tv Politics Public Policy Today CSPAN November 26, 2014 1:00pm-3:01pm EST
most other countries. rather, elections are run, for the most part, under the laws of the 50 states. and they are actually administered at the local level literally by thousands of counties and municipalities, each of which has authority for actually running the day to day operations of our voting system at the local level. so we have not just one voting system, nor even 50 in the united states, but literally thousands. the other distinctive characteristic, some would say pathology, of the u.s. election system is partisanship. what i mean by that is that in most states, the chief election
official is someone who is either elected or appointed by their party and runs for office as the candidate for their party or is appointed by someone who was elected as a candidate of their party. that is to say, the chief election official in most states is in that sense a partisan. this creates an inherent conflict of interest between the chief election official's responsibility to serve the interests of all voters to create a level playing field and that official's interest in serving his or her party and advancing through the ranks of his or her party. it is a problem that is, by the way, well recognized among other democratic countries, which is
why the chief election authority in most countries enjoys some degree of insulation from partisan politics. this, however, is unfortunately a lesson that we in the united states have yet to learn. next let me give a little bit of historical context. for most of this country's history, racial minorities, most notably african-americans, have been systematically denied the vote in much of this country. that was still the reality 50 years ago in 1965 when the voting rights act was adopted. there is no question, as brendan pointed out, that things have
changed considerably in the intervening period. at the time of the voting rights act, blacks were systematically kept from voting or even registering throughout the southern states, which are still for the most part the states that were covered, at least as of 2013, when the court decided the shelby county case. so what was the voting rights act doing, and what wasn't it doing? there has been, in recent years, a lot of discussion in the united states of vote suppression, practices that allegedly make it more difficult for eligible citizens, especially racial minorities and poor people, to vote. voter i.d., which you will hear
about in the next hour's panel, is the most prominent subject of criticism by those who complain of vote suppression. but there are other practices, such as registration rules, limits on absentee voting and early voting, that have also been criticized as instances of vote suppression. the perception is that the preclearance provisions of the voting rights act were an effective tool against these vote suppression practices. the reality, however, is that they were quite rarely used to stop those practices. where the preclearance provisions of the voting rights act were most often uses was with respect to what we call vote delugs at the local level.
for example, new lines are drawn for city council elections in the united states, state and local legislative bodies have responsibility not only for running elections, but for drawing the district lines from which people are elected to office. allegations are sometimes made that those lines dilute the strength of minority votes. the preclearance provisions were mostly used -- and in my view were most effective with respect to these local practices at large elections, redistricting and so on. that's what was really lost by the supreme court's decision in shelby county. i'm not especially interested in relitigating that decision.
i disagree with the court's decision. i tend to think that the places that had problems 50 years ago are still the places with the worst problems of race discrimination today. that said, these issues that i have discussed -- i presume we will discuss further in this panel -- making it more difficult to vote and have one's vote counted, these are really national issues. and at some point i would like to see the united states congress take action to establish a baseline of uniform rules for registration, identification and early voting so that the many people who move across state lines in the united states know what the rules will be for voting when they move. as it stands now, if you move across state lines, you may face
entirely different rules regarding registration, identification, when you can vote and so on. we have, in my opinion, a lot to learn from the rest of the world when it comes to the way we run elections, including the protection of voting rights in the united states. >> thanks. i think adding to that list of federal issues ought to be the way -- the interaction people have with voting. what's the machine or the type of voting that takes place. some machines are more accurate than others. a huge issue in the united states is absentee voting. a lot of litigation now comes up about absentee voting. that, too, is different for each jurisdiction. i think now we can turn to what happened after shelby county and what has happened since then. >> yeah. sure.
you know, basically, there was a call almost immediately to update the coverage formula, which was what was struck down in the supreme court's decision in shelby county. it took a little bit nor a draft bill to come out. but eventually one did. so it asked us to kind of think a little bit about what are the options for updating it if the -- if there was a desire to do so and kind of what's the situation if they don't do that? i will start with that latter question first, which is section five was -- as i mentioned, only one provision. section two provides nationwide and does address a lot of the principals and practices that we were speaking about. in fact, it's mainly used for those purposes. trouble is -- not trouble with. the unique feature of section
five was that it stopped things in its tracks before things happened. section two comes after the fact. that was what was lost as opposed to the ability to target the practices. there's a judicial mechanism. there's section three of the voting rights act, which is what's called bail in, which creates a situation where if a jurisdiction is found to have violated the united states constitution in terms of voting rights, then a -- that jurisdiction can be brought into the type of pre-clearance process that section five used to have as a default rule in certain areas of the country. so that's -- that is directly responsive to ongoing constitutional violations and is -- can respond to current conditions in jurisdictions. and then, of course, there's the constitution itself.
there's a cause of action to bring an action against a state, a local -- or a local jurisdiction based on a violation of folks' constitutional rights. all of these things exist. the one thing that does not exist is the prior restraint, the thing that stops practices before they start. to my mind, what's going to need to happen is folks are going to have to think long and hard about, is that prior restraint something that has to come back, or are the claims and causes of action that currently exist sufficient to deal with voting discrimination that exist today? there are things that go on across the country, and nobody will deny it that violate the united states constitution. that's the question in my mind is whether that's going to be necessary. to my mind, the draft bill that was released, i don't think
appropriately addressed that particular concern. i think it was more of a move to do something quickly as opposed to trying to strike the right balance. so in that respect, there was going to be a modification of that section three bail-in that would have responded to not constitutional violations but other types of violations. in my mind in reading supreme court's decision -- this is just as an outside observer -- i wasn't an outside observer. reading the decision in which i have no particular insight any more than anyone else, i don't think that that type of bail-in would be constitutionally sufficient. and then i think a coverage formula of the type that is not going to respond to constitutional violations, but is going to respond to some other types of violations, statutory violations, is probably not going to pass
muster either. those are things that they are going to are to think about. i'm not in charge of any of these things. i'm just kind of observing this from the outside. to my mind, if congress was going to go that route, it would probably be subject to challenge again. would have a reasonable chance of succeeding. those are my views on the landscape of where section five stands after the shelby county decision. >> i don't know if we have discussions about specific states, what's happened. >> sure. let me talk about two things. first, the legislative picture at the federal level, which brendan addressed. secondly, what's gone on in the courts. the bottom line in terms of what our congress is likely to do is nothing. we have enormous party polarization and stalemate.
there has been a bill proposed with mostly democratic support, which as brendan mentioned would create a new coverage formula and would require disclosure of the impact of voting changes. there are some features of this bill i really like, others about which i'm less enthusiastic. but the bottom line is that in this very divided congress, it's not going anywhere, nor is any voting rights bill going to go anywhere. as i mentioned earlier, i would love to see a bill that imposed greater standards at the federal level over all these issues and might resolve some of the con tenuous debates that we have have had in recent years, really since 2000, over voting. but that's not likely to happen
any time soon. so, as is frequently the case, where these controversies wind up being ultimately resolved is in the courts. we have seen a significant increase in litigation over voting rules in recent years, really since the 2000 election which first brought these matters into court. some of the restrictions that i mentioned earlier, voter identification, limits on where and how you can register to vote, restrictions on absentee and early voting, rules regarding the counseliting of provisional ballots, voting technology, all of these practices have been challenged in court.
in fact, in my state alone, every single one of the practices that i just mentioned has been challenged. this is to be expected. when you have partisan legislative bodies making the rules for elections, when you have partisan elected officials for the most part running elections, questions about this conflict of interest that i mentioned earlier aregoing to a. in our system, the institution that is most insulated from partisan politics is the court. so in my view, it's quite appropriate that courts be the arbiters of these disputes regarding the fairness of election rules and whether or not there really is a level playing field, as chad earlier
mentioned. we have seen litigation very recently over election rules. four cases are especially notable. a case in my state, ohio, regarding restrictions on early voting as well as same-day registration. a case in north carolina involving a law enacted right after shelby county that imposed a variety of restrictions on vote, including on early voting, same-day registration, imposing of voter i.d. requirement. and then lawsuits in two more states, wisconsin and texas, both involving voter identification rules. the lower courts have not come out the same way on all these cases as we lawyers say. they are still percolating
through the lower court system. it remains to be seen exactly what the supreme court will do. the supreme court actually issued or got involved in three of these cases just this past year but did not issue an opinion on the merits in any of those cases. i tend to think that its involvement had more to do with its concerns about court orders issued very close to the election than it did about what exactly the court thinks on the myrrh merits of these cases. at some point i suspect these issues are likely to come back before the united states supreme court possibly very soon. >> if you have anything on some of the states in particular. >> sure. particularly in the context of section five, since that's what we are here to talk about, i think it's important to point
out that of the states that were just mentioned, north carolina was partially covered by the voting rights act. there were roughly 40 counties -- 40 of the 100 counties in north carolina were covered. ohio was not. although, covered by section two of the voting rights act like the rest of the country. the state of wisconsin is also not. in terms of particularly in light of the fact that the supreme court ruled on the coverage formula, i think this is a very good illustration of some of the issues with the coverage formula as it existed at the time when -- at the time of reauthorization in 2006 and at the time that it was struck down. we're seeing a lot of these hot button fundamental voting rights cases coming out of areas of the country like ohio and like wisconsin that -- i think anybody could agree that they're just as likely to come out of those areas of the country as they are are anywhere else. we can debate whether coverage
should have covered a lot of the original areas today as well. i think everybody would agree the state of ohio in the last three to five years has been as likely a place as anywhere else to have a big decision come out on fundamental voting rights. it has pertained to early voting primarily in the last couple of elections but same-day registration and some other things as well. and then wisconsin has been in the news as well for voting i.d. in terms of the coverage formula, that's instructive. what we have seen before, during and after kind of the time frame of when the shelby county decision came out from the supreme court is that we're not seeing this isolated problem in certain areas of the country. we're seeing a lot of -- we're seeing problems come out of other areas as well. >> i really almost entirely agree with what brendan just
said. and i do think that this goes to a common misperception about the shelby county case. the perception is that we have seen this massive wave of voting restrictions since shelby county. well, there's really one state where you could say voting restrictions were adopted as a direct response to shelby county, in my view. north dakota. >> right. >> whose state legislature enacted this bill i mentioned a few moments ago. what really triggered the changes was the fact -- if we're going to be honest about this -- that in 2010, republicans did very well in elections across the country so that in 2011, we had a lot of republican governors and republican-dominated state legislatures. and in this country, racial
minorities, particularly african-americans and latinos, vote overwhelmingly democratic. so the allegation and the perception at least among many democrats is that republican legislatures have adopted these rules in order to make it more difficult for democratic-leaning people to vote. that's at least the perception. but it was really the turnover of state legislatures in 2010 that triggered this wave of voting restrictions rather than shelby county. and it is certainly a national issue, voting rights. which is why i in the end would like to see a national voting rights act, a voting rights act for this century. i would prefer that to the
geographically limited coverage formula that we had under the old voting rights act. >> i think in this conversation, i think it's interesting to know that the coverage formula from section four determined which states that the civil rights act applied to in regards to preclearance of election law. section five was what allowed the federal government to look at those laws. but there's still section two in the civil rights act that allows the federal government to prosecute individual cases when they find something that runs counter to the constitution or the voting rights act. i don't know if either one of you -- to put you on the spot. if you think about how turning to section two, if it's still an effective tool, if -- yes or no. and i think the reason why it's interesting, because that's more of the way in which you all would prosecute something would be an individual action of an individual person or party, which is still available under
section two. >> since brendan responded to this earlier, why don't i take the first crack at that question. it's a very important one. section two of the voting rights act prohibits election practices that result in the denial or abridgement of the vote on a race. it's mostly used in vote delusion cases in the past. in cases challenging the way that legislative districts are drawn on the ground that they weaken the collective voting strength of a racial minority group. the important difference between a section two case and the old regime under section five, as brendan pointed out, is that plaintiffs have the burden in section two, right, they have
the burden of showing a discriminatory result. and these cases, as i'm sure he knows as well, can be really, really expensive to litigate, for both sides. there are differences in the legal standard as well. i don't know that we need to get into those here to understand what was really lost by the shelby county decision. so what was lost, i think, is the ability to check voting practices at the local level that are never going to be the subject of the lawsuit. some local school board adopts new legislative districts that are at least alleged to weaken minority votes. the justice department, under our old system, had responsibility for reviewing all
those changes and either granting preclearance, denying preclearance or as it did in many cases requesting more information. so i think that the preclearance requirement of section five was a pretty effective check on minority vote delusion in these cases. it did impose some burdens on state and local government. i wouldn't deny that. but they were modest burdens, certainly in comparison to the burden of actually marshaling the expert evidence necessary to bring or to defend against a voting rights lawsuit. so i do think that something important was lost by the elimination effectively of preclearance. we may disagree on that point. but i do think we agree that that's for better or for worse
the main work that the section five preclearance requirement was doing before shelby county. >> i think what's interesting is the burden of proof almost always is on the plaintiff in an election case. i think in most of the countries that we work around the world, the person filing the complaint has to prove the claim by the standard of evidence. and as we have all known, how does that plaintiff get access to the evidence this need to prove their case? and in an election situation, the time line can be so short that it could be really difficult to gather than evidence. so there's an interesting election issue here in regards to how a plaintiff can actually prove their case and move it to the next level. as a litigator, brendan, i wonder, how long did it take to bring the shelby county litigation? you didn't have 48 hours? >> we did not have 48 hours. this was a facial challenge to
the act. this was not a challenge to a particular practice in shelby county. which is what would you find if someone were challenging a new voting restriction or something like that. by the county against the attorney general. it was to declare it unconstitutional. we filed it in april of 2010 and it was decided in june of last year, 2013. that took us three years. it was expensive. this was not -- section two cases are actually more expensive. they are very fact intensive. he is right about that. as chad pointed out, that's the norm in our legal system and many legal systems. the plaintiff has to prove their case. when we were looking at section five, not only was it a prior restraint on the change in practice, but it put the burden of proof on jurisdiction to
prove it wasn't discriminatory, which was a huge change. so that's, i would argue, as difficult if not more difficult than a plaintiff having to prove their case kind of after the fact. proving you are not discriminating is difficult. you can do it with statistics, testimony from legislators, taking a results oriented approach. but in the end, if you don't prove your case, you can't change your law. actually, i represented the state of florida in a preclearance case that had to do with early voting and other changes a couple of years ago. that burden of proof was a huge issue in trying to convince the court that the change to be precleared. it was a cut back in early voting hours. early voting days, rather, but the same number of hours ended up being provided. question was, okay, well does this discriminate or does it not discriminate? there are a lot of different
ways of proving that. as the jurisdiction having to prove a negative was very difficult. some would say it was intentionally set up that way. right? i think that would have been a particular instance in which addressing it after the fact would actually have shed more light and we do would have ended up in a better place than trying to address that before the thing went into affect. >> i think -- we want to get to a point where we can have questions from the audience. we will turn to that now. i would like to say that i think this discussion is interesting because as we discussed the voting rights that are enshrined in our constitution are being defined by the courts, i think bush v. gore from 2000 pushed a lot of these issues to the forefront. it's interesting to see where we have come. are we better or worse? i don't know. one thing to consider is election administrators, a lot of the machines and reform that took place or machines purchased are now 14 years old.
what's going to happen -- you will see this when you go out and look at -- when you do observation. you will see old machines, different machines. it's very interesting. it is unique that the courts are trying to be the refer r eerere there's different jurisdictions. with that i want to thank the panel for their remarks. i want to open up the floor to questions. no questions? yes. >> what is the language of section five and section four, what is the substance therein? what changes are brought, introduced into the law by way
of section five and section four? what existed previous to the legislation of section four and five? if you will kindly tell us what is the language and what is substance, what is the motive of section four and five? >> great. i will try to repeat the question. for the future questions, if you could identify who you are and then -- so we know who is asking the question, i would appreciate it. the question is, what's the specific language of sections four and five and how is litigation changing that? >> section four created the formula. that's all -- there's a bunch of other stuff in section four as well that pertains to literacy tests and things like that, which are kind of not germane to this. section 4-b basically created a formula whereby the injure di
jurisdictions singled out would be subject to additional restraints. any jurisdiction in which voter turnout was below a certain threshold in particular elections, 1964, '68 and then 1972, would fall within the formula. that was -- that's generally the way it worked. so what that did was you would have to an agency of the united states government go and take a look at the statistics and say, these particular jurisdictions fall within what congress said the formula would cover. then there's the additional regulation of their local elections. whereas, normally there would not be otherwise. in section five -- section five was one of the things that happens by virtue of falling within that formula, that coverage under section four.
there are other ones as well. having observes so it is deployed to local jurisdictions. there's a couple of others. basically, the consequences of section four is targeted just at who is subject to those additional consequences. section five is the provision that the -- that created restraint on changed in election procedures and said, your local injure dicks, if you are covered, you can't change anything until we say so. set out the criteria for determining whether the change can be made or not. >> i think section four and maybe we can discuss it further, it was based on historical practice. who historically had -- i don't flow if professor -- i think that who historically had discriminated. once you determine you met that equation, then the other sections applied to you.
that's what was kicked out by this case. >> so just to very briefly sum up, section five required certain covered states to obtain advance permission from the federal government before changing their voting rules. section four prescribed which states had to go through this process. originally, when the voting rights act was enacted in 1965, it was exclusively southern states. those were the states with the worst problems when it came to the disenfranchisement of african-americans, states like mississippi, alabama, south carolina, georgia. they had the lowest rates of african-american registration and participation. so the formula was designed to capture the states with the
worst problems of voting discrimination in 1965. >> thank you. you say that election in the u.s. is decentralized. every state has their own regulations. so if some voters live in virginia, at the voting day they must travel to california. my question is, first, are they allowed to use the right to -- going to the polling station, if they are allowed, what kind of ballot paper do they have to punch? is it virginia or california ballot paper? thank you. >> great. thank you for the question. the question is, if someone
travels to another state during election day, can they vote at the other state? if so, what kind of a provisional ballot would they use. >> so if someone is going to take your example on vacation or business from virginia to california, they are still residents of the state of virginia. they are citizens of that state under our constitution. and, therefore, would have to vote a virginia ballot, the state in which they reside, which is going to be very different from the ballot that someone in california would see. if you are going to be away from your jurisdiction on election day, what you would typically do, if you want to vote, is cast an absentee ballot before the election. every state allows people to
request an absentee ballot that is typically sent through the mail and returned through the mail. so that is how you would vote if you were someone from virginia who was going on a trip to california and was, therefore, going to be away from your home on election day. >> i want to add to that, in a lot of the litigation now, if there are recounts or challenges to an election in the united states, many times the question of absentee ballots and if they are legitimate voters and whatnot, this is where a lot of the litigation happens is looking at the absentee ballots, as you can imagine. any other -- yes. >> the electoral board member,
in my country we organize democratic elections since 1960. but up until recent, we are facing general election. candidates who didn't get the right of voters they were expecting would like the whole process to be nullified. so we have a lot of protests at the supreme court of our country. government and the electoral body develop important investment. we have a system. we try to decentralize our system both for local elections, senate elections, representative
election and presidential elections. but the regulation is uniform because we have a united country, not a federal country, not a federal -- federal level, state level, no. our country is a united one. but my question is this. how does the american system build confidence of voters on one side and different political parties and their candidates on the other side? because you describe many differences between states of the american federation despite the differences psh, the genera impression we have from outside, we watch the tv, is that the
american people have confidence in their electoral system. how does this system do to build such a huge and permanent confidence? thank you. >> that's a very important -- the question is, how is there such trust in the u.s. system when it's so diversified? how do the courts and the election administration participate together to build trust both of the candidates and the voters? i hope i have that right. i will turn this over to the panel. very quickly, the largest way to increase trust is to win by a large margin. i think also the courts -- our system -- the legal system is diversified. so the courts play a huge role. with that -- do you want to go first? >> yeah. honestly, it's a long history of doing the right thing.
we have got a couple hundred years of history here of folks respecting the rule of law and knowing who the final authority is on whatever the particular question is at hand and respe respecting that and abiding by it. you don't have -- if a court decision comes down after an election, bush v. gore, you might have complaints about the results but you don't have anybody defying it, for instance. i think that's the most important aspect of instilling confidence in our elections is even if you disagree with the result, the state of mind here is that people approach these questions in good faith and that things work themselves out in the end. so you don't presume -- we don't presume bad faith on people's parts in this country, generally, whether it comes to these things. if you see anomalies, you first assume it's a mistake. only later deal with the consequences if it's not. i think that's generally the
ba baseline view we have. how did we develop that? it's an excellent question. all i can say is that we have a very long history of presuming good faith and abiding by the decisions of the final decision makers on whatever that particular question is at hand. >> let me emphasize, there has not always been historically such great confidence in the integrity of the u.s. election system. if you go back 100 years, boy, we had a lot of problems in our system. ballot stuffing, bribery of voters, practices like this. these were not uncommon around that area, late 19th, early 20th century. sometimes later in certain places, most notoriously chicago. even if you just go back a
little over a decade, there was actually a survey that was conducted shortly after the 2000 election which found that among democratic countries, the level of confidence among u.s. voters in the integrity of the previous election was extremely low. i mean, you know, on par -- i don't want to single out any country. countries that are generally not considered to be democratic at all. i do think that confidence in our election system has rebounded considerably since then. it is partly history. let me suggest, it is also, i think at least in part the fact that there's at least some division of authority which chad referred to.
yes, we have partisan state officials. but this decentralization, right, while it has disadvantages has an advantage as well. it makes it more difficult for any one party to capture elections in all of our 88 counties in my state of ohio. we also have divided authority in the sense that courts -- state courts and federal courts are looking over the shoulders of legislatures and election officials, to my view, this is a very sal tory thing that we have courts that are acting as a sort of back stop, stopping partisan manipulation at least where it goes too far. >> great. thank you very much. this is going to be the time to conclude the panel. thank you very much for your attention.
i think this is a unique panel in that it really does illustrate how diverse our jurisdictions are and how we have tried to -- this country has tried to deal with some of these difficult questions in rars to the die verification of our electoral processes. it was very good. thank you very much to the panel for your time. i also have very quick housekeeping to do. the first, i wanted to say that the first breakout session, about voter i.d., starts at 11:00. it will be in the dupont ball room on the second floor. the second breakout section on measuring public opinion at 11:00, that's in room 3016 and 3017 on the third floor.
finally, the breakout session at 1:30 is point, counter point the role of debate in political discourse in the dupont ball room on the second floor. thank you for your time. please join me in thanking our panel i haves. [ applause ] here is what's coming up. next, the u.s. supreme court looks at a case involving the separation of pourers. then dan glickman talks about food security. the heritage foundation hosts an event on jobs and the economy.
a look at tonight's prime time programming across the c-span networks. here at 8:00 eastern, it's remarks from the president of the kennedy center, deborah rutter. she talked about the importance of arts education. we will show you a citizenship conference. they discuss what it means to be a citizen. speakers include retired general stan lee mccrystal. more congressional retirement interviews. our focus is carl levin and ralph hall. these are part of our week long series. this thanksgiving, c-span is featuring interviews from retiring members of congress. watch them tonight through thursday at 8:00 p.m. eastern. >> as much as we accomplished in 36 years -- i don't want to look
back at that so much as to look forward to the next couple months. in the next couple months there's a couple things i would like to do. one is to get my defense authorization bill passed. this is an annual effort, a major effort involving large amounts of staff. i also want to finish up some work on the permanent subcommittee on investigations looking at some gimmicks which are used to avoid taxes. >> i've been a member of congress for 34 years. to get -- finally get beat, if i was a manager for a baseball or a football team and i had a 34-1, i would be in the hall of fame. it doesn't bother me. it didn't bother me to get beat. i wasn't just set on going. i had eight team co-chairmen who were in my district supporting me and wanted me to run.
i did. >> on thursday, we will take an american history tour of various native american tribes. that's at 10:00 a.m. eastern following "washington journal." at 1:30, the new diplomacy center with former secretaries of state and supreme court justices at 8:30 p.m. eastern. that's this thanksgiving week on c-span. for our complete schedule go to cspan.org. thanks for your comments about our programming. here are a few we received about q and a. >> i just watched your program question and answer. i find that very offensive to put someone on line for an hour and on air who knows very little about islam, very little about
the history. she misquoted the koran, misquoted the life of mohammed and his political facts that absolutely are not accurate. refute on very scholarly basis. i find it very offensive and i'm completely shocked, as someone who watches and respects c-span, to see this program. i'm completely, completely shocked. and i dare to say the worst program i have seen on c-span in 20 years. >> i wanted to comment on the q & a on c-span with the author, noni darwish. she has give the most complete and concise, articulated explanation of the muslim religion in the modern world that i have not heard of.
and i am a religious scholar of over 65 years. she should be commended just for this speech. thank you very much, c-span. >> and continue to let us know what you think about the programs you're watching. call us at 202-626-3400. e-mail us at comments at c-span.org. or send us a tweet at c-span #.does. join the c-span conversation. like us on facebook. follow us on twitter. this moment, the supreme court heard argument in zblif vitt to have ski v kerry, whether the congress has a power directing the state department to record the birthplace of an american citizen born in jerusalem as born in israel on a u.s. passport or if this fringes on the president's recognition power. in 2002, congress enacted the foreign relations authorization act which directs the secretary
of state to record israel as the police of birth on a passport of a u.s. citizen born in jerusalem if the citizen requests it. president bush signed the act but issued a signing statement, noting that the provision interfered with the constitutional functions of the presidency in foreign affairs and did not enforce it. these arguments are just shy of an hour. >> we will hear argument first in case 13628, zplif vitt to have skiviller cannery. ms. lewin? >> -- does not amount to formal recognition by the united states of that designated location's sovereign status. this is the principal reason why
congress's law authorizing jerusalem-born steps to carry passports to say they were born in israel is a legitimate congressional exercise of congress' power to regulate foreign commerce -- >> suppose that -- suppose that the president and the secretary of state put on the passport the place of birth, written it out, the place of birth on this jerusalem-born citizen's passport listed as israel at the holder's request. this is neither an acknowledge.by the department of state or president of the united states that jerusalem is with the borders to of the state of israel. could the president, under existing statute and the secretary of state under existing statute, put that statement on the passport? yes, europe. they could put that statement on the passport. >> if congress then passed a law
saying that that statement had to come off the passport, could congress do that? >> yes, justice kagan. the there is no restriction on the initial granting of recognition by the president, but the same token, the congress has the ability afterwards on deliberation to decide if they disagree with that recognition. but in the case that justice keep dish. >> that ever happened? >> yeah. >> in the history of the united states, where congress after the president had declared that it was not recognizing someone, has congress ever recognized? >> yes, justice sotomayor. in -- in 1898, congress passed a joint resolution for the recognition of the independence of the people of cuba over the initial opposition of president mckinlism and that ended up recognizes the independence of
cuba. >> yet you were careful to say at the outset that this is not recognition much the court of appeals tee six, i think it was in the judge table concurrence, said that both parties urge upon us that they -- the power of recognition is involved here and congress has done it. and then of course, the attorney general takes -- takes the opposite position that this, a, this is recognition, and b, that's why it's void. did you change your opinion or am i misinterpreting the way the court of appeals resolve it had? >> our primary position, as i said at the outset is that what is written in this statute does not amount to a farmal recognition of sovereignty because the language of the statute itself is narrow. it begins by saying the narrow purposes of recording a police of birth on a passport or
consular report of birth abroad, that's what this statute provides for. it also does not state that in all circumstance, you have to list israel as the place of birth -- >> the provision is part of a section, section 214. i think you're trying to read d as though it is disassociated from the purpose that's expressed throughout 214, that is, that jerusalem is the capital of israel. congress said that and you are trying to deal with a pest of one section without regard to the us this of the whole provision, congress has said, we think, jer ruse legal is the capital of israel. >> justice begins berg, the that is correct. this section of the statute should be reviewed apt
constitutionality of it be determined on its own, but the court should not look at what congress may have intended by the entire section but rather, what this section actually did and this section, as i said, gives the individuals a choice and does not cop performal recognition. there are benefits that come -- >> you say that, but you say -- i have heard exactly what you said and i think that is certainly a reasonable position. you could read this. and say it doesn't say anything about recognizing anything. the solicitor general of the united states after conferring with the state department says since israel's founding, every president has adhered to the position that the status of jerusalem should not unilaterally be determined bay party and he adds by requiring the president to contradict his recognition position regarding jerusalem in official communications with foreign of
rips, the section unconstitutionally encroaches on the president's core recognition authority. so, he has a different view. he think it is our policy not to recognize jerusalem as the capital, which you have apparently agree with and he thinks that this does have some tendency, at least, to suggest the contrary. now, i'm a judge. i'm not a foreign affairs expert. and when he tells me that and they are foreign affairs experts in the state department, how can i say that i'm right, even if i agree with you, and they who are in charge of foreign affairs are wrong when they make those two statements, which certainly sound plausible? >> two points, justice brireyeb
what goes on a passport a police of birth is not talent mount to foreign sovereignty. taiwan is a perfect example. tie watch, i must interject at this point, because you emphasize the taiwan example and it seems to me it's most distinguishable. taiwan and china main tape from the beginning there is only one china. and so, taiwan is a place name. it's a region. it's in no way recognizing no -- is no question of recognition in the taiwan example. >> that's correct, justice ginsberg, so, what you put on the passport does not automatically -- >> to go back to my question, which i'd like an answer to, i don't think that taiwan is a count er ee counterexample, the fam, foreign affairs manual, says pretty clearly if there is a dispute about the larger power, ie,
china, you always can put in your passport the smaller place of birth, like a city or i would think here, taiwan. so, i don't hear the department, or i guess i'm saying the experts, saying that the taiwan example conflicted with their policy. >> china objected to that. >> china may have -- >> i want an anticipate to this question. not whether china objected or didn't object or so forth. i'm not interested in that. i'm interested in what we, as judges, do when the state department and those charged say those other things were not contrary to our recognition policy. that's what they think and this is. >> so, one last point on taiwan -- >> i would lake the first point. what am i supposed to do? >> what goes on the passport
does not confer benefits of the recognition of sovereignty. this doesn't entitle the foreign go of the to bring cases in our courts to the protection of sovereign immunity or to the active state doctrine. what goes on in passport, therefore, does not amount to sovereign -- >> i thought your position was you couldn't care less if the state department thinks this is going to interfere with our relations with the palestinians. that congress is entitled to do what it is authorized to do under the constitution, even when that contradicts -- let's assume they can't recognize a country, but they can declare war on a country, can't they? >> yes. >> the state department has decided to recognize and to be friendly. congress can do that? >> congress can do that. >> you say can do the same here and the fact that the state department doesn't like the fact
that it makes the palestinians angry is i recall vap. >> absolutely, justice scalia. >> take that position, which explains it, then what do you think of justice story who writes in 1833 that the exercise of the prerogative of acknowledging new nations and ministers and he makes clear that that involves whether a city or region is part of a country, et cetera, he says it's an executive function, some argue, as we -- i think we have just heard, that congress could make that decision, too, but that has only been decided and concludes that a power so extensive in its reach over foreign relations could not properly be conferred on any other than the executive department will admit of little doubt. so he is saying, of course you have to of one person deciding
such a thing and that has to be the executive. that's 1833. pretty knowledgeable about the founders' intent. >> but that is a rather extreme position, number one, to suggest that the executive branch would have not only the authority to recognize a foreign government, but also at the state department's say so, that automatically would end their question or any review by any other branch and the state department merely says -- >> review the power of the purse and there's always review with not appointing an ambassador there is a review in a variety of alternative ways by congress, just maybe not the way you could prefer they pass a resolution contradicting that, that would have any legal force. >> there is review and respond
to justice sotomayor and justice breyer, justice story recognized that authority of congress to review, justice story also said if such recognition is made, it is conclusive for the nation unless, indeed, it can be -- an act of congress repudiating it and said further if the president rae fuses to recognize, then he said congress may, not with standing, solemnly acknowledge the sovereignty of the nation of -- >> and i suppose you could also say hamilton in 1787 or whatever it was trumps story in 1830, right? he said pretty much the exact opposite, that the recognition provision was really a trivial formality. >> hamilton also switched his position for he was in the administration an after he was in the administration. what that would seem to show, mr. chief justice, it is not clear the history -- [ overlapping speakers ] >> in any case this is not your main point, is it? you're being -- either forced
into or willing ly yield yoursef to arguing against the proposition that if this is recognition, it is invalid, but your main position is this is not recognition, it just has a effect on the state department's desire to make nice with the palestinians and your position is congress has no -- no compulsion to follow that, assuming it can't recognize. >> that is correct. >> you don't claim that this is recognition? >> we do not claim that this is recognition. in fact, there is a -- >> if you asked -- one factual matter i'd like. i see in the record that your application for the passport asks for jerusalem, israel, but that was changed. was it changed in litigation? was there an actual official request to change it in your application? >> the initial request was made
purely because of a misunderstabbing of what the law initially required. >> answer my question. did you apply formally to have it changed or did you just take this position in litigation? >> the position was then subsequently taken in litigation but in subsequent renewals of the passport, too, it has just about -- the request of israel be put on the passport and it has come back with jerusalem. >> may i ask you another factual question, when menachem was born, was he issued a birth certificate by the israeli authorities? >> yes. >> and the united states recognizes that as -- as a lawful exercise of israeli authority to issue a birth certificate for a child born in jerusalem? >> i believe they do, your honor. >> so, this is a question i would ask the solicitor jeep, but i don't completely understand what the position of the united states is regarding
israeli sovereignty over jerusalem. i understand it is the position of the united states that israel does not exercise full sovereignty over jerusalem, but in this instance, the i shall what happens of a birth certificate and others i can think of, i suspect the united states recognizes that israel is lawfully exercising attributes of sovereignty over the territory of jerusalem. is that correct? someone, say an american step committed a crime in jerusalem, the united states take the position that the israeli government has no lawful authority to prosecute that person for the crime? >> had i do not believe so, your honor. i believe that they would feel the israeli government has the authority to prosecute that crime. >> ms. lewin, if i can ask you, if your primary position is that this is not a recognition statute, can we talk a little bit about what it is? i mean, why -- what is the design? what is the effect of this
statute, other than as something that goes to recognition? >> this statute is a statute that was created to give individuals the right to self-identifying as they choose that they were born in israel. >> the united states government does not usually give people that right toself identify in this way. in other words, i think this was the chief justice's question in the first argument, if you are an american citizen born in northern eyiered will a, you can't get the right to say ireland. for that matter, if you have an american citizen born in jerusalem today, you can't get the rights to say palestine. this is a very selective vanity plate law, if we might call it that and it's selective because congress had, it apers to me, and consistent with the rest of the statute, as justice beginsburg said, a real view that this was the self-identification it wanted. in other words, the ability of american steps to say, yes, i
was born in jerusalem and that means i was born in israel. that and only that self-identification is allowed. >> this statute was rectifying a misguided policy of the state department which enabled individuals born in israel proper, whether in tel aviv or in hive fa who were opposed politically to the state of israel to remove that of rip to remove reference to israel from their passport but it did not allow the flip, it did not allow those born in jerusalem and who liveder the of rip government of israel, who wish to put israel on their passport to put israel on their passport. what this -- >> what about those born in jerusalem and want to have pal les stipe as their place of birth? that didn't existed until 1948, that. ing of. >> correct, justice begins berg, because there was, before 1948,
a pal les stipe, so the law was not going to -- >> people -- palestinians cannot, american-born palestinians cannot do that. and that suggests that congress had a view and the view was that jerusalem was properly part of israel. >> and that is because this statute was dealing with a existing sovereign that you either remove from the passport or put on the passport. they weren't complicating the situation by putting in non-recognized of rips or other enter test. they said you either put it on or you take it off. we will give you the choices. >> in bars lope nah, spain, is that citizen allowed by the state to put barcelona as place of birth? >> if they wish to remove the country of birth and list the smaller entity, yes. >> is that a vanity plate for people who believe in cat tall lane independence? >> it is naming an individual to
exercise their choice to self-identify as they choose. >> but again, your argument and you're consistent on this, your first argument is that this is not recognition. now, suppose the state department and i think this is its position, this is recognition. if we deferred to the state department's judgment, to the government's executive judgment on that point, then the government said this is recognition and you say it isn't recognition, why doesn't the government trump? if the congress really wants to test its power, it can pass a law saying you must recognize israel as being the legitimate government of pal les tape is. not done that and since it has not done that, it seems to me that the government argument trumps. >> justice kennedy, you are correct. the way the balance of powers works is that the executive branch has the right to recognize the sovereign, however, if congress
deliberates, passes legislation and that legislation is signed into law, then congress's position trumps. >> but you say this isn't recognition so that ultimate conflict is not before us. and therefore, the government's policy says this recognition should be given deference and it trumps. >> well, your honor, if does not amount to recognition then congress had the authority to pass this legislation pursue want to its passport -- >> i guess there are competing canons here. one, i suppose we listen to the state department on matters of foreign affairs, i suppose another one is we do not hold an act of congress to be unconstitutional and there by ineffective. so, that seems to be a draw, doesn't it? the state department says this amounts to recognition and
congress says, whether it does or not, we want this person to be able to list israel. >> that's correct. and since this was signed into law bay the president, the law right now trumps whatever the executive branch may say. >> can i give you a hypothetical, ms. lewin? suppose congress passed a law and this law said that the secretary of state had to send a official letter to all foreign ministers whenever a u.s. step was born in jerusalem and that official letter from the secretary of state said -- says just -- it announces that a new american has been born in israel. would that be constitutional? >> excuse me, this would be a law passed -- >> this is a law passed by congress and it says every time a u.s. step is born in jer ruse hem, the secretary of state has to send an official letter to every other foreign minister saying that a new american has been born in israel. yes, that would be constitutional. that would be constitutional?
even though the -- the congress is basically telling the secretary of state to engage in a certain kind of diplomatic communication with other foreign countries? >> the description of the law that you provide seems to be very similar to what a passport does. a passport recognizes an individual as an american step for purposes of kmaup kating that information to the foreign government. >> yes, exactly right. that was going to be my point, that it was. [ laughter ] but it was extra emily similar to what a passport does, both are forms of diplomatic and communication and that what we usually say about diplomatic communication is that whatever congress' other foreign affairs powers are, the power of diplomatic communication belongs to the president and the president alone, that in that realm, we only speak with one voice and so i guess i have to sort of say that that anticipate that you gave me that this
could ---le congress could say to the secretary of state, here's the diplomatic communication that you have to send to other foreign ministers seems, well, a little bit shocking. >> but recognizing an individual as an american citizen facilitates the transfer and the movement of american citizens across borders much this passport, if it were to list israel pursuant to this law would be indistinguishable from all the other passports from individuals born in tel aviv or hive fa or any other individuals in israel that passport, when shown, would not be making any kind of political statement. it would merely be identifying the individual by their name, date of birth, police of birth, as all american passports of individuals identify -- >> so you would say that in justice kagan's hypothetical, maybe the letter that's required to be sent to every foreign head of state would be unconstitutional, but that doesn't mean that the passport is, because the passport is used primarily for purposes of
identification and it's only the letter that makes it something else. >> correct, justice. >> you want us to write -- >> if you say that. justice kennedy, do you want us to say, in our opinion, that this is not a political declaration? >> this is not a political declaration. that's correct, justice kennedy. >> well, i'm not sure why congress passed it then. >> congress passed it to give these individuals the right to self-identify as they choose because individuals, in general, have that ability on their passport to choose -- >> i thought it was a federal crime to say that you were born in the united states when you weren't on an official document. so, why -- why is it that it's okay for congress to say something that hasn't happened? meaning, to say that someone born in jerusalem is actually
born in israel? somebody who was born in taiwan say i was born in america? >> since -- >> self-identify all they want, but can they do that? >> yes. since 1948, israel has acted as the sovereign over we were jerusalem, where our client was born and since 1967, over the entire area of jerusalem. >> i know that it's -- the u.s. recognized -- has any president since 1948 recognized israel's sovereignty over that area? >> in a formal sense? no, but allowing individuals to recognize that, that would not be a false statement. >> ms. lewin, may i just -- if i might just go back to the thought that the chief justice gave you that you agreed with,s here the way a passport begins, it begins the secretary of state of the united states of america here by requests all who it may
concern to permit the step, blah, blah, blah. that's what -- that's the secretary of state requests all of these who are going to being looking at this passport and then in hague v agee, we described the passport as a letter of introduction in which the issuing sovereign vouches for the bearer and requests other sovereigns to aid the bearer. so, this is -- this passport, it seems, both in what it says itself and what we have said about it, it's like a letter from the secretary of state. it's a communication. >> it is a communication merely to facilitate this transfer of individuals as american citizens, not to make public statements about where they were born or where they're from or what countries the kbroonds recognizes. i may reserve the rest of my time. >> thank you, counsel. >> mr. chief justice and may it please the court, let me get to the heart of the problem with section 214 d.
even if section 214 d does not officially change or formally change the recognition position of the united states, it tries to demy the president the power to give effect to our official recognition position by forcing executive branch officials to issue official diplomatic communications that contradict that position. >> what if there were a law that said precisely pretty much what you just said, the law says, okay, mr. president, you can recognize whoever you want, but if you recognize this country, this government, we are gonna treat it as if you haven't recognized this government, for all purposes of domestic law, we are going to pretend -- we are going to operate on the assumption you have recognized this country. >> i think there would be limits to congress's ability to do that. we think that the recognition power that the president possesses necessarily includes the power to give effect to recognition. >> so, that law would be unconstitutional? >> for -- yeah, to the extent for all purposes, yes. >> exactly what the tie watch
relations act says? >> what it says is the absence of diplomatic recognition shall not affect the application of the laws of the united states with respect to taiwan. >> no, mr. chief justice that's quite different. the taiwan relations act was an act that was an exercise in the necessary and proper power to implement the president's foreign relations judgment about how taiwan -- >> let's say the president did not want to recognize taiwan and congress passes a law that says for every purpose under american law, we will treat taiwan as if it had been recognized. that might raise a serious constitutional question, but that suspect the situation that was -- it wasn't the case when it was enacted, not the case now and it's ditch from the current situation muchle fundamental problem with section 214 d is it purports to try to force the executive branch to issue official diplomatic communications that contradict the position of the united states. >> is that really true? could congress pass a law saying
that every passport, every passport issued to a american citizen must list place of birth, including country and the for that purpose, the country is the nation that issued the birth certificate to that individual? could congress do that? >> i -- i think that that -- that in a situation like that, the court ought to defer to the executive branch's judgment that the place of birth listing can have significant diplomatic consequences. we have had policies in place for decades in this country that align place of birth designations with our official recognition policy. the reason we do that is because foreign of rips look it these communications as indicktive of where we stand. [ overlapping speakers ] >> if it is within congress' power, what difference does it make whether it antagonizes
foreign countries? >> there are certain things within congress' power that antagonize foreign countries that wouldn't raise a separation of powers problem, like a trade embargo. this may be one of them. a flap that upsets foreign relations doesn't prove a thing. >> the critical point, your honor, is that what this statute does that those other statutes don't do, is it requires the executive branch, the president himself and the executive branch itself to communicate a message that contradicts the official recognition position of the united states, undermining the president's credibility and preventing the president from being able to speak with one voice. >> why couldn't you have a disclaimer of the kind that i've explained to the petitioner's counsel? she said that would be perfectly well to say not the position of the state department, this is not an indication that israel is -- has jurisdiction over jerusalem? >> europe -- >> why wouldn't that solve the problem? >> it doesn't solve the problem
because the issuance of the disclaimer is the credibility hit. it undermines the credibility of the president because what is -- think about whats's actually saying. what it's actually saying in this context, yes, issuing thousands of passports that identify persons born in jer juice legend being born in israel. yes, the congress of the united states required that. but pay no attention to it, really recall doesn't have any bearing. >> if it were such a big deal, why did the chief executive at the time sign it? >> well, the chief executive issued a signing payment, which really was, in effect, a disclaimer in 2002. president bush's statement said in 2002, this does not change our official recognition policy and we are going to be treating it as advisory and that did not have the effect of -- >> so we should give no weight to the fact that the chief executive signed the law that's now saying has such a dramatic -- his successor, i gather the position is the same, is now saying has such deleterious effects on american foreign policy?
as a general matter, does that have any consequence at all? >> i think this court held in meyers that the fact that one president signed a law into -- signed a law that violated the separation of powers doesn't have any effect. i'm not suggesting it does, although that's separate question, it does go to the credit of the aer ises this is going to have such dramatic folks on american foreign policy. think the credibility of the assertion is proven by history, mr. chief justice, even though president bush issued the same which said that didn't change the policy of the united states and we weren't going to enforce it because he was treating as advisory the consequences that ensued in the middle east in october of 2002, that there were mass testimony mop stations in jerusalem, thousands of people in the street, some turning violent. the palestinian parliament met and voted for the first time to dechair jerusalem the capital of the palestinian state, in longer forebearing on that issue and if you look at -- >> but that's partly because the executive branch made such a big
deal out of it. they i shall issue a statement saying this is unconstitutional and all that, could have easily said this is no big deal, they are just letting whoever is going there pick the name they -- born there pick the name put on, nothing to see here, move on and we are proving that by going ahead and signing t and over intervening course, the executive hasty hit gated this as a self-fulfilling prophecy it is going to be such a huge deal. mr. chief justice, with all due respect, i think on this question that you're asking me, this is a place where the court should accord deference to the judges of the executive branch and the state department in particular. the state department had thought, if the executive had thought that it could solve the diplomatic problem by minuimizig the affect of this provision, pretending it wasn't going to have this effect, certainly, they would have followed that court. >> not necessarily. what they are asking to you do, they are asking the government to lie. >> i think that -- that that -- >> i'm not -- that's exactly what you're saying the
government should -- the executive department should not do. i do think the problem here is that the executive made a considered judgment in 2002 that this couldn't sensibly be handled that way. >> how are we saying -- what if it just says disputed, parentheses after it, disputed, then i gather they wouldn't be lying, they would be telling the truth? >> well, i don't know. a couple things about that. first, europe, that would have the effect of identifying the passports that were issued to people born in jerusalem, 'cause that would be the were to put it on. beyond that, it isn't disputed as a matter of the official position of the united states. the position of the -- >> it's disputed as a matter of the government of the united states. part of the government says this. well, actually, no, i mean, congress is not saying under my hypothetical this is real. it's saying there's a dispute about it, which i would think is about as true a statement as you can make. >> there is a dispute certainly among the parties of the region,
i think the whole premise of petitioner's argument here is within the government of the united states, there isn't a dissput over the recognition issue. >> can you help me with this same question, but how should we approach it generally? that is to say, i think a step where a similar statute is serving another other than administrative matter, the passport should be red or something and i can think of instances where it cause a lot of trouble. i can think of instances like this one and i could -- and you could easily replicate this controversy with israel in our imaginations, similar controversy with done netsing and t -- donetsk and the ukraine, similar with russia and something comes up or iran and that russia once invaded the northern part of iran and all over the world, there can be similar kinds of problems, where it's debatable what the words of
a passport actually mean or how they will be taken by others and what others will think they mean. now, how do we who know little about it determine when it gets into the realm that we should stay out of it and let the president and constitution gives him that power or should some think we should always intervene, perhaps some never, what in your mind is the right standard? how do we decide? >> the court the last time the case was here ultimately it was up to the court to judge the constitutionality of the statute, we accept that. but in doing so, we believe it is quite important that the executive branch get deference on judgments precisely the kind that europe has identified and this statute is a very rare passport statute, really suspect any passport statute like this one that purports to interject an issue of recognition policy into the content of passports. >> if we agree with the
petitioner, we do not have to confront the constitutional question, whether the president has exclusive power over recognition. if we agree with you, we are going to have to craple with that constitutional question, right. maybe you want to talk about t >> let me -- i'm delighted to talk about it, but before i do, let me actually address at a. i don't think you necessarily have to address the question of exclusive power to rule for us and that's why. giving the petitioner's position that 214 d does not change the amicus brief staying does not change official recognition in the united states, that's given, the official recognition position in the united states is that we are not recognizing any nation's sovereignty over jerusalem at this point until the parties work it out w that as a given, the separation of powers problem with section 214 d is that it forces the executive branch to engage in
diplomatic communications that contradiction our official recognition position and undermine the president's credibility and that -- >> if it does, then their argument is going to be -- it does amount to -- if it does contradict it, then congress is making its own judgment about recognition, so you have to confront that. are they entitled to do that? i don't see how you can avoid that question. >> well, i'm happy to address it i'll address it now, i think you can decide the question on the ground i just decided without ultimately resolving -- >> say that at a minimum the petitioner has cop seeded that it is not clear that this is recognition? >> yes, that's certainly the case. and therefore, we take as a given that the president's position of recognition, which is the same position of every president going back to truman is the position of the united states and the executives being forced to issue communications that contradiction it >> if i may -- >> the requirement of police of birth on the passport that doesn't come from the congress. that comes from the executive,
right? >> that's correct. there's a long-standing policy there. and i thought that the purpose of birthplace, identify by the government, by the executive, is to identify the person and it's not something the president or executive required to you the of a foreign policy concern. the purpose of it was to identify the individual. is that -- suspect that right? >> yes, that is its primary purpose, even though that's its primary function within the passport it has the effect of raising diplomatic foreign policy issues about our recognition position and that is why we have had in place official policies in the foreign affairs map ul going back to the early 1960s that the line decisions, a police of birth, with our recognition policy and in fact, before the -- they were formalizing the manual, they should stretch back to world war
ii, just inhe have vittable that foreign sovereigns will react to the way in which the -- the information that we put in that -- >> this is a pretty rough way to identify someone. i mean, there are hundreds of john smiths in the united states. >> no, that's true, justice sotomayor. and this question about whether a police of birth designations are necessary on passports is actually one that congress asked the comptroller general to study back several decades ago and there were a series of studies made and the conclusion of those studies, which you can find in the current version of the foreign affairs manual, but the one on the state department's website, have to have them two reasons and the first, very of the foreign nations require place of birth information that let you travel to that nation so it's going to be highly inconvenient, not in the passport. and second, law enforcement and counterterrorism officials were quite concerned that passports were going to be less effective in their efforts if you radio he
move the place of birth designations. can i ask you a question i asked ms. lewin. what exactly is the position of the executive regarding israel's exercise of sovereign powers in jerusalem? is it the case that it is the position of the executive that israel cannot lawfully exercise any of rip powers with jerusalem? >> the position of the executive is that we recognize as a practical matter the authority of israel over west jerusalem with respect to the rest of jerusalem, the issue is far more complicated. might be, as a practical matter, although i confess i don't specifically know the answer of the question you asked about the status of the birth certificate issued there might will be as practical matter we would accept it as evidence of birth. of course, we would -- >> it must have been accepted as evidence of birth or the passport would never have been issued. >> with he do have the consular notification. i thought you had to provide a birth certificate in order to get that. >> that is right. that is a practical matter. i don't think one can infer anything about our recognition
policy from that we are recognizing practical reality. i do think for example, your honor, if we were to start issuing passports to people born in that -- in crimea tomorrow that identified russia as the country of birth, that after -- carry obvious implications for our foreign policy position and it would contradict the foreign policy position in a way that would be quite deleterious. let say -- passports are printed in country a, not the united states, and there's a printing plant there, and congress passes a law that says, no, you must have the passports printed in country b because we don't think you should recognize country a. does that interfere with the president's recognition power? >> i'm trying to give you a precise answer to that if the statute said, passports may not be printed in country a because the united states does not recognize country a, that -- >> because congress wished the president would not recognize
country a, so, in response to that, we are directing that passports that are now printed in country a be printed in country b. >> that would be a higher case than this one, i think, because it doesn't as clearly implicate the president's ability to give effect to recognition power and one reason it doesn't is because that doesn't affect the content of the diplomatic communications section 214 d does. >> i thought your position was that the president has the exclusive right to decide what interferes with his recognition power. >> no, i think that the president has the right to give effect to his recognition power and congress cannot try to command the executive branch to act in a manner itself that contradicts the president's recognition decision because they say that prevents the president from giving effect to this decision and we think to go back to your honor's decision, it is an exclusive power of the president it is, after all, recognition is not lawmakering, it is an executive function and one would therefore expect that it be assigned to the executive
by the constitution and not to the congress and when -- >> war making is an executive function, too. but that -- the -- with respect to -- with respect to the executive functions around recognition, when congress wanted -- excuse me, when the framers wanted the congress to play a role, the constitution envisions a role for the framers and those executive functions, it's prescribed. article two gives the senate a role in confirming ambassadors, it gives the senate a role in advice and cop sent for treaties and there isn't anything in article two as a structural matter that give congress, the senate or congress a comparable role with respect to recognition decisions. >> if i take that congress generally -- congress has the authority irnd the constitution to require identification information in passports and to specify the identification information that's included, if
i believe that, then the effect of your argument, i guess, is that something that congress can do is unconstitutional if affects the recognition power that the president's recognition authority in some way. is that -- >> no, our position is narrower. i think all you need to decide to decide this case in the government's favor here is that what can't congress do is use the authority it has to regulate passports and we acknowledge, as we did in our brief, the congress has the authority to regulate passports, it can't use that authority to command the executive branch to issue diplomatic communication that contradicts the government's official position on recognition. and then -- >> i don't like -- just keep going back to the same i can this. it seems to me that you could draft a statement that actually furthers your position. this passport does not indicate that the government of the
united states and the secretary of state recognize that israel has sovereign jurisdiction over israel and you're actually making your case. i appreciate the appeal of that ideaing justice kennedy, but the problem with it is that the need to make that statement doesn't further the diplomatic -- >> i think it's -- >> but it doesn't further it? why doesn't it further it? >> because the very need to make the statement calls the credibility of the president's representation of our recognition position into question and -- >> signing statement. >> excuse me? >> just like the signing statements, precisely what justice kennedy suggested, ex-executive could do at this point. did not have -- and i think at this point, the signing statement was in the nature of a disclaimer and it did not prevent the damage to the credibility of the united states. >> i think the answer to the
question ms. lewin gave was that she said yes, executive could put that on the passport, but she also said congress could then pass a law saying this is antithetical to our view and that doesn't have to be put on the passport. on the passport is just birthplace israel, period. could pass that law and counter the president does. and i do think that is the necessary implication of the petitioner's argument here, not only that congress could forbid a disclaimer, but congress could require the -- >> but that law isn't in front of us. >> but will the court uphold the constitutionality of the law that is in front of you? it seems to met necessary implication of that would be that congress could prevent a disclaimer it could require not just that israel be list bud jerusalem comma israel be listed as the country of birth and seems to me that those are very serious interferences with the -- >> general, if i'm understanding
your narrow holding just so that we can underscore it, what you're saying is that congress can't compel speech by the president with respect to foreign relations. i would put it a little more narrowly, your honor, that congress cannot compel the executive to issue diplomatic communications that cop tra duct the official position of the united states on a matter of recognition. i think that's all -- that's the question before the court in this case. i pick up this passport and it says mace of birth, israel, do i know whether this person was born in jerusalem or in haifa? >> no, you don't. >> so how does it -- how does it -- how does it advertise to the world that the president is contradicting himself? all you know is that the person was born in israel. could have been anywhere in
israel? >> the world knows that we will issue thousands of passports to people born in jerusalem, identifying them as born in israel. and the world knows that we will be doing that because the congress of the united states required it and those actions -- >> it is not a communication contained in the passport itself, is it? >> yeah. you're just saying that this -- this piece of legislation advertises to the world what the situation will be, but you're not compelling the president to say that this individual was born in jerusalem and we are going to say he was born in israel, because you can't tell that >> you're requiring the president to make statements thousands of times that con that duct the official recognition position of the united states. now, it is true at a border guard in a country where a person is traveling won't know if this particular passport is one of them, i suppose unless they ask for police of birth information, but -- city of birth information, but unless
they ask that, they won't know a particular passport, but what everyone will know, what foreign sovereigns will know, what the parties in this region will know is that thousands of times, the executive branch is issuing passports that contradict our official recognition position. >> jeep, general, when i travel abroad and come back to the united states, or when i go to a foreign country and they are stamping my passport do they have forms that require you to identify the city? >> i'm not aware that they do, your honor. i don't know the answer to that i'm not aware that they do. but -- >> i know that some of them do. i know that some of them -- >> well, they may well, europe. but i do think the essential problem with what 214 does is that it tells the executive to communicate a message that the ex-ingtive believes contradicts our position and undermiles the president's credibility as our sole spokesman in matters of
diplomacy and is there not a issue on which the president's credibility could be more important than the question of the status of jerusalem. the question of the status of jerusalem is the most vexing and volatile and difficult diplomatic issue this nation has faced for decades it goes all the way back to president truman and the fact of the matter is that the parties in the region, nations in the region, people around the world, governments around the world, scrutinize every word that comes out of the united states government and every action that the united states government takes in order to see whether we can continue to be trusted as an honest broker who could stand apart from this conflict and help bring it to resolution and there is no doubt that section 214 d, when it was enacted, had a serious adverse effect, calling our credibility into action. you can just look at the statements from foreign parties in the joint appendix, the state
department communique, pages 231 to 233, you can hook at contemporaneous press accounts from that time and seems to me, without, of course, if we were required to implement this try to do everything we could to mitigate the problem but seems to me, the right -- it is quite important for this corporate to understand that there is a very serious risk that that harm to our credible az an honest broker on this very serious vexing issue will be called into serious question. >> why would that be so, no matter how this court decides, everyone will know what the position of the president is, everyone will know what congress thought when they passed this legislation. whatever we do, that's not gonna be changed. and our decision isn't going to be business old any view that we may have about whether swrer ruse legend should be regarded as part of israel or the capital of israel. so, why is -- will there be any effect on foreign policy, except by people who will misunderstand
the situation? their intent either because they really don't understand it or they will exploit it in some way. >> i have got at least two points to make about that, if i could. first, it's not a misperception, it's an accurate perception, one looks at 214 as a whole, not just 214 d. what 214 does is try to force the executive branch to take a series of steps that no nation would take if it did not recognize the sovereignty of israel over jerusalem and nations would only take if they did recognize. >> congress did that. so, nothing that we do is going to change that or change what congress thought. >> i think that's -- with all due respect, too easy a assumption your honor, the difference between when the statute was enacted, give rise to serious problems that we had to work very hard to try to get under control, the difference between then and now, there's two very important differences and they lead to a very important conclusion much the first important difference is it won't be one branch of the united states government saying
that this should happen, two branches of the united states government staying should happen. it won't be that we will, this statute will have been enacted but ittant would be enforced, it will be enforced apt consequences of those two things together, the credibility of the executive, the credibility of the president on this fundamental question of where the united states stands on the status of jerusalem until the parties work it out will inevitably and seriously be called into question and into doubt. foreign governments, foreign peoples will not be able to have complete confidence that the position that the president announces on behalf of the united states is, in fact, the position of the united states. that is exactly why section 214 violates the separation of powers, even if you conclude that congress might have some residual power, which we obviously strongly disagree work the official position of the united states is that jerusalem, we don't recognize any nation's
sovereignty over jerusalem until the parties have worked that issue out on their own what this statute does, if enforced, will undermine the credibility of the president's ability to maintain that critically important diplomatic position as we move forward. thank you. >> thank you, general. ms. lewin, you have four minutes remaining. thank you, your honor. just a couple of points. justice sotomayor, this is not requesting that the government lie on a passport. as the solicitor general said, it is just recognizing a practical real that israel is -- >> no, it's not, it's the place of birth. if you say israeling you believe that you are saying that you believe that person was born in israel. yes, well, seven years prayer to the passable of this legislation, congress passed the jerusalem embassy act and in the senate briefly. , it's actually -- amicus brief referred to in a footnote ten which require that the embassy be moved to jerusalem and
provided the -- >> and there was waiver provided and every president has exercised the waiver. >> so, this would be the recognizing, as was said before, is there a disagreement. >> tell me it's not a line that, the united states, are being asked to put on the passport that you believe the place of birth of this individual is real. and the government and the executive has said, no, we don't think it was israel, we think it was jerusalem. >> but the speech is the speech of the individual who -- >> the individual's not the one issuing the passport, it's the government. the document says this is a diplo patek exchange between sovereigns. >> but we are permitting that speech ben it comes to west bank gaza strip, a host of others, we are recognizing and allowing that speech. >> i take it when you say the west bank, you take it you think congress could pass the identical statute to a child born in hebron, you say? >> saying that -- >> that that, too, is real? >> correct.
>> yes. >> we are providing two alternative arguments, justice kennedy, one, saying that this does not am to recognition or if the court decides to reach the separation of powers question and views this as somehowism plic kagt the recognition clause that, at this point, the law passed by congress would trump the president, allowing the state department's say so to control because it's an expert in foreign relations would be abdicating an independent function and turn the president into a autocrat whose word controls. we suggest this is a -- analogous the president's authority to enter into executive agreements to resolve foreign claims and that justice though that is not an explicit authorization provided to the president, it is also not exclusive and agreements entered into by the president cannot contra duct or run counter to the express will of congress. with regard to the international response to this, the
consequences, first of all, described by the solicitor general are grossly exaggerated and what the world knows could be the -- first of all, the united states state department could be clear in your statements as the united states policy with regard to sovereignty over jerusalem. and because the passports would be indistinguishable from those who are born elsewhere, there's no continuing statement. while this may initially have some impact, over time, i propose a short time, particularly if the united states makes that statement, this will become a nonissue. >> this seems a particularly unfortunate week to be making this kind of, oh, it's no big deal argument. i mean, history suggests that everything is a big deal with respect to the status of jerusalem. and right now, jerusalem is a tinderbox because of issues about the status of an access to a particularly holy site there.
and so sort of everything matters, doesn't it? >> well, the -- it is a sensitive issue, but to suggest that what will go on a passport as a place of birth is going to implicate make it worse, there's no evidence of that. thank you. >> thank you, council. case is submitted. and some news out of the u.s. supreme court today. according to the "associated press," associate justice ruth bader ginsberg had a stent placed in her right coronary artery. a spokesman said the 81-year-old ginsberg had a procedure after the blockage was found. she's expected to stay in the hospital for the next 48 hours or so. >> next, former agriculture secretary talks about food security. after that, the heritage foundation hosts an event on jobs and the economy. and later, a discussion on health insurance marketplaces.
here's a look at tonight's prime time programming across the c-span networks. here on c-span 3 at 8:00 eastern, it's remarks from the president of the kennedy center, deborah rutter, she talks about the importance of arts education and cultural diplomacy. on c-span 2 at 8:00, we'll show you a citizenship conference, civic, business and education leaders discuss what it means to be a citizen. speakers include retired general stanley mccrystal. and on c-span at 8:00, more congressional retirement interviews. our focus is michigan democratic senator carl levin, and ralph hall. these are part of our week long series. >> c-span is featuring interviews from retiring members of congress. watch the interviews tonight through thursday.
>> i want to look forward to next couple of months. in the next couple of months, there's a couple things i'd like to do. one is to get my defense authorization bill passed. i also want to finish up work on permanent subcommittee on investigations. looking at some gimmicks which are used to avoid taxes. >> i've been a member of congress 34 years. and finally get beat if i was a manager for a baseball or football team, and i had a 34-1. i'd be in the hall of fame. i had 18, co-chairman in my district that were supporting me
and wanted me to run. the new diplomacy center in washington with former secretaries of state. and supreme court justices clarence thomas, alito and sonia sotomayor thanksgiving weekend. that's this thanksgiving week on c-span. for our complete schedule, go to c-span.org. mr. glickman is a senior fellow at the bipartisan policy center. this is about an hour, 15 minutes.
good morning, ladies and gentlemen, working to develop a program in agriculture and food security, teaching a couple of courses in that area. i'm delighted that in our continuing seminar and internation international. we have dan glickman here to talk about food security and government dysfunction. can progress be made in the current environment? dan is executive director of the aspen institute's congressional program, a nongovernmental, nonpartisan educational program for members of the united states congress. he's also senior fellow at the bipartisan policy center which promotes bipartisanship in addressing the key challenges that confront the united states. at bpc, reco-chairs the
political reform, democracy project, nutritional and physical activity initiative and the task force on defense budget and strategy. secretary glickman, secretary of agriculture from 1995 to 2001. before that, he represented kansas' fourth district in the united states house of representatives for 18 years. during that time, he served in the ag committee. he was chairman of the subcommittee responsible for programs for six years. he also was an active member of the house judiciary committee and served as chairman of the house permanent select committee on intelligence. two other interesting features of dan's cv, he served as chairman of the motion picture association of america from 2004 to 2010. and he also served as director of the institute of politics at harvard's kennedy school. during 2002 to 2004. dan, we're delighted to have you
here today. and welcome to the podium. >> well, thank you, bob. and i'm most appreciative. bob thompson is my hero. if you had to ask me the smartest man in the world, or the person i think is the smartest person in the world on agriculture policy is this man who just introduced me. and so, many of you are privileged to have him in your class. he's, of course, been dean of agriculture at perdue, the world bank, usda when i was a congressman. and i think he still likes me even though i think it's probably during the reagan years and i was -- i wasn't always the most friendly member of the legislative body during that time period. so any event, i'm just delighted to be here listening to my biography, it sounds like i can't keep a job. remember, the frank sinatra song, i've been a poet, pauper, pawn and a king.
i've been about 19 different things in my life, but -- my interest in food and farm issues and related global agriculture issues. and my interest in the u.s. congress and how it operates and our government kind of ties these issues together. and so, i -- i don't think we can -- there's a lot of experts with food and foreign policy. i want to give a slightly more political science perspective today. because we've got an election coming if you haven't noticed if you watch tv all the time. and can't turn off these very enlightening and constructive advertisements being run by candidates for office. but i think you have to look at our political system. and how it functions. i'm going to talk mostly about the u.s. political system today even though i know there are people from overseas here. i think it has a lot to do with what food and agriculture and farm and global policies are all about. and you've got to understand the
politics of this country specifically. and also, the politics of agriculture and food to get a picture about what can we do, what should we do, what should the united states be doing? as we deal with food security issues and how we impact the rest of the world. i think one general theme is that production agriculture interests are very powerful. here in the u.s. and in most countries. and they are disproportionately more powerful than the numbers of people who are in the field. so if you look at today, the united states, anywhere between 1 1/4, 1.75% of the people are producing food in terms of working on farms, there are a number of people in the business generally. and then you look at u.s. policy as it relates to farm programs and related issues. you really see that there is historically a much greater
power in the interest of agriculture than there are in the numbers of people in this country. and that's not only true in the u.s., that's true in western europe and u.s., india. and i was just in japan. it is true in spades in japan. where the interest of food producers is disproportionately more powerful than their numbers are. and especially when you consider the numbers folks in rural set gs ings. in the u.s., this disproportionate power. notice i'm not saying excessive power, i'm saying disproportionate power as compared to the population is baked into our constitution by the fact that each state has two senators. so, whether it's wyoming, with 700,000 people or california with over 50 million people, they're each represented by the exact same number of people in our government. and the senate is the great protector ofgr
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