Booktv. Tonight, a look at things to be decided in the Supreme Court. In the state of the union speech. Then the federal Communications Commission because of the failure of hawaiis Emergency Alert system. Midway through Supreme Court term, attorneys and court watches at Georgetown University law center discussed some of the key cases to be heard in the coming months. The court will be deciding cases related to congressional gerrymandering, immigration restrictions and taxes of Online Shopping. This is 90 minutes. The people who are getting their food just finish up that and proceed quietly. We will get the program started. I am the executive director [audio lost] our moderator is a georgetown graduate first and most important. She was once the editor of reporter for the and now she is just an independent contractor and a reporter. And amy really, i think, probably knows more about the Supreme Court than any person alive. With that, i will turn the program over to amy. That is a tough introduction to live up to. He also asked me to be very brief in introducing our panel. So i will point you to the nametags. You have google and if you have one more transport what i think you really need to know about the panel is between the four of them, they have argued 84 cases at the Supreme Court. If you think about in terms of the number of cases the Supreme Court hears each time it is well over eight full terms of cases with these four panelists. I want to thank you Supreme Court for giving us so much interesting stuff to talk about today. And if there is one theme that seems to be emerging this term, i think it has to be redistricting. And my colleagues in the press room, they agree with me it seems like it is one of these Homer Simpson signs. It has been x number of hours since the last redistricting request which filed with the Supreme Court the last time was monday. We will start with a case out of maryland. Under the summer, they were talking about a case in which a Supreme Court heard oral arguments in october and ensure it was discussed at the preview. The partisan gerrymandering case and she said it was probably the most important case the Supreme Court is going to decide this turn. After they heard arguments they cannot quite get enough of partisan gerrymandering so in early december they granted another case called benedict versus lebron out of maryland. It is kind of the yin to it is a single Congressional District drawn by democratic officials. Who better to discuss the redistricting of paul smith . Who argued on behalf of the challengers in gill versus whitford and is now here georgetown. Thank you amy. Im happy to talk to about the case. I have the same lack of information as everybody else about exactly why the case was taken in december. I think it was a surprise in many ways. So this gets argued in october. And we are all merrily going along. We think if we do will be nice for them to roll in january or february. Maybe we will get a new map in wisconsin. There was some reason to think it would be true but based on the way they accelerate the oral argument. Then in december they take an entirely new case out of maryland. And the surprise was that they really didnt really have to do that. They could easily have done what they normally do when they have a case is hold the second case and maybe remand that later on. For decide later on with the appropriate disposition would be after they finished the one they already heard arguments in. But they didnt. I guess you know this has actually been to the Supreme Court twice now. Because it was up there before under shapiro versus mcmanus on the technical issue of whether or not it was sufficiently frivolous that the District Court correctly dismissed it without appointing a threejudge court which ordinarily decides the case. The Supreme Court said no, it is not substantial at all. He should have appointed a threejudge court. They did and the threejudge court held that the case is just the big variance these cases have been for a number of years. Is there sufficiently clear standard to apply the judges with the constitutional issue of whether there is too much political bias or otherwise. And so, the case proceeds along. Further wisconsin case in the court, the plaintiffs in maryland file a motion and it is denied by a vote of two to one. An is a different case and what they are looking to achieve and will be interesting to see how the Court Response to these two different kinds of theories. The challenge is to the single district in maryland the far western end of maryland. The district 6, a district in the general area for many years was republicancontrolled. Elected congressman name is bartlett. In 2011 the democrats being controlled maryland decided in their wisdom to take some of the world area and draw that down into montgomery county. So that it became much more blue than it had been in the past. And they started electing democratic member of the house you end up with a delegation from maryland that was seven democrats and one republican. But the argument theyre making is not that the 7 to 1 is somehow unconstitutional but the one is unconstitutional. This it was a violent of the First Amendment rights of the Republican Voters in the district who, the claim is of the state acting with specific intent to retaliate against them because of the decision to exercise their rights to vote for republicans. In the past and that the retaliation took the form of change in the districts of those people would no longer be able to control their destiny. And now hence would be represented by democrat. That is a fundamentally different thing than the argument we are making. The gender the gerrymandering is unfair and that it takes, even if one party gets majority to get muslim said thats what gerrymandering is. But there is a lot to be said for the First Amendment. That if these guys are pursuing it has some advantages. The main is that it does not turn on as ours does, showing that the bias is too much. Their argument is that any amount of political motivation, specific intent to flip this district from one part of his unconstitutional because they do not have to have the efficiency which is our mathematical formula for judging the severity of gerrymandering appeared for the court to separate politics as usual. And they do not have to make any arguments about the whole map. All of us things are very interesting. It would be an interesting way for the particles they would have to limit. In terms not so much that the district previously was only and is now the other way. What the impact would be elsewhere, we are not sure. We, which i still believe in our theory, with all the brief that says we think that the plaintiffs in maryland should win. But under our approach with the 7 to 1 was unconstitutional. One way the court can handle this as, they would win on our theory or who knows, maybe theyll take their theory and ours will turn out to be wrong. There was a lot of argument in the case about how maybe we did not have standing because we deny plaintiffs from every single district and in wisconsin. They do not have that problem. Who knows. I will not have any prediction for you. The court is clearly very interested in gerrymandering. And it has been hearing these cases now since the 1980s. Really you can go back even further. If you look at the 1960s. And it has never come around to find a way to rule against a partisan gerrymandering. I think the time may be now, the fact that they took a second case, it is encouraging in the sense that whatever they are doing, it probably will not be a clean, these cases can never be won. We will see. Do you have anything to add . I have a quick question. Do you think the Virginia Election played into this decision . To take on the maryland case . I dont know. There are all sorts of theories. One is that it is a democratic gerrymandering. One of the things the chief justice was very concerned about was appearing partisan. So this gives an opportunity to rule against both parties at the same time. It may be a reason. How the Virginia Elections would affect the decision i would not sure. There was a big debate in the press about whether the Virginia Election showed the gerrymandering is such a problem because you can kind of overcoming for and did the opposite. And we have strongly tried to it is proved that jerry manders are very difficult to overcome. Have eight or nine percent majority of the vote for the Democratic Candidates for the house of delegates in virginia. They did not get a majority of the seats. So [inaudible] even then it would have only been 5050. And you have a message advantage. The gerrymander held. That is my message and im sticking with ep requesting maryland, what is the jerry for why the switch makes a difference . Why is it like every district designed some way, discrimination against the people who are in the minority . The problem is, it cannot be the every district that happens to be republican map is unconstitutional to democrats good and that the democratic district is unconstitutional for the republic is good to have a narrow theory and they want to narrow it by focusing on specific intent and saying that the flipping is innocence of retaliation. That was clearly done deliberately. Is any of this done accidentally . [laughter] just randomly with a little pan. Again, trying to be faithful to their theory. They draw a distinction between people knowing the effect of what they are doing and having me specific punitive retaliatory intent. Whether that works, i dont know. Is there evidence . I dont know is not even disputed that they tried to make the democrats do not have a lot of gerrymander as anywhere else. It seems like to me, and doing some in advance that the argument looking at the transcript that one of the challenges of the First Amendment there is the proof problem. What kind of proof will be necessary. I can scrutinize this. Do you happen to know if they built into the theory, the idea that there is a safe harbor if you have an independent Commission Set up in the district that youre automatically okay . What do you think that might be a way to make the rule i dont know. I have not seen them discuss that. We certainly have taken a view that it will almost every standard. Maybe never. If it is drawn by a real bipartisan or nonpartisan commission or by a split legislature. Where one causes one party and the other has the other party. The level intent, you have to show when there is one party control. Even the new york style where they say we let you do the senate and we do that is an interesting question that unfortunately did not get asked. The same situation largely arose in virginia. The gerrymandering i was talking about was the lower house. They gave control to the public so the democrats can do it they could with the senate. And they just did not do as good of a job. [laughter] is the maryland theory, really just limited to a flip and so if you are the benefit, if you are a bunch of republicans who get packed into one district, the one republican district, they have the Eastern Shore is where that district is. The Eastern Shore, the western shore say that again . Usually you think about packing and cracking as ways of doing bad things to a minority. This would be cracking is not okay. But packing right, the there was a there if you are drawn into a district where as we would say it can be part partial but statewide violation because the packing by so prevents new and the party from electing your fair share of people statewide. I promise we would leave tougher questions for all of you. From all of you at the end. But we will move on to the next case. Which is trump v. Hawaii. The preview is on the 19th last year. At that point, the travel ban 2. 0 was still in place and the case scheduled for oral arguments in early october. On september 24, the president issued a new water and everything started all over again. So will he will talk to us about the travel ban. Is it different . How will it go this time around . Cristobol, i do not call this 3. 0. I think it is 3. 1. Because weve already had a peek at this in the form of the court basically saying, okay, this is off to the ninth circuit and they will decide it quickly. Well go ahead and issue a stay of the District Courts injunction. We know the ninth circuit will decide quickly but we have no idea what they will decide. But if by some chance, they were to decide against the administration, will go ahead and preemptively stay the decision pending the filing by the government. And by the way, we are confident the court of appeals the ninth circuit did in the Fourth Circuit did not. As a result, the cases of only from the state of hawaii victory in the ninth circuit. In the state of hawaii, they won that case on the statutory grounds. That accounts for the first, basically the first two issues. For the first three issues. Are these kinds of cases reviewable . Can you break the law. They say the president is obliged to let the country certain categories of people. Does the statute barred the president from discriminating on the grounds of National Origin . As to certain categories. Is the District Courts remedy or an overbroad remedy. Basically it applies to the other issue that is swelling around these travel ban cases is whether everything the president has done, 1. 0, 2. 0, 3. 0, is all tainted by antimuslim and therefore no violation of the establishment clause. Within that the question whether the establishment clause applies to these at all. That was very much in the Fourth Circuit. The Fourth Circuit heard argument but as of one hour ago i had not read the decision. The state of hawaii in his opposition to this, from the ninth circuit says by the way, if you grant you might as well also do that on the establishment clause where the state had preserved so, the Supreme Court did in fact do that in decided to take the case. So that is no question number four in the case. There is obviously has been paying up and down between the lower courts and Supreme Court quite a bit. But we have not yet actually gotten, with very little, eyeballed on the Supreme Court handling of the case. Everything so far has been orders, issued by the court except for the somewhat curious at the very end of last term. And, while there has been some you know, especially in that circuit. The ideological divide about how to handle cases. The most recent state water from the Supreme Court, the only centers were justices ginsburg and the stay orders include the one that was actually accompanied by an opinion. It said honestly nothing about the likelihood of success. The dissent by Justice Thomas, and gorsuch. From the granting of a stay on travel ban 2. 0 said, of course, the granting of the state totally means the applicant have a likelihood of success but there is nothing actually saying that. So, we will actually get a look at whether the votes on the stay, stays had something to tell us about what the justices think about the merits. And the merits remember, include, can these cases be litigated at all . Does the statute bar National Origin discrimination. Something that really would be significant in future cases involving future president s and future classes of immigrants from other countries, not involved in these travel bands at all. And then of course it may well be that some of the justices have voted for a stay simply thought that the equities with the government but the government may wind up losing a lot of that. This is queued up for the end of the term. I expected to be argued in april. It should be very interesting to see. Not just the arguments made with the questions. Ask could you elaborate on what the argument is that the establishment clause does not apply to the government when it is making these kind of decisions . I am not sure that i can kind of capture it. I think that the basic idea is that for example, take a claim based on asylum. Well established that when this country grants asylum to a refugee, it is based on the fear of future persecution and if we would change the country from which it came, based on not just any kind of bad thing that might happen to you, but among other things, persecution on the grounds of religion. For example, if you have no religion, youre not eligible to claim asylum based on that. What im about to say say it anyway. No one is watching it is a lot easier to make out a claim if you can base that offer religion. As a result, silent decisions take into account, certain religious distinctions. As a matter of asylum. And so i think it is not, look at the constitution as find the cause assesses aspect of the bill of rights does not apply to the border. But more than intuition. We have been making distinctions among people you know, lets say, we would grant asylum to a christian of egypt but not a muslim from egypt. On grounds of likelihood of future persecution on religious grounds. Therefore, not all distinctions based on religion at the border can be answers the problem, is perfectly good reason in that context . I think that brings up the question, is the establishment clause and equal protection clause for religion . Or is it Something Else . And the equal protection context we would say it is based on whatever. Well, of course, we have to treat people similarly a lot. We look at whether there is a compelling interest or important interest or whatever. But that is not how the establishment clause is. I think that brings up the question, how do we do religious distinctions . How do you analyze that . Is making of a religious distinction okay . Is it discrimination based on something that is not i think one of the interesting things is that i think this job. Now but the original had a preference for religious i think when they were seeking refugee status. And that raised similar religious questions. But it is no longer part of the case, right . The argument was not the order was intended to favor in terms of who could come in as refugees. I think thats basically right. Although, bear in mind we have not yet seen a fullblown briefing on this. So well see if that i do think the pretext is very much in the case. But it is a question of what evidence of pretext is there . Right. I want to be see any parallels what happened when it came to the gitmo litigation. After september 11. Given the administration a lot of latitude. And over the years, we became more and more willing to intervene and have something to say about that and then we actually just said forget all of those people. But i wonder if the reverse might be true here. That there seem to have been right after the election. A lot of scrutiny on the travel ban. Given what the president has said during the campaign and the transition and that sort of thing. And we have done the vetting. I believe the same question. But i believe in the Fourth Circuit somebody said basically to make this president can never issue a order like this. But i do think with problems are the extreme spring back with the injunctions with government speaking with a longterm band twopoint oh with a connection of people in this country so now the ninth circuit said okay we are only allowing injunctions but this appeal court still says it is now a more robust stay. We are oscillating around where we end up but basically the first injunction for the president against discrimination that whatever the Supreme Court and of saying, may have all the features are the arguments but thinking in particular when the justices decide questions and to think about. And the president has engaged with each and every one of them. Now we move on to the issue of Online Shopping now this is a case to represent south dakota to acquire outofstate retailers. And on the other hand like other mothers i do Online Shopping. So this case has roots in all catalog purchases. This is a case called quill [used to be you go to the mailbox and it would be inundated with dozens and dozens of catalogs with pictures of things with things you would imbibe it that they keep track sending catalog some people would buy some things eventually so there was a fight in the state of maryland to the Catalog Company was in South Carolina. So the Supreme Court decided in the quill case that it would not evolve jurisprudence to have a substantial nexus. But uniquely in the sales tax context estate cannot tax a sale with no physical presence that means it could not be applied to the purchase from South Carolina or wherever and that has been the rule for a long time. Obviously with very big implications for Internet Sales but also many, many other companies with an effect on how it has worked so we represent the state that is challenging this precedent to establish there is a constitutional power into the internet i will try to present the case objectively and how i described it. [laughter] but if you a sense what the fight is all about. It comes back to the Supreme Court with sales and use tax from colorado from a few years ago it is apropos to say that right away were in the middle of the collateral fight and we have this case involving a lot of havoc and a lot of harm to states and localities who cant tax sales into jurisdictions. So i think we should revisit that decision. Justice kennedy and Justice Thomas are the only members of the court. And in addition with a insider tip so everybody took notice so the Retail Community had a meeting and decided to work with various states to get statute enacted to challenge quill this is a very unusual case because he built the case from the ground up got the legislation passed, we went into court and i do that all the time but usually not on purpose so we said to the trial court we went to go straight to the u. S. Supreme court. We timed the case from the enactment of the legislation all the way through so it would take the last conference in january to be argued this term. It really wrong receive the addition not just the amicus brief on our side but opposing certiorari to say this is not an important case dont Pay Attention which is an unusual strategy. Suggesting perhaps that the case is very important and the Court Granted it. It does have big implications of some companies have started to adjust to the existing rule. And then facilities and then start to collect the sales tax and if you buy through amazon but a lot of internet retailers will not. This has big implications how commerce occurs in the United States it is called showroom ring to go into a best buy to see different televisions to enjoy their Incredible Customer Service and learn a lot from the technician and based on what you see and then buy it for 7 less because they have to charge you the local and state sales tax. That adds up to billions simple use of dollars. So it turns out when you Purchase Online you dont have to pale blonde pay the sales tax but you are supposed to pay the use tax so everybody raise your hand if you have ever paid that. There is somebody in the back who wants to become a member of the bar. [laughter] a funny story but him went one time to go to the tax office to pay the use tax of everything online and said you are pam carlin you are the person who pays the use tax. So there is one virginia resident after teaching her legal ethics class goes down. [laughter] but this is a case you tell the Supreme Court by the way there is a guy kennedy and Justice Thomas said it should be overruled and justice courses courts gore such that it should be interred but it was no longer in the internet era. And because the Supreme Court granted certiorari that we have the wind at our back although they do have substantial arguments that the state lost the quill case in part because of a concern of retroactivity over going out prior precedent. And this statute and with that retroactivity and the major question so how would minister a bowl is this . With a small shop located somewhere in arkansas . So if you do have a small shop in arkansas with each task one taxi in the locality . And that is the debate that they believe it is mathematically impossible also a way few are overruling a decision how many businesses have been set up that they are not charging the sales tax . The anybody doesnt out the importance of the case. And now to take up the problem to have an invitation will decide she will for the states without principal argument congress is wellfunctioning and is all over this problem and are on the brink of solving all of this. The way the Commerce Clause works to say they will not regulate this issue so there are a lot of proposals the states can the sales and use tax. Even if the Supreme Court would rule it might spur legislative action. But so far it seems like there is no legislative solution. Times up. And those that expressly rule the president . So what implications do you see for justice that believes in starry decisiveness . This is a very serious concern because the question to have that court that is five four so for liberal justices being more enthusiastic so we have written a section that that is the case about catalogs or the internet. Sometimes that is the core one the course the Supreme Court takes. So we offer a path that doesnt allow them to have anything. And it seems to work. So we stay warm. So i do think it is a puzzle how to navigate the question when the opinion says something of the vitality of the precedent to overrule. So it is a very, very serious concern how many votes you can get. To bring that ideological bell. So it isnt something you would think justice buyer is there bringing his hands but he doesnt do as much Online Shopping but the chief doesnt believe anybody has two cell phones. And where they stand technologically doesnt itself have any residence either but to be very conscious of the fact to have that opinion that precedent is precedent. You set up the last case with janice with the American Federation of state for the first time that we talk about it the preview only granted it this fall but talk about the issue in the case so i will turn it over. The issue in the case whether it violates the First Amendment for Public Employees of Public Employee unions to pay fees to cover the cost of collective bargaining. It does happen for two reasons that the court seems to have addressed this issue that it is okay so in that case 40 years ago but reason number two it may sound familiar where the court has agreed to consider that issue. There was a case a few years ago that knows a lot more than i do because he argued one of them. Raising the issue if the 40yearold precedent should be overturned but it prevailed in the day which is important so the court then granted certiorari and heard oral argument to address the same issue at oral argument there seem to be Justice Kennedy and Justice Thomas assuming that you were with them based on the world argument is seem to think maybe it was time to go. And Justice Scalia passed away shortly after the oral argument and the court affirmed suggesting that Justice Scalia was the vote and his comments were the indication that the way it looked that they would have been overruled requiring publicsector employees and states cannot require them to pay those agency fees to the agency. So if you are reading the tea leaves it is reasonable to conclude justice course which is in this case but if you look at his poor voting record there is a possibility he could help with the conservative wing on the court. [laughter] met to backup a Public Employee from illinois he isnt a member of his union but illinois law and collective Bargaining Agreement to pay 45 to the union it is a violation to be compelled to subsidize those activities and Political Activities of the union. Why are the political activitie activities . It is undisputed you cannot force people to subsidize unions but here they are used for collective bargaining. So when the other party is the state youre trying to get something out of the state with Public Policy to get this pension benefit asking for contraceptive coverage. If you are a teacher arguing about classroom size or merit pay that we realize our Public Policy issues. That is a form of engagement with the government and it violates the First Amendment in that effort. The argument on the other side of the basic argument as it appears that isnt disputed in this case to say essentially only one union can represent the people so speak on behalf of the employees to represent not only the workers of the union but the faculty members and in that circumstance so to get a free ride off the work that they are doing but to get those benefits without having to pay for. States say that in the Public Employee context is much more limited than anothers and those that say when you are regulating as its rule the First Amendment is less protective of the employees speech. That is the issue if you are forecasting the case on the side of the challengers i think the case is very important to have broad policy implications from my understanding from what i could green that 80 of the unions dues are agency fees in play. Maybe 5 million employees across the country that are subject to the requirement to pay these fees. If the fees are not required to be paid there is a fear that a lot of them will not become members of the union or pay the fee. In the Public Sector unions across the country in relationship with the governmen government. What is interesting thing to step back is the latest those that have been brought up by Public Interest using the First Amendment to protect the economic interest on the abortion related case without traditionalist minded americans or gay rights so there is the increasing movement using the First Amendment as a tool to advance policy on that side. And with the Justice Kennedy and presumably over the next couple years. And in the years to come. But in this case three or four years ago but this is person on reasonable asking them to do this nobody thinks they believe in the union and from the employees rights without any content basis that you could do that so there probably isnt any money out of their pockets. Justice kennedy says you mean people give up First Amendment rights when they go to work for the government . He is the author of the garcetti case that sets out the doctrine in ways that the government can restrict people speech in the workplace. But it is still hard to understand. But why didnt they just do that in paris . So in that case they rule on a more narrow workaround. But at that point Justice Scalia had written the most effective opinion why it was fair and equitable. That is clearly speculative to have some difficulty coming around with that strongest defense back in the 80s. It appears they wrote a broad opinion expressing deep skepticism. That is the explanation i would do. What will they do will they say they are overruled like in south dakota . Look at the language in this case and it walks right up to the line. They could have distinguished it to say we dont have to address that but it went out of its way to talk about all the additives but they were directed by the court went out of their way to reject the arguments not mine personally but from the justice going out of its way to reject those arguments and you see them being raised again for understandable reasons to make even buy me a minute ago. So what happens with that interrelationship between the cases with the federal statute . I dont know the answer to that but from what i can tell that obviously it is harder to balance that as the case is currently positioned they were very careful not to look like they were asking for anything more. In trying to figure out of there is enough state action they were asked during that question and they were very definitive but its not completely obvious. What happens to those union to represent all those people . Or those grievance proceedings . Why is it constitutional to tell them that . We will be talking about this in a couple years but to my surprise and delight is what we wanted to cover so now we will move on to other cases talking about another First Amendment case. This is brought by conservative leaning entities in the same pattern the National Institute because the places requirement in a Crisis Pregnancy Centers that have Pregnancy Related Services the groups are prolife and there is a debate a lot of the critics say they mislead people of their options so california passed a statute with Crisis Pregnancy Centers to provide medical services that they have to disseminate for all people who walk into the Crisis Pregnancy Center that california has Public Programs with free or lowcost access to comprehensive familyplanning Services Including abortions for eligible women with the prolife Crisis Pregnancy Center what they would call an advertisement for abortions so that is one provision the second requires Crisis Pregnancy Centers to perform medical activities to say we dont have doctors here are licensed to provide medical services so a superlong discussion the argument is it is compelled speech with a huge debate levels of scrutiny with the legal will with the Legal Framework and at the end of the day the court has to figure out whether compelling these types of speeches tries to offer a compromise approach to decide all aspects of standard review and with those two provisions differently and you should not allow california to require people to advertise with prolife groups but it is perfectly reasonable for those who dont provide medical services that will provide information to mislead people. That is the case and that is interesting but implicate where the Supreme Court is on the First Amendment issues. There are two cases where the conservative policy outcomes one the United States with those commonalities how do they approach those cases. One thing that is striking that is a different brief with a reasonable commonsense solution but that is effective so what explains the difference is the strength of the arguments with that prolife entity isnt necessarily being misleading but that there is a stronger challenge to the constitution i could be mistaken for medical services and with that latter situation there are a lot of regulations out there and it seems there is a much later danger of confusion. I do have a sense the administration right now that shared interest of the Supreme Court and the lower court. With the larger number of briefs from a Republican Administration taking a position under the constitution is striking. I think thats fair. That is a good thing welcome to government. It is asserting its prerogatives protecting the constitutional interest of the government and that is important and to take account of. And when they conclude it is both appropriate and welcomed the government is willing to say that in court where they are consistently asking for more authority. And if we are talking about the eighth amendment and if the Administration File the brief to take a guilty plea of immigration consequences. What about abortion . It definitely isnt unheard of but demonstrably the case it has taken this position a lot more than other Republican Administrations the government has this responsibility but to be more aggressive. Others may disagree with you. Is that consistent of criminal cases . If we just established that clause that a lot of the constitution has been around for a while and a lot of these problems have been around for a while. There are ten cases of some significance where this Administration Takes aim but it is more than people realize. I havent looked in. Clean but you make the. 1 thing to be kept in mind but that gap is a bigger gap so that position is conservative may be the predecessor but the saying that this attitude is unconstitutional then you dont do that that it was much more liberal. And for sure the Obama Administration was more liberal in this administration has had a high level of comfort to say it is beyond the power, not beyond the power of the president but congress. It will be interesting to see that continue. But at conference on februar february 16. The courts regular argument schedule and they skip town for the summer. So this is the deferred action for Childhood Arrival Program of prosecutorial discretion from certain Illegal Immigrants based on the idea that you have different enforcement priorities and while they abide by certain requirements so the fifth circuit had declared but we concluded and we are going to stop Going Forward so a variety of plaintiffs brought suit in San Francisco with a hotly contested question to also deal with executive privilege with those hot button issues so then the District Court has granted an injunction to say i can review this it is a violation of the epa but basically the attorney general therefore the revision of the program says it is unlawful. Therefore i can review the question but it is not due to that reversal. It isnt a final decision. So the government appealed to the ninth circuit know it has an interesting practice that announces the membership for a month after it issues the first order but the ninth circuit Motions Panel and the government may have thought a little if that is a good forum to litigate so someone unusually filed in the Supreme Court not a request for stay but that a stay would be inadequate asking for certiorari before judgment meaning this is a case in the court of appeals but we dont want you and that there are lots of other challenges and so you should take it. And to be asked separately that petition be expedited because before you consider that petition. So those respondents filed the opposition to queue up that conference and could be heard in april or may but basically this will to you this question with daca the court doesnt have to decide the last administration acted unlawfully but basically that was the District Courts decision the program was lawful so resending that resending that. But it just seems they cannot make this go away by deciding to resend it. But they said the last was illegal but you were wrong what you are doing is illegal. The government defends on the ground not that it is a legal opinion basically there is litigation risk we see this program in place we will be sued again as a litigation with the cost make it not worthwhile. What about doing that explicitly to say that is about idea . That is always the question what you get into a situation where you can either try to shore up what is under review or do both we werent allowed to do that before. But if they do that to say now we will do that again we just decided as a policy matter. May be it is the optics of it . Maybe they dont like the optics or the politics they dont want to be seen to begin to children to say our hands are tied. And then with the backdrop of all of this could be the fact the Supreme Court could clear there is prosecutorial discretion. Anybody else . We have two more cases to talk about but we want to leave time for questions. So just talking about the history would have taken the entire 90 minutes we will open to your questions. Do we have a microphone . Please keep them concise. Do you really think with the Supreme Court. [inaudible] i think, im sorry pennsylvania redistricting case with that decision by the pennsylvania Supreme Court under the pennsylvania constitution. There is a stay Application Pending in which the argument is that the state Supreme Court does not have the power of the elections clause to regulate the way the legislature exercises the delegated power to set the time place so it binds the legislature for that function . So if you do bush versus gore but at the end of the day there is enough precedent of the legislature cant be completely independent with that stay application. [inaudible] the followup question is do i agree with other people in the blogosphere who gave significant that Justice Alito didnt give that response but i dont. Id think this is the kind of case with this stuff at stake with the argument maybe not quite as implausible as people think and taken into consideration. Has been referred to the full court . I dont think that is set yet but that is entirely possible. But it issues the merits opinion it is now they have the order but have not written the opinion yet. Certainly is not relevant to the stay application. So you mean if the court does take it up . What does it mean if they granted us stay . There are five justices who think the argument is substantial the standard requires them to make that determination there is a likelihood that it would be reversed so that does mean a lo lot. So if there is a theme that they call the shadow docket decisions in the election cases the court does seem uncomfortable before it comes to an end a decision to redraw the district with those district lines when the election is underway does that jive with your experience . Or is not relevant whether there is a federal question . They dont like federal courts to late in the game to say restart the election process especially during the election year. They said that is not a good idea. Second with a federal case the North Carolina case with gerrymandering claim prevails they have the sense they want to figure out the answer on the merits before the lower courts are anticipating that to apply it that isnt an orderly way to go. But it probably means they like things to go in the right order. But if either of those wide apply to pennsylvania which is so odd otherwise it isnt in the jurisdiction of the Supreme Court with merits because i think it is unlikely. In the era in which conservatives have an effort in the Supreme Court is protective of its own power and it sees the effort going too far to intervene to say state law cannot apply here for that inability to develop other theories that the other mechanisms under state law could be lost in the federal electoral context so it could signal that you just cant work around these doctrines with state law. But the precedent is the arizona case two or three years ago the argument was you cannot make the independent commission take the power away from the legislature because the constitution says legislature five four with the liberal members said the commission is a legislature for that purpose. So to work around those federal limits still exist. The court has also said with the deadlock who should draw the district . What the state courts do that. With the federal courts can. They are authorized they are supposed to get the first shot. People pass constitutional limits in florida how the legislature does redistricting and it was challenged as a violation of the elections clause. So it doesnt seem like a strong argument. How many more redistricting questions . [laughter] [inaudible] the fact that pennsylvania judges are elected i wouldnt think so. But the role the state and federal courts play is pretty well established with most of the justices in Supreme Courts. These are partisan was this brought up in pennsylvania afterwards . I dont know the timing but. Not that that says anything about the decision but it could about the case. Look at the map it isnt based on merits but you are right looking at the state Supreme Court before deciding the case be met. Doesnt it make you feel that one case is likely to win having so many different arguments and is likely that whatever the case might be what impact beyond that state . Does it mean it is more likely somebody will win something . Is that a fair summary . How did you speak speech the question is south dakota shows itself and its not up to us to make the legislature do anything about it. Theres about a halfdozen states that were quite interested in the responsibility because there is quite a lot at stake. Others that are quite significant is that you are talking about states where the sales tax is where the state revenue comes from. When you dont have a significansignificant income tad estate and its quite palpable so states like that are the ones that are most interested in the question in the states like south dakota where you dont have a lot of urban shopping areas and that sort of thing so it is a very significant consequence for that state. They want justice. A lot of the retailers on our side also have that Internet Sales but the fact that they have stores in all the states banning even if you buy them online they have discharged the sales tax its only the pure internet sellers subject to the tax so the focus that we represent our best buy and walmart and much more [inaudible] [applause] is a panel of analysts interviewed last nights state of the Union Address and the Foreign Policy agenda. The