those of you who got to go to the court, see the building and meet some of the people there. i am going to do a super brief introduction and then we are going to turn to the substance. when we do, we'll split it essentially into two parts. the first part is getting water. [laughter] now, we are going to look backwards and look forward. we do think the best part of this program might be with the
supreme court is going to be thinking about, rather than that of 30 done. you'd argue that in the past, those of you she said about last turn decisions, but some of those are several mattei stealing with gay rights, affirmative action. we'll talk about those and not take us about an hour and a half until 3:15. at 3:15, we'll start to take questions. if you hold those until then, we will be really grateful. the major questions will have you come to the microphones because we're the great good fortune to have c-span at best today and everybody out there as well. so in terms of brief introductions, my name is tom goldstein. i am a lawyer and i run something called scotusblog, a website about the supreme court. to my right is jess bravin who covers the supreme court it has to do for many years for "the wall street journal." a non-believable reporter. you should buy his book, the
terror court, which is a fantastic discussion and unparalleled in the description of how cases related to detainees in particular have been handled in the war on terror. next to jess is allison zieve. after you should donate to have two you donate to smithsonian associates. the huge amount of public interest work as a great public service to the court in terms of both litigating at the core, providing new course in the huge amount of work outside the supreme court is about, particularly areas that consumer interest in administrative offers. next to allison is don trant died, is there a credible pleasure and good fortune he's able to be with us today. the fools that are general is responsible for principally represent the united states and the supreme court of the united states but has other responsibilities as well and has been an unbelievable public
servant and the department of justice in the white house counsel's office. the only thing that is worth mentioning is that while don is more at the supreme court than anyone, he found that suffers under the greatest constraint. just come allison and i can joke and make things up. [laughter] that the constitution requires that don act responsibly. [laughter] and that is the only thing holding us back. especially on c-span. and so, just recognize his expansiveness is limited because it is very special role. as i said, we will start by looking backwards and we're going to start the same-sex marriage and don is going to talk about that. >> thanks for the gracious introduction. it's great to be back. ruth and the smithsonian are to be look forward to the end.
as tom suggested, was that given the momentous character at the end of term decisions less chance that would be worth starting out our program with a little bit of a backward look at those. i'm going to talk about the two gay parish cases. first hollingsworth. when sir, i'm sure you offered them were the basics. the supreme court held that a decision of the defense of marriage act promotes a statue congress enacted in 1996 was unconstitutional. that provision brought the federal government from recognizing for any federal purpose the validity of persons of the same gender, even if the persons were lawfully married under state law. when significant numbers of states has started recognizing same-sex marriages. the federal law started to impose very serious consequences on lawfully married couples. windsor herself brought the constitutional challenge to the law was unable to be treated as a spouse for federal and from
tax purposes. so she had to pay the inheritance tax of more than $300,000 that she would not have to pay at the federal government had recognized her marriage. lots of other serious consequences follow from the lot across the whole range of potential benefits and privileges. one unusual feature of the cases that the united states was not defending the law and we were arguing it was unconstitutional. that's because in 2011 the president and the attorney general made a judgment that laws discriminate against gay and under the protection clause and the defense of marriage act or vision come to section three that snipers benefit could meet the standard. but stop for a minute talk about what it means to say some good of heightened scrutiny. under the constitutional law, 14th amendment law, improvise
that no person shall be denied the equal protection of the laws, the law street people and equally the time and often for reasons that are legitimate. the law needs a device to decide which kind of discriminations between people and groups are legitimate, like treating optometrists a friend then ophthalmologist and what kinds of differences are presumptively illegitimate. and what the president and the attorney general decided was differences in treatment and are not based on orientation ought to be illegitimate under the established equal protection doctrine because the characteristic of being gay or lesbians is an inherent characteristic and discrimination is based on the inherent personal characteristic generally don't bear any relationship to legitimate governmental days and you could
climb the political process to ensure no discrimination occurs again gay and lesbians. they decided it was unconstitutional and not to be decided by the government. so we did not defend it and as a result, the house of representatives stepped in and its leadership decided they would hire a lawyer. so did go to the supreme court and the somewhat unusual posture. as you know, the five to for decision concluded the differential treatment to violate the fundamental constitutional guarantees. justice kennedy's opinion for the majority did express a heightened skirt the argument that we as the united states advocated or, that he did focus on a characteristic of the defense of marriage act that the court found justice kennedy's opinion to be particularly troublesome, which he viewed as
an expression against gay and lesbians, not motivated by any public concern and essentially desire to discriminate for discrimination sake. struck the lad on principally on that basis. one of the interesting things is a fair amount of discussion of the oral argument about whether the problem with this law wasn't the discrimination problem so much as a federalism problem. justice kennedy asked quite a few questions actually going along the following lines. gee, isn't unusual for the federal government should be defined with a.add and that's not a valid marriage. it's not usually the problem state and federal system to make those kinds of judgments. at the end of the day, the opinion, justice kennedy's opinion for the report did not rely on a federalism ground so much as an equal protection of fundamental rights kind of
analysis. but he did use that federalism rationale, the federalism notion is kind of a red flag with the way up to him and was reflected in his opinion was precisely because the federal government isn't very often in the business of deciding was a lawful valid marriage in that event is normally the job of the states. the fact the federal government in the statute got involved in trying to answer the question and answered it not for any one particular federal program, but every single federal program across the board on taxation to military service in social security benefits but that was a rates like the racist patient about whether there was any legitimate notification of supporting law. that was windsor. the other big case was perry gives hollingsworth. that was the case as i'm sure you remember that california's proposition 8, which was constitutional amendment passed by ballot initiative and
referendum in california have banned a marriage between persons of the same gender. it was subjected to equal protection grounds of federal district court in california and the federal district court struck it down. something important procedurally happened during the district court proceedings, which was the state government of california decided it believed the law was unconstitutional. this constitutional amendment was in violation of the federal constitution and they stop defending it. so, because they wouldn't defend it anymore, the group that was a strong proponent of the ballot initiative and guided enacted in california said jan, hired a lawyer to defend the law. see the district court found it unconstitutional and the lawyers intervene to come in and defend the law to the property backers then took an appeal where they
lost and then they took the case of the supreme court and asked for the supreme court to review. but the supreme court ended up doing most deciding that in that situation, the party that because the state of california had dropped out of this other group had comment, that there wasn't standing to pursue the appeal. standing is a technical legal doctrine. in order to bring a case in federal court under article iii of the constitution, this limits it has to be a genuine case or controversy in order for the constitution to allow the federal court to hear a case. one element of that idea is you have to actually have real opposing parties who actually have a personal concrete stake in what is being fought over in court. and the supreme court held that not only when you're at the initial trial, but when you are on an appeal as well. if you want to take an appeal from a lower court to higher court and into the supreme
court, you've got to have that kind of personal stake in the majority of the court ended up concluding that the proponents of proposition 8 didn't have that kind of personal stake in the law that allowed them to qualify somebody could have standing to take an appeal and pursue the case, that they really weren't any different from any other citizen in the state of california, essentially that any citizen might have a constitutional provision of the state that kind of undifferentiated interest is one that isn't enough to come in and pursue a case in court. one interesting thing is a consequence of the court deciding there was no standing with the south reached the question of whether there is a constitutional right to gay marriage and other property was unconstitutional. we can't hear that case and the court of appeals could hear that case either because the appeal
was brought by the prop h. proponents that didn't have standing. but she did have the district court judgment in place at declared it unconstitutional. so what do you do in that circumstance? the upshot is this prop viii proponents went to california state courts and try to get -- try to get the district court judgment on done on the theory that this isn't right because it's a district court judgment could be appealed and it's going to have be effective if left undisturbed a wiping out prop eight and make it unlawful in california. says a consequence, even the supreme court didn't reach the merits of the issue, it is the case now that prop eight is inoperative in california and the opportunity for same-sex couples to marry in california
is now available, even the supreme court didn't reach the merits. so that is a summary of the gay wright's decision. >> so i think it may be difficult for you to opine on what comes next because the united states will have to take a position of the next generation of same-sex marriage and gay wright's cases. i'm interested if you are able to think about what it is that windsor tells us about what the supreme court will do when it does confront the perry question, that is the foundational question of whether it's a constitutional right to same-sex marriage. it seems to me that case is coming out of rocketship. so i wonder what lessons we might to right from supreme court said. >> i have thoughts about that, but why don't you outshine men to let some of us talked for a
minute. >> i agree that it's of course the next question because the reasoning of the windsor pays this one to ask well, is it unfair to discriminate between lawfully married couples, same-sex couples and opposite that couples come is unlawful under the u.s. constitution for some states to deny same-sex couples the right to get married anyway? a happy for that a precursor question, which is this. a puzzling element of the way those two cases were decided. essentially, but the state and federal government did the same thing. the attorney general of california did the same thing the obama administration did when it came to defending this law. they, like the obama administration concluded the safe under contact was not constitutional. the captain for a cynic, but they did not defend it in court, which is exactly what she did here in washington. how can the supreme court find they can reach the merits of the
federal government stops defending the statute that considers unconstitutional, but they can't reach the merits when the state of california stops defending a statute, or in their case a state constitution for the exact same reason? >> the supreme court explained that in its decision and it's a really good question, but there's a couple of differences that allow one case to go forward with the other not going forward. in california, in the prop eight case, the state stopped defending the statute, but also stopped participating in the case. they were just gone. in this case, in windsor, where the united states was party to the case, we stops defending the statute, but we didn't have participating in the case. we stayed in the case and one reason we did that is because part of the decision the
president and the attorney general made when they decided they wouldn't defend the statute any longer as we would continue to enforce it until i had been a definitive ruling from a course that was unconstitutional. the reason they did that was because as they expressed in their explanation was because of a belief that in our system, the judicial branch out to get the last word on constitutionality of the law, but that ought not to be up to the executive branch on its own. the way to maximize the prospect of the judicial branch glassware is to continue to enforce the laws are there concrete consequences probably not people while the law is still in effect and there is a prospect of a true case or controversy that can be decided. and then, we're in a different position than the state of california was in prop eight that there actually were concrete consequees that would flow through the federal
government if the statute were declared unconstitutional. one of them, most obviously with wednesday with the federal government was fighting over $300,000 in tax payments and if this -- you was upheld, that $300,000 is in the federal treasury. it was struck down, to be checked for $300,000 to go to windsor. even though the united states government would statute was unconstitutional, we would suffer an adverse consequence from the statute is struck down and the majority of the court decided that was enough of a concrete dispute to justify the case continuing forward consistent with the article iii requirements and that concrete dispute wasn't there in the california case. so that i think the best commonsense translation i can give of the supreme court's.
>> not to throw any doubt on the infallible reason of the supreme court, but of course for the state of california, they would have the exact same state because if there can be same-sex married couples, state tax laws in many, many states make similar differentiations based on marital status. so the state of california would also have a big financial and policy state and whether or not same-sex couples can get -- >> understanding the have to do that are interested in the law, let me go to a few of you interested in whether there will be same-sex marriage. alice then, do you have any thoughts on what follows? >> i certainly agree with you that case is coming. i think that it will be more controversial to say that states have to recognize names and to say that government doesn't have to honor the state's choices.
i have a hard time seeing how they can write an opinion completely consistent with wednesday that is sent me to that result that states have to. i am more open in the supreme court will rule, but it seems to me that has to be the result is a possibility if they come up with some distinction for the next case, it won't happen in the next case, but it will happen. >> just one word on that from the perspective of the united states. as i described earlier, we took this position as a matter of legal doctrine that heightened scrutiny ought to apply to laws that discriminate on the basis of sexual orientation. the court in windsor as i said did not doubt that rationale as a reason to strike down section three of toma. they adopted a different
rationale. at the same time, they didn't object to rationale. the united states participate in the perry case and argued the same principle ought to apply to state laws that discriminate on the basis of sexual orientation with respect to marriage is so because they reach the standing ruling we've been discussing. they didn't crop up that issue one way or another. for the most i can say is that it remains open to the supreme court to go to heightened scrutiny root and find the state laws that discriminate, but denied the ability for same-sex couples to marry are in violation of equal protection. it's open to the supreme court to craft a different rationale and decide that such laws violate equal protection. but it's also after windsor clearly opens the supreme court to decide that this is principally a situation in which he would defer to the states
because as i said there was this train of reasoning in the windsor opinion of justice kennedy that expressed a lot of deference to this day's judgment about who should be entitled to get married under state law. in though, i think the case is going fast, time is right about that. i do think you look at the legal option available after the windsor impaired decision and they are all available to the court in the future that i wouldn't predict. >> i think that's sort of looking for a build on that is likely to be justice kennedy. he seemed uncomfortable at the oral argument that he had the case before him. he wasn't quite ready i'd think to go srs winsor wanted him to go. that's why it's out of my not come in the next case, but it will calm in a matter of when he's ready to get there.
the federalism angle, the deference to the state is one way that he made time, at least for now, that the states can do what they want. >> so let's turn to keep moving forward to the voting rights act. >> i mala sin. what you said about the voting rights act case, which is the court held the provision of the voting rights act was unconstitutional. i'll go through a quick primer of the voting rights act on the same page. it was enacted in 1965 to combat measures used to restrict minority access. in this reaction into a rage of discriminatory measures, things like literacy tests and morality affidavits. as well as voting rights act to
visit mississippi and state troopers assigned some people marching to the capital in alabama. section two of the act contains a general prohibition against voting practices or procedures that have a discriminatory effect on voting. it's enforceable on federal court by private litigants than a showing of it tends discrimination is not required. you have to show it has that effect. section five imposes a preclearance requirement on any changes to certain jurisdictions want to make to the voting practices or procedures. the jurisdictions covered are primarily in the south and some additional counties and states. some posters actions can affect any change that affects voting without the clarence of the united states attorney general for the federal district court
in d.c., which is a three-judge court in d.c. the covered jurisdictions are faced in section four of the act. the formula has been changed a bit since the 60s to have some requirements, but none has been taken away. every so often, although some parts of the act continue. section five has to be reauthorized or reenacted by congress. recently in 2006 when congress extended it to 2031 for 25 years and catch the existing formula for determining which jurisdictions encoding changes. at that time, both the house and senate held extensive hearing
and is chair of the house judiciary committee describe the most expensive considerations that the united states congress is dealt with in the 27.5 years but is served in the house. the bill was passed almost unanimously in both houses. so four years ago, previous five years by now, the court accepted a cheese that the petitioner argued and decided that i different ground. the decision of the court noted the change since the 60s and congress to justify preclearance that brings us to shelby county heard the case was decided last june. shelby county, alabama is, or was until last june a
jurisdiction covered a section five so that any changes to voting practices or procedures have to be precleared by the u.s. attorney, the u.s. attorney general for the district court in d.c. shelby county sued the attorney general, seeking deprecatory judgment, seeking a statement, a pronouncement that the formula under section four the preclearance under section five are unconstitutional and shelby county site to permanently in chewing their form performance. the district county appears both predicted that challenge held in favor of the government of the voting rights act. and the case went to the supreme court, whereby five to for decision the court did not hold the preclearance requirement was unconstitutional. instead, section four for me for
determining what is precleared is unconstitutional. the court held that continuing the prior formula for determining preclearance wasn't based on current conditions. the court said it was based on 40-year-old specs have been no relationship the present day and that congress, if it is to divide the space must identify those jurisdictions to be singled out on the basis that make sense in light of current conditions. it was a five to for decision. they discussed the masses, legislative record on which the renewal in 2006 was based and waiting for justice ginsburg to expand first-generation barriers, like literacy tests were dealt with now, but they have been replaced by second-generation barriers like
racial gerrymandering, requiring at-large voting in place is a sizable black minority populations in insight that. she said the voting rights act had been perfect did end forward in such in the past in the majority's decision was going to burgett with the country's commission to justice. in a separate opinion, justice thomas called for the court to strike down section five, the preclearance requirement itself, saying the majority opinion conduct that result, had made that result really all the unseeded conclusion. the supreme court had repeatedly about the preclearance requirement in earlier cases. so the outcome is that although the procedure for preclearance has survived, the jurors actions are no longer covered. it's an empty set.
they are no longer covered. no covered jurisdictions will prevent a preclearance requirement two. states such as texas and south carolina, formerly covered by section five have already reacted by enacting or put into effect flaws that they could under preclearance almost certain they not have gone forward with. but although the bill authorizing the 2006 renewal of the voting rights act passed overwhelmingly is generally thought that the current congress will not pass new legislation or do so anytime soon. you may have noticed the current congress has trouble legislating. so while we wait, the federal government is using other sections of the voting rights act to try to protect minority access to the ballots.
section two, which is after-the-fact, which allows you -- an individual just after-the-fact after changes are implemented are the change of having a discriminatory effect. that was not challenged in the case. so the government has sued texas under section two to challenge a voter i.d. law that would otherwise have gone through preclearance. it also files he cannot order to the federal record that would bring texas within the preclearance requirement, based on evidence of intentional voting discrimination because although there are no covered jurisdictions under this section for formula, there is a procedure for the federal court to determine that a jurisdiction should be subject to
preclearance because of the evidence of intentional discrimination. so the government is trying both of this type takes in specific cases. while the ability to challenge specific law remains, the decision is still extremely significant because section five as the court explained in one of the earlier cases is in some ways more excessive than case-by-case litigation. the court has said in 1966, the case-by-case litigation was inadequate to combat widespread and persistent because the inordinate amount of time and energy to overcome the type takes invariably encountered in these lawsuits. although the tactics have certainly changed, it is certainly more time-consuming and less efficient for the government to be looking at each change after the fact that
clearing and it bands before discrimination has occurred. so i think i tried to describe this fairly typically. but i'll confess that i agree with the defense that it was a decision that is egregious in the way that it overrides congress' decision based on a really massive legislative record and post an egregious barrier in front of the government's ability to prevent discriminatory practices and i think that's one makes a shelby county one of the most significant pieces of last term. >> so maybe i can draw a couple of parallels to the voting rights act case enter the gay marriage cases and try to draw another one back to the case and going to talk about first-come which is the affirmative action case. two really interesting things to note. one is in the same-sex pairs
wins her case, supreme court strikes down section three of the defense of marriage act. that was a statute passed by overwhelming majorities. in the same week, has struck down section four of the voting rights act. the dissenters in both cases claimed bitterly that it is outrageous for the majority to override the considered judgment of by majorities of the conquest. the two majorities are almost exactly the opposite. justice kennedy is the person that shared in the majorities and it's really interesting how if you believe there's a constitutional violation, you think it's obviously important to strike a ball. if you don't think it's a violation comments of outrageous overreaching by the court and there's no real way of saying who's right or wrong in that. the second parallel i would try as you really know how exactly to read the windsor decision and that is you read it as a decision that is a step forward towards same-sex marriag
a pair of opinions were decided when justice o'connor was on the court and she was a center seat. she has been replaced obviously in her replacement was just as plato who is considerably more conservative. justice o'connor kind of a center-right conservative, but you never really knew and affirmative action case exactly where she was going to come down to peer the supreme court had upheld the affirmative action program at the university of michigan law school and struck down the undergraduate program. the bottom line of the decision was that you could have some form of racial preference. the university of texas to from
that, a green light to a preference admissions. essentially 2% of have the university of texas has admitted students. part number one if they took the top 10% of other graduating high school students in the state and admitted to the system, including ut austin and that produced a fair amount of diversity because a lot of high schools in texas are the areas of the state that through segregated housing patterns inevitably have huge minority populations. it was the case atop 10% ip overwhelmingly hispanic, for example. but then texas added on a system and a separate system was challenged by an african named abigail fisher who did not get to the university of texas and said she believes she at least was was not an equal opportunity to compete for a seat at ut austin because she was white. that case went to the supreme court and everybody pretty much
thought the et's program is in big trouble. we had one really important -- we have a recurring thermometer in the supreme court has happened as a requirement of justice o'connor's retirement. there's a variety of areas in which she was in the majority but justice kennedy was in dissent. now that the court has taken steps materially to the right on these points applaud, justice kennedy is dissenting view has tended either as a matter of actual lot were a matter of practice to become the prevailing view as he has taken on the center seat. in the affirmative action cases from the university of -- again, the predecessor one, what the law school program is upheld, justice kennedy was strongly of the view that the programs deserved much more rigorous constitutional scrutiny. while justice kennedy is even more like politics has refused to the constitution is colorblind and outlaws all
racial preferences. you said it is very significant constitutional. the case came to the supreme court and people believe this is going to be the court's opportunity to step back for the michigan law school case and put limits on affirmative action. like in the first voting rights act case, we expect in section five of the voting rights act to be stirred down, and said the court did something more modest. it's a little bit of a puzzle exactly what they were doing, what they meant to do and why they did it. they issued a decision that said to the court of appeals, which upheld the program, we would like you to try again. that's a very interesting instruction when it's back up in the match of the way of explanation. for the court to actually do if this had two significant things. number one, we are going to continue to assume that diversity in higher education is a compelling governmental interest. remember don's explanation to
you subject the sauce to heightened scrutiny. you have to have a good reason for doing it and the law has to be tailored to achieve that reason. the most conservative justices don't believe that diversity is sufficiently compelling interest to justify an affirmative action program. but justice kennedy got them to join an opinion saying we will at least assume it is. the left of the court was set to join that opinion as well because it wasn't a decision striking down affirmative action. the second part of the pin is that we want the court of appeals don't defer to universities when they tell you they need these programs. you have to develop an actual record in court to establish these programs are really necessary. again, it is a parallel to what happened in the voting rights act. the supreme court majority looked at the record congress had compiled by the university is an affirmative action for the congress compiled and said that's not good enough. we have in the following cases
courts determining whether or not a state has a history of discrimination solely harsh remedy like preclearance is required and so to an affirmative action, the supreme court is set to the court, you too strictly scrutinize affirmative action programs. as a result, justice kennedy -- the opinion for the court ends up having eight-member senate. both the left and right in what was a great surprise because it is expected to be five, four decision cutting back on affirmative action substantially. so the question for a lot of people who follow these issues is if this turns decision sent back to the court of appeals, is that a prelude to something much stronger, just like the first voting rights act case, which also had been a majority with a prelude to this term's decision after striking out section four of the voting rights act. the last window make about it is
perhaps the most jaundiced view of why the court did what it did. that is really a five members of the court had signaled their grave concern with affirmative action, why did the five members to the court actually take the step of doing something because they haven't hesitated to be aggressive on important principles of constitutional law. one thing that may have been happening as they were going to have to hand of the voting rights act decision at the same time they were handing down the affirmative action decision. and the combination of invalidating such a critical part of the 1965 voting rights act and also invalidating affirmative action are dramatically cutting it back optically would have looked very, very tough for the majority of the supreme court. and they have decided in addition was the writing of her, but they may have that kind of the pc and -- they may have found the pacing of the decision was better to leave that for another day because they also
were undertaking for next term a very significant or housing act that has significant racial undertones as well. before return to the kind of follow-on, any further thoughts you want about affirmative action classics >> well, i want to save her the right to focus on justice kennedy and the fact that he alone among the conservatives on the court has agreed that diversity in the classroom, diversity on campus is a compelling governmental interest. the governor has a tremendous interest in promoting it. it's the other half of the 14th amendment analysis where he departs from liberals who agree on the compelling interesting that it's who bad court jargon, what is the program narrowly tailored to achieve that end. that is for justice kennedy has departed from the liberal members of the court when it comes to these racial diversity cases. he accepts the idea it is a compelling interest, but is much
less willing to give government entities leeway to decide on around what they can do about public racial classification of individuals is acceptable to achieve it. so what that decision in the texas case does this requires essentially a trial, puts the university of texas on trial to defend the way it gets the diversity, the supreme court said is a worthwhile object to do so in a way that causes the least harm to people who are not beneficiaries of the program. so that is where he split the court. >> well, this is an affirmative action case, but comes at it from the other end of the spectrum because it is involved in an attack on a state measure that and affirmative action. ..
sixth circuit court of appeals which includes michigan. michigan we heard of before in the affirmative action context because in 2003 there were these pair of cases where justice o'connor essentially said that you can't have a strict numerical advantage for minority students. you can't automatically give them 50 points on the score to get into school but you can as part of a holistic not very clearly defined but a sort of holistic measure of an applicant's will take race into account. perhaps for the next 25 years that's the time limit she suggested might be appropriate to keep it explicitly in consideration but that was not a binding part of the decision. yet was always sort of cited as the courts benchmark. after those decisions came down
in 2003 michigan voters acting with the help of ward connerly who sent a proposition to the state decided they didn't want to wait 25 years and pass something called proposal two which involves the consideration of race in any state programs including higher education and admissions and the number of groups including one called the coalition to defend affirmative action by any means necessary filed suit to challenge a proposal at michigan. the same group or a related group had also challenged proposition 209 in california arguing essentially by preventing any state agency from adopting affirmative action program minorities were being disadvantaged, that they alone, day among the few groups are being singled out to be
disempowered and being unable to seek the kind of program that they wanted while other groups that might be given preferences and one that is often cited are children of alumni or athletes or other types of students who meet references in some instances, they aren't barred by the state constitution from getting preference. they can go and try to persuade a university or university on its own can give them preference. the ninth circuit court of appeals in california upheld proposition 209 but that argument did prevail barely get the sixth circuit court of appeals which by a single vote i think it was a 7-6 opinion found that the proposal in michigan violated the united states constitution equal protection clause as it has been interpreted by the court. the sixth circuit looked to a pair of decisions principally for the authority for its rule.
one from 1969 and one from 1982 in which the supreme court had struck down local or state ordinances that made it especially hard to pass antidiscrimination laws and there are certain measures that said city council can pass any kind of law it wants but the ones to pass a law banning discrimination of housing they need a supermajority. measures like that the supreme court felt were unconstitutional because they went out of their way to deprive the minority groups that might benefit from an antidiscrimination ordinance the ability to get those sorts of ordinances enacted. the sixth circuit court used that same reasoning to say this is the same thing that pretty much any other type of person, alumni child or athlete or whoever has many ways to try to get a preference from the university of michigan or michigan state or other state
colleges. they can ask the board of trustees. they can ask the admissions office. they can go to the legislature or the canon see the constitutional amendment that minority groups the only way they can get preference enacted is to amend the state constitution and that violates this principle by essentially depriving them of the same way they influence legislation or state policy that others have. now when that case -- so the case is not one that -- it deals with affirmative action. it deals with whether a state can abolish affirmative action on a statewide basis. and it's interesting in a number of ways because it says that a measure that on its face is completely race-neutral. it says no one shall receive preference or detriment based on race in fact.
it's unconstitutional because it prohibits some people from seeking reference or detriment based on race. and again as allison said we can't ever be sure what the supreme court is going to do but it seems the opponents of proposals or in other words the coalition to defend affirmative action by any means necessary has an uphill climb to persuade the supreme court that it's in violation of equal protection or other state constitutional ordinance that says nobody can be treated differently based on race. and that we argued on october 15 at 1:00. >> one very brief thing that is noteworthy about this is the way in which the supreme court did tackle a similar issue in earlier generations and we think of there being a lot of stability in american law and
supreme court decisions because of the value of precedent and the notion of stare decisis but on these really fraught hard questions like affirmative action race and religion each new successive supreme supreme court majority feels some flexibility to correct the errors of its predecessors. so too with the current majority view of the gruder case in the grants case and the decisions upholding the ability to have some preference and so too on the discretion whether local bans on affirmative action type programs are unconstitutional. so let's continue with our forward march to the upcoming days. in the next 45 minutes we are going to go through nine cases so we are going to solidly stick to five minutes a case which i think will be no problem at all. given that we only took 20 minutes a case for the first five.
[laughter] it's very simple and easy to understand recess appointments. >> so this is a case called national labor relations board against -- a case about how the constitution allocates power between the president and the senate. article ii of the constitution of course gives the president the power to appoint federal officers at the advising consent of the senate. there's another provision called the recess appointments clause which i'm going to read to you and i want you to listen carefully because the language will matter in a way that we will discuss in a minute. the presidentpresident ial have power to fill up all vacancies that may happen during the recess of the senate by granting the commission's which shall expire at the end of next session. in other words at the senate is in recess the constitution gives the president the authority to make appointments that he would
otherwise need advice and consent to make and what this case is about is the meaning of that clause. here is what happened to give rise to the case. the national labor relations board enforces federal labor law it's a five-member board and you need at least three members to have a quorum so the board can operate. there have been vacancies on the board and have been vacancies on the board for some time for two of them but they did have a quorum of three. but the term of one of the three was getting ready to expire and would have only had to or one that could not pray. the president nominated two people to fill the vacancies in the board, the two vacancies. the senate did not confirm their nominations so the board was in this position where it was about to go out of business. in december of 2011 the senate
decided it was going to take a break from mid-december until january 23 but they didn't just declare that they were going to go out on the recess between december and january 23. instead they provided that they would have a pro forma session every three days during that period and which one member of the senate would be there and will call the senate into session and in 30 seconds or less bring down the gavel in call the senate out of session. the resolution that set this up provided to members of the senate didn't need to be there for the session said no business would be did. now why did the senate do this? >> it did it to cause by accepting practice of three days doesn't count as a recess that would trigger the president's power to make recess appointments. so this happens at the end of
2011, beginning of 2012. the president decides that actually the senate is in recess despite these pro forma sessions because those sessions don't make the senate available to provide its advice and consent which it has the obligation to do under the constitution. if they are not around for advising consent of presence as they are in recess. since recess is long enough and they are not going to have a quorum unless they get more people he will recess to people in which he does. the board with these two recessed appointees on it renders a bunch of decisions. in one decision in which it is a division of labor laws against the company and the company brings a challenged to court and says well this was an action that was without authority because the court actually lacked a quorum because the people who were sitting on the board who voted to enforce the
law against me were unconstitutionally appointed. that is how the case shaped up and it was in the court of appeals here in the district of columbia and there was a big fight between the board and the united states government representing the board for valid recess appointments because the senate really was in recess despite the pro forma sessions and the company which said no, no the pro forma sessions count. everyone anticipated there would be a decision by the d.c. circuit on the question of whether this pro forma is enough of a session to prevent the conclusion in the recess. lo and behold the decision of the d.c. circuit comes out in the court goes way way beyond that question and in fact it doesn't even address that question. it addresses to too much more fundamental questions about this
that have been around since the beginning of the republic. the first one is what does the recess mean? remember i said they concede that may happen during the recess. the court said the recess in the singular so it must apply to only one recess and if there is only one recess that he can apply to it must be the recess between the sessions of congress , the recess between the end of the first session in the beginning of the second session. as you know now congress is our broken into different session so it must be those intercession recesses and it can't be a recess within. like when congress takes august often goes into recess. it has to be only an intercession recess. appointments occur in january after the congress convenes on january 3. which is the constitution
requires them to do so or is within the new session and therefore it wasn't an intercession recess and therefore it wasn't the recess and therefore it was invalid for that reason. that's not the only problem the court said. the other problem of course it is the constitution says the president can fill up all vacancies that may happen during the recess so that means that the vacancy has to arise during the recess, that the vacancy can't exist before the recess because if it did it would happen during the recess. therefore there are two fundamental problems with these appointments. so by virtue of that decision the d.c. circuit took what was already quite important question of separation of powers and the proper allocation of authority to consent of the united states and turned it into a gigantic question about the separation of powers and the allocation of authority in the united states.
part of the reason for that is if one goes back to american history as a brief that we will file tomorrow in this case there are hundreds and hundreds and hundreds of recess appointments that were either intra-session in other words not during the break at the end of session or to fill vacancies that arose before the senate went into recess. including just to highlight one example the appointment of dwight eisenhower as commander of the european forces in the summer of 1943. [laughter] but there were really hundreds and hundreds so it's going to be quite an adjusting case. as you can tell from the language i read, there is obviously an argument to be made that supports what the court of appeals did. of course the language i think is also capable of being read to support the historical practice with respect to intra-session
and when the vacancies arise and then you have this quite substantial historic practice. then there's something interesting about that. the historical practice was accelerated over time. you can see examples going back to george washington of appointments that wouldn't qualify under the court of appeals. as time has gone on there have been more and more of them so how do you interpret the language? how are you going to outbid authority between the president of the senate? i think it will be an interesting case to follow. >> one tiny little point. he will make let me make one tiny point, a lot and maybe even most of the work done on the question of intra-session and when the recess has to occur is actually done by democrats including me represented senator kennedy challenging recess judicial appointments of president bush and we happen to get a lot of republican judges
who have always rejected our arguments. now the issues have been completely reversed and all the same arguments are being used against president obama. >> i was going to ask if you had an opinion in your brief addresses, if the court agrees with the d.c. circuit then what is the effect on going backwards clacks for instance i think one of the appointments challenged by senator kennedy was a judge sitting on the 11th circuit so worth it to 2-1 decisions where he is in the majority now being questioned? >> d-day would be unconstitutional. >> d-day actually never happened. >> i don't think it's an issue we will get to. if the court rules that way then that's an issue that will have to be confronted but it won't be
wrestled with at least not directly in this case. >> our next constitutional power, the treaty power. >> okay the next case asks what the limits are on congress's power to implement treaties. some treaties are self-executing and others require congress after the senate has approved a treaty and requires congress to pass a statute to implement its provisions. most courts have read a case from 1920 and hold that the statute is implementing the treaty than the statute is necessarily valid. it concerns the statute that implements the 1993 convention on the prohibition of the development and use of chemical weapons. it said treaty concerned with terrorists and rogue states. the case also concerns the meaning of this 1920 case
missouri versus holland and depending on the court's reading may be another one of the instances where this court overrules a prior decision. what these complex constitutional issues arose from is a domestic dispute. carol bond found out that her best friend was pregnant and her husband was the father. she flipped out. >> that's the best way to do that, write? >> she decided to make her friend's life a living hell. she was a microbiologist and so naturally she decided to do this using some chemicals. she took from her place of work and ordered some on amazon that is used in dark rooms and she put the chemicals on the friends friend's car and door knob and mailbox. she also took some mail from
them friends mailbox. at this point she wasn't really a friend. [laughter] >> more of an acquaintance. >> so, her friend suffered a minor rash on her thumb. apparently this chemicals are easy to see and wipe off but her friend did get a rash on on her thumb and the evidence is that she intended to cause irritation and discomfort but she did not intend serious harm. the friend in listed -- he asked local police. they didn't know what to do. the mail was being taken so she asked the post office to set up surveillance and found out that carol bond was -- at this point you might expect the local police to take over but instead federal prosecutors got involved.
don would know better. i assume that is because it's the post office. ms. lawn did not engage in activity that was in violation of the chemical weapons treaty. her actions didn't involve chemical warfare or stop piling of chemical weapons but the prosecutors charged her with using unconventional weapons in violation of the statute that congress passed to implement the treaty. so she moved to dismiss. she argued that as applied to her conduct the statute exceeds congress's constitutional powers , the enumerated powers in article i, section 8 and invaded the powers reserved to the states under the 10th amendment. she called the statute a massive and unjustified expansion of federal law enforcement in the state regulated domain. the court of appeals rejected her argument and said that
missouri versus holland, the 1920 case, means if congress laid validly implemented a treaty it was acting within its authority. so before the supreme court she reiterates this argument that the statute is unconstitutional if it is applied to such a local crime. she argues that the college will enact a statute to implement the treaty with the power to enact a law to disregard other constitutional limitations. because she says the government could not have a federal law that criminalized her conduct in the absence of the treaty, than the federal government can't criticize the statute implementing the treaty. she also says the statute can be read not to cover crime at all but the supreme court read it
that way then it would have to reach the constitutional issue. the government counters under the scope of the statute, that the statute is constitutional because the treaty is necessarily constitutional even if it covers some local subject matter that wouldn't otherwise address because otherwise the government says the u.s. is hamstrung in negotiating treaties and the confidence of other countries and the united states is a global partner would be undermined. >> the red line if will. [laughter] [applause] 's been no comment. >> the government also make an argument now that it didn't make at the trial level. it said it had been waived. the argument is that the statute , the provisional statute is valid under congress's commerce clause power that is
the power to enact laws that regulate the flow of goods among the states and chemicals are sold in interstate commerce. these aren't illicit illegal weapons so sold legally through the states. this argument hasn't been addressed in the opening brief because as i said bon's position is that it has been waived. earlier i gave you bare-bones description of the facts but the government looks at it differently. the government's brief explains the two chemicals used the rare ability to cause toxic harm to individuals to a minimal contact someone half of the teaspoon of one of them could be lethal to adult while few ingested crystals could kill a child. the government says on attempted to poison at least 24 times over
the course of several months and spread substances on the mailbox door handles in the door for home in sufficient quantities to be lethal. do these additional details affect the answer to the constitutional question? the briefer bond at plane she was under incredible stress. her hair was falling out. the news of the affair had a devastating effect on her physical and mental health. the conduct was completely out of character for her. do these facts affect the answer to the constitutional question? probably not but the briefs like all good reads portray the facts the way this most sympathetic to their client even if the facts don't necessarily have a direct direct -- don't need you to directly answer the legal question and the court's legal decision would probably portray the facts that is the most sympathetic to the outcome.
18 amicus briefs were filed in the case. >> in terms of the implications of the case i take it that a lot of treaties that we enter into there would be some other power that would allow congress to implement them but there are some who say treaties are about domestic violence and the like that the authority could if congress has to come from the treaty. >> i will talk about a case involving the clean air act briefly both because it will -- time that it because it's impossibly confiscated. this is a case called homer. they involve what's known as the transferred rule which we haven't thought much about. it involves downstream air pollution so the idea that there and beat the states particularly in the midwest and the northern part of the country where there
is heavy industrialization and there may be coal-fired power plants and there may be industrial plants and the like and omissions from those plants can trap a lot of wind in those states but other states as well. .. can set the riewlts or instead the states themselves set the rules. and also some technical questions whether the claims were brought in time in the first instance.
beyond the clean air act, i'll note one other feature of the case and the noel cannon case. you will have heard about the whether we appoint new judges and additional judges to the d.c. circuit and the question whether it needs new judges or not. also the notion that the d.c. circuit is the second-most important court in the country. that's not because it sits somewhere in a particular hierarchy of the judiciary. a lot of these hugely consequential cases involving the federal government are brought in that court. take the recess appointment case happens to be going to the supreme court involving the mlrb. take the case, and you can see why it is there are political struggle over the appointment of the court. let turn to fair housing. >> very well. well, if you followed an earlier season of the supreme court, you know there was an exciting episode that took place in burlington county, new jersey.
in fact, tom, here was involved in arguing that case involving the strip search of prisoner in burlington county. it's a different type of issue coming from the same location. the county seat. called mount holy. and involves a -- you might say an urban renewable type of program. the town, has already begun, bulldoze a neighborhood called the mount holly gardens and build new housing there. the area is blighted. there's a lot of crime there. and they wanted in the town to improve. mount holly garden neighborhood is also the one part of town which is a minority neighborhood, in that it's not -- and under federal fair housing laws, of course, one cannot discriminate on people based on race. how do you determine when the
protection of the fair housing laws go in to effect? mount holly, the number of resident at the mount holly garden neighborhood in this that town sued to stop this redevelopment project from going forward. they argued that it violated fair housing laws because the people who were bearing the impact of the development were disproportionately minorities. now under the way that the fair housing law and others antidiscrimination laws have developed over the decades, there are different ways you try to see whether or not their protections are triggered at the certain point, american history, it stopped being fashion only say we like discrimination. we're in favor of segregation and adopt rules that discriminate against people of color and so forth. that stopped being a sort of thing that pop tickses could announce and win lebs on. although, of course, it was far
long time the thing that helped win election. the question would arise. people officials who make the decisions no longer are outwardly to do. how do you find put to that is what is really going on? and a doctrine that in some agencies is known as desperate impact. if the policy that the agency is undertaking has an impact on a class of people. often minority group, then it may be illegal for them to proceed. and the way that this works in practice is agency wants to do something here have a redevelopment of this neighborhood. residents sue and say it's a violation of fair housing. and has an impact on us, and we are minorities that are getting shafted here again.
it -- to show that one wants a legitimate goal similar to those compelling of interests we talked about in the affirmative action contextier. it has to show there's not a way to get to the same result without having a similar kind of impact on the protected group. that's similar to this concept we talked about the narrow tailoring of rem i i can -- remedies. once the city raises the defense and say it's in we have to do it this way. there's impact there's no way to get to the same legitimate goal without having it, then the burden shifts back to the other side. and in this case the residents, and they have to say, you're wrong, city. there are other ways you can get
where you want to go without bulldozing our houses. that is what the nird circuit court of appeal said has to happen before mount holly can complete the redevelopment project. the desperate impact type of process. has to be examined by the trial court before the city can go ahead with the project. the city has apeted to the people court. they're arguing no. other federal appeals court apply similar rule to the type of situation have gotten it wrong. it doesn't have to be a desperate-impact type of analysis before we can go forward with the project. target people because of race. this type of burden that you're placing on us is not required by the federal housing law or the institution. you can't makes go through the
hoop before we can complete the redevelopment of this neighborhood. the court will look at that. as a lot of imply implications not only for housing laws but other areas of antidiscrimination law, possibly including employment discrimination. the same type of task often arises when you have an employment discrimination lawsuit. it's hard to prove when someone than discriminating. it's a way to smoke out impermissible discriminate story actions. so depending what the court does could have implications even beyond housing in to employment and other areas of public policy. one little thing about the question is that civil rights organization given the court's conservativism have been greatly concerned about cases getting up to the court. that might produce rulings they don't favor. and in this context and other
context they have worked hard to get the cases to go away. even after the supreme court agrees to hear a case, it can be settled or withdrawn up to the date they actually decide the case. and this was a predecessor case to this one that i actually -- and with the possible involvement of the federal government. which became what controversial. it became settled after the court agreed to hear it. they have taken the case. there's a fair amount of reporting that suggests theres a lot of pressure on the party to settle it before the justices can decide as well. >> that's right. settlement in the case would probably mean higher payout to the residents forced to move for the redevelopment. >> can they find them? tell us. >> the next case is called -- [inaudible] federal election commission. i want to start amicus brief representative van hole lane and
price representing the government in the case. as in united states united they are urging the court to -- supreme court decision in the area of campaign finance that prior cases the 1976 decision. which they upheld -- parties or packs. today thing aggravate limit is about $152 ,000 on contributions individuals. during an election cycle. to for can an individual can contribute to party, pack, or individuals. there's a $74,600 two-year and $48,600 two-year ceiling on
candidate organizations. the individual petition in the case is sean mccustomen. he's a wealthy man who gave lot of money to individuals and parties during the last election cycle. he wanted to give more. had he given more he would have exceeded the limit. he challenged the federal election campaign act arguing along with copetitioners the republican national committee that the aggregate limit violate the right and should be e limited because the resulting contributions won't be large enough to call of any concern. that's the issue before the court. whether the limits not the individual limit but the aggregate limit violate the first amendment. the concern; however, that the elimination of the cap would allow candidates and party
officials to solicit and accept large donations to be shared among the major parties various candidates and committees. the supreme court repeatedly held limit on large donation create important work against corruption, specifically the exchange of political favors for campaign contributions. but in the area of campaign finance, some members of the court disagree openly disagree with the precedent. the court has shown itself willing to overturn precedent in the area. the prior cases may tell us what the outcome should be if you just do the research. but they don't tell us what the outcome will be. part of the dispute in the case is the distinction over campaign expenditure and campaign contribution. the 1976 case, buckley, held that the limit on expenditure were unconstitutional because that was a direct infringement
on the first amendment right of the candidate to speak and therefore subject to the highest level of first amendment scrutiny and they couldn't survive the level of scrutiny. the contribution, is more like an associational as opposed to a speech activity. subject to a lower level of scrutiny and the contribution and the aggregate limit survive the first amendment challenge because they prevented corruption in the quid pro quo. so in they were asking the court to narrow, if not overturn, this aspect of buckley, the distinction between expenditure and contributions. they say there is a distinction so their case is abouting a gre grate limit and not the contribution thraiment applies
to any specific candidate. the distinction they draw, i think, is pretty fuzzy. so if they succeed in that aspect of the case, that will likely pose a significant threat to the limits on contributions individual candidates, and promptly see some litigation in that area. the petitioners also argue they can win even under buckley just because the aggregate limits today given other restrictions in campaign finance law are such that these particular limits are not needed to prevent corruption. so the possibilities are that buckley will be limited and at
sleet some contributions will be limit to scrutiny. meaning it will have the limit. the buckley will not be limited and the court will hold the particular limit don't protect against a government interest in protecting against corruption. or that buckley will not be reaffirmed and the court will hold or will be reaffirmed and the limit protect against corruption. in this area, i don't think that justice kennedy is a swing vote. he's very well defined long standing view about campaign finance. if the law is to survive, i think, that probably be looking for justice roberts within chevre side wins. it will turn on whether he thinks that the limits are actually needed to protect against corruption.
>> that's fantastic. >> can we turn to the other part of the first amendment? >> that's the word. this is a case coming from the town of greece, new york. and upstate new york. it deals with one of the fuzzy part of the constitution, that's the role of religion and its relationship to government. the constitution makes no reference to god at all. it has a reference to religion in the first amendment. which congress and by extension, other branches of government may not no law respecting an establishment of religion. nor can they make a law preventing the exercise of religious faith as well. and so even though the constitution itself doesn't talk about god and there are these parent clauses referring to neutrality or some kind of arms
length relationship between religion and government. we know that the continental congress and the u.s. congress and many body of government begin with the session with invocation and prayers. and prayers and references to god were made by political officials through the beginning of the country to the present day. it's unclear where the line is. the supreme court struggled for many years to clarify that boundary. this case is one of those efforts by the court to clarify the boundary between church and state. the town of greece has a practice of beginning the session with the town board with a moment silence. perhaps some people wished it was longer. [laughter] but over a decade ago they change their practice and decided to have a verbal invocation to invite a clergyman to come and say a prayer before
the town board began the meeting. and the town changed the practice of how exactly it would choose who would be selected and who invited, but eventually they came up with a someone in the town learning's office would go through the phone book and call the different churches in town and invite them to send someone to come and give an invocation before the board meeting. now, they only called religious institutions that were located inside their town, and inside the town limits virtually all the religious institutions were christian. there really churches, there a couple of synagogues but they were outside the town limit. it may have been a buddhist temple inside the town limits as well. anyway, virnlly as a result, all
the faith leader who gave the invocation were christian. many of the prayers they gave made very explicit reference to jesus cris and our savior and more than the sort of generic-type of prayers that are, you know, less -- perhapses less sectarian. two, residents of greece who attended -- who attended the board's meeting regularly found the practice prayer objectionable. they filed suit under the establishment cause of the first amendment. saying they had gone too far in establishing a religion. and the second court of apeople agreed with them by examining, you know, how the town went around selecting people to give the invocation, and what exactly was being said in the prayers. and it said that while there wasn't one clear line crossed by
the town. if you look at the toll talty of the circumstanced, that's jargon, if you look at the tole talty of the circumstance, and you see that almost all the prayers are given by christian german clergy american that many of the prayers have very explicit references to jesus and to our savior and so on. you look at that no effort was made to bring in other religions that may be located quite close to physically but just outside the town limits. that totality of circumstance went too far around 18983 supreme court decision which looked at legislative prayer and said that legislative prayer is okay few f it doesn't involve profittizing and advance one religion over others. now the supreme court has agreed to hear and re-examine that and
exam what greece is doing is within the limit. a couple of observations before we go on to questions. one is that there is an interesting anomaly in the general way the supreme court has looked at the establishment of religion cases. basically -- because it looks like serious religion and decorative, you know, or, you know, -- i mean, it. in other words if government agencies that defend religious involvement in what they're doing tend to say not really serious. it's just sort of a cultural traditional thing. we don't really mean it. if we mean it we take a stand on which religion is right. that would be less likely to pass constitutional muster. the other point, i think worth
noting is where the obama administration are on this. they're siding with the town of greece saying that what greece is doing iko. they take the view that the court should not get in to examining the content of every prayer and making list of how many are the religion and how many are that religion. it's too intrusive and more breathing space for the town to decide what is an appropriate form of invocation. there is some commentary said the obama administration is hospital to religion. in this case and the case argued a couple of years ago, they have taken positions very much on the i guess on the pro religion side. even more dpramatically. at the supreme court essentially to reverse president's and make it easier for religious schools to get tax-related subsidizes in arizona. and so at least for those covering the supreme court nay
don't seem to have, you know, other cases they have been taken the over position. they haven't sided against religious institutions or pro-religious advocate at the supreme court. >> tremendous. we have three more cases to turn to before we get to your questions in about ten minutes. [laughter] i'm going talk about the minor trivial passing subject of abortion. [laughter] it is an area of law. it fits the bill of the theme of area where justice kennedy was -- justice 0'connor was in the majority on the court. his views had the potential to emerge as controlling. the first one is about abortion protest. this is about protest offering medical research abortion. you have to step back to the previous president which was called hill v. colorado. justice kennedy in dissent, the
court upheld an 8-foot floating buffer zone. it means literal you can't approach the person within a certain number of feet. in this case, with respect to any health facility, a person who is approaching an if you want to say someone to them. you have to stay eight feet away. the supreme court said it was a neutral way of preventing interference with the access to health services inspect case is a followup case that comes from massachusetts. it's a statute limited to abortion clinic facilities that offer abortion. it's a 35-foot nonfloating buffer zone. that's to say within 35-feet of the entrance to the facility, you have to 35 on either side. you can't approach them to have a conversation or show them something. grow you have to proceed them it
may be a substantial distance unimpeded to the facility. the court of uppeel held the 35-foot zone. the supreme court agreed to review the case. it will present a test of the expressive right of people who want to do apportion counseling or apportion protesting to approach a woman who is going the facility to offer, literature or show gruesome images. there are all kinds of protests involved. and whether those free-speech rights are unduly infringed by making someone stand so far away. they have shout and use massive posters. the court of appeal suggested it was possible they could dress up as the grim reaper to get noted. other things you could do in the context of the buffer zone. and here you have a situation where justice kennedy previously felt strongly that these restrictions unduly impinged on the right of free speech, and in
that previous case, hill v. colorado, chief justice have left the court. and now it's possible justice kennedly have a narrow the hill v. colorado. the second case related to abortion issue is called climb. it's a millionly induced abortion case. it's on the docket but not on the docket at the same time. the supreme court was asked to review an oklahoma statute that may prohibit the use of 486 and a couple of other drugs to have a mmly induced apportion in the first month or so of a pregnancy. and that would be a significant issue. whether the row right extends to invalidate a restriction on that. what the statute may do is it may say that you have to follow fda guideline on the use of the drugs. or if may invoke the guideline
in a way the drug could never be used for millionly induced apportion. interestingly there's an uncertainty about the oklahoma law does. the supreme court invoked rare procedure. it sends the case to ask what it is the law does. if the oklahoma supreme court concludes as a matter of oklahoma law, that the statute actually does prohibit the use of the drugs to for medically induced abortions, then the supreme court could take it up and could present the first real look at row v. wade since the first abortion cases. and put roe v. wade and the breadth on the substantial. it is on hold until we hear back from the state court of appeal. a follow on to the affordable care act case that won on the behalf of the administration may be come together supreme court.
>> let me give you a quick forecast on that. it's not an issue on the court's docket yet. we think it's likely soon and will be decided this term. one of the things that another affordable care act issue most people get their health insurance through their employers. one of the things that the affordable care act does is regulate the terms of those rans to ensure that the plans provide coverage for certain type of medical needs. under regulations of the department of health and human service. one of the things that employer-based health plans are going provide is contraceptive coverage. coverage for contra seption. now the hhs regulation also give religious employer an exception from that. for example, if you're a church employer or church school employer. you have an exception from it. but they don't give anybody the
ability to opt out. any employer to opt out. a number of employers around the country who are not religious-based employers they're not churches or church schools. they're regular corporations organized under state law have argued they ought to be themselves able to to be exempt from the requirement because the religious scruples of the owners of the company are such that they believe their religious belief would be violated. religious obligations would be obligated. nay were required to provide contraception coverage as a part of their health insurance. so the principle argument they make is under a statute called religious freedom restoration act, which congress passed some years ago based on the view that the supreme court was not interpreting the free exercise clause of the first amendment in a robustness way to give people
protection when they had religious objections to be subject to the requirement of a general law, like the affordable care act law. the government should not substantially -- person's exercise of religion unless the government has a compelling interest and burden imposed that the least restrictive mean of achieving that interest. ..
you know the question is, is it a burden on the employer or is it really taking something away from the employees? who might not share their religious belief of the employer. then does the government have a compelling interest in imposing their application and this is the least restrictive means. it's very likely that a case will pop up and be on the court's docket sometime the next few months in an argument decided this time. >> we have finished to get ready for your questions precisely when we promised. [applause] i will only note that you did not applaud any of the substance if only our timeliness. your side of the bargain is that we get to hear you're fantastic questions.
>> i was just going to suggest that in the interest of everyone being able to hear everything being asked we have two microphones on either side so if you wouldn't mind lining up but the microphones if you have a question it will make it easier for everyone to hear. >> yes, serve. >> you lets say your supreme court justice and. [inaudible] does the fact of working and playing well together with other justices result in decisions that may for the particular case really fall short of logic and consistency just to reach the magic number of five? >> well, you know one justice historically was famous for talking about the rule of five and that was the justice that
clerked for justice brennan. i was going to suggest that you perhaps could answer that one. not a chance. [laughter] >> thanks for suggesting it conquered just. >> chief justice roberts at his confirmation hearings talked about the need for the court to provide clarity and to come together. we could really look at at that and one of two ways. one is the need to have rod majorities and so we talked about some decisions that were surprisingly 8-1 and the others the bare fact of getting five people to agree to something so people know what the law is. the supreme court is divided we stay have a rule that would say the chief justice delivered for plurality of the court. justice o'connor joined part 3a except for part 3ai but including footnote 4 other than the third sentence. it would be very difficult for people who are trying to apply
the court's decisions to know what the rules are so i do think in any collective including supreme court their compromises that are made in order to have some kind of rule that people can follow. >> and i would just add you don't have to think about that is being politicizing it. they do have different judicial philosophies but there is a a real comparative that comes together with one rule if they can do it and that seems to me a perfectly legitimate impulse to try to compensate. it's much better for the country if there's a clear rule that comes out of this. >> if i could just add about some of those 8-1 decisions what could then big cases justice ginsburg more recently indicated she wasn't going to be drawn into that again. she was the one dissent in the case in june because sometimes there is a compromise to get more people to sign on but there
are sentences in there that set up the analysis for a future case in ways that make some people unhappy. i think in the voting rights case the one a few years ago is set up the overturning of an incredibly part of the voting rights act a few years later and she has indicated she wasn't going to concur and joined the opinion in affirmative action case. this year for example because she didn't want to go in that direction. >> yes, the panel has identified interesting things coming in this term. i wonder if you could tell us about some uninteresting days combat that is if any of us would care to go and watch the supreme court in action but would not care to -- verizon. when are we most likely to be successful for that shorter line? >> don has the responsibility to
argue the most important important adjusting cases in america. you should come to my case. [laughter] >> i don't know tom. you and i argue against each other sometimes. >> if you're you are not going to get in line for obamacare or abortion or anything like that on the first day of the term i will argue a about whether the securities litigation uniform standards act prevents people from filing suit under state law the texas and louisiana state law to bring -- to stanford ponzi scheme. they sold seven billion dollars worth of -- but were actually selling polo ponies in antigua and where they could bring a lawsuit about that. that's an interesting set of facts in a technical western of law but that's just the illustration of the fact that nine cases in the supreme court out of 10% relatively ordinary questions of federal law. what happens is as jess
describing of disagreements over the mandate. that is the supreme court's job principally as they define it. they will be in these conflicts in the courts of appeals and the supreme court says we have to have one rule for the whole country. that could be a fantastically boring question and it may not even be a hugely important question but i would say nine times out of 10 you can go and see a relatively technical case that's not going to have lines going out the door. i will say in favor of the argument for cameras in the courtroom and having c-span who are with us today, there are not many seats. if people are coming from out of town the should write to the court ahead of time to get a reserved seat but it is tough and it's in my view and the most of him -- the view of most people if you see the supreme court in action he will be very prodded them. they're not just a bunch of political actors but they are working very hard on these issues. >> you look at tom's web site
scotusblog.com for a list of questions there. you will be bored by a good number of those questions and those are the ones you might have a better chance of getting into. [laughter] >> there seems to be an increasing politicization of the court and part of that may be media driven. it certainly seems scotusblog driven not because of a position but just just because there is a clamoring to read whatever you put out instantaneously and get it on some airwave or some tweeter something like that. i appreciate that you may not be asked -- possibly be able to answer this but i'm looking for more of a historical perspective. the court today versus an apparent politicization versus what we have seen a start he. >> let me start and the rest of the pack can fill in behind me. i guess what i would say about
that is what is portrayed sometimes as politics or being politicized what you are really seeing is the operation of different judicial philosophies at work and different members of the court have different judicial philosophphilosoph ies. they are legitimate philosophies. they hold them quite deeply and they tend to drive them in a principled way to different answers to the same question. it's easy enough to perceive that as politics but a lot of times that is in my mind at least not the right way to think about it. this is is a well-thought-out philosophy about the law and the constitution and how to apply it they just don't have the same philosophy so that generates different results. you could say the same thing about the supreme court in the 1930s. different members of the court of different philosophies about
how you interpret the constitution how much deference you out to get to legislative bodies in what areas and that generates some contention in sharp differences but that doesn't mean it's politics. >> i would say i think in early periods i think the court was just not political in the sort of sense of how to their opinions aligned with political ideologies but they were actual politicians. we had in the 19th century where justice hughes ran for president. we had another former president chief justice taft who was appointed to the court. sometimes justices -- the first chief justice resigned to run for governor of new york and that was john jay. during the new deal era justice frankfurter would continue to advise the president's administration and in the 60s judge -- would give him advice. there were periods where the court was even more involved in
the actual and bolts of policy. publishing op-ed articles under pseudonyms to try to influence policy so it may be one of those things where we always opine for the good old days no matter where we were. i'm not certain that's however political it is now is more political than it's been in other periods. >> i do think i'm thinking maybe tom will correct me but this court seems not hesitant to disregard prior supreme court decisions not because -- and i wouldn't call that political but they think they are wrong and they're not going to be deterred by what the prior court held whether that prior court was 10 years ago in the rehnquist court or 30 years ago
and that is why so many of the cases we look at we talked today about maybe they will overturn any number of cases or limit them or change them in some way. i think that's seems to me different then- >> the only other perspective i will give is you can think of the court is becoming politicized from the outside and that is this the country has gotten more divided and more harshly divided in the supreme court is at the same time tackling these big moment is issues like the constitutionality of the affordable care at the court itself become something of a political football and people who don't like the outcome in the case tend to portray the majority of that case as themselves political actors where the people who actually study the court carefully and follow it people are applying consistent philosophies and acting in complete good faith. >> in the tome --
doma decision in the windsor decision of what happens after the decision when the administration has already spoken out on tax law, spoken out on immigration. it is not yet made a decision on social security. were there any timeframes or what's considered a reasonable timeframe to implement? >> well all i can tell you about that is that there are a lot of people in the executive branch working hard to figure out how to do it and there is and one-size-fits-all kind of an answer to it. each statute has different words and different requirements and some can be interpreted one way and some can't so government is working through those and as rapid a way as possible consistent with being thorough and careful and diligent and digging through the legalities of it. they are making fairly considerable progress. >> i think we have time for one more.
>> is it legal pop -- legally possible for the court to say they want to review a case that they had previously decided so for example and citizens united could they get together and say look some assumptions were not right. can we review this now or do we have to wait for another case to come up? and if they can do it come to do you see that happening? >> the fight in the perry case about standing there has to be an actual controversy. there is a lawsuit and it's in front of the judges but what you d.c. the justices doing is signal their interest in revealing a particular question or a particular precedent. where individuated justice might concur in another case we might review the case of x, y of course he or maybe the majority might do that. we are aware of the whole
serious presidents that members of a quartet signal and interested in. allison talked about buckley versus valeo and three quarts of pass down this idea that there's a constitutional difference between expenditures and contributions. that is true across a righty of various line all you have to do is look at the fact when the courts membership changes you can then look at the old 5-4 decisions and think perhaps the court particularly in constitutional they try to keep interpretations -- interpretations of laws statute. >> i want to thank our panelists [applause] they are all experts with extremely busy schedules who are passionate about the law and i'm lucky to have them here with us today. thank you all for coming. for those of you that a hero they hope you enjoy it and for