Transcripts For CSPAN3 Key Capitol Hill Hearings 20240622

Care act. Is that a fair criticism . I think in part it is and in part it isnt. Im not sure that it is the dissents right to say that the court had to strain to create ambiguity here anymore than it does in a range of cases that get far less attention. Is it more of a strain to find ambiguity than it did in yates . That im skeptical. Other than the intensity of the spotlight im not sure the court had to work harder to find ambiguity than in any number of cases where it resolves hard questions. I think it is fair to say that whether or not the chief justice or Justice Kennedy thought this was ambiguous, they thought it was a drafting error. Its fair to say in other contexts the court has been less hospitable to that. Im not worried about how we come out because maybe it is mistake and congress can fix it. That argument has a lot more sway in other contexts than it had here because in most contexts its a useful and benign fiction. Here it would have seemed ridiculous. The last thing anyone suspected was that congress would put that in there. They had to put it on ambiguity and resolve the ambiguity by purpose. Was it me Going Forward . I think the act is here to stay. There will be some legislative attention to various things like the excites text. There is the challenge which i think the d. C. Circuit is challenging. I dont see anything here. Theres two more cases pending in the District Court in d. C. , one to an epropriation the white house has made to some of the Health Insurance companies of about 175 billion claiming thats not authorized by the act. I think the case, that was brought by the house of representatives against the secretary that case got a boost from the arizona decision. There were standing questions about whether the house can bring that suit. Granted its only the house, its not the entire congress. But the arizona case allowed for standing there and surely enough, the house sent a letter to judge collier yesterday saying we think the arizona decision helps us on the standing piece of it. I dont see smutchmuch here on the merits. It may make it more likely the judge makes the merits. Then theres the case on the administrative fix regarding individual plans. Finally, i dont know that this case helps the secretary, the chevron discussion actually may hurt the administration a little. But i think theres no denying that atmospherically there is very much a feel now that the challengers have gotten their day in court. And its hard to think that that wont influence some of these pending cases. [ applause ] thanks so much. Well now turn to really what our three big buckets of cases bodies of law that the court confronted in a number of decisions. The first of those is going to be the First Amendment. We have the great good fortune of having Nadine Strossen is one of the nations foremost expert on civil lirktsberties questions. Can you talk to us about the First Amendment . I can. I am going to sensor one word. Its not nyu. Its new york law school. I have a couple of students here whom i would like to think for their support. I am delighted to be here at acs which ive been an enthusiastic supporter of from the very beginning. And im thrilled at how this organization is doing. I have to say i also am a frequent speaker and debater before another organization that tom mentioned in his introduction. And every time i have the opportunity of speaking to that group, i thank them for what i consider their single greatest achievement which is spurring the foundation of the american constitution society. [ applause ] the last time i had the great good fortune to speak before this group at an annual convention a couple years ago was also on the Roberts Court and free speech decisions. And i stress the point that still is not nearly as wellknown as it should be. Namely that the Roberts Court overall has a very mixed record on freedom of speech. And thats surprising to many people. Because so many of the courts marquee free speech cases, the big name media heavily covered cases, the court has indeed protected controversial and unpopular speech. Its Overall Record is very mixed. And the current term illustrates that. There were two major free speech cases, one of them upheld free speech rights in a way that expanded an important speech protective theory. The second one contracted rejected free speech rights and doing so in a way that expanded a speech suppressive theory. Both of these cases will have big ongoing implications. The first case was reed versus town of gilbert which was a case that struck down a town fine regulation ordinance that drew distinctions on the basis of the content of the signs. And the court reached that resolve importantly by expanding the concept of content based speech. Its definition of content based speech regulations that will therefore, automatically trigger strict scrutiny, therefore almost automatically damning the regulation. It did so by undermining past rulings that had a narrower concept of content based regulations and therefore allowed unpopular controversial speech to be suppressed. The second case in contrast walker versus sons of confederate veterans upheld state power to deny the selection of messages by private speakers on specialty license plates. Worse yet, did so under a criterion, im going to read it here, if the design might be offensive to any member of the public. How is the court able to allow what we would generally think of as the most blatant concept. It did so by describing this expression as government speech, a relatively recent category that is completely exempt from any constitutional free speech protection at all. This is definitely an expansion of that government speech sanctuary from First Amendment protection. We have these two contradictory ruling. On the one hand Reed Contracting the governments ability to discriminate on the basis of content and viewpoint but walker doing exactly the opposite. Thats the bottom line from now on. Until my gong goes off im going to amplify a bit on each of the cases. Starting with the walker especiallity license plate case. The bad news for free speech. In terms of how far that case was a retrenchment on existing free speech protections, i want to stress that we had eight circuit courts of appeal had ruled on this issue. And a full seven of them sustained the free speech right. So the Supreme Court was really bringing us in a backwards direction. Here i want to quote my friend and the great First Amendment advocate bob corn revere who is in the audience somewhere in this direction. Bob said he gave me permission to quote this to walker opinion began with the eight scariest words in First Amendment law. Quote, justice brier delivered the opinion of the court. To be sure justice brier is generally less speech protective than other justices because he eschews categoryeral rules and tests which tend to be speech protective. In reed he reiterated his unique view that content based speech regulation should not automatically trigger strict scrutiny. In walker justice briers majority opinion did base itself specifically on a formal categorical rule. Namely that once speech is categorized as government expression it is completely exempt from the First Amendment. Period. Now to heighten the irony the last time the court discussed the government speech exception as theyve called it the newly minted government speech exception from First Amendment protection, was 2009 in a case, and that case justice brier had disavowed precisely this categorical approach to government speech, which he then supports in ironically in the walker case. In 2009, justice brier concurred on the understanding that the government speech doctrine he even puts that in quotes to indicate he doesnt think its a fixed doctrine is a rule of thumb, not a rigid category. Even more pointedly in his curcurrence, he says if the government discriminated in its selection of private messages on political grounds its action might well viteolate the First Amendment. In walker the government did discriminate on political grounds in deciding that it would not grant a specialty license plate to one license, one message but it would to another on the very same day no less. This is factual aspect of this case that is mentioned in justice oletaos defense. Its gotten very Little National attention as well. Its wellknown that the Texas Department of motor vehicles, dmv board in question denied the particular license plate as issue in the case, namely one that featured the embattled so to speak confederate battle flag. What is less well known let me say that the reason is that was given was that many members of the public find the design offensive. Of course. Offensive speech as we know is constitutionally protected if its private speech in a public form. On the very same day, the very same board despite testimony from many other members of the public that the design was offensive, did agree to issue a specialty license plate celebrating the Buffalo Soldiers. The Buffalo Soldiers as many of you know are an all black calvarycal calvary unit. Many native americans said, they felt the same way about the Buffalo Soldiers as africanamericans felt about the confederate flag. One native american leader said when we see the u. S. Calvary uniform we are forced to relive an american holocaust. So now thanks to this decision government has Carte Blanche to pick and choose not only between certain battles, signs and uniforms, between certain minorities groups who are offended and others who are offended but also between any other controversial messages, including prolife and prochoice which, in fact, have been selectively denied and approved in various states. Now, to be sure if it is the government in itself that is in fact speaking of course as a practical matter the government may pick and choose its messages, accountable not under the First Amendment, but only to the electorate. The problem is in a case like this the government is selectively endorsing and disfavoring private speakers and private messages which the Supreme Court has repeatedly said voiltsiolates the bed rock principle of the First Amendment. The government may never sensor expression because the majority of the community, even the overwhelming majority of the community finds the message offensive. In sum of itself the Supreme Court said the government speech doctrine must not be used im quoting, as a subterfuge for favoring certain private speakers over others based on viewpoints. So walker seems to be inconsistent inconsistent. Theres no better person to make that point other than justice a oleto. Theres something force to his critique in walker when he says the majority badly misunderstands it. He gives many examples to illustrate one keypoint which is that no that that no reasonable observers will look at the hundreds of specialty license plates that texas issues as conveying a government message. One example he gives is if youre driving at 8 30 on a monday morning and you see a car with a plate that says rather be golfing, would you think this is the official policy of the state. Better to golf than to work. That brings us to the good news. The First Amendment. Can i just interrupt . I want to make sure we get through all the topics. Hopefully we can come back and talk about the good news in the First Amendment. Okay. Terrific. [ applause ] there were a number of really significant criminal law cases this term. The person who is going to take us through that is cynthia jones, shes a professor at the Washington College of law. Shes the codirector of the criminal justice practice and policy institute. She was my instructor in law school. She gave me my first grade which was an f. So i would like to air some grievances. Afterwards. And so would you talk to us about the criminal law docket . Thank you. Back when you were my student you were known as tommy. If you keep bringing up that f ill start calling you tommy again. So the Supreme Court in three cases im going to talk about really expands the space between the ability of the state to administer criminal laws and the institutional protection afforded to people who are accused. And the Supreme Court tackles an eighth amendment challenge to an oklahoma statute dealing with lethal injection drugs. And in ohio versus clark, the court tackles the issue of whether the sixth amendment clause covered a child kman complaining about abuse when the child doesnt testify. You would think impossible but not very improbable, the Police Officer arrests someone stops a car at a traffic stop and the basis for the stop is actually conduct thats not illegal. So they stop the car saying, you should have two working brake lights when actually under the law, youre not required. Is that an unreasonable seizure if in fact your conduct didnt violate the law and there was no legal basis for the stop . The defendants lose in all three of those cases. I think that the each case sets very important precedent and gives us somewhat of a road map where things are going in these three areas. Starting with glostup there is no way in 12 minutes i can fully cover the scope of this opinion. I will try to do it justice and move on to the other two. The court took on what appeared to be a strategy of Death Penalty ablishnists. That was if we keep eliminating or making unavailable the drugs needed for the lethal injection cocktail, states will not be able to administer the Death Penalty because they wont be able to get the drugs. Well work with the manufacturer, well make sure that people who are shipping it in from overseas, we will attack their ability to get the drug that they need. The strategy appeared to be working. They had successfully eliminated two of the cocktails needed in this three drug cocktail. Lets be clear three drugs are needed. The first drug is the drug that basically puts the person in a coma. Or makes it so they can no longer feel pain. At least thats what its supposed to do. The second drug causes paralysis, which would be painful if you didnt have the first drug. And the third induces cardiac arrest. That sequence of events is how they administer the Death Penalty. The first drug is the drug under attack. The Death Penalty abolitionist and the death row inmates said this drug does not in fact cause this sense of painlessness and put the person in a state where they cannot feel the pain of the paralysis and of the cardiac arrest. It doesnt work. And the Supreme Court said, they took great pains to note you eliminated the other drugs that were working, almost as if to say youll not be heard to complain they dont go that far. They take pains to say there were two other drugs on the market that were being used and you got rid of that. In in order to mount an argument, you not only have the burden of showing that the drug being used actually does needlessly inflict severe pain, you also have to show that there is no other reasonable and available alternative that would be less painful and cruel. The court articulates that second prong as if its always been the law. Saying that has not been the burden placed in eighth amendment challenges. The majority it is now. The majority makes very clear that if you are challenging this, you have to show both things. And the court says neither of those were met that would justify an injunction. You didnt show that the drug as administered did not cause the condemned person to experience no pain prior to the other two parts of the cocktail. And even if they did, the court said even if you managed to show that, you have to prove in order to prevail that there was no other available drug that there available other drug on the market. That there is another drug that could have been used and that theyre not using. And effectively what that does is it makes the eighth amendment almost completely out of reach. If this is your strategy for challenging the Death Penalty, in order to prevail that burden makes it extremely difficult for abolitionists and condemned prisoners to prevail. You would have to show there was this alternative. In glasup the court says theres going to be some pain involved in administering the Death Penalty. Thats not what the eighth amendment prohibits. Its the needless suffering and torture that is prohibited. I think in the end, it will be known because of the dissent that it is because of the majority. Because in the dissent, shock of shocks, two justices state pretty definitively, brier writes the dissenting opinion and ginsberg agrees with the opinion that its now time to examine whether the Death Penalty is constitutional. Pretty definitively, they go on to say, we believe it is not. Causes scalia to almost explode. Just about explode. And the debate now going on and i think it will invite litigation, it will invite other challenges to the Death Penalty. Abolitionist know they have a couple of votes perhaps more votes on the Supreme Court now. And i think that this case will be known for two justices coming out and saying i believe at this point, im no longer tinkering with whether this part of the Death Penalty works or whether we can fix it with this patch i believe at this point it is a violation of the eighth amendment because its cruel and unusual punishment. I suspect that Going Forward we will see lots more cases involving that. On to the second case ohio versus clark. Ohio versus clark deals with something that scalia holds very near and dear. He rewrote the law on the confrontation clause. He basically gave defendants the right to confront any person who is making a testimonial statement against them out of court. The scenario that exists is an individual here, a child, goes to the teacher and says i was physically abused by my mothers boyfriend. The child does not testify at trial, the teacher testifies and the defendant says i have a right to crossexamine or confront that child. And the Supreme Court says no. If the statement that was made out of court that you dont get to confront at trial was testimonial in nature that is at the time that statement was made it was pretty clear that that statement was going to be used in a criminal prosecution then you have the right to confront that statement. That is, the government will not be able to use that statement against you at trial unless the child testifies. Provided you didnt have a prior opportunity to crossexamine the child. The defendant says this is the scenario when the teacher basically went to the child and said who did this to you, what happened to you. They were conducting the kind of investigation pursuant to a mandatory reporting statute in ohio. The Supreme Court said that does not convert the statement into a testimonial statement. There was an ongoing emergency. And that becomes significant because in a series of cases, since about 2011, the court has begun to erode away the protections that scalia provided under the confrontational clause in crawford and the cases in the aftermath of crawford. The court has expanded this ongoing ongoing emergency situation. When a person called 911 help my boyfriend is beating me up get somebody over here. The court says at the time that statement was made no one was thinking about prosecuting the boyfriend youre thinking about getting hope for the girlfriend. The court then later said its an ongoing emergency because even though this child wasnt not imminent danger of being abused at the time you know the teacher had an obligation to try to resolve and protect the child and that kind of thing. And so therefore the ongoing emergency existed in a much broader context and for a longer time. And i think youre going to see more cases where the court is declining to recognize a confrontation clause right and expanding what consstutes an ongoing emergency. The final cases is the hind versus North Carolina case. Here the Supreme Court does an effective job of insulating Police Officers who do not know the law. This is a Police Officer who says i didnt know that what happened was actually legal. And the court says as long as the officer was reasonable in not knowing the law and it was a reasonable misinterpretation of the law, then it doesnt violate the Fourth Amendment. This case falls in line to a certain extent by cases by the Supreme Court that distinguish between whether you have constitutional protection and whether the state can administer the law the way they decide. And so in this case, the Supreme Courts already decided that. A Police Officer can rely on a mistake of fact. That is, its not an unreasonable seizure if the Police Officer says i arrested you or stopped you because you matched the description. It turns out you were not the guy who committed the robbery but you looked like the guy. It was a mistake of fact. But thats fine. And the court said now they can also now stop you even if they say wait a minute youre not allowed to wear glasses after 7 00 p. M. Thats what i thought. If thats a reasonable interpretation of the law, then the court says thats not an unreasonable seizure under the Fourth Amendment. The court was clear and said its an objective determination. Not whether an officer can come in with various reasons. The court says its an objective interpretation. That will invite a lot of litigation in years to come over whether the officers misunderstanding of the law was objectably reasonable or not. And therefore whether the Fourth Amendment protection covers the defendant when the officer has seized them under the Fourth Amendment and had no Legal Authority to do so. [ applause ] thank you so much. Another bucket of significant cases at the court this term involved issues related to politics and voting. And we have with us jerry heber who is a writer and known as the nations foremost authorities. He iswas the acting head of the voting section of the Civil Rights Division of the department of justice. Thank you to acs for sponsoring this event. Great organization. And im thrilled to be here. I have to say that if you told me at the beginning of the term that we would see decisions upholding civil rights plaintiffs claims in the alabama redistricting case that we would find chief Justice John Roberts rejecting a First Amendment challenge to judicial candidates soliciting contributions and getting contributions and applying strict scrutiny but upholding the Campaign Finance lawment if you told me that rbg, which stands for Ruth Bader Ginsberg but i consider it to be right bold and great would write a decision in the arizona case upholding the right of the commission to do the power of redistributing to curb partisan gerrymandering i would have looked with looked at you funny if you told me 20 years ago that we would have a black president and the states will have to recognize samesex marriages. Its amazing. So my talk is i think a little bit about hopefulness in contrast i saw on the way in here that rick perry is speaking here tomorrow on the cycle of hopelessness. Which i take it is not a commentary, but his campaign. So lets begin with alabama. Alabama redistricting was drawn by the republicans when they took over the legislature. What they decided to do was to take all of the majority black districts and to say that when we draw the districts we are going to draw them the same number and were going to maintain the black percentages in each one and well do that because we want to avoid retrogression under section five of the Voting Rights act. Section five was in effect at that time. This was preshelby county. The plaintiffs challenged it on a number of different grounds. I have to say i was not involved in the case except assisting with the advocates in the Supreme Court, but i have to say that justice brier went out of his way to give a very liberal reading to the pleadings below. So as to incorporate what he considered to be their true claims of racial gerrymandering some of the districts. And overly relying on race. So much so that he actually had an appendix to his opinion where he listed all the pleadings where you could find support for the fact that the plaintiffs really litigated the case in a way that he said they did. And Justice Scalia took into great task in the dissent for having done so. So again this was a case where the plaintiffs were claiming that alabama should not have applied race in the predominant way they did. That they overly relied on it. That they misinterpreted section five of the Voting Rights act which does not require to maintain the same racial percentages percentages. Yet this was one of the first cases where they actually utilized that weapon to bring the challenge. And they had to show that race predominated in the creation of these districts over traditional redistricting principles. So there are several take aways because the Supreme Court said these appear to be racial jerry manders and sent it back to the lower court but had stronger language in justice briers opinion for why they believed that many of these districts violated this doctrine. One take away is that you have to have plaintiffs who live in the districts that youre challenging. It was not clear, even at the Supreme Court level whether the plaintiffs had met that particular goal. They said that we have one of the groups was a Member Organization and they said we have mbs in all the districts. And nearly all the districts. As Justice Scalia points out in dissent. Nearly all isnt all. Maybe they dont have some in some of the districts thats challenging. On remand that have to cure that effect. The big take away from the case is that its going to go forward and impact a number of other cases that are pending now. Cases out of texas and virginia for example that also allege discriminatory intent. In those cases again before alabama was decided, the state the come in in both cases to say well to avoid retregression, we had to make these districts as a certain percentage. The Supreme Court has rejected that and said no the test is whether or not the district continues to provide africanamerican voters with a realistic opportunity to elect a candidate of their choice. And it doesnt require this rigid calculation or adherence to a particular percentage. The cases that are percolated out there now. There are three redistricting cases involving race from texas in addition to alabama virginia and North Carolina. I think what youre going to see because this case is really made it harder to rely on the Voting Rights act to achieve partisan jerry manders which i think is what ultimately people think is a safe harbor so when you deliberatelymittnority vorters into a district are you packing them into the district as a racial jerry mander. This was especially important post shelby because in order to get preclearance you can bail them in for preclearance by showing that they engage in racially racially discriminatory intent. North carolina case, big case pending. Redistricting in texas and virginia, everybody is trying to seek relief and get preclearance brought back in. Well see. The one thing thats interesting about Justice Kennedy joining the opinion is that this is a case at the that has the mixed motive of partisan intent. He was the ninth justice, the big partisan gerrymandering case from the midtwo thousands four of them said it was justiciable. He couldnt agree with any of the tests but agreed it was justiciable. No case is like that. Were waiting for the Supreme Court to come up with a theory. Since they havent done so, maybe these are cases that kind of get at the partisan gerrymandering without the court having to come up with a constitutional theory. The other cases williams verses you yuly. That was the florida case where the judge challenged on First Amendment grounds the right to solicit contributions to the campaign. The chief justice, he struck down Campaign Finance laws, this one he upholds. The judicial restriction. He does so because its clear that Public Confidence in the judiciary really weighs heavily on the chief justices mind. Justices are different. States can regulate it different. So but many orphus in the Campaign Finance field wonder shouldnt we equally care about Public Confidence in our elected officials in our democracy as much as we care about having confidence in the judiciary . It only works when people have faith in those who govern them. Theres a ninth circuit case thats pending on bonk, its being briefed now out of arizona, arizona seems to dominate in many ways. They prohibit judicial candidates from making speeches on behalf of political organizations or candidates. Publicly endorsing pliblolitical candidates. The case was stayed for there last year pending the pilliums yulee case. The arizona case was mentioned earlier by bill. The interesting part about that case is it could have had disastrous consequences. Everybody looked at the case as if to say oh, if this case goes down, were going to lose independent commissions to do redistricting. This was a challenge by the Arizona Legislature that claimed under the elections clause that it had the authority to do redistricting and it got taken away from them. Because it did get taken away from them they had standing to challenge it. They lost the case but it had huge consequences because there are numerous regulations and rules that have been adopted not just with respect to independent commissions. Constitutional amendments. Secretary of state issued a regulation. That could be done without the legislatures permission. Again, Ruth Bader Ginsberg, a great decision for democracy. She says the clause is in line with the fundamental premise that all political power flows from the people. Havent heard that from the Supreme Court in a long time. Voters in arizona turn to curb partisan gerrymandering where the court noted involved an inherit conflict of interest. When politicians choose voters, thats not democracy. Its supposed to work the other way around. I think seeing language from the Supreme Court is very encouraging. It will give encouragement to reformers to go out into some other states and seek some reforms. The last point i want to make is that there were three stay issues in the Supreme Court at the very beginning of the term. Wisconsin, photo id, texas photo id and North Carolina. In each case, the Supreme Court stepped in. In one case they fwrantedgranted a stay in wisconsin to a decision that had put into place the photo id law. This was prior thooo the election. In texas there had been a trial the fifth circuit stated the Supreme Court refused to vacate the stay. North carolina the plaintiffs challenged laws that were about to take effect. They lost the preliminary injunction in the lower kwoert. They got one out of the Fourth Circuit and the Supreme Court stepped in and vacated that stay. So whats the take away for 2016 . The take away is this, that Election Officials making last minute changes are going to be vulnerable to an injunction. Litigants will have to get injujzsin injunctions early. Its clear the Supreme Court has decided that instead of the multifaceted test its one factor and that factor is are you changing something close to the election. If the answer is yes, and suspect next year we will see a lot of litigation last minute if youre changing something the status quo prior to the election the Supreme Court is likely to step in and probably the lower courts will, too thank you. [ applause ] thanks so much. We had made a commitment so that we could finish up here about 20 minutes early so we could take some questions from folks in the audience. Im not sure if we have a stand by microphone or not . Yes here it s. Well start with the press if you dont mind if folks want to ask a question. Hi, all of the headlines the wrap ups including mine and everybody elses have stressed the courts liberal tilt during the past term. And i wonder if any of you have comments on the extent to which that is accurate or inaccurate . Misleading or probative . Ill give you my two cents. The numbers are as follows if you were to take the 26 cases that have ideological, the left wins 19 of them and eight of the big ten. We know these people are the same folks weve had in previous years. Theres not an intuitive reason to think they they ended up being substantially more liberal. One of two things one is the accident of cases. Cases get on the docket. If you look at next term and you think about things like public union financing which will be an extremely issue. Affirmative action and abortion as well, you would expect to see a different set of results. Then the second thing is that its possible that while the court has been moving to the right for 20 years its hitting the wall. What we think about as a liberal result is not a further conservative result. Its like breathe a sigh of relief relief. Its not with the exception of samesex marriage a move to the left. A conservative court didnt strike down the Affordable Care act. It didnt limit the use of race in fair housing in district impact claims when that was an accepted means of litigating those cases for 25 years. Well learn more in the next year or so about whether the move to the right of the Court Continues or it has run out of gas to some extent. If i could just compliment what youre saying. Thats the way its been put in the press, thats wrong. I think what happened this term which is maybe reflective is the modern regulatory state got a big shot in the arm. I think thats the thing that puts together obergerfell and king. Theres this great plan that congress has put afoot are we going to mess it up based upon a scriveners error. The chief justice says no. I think obergerfell can be read along the same lines. It government sets up mechanisms for people to make life plans for themselves and you cant exclude gay and lesbian people. Maybe the confederate license plates case as well. So i dont care how you characterize it, i think the modern regulatory state is here to stay. Even extremely conservative justices are now internalizing that in the way they think about the Supreme Court doctrine. I have a comment to put this question in context and to scote Steven Colbert which says gay americans achieved person hood five years after corporations did. Quote other questions . Im greg store with bloomberg. A big of a follow up to that question. Why did the court take some of these cases . Why did they take the healthcare case and why did they take the texas housing discrimination case . For king, there was a split. The Fourth Circuit gone one way. It was an incredibly momentous question that was going to affect millions of lierveves. It satisfied multiple criteria. On the fair housing act, it had been oo disputed question for a long time. They settled it under smith. Scalia had crossed the side of the aisle and laid the groundwork for saying what they said. It was surprising to see Justice Kennedy came out the way he did. I didnt think it was surprising they took the case. They had taken it twice and both times it had been scuttled. They didnt get a chance to answer the question. I dont think anyone was surprised when they dwrant rgranted the texas case. You know are there surprising grants for next term . I was surprised by the one person one vote question. The question for the panel that one is much harder for me to explain than the king or texas housing case. Jerry has a view on why they granted it. Im not sure. Yeah, i mean explain what the case is. And then explain it. So there was a case brought in texas challenging the right of the state of texas when they enacted their Senate Redistricting plan to by using total population to accomplish the one person, one vote equal population requirement in each district. The plaintiffs claimed that they should have used a subset of the population because representation is all about voters, its not clear whether they want to use registered voters instead or whether they want to use citizen voting age population or actually the people who turn out all of those have pernicious consequences for minority voters. This has been a wellsettled area of the law for decades since the 1960s the total population pretty much is the base that is used to redistrict. And its also the number thats used to allocate congressional seats among the states. We allocate seats congressional seats based on total population. Its a wellsettled area. It is questionable. Theres only two states that use something less than total population, thats would be kansas and hawaii. Who both take out temporary residents. So military people who are temporarily stationed in the state, they take those out of the total sensing population and then they redraw the lines. Thats been upheld by the Supreme Court decades ago. So the Supreme Court has three taken three cases for the next term in the area of redistricting. I mean, its astonishing. Theyve got the one person one vote case, theres another case out of arizona. They uphold the Arizona Commissions right to be a commission to do redistricting and then they take a case the next day wee going to review a challenge to whether or not the plan you view violated the one person one vote rule. Whether you allowed deviations within a 10 range. Its got a whole host of issues. A third case out of maryland where the plaintiffs brought a case of partisan gerrymandering case the district judge threw it out refused to convene a three judge court. So reminded me of shaw v reno. Everyone had plans in 1991 and when they all did it the Supreme Court came down with a majority minority districts. When they did it, they call came down to a decision and said, a had ha appearances matter when it comes to redistricting. Dont draw these so you will to meet district certainty. And litigation boomed for redistricting lawyers. Not for democracy, necessarily. Thank you very much. Elaine littleman. I think everyone acknowledges that Congress Really isnt doing its thing. So when the justices say, well if this is a Problem Congress can makes it, that is really a laugh line for the solicitor general. Should you just operate as though there is no way to fix the law and just hope for the best for what exists now. How should the Supreme Court react to that . From the perspective of the justices and their job and they say we are not going to overrule our interpretation. They say go across the street. Do you think they really believe it . Do you think that congress pays attention when they say it . In the case shelby county, congress isnt paying much attention. They havent even given it a hearing. I told some of the justices about this. I just did an article in texas, the collapse of statutory oversince the clinton impeachment actually. Another justice was aware. And i think there is still know about that. And i believe that did get some laughs in the oral arguments. But i dont think they have really internalized how vast is the underperformance. One thing i would add about that, to assist in your question just a little bit. I think the big winner when congress is dysfunctional is the executive branch. We might have seen it in king versus burwell. We have to realize congress is not going to fix it for them. I was just wondering if anybody can comment on whether the term tells us anything enduring about statutory construction and the use of legislative history. Yes. No, i cant say i have read ever single case. There were 76. I have read the main ones. This was not a big term for legislative history. And a lot of the big cases statute year cases, like king versus burwell, that was a complicated statute. Chief Justice Roberts said its not our fault because it didnt go through our process said the chief justice i believe accurately. Probably the high point was Justice Kennedys opinion in the title viii case where he relied on Committee Reports in ruling there was ace disparate claim for relief under title viii. So what we have now, at least in terms of its representative, and this is what i was going to say about king and burwell. The chief justice seems to be saying in king and burwell that even if that language is established by the state, even if you think thats unambiguous or clear it is made ambiguous by the whole act and the statutory context. The only other case recently i can think of what said that is justice qaa ski la in river maker several terms ago. So this is now a court where whatever you have as the appropriate text when we say look at context, what they mean is not legislative history. Im talking about the chief justice, sotomayor ginsburg. They are looking at it but they are not citing it anymore. And that is a very important distinction. Okay. And this term is i think a in my lifetime for the rely answer. It is very much dominated by the whole act and the judicially created statutory construction. And i might add perhaps gratuitously by dictionaries. No, this is a court that and this is bizarre. That statutory language, papers have been explained by Justice Scalia. He says tell me what the constitution means. When they get similar statutes they do not look at legislative history. Instead it looks at dictionaries, which are an impoverished source of meaning them. Dont look at clusters policy context, what the democratic process is focused on. Its really the world of bizarreo superman that the Supreme Court has now entered us into. When the respected deliberations of our elected representatives are ignored in the published decisions and dictionaries are the source of authority almost universally. So there. Im not sure that the term because of the mix of cases tells us a lot about legislative history or the cannons of construction. But i do think i used to believe that statutory starry subsidize eus. But for the rest of them it has come to hold more sway. They had the halliburton case. Both people said a lot of people said theyre going after basic level ton. And now they granted free directs. Now everyone will say the same thing. Maybe thats right. Certainly several years ago i would have said thats the easy direction. But im not so sure. The bankruptcy case this term, a precedent that none seemed to think is correct. They didnt overturn it. And so i actually think that for a majority of the court it has more hold than i think it did maybe 10 or 15 years ago. We have time for one person question. Yes, sir. My name is cami with the pakistani speculative. You attended a event on the same topic we had at the foundation. There was a lot of resentment and anger. Yeah. Yes. Yes. Isnt that the objective, the indication that the court has moved to the left . Thanks. Does the fact that there was there were tears at the Heritage Foundation beyond bringing a smile to ones face tell you no thats not true. It is a wonderful organization. Does it tell you anything more . The reaction from the right. Does it portend they believe something more is afoot . You know, there have been a couple comments in response to that first question about is the court moving to the left that just that the liberal justices have been more disciplined and have been working better as a team. So maybe theres frustration that the socalled conservative justices are more concerned about their in fighting and standing up for their own idiosyncratic views of conservatism and judicial review. So there may be some sense of frustration that they are not marbling their resources as effectively as the more liberal justices are. Even if they are moving more to the left theyre not moving that way with respect to criminal justice. I think most people would agree that their opinions remain pretty conservative. And across party lines in some of the cases the justices did not divide in the traditional way in the traditional justice context. It is not across the board even if it is the civil and civil rights cases. Let me add some rank speculation and others who on the panel who know a lot more about the Supreme Court justices than i do. But i think what has happened and i hesitate to reveal the top secret because im afraid the tear handling foundation will follow me voice. That would be interesting, wouldnt it, which is i think that the conservative litigants have pushed the envelope so far to the right that Justice Kennedy is uncomfortable going there. And so i think hes oftentimes now as we saw in the alabama case and we saw in the Arizona Commission case, i think hes just not willing to go out that far. And i think that may account for some of this. Instead of the court becoming more liberal, i think its more and it all comes down to Anthony Kennedy these days. So thats my rank speculation. The atmosphere among the conservatives seemed as fractured to me as i have seen it in the last 20 years. You find Justice Alito and scalia. He wont say his name. Hes writing the opinion. You see the consignment case going at it. Years ago he just lets it sit. You see the chief justice and scalia going at it in king v. Burwell. I dont know if they are moving to the left or the right. Toms numbers are much better than i am. The conservative wing of the court certainly does not seem to be getting along very well now. Our good friends at cspan are here we really have to be faithful to our time. It is exactly 2 00. So we have done that. Please join me in thanking acs and our panelists. [ applause ]. Coming up tonight on cspan3, a Senate Hearing on technology to improve transportation safety. Then a discussion on the new overtime rules proposed by the white house. Thats followed by a conversation with the heads of Online Service provider startups. Later, a look at the u. S. Innovation system and the economy. Tuesday, a Senate Commerce science and transportation subcommittee examine new technology toss improve the safety and efficiency of the nations transportation systems. Witnesses included officials representing volvo, amazon. Com, bnsf railway and the port of long beach california. This is just over an hour. Good afternoon, everyone. I am pleased to convene the merchant marine infrastructure safety and security for its sixth hear Technology Transforming Transportation is the government keeping up. Ranking member booker suggested holding this hearing. And he and i are excited to bring together a range of issues that we have worked on together here in the senate. For example, we underscored the Important Role that technology plays in our daily lives by collaborating on the internet of resolution at the beginning of this congress. I was pleased to see that our resolution passed the Senate Earlier this year. We have also made progress on several transportation matters related to maritime, rail and highway infrastructure. Our hearing brings our work on these various issues today. Today we will explore the federal governments response to the current Technological Developments in our nations Transportation Industry is. In order to maximize the efficiency and safety gains being made by the private sector, the federal government must ensure that it is keeping up with modern technology. Regulatory frameworks must facilitate rather than hinder Technological Advancements. Todays hearing is an opportunity to look into the future and look for ideas to makin know vacation easier so we can agree quicker, safer, and easier. Automated driving has the potential to make trucks more efficient and could result in thousands of dollars in annual savings. Additionally, automation has the potential to make American Companies more competitive in the global market. Clearly, more should be done to foster innovation and streamline obsolete. Step one is educating innovators on who exists and how we can facilitate more voluntary solution toss our transportation challenges with cuttingedge technologies. Technology has the potential to auto kael process, cinque. Increased automation and connectivity make transportation and low gist cal networks more efficient. Most importantly innovations in transportation offer tremendous opportunities to improve safety. Autonomous trucking technologies, for example, will strengthen driver awareness and reduce accidents on our nations roads. Additionally, we will hear how the increase use of trackside monitoring devices and the development of robust data bases will provide the Railroad Industry with the ability to better repair and upgrade critical infrastructure. In other words, the internet of things and big data are identifying the challenges of tomorrow with technologies that we have today. We must also appreciate the role our nations ports play. As centers of intermodal connection. Americas ports are modernizing to drive efficiency and keep goods moving throughout the country. The benefits of Technological Advancements are clear for our economy. For our safety and for the efficiency of our Transportation Networks. I look forward to hearing from our witnesses about the kinds of policies that will promote innovation. Our country is a leader in innovation constantly creating the next big thing to drive the Global Economic engine. And i would now invite senator booker to offer his opening remarks. Senator blund, it is good to have you here this afternoon. I appreciate that we are holding this hearing. We have done extensive Work Together on technology and transportation. Im excited to examine further where government can help. And conversely where government can stop hindering. In the meeting in tprafrastructure challenges, this is important. We are both excited by this. And how some of our Government Agencies may not actually be equipped and to keep up with this incredible innovation. This is a theme im sure our panel of witnesses will update us on today. Technology is rapidly changing. Everything we do, including how we commute and maintain our systems is changing. It is changing how we get to work, how we drive our cars, and even how we hail a cab. We have an opportunity to harness new technologies to dramatically improve Public Safety reduce costs create jobs, and address infrastructure problems in creative new ways. The federal government can be a key player in help to go advance and utilize developing technologies. Lets take a look at safety. While trafficrelated fatalities and injuries continue to decline, over 30,000 people each year still die on our highways. We continue to see trains that derail too frequently. Putting enormous burdens on our first responders. In the face of these challenges, weve got to understand the opportunity that comes with technology and improving our transportation systems. Our country has already invested billions in interstate highways, bridges, rails, and ports. Technology could help us to get more out of what we have already built. Today there are exciting market ready Proven Solutions to make our roads safer. From mattic braking sensors, radar, and even Autonomous Cars and drones. Advanced technologies can now alert a truck driver or even take control of a vehicle if they begin to drift out of their lane or fail to break which stops traffic ahead. It can enable a smartphone using realtime information to suggest to a driver the best time to hit the road for their commute or family trip. Or direct a driver to the nearest available onstreet parking place. Something we need in washington. Harnessing technology will not only save time and fuel, it will reduce Traffic Congestion for everyone else on the road. Something drivers in my state and throughout the northeast know all too well. New technologies can improve the safety and efficiency of our a network and port and facilities. It is critical we reexamine how we vest in our infrastructure, plan for the future and make best use of these technologies. I look forward to hearing from our Witnesses Today about how the federal government can help existing businesses thrive how the federal government can be a worldwide leader and help us to be a worldwide leader in innovation and advance, not stall, transform tiffin know vacations. Thank you. Thank you, senator booker. I would like to welcome our first panel of Witnesses Today. With that i will begin with ms. Alt if you would like to give us your testimony, please. Thank you. Chairman fischer, Ranking Member booker and distinguished members of the subcommittee, thank you for the opportunity to be here today to talk about new Transportation Technologies and how they improve the safety and efficiency in our Transportation Network and the world of the federal government plays in either facilitating or hindering that development. The volvo group is a world leader in Sustainable Transportation solutions. We build stuff that make the roads and we build stuff that uses the roads. In the u. S. We produce heavy duty trucks under the brand names of mack and volvo. Marine inches and nova buses. We have more than 12,000 u. S. Employees with nine manufacturing facilities in six states. And our goal is zero accidents. Im going to comment today from a heavy duty truck perspective because trucking delivering 80 of the value of the freight thats shipped in the United States. Buyers of heavy duty trucks today cannot can have technology that keep the drivers and other roads safer. Lane Departure Warning systems or active braking. But on the more horizon we see vehicle to vehicle and vehicle to industry. Messages for sent on the 5. 9 gigahertz spectrum. It is sent using dedicated Shortrange Communications or dsrc. In 1999 the government got it right when it set aside and protect said this frequency for only safetyrelated communication. But in 2013, the fcc began exploring using the 5. 9 gigahertz spectrum to also support unlicensed wifi users. Proposals have been provided but no consensus yet reached. The concern is that allowing other technologies to be shared on the same spectrum could create a lag or latency in saving lifesaving communication signals. Let me clarify. Say vehicle one is approaching an intersection with a green light. But the view of oncoming vehicle is blocked by a building. The driver in vehicle one can be alerted of oncoming vehicle two that is not slowing down for his red light and the alert will allow the collision to be avoided. If theres any latency in that signal because of interference, for example, wifi user watching a video, the accident likely would not be avoided. So until a solution is found for spectrum sharing, the 5. 9 gigahertz frequency, we want it to remain dedicated for safety applications only. Vehicle to infrastructure is the road side weight and inspection where they stop and wait in long lines and can create potential hazards. They have used it from the truck to the weigh station that allows moving trucks to wirelessly communicate their credentials to the inspection stations such as if the weight of the vehicle is below the limit or if the driver is wearing a seat belt. It keeps the trucks moving and allowing them to focus on other trucks that havent been validated in a program we call trusted truck. Let me end with what is probably the talk of the town. That is Automated Technology or Autonomous Vehicles. That is using connected Vehicle Technology with on board Collision Avoidance technology. We think the area is very interesting. But caution our pace will be set with how safely it can be adapted to the infrastructure and society. Platooning is one example of Automated Technology. There is a lead or pilot truck. It is wirelessly linked to a truck behind it. Volvo Group Transportation technology or path are in the process of implementing a two truck platoon at slow speeds that will be expanded to three trucks in 2016. Full scale demonstration yielded 10 fuel efficiency gains because of the reduced air drag. Were developing technologies for connected and automated driving because of their potential to enhance safety and improve productivity. Increasing the speed of adoption for these technologies could be achieved if we eliminated 12 federal excise tax added to the purchase of the new truck and off setting that with a higher fuel tax. The other challenge is as products roll across state lines, different states are developing different regulations to promote Autonomous Vehicle testing. We will need a National Standard before they can become operational. With uncertain funding for the u. S. , transportation adoption of these new technologies will allow us to move increasing amount of freights but wont solve all the freight capacity problems and doesnt let congress off its hook to do its job to provide federal funneleding and passing a longterm transportation bill. Thank you for the opportunity to testify today. I look forward to questions. Thank you. Mr. Misener welcome. Thank you, madam chair. Amazon began selling in july 1995. Our challenge was to create a scale of new form of warehousing where pallets would receive in store. But instead of being trucked out to retail stores, we would ship directly to customers. Thus we developed a pallet and box out. They were only at retail. Thirdparty sellers are responsible for 40 of all the units sold through amazon. Many of our services and many use our services to warehouse and fulfill orders of their goods. Now we receive not just pallets of goods but small brown boxes to be stored waiting for a customer to place an order for the goods. Our warehouses which we call fulfillment centers, box in and box out. Time magazine illustrated this process. Thank you, madam chair for showing it here today. It begins deep inside a truck trailer at the loading dock looking backwards as the trailer door is opened. There is sound for this. Here we go. Thank you. After we receive an item it is stored awaiting a customer order. Those orange things are robots. They move shelves up to 750 pounds. Once a customer orders an item, it is retrieved and sent for packing. And then it is load odd a truck for shipping. While we continue to improve within our facilities, we have developed and invested a more efficient way to hand off boxes to the u. S. Postal service. Rather than give an unsorted stack of boxes we have begun operating Sortation Centers that provide usps groups of boxes all going to roughly the same location. This arrangement, and package volume, benefits the usps by using better use of its facilities, equipment and personnel without incurring building additional capacity in its upstream logistics network. Of course we and our partners and ultimately our customers need government to keep up by providing Adequate Funding innovative policies and balanced regulation. Thank you for allowing me to testify. I look forward to your questions. Thank you very much. Mr. Fox, welcome. Thank you very much for the opportunity. My name is greg fox executive Vice President of operations for bnsf railway. What i would like to do today is really walk through how it is utilizeing technology. It is, as most of you know a large western railroad. 32,000 route miles and 47,000 employees. My team runs the railroad. In my 31 years at the railroad i have seen safety improve year after year. In 2014, the Rail Industry achieved best ever safety results. And you can see the trend that we have achieved over the last decade. Technology has cleared played a role in this success. While technology is the focus of todays hearing, infrastructure and exclusive Safety Culture for all employees are critical contributions as well to our safety results. Investment and maintenance and renewal of the railroad the orange bars you see on this chart, is an important piece of safety. Bnsf invests significant capital into our network to contribute directly to safe operations as well as to ensure reliability of our network for our customers. This is the largest component of our 6 billion of Capital Spending in 2015. The nations rail operations are basically 140,000 mile outdoor production line. This scope and complexity means infrastructure and equipment sometimes fails. Or that human error can occur. Because of this, bnsf focusing on a riskbased initiative for all aspects of our operations. This slide shows the categories of incident causes and examples of the kinds of Counter Measures we put in place to reduce risk. There are a combination of critical safety processes as well as technology. While youre very familiar with positive train control, i would now like to share a brief video that illustrates the numerous other Detection Technologies to produce safety benefits. These technologies include track geometry vehicles. They use Optical Technology to monitor track geometry at a point or over a distance. Rail defect detention systems. They use ultrasonic to determine rail defects. Wheel temperature detectors that use infrared technology to identify wheel bearing machine and machine visioning systems that inspect for passing trains. Bnsf is deploying Unmanned Aircraft or drones for supplemental track and bridge inspections in ava right of conditions. Also earlier this year we were one of three Companies Awarded the Pathfinder Program status from faa for extended on flights. D. O. T. Has been a valuable partner in advancing the use of Drone Technology in our safety program. All of these technologies as you might expect, generate a tremendous amount of inspection data. Leveraging this data through advanced analytics is where we are headed next. Bnsf is working with ibm on an advanced initiative to take the information that we already use to detect standard deviations to ultimately drive further understanding of factors that accuse these deviations in the first place. Our goal is to drive proactive Safety Practices that ultimately prevent derailments from occurring. Lets take a look at one example. Ill walk you through how we are using advanced analytics to improve Rail Equipment safety. You saw the equipment detectors in the earier. We have 2,000 trackside detectors located along our 32,000 mile network. They continually monitor the overall Equipment Health of passing trains using a combination of thermal acoustics, visioning and other technologies. Today these systems identify on detective equipment and actions taken to address these defects as they are identified. Our goal is is to move to a more proactive and prevent active type of response. Well go from focusing on absolute alarms really to understanding composite alarms that tell us when a combination of factors have been combined in such a way a that unsafe condition could occur. Big Data Analytics will allow us to monitor Equipment Health, over geography and across railroads and ultimately assist in extending asset life, improve will capacity and safety. As you can see the current breadth of technology and the potential here is tremendous as long as we have a Regulatory Framework that encourages innovation. The technologies and the advanced analytics themselves are very complex and evolving at a very fast pace. This means that the regulatory focus should be on the safety outcomes they focus on producing. One of the most significant Things Congress can do for us is ensure that we have the right Regulatory Framework for railroads. If it does it will continue to Deploy Technology in support of Risk Reduction and invest adequately in maintenance renew al. Thank you for allowing me to testify today. I look forward to your questions. Thank you, mr. Fox. Mr. Christensen, welcome. Madam chair man, thank you for the opportunity to speak with you today. Technology will help us address the unprecedented challenges that are facing our industry which i believe are as revolutionary as advent of containerization was years ago. Big ships and ocean carrier lineses are game changers. Ill spend the next few minutes talking about specific technologies and strategies that were implementing to meet these challenges. Modernizing our infrastructure is the first strategy. No port in the United States is investing more than the port of long beach in our 4 billion Capitol Improvement program. 1. 3 billion Middle Harbor term knoll is the port of the future. Its the greenest most sustainable container cargo terminal in the United States that can accommodate the worlds biggest, greenest ships up to 22,000 20foot equivalents or teus. Middle harbor will strengthen our ability to compete against canada and mexico for the trade that sends cargo to every Congressional District in the United States and supports a million and a half american jobs. The terminal this terminal by itself would be the fourth largest port in the nation. And it will boost the capacity for the port of long beach by 20 . Long shore jobs at the terminal will also be modernized and will shift to technical occupations with long shore labor actually increasing over current levels when the terminal reaches full capacity. Now, these advanced technologies will help improve efficiency and help reduce air pollution, but they will also demand a great deal more electricity. So how will we deal with this increased demand for reliable electric power . The answer is our Energy Island initiative. The technologydriven strategy for transitioning energy at the port to resilient and sustainable selfgeneration systems and Renewable Power sources. So ive talked about the infrastructure or lets call it the hardware strategy. But what the software . Well, it will not be possible to meet the challenges we face without changing the way the port operates. We have joined our neighbor, the port of los angeles in a Federal Maritime Commission sanctioned joint Port Initiative that will be aimed at enhancing the velocity and the reliability of shipments that come through the San Pedro Bay gateway. And were making progress on this active with the active involvement of stakeholders, which include the full range of benefit cardinal owners ocean carriers, Marine Terminal operators, licensed Motor Carriers that take it to the destination, chassis, railroad partners, labor and management. Now, a few things have already come out of this joint Port Initiative. The supply chain optimization will largely be data driven. The current highly proprietary and silo supply chain suffers from an in adequate data sharing. San pedro bay port authorities are examining new roles to gather filter and distribute reliable data to the benefit of the entire supply chain. Promising entrepreneurial software is also appearing and holding great potential. One example is a software called cargomatic. It operates on a smartphone. It is an uberlike operation. It is being used as a pilot study in San Pedro Bay. They move containers to inland port as much as as taxi driver would move passengers from an airport. U. S. Department of transportations freight advanced traveler Information System or fratis is showing great promise in transferring information in realtime between Marine Terminals and trucking operations. So stay tuned for much more that will be coming from this joint Port Initiative. In conclusion our supply chain optimization efforts are all heavily relying on technology in order to meet our objectives of not only good but world class velocity and reliability. As local public agencies, san bead row bay ports are shifting from traditional landlord role to one of active supply chain participant. We hope to see the federal Government Support us in this new role by engaging with us and in setting effective Goods Movement policy that recognizes the value of sea ports and by creating infrastructure and Energy Funding that support the land and the water Side Investments required to accommodate much needed growth in International Trade. We look forward to working with our federal partners in this exciting venture. Thank you for your attention, and i look forward to answering any questions. Thank you all very much. We will begin our round of questioning at this time. Ms. Alt some research on the autonomous truck estimates that by 2020 to 2022 we will see level 3 autonomous truck technologies introduced in certain states. A at level 3, drivers still are required to be in the vehicle. But the truck can be switched is into an autopilot mode when circumstances permit. When do you think that were going to see trucks equipped with that level 3 driving technology on american highways . And can you go into it a little bit more on how that all works . You said that you read something that it was going to be available in 2020. So we are it says five years from now. And you said in certain states. Right. Thats possible. There are states that have more flexible laws to allow for testing. The challenge of course, the products we build go across the state. So we really need to have some sort of federal standard. The Technology Actually is leading the society. The technology for two vehicles to talk to each other where the lead truck or the pilot truck is leading the trucks behind it and thats your level 3. That technology is not that far away in terms of the actual technology. The challenge is then how can it be accepted which roads can it be driven on. And are you going to be comfortable in your vehicle with 160,000 pounds of freight moving inside you with a driver thats not theyre in control but theyre not fully in control. So i think that the technology is possible but the society al changes will have to be alerted to us. And well need a standard across the nation because our vehicles dont operate in one state at a time. I understand in the United Kingdom they have the least restrictive regulations with regard to the Autonomous Vehicles. Within the United Kingdom theyre not restricted, then by the boundaries, right . I dont think so. I dont know the answer to that fully. Sorry. Do they its my understanding they dont need special permits or even special insurance in the United Kingdom to be able to do that. I know that Many Companies are planning on doing some testing in the United Kingdom on british roads for that reason specifically. What do you think we need to do here in the United States . Is it possible for the federal government to move forward with regulations if society is not ready for it yet . Yeah. So its a balance isnt it . You dont want to be forcing or identifying which technology to use and then putting that into some sort of federal regulation. You want the market to establish that. But its a new world that were in. In the regulations, even putting terms like what is a driver. Is the driver the system thats moving the vehicle . Is the driver the guy or gal sitting behind the truck or the driving wheel. What is a system. There are so many semantics we have to think about as we put the legislation into place. What we have to do differently is look at what can we do across all the states so that when we design these vehicles they can operate in all of the states. So we need standardization of simple things like the terminology i think is one step. How close are we . Were a long way away from that. Okay. Mr. Fox, in january this Committee Heard testimony from the u. P. Regarding the importance of performancebased standards in regulation. In performance standards they move government away from designbased standards towards a goal of Oriented Approach to achieving that outcome. For example, the fra mandates that intervals between certain types of locomotive inspections. Do you believe that performancebased standards could help foster innovation and Technology Driven safety advances better than the designbased standards . Yeah. We absolutely believe performancebased standards are the way we need to progress. Because performancebased standards are really focused more on the outcome versus the method. By focusing on the outcomes were fry to innovate with technology or process changes. We have had some great examples of working with our safety regulator on performancebased standards through waivers. The predecessor of the ptc system was an example of that on the bnsf. So it can work. It can drive innovation, absolutely. And how effective have they been . We have made some progress on waivers. And at the same time going through the waiver process does take time. And at times it is pretty frustrating. Thank you. Senator booker . Thank you, chairwoman. Ms. Alt im concerned that you first of all, im confident you and i share the goals, the same goals of increasing safety on the nations highways. I appreciate your work and i appreciate the things your company does. Im just really kind of concerned when i read your written testimony. You refer to the legislation i introduced with senator rubio in it. And i was actually pretty shocked at what i read. The wifi act which is bipartisan in both house and senate piece of legislation or bill for those who read it places timelines and guidelines in place for the fcc to test the 5 gigahertz spectrum band in consultation with the department of transportation. Some of the testing has already happened. Were excite build that. But our bill provides further structure for testing alone. I can understand why a lot of people in the industry want to attack, as you did in your written testimony and maybe even mislead people. Because the industry has been sitting on this spectrum since 1990. I want to be clear what this bill does for you and for others. For over a decade the industry has been working on new technology while at the same time other technologies using radar sensors radars and sensors have evolved without using dedicated spectrum. Over a billion dollars in tax payer dollars, money has been spent on this r d. And our bill simply asks for testing to see whether this limited resource this Precious Resource that you indicated can be shared. It is a factfinding bill, and that is all. Its not if its not safe to share, i agree. And the bill clearly says there will be no sharing. But if it can be safely shared, now other technologies are evolving, im sure people will agree it should be. So im disappointed in the portrayal of my and senator rubios legislation in your testimony. Im shocked. Ive only been in the senate a short time. But i have never seen something so misleading in the shore time ive been in the senate. I worked closely with stakeholders across the board, secretary fox to advance safety and supporters of the v to vtech technology. Safety should come first. But im disappointed by these exaggerated attacks. Did you read our legislation, yes or no . No. So if you didnt read the legislation, but you open this up, that is not true. That is a false statement. And that is very frustrating. 6 and so when i have mayor i said in god we trust. But everybody else bring me data. Bring me facts. Everybody wants to obscure them. But the truth should come through. But the factfinding bill that looks at what is the best way to achieve the safety goals that your company puts first this senator and im sure the whole panel puts first. So im just curious, my last question to you is, i believe consumers should have all options on the table that should advocate safety. And im wondering if you agree our transportation policy should be Technology Neutral . It should be about what is best to ensure that policy and safety dont lag behind the best cuttingedge technology. Do you agree with that . Of course i agree with that. Okay. So, again and may i respond to some of your comments then . You certainly may. So i think were on the same page with that. The unlicensed wifi doesnt have a governance structure like a licensed frequency does. And the ieee the industrial electronic Engineers Group that is the group that has put two proposals forward. They have not come to conclusion. So our position is that the legislation is simply premature. Ms. Alt, im sorry. I can believe your testimony that you submitted to the United States senate which doesnt say what you just said. It indicates that you are against this bill because it would and i quote, it would open up 5. 9 gigahertz frequency spectrum. That is not true. And you have agreed with that. What the bill and i hope you read it is saying is lets have a factfinding in defer that better understands the usage of this spectrum. Can it poeubl be shared without infringing on safety. So attacking the bill on clearly false standings is insulting. My time has run out. Thank you senator booker. I welcome our Ranking Member today from the committee senator nelson. Thank you madam chair man. What about it, ms. Alt. What about what senator booker said . We do not want to see the spectrum shared with other technologies until and unless the governing bodies are sure there is no interference from other technology. Do you think that technology is practical to basically the spectrum do you think the spectrum is practical to be used by the Automobile Industry any time in the near future . I dont know the answer to that, if it can be shared. Thats really the position is can it be shared with other technologies. The governing bodies have not come to a conclusion after putting forward two proposals. There are 4,000 crashes no. There are 4,000 people that are killed each year from serious truck crashes. How would you suggest technology is used to lessen that . The more that vehicles can speak to each other, vehicle to vehicle, this is trucks talk to go trucks and or trucks talk to go cars the more that they can talk to each other to let the other one know hey im here you need to stop that is a technology to help reduce crashes. Over last week i met with a grieving mom whose daughter on her honeymoon when the traffic had stopped on interstate 95. And it literally had come to a stop. And her new soninlaw and daughter were in the traffic stopped but a truck with the driver not having had a lot of sleep because of his company requiring a round trip trip within the state of florida in the same day of 16 hours, the truck driver was basically sound asleep. And so she is a grieving mom because of that truck plowing into the back of all of those stopped vehicles. How would you think technology could address the issue of truck Driver Safety . Yeah thats a great question. Im a mom. I would grieve with her. Obviously thats horrible. There are electronic on board recording systems that would record the hours of service that a driver can drive. Perhaps if there were a technology that would shut down the truck if he went beyond his hours possibly. But having the trucks have these onboard recorders. This technology is available. And i believe its close to being ledge slated. Those are things that can help. And this particular trust was intrastate not interstate. So what rules we have up here for example, we dont allow the tandem trucks in our rules more than 28 feet. But they are allowing two tandem trucks on intrastate, inside the state, of 33 feet. Which is an issue that will be in front of this committee with regard to truck safety. Let me ask you mr. Christensen, you all have accommodated the big ships from asia. And soon, in a year or two when the panama is complete indeed its expansion, they will come to the east coast. You want to give any quick pointers what we could do that youve learned, Lessons Learned on handling those huge, huge container ships . Senator nelson, thank you for the question. It is doctor they are a game changer. But the term of big ship is a changing term. When i started working in the port about 10 years ago a big ship was 8,000 teus. In 2012 the port of long beach started handling 14,000 teu ships. About the same time, the new locks in the panama canal were going into construction, which can accommodate a 13000 teu ship. The ships were handling now in the San Pedro Bay ports will not fit in the new locks on the new panama canal. We are customers at the port of long beach are now ordering 20,000 teu ships. So it is a very much a moving target to our colleagues on the east coast. They are already dealing with this with ships that are transiting the suez canal. And it really has to do with depth of channel to get them there. But once theyre there dealing with how those ships are stowed and how the ships are unloaded. And that is exactly the focus of our joint working groups, is to figure out a whole new way to operate our ports so that we can deal with a very large amount of relatively unsorted containers coming across the wharf and hitting us in ways we have never had to deal with before. The question was what are the Lessons Learned that you could share with the other ports . The lessons were still learning, senator. And they really have to do with having adequate supplies of chassises, which has to do with an inneroperable chassis pool. It has to do with working closer with the steamship lines in putting more discipline in their stowage of the vessel, which has been thrown aside because of the way that those vessels vessel. And the way the shipping alliances are working. It has to do with working much much more closely with the communication of data which were again finding extraordinarily siloed within the supply chain being able to provide an operator with information more than two days before that vessel hits their terminal. These are all lessons were learning. Im not sure we could tell more to our friends on the east coast beyond that for dealing with that. Thanks, madam chair. Thanks for holding this hearing. Congrat congratulations on 20 years. It seems just like yesterday and definitely would say the transformation of delivery of goods and services has been quite impressive. I didnt hear your testimony discussion about the drone issue from a technology perspective. Clearly this committee, the larger full committee has had testimony on that and its one area of continuing to move forward on technology and delivering the product. Mr. Christianson loved everything that you said, except would have been great if you said it was about seattletacoma instead of l. A. Long beach. Still happy to hear about your description of the Economic Opportunity before the United States that we can increase the cargo shipments because there is that demand and product to be shipped shipped. We have to continue to make improvements and this is something we see in seattle as well that somebody estimated instead of 3 million Cargo Containers we can do Something Like six. You described that. You described that would be good for long shoremen even though youre making technology investments. Youre talking about efficiencies. My question is, even though were talking about technology that helps us move and be more knowledgeable about the product do we still need to make investments in freight mobility from a federal perspective to make sure as those products are being moved around that our technology isnt measuring stuck in congestion and making us less competitive . Senator cantwell i appreciate that very much and thank you for the congratulations. Ive only been here for 15 of those 20 years. I think we are looking for innovative policies. Youve introduced a bill that proposes such policies. We congratulate you for that bill. If anything it can be broader. Can be applied to morthan multimodal freight. But that kind of thinking and mr. Christianson mentioned commune caution ofication of data. Also communication among stakeholders. Thats a big part to get the stakeholders talking and figure out innovative solutions. Were fans of data. Thats something were doing with the usps. Big component of our interaction with them is making insure they get forecasts of what were seeing, what were going to be shipping. And that is particularly important for sunday delivery to have the most efficient routes. Youre a global business. Mr. Christianson has fixed cost if you will. He mentioned the magic words, panama and canada. This is about competition. This is about if were going to make improvements necessary to move our product cost effectively or whether that business is going to go to can do or via the panama canal. Do you support further freight efforts at the federal level . Just as surely as were sitting here, as we see International Trade continue to increase and we are now at levels that are peaking over the prerecession levels, well certainly be seeing bottlenecks develop. As i mentioned in my testimony the strategies are infrastructure efficiency with technology infused along with operational efficiency. I believe the legislation is timely. Its critical to the future of our supply chain optimization and we would hope to be able to continue to collaborate with you and your team on that because its its critical to be looking ahead. Infrastructure bottlenecks dont go away after you recognize them. It takes years of funding and policy to solve these bottlenecks as they come up. Your testimony, i really appreciate it because you described what the future opportunity was. Not just in jobs but automation. How do we tell the story on a national basis. Is this data the supply chains from our reports have . Its data but fractured data. Its critically important that we bring this data in to a through a reliable gateway and make it transparent in the public. We have challenges ahead. As seattletacoma has worked very hard on their joint port efforts as well. We watch and benchmark whats going on up there very closely. There are opportunities but theres a lot of opportunities ahead of us but a lot of work to be done. Thank you madam chair. Senator klobuchar. Thanks for holding this hearing. Thanks for the witnesses. Mr. Fox, december 2013 Government Accountability Office Report found the fra faces a lot of challenges. Rail sauft challenges, including the inspector only has the capacity to inspect less than 1 of all railroad activities. I come from a state where were an entry point to oil from canada and agriculture products from everywhere. We have had an enormous increase in rail. As you know, the fra partners with states to oversee the inspection of signals, tracks and mechanical operations. In april, i sent a letter to the Appropriations Committee asking for increased funding for rails. Id like to hear about what technology bnsf uses. Do you think theres Better Technology that would get us through this . I think weve shown as an industry that we continue to Leverage Technology and the results have clearly been best ever safety results last year from an employee safety and derailment perspective. Beyond that theres opportunity. Theres tremendous opportunity. Again, i think as we talk about regulation, part of our challenge today is regulation based on a design standard. As we look at focus on outcomes, again, that will allow the industry to innovate. Innovate with technology, process changes what kind of technology would help with this . As we look forward, as i mentioned in my testimony, i think this Drone Technology very early in practice has a real potential. This Pathfinder Program with faa will move beyond line of sight to where we can use drones to travel along our private network for hundreds of miles a day taiking highspeed images, High Definition images of our network down to a quarter inch accuracy. Post processing that data will help us understand exceptions. And i was just in the last week up in International Falls minnesota. This is not a Burlington Northern issue where i was in trouble. Its where a bridge collapsed, small railroad bridge, but it happens to be the biggest entry point on the Canadian Border into the u. S. And right by International Falls which is a larger town. One of the things weve talked about, this was a Canadian National rail issue and in addition to the bridge collapsing and some issues theyve been having with that railroad and workers not allowing us to cross the railroad, the issue was theyve been having a lot of Gray Crossing issues there. 8 to 10 hours a day the trains are in the middle of the town. Thats a lot of time and people have to drive 2 1 2 miles around the town. What i wondered about is the Railroad Safety institute of the university of minnesota is studying train delays to more accurately investigate train delays at railroad crossings. They have a signal for the people, whether they are deciding to take the 2 1 2mile route or go into town. Some kind of technology so it would empower drivers to know what to do. I wonder if you have any ideas about that crossing issue. I did an amendment on the rail bill we just passed through and this was brought home to me this week why we did it. When we talk about federal funds supporting freight projects, it clearly needs to be part of that. And, obviously, weve been active in that area with contributions against those great separations. I also think when were tacklking about train headlites at the crossing we need to be looking at taillights. More federal funding for grade separations seems to be part of the answer. And the side tracks. If the trains could wait somewhere else. I think they are