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tv   Key Capitol Hill Hearings  CSPAN  June 27, 2014 4:00pm-6:01pm EDT

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if we can prevent disease, please, let's prevent it. if we need cures, let's figure out how to fix that part of the system and get the funding to do that so that we can have a robust economy. but we have to pay attention to the other end too, which is how are we valuing this evaluation and how are we as a society being able to take in what's coming through? in years past, jonathan and his work and much of the work presented here, when we were all at meetings on innovation, the bogeyman you always heard, the f.d.a. oh, the f.d.a. is responsible for all the problems. not true, obviously and not what you hear now. i emailed some colleagues at f.d.a. recently and said what's coming up is the specter of not being able to have products be reimbursed. i think that's one everything can lean in collectively and
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start talking about this value equation. >> so to further comment on the economic realities, one of my responsibilities is to balance the budget for the medical school. while we get in 40 million in external funding last year, for each dollar that comes in, we spent about 25 cents and were very efficient in extra dollars that had to support the research enterprise and that's to mr. barton's point and the of c.m.s. of
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increased funding for the n.i.h. with every single one of our guests today across all political backgrounds, all fields, all agencies and everything but it's really not just a matter of let's just increase the budget of the n.i.h. and/or the f.d.a. because it's not linear. it's not like purchasing things. it's not like purchasing warships or something like that. you spend x amount of money and you get y amount of cures. that's why these discussions are difficult. it is, number one, the amount of funding. we still are the top -- we have the biggest commitment of any
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country in the world to this kind of funding and some of the legislation i've worked on over the years when i did my stem cell legislation and i traveled to other countries and i met with their researchers in these other countries, they were saying to me, we need to have stable research in the united states because we're hooking on. the israeli researchers or the people in singapore or israel or whatever, they're hooking on to our basic research. it doesn't only affect our researchers. it affects the researchers around the world and no amount of increased investment but those countries can make up for that knowledge that we have. but that's also why we have to make sure that we do keep the funding steady and robust because otherwise we won't have those researchers here who are doing that research that
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everybody else is hooking on to. that's the first thing. we do have to have a sufficient and robust research budget and it has to be steady over the long period and i think there have been a lot of good discussions -- suggestion today. the second thing is that we have to be able to maximize the results. this is something -- nobody really asked this question, although dr. burgess did bring it up a little bit in. 2007 when we reauthorized the m.i.h., we did some pretty good are you structuring, as you might remember, mr. barton. we did that because when the n.i. himplet was set up, it was set up with all of these different agencies, which was wonderful. but the nature of research has changed so you had to be able to do all kind of interdisciplinary research. we've made a lot of innovation over the years working in
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conjunction with the f.d.a. and i'm pleased to hear from the witnesses that a lot of that seems to be working. this is all a long way of leading town my question. and you may not be able to answer it today. one thing that fred and i are really thinking about as we look at this big-picture view are there ways going forward that we can restructure or tweak the structures of am of our key research agencies? not just the ones represented here today? but c.d.c., the labs, other agencies so that we can encourage more of that targeted interdisciplinary research, so that that will not only help us find cures faster and help with diseases in this country and around the world but also lead to a greater degree of efficiency and efficient tilization of resources.
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>> i very much appreciate the question. i think actually the science agencies and the people that work within them are increasingly pretty good at figuring out opportunities for interdisciplinary projects and doing them together and you can see more and more evidence of that but there are brew accuratic barriers that get in our way and if one of the requests you're putting forth is to have some innovations about that, i think we can make some suggestions. some of these might seem like mall small-ball issues but they can really get in our way. for instances, that scientists cannot travel to seminars thout a huge amount of paperwork. you often miss the registration deadline and so you pay a higher cost for the travel.
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it is pretty offensive to many scientists to have this kind of approach taken to something that is the life blood of how you build these interdisciplinary connections, which is to get together and talk about shared ideas. there's a place, for instance, where we could sure use some help. i think jim woollscroft mentioned at the beginning the amount of paperwork. much of what is mindless. effort reporting comes to mind, for instance. i think many of you saw the "washington post" documenting the more than 1,000 reports that are somehow still on the books that congress has asked for. many busy people spend their time compiling these reports but not many read. a bit of housecleaning here would be most welcome. those sorts of things. are you interested in that kind
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of feedback? i think we would all love to provide that. >> i wanted to comment a little bit on the concept of interagency interactions. i spend a fair amount of my career in the department of energy national laboratory and i think that one of the things that the biomedical enterprise benefited from in the early days of the atomic energy commission and d.u.t. and so on was the ability to bring to bear some of the great engineering and physics skills, mathematic skills that are present in the national laboratories to bear on biomedical problems. i think one of the things that's happened over recent years is a certain degree of come part meantlation of mission. the n.i.a. takes care of life sciences and the department of energy is worried about the other aspects. but there is in my opinion, a
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great deal to be gained by bringing these agencies together so that they can combine the multiple disciplines that they each encourage. in pursuit of some of our really important biomedical problems. it would help us a lot if we could do that. >> jonathan beat me to the l-pad punch but i'm going to take this opportunity to talk about the dapt act that representative green has introduced. stick with me for a second. so one of the issues is these drugs would be approved for very limited populations. this legislation would give f.d.a. the flexibility to approve druggets and antibiotics to treat various life threatening conditions with smallo data sets so that the
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indications would be targeted and the clinical trials would be more feasible and it would be cheaper to develop these products for which there's a great need. but then that raises the question of, because these drugs won't be studied in broad populations, how do you make sure they're not used in broad populations? the benefit collations may not match up for someone with simple pneumonia. the adapt act uses c.d.c. infrastructure, the national health care safety network to monitor how these drugs are used. so it's not looking an an individual prescription but rather a broader approach. looking at how the drugs are used to make sure how the drugs are used so that congress -- if congress passes the legislation. it's a good idea to use them
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together to help encourage these new drugs and make sure that they're monitored. it's a little outside the box. you asked about collaboration in terms of science. on the front end. this is collaboration on the back end. this goes to that theme and i think it's extremely important as well. >> thank you. and go furtherho on this. i think there's a compelling need for antibiotics. there's no question about it. but i think there's also a compelling need for alzheimer's and big disease that is we're not making a lot of progress on and i really would encourage we look at how they can be done, whether it's by f.d.a. and companies and other patient groups because there is a compelling need and we're not going to get it just like on the
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lung cancer, for one drug at the same time and one patient at a time and i think there are opportunities for us to come together and look at that and not only look at maybe restricted use but what we can get in a post market situation where you are really going to get a lot of good data. >> thank you. i just want to first of all thank the staff. they worked very hard. in getting the right witnesses here and arranger for everybody's time. for about five months we've been planning this. when i got my first gavel as mmittee chair, my rule was i really don't more than four or five witnesses. this is a little violation of that rule but you-all, 11 of you, were really terrific. i know you have a lot more to say and we have a lot more time
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to hear you as well. more than you, there's a lot of other folks that want to contribute as well and that's what's exciting about this as we think about from the government side, how do we make the government work better, how do we get faster cures, so many talented people involved but so many people too, all the disease groups and patient groups looking for the answer that we can help provide and that's what's exciting. every one of you talked about a uniform budget process. you look at the private sector and often it's a four or five, even eight-year plan they know that they're going to be doing. for us in congress it's not even year to year because you have sometimes c.r.'s continue resident leagues that are just short gapped. as you know, i was on the super committee. i was one of those that wanted solutions to -- so we didn't have to rely on the sequester. the good news was that at the end of the day last december we
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actually did pass a two-year budget. that sets the stage for the apro rators to really do their work. for me, as a longtime budget reformer, i'd like to see a two-year budget always. it's a great step but this now allows the appropriators to do their work. it's one of the things steny hoyer would have liked to have said today, get the right level in the budget. i hope it makes it to the floor and i hope the level of funding ised a adequate. if not, i know there are republicans and democrats willing to offset to make sure it is the right level to really do their job. this is the first stem. i think it's been a very thoughtful, bipartisan -- for sure, there was no partnership -- partisanship at all, really. first step of where we want to end up.
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i know that joe pitts and chairman and ranking members are going to be working hard. i was whispering let's get the labs here. there's a lot of folks we want to hear from and remember, dr. collins, the ideas of limiting the bureaucracy, limiting the paperwork, the crazy rules that are out there, we can fix that. without n't fix it hearing from you first and that's what's important. so for the folks that are not in this room that are watching later today or maybe even next week. is the way you have impact to a lot of us and we look for a lot more thoughtful hours as we figure out the course too make everybody's life one that we
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want to support. thank you. >> thank you. [captions copyright national cable satellite corp. 2014] [captioning performed by the national captioning institute] >> coming up this weekend here on c-span, a couple of hearings from capitol hill this week. tomorrow, a hearing on music licensing and how those rules might be updated with all the ways people listen to music. roseanne cash, daughter of johnny cash and singer-songwriter paul williams testify to the house panel. they also heard from pandora radio and the national association of broadcasters. you can watch it saturday at 3:25 eastern on c-span. also this week, homeland security secretary jeh johnson testified on the federal response to unaccompanied children from central america
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crossing the u.s. border. republican members said the estimation's -- administration's policies have contributed. you can see the hearing sunday at 12:25 p.m. eastern on c-span. and thursday on capitol hill, house and senate leaders paid tribute to israeli president theon peres by awarding him congressional medal. see that sunday at 9:35 p.m. eastern and 6:35 p.m. pacific. >> we believe that all men are created equal, yet many are denied equal treatment. we believe that all men have certain unailable rights, yet many americans do not enjoy those rights. we believe that all men are entitled to the blessings of
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liberty. yet millions are being deprived of those blessings. not because of their own failures but because of the color of their skin. the reasons are deeply embedded in history and tradition. and the nature of man. we can understand without rancor or hatred how this all happened. but it cannot continue. our constitution, the foundation of our republic, forbids it. the principles of our freedom forbid it. morality forbids it. and the law i will sign tonight forbids it. >> this weekend, the 50th anniversary of the 1964 civil right act with president johns's address to the nation and the signing ceremony.
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and later, hear from reporters who covered the debate in congress. and mutd the mudd of cbs the herald tribune's andy glass. sunday night at 8:00 eastern on c-span 3. sconce institutional -- constitutional law attorneys reviewed today. panelists discusses the big cases from this term including campaign finance, cell phone searches and presidential reform powers. two cases remaining. he hobby lobby case and harris vs. quin on public-employee unions. the court will announce their decisions on monday, the last day of supreme court term. >> on behalf of a.c.s., it's my pleasure to welcome you all to
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our supreme court review for the 2013-2014 term. a.c.s. was founded in 2001 and is a national network of lawyers and law students, practitioners and policymakers, judges and academics who believe the law should be enforced to improve the lives of all pipe. it shapes the law on legal and constitutional questions. the decisions the supreme court has issued this term and those it has yet to issue span a wild variety of areas touching numerous aspects of american life, to the influence of money on our elections to reproductive rights, to the scope of power. to the future of organized labor and many, many other issues and we look forward to hearing the insights of a fantastic panel of experts here this morning. before i turn things over to the panel, i wanted to invite all of to you visit our website. ur website includes our a.c.s.
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blog, which contains analysis by scholars, advocates and others on a variety of issues and it also includes some sample briefsle. they include one on religious exemptions for corporations, which is one of the issues in the supreme court's hobby lobby case. one on the constitution nallty on the voting rights act. one on the association rights of employees and the knox and harris cases, which you'll also be hearing about, as well as an issue breach studying the behavior of the supreme court justices in the most critical cases. eel free to visit our website, and download those and many others. i want to introduce one of the foremost authorities on the supreme court today, tom goldstein. he has served as petitioner in about 10% of the court's merit
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cases for the past 15 years, personally arguing 31 of those. m is also the co-founder and publisher of skotis blog, the only blog ever to receive the peabody award. yesterday during the supreme court's release of opinions, there were nearly 20,000 people following the liveblog including me and i'm sure many of you as well. tom has taught supreme court litigation at harvard since 2004 and previously taught the same subject at stanford law school for nearly a dect the decade. please join me in welcoming tom goldstein. >> thanks so much. it's great to be with you here on the almost review of the supreme court term. i speak for all of the panelists that were incredibly grateful for each of you for taking time out of your day to come and
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visit with us to have a conversation about the court's term. the format is as follows -- i'm going to give just a touch of background about the term to give context of other things going on then we're going to turn to the big cases of the term, including the two left to be decided. we're going to assume a fair amount of knowledge on your part because this is a self-selected group of folks who know a lot about the court. we're not interesting in telling you the facts of the case but we want this group of experts to talk about the implications of the case, what might come next, what the surprises are and what comes next. we're going to go through probably the top eight occasions of the term. we're going to stop about 20 minutes before the end of our time together -- we have about an hour and a half in total -- to answer your questions. a term that's gotten a lot of notoriety, not only for some of the big cases, though maybe we
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don't have same-sex or obamacare, but there are important issue and also the mune anymorety of the term and whether or not it's true. but it is striking that there's going to be the lowest number of 5-4 decision this is term in the court's modern history. i think there'll be somewhere between eight and 10 in the end, less than half the number of the last term. -- twoological lines are with justice kennedy and the majority with the left and two with the right. justice kennedy has been in the majority of all of them and probably will be in the majority in the opinions that come down on monday as well. though court has fewer dissenting opinions than any time in its modern history this term, there seems to be an effort by the court to try and ome together even if it's just
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nominally in the resolve if not in the reasoning. with that, just little context, let's turn to the big cases and let's start with privacy. lept is chief counsel of the accountability center, which is a very important voice of structural congress institutional questions and major questions of the day. the rally and worry cell phone cases about privacy involved two different phones. one because flip phone and one was a cell phone. the question us was when the people were arrested did the police have a right to search the phones without getting a warrant? >> thank you, tom. great to be here with this great panel and all of you today watching on c-span. it was a really interesting decision and it was a truly
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unanimous decision. and what was really interesting about it was the court issued a very broad and sweeping ruling in favor of fourth amendment protections, in favor of the privacy of the information that people keep on their cell phones. for those of us who were at oral arguments, it seemed as if the justices were playing around with having a possible middle ground. so you have the concerns of law look ement, which want to through your phone and try to find evidence after a crime and protecting the americans with this vast source of information. the information we keep on our
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phones and quantitatively different. we are able to keep around vast amounts of information. you used to have to take a case with you to carry around half the information we have now. you can get a much broader picture of a person's life, their private information from all this information we keep on our phones. the justices played around with the middle ground of balancing those interests, whether you could have exemptions for the police to look through a phone if someone was arrested for a very serious crime as opposed to not wearing your seat belt and what was interesting about the decision yesterday is that the court unanimously rejected all of those middle ground positions and went for a very broad ruling that says that even if you are arrested, which reduces your privacy interests a little bit according to court precedent, even if you're arrested, if the
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police want to look through your phone, they have to get a warrant and the only exemptions are these very limited sort of emergency exemptions. for example, the police have reason to believe that you might use your phone to detonate a bomb remotely or something like that. the emergency exception. so it was a very broad ruling and that was surprising and it was unanimous. justice alito wrote separately just to emphasize the fact that what the court was essentially saying and this, i think, is one of the very important parts of this ruling to keep in mind, is that the digital age changes the way that the fourth amendment applies to certain devices and essentially, what the ruling yesterday said is that computers and computer-like storage devices are different and i think we'll see the fourth amendment applied differently to those sorts of devices and that scalia wrote
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separately to say there could be an anomaly. if you had an wallet that had some things you might find on a phone -- photographers, maybe a note from your spouse or something now if something is in your pocket is your cell phone, the fourth amendment might apply typerently because of the and amount of information we keep on those devices. i think the broadness of the ruling, something that was surprising and is important, the recognition that in the digital age, the fourth amendment might apply differently to certain methods of storing information than we have seen in the past. that is another really interesting point from the ruling. than we've seen in the past.
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that is another, i think, really interesting point from the ruling. and i think in terms of implications, one of the things that will be interesting to see is whether the government, both federal and state, step back from some of these more agressive positions that they've taken with respect to being able to access information stored electronically. i wouldn't really expect to see them walking back. i think maybe there will have to be several more cases in which the supreme court says that the fourth amendment applies robustly to digitally stored information. but this did seem to be a clear signal from a unanimous group of the justices saying that the fourth amendment replies robustly to this sort of information, whether it's stored on the cloud, in the cloud, whether it's stored on your phone, on your computer, your ipad. i think the implications is the fourth amendment will apply very strongly in that case. and i think there is one other point that i want to make with respect to this case, which is there's been a lot of talk,
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especially in progressive circles, about how you want to avoid taking cases to this particular supreme court because it's difficult to win progressive victories. in one of the areas in which we've seen the roberts court taking what might be called somewhat liberal positions are areas in which there is sort of a liberal libertarian alliance. so we saw in the defensive marriage act case, the court striking down that provision. and in this case as well, both my organization, the constitutional accountability session and the cato institute were on the same side of this case. similar to the merit quality case, we were on the same side. i think one of the ways you can see progressive outcomes in this court is in these sort of libertarian types of cases where you're talking about individual liberty. so that's interesting. and then sort of the last point i would make on the case is that i personally was really
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interested to see chief justice roberts and his opinion sort of analogize the privacy interests that we have and the desire to keep private the information on our smartphones to the founders' opposition to the british use of general warrants, which this way they could break into your house and go on a searching expedition for incriminating information. they sort of get that these private issues such as on phones we carry oraround in our pocket every day shows they were with it both technologically and spiritually with the american people. >> i was just going to say one of the themes of the term that these cases fit into involves the court struggling with technology and computers. we're not going to talk in depth about it today, but the big
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patent case involving abstract ideas being turned into computer programs. you saw the court being very nervous about not sure they understood the technology and afraid they might do something to interfere with the technology. of course, in the fourth amendment case by saying these devices are protected, they didn't have to worry about causing any harm to the technological involvement. the court will have to face new technology every term, i think. >> i think one of the themes we're going to see throughout this morning is that where the justices are familiar with something, they are more likely to have a view of it that is different than when they are not familiar with it. there is a lot of legal jargon in this case, a lot of technical fourth amendment analysis, but the l the bottom line is all nine justices have cell phones, all nine justices understand the privacy on the cell phones and all nine don't want anyone to
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search their cell phones. >> i think elizabeth made a great point -- what is the phrase you used liberal libertarian? i think one of the most interesting phenomenons i think we've seen in the court in the last 30 or 40 years is what i call the evolution of conservative instinct. if you go back 30 years, the conservative judicial instinct was largely a status instinct, a thumb on the scale of government instinct. we saw that in its rulings up holding statutes, we saw that most prominently in the criminal sphere. i don't know if i call it a sea change but a dramatic change in the modern conservative judicial instinct which is much more of a libertarian instinct. we, again, see that in the criminal sphere in cases like this, we see it in a judicial mindset that is much more likely to strike down laws seen as overreach. remember, 30, 40 years ago, many
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conservative jurists didn't believe that conservative speech was protected by the fourth amendment, that was largely advocated by the liberal wing of the supreme court. today we've seen almost a flip-flop where the conservatives are almost the most robust embracers of that kind of speech protection. >> just to put two points together, it is a little hard to look at the chief justice's opinion is think about things they see in the newspaper, are very familiar with and not hear echoes of the discussion of the msa data program and the collection and migration of that program. so it will be interesting to see the impact of that decision when it eventually comes up. noah francisco is head of the practice and also a supreme court litigator which made for the perfect combination in dealing with a historic case about the relationship among the branches of government, the
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nocannon case which he argued and won successfully yesterday. with a few seconds of backdrop, the president, during a recess informed by only pro forma sessions, the nrb was requested to give a quorum. that was an expansion of historic practice of making recess appointments under the president's recess power and spoi appointment constitution. the supreme court asked for briefing yet on another ground and had a very significant decision on the scope of the recess appointments power. >> sure, and if you'll forgive me, i'll do a little bit of chest thumping because we're very proud of the result we achieved in that case, and this was a resounding 9-0. there was difference in reasoning but a 9-0 rejection of what we considered to be a very abusive reach of the recess
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appointment power. and i think it underscores what in my mind is the important role that courts play particularly when it comes to separation of powers, and another trend that i think we've seen in this context over the last ten years or so where the court is much more willing, across party lines, to restrain excesses in executive power. we found it in the context of the war on power. we've seen it carry through to president obama's power, albeit in a domestic context. one of the problems you have in the political process when it comes to assertions of executive power is that you always have a president that is interested in expanding executive doesn't matter the president is a democrat, a republican. that president is always interested in expanding executive power. on the congressional side, you always have a constituency that supports the president because the president's party generally is supportive of the president's
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assertions of executive power, even if it's a different party president making the same assertions. those members of congress will be taking a different position. so what you have is a dynamic that leads to an ever-increasing expansion of executive power because you have a president that always wants to expand it and a congress that is kind of wishy washy on it. some of them are favor of it and some of them against it. that's why it's so important to bring the judicial branch into the fray whenever possible because it's the only neutral arbitor to enforce the lines of the constitution draws. brings us to the noel canning case and exemplifies this expansion. in my view, justice scalia's concurring opinion was correct on the original understanding of the clause, but more importantly it reflects over time we have seen the president gradually expand the recess appointment
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power. the first expansion was early on to any vacancy opposed to those vacancies arising during the recess. early presidents rejected that. shortly thereafter, other presidents embraced that power. the senate essentially, you know, there was some back and forth. but as the court found, the senate didn't vigorously oppose and maybe acquiesed but there's another limit. only exercised in between sessions, so-called intersession recesses. that gets us to around 1921 where we then see the executive branch jetison that limit and make rejess appointments in that period, as well. we saw another dramatic expansion of the power. but even then as we saw at the end of the bush administration, they saw control over the process and so it could still prevent recess appointments if it actually convened sessions every three days and doesn't take any break during which a
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recess appointment is made and then finally we saw president obama with these recess appointments jetison even that limit, essentially asserting the power to make a recess appointment any time to any vacancy and when the senate was convening sessions. short ones and ones that were likely designed for the primary purpose of preventing recess appointments but they nonetheless were sessions. when it gets to courts, i think what we saw was a resounding rejection of that assertion and expansion of executive power, not really that different from what we've seen in context like the war on terror. there is a difference of approach that the majority took and that the concurring opinions took. the majority took what it would characterize as a much more pragmatic approach and going to tolerate these first two expansions. these two historical expansions, too much water under the bridge at this point. to overturn that. but we're going to recognize that the senate has control over
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its own calendar and if the senate says it is in session and capable of conducting business during those sessions as it was here that's the end of the game. it was in session. no recess appointments. the concurring justices studied the text and original understanding of the constitution came to a different conclusion on the first two historical questions but i think the point i want to leave you with is in my view the debate of the majority and concurring justices is largely an academic one. it largely goes to how many past recess appointments are going to be called into question. going forward, i think any of the -- either the majority's rule or the concurring justice's rule largely returns the power to where it belonged in the first place. that is, the power of advice an consent to the senate because even under the majority's rule the senate or the house, as well, has the authority to -- has the ability to prevent
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recess appointments if it wants to. the president is allowed to make the recess appointments if the house and senate actually agree and allow him to do that by not convening these so-called proforma sessions so while there's a huge difference between the majority and the concurring justices in terms of their approach to the law, in terms of reasoning and bottom line rule they adopt, i don't think there's a lot of difference in terms of the practical impact that the rules -- that the different sides advocated would have going forward. >> yeah, so, you know, i guess i don't want to rain on noel's parade at all. i want to throw my own mini parade is what i'm saying. so my reaction to the ruling was that it was not as bad as it could have been for those of us that supported the constitutionality of president obama's recess appointments in this case and that's because of this difference between the justice breyer opinion and the
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opinion that would have been controlling if the more conservative justices had held the day. and i think that what's important about the difference between those opinions that it does preserve a core aspect of the recess appointments power and the court refused to go down the road that the d.c. circuit took, a much more radical interpretation of the recess appointments clause preventing presidents from making appointments during intrasession recesses and for vacancies that arose prior to that recess. and so, i think the fact the court didn't go down that road is a really aspect of the decision that sort of has been not focused on as much and instead seen -- the decision has been seen as sort of a rebuke to the obama administration and point out that this is not something that the obama administration invented as has been noted. presidents from both parties used the power though i'm sure that noel would say in use of the power is a step more than --
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>> but i would say what president obama did invent was the use of recess appointments to circumvent so-called proforma sessions. the senate convened under majority leader reid proforma sessions in the bush administration for the express purpose preventing president bush from making recess appointments. president bush whether he agreed or disagreed, i don't know, with what the senate was doing but honored and never attempted to make a recess appointment while the senate was convening proforma sessions. president obama jetisonned the one last limit and that was the principle argument we advanced in the d.c. circuit. the proforma session issue and we were the ones that asked the court to add the proforma session question to the petition when the government tried to take it up without that issue in it. we've always believed that what was particularly wrong here was the context in which these recess appointments were exercised and the unprecedented nature of it.
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in our case, focused on that nature. that's why i really do believe that this decision was a direct rebuke to that overly zealous exertion of executive power. >> i guess one thing that stands out about this, though, is when we talk about this from the academic perspective versus practical perspective, i'm always thinking about the academic perspective and i find this decision particularly interesting in terms of, you know, what we would talk about as a formalist perspective versus a functionalist perspective but looking at the function of this decision going forward, there's a question of whether speaking practically of a president in one political party and a senate majority in another party what the future of recess appointments are. >> or a house majority of the other political party. >> yes. >> because the house likewise can refuse to allow the senate to adjourn more than three days and hence requiring proforma sessions. >> right. >> that's why i think the
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practical distinction between the rules is not all that great. whenever one party controls the presidency and other party controls either house of congress, that other party has the ability to trigger proforma sessions and prevent recess appointments. the only time you wouldn't have that dynamic is when one party controlled all three branches, both houses of the congress and the presidency. but that's precisely when you don't need recess appointments. >> right. >> particularly now that there's no filibuster for presidential appoint appointees. >> yeah. >> a comment about justice scalia. may not be the last one today. his excessive rhetoric in his concurrent/dissent in this case, which is typical of his excessive rhetoric in separation of powers and federalism cases generally, is, i think, really ironic because he uses -- he ignores 150 years of tradition, however you count it. he ignores that. he'll not ignore that in the
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prayer case, for example. but here's the thing. justice scalia's approach to constitutional law in separation of powers and federalism cases is completely different than his approach to individual rights cases. and if he were here he would be yelling about law, law, law. but the difference between his separation of powers perspective and his individual rights perspective is one of values and experience and living his life not law. and i think i would love to ask him that question, why he treats separation of powers cases so differently than individual rights cases. >> tom, only because i clerk for justice scalia and i love the man, i have to step in and defend him. i don't think there's any difference. if you look across the areas of law, he is very much a strict originalist and sometimes views align to his views and sometimes contrary to his views like the right to burn a flag in texas
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against johnson. that is not consistent with the political views. but whatever -- wherever he lands i can guarantee you he lands there passionately. you can find cases in the most mundane areas and we can -- where he is in dissent and you may think the world is ending because the majority went the other way. that's his personality but i don't think it reflects any difference or any inconsistency in how he approaches different legal issues. >> one response. his ralph kramden approach to passion i agree with. i don't -- listen. affirmative action, takings, 11th amendment, all areas -- and shelby county, adopted a completely unoriginalist approach to constitutional law so this american myth -- >> that's the longest sentence. >> yeah. >> like semicolons and dashes and few ellipses. two things on the table and then move on. they point in opinion zit direction.
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does the recess appointment power matter after the muk clear option? if you have the president in the same party as the senate majority, well then the nominees will get confirmed f. the senate is not in the same party as the president, then the nominee's going to be rejected anyway and it has been the case that presidents haven't made resez appointments for nominees rejected. that could change. so it may be that noel canning, though a principle may not have a ton of practical impact. the second is nile noel thinks and also eric thinks that the difference between the majority and the concurrence is not a big deal, i have written today i think that's wrong. and that the art of justice brey breyer's opinion on purpose or not the president can evade the restriction in the majority opinion because it depends on the idea that no senator will object to the existence of a quorum. we don't have to debate the her its of it. there's an open question about the consequence.
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okay. a professor at my law school, washington college of law and an expert in constitutional law and many other things. runs the sjd program there and an expert in issues related to race and the supreme court. we did have one really important race related case this term that's kind of gotten buried and lost in the shuffle. maybe decided earlier. but it tells us a fair amount i think about where the court is at on the questions and relates to other cases that you can discuss, i'm sure. the schutte case, the voters of michigan announced they were going to change the constitution to forbid affirmative action, including particularly race-based affirmative in higher education and some other things and had the consequence of overruling a prior question saying the michigan law school could take race into account for admissions. and so, the court was presented
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with a question of whether the state's voters could essentially ban affirmative action in that fashion. >> uh-huh. and so, you're exactly right that this is sort of following up from the opinion 11 years ago, the gruder decision up holding the constitutional of race conscious admissions at the university of michigan. what's important to keep in mind is that it is technically not an opinion that's about affirmative action in education across the board. so, it does nothing to alter the constitutionality across the board of those kinds of policies so it hasn't changed the holding of the gruder decision 11 years ago. it said that under the equal protection clause colleges and universities could create narrowly tailored race relations programs and also the probably opinion that got maybe more publicity last year, fischer versus university of texas because it was decided at the very end of the term. that was looking at the constitutionality of the university of texas's admissions policy which included a race
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conscious component. this is an opinion and a case that's really more about an issue that relates to civic participation. so it's about access to self government and this particular proposal, proposal 2, in the state of michigan, is a voter initiative that does have the effect of eliminating the affirmative action program at the university of michigan. this is a 6-2 decision. just kagan recused herself. you could look at it in a variety of different ways. the types of initiatives, one of the big questions and something that was actually very eloquently discussed in justice sotomayor's lengthy dissenting opinion is what it means to ensure meaningful political participation and whether it means that one need only remove formal barriers to participation or whether it includes a responsibility to vigilantly police the political process to ensure that all minority groups
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have equal access to participate. on the ground, proposal 2, a ballot initiative and a constitutional amendment like the one in michigan effectively means there's a higher burden placed for those to advocate for having a race-conscious admissions policy so if one in favor of race being one of a number of factors that are considered in admissions policies, one would need to basically overturn a state constitutional amendment to do so. very, very high burden. if, however, you are a major donor to a university and you want to give a thumb on the scale to your kids, an alum, if you're an athletic officer and want to spend time promoting star student athletes to go to public universities in the state of michigan you could continue to do so. other forms of affirmative action still stand. the one removed and singled out is consideration of race.
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and i think what one can think about with respect to what that means long term, again, it does not touches the merits, the constitutionality of race conscious admissions policies across the country but raised to the national level, a spotlight on this and because those who advocated for this type of ballot initiative in michigan were successful, i think that it does signal and can signal to voters across the country if there are others and other states and there have been who would like to push for similar measures as the one in michigan, the supreme court decision has given them really sort of more fuel to their fire to be able to do so. so i think that's one of the long term consequences of something like this. another thing to keep in mind is that there have been instances in which the supreme court in decades past has examined similar types of ballot initiatives that would single out particular minority groups to make civic participation in
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certain areas more difficult and in those instances the supreme court has struck those down so there are ones relating to, for instance, in seattle and 1970s around bussing. in the city of akron. one that's a very common one that all of -- almost all constitutional law professors teach rumors versus evans with an amendment to the colorado constitution that had singled out gays and lesbians and said that under the colorado constitution, no state jurisdiction could create any policy that would protect gays and lesbians from discrimination and the supreme court held that you cannot single out a particular group based on animus and make it more difficult for them to participate in the political process so there were some who believed this was very much akin to that kind of reasoning and therefore should be struck down. it was struck down at the lower court but the supreme court reversed that. and so for those who would be in favor of the ability to continue
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these kinds of programs in a state like michigan, there have been those who look to justice sotomayor's opinion as very interesting in terms of having a voice, a minority voice. well, no pun intended both a racial minority on the court but also obvious lay dissenting opinion opposed to a majority that spoke very frankly and passionately about the role of race in the united states and the important role that the supreme court plays in needing to take account of it. so she actually referenced chief justice robert's opinion in a voluntary integration race case with elementary and secondary schools came out seven years where he said that the way to essentially end race discrimination in america was to stop talking about race and sotomayor said the way to address racial discrimination in america is to speak openly and candidly about the role of race, about continued barriers to opportunity so that we can move
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forward. >> slight tweak on what the chief justice said. i think he said end racial discrimination by the end of stop discriminating not stopping to talk about race. i think. i don't think he ever suggested we don't need to talk about the issue. >> i would actually beg to differ with that piece of it. i think you're right -- i apologize. he said to end discrimination and wrapped up in that is a desire to stop talking about race. >> maybe. but on that case in particular, though, i kind of go back to -- i think the 9th circuit addressed this issue or similar issue 20 years ago and one of the lines that always stuck with me from that opinion was the constitution does not require what it barely permits. we have had a very heated debate over whether racial considerations can be taken into account and to -- i apologize for this. >> very relaxing. no problem. >> we have had a very -- >> roberts court. >> i thought i turned this off.
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but i guess i didn't. we have had a very heated debate in this country over whether race can be taken into account in school admissions and other areas and the supreme court has resolved it narrowly but it's a whole huge knnother step to say you're required to take the factors into account. that to me at least is an extraordinary proposition and why i think you saw that decision not being one of these strict 5-4 decisions but even justice breyer coming across to acknowledge that basic principle that -- at that level. once you get to the level to take into account rather than whether you can take into account, that is really a decision that should be left to the political process. >> well, can i just clarify one point there. you said whether they should be required to take race into account and that's not what the opinion is about, not what the case is about or proposal 2.
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it's -- it's a proposal that eliminates the ability to do so. but it's not -- the question was never should they be required to take race into account. >> yeah. perhaps. but i actually think, though, that it really does boil down to that. can you say you're not allowed to not take into account because the political process decided it didn't want it to be taken into account. >> all right. so let's turn to religion. something less controversial. eric segall is a prolific author and expert on the court having published all over the place on major constitutional questions that the court is confronting and also working now as a co-author on path breaking book on supreme court transparency. and is going to talk about religion for us. the first of the religion cases, the town of greece in which the greeks, the gree shans, the folks in that town started their
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town council meetings with an invocation which they thought was akin to a legislative prayer. it was overwhelmingly a christian prayer based on who it is they happen to invite and there was a constitutional challenge that that was an establishment of religion. >> elizabeth said that progressives are in favor of obama's recess appointments and noel canning case and didn't lose as badly as you thought you might. people who are in favor of separation of church and state lost as badly as they could have. no greater loss we could have suffered than this case. eight years in a row prior to 1999, the town of greece, new york, started its very small town council meetings where you would go if you want a zoning variance or if you want to argue about the local cable access channel, you have to conduct your business there. this is not a big state legislature. this is not the congress. this is a small town council and prior to 1999, they began their meetings with what i think is an
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incredibly appropriate way to start the meetings, a moment of silence. prayer or not pray and reflect. for eight consecutive years and sometimes prone to hyper bole but in this situation, i'm not. eight consecutive years 100% christian prayers. no exceptions. for eight years. and two thirds of those prayers referred exples sitly to a number -- to different kinds of eli jous similar m boss and in many cases the chaplain of the month, what it was called, yes, the chaplain of the month would ask the audience to stand up or bow their heads in prayer to jesus. as a thought experiment i thought if i asked you to do that what the reaction would be and this is not a government meeting but in any event. the supreme court said that was not an establishment of religion, 5-4.
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partisan divide. justice kennedy and when i say flip flopping, on this one, he did about 17 flips. given that he is the author of two opinions that say that prayers in public school classrooms -- i'm sorry prayers at high school graduation ceremonies and prayers at high school football games are unconstitutional. i want to make just three points. first, eight years in a row of exclusively christian prayers, this is a situation where the supreme court upheld a clear preference of the government of a religion over all others. i don't think there's any other establishment clause case the supreme court has done that. there's aid ace cases and neutral statutes has a disproportionately benefit of catholic or jewish schools but neutral practices with disproportionate effects. for the court and even justice rehnquist, before he left us,
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said that the core command of the establishment clause is the government cannot treat one religion over another. and that's exactly what the town of greece, new york, did. so that that's very significant i think in terms of doctrine. even more importantly, whether you look at justice kennedy's opinion for justice roberts and aly to or aly to's supreme court opinion or scalia and thomas, all of them read the establishment clause out of the constitution when it comes to legislative prayer cases and even more scary other cases, as well, because, excuse me, justice kennedy gave examples of when legislative prayer pry investigates the establishment clause and almost all of them would violate the free exercise clause. there's -- we'll get back to this with the hobby lobby case but there's the establishment clause, the free exercise clause. one says the government can't reward religion too much. that's the establishment clause. one says the government cannot
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coerce or penalize religion. that's the free exercise clause. i think the balance is we want religious liberty and not religious supremacy. well, in this case, everything justice kennedy, bringing a new case challenging legislative prayer, then you have to in effect make out a free exercise clause violation, a coercive. kennedy said if the government took action against you because you refused to pray, that would be an establishment clause violation. well no. that's a free exercise clause violation. i think doctrinally if this case extends to other cases the establishment clause is in deep trouble which is consistent with scalia and thomas' longstanding quest to end establishment clause cases altogether through the standing doctrine which they have tried to do and not justice kennedy's quest and even more ironic because in the last paragraph 069 opinion justice kennedy says children -- that kids had to go to this greece
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town council part of high school civics programs and kids were in the room here when this was happening. last point, i have one more minute? last point is this. we have a solution talking about affirmative action, abortion, i have opinions but they're hard questions and i don't know the answers. i have opinions. i have an answer for this. same answer for high school graduation ceremonies, football games and classrooms. have a moment of silence. i've been in football stadiums and baseball staid yums of 60,000 people after a national tragedy and a moment of silence is a really powerful thing and it works. and it brings all the good things about prayer into the room but none of the controversial things. so if you want a prayer over a moment of silence, you are saying you want to inject religion into the government and i think that's what the establishment clause forbids. >> you know, i guess my take on that case is, i do agree that from your perspective it's a
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pretty resounding loss but what i call it is the triumph of originalism but good for this ride only. what you see is justice kennedy's opinion taking an originalist approach, and there i would argue that it's different from cannon because you have an unbroken understanding of the application of the establishment clause dating back to the time of the founding and after that these types of prayers were permissible, but on the other hand, the way that the court approached it was that it was -- its holding solely based on legislative prayer and the fact there was with respect to this one type of practice a long and unbroken chain of history. so, yes. while it is a resounding loss for your side, i don't read too much into it. i don't look at it as a case where the principles are going to be translatable to other cases. from my perspective, were that
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it was so. >> but that rational upheld segregation and discrimination against women. we had segregation and discrimination forever and just looking about history, those two practices would have been upheld and none of us want them upheld. >> looking at how justice kennedy approaches the hot button issue, he often adopts a measure of reasoning and that is easily distinguishable in the next one and i think that's the same kind of approach you saw him take in this case. >> we have one clue about whether or not there'll be a doctrinal leak outside to other establishment clause questions when the court was asked to consider right on the heels of this case another school case where it was a graduation ceremony held in a church and just the court declined both to take up the case and also to have the case which had struck down the practice reconsidered by the court of appeals and the
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justice scalia said i thought we una bunch of establishment clause jurisprudence which i was so excited about five days ago and so it was some suggestion that it isn't going to be a revolution. paul smith runs the supreme court appellate practice at jenner and black and doing supreme court cases as an acknowledged leading advocate in a number offields, first amendment we'll talk about today, voting rights, also gay rights issues. we're going to as i said there are a couple of important first amendment cases. the mccullen abortion protesters cases where massachusetts passed a law that created a 35-foot buffer zone in front of abortion clinics and there was a constitutional challenge and a real question about the fate of an older precedent which had upheld a floating buffer zone in front of abortion clinics. >> right. this is a really interesting outcome because the court
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unanimously held that the buffer zone was unconstitutional. going into this case after the argument i think no one would have predicted a unanimous ruling one way or the other. hill versus colorado that allowed a floating buffer so you couldn't approach somebody without their consent more than six feet was extremely controversial on the conservative side of the court and justice scalia continues to find it so. the dissent in the case yesterday says we continue to have an entirely different dpirs amendment applicable to abortion rights issues than anywhere else and i think there was a real scenario under which hill versus colorado would have been thrown out and the whole world of how you regulate access to abortion clinics and protect people from harassment and from overcrowding and the kinds of problems that arise in front of the clinics could have been drastically changed but instead what you see is a 6-3 and unanimous and there's a majority opinion in which the chief justice gets six
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justices to write an extremely narrow opinion throwing out the law. what's that? [ inaudible ] alito? thomas and scalia, right? and kennedy. there's the majority opinion? which the liberals joined with the chief justice and goes out of his way to say there is no content-based law here. strict scrutiny doesn't apply. strong argument to any law to the abortion clinic is content based by the nature and any law to allow clinic employees to enter this zone that was -- this safe zone around the front of the clinic while not allowing other people to go there was content based because they could come out, accompany people into the clinic and say you're going to be fine. this is a good place to be. whereas the individuals challenging it couldn't do what they wanted to do and just to be clear, they didn't want to
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scream at people. what they wanted to do is approach people politely, engage in quiet conversation and say there are alternatives. i'd be happy to talk to you about them. the entire court was willing to say that kind of conduct on a city sidewalk is protected by the first amendment and we are not going to allow the city to fence off a large chunk of real estate on a sidewalk of people being able to walk up to people, engage them in conversation. the floating buffer zone still exists. can exist. still the constitution. but this larger fencing off of this large area is no longer permissible and i think it's an interesting situation to see -- to wonder how this came about, you know, i think that you could easily as i said have found a decision and the usual ideological breakdown and instead clearly an effort made here to bring the court together. it is quite a remarkable difference than what we have seen in recent years with the
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court on these kind of hot button issues. >> thanks. >> you could call it what justice scalia called it in the concurring opinion which is an apparent and specious unanimity and were really strong words to come from especially someone concurring in the judgment in that decision. so i think it sort of fits into this theme that we are seeing with some of these cases where there is an apparent unanimity. i would leave out the specious. i'm not justice scalia with the high rhetoric but, you know, sort of masks the heat i think of the divisions in some ways in that case is an example of it. >> interesting case that sort of fits this discussion we had before about libertarian and lots of liberals on both sides of this issue and people that the aclu, a tough time with this issue and so i mean this is not an issue, an area in which the natural breakdown occurs. if you have a libertarian instinct on the left or right you may very well agree with the court. >> paul, i was uncertain how
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narrow the majority's reasoning was looking at the narrow tailoring reasoning because that reasoning could apply equally to did floating bubbles. if the primary purpose is to, for example, ensure access -- >> right. >> what the court said was that you can ensure access more narrowly prohibiting obstruction. >> right. but it's important to maintain the idea of laws applicable only in the abortion clinic setting. that by itself according to the conservative members of the court would have invalidated any law with strict scrutiny and the problem of the state allowed to address in a less restrictive way is important thing to maintain. exactly how it will play out in terms of what options are available, the majority suggests some, the -- it is true to make an argument that hill is implicitly overruled. i believe that justice scalia said that. that may or may not play out
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that way and much more maneuver for people trying to solve the problem to avoid harassment and get into the clinics than one might have imagined would be true looking back a few months. >> judge posner late yesterday i think posted an article in slate i hope everybody reads because he characterizes the majority opinion and whether -- the legal question is hard but the majority opinions discussion of what women are faced when they go to planned harnthood clinics to xexercise right to choice, mild persuasion. they said it's signs of a baby killer and i would just recommend judge posner's slate article on this topic. >> one interesting argument of whether these opinions mask real problems under the surface to eventually emerge is that the majority opinion doesn't even say anything about what happens to the old hill precedent that was potentially on the chopping
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block. we won't talk about it! come ask us later. >> clearly strong efforts to bring everybody on the opinion and might not otherwise have been there. >> elizabeth, let's -- we're going to need to kind of do the remaining cases in relatively efficient form. but an incredibly important nonetheless campaign finance decision. mcculturen, following on a lot of attention of jurisprudence about the constitutionality of the agree gait contribution limits, not $2,000 to give in a particular election cycle but the amount to all the federal candidates in total. >> yeah. so i think we can deal with that very quickly taking eric's suggestion for a moment of silence for reform in general. while it's ka case about the contribution limits, it seems that the roberts court has yet to meet a campaign finance regulation that it actually likes. and one of the ways that i think the case is important in general for campaign finance regulation is the way that the court in my
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opinion redefined the government's interest in preventing corruption in our democratic system through campaign finance regulation and in cases back to buckley versus vallajo we saw the government's interest described preventing actual corruption, a quid pro quo bribery as well as the appearance of corruption so sort of a -- any sort of influence that money and politics might have, that undermine the public's faith in the integrity of our democratic system. and so, what i see the majority doing in the mccutchen ruling is taking out the second part of preventing corruption and really just limiting the government to campaign finance regulations that can be directly tied to the prevention of actual quid pro quo protection of money and politics. i think it's wrong and goes
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against the understanding of corruption dating back to the founders' understanding of what the government would have an interest in legislating when it comes to preserving the integrity of our democratic system. i think that justice breyer in his dissent did a good job of raising that. i think that if you read the brief i filed on behalf of lawrence lezig, he is's done great research showing what the founders understood corruption to mean. i think the implication is what does this mean for other campaign finance regulations? does it mean the end of sort of any limits on soft money? what does it mean for state campaign finance rules? could it eventually lead to striking down those most basic direct limits on giving money to candidates? you know? i think that all of those are fairly open questions at this point. you know, i think finally, one point that i think is relevant to think about when we look at the court, the roberts court in
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general is sort of when you contrast with this with the voting rights act last term in shelby county where the court i think limited the government's interest in protecting the right to vote and for those of us who supported the robustness of the voting rights act in that case, it was disheartening to see chief justice robert's opinion start with this ode to democracy in which he sort of laid out all the ways to participate from castinging your vote in the ballot box to contributing money and sort of seeing the roberts court making it easier to give campaign cash but arguably harder for people to cast a free and fair vote at the ballot box. >> you know, i think that you're right. this is part of a long line -- not long but relatively recent line of cases by the roberts court. i have always thought that these are relatively simple ques. core political speech made at a single point in time most
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important in the midst of an election and if you can restrict core political speech at the most important time, that it is to make it is during an election and say that during these periods there are restrictions and you can only spend so much money using your voice then you really are having the federal government directly influence the political process through restrictions on free speech and the basic principle in my view has always been we're better off with more speech. let everybody scream as loud as they want at one another. spend the money as they want on that speech and let the chips fall where they may. so, i applaud what i would consider the roberts court's approach to all these campaign finance regulations. >> let me just recommend that people look at justice breyer's dissent which i think very article tick latly tries to late out the case for the other position, the position still maintained by four justices and may some day come back around i think with so much to recommend which is, you know, what he did
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is he said we're going to take this corruption appearance of corruption rational upheld and i'm not going to completely reject this other idea that's been out there for all this time and can't level the playing field. he basically brought the two arguments together and said what this is really about is maintaining democracy and a government that's responsive to the people and that in a world of billionaires spending billions not a government responsive to the people and some level there's sufficient government interest to maintain some responsiveness. >> all right. so let's make sure that we cover the two cases yet to come. but we obviously have to wait and see what the outcome will be. paul, do you want to -- paul, you argued the harris versus quinn case to frame it up for folks and the good news to expect. >> first amendment challenge to the fee charged by public employee unions against people that don't join the union and benefit from the collective bargaining and from the grievance procedures and started as a challenge to a specific kind of unionization which is
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home care workers who work individual homes and paid by medicaid to do that. the state of illinois allowed them to be unionized by majority vote. as a result they got much better benefits and training and health care than they had before and some of the people who were in that bargaining union decision agreed with being unionized and paying the agency fee and the national right to work committee brought it as a challenge and morphed into a much broader challenge to the whole aed into line of cases saying there's nothing unconstitutionally about requiring people to pay money to the union for core union services. not for other things they do and say but the services. it was in the knox case and find out on monday, tommy announced on the blog yesterday we're not going to win. we'll see if tommy knows. but this is one of those counting justices opinions from january exercises. i have other theories but we'll see. >> who's the --
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>> justice alito who wrote the opinion in knox. >> he is not what we're counting on in the case. >> well, he could just write a kind of sarcastic majority opinion saying that he was wrong. eric, the important hobby lobby case? >> yeah. i'm going to cut right to the chase here. as everybody knows, hobby lobby's a nor-profit, privately held corporation and doesn't want to comply with the requirements in the affordable care act they provide certain types of contraception to the women through the health insurance, and this is what i want to say about it. neither the free exercise clause nor the religious freedom restoration act which is the federal law that they're suing under, this is not a constitutional case theoretically. neither one has ever been really interpreted and should not be interpreted to allow people to say, i'm not going to follow that law because it hurts my conscious to do so.
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that is not what those provisions are about. the government should not get in between you and your religious practice. going to church, wearing a yam ka using peito and the government interferes with the practices then the government should have a compelling interest, at least under rifra. it's there. i accept that. that's not this case. the owners of hobby lobby are not doing anything in their religious capacity that the government is interfering with. hobby lobby does not have prayer meetings. that's not what this is about. they don't want to comply with a valid secular law applicable to everybody because it offends their conscious. and if we live in a country where people cannot follow law because their conscious is offended, then we're going to have a whole lot of chaos and other than one evenly divided summary affirmance by the skort,
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i don't think the skort suggested. they suggested the opposite. you don't get to follow the law skouf conscious. that's what the owners of hobby lobby want to do. personally i hope they lose. one last point about this. justice kennedy and the majority said to the people in greece, new york, if you're offended by eight years of christian prayers, get over it. that's what he said. i think what we should say to the owners of hobby lobby, we're sorry you're offended but you're a part of civil society and you have to comply with this law. >> when maybe in strawson testified in favor of the religious freedom restoration act and a reason saying it's important is absence you could make doctors who were opposed to abortion perform abortions. doctors performing abortions are not doing that in their religious capacity. they're doing that in the capacity as doctors. so, i don't think there's any
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argument that the freedom restoration act protects you exercising religious things. it requires the government not to do something that the religion tells them they're not allowed to do unless it has a really, really good reason and does it in the most narrowly tailored way, subjects it to strict scrutiny. so, that's the question here. and here the owners of hobby lobby, much like many christian or catholic owners, have a religious and moral objection to doing things that in their view facilitates access to contraception. they can't provide the insurance plan. what the court always said is if somebody tells me that their religion tells them they can't do something, you know, that's -- it's not a court's role to second guess that decision. does the law in fact tell them to do something they're not supposed to do? here it's clearly undisputed it
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does and then proceed to the strict scrutiny analysis. i don't think with all due respect your description is at all accurate. it is meant to protect against precisely this thing. one final point. there's no law that puts forth the mandate. the affordable health care law says something about it. that's a health and human services regulation. that regulation like all other regulations is subordinate to the religious freedom restoration act which is a law. and the affordable health care act explicitly said nothing in the act was overriding the conscious protections that are found elsewhere in federal law. the most prominent of those protections is religious freedom restoration act so i don't think there's any argument that you're exempted from a law. in fact, you're following the law by applying the religious
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freedom restoration act. >> the text of the act is not referred to conscious. it refers to the free exercise of religion. >> no. it refers to a substantial burden. >> no, no. but first it has to -- the burden. the free exercise of religion and we have justice scalia in smith and the case in the 1890 s on polygamy and generations of cases saying you don't goat exempt yourself from generally applicable law because your conscious as opposed to your practice is affected. >> the religious freedom restoration act overruled smith. >> well, but it also says it incorporates the pre-smith law. the purpose is to bring in the pre-smith law and no supreme court case to suggest -- >> when mr. smith was hammering out tank tur rets, not giving unemployment benefits because he objected to hammering out tank turrets, was he exercising the religion?
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of course he was. that's something that the religious beliefs forbade. that's what's going on in the hobby lobby case. >> important to note is that while i have no doubt that the green family and the hahn families have that objection, the law doesn't place burdens on the people as an individual but an obligation on the corporate entity hobby lobby or con stow yeah wood to offer health plans and must provide the full range of fda contraception and the individuals don't have a claim to bring and i think that the corporate entity upon which there is actually the requirement doesn't have a claim to bring because never in the history of free exercise law has a secular for-profit commercial entity been understood to share the -- >> preventing unintended pregnancy is a compelling interest. >> all right. fantastic. now that we're all -- now that
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we all agree -- >> just so we're clear. the answer to that one is no. >> correct. let's be sure to take time for questions which we think are very important. so we'll start with folks, in case any of the folks of the press have questions and someone will bring a microphone to you. and if you'll identify yourself and then direct your questions to whomever. >> mike doyle to the panel. could you return to the smartphone search case? there was brief reference made to the potential implications for challenges to met data collection. would you walk through the challenges in light of riley will now play out? >> well, i think that, you know, first of all, riley shows that there is -- that there is a different approach that might be taken to electronically stored information. i think, also -- and so in that
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respect, i think that's important, the majority noted that in response to some debate at oral argument that protections would probably also apply to information that is stored in the cloud and not just physically on your phone. so that i think is an important aspect of the ruling. also, there was a yes, sir which you are made to sort of what people call the mosaic theory under the fourth amendment that when you aggregate information, when you have, you know, so this came up a little bit in the gps case, jones from a few years ago, that there's sort of something different about agree gaiting massive amounts of data that gives fuller picture of someone's activities and someone's life than just sort of picking out -- so, for example, the gps case, there's the court found there to be -- didn't find there to be. there was a difference to be sort of a detective following
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someone and getting the information from a couple days opposed to the sort of information that you could get if you had a gps and could get this vast amount of information. and so while it wasn't obviously expressly decided in riley, there was a gesture to the idea that the massive amounts of information obtained on a smartphone could be qualitatively different because of the bigger picture to give about a person's activities or information so people that support the idea that that makes a difference saw something to be hopeful for that the court might adopt a mosaic theory in future cases. >> just two quick things. that is, you know, every fourth amendment case has two parts. is there a search of something that's private? cell phone cases are about the -- is it private part. and on that score, the supreme court looks back at an old case of pen registers in the early days of phones and the court said collecting that information
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doesn't implicate the fourth amendment and says that precedent really doesn't apply with any substantial force in a digital era when so much information is gathered from things like phone calls but there's an important footnote in which the majority says we don't decide what constitutes a search and if the government is able to just collect information about us that's otherwise available from databases and the like it may not implicate the fourth amendment but actually collecting phone call information without a warrant will raise serious fourth amendment issues. >> i was going to say, it's more by analogy they're related. the issue in the meta data context is validity of the old rule that if you let information be in the hands of other third parties you don't have a fourth amendment claim when the government gets it from the third party and justice sotomayor suggested in the gps case is something we need to rethink in a world where everything we think and do is in
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the private third party hands and it indicates those who think it should be overruled and judge leon here have some support. >> other questions? >> mike lindenberger with the dallas morning kn ing news. you see in the politics, too, with rand paul and war on drugs, et cetera, but i think the first amendment may be the best fulcrum to talk about that. it seems like what used to be sort of a rallying call for liberals is often now challenging liberal politics in support of the first amendment like, for instance, the abortion cases. i just wondered if you could talk about that, the shift and the new maybe newfound support of first amendment as a weapon for the right and maybe something that makes liberals
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less comfortable than they used to be. >> yeah. i certainly -- i'm not going to comment on whether it makes liberals less comfortable than they used to be but i think on the conservative side over the decades you have seen a much more robust embrace of first amendment principles along the libertarian lines. i spend a lot of my time in private practice litigating commercial speech cases and seen a dramatic change in the court on the approach to commercial speech. right now, when we're looking at cases and, you know, you try to look across the country at which courts are the best to bring commercial speech cases in, frankly, the supreme court is more protective of commercial speech in my judgment than any of the lower courts in the country. >> i would suggest writing a check from a politician from alabama to california is not core political speech at all an agree with you that the right side of the court has taken the first amendment away from dissenters. i mean, really the original --
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one of the major ideas of the first amendment was to protect dissent. that's gone. and when we have dissenters, in fact, the court doesn't really protect them very well. i think that's a big change. >> i think, you know, on the liberal libertarian alliance i see it less in the first amendment context and more coming to equality and liberty and as well when it comes to privacy and the fourth amendment context. there's been sort of rand paul and chris coons wrote an op-ed about the riley case together. you know, and the marriage equality cases my organization and kato filed a joint brief together as we did in the supreme court cases from last term. i think the first amendment actually is an area in which the reports court moved the doctrine to very conservative direction by, you know, some folks have -- some comment taters called it a locknerization of the first amendment to strike down corporate and commercial
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regulations. >> just a brief question looking forward to the panel on death penalty and 8th amendment jurisprudence. does the panel expect anything forthcoming in the next term or is there anything percolating its way up or anything from any major circuit decisions, especially in light of the recent issues with experimental drugs for executions? >> so, the supreme court, there's been this debate that we all know about with problems of the administration of the drug cocktails and so far it has stayed away from stepping into those cases. it has issued a stay in a case from the 8th circuit that's going to the circuit that isn't so much about the safety of the protocol that was administered but whether you could impose it on somebody with specific health conditions. and i think that the justices
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are hopeful that that question will go away. most of the death penalty 8th amendment action i think is instructal cases that interest justice kennedy about medical disability, about age eligibility, those sorts of things. it has tried to avoid, what they would regard i think micromanaging the precise drug cocktail because it's so up in the air and so uncertain. you know, what drugs the states can use. oh, sorry. >> i wanted to ask. hobby more important about what the courts think of the corporation then it will be regarding a
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religious rights on a question. i think they are quite likely to overrule and say the corporations do have souls. but i'd invite the panel to comment on that broader general question. >> i have a colleague i'm going to shamelessly plug, dan tucker, a law professor writing about all the implications of hobby lobby for corporate law. she has written a lot -- i don't understand it all, but she is very afraid that if hobby lobby comes out in favor of corporations having free exercise rights and not limiting it to privately held companies, that a lot of corporate ceos are going to have very difficult ethical problems going forward in what kind of decisions they make. if they have to worry about their shareholders and their employees free exercise rights. i can't go into more than that, but she is very worried about that and i think she has a right to be. >> one interesting thing about
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that question, i think it's an incredibly important question. i think from my perspective the most interesting part of the case. it didn't get a lot of play at oral argument, the court was much more focused on the burden, the compelling interest, tailoring. what that suggests for how the opinion is going to come out, maybe that means that wasn't controversial and there is going to be, if not unanimous then larger number of justices thinking corporations can bring these claims. i don't know. i found it interesting. i guess disappointing that it didn't get more of an airing in oral argument. >> i think the corporation issue is a lot more nuanced than just do corporations have religious freedom rights. i think most would agree some corporations do. for example, churches are incorporated entities. churches clearly have free exercise rights. what about religious nonprofits like catholic charities? most people would agree catholic
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charities can exercise free exercise rights that are protected under ripper. the question is what is it about the corporate form that allows one category of corporations to exercise religious freedom rights and not another category? it can't simply be that religious freedom only attaches to individuals because we know that's not the case. rather, we need to many could up, if this is your position you need to come up with something that distinguishes a corporation as an expressy religious purpose like catholic charities, archdiocese versus a corporation organized for a for-profit purpose is owned by deeply religious people who use the corporation to promote their own religious beliefs. >> i think the question is good when in the sense that to eric's point, it does speak to a trend
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in supreme court injucourt in j. if you look to a repudiation of that era and a set of cases as they are connected, there is a change that is happening. so whether you look to hobby lobbies being more nuanced, i think it's about a broader issue how this court defines the scope of the power and rights of corporations, which is changing. >> the next big issue if hobby lobby wins is how this applies to laws that have discrimination between lgbt people. this is a big coming fight about to happen between religious freedom and discrimination protections that is already happening. that is something people are watching very carefully and worried about. >> hoping justice kennedy is watching that carefully. >> concerned about his legacy, as he is.
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>> yes. >> haley middleman. did you represent mr. canning because you have the same first name? >> actually it was the knowle canning company. >> i listened to the first five minutes of the oral arguments on the scour. it started out with justice ginsburg and others asking what would happen if all the nlrb decisions don't exist any more. you haven't talked about that. what is the actual effect of the decisions? >> the decisions issued by the board with the unlawfully appointed members. the three members invalidated in the supreme court's decision. all those orders are buoyed. what it had to do in a different case called new process steel from a few years ago, where for different reasons it held the board was unlawfully constituted. what the board has to do is
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revisit each order and decide whether or not to readopt that position. >> can they do that in the aggregate? >> i think a new process steel they actually assigned a panel to each case. the panel reviewed it and decided up or down whether to affirm it. generally, i think they did affirm it. i don't think they did it in an aggregate order. that might raise a few issues. >> they didn't have to wait for a new case to arise. >> right. >> i see. >> the court decided a couple of clean air act cases to gave the epa and interpreting that law. i'm curious about water thoughts what that says about how much deference they are going to give agencies going forward since regulatory issues are always a big question with the supreme court's docket? >> i think that is a great
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question. the epa had a really good term this year before the supreme court. the initial case you mentioned, the clean air act case, was a big victory for the epa. the court upheld a majority of opinion that included conservative justices, as well, upheld the epa's ability to regulate pollution that traveled from one state, air pollution that traveled from one state to another. that was a big victory for the epa. the greenhouse gasses case that in some ways limited epa's ability to regulate greenhouse gasses, in one respect allowed the epa to basically, as justice scalia said when he was issuing the decision, get everything it wanted out of the case. the way i sort of described it was that it was a 97% victory for the epa. the difference between what the epa argued for entirety and what
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the supreme court gave it even though it limited a little bit of its authority, it was only a 3% difference in greenhouse gas emissions. it was basically a victory for the epa. it was a good term for them. going forward, if you look at president obama's promised regulations on greenhouse gas emission standards, the ruling that limited epa's ability to regulate greenhouse gasses a little bit, i don't think really will affect that provision. those upcoming standards because it comes under a different provision of the clean air act. >> i think the jury is still out on how restrictive the greenhouse gas decision is going to be on the administration's ability to regulate greenhouse gasses. it's true that what the majority opinion holds is that 97% of the emitters of greenhouse gasses can still be or 84%, whatever the number was, can still be regulated by the epa under a different set of regulations,
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but the majority opinion also goes at length to say that set of regulations has a lot of restrictions in it. it remains to be seen whether any particular rule will survive those restrictions. in fact, the dissenters don't see how any rule could survive those restrictions in that regulatory regime. what the majority acknowledges maybe yes, maybe no, but at least it's there and that will play out in future cases. i don't really myself buy the narrative that this was a strong victory for the epa. maybe yes, maybe no. i actually don't think it was necessarily that. it could turn out to be that. we have not yet seen how this, how the regulations are going to be evaluated under a regulatory regime that was not the principal regime epa was advocating in the first place. >> our last question. >> three years ago there was the schneider case where you had the
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picketing of the soldier at the funeral, so on. one part of the decision by justice roberts was that there was 1,000 feet away. so there was a real buffer zone. is this buffer zone idea an arg um much less relevant or not at all or does it depend on subject matter or does it depend on how you go about the protest? >> it was interesting. a lot of people pointed out the supreme court itself has a buffer zone you can't get close to the building. i think the two cases are quite different from each other. this was a general line drawn around these buildings that you can't even enter them just to enter quiet conversation that wouldn't interfere with the operation of that clinic in any way. that involved protesting. even then upheld the first amendment challenge. i think the two cases are distinguishable. >> all right. please join me in thanking the panel, and thank you all for coming.
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[ applause ] flex tomorrow, we look at the decisions handed down this week from the supreme court as they wrap up this term. also a preview of the upcoming hobby lobby decision next week. and on the one-year anniversary of the court's decision on the defense of marriage act and proposition eight, a discussion of what has happened nationally since the rulings and went to the issue could return to the court docket. that is with the president of the national organization for marriage and the legal director for human rights campaign. and a detroit reporter joins us to talk about the more than 28
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million vehicles that have been recalled this year. also, we will take your calls and tweets. obama took aim at congressional republicans today, saying they have blocked or voted down every single serious idea to help the middle class. the president was speaking in minneapolis minnesota -- minneapolis, minnesota, where the state legislature recently approved a three dollar minimum wage increase. here is a look at some of the president's remarks. things, do some basic we can create more income and strengthen the middle class, and that is what we should be doing. i know it drives you nuts that washington is not doing it, and it drives me nuts. [applause] any reason it is not getting
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is today even basic, commonsense ideas cannot get through congress. -- you know, i'm supposed to be -- you know, politic about how i say things, but i am finding lately that i just want to say what's on my mind. [applause] so let me just be clear -- i want you to think about this. so far this year, republicans in congress have blocked or voted down every single serious idea to strengthen the middle class. you may think i am exaggerating. let me go through the list. they said no to raising the minimum wage. they said no to fair pay. some of them have denied that
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there is even a problem, that despite the fact that women are getting paid $.77 that -- for every dollar a man is getting paid. they said no to extending unemployment insurance for 3 million americans who are out there looking every single day for a new job come despite the fact that we know it would be good not just for those families who are working hard to try to get act on their feet but for the economy as a whole, rather than invest in working families getting ahead, they actually voted to give another massive tax cut to the wealthiest americans. >> boo. bydon't move -- don't boo, the way. i want you to vote. [applause] again, over and over they have showed that they will placething to keep in systems that really help folks .t the top that do not help you
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mind,ey do not seem to and their obstruction is keeping a system that is rigged against rebecca like ben's and 's. i'm not saying these are all bad people. they are not. when i am sitting there talking to them about families, we get along just fine. many of them will acknowledge when i talk to them, "i know. i wish we could do something more." be too friendly toward me because they would be run out of town by the tea party. [laughter] sometimes i get a sense they just do not know what most folks are going through. >> watch all of president obama's remarks any on our website, this weekend, south dakota senator john thune talks about the 2014 and 2016 elections.
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he also discusses the economy, iraq, and transportation issues. "newsmakers" airs sundays at 10:00 a.m. and 6:00 p.m. eastern on c-span. >> author daniel schulman on the koch brothers, their rise to political power, and their battle over their father's empire. >> this battle played out between the koch brothers, charles and david on one side, one side bill and frederick. this culminates in a boardroom showdown that charles ends up --porting -- boarding charles ends up thwarting. bill, frederick, and some others were trying to expand the board, and it would have ended up deposing charles s chairman, and they would have taken a greater role in the direction of the company. the end result is bill is tossed
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out of the company a few years later by his brothers, and there is a really dramatic moment in the board has to sit down and decide. 8:00 easternht at on c-span's "q&a." it was august of 15, i think, on a sunday, very much one of those moments when richard nixon essentially appeared on television, halfway through "bonanza," which was a great cowboy show. he interrupted the show to say, "we are not going to allow the dollar to be converted into gold anymore." this in many ways was one of the most significant events -- the most significant things to have happened in the history of money . it was a very decisive moment where essentially he shut the gold window. that is what the term was, where simply come not
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into fort knox metaphorically and say, "here's $100. i want to get the gold value." that was a consequence of the big, bad problems that the american federal government had got into with its debt. years of the vietnam war and also paying for the great society, and it just did not work out. there was a huge trade deficit. >> author and conservative member of british parliament kwasi kwarteng talks about the history of money and its relationship to war saturday night on "afterwords." this month on our online book club, we are discussing "the forgotten man: a new history of the great depression." start reading and join others in our chat room to discuss. "washingtons journal," we looked at the
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legalization of marijuana, and throughout the day, we have been asking viewers to weigh in on facebook to the question -- are 295st poll numbers yes and 98 no. weigh in with your thoughts at of denver,ine colorado. that state the first in the nation to allow for colorado's recreational marijuana sales. it is taking the lead to learn about its experience not only since the start of the beginning of the year but up until now. joining us from colorado early this morning is been markets of of colorado public radio. thanks for joining us. pleasure to be here. thanks for having me. host: if you could set the stage for us how colorado set the stage for medical pot sales. as for recreational pot sales. smallyears, it was a very
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model meeting people grew in basements, very small operations. not many people were registered to be patients for medical marijuana, but around 2009, dispensaries took off, and these were radical dispensaries that were shops like what you see today, and it just exploded. hundreds of them throughout the state. the state created some of the strictest regulations in the nation state wide at local levels requiring background checks for owners -- plant counts, inspections for buildings, and all of these things. some people say that because we had normalized medical marijuana in that way, that the sky had not all and despite all of these hundreds of medical dispensaries, but it made people feel more comfortable passing recreational marijuana laws. i think one of the big arguments for recreational marijuana is that we should not spend so much time and money locking up people for marijuana offenses. we should not be wasting money on everything.
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those messages resonated with voters. barack obama was in colorado mobilizing a lot of voters and passed overwhelmingly. host: so, since the law went into effect, what has changed? what changed for them when they wanted to sell recreational marijuana? guest: so, the law sets it up that the medical dispensaries that existed before january 1 could switch to recreational marijuana. no new businesses in the first year. in denver, no new businesses for the first two years. dispensaries that had been open for a long time got first crack at it. only dozens opened on the first day, out of 500 statewide. those businesses that opened in early january were the ones who saw tons of sales. lots of people coming from wyoming and kansas and germany --
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we are six months and now, and we have 100 recreational .ispensaries with both medical there are still 500 medical dispensaries, before hundred have yet to switch. seen the full realization of this market, probably won't for at least a small time. it takes time for them to decide to open up and sell medical marijuana. these businesses do not have traditional bank accounts. getting loans to expand the business is difficult, getting building inspections. maybe replacing the fire sprinkler system in your building before you can switch to recreational. there are so many hurdles, we are only seeing about a fifth of the shops that could open actually doing it. things thef the callers brought wh