Transcripts For CSPAN3 Politics Public Policy Today 20141030

Type of threatening coercion that doesnt really fit in the relationship between sovereigns. This 39 School Corporations who have joined, i was talking to a few people in the hall. They are usually not standing next to me during my election process. Lets leave it at that. But they were very concerned about the way we educate our children and the way our School Corporations as a part of our sovereign government has been structured. We have a school board. They elect the people who run the school and they use parttime workers. So its bus drivers, the teachers aid, people that work in the cafeteria. Under indianas law, 30 hours or 37 1 2 hours, anything less than that is parttime. Were going to have our last keynote address and then we will break for lunch, which will be held upstairs on the second floor. Our final speaker of the day is the attorney general of oklahoma, scott pruitt. He holds the merit of he holds the distinction of seeing the merit in this litigation before any other attorney general. He was the first to challenge the irs disputed taxes and spending way back in september 2012. Last month, fairly slowly it seems, a Federal District court in oklahoma rules for general pruitts case and against the federal government, the Obama Administration not surprisingly has appealed that to the 10th circuit, which will hear oral arguments in january. Scott was elected attorney general of oklahoma in 2010. His official biography says that as attorney general, he is dedicated to fighting corruption, which i assume would include illegal taxes, mandates and subsidies imposed by the federal government. He established oklahomas first federalism unit in the office of solicitor general to combat unwarranted regulation and overreach by the federal government and has led efforts to bring attorneys general together to advance policies and legal strategies that protect the interests of their states from an overly intrusive federal government, including a multistate lawsuit challenging the con sstitutionality of the dodd frank law. Most importantly, for seven years he was the managing general partner of the aaa Baseball Team in oklahoma city, some honest work. Welcome to the podium. Thank you. Its good to see you. [ applause ] it was honest work. I enjoyed my time as a owner of aaa baseball. Im disappointed about last nights outcome of game seven of the world series. We were rooting for the kansas city royals. But it was a great series, a great time for baseball. Sometimes the mistake is made david is from kentucky. He will understand this. Sometimes the mistake is made when im introduced that i played basketball. I played baseball and then i will step out from behind the podium and im 59 and people say you didnt play basketball. That is true. They recruit people taller than i at that university. I want to say thanks to david for the invitation and to michael as well. Its a joy to be here. General zoeller presented this morning. Its good to see you. Its good to have partners and teammates in the room. I do want to offer, if i might i know you have had many discussion points today on policy, the legal components. If i could offer something to you to generally before i get into the specifics of oklahomas case. A couple of policy statements that i think are relevant. One, i think we need to remind our friends on the left that Health Insurance does not equate to healthcare. Sometimes, policy makers both at the federal and state level believe that they can simply expand eligibility and coverage and somehow that magically will fix all of our healthcare outcomes in this country. Thats not the case. At the end of the day, you still need a physician in a treatment room providing care to a patient. Unless a doctor is willing to take the reimbursement rates that are being paid to him or her, that means that will affect care. In the state of oklahoma, to give an example, 14 or 15 years ago when i was in the legislature, the state of oklahoma expanded eligibility. And it increased federal poverty up i think at least 200 . It may have been beyond 200 . So politicians all over the state were able to go out and stay, look what we have done. We have provided more Health Insurance to those that needed it as if that was going to fix all of these healthcare outcomes. There were two doctors, two, pediatricians, in all of the city of tulsa, that were willing to take the reimbursement rate. As such, all you had was long lines, delayed treatment for those that needed it there in the city of tulsa. One, i think we need to remind those in this policy debate that Health Insurance and healthcare are two different concepts. Also, this, as you expand the role of government, particularly the federal government, but government generally as a payor, then medical inflation will continue to rise in a substantial way. We talk about using these programs that are talked about at the Affordable Care act state level. We need to curtail outflow and cost of medical care and what ends up happening is a continued expansion of the role of government. Which is working opposite of controlling cost. Thats not why im here. Its not what i do day to day. But its relevant to my comments today. Here is why. Because when the lawsuits were initially initiated by attorne s s general and by states, the original challenge to the unconstitutionality of the law of the Affordable Care act in march of 2010, you remember the criticism levelled against states attorney general. It was a political case. It was to make the administration look bad. It was an election year. Attorneys general being used as a puppet to go out and challenge the administration to do what . Bring disrepute to the Affordable Care act. It was political, they said. They also said that it was about policy, the fact that attorneys general didnt like the content of the law. Now i will be the first to tell you that if i were in congress at the time that the law was pa passed would have argued against it and tried to defeat it. I will say to you, my colleagues, when these lawsuits have been initiated, fundamentally they are not about politics and not about policy. They are about something more transecen transcendent. Its rule of law. The cases that michael and general zoeller and the state of oklahoma are involved in is about something more important than simply one piece of legislation. We see this in other fields. David mentioned doddfrank. We see it in the energy sector. We see it in the finance sector as i indicated. We see it an attitude that permeates washington, d. C. Agencies believing they possess the authority to improve upon a statute. To change a statute, to repeal a statute, so long as the results are what we think need to occur, they say. So long as we think its what congress intended. I will get to that in a second. We have the authority to change the reading of the statute, to achieve outcomes that we think are most appropriate. Well, last time i checked, thats not how our system works. Last time i checked, fifth grade civics teaches us that the executive branch exists to enforce the law as passed by the legislative branch. When the legislative branch passes and adopts a piece of legislation that establishes boundaries for an agency, you dont get to legislative intent. Thats whats remarkable about the arguments being offered. They go into the cases as they did in oklahoma and they say clearly congress the wouldnt have intended this type of result. We were trying to expand access to healthcare, they say. So we cant read the statute that way. Really . Then why does the statute say what it says . That really is the tug and pull that we have experienced in oklahoma and im sure michael has experienced and general zoeller as well. These issues about policy and politics have not driven, in my estimation, the lawsuits that have been filed, fundamentally, its about rule of law and making sure agencies are accountable to the laws as passed by the legislative body. History about our lawsuit in oklahoma. We actually i filed our lawsuit in january of 2011. I was elected november of 2010, was sworn in in january of 11. I joined 27 other states at that time. Filed a separate litigation in oklahoma. Oklahoma passed a constitutional amendment in november of 2010 saying that no government, the federal government, could compel the purchase of Health Insurance. It was an antiindividual mandate provision. It was in the constitution. So i defended our constitutional provision against the aca in federal court in oklahoma. Started litigating in january of 11. Shortly thereafter, the judge stayed the case. It sat until june of 2012. After the decision in june of 2012, we did what most states across the country started doing, evaluating the implementation of the law. As you know this is something that has to be said. Because those on left and the media say we have litigated this so much. Why are we continuing to see litigation . The litigation in 2012 that made it to the Supreme Court was about one thing and one thing only, did congress have the authority to pass the law . Not whether agency were implementing the law with what . . H adherence to the language but whether they had the authority under the commerce clause. Medicaid expansion was a bill part as well. The states won on that giving each state the option, the discretion on whether to set up medica medicaid. That was thestistutionalitycons. Micha michaels lawsuit is about Something Different. Its about whether the agencies are adhering to the language in the statute. We started evaluating that in august of 2012. I know this will shock you. But we learned these agencies in fact were not, particularly the irs. So when we evaluated this Healthcare Exchange issue, every state in the country had a decision to make under the law on whether to set up an exchange. It was a policy decision. It was legislative on whether to set up a change. Congress incentivized, as you heard, the creation of exchanges. Why did they do that . Because they couldnt require it or mandate it. That would violate the constitution. So congress did what they always do whether they want the states to act a particular way. They offered money to the states. They appropriated billions of dollars, one in the creation of exchanges but two they tied the subsidies to the creation of a state exchange. I will say to you that there was policy and political reasons why congress did that. The policy reason is there were some senators, particularly senator from nebraska at the time, believed that the federal exchange was a precursor to the single payer system and was concerned about that and wanted states to have a vibrant role in the setting up of exchanges but secondly, there was a political calculation bit administration. They wanted to share the responsibility of the rollout of the Affordable Care act with all the states across the country. We now know why. Because theyre not very good at it. They knew it then and they didnt appropriate the money. They wanted all the states with the federal government working toward this implementation. When 36 states said no, there was a problem. Unfortunately, rather than go back to congress, which is what the president and those that pass the aca should do to fix whatever portions of the law that created this dynamic of 36 states saying no, they took this attitude that i talked about at the beginning. Were going to improve the statute or change the statute. And disregard section 1311 and say that the subsidies can be issued in all 50 states irrespective of the decision the policy decision that was reserved to the states. Now, that should offend everyone in this room, whether you are for or against the healthcare law, the Affordable Care act, we should all care about an agency after the fact saying that they have the authority and the power because of a Certain Circumstance to change the law. Thats, in fact, what the irs did. We sued. I amended. We had the only live case in the country from a state perspective at that time, august of 2012, our case was dormant. It was the only case in the country. We went to the court, amended our complaint and brought the lawsuit against the agencies in question, with respect to the rule that was adopted in may of 2012 by the irs. Thats what we have been doing since that time. Now, david made the comment that things are moving slow in oklahoma. Im just glad that we got a good outcome the last two to three weeks. It has been a period of time that we have been litigating this. Obviously, im encouraged about what judge white said. I want to call to your attention some comments that judge white made. In his opinion, he addresses this political policy aspect. Because there are many if you read the briefs in oklahoma that were filed by the Justice Department, theres in my estimation theres more policy discussion than there is legal analysis. It was more trying to shame the court and shame the state for trying to fulfill the statute as passed by congress. Here is what judge white said in response to some of the not intere interest magss made in arguments as well as in the briefs. An agency rule making power is not to make law. These are direct quotes from the order. An agencys rule making power is not to make law. Its only the power to adopt regulations to carry into affect the will of congress as expressed by the statute. He goes on, the court is aware that the stakes are higher in the case than they might be in another case. The issue of consequences has been touched upon in the previous decisions discussed. He is speaking speaking of his decision to vacate the irs rule, the majority stated, we reached this conclusion frankly with reluctance. He goes on, this is a case of statutory interpretation. The text is what it is, no matter which side benefits. Such a case, even if affirmed on the inevitable appeal, does not gut or destroy anything. On the contrary, the court is upholding the act as written. Congress is free to amend the aca to provide for tax credits in the staid ate and federal exchanges if thats the legislative will. That think matter. Its great to hear a court in this country, a federal judge say what he said. And im hopeful that tomorrow we are on the eve of perhaps a decision by the u. S. Supreme court to take up the case to settle this and provide the clarity needed across this country. 36 states have said no to an exchange. 36 states collectively have made that decision based upon statutory language and policy considerations. And right now, we have uncertainty about the decisions that they have made and citizens across the country, including employers. Because we know the consequence of not setting up an exchange is more than just simply subsidies not being issued to citizens in your state. We know had a it affects the employer mandate. I would also submit to you something that is not talked about as much is the individual mandate is affected as well. Because under the Affordable Care act, there are exemptions provided to individuals if your healthcare cost eclipse 8 of your annual income. The administration knew that as this law was passed that the healthcare costs would rise dramatically and they wanted to use the subsidies to avoid the eclipsing of the 8 flesh hold. If 800 billion are not issued in 36 states, not only is the employer mandate going to be crippled, but many individuals across those states are not going to have to comply with the individual mandate. So this is a critical, critical lawsuit. Because it goes to the heart of whether this administration, these agencies at the federal level can in fact enforce the law as was set up at the beginning. It is desperately needed for the Supreme Court to deal with this issue sooner rather than later. Im hopeful that we receive good news about the petition. It has been filed by michael. We support that. I know general zoeller does as well. We will be there to support that in inany way we can. This is an issue that needs to be resolved. I want to address this argument that was made about i mentioned the policy on the political side of the decision to bring a lawsuit and that that was not the consideration and not the focus. As we got into the litigation, the response by the Justice Department was that our argument was absolutely fanciful. It was absurd is the word that was used. Because of the what . Impact that it would have and they took this position that was almost a very arrogant issue as it relates to i cant believe that a state or plaintiff would bring this lawsuit against the federal government in this way. And then we found out about what . A video. You have talked about the video, obviously, that was found. And the audio i dont flow if you listened to the audio as well. We had the at built in oklahoma to do something that was pretty important. After the video came out and the audio came out, clearly Jonathan Gruber said initially it was a mistake, that he didnt intend what he said. Its always interesting that people say that. I know you heard me. I know i said those words, disregard the content and meaning of those words. I didnt mean that at all. Then the audio was found later and maybe subsequent videos as well. We filed a notice of Supplemental Authority in our case. Our case was still pending. After the videos came down. Those video and that audio, they were not part of any record in any case in the country. So we had the luxury and the latitude when those videos were produced to file a notice of Supplemental Authority. The judge actually made reference to it. In his order. Here is what he said. I thought you might find this interesting. The court permitted the plaintiff, the state of oklahoma, to supplement the record with statements made by professor Jonathan Gruber was involved in the acas drafting. Its undisputed that in january of 2012, he made the statement, if you are a state and you dont set up an exchange, that means your citizens dont get their tax credits. Whats disputed is whether it was off the cuff, which you have addressed earlier today. He goes on to say, the statements cut against any argument, this is whats important. The statements cut against any argument that the statutory language might support a reading of Incentivizing States to set up exchanges as nonsense made up out of whole cloth. Those videos and that audio, that capturing of him saying that, the court in oklahoma said, this absurdity that the Justice Department said is the result of the states lawsuit cant approach that, you cant say they are making it up out of hole cloth. One of the consultants, the individuals that walked with the administration to set up the law at a time when the irs was passing their rule made a statement, states you are going to be penalized if you dont set up exchanges. Your citizens will be penalize and not have access to subsidies. With respect to where where he in our lawsuit, we are, as david indicated, in an expedited stature with the 10th circuit. Briefs will be filed as of december 22 of this year. The case will be argued in likely the third week of january. So im hopeful that we will see a decision soon thereafter. I hope thats also something that follows the grant by the court with respect to michaels lawsuit here in the d. C. Circuit. The Fourth Circuit in richmond. It has been a pleasure to be with you today. Im glad to be talking about these matters. About important matters, matters of rule of law. And i know that i began there. But i want to end there. Because this issue of rule of law is something that i would never have guessed i mean this sincerely. I would never would have anticipated three or four years ago dealing with the number of cases that we deal with in the state level of agencies literally having an attitude unapologetically saying they are going to act because they can. I understand that and every attorney understands that, and that is something that Congress Must deal with. This delegation they need to be prescriptive. Thats a story for another day. On this matter and other matters what we have is Something Different than discretion. We have an agency engaging in a results oriented approach, ignoring the statutory language and doing so at the expense of checks and balances in our system. Its creating extraordinary uncertainty in the marketplace. It must be dealt with by the courts to send a message to the executive branch that they are not able to engage in that kind of practice, not only around the Affordable Care act but in other areas as well. I really appreciate katos leadership in putting together the conversation today. I appreciate the opportunity to be with you. I hope the next time we get together that we are celebrating victory in this important fight for rule of law. Im thankful for the opportunity to talk today. Thank you, david. Thank you. [ applause ] we have a couple of minutes for questions. I guess i better call on michael cannon first. Wait for the microphone. Thank you for speaking here today and for your leadership on this issue. Point of clarification. I have done a lot of research and reading and speaking and writing about the lawsuits. None of these are my lawsuits. Im not actually involved in any of the litigation. I just comment on it. Credit is due to plaintiffs in those cases and to the attorneys brought them, including in king versus burwell where its before the Supreme Court right now. Thank you. Back there. I was wondering if the Supreme Court does decide on king, what does that mean for your lawsuit . Is it going to be completely preempted by king. I didnt hear what does it mean to whom . To your lawsuit. To the oklahoma lawsuit. Is it going to be completely preempted by the king lawsuit, or is there is it still going to proceed . Whats going to happen with the lawsuit very likely, what would happen is if it was granted, the 10th circuit would obviously pause until the Supreme Court makes their decision. So it would cause our lawsuit to probably go into neutral, unless we try to use some mechanism to join the king grant, which is possible. Thats extraordinary, but its a possibility. Would your lawsuit have a way to proceed . Well, if the Supreme Court takes case up and issues a determination that oklahomas perspective, king versus burwell, and indianas perspective right it would preserve not to set up an exchange. I mean, we would adhere to the Supreme Courts determination. Is that your question . Get him a mike. Is there any way that theres going to be this sudden afford built vacuum because of the loss of the subsidies. Would you think that a state could mitigate that damage by under its authority to regulate insurance by making available affordable, nonaca qualified insurance contracts . Well, i take issue, number one with this argument that there would be substantial disruption in the marketplace. Michael and i were actually on a Conference Call earlier this week. I think this is perhaps the most unsettled law in the history when you think about it, here we are four years post this law being adopted and signed. I think most citizens across this country want to see it repealed but its because the initial challenge bit stay the. We have uncertainty in the marketplace because agencies are engaging in regulatory over reach. I spent time with hospital administrators in my state. One of whom i asked, how are you making decisions about deploying capital, planning five years in the future staas far as how you business . He said, i cannot. Because the president and hhs change ed statute routinely. They cant plan. I would take issue, number one, with this argument that somehow this litigation is going to be a disrupting force in the marketplace as it relates to healthcare. Theres enough disruption already unattributable to the lawsuits. Its about regulatory uncertainty. This would provide clarity. I think it would do something else. You mentioned the state level. I think it will precipitate congress doing what they should have done already, which is fix the law. I know that there are many in congress that have talked about that. This litigation will cause congress to have to go back and address the Affordable Care act in its totality. Because it goes to at buithe ab to enforce the law. I think it will cause congress to have to start over. Then the states can make decisions from there. But in the interim, i think i think states are going to be in a very difficult position until theres resolution on the litigation and seeing how congress responds. Say what again . Do you think a state would have that authority under their regulatory provisions to make available nonaca qualified insurance, contracts for their citizens . Under the aca, when the aca is in place, that would not preclude paying the tax. You would still have to pay the tax for being in noncompliance. Could a state, do you think, have the authority to make those options available to its citizens . I think the better question is, would that suffice and satisfy the requirement in the Affordable Care act for qualifying Health Insurance. What were doing here is not that, obviously. So you would still have provisions in the law that requires employers to do what . Adopt qualifying Health Insurance as defined by hhs. What would be missing is the variability of the federal government to enforce that. So perhaps states could fill the void with some sort of tax that they get assessed at the local level to provide more access to care for the citizens. But i dont think its tied to the responsibilities in the Affordable Care act. We can talk about it offline. Thats off the top of my head. I think that thats what i would say to it at this point. We will take one last question up there. I think what he is getting at is Something Like this. If king and your challenges are upheld and all this component of the aca is no longer enforceable in states without a state exchange and the premium, the unsubsidized premium goes above 8 for a lot of people, then a state could authorize the sale of nonaca compliant insurance like they had before the aca, then people could buy insurance and it would be affordable with a lower case a, they could buy whatever insurance they wants, wouldnt wore roy about try abo mandates and wouldnt pay the penalty unless their income were so high that a compliant policy were available for less than 8 of their income. I love the hypothetical. I guess what im saying is, yes, they could. But its untethered to its irrelevant to the aca. Thats the whole point. Yeah. They could do that. Thank you, general pruitt. Thank you to all of our speakers today. [ applause ] theres more information on this at our website, kato. Org. Lunch is upstairs on the second floor. Follow the yellow wall. Thank you. Here is a look at recent ads running in that state. We have the nations highest electric rates. Thats one thing im definitely going to change. Im definitely going to change. New hampshire, we have some of the highest energy costs in the nation. Most likely go up 43 . Thats 42 a month more out of your pocket. 75,000 customers. Let me be clear 12. 47 per month, exactly. 12. 2 . Thats 83,000 homes and businesses in New Hampshire. Here is the shocker, 50 a month, about 50 more for your bill. They have about 130,000 New Hampshire customers. Im definitely going to change. I have never voted to outsource jobs. Your involvement with a company you are on a board whose Business Plan includes shipping jobs overseas to minimize costs, outsourcing. I have never voted to outsource jobs. Its interesting when you look anyone who turns on the tv knows we face challenges to our way of life. Islamic terrorists are threatening to cause the collapse of our country. The president and senator shaheen seem confused about the nature of the threat. I want to secure the border, keep out the people who will do us harm and restore leadership in the world. Im scott brown and a proved this message because protecting the homeland is the first step to making america strong again. They dont call us the Granite State for nothing. We are tough here. I never back down from a fight for the people of New Hampshire. I dont work for the Big Oil Companies or the big banks. I work for you. Saving jobs at the shipyard, helping our businesses compete, allowing families to refinance Student Loans and veterans get healthcare close to home, getting the job done for New Hampshire. Im Jeanne Shaheen. A proved this message. I didnt just move here, ive been here fighting for you. I would be honored to have your vote. Cross could ontrol could be by the winner of this race in New Hampshire. Screeria nige with live coverage of the u. S. House on cspan and the senate on cspan2, here on cspan3 be show you Public Affairs events. On weekends, we are the home to American History tv with programs that tell our nations story, including six unique series, the civil wars 150th anniversary, american artifacts, discovering what artifacts reveal, history bookshelf, the presidency, looking at the policies and legacylegacies, le and policies, and our new series, real america features educational films from the 1930s through the 70s. Created by the cable tv industry and funded by your local cable or satellite provider. Coming up, the Supreme Court hears oral arguments in heien versus North Carolina. The court is considering whether a Police Officers misunderstanding of law can justify the stop and search of a vehicle under the 4th amendment. This is an hour. Our first case this morning is heien versus North Carolina. Mr. Fisher . Mr. Chief justice and may it please the court, in a country dedicated to the rule of law, officers should be presumed to know the law. That being so, when questions about individualized suspicion arise under the 4th amendment, they should be addressed against the backdrop of the correct interpretation of the law, not simply any plausible reading an officer might have. Suppose that this state, North Carolina, did have a good faith exception to the exclusion ari rule. What would you be arguing today . We would still be arguing, if that were the case, that not only the 4th amendment was violated but that the good faith exception didnt apply. But you wouldnt have to reach that question in this case i would concede to you, that would be a debatable argument . Why more than the argument you are making here . I anticipated your answer. I think that has i think you have to tell us even if the good faith exclusion the court has held that reasonableness of mistakes of law can be taken into account at the remedy stage. Why isnt we know there can be. Theres a difference between rights and remedies. When you asked about what is reasonable as to whether or not the 4th amendment was violated, both in the 4th amendment in criminal cases and in immunity cases, you do that against the correct interpretation of the law. We are talking about whether as a matter, we can have this dichotomy known as a reasonable mistake of law, a difficult and interesting question. But it seems to me that you have to make the same argument here, in the case where they have a good faith exception, as you are making here and you have a problem if you have a problem with davis, then that undermines your argument. I really dont think so, Justice Kennedy. I think the best expo decision of this problem is actually in the anderson against kraiton case where the court wrestles with how can something be reasonable in one sense and unreasonable in another. The answer they gave is whether we ask whether the 4th amendment was violated, we dont take mistakes of law into account. The reasonableness can go to the remedy question. This is the premise from which l leon mr. Fisher, i have a preliminary question. Even you are right about mistake of law, isnt it a moot question in this case . Because as i understand it, the traffic stop ended with a warning citation. So the traffic stop is over. And at that point, the Police Officer asks if he can inspect the car. And the answer is yes. Why isnt the consent to the search the end of this case . Because it would be the fruit of the poisonous tree, justice ginsburg, if the stop was illegal. There would have never been an opportunity to ask for consent. I think thats why the state and the solicitor general havent made an argument that it wipes away the 4th amendment question. Suppose the officer said im giving you a warning, you are free to leave now, but by the way, may i search your car . I think thats more or less what the officer did say here, justice. You would say even in that situation that would be the fruit of the poisonous tree . Yes. Because the stop wouldnt have taken place. The courts cases say that a traffic stop is a seizure. So upon pulling mr. Heien over, the officer needed to have reasonable suspicion to do so. The only argument for reasonable suspicion is the mistake of North Carolina law as to the brake light in this case. I understood you to say earlier that you dont take distinguishing the exclusion rule you dont take reasonable into account when it takes to a mistake of law. Im sorry. What i think i said is that you dont take the reasonableness of mistake of law into account when you ask whether the 4th ame amendment was violated. Do you sometimes when you ask about the remedy. The 4th amendment protects only against unreasonable search and seizure. I dont understand it would seem theres a stronger argument for taking the reasonableness of the officers actions into account when you are talking about a mistake of law, because thats what the 4th amendment says, as opposed to remedies and qualified immunity. The court rejected that precise argument in anderson, that argument that the word reasonableness means that the 4th amendment incorporates mistakes of law. Because of a deep common law rule, which is that when we ask if i could just pause. I thought we said exactly that in hairing, where we said that even though we look at it in terms of remedy, that was no to say that it the reasonableness didnt go to whether there was a violation of the 4th amendment. My understanding of that would be, that would be a mistake of fact case, whether there was a warrant outstanding for his arrest would have been a factual question. Not necessarily a legal question. In anderson and krull and leon, the court said the officer acted as a reasonable officer could and should have acted. Time and again in the courts cases, they have said the officer acted reasonably because the reasonableness state you can take into account whether the officer reasonably misunderstood the law. I was going to say, putting our aside our discussion, why does it make sense to say you dont take reasonableness into account when the 4th amendment only protects against unreasonable searches and seizures . For three reasons. Theres a practical reason, a the theoretical reason i will start with the theory, because thats where i was just describing. The deep common law heritage in this country that we have always followed in the best expo decision of that is in the chief case is that the criminal law is presumed to be definite and knowable. In all kinds of settings, whether punishing somebody for violating the law or any other actions, citizens or the government engages in, we always assume a correct understanding of the law, even if its later construed by a court in a way that wasnt isnt it strange that you are citing didnt the hold that under the in that circumstances there, ignorance because of a special statutory exception that congress had written. The beginning of part two of cheek is what im relying on justice alito, where theres a paragraph or two that sets out with numerous citations this principle Justice Holmes described and many others that the criminal law is presumed to be definite and knowable. Once you take that presumption and put it into the Police Officers mind in this case or any other actor who acts on a mistake of law, then there is no reasonable suspicion because we presumed them to have known the law when they acted. Suppose the officer stopped the driver here and said, you know, ive been going to Night Law School and we dont know about this one light, two light thing. Theres an intermediate court of appeals hearing the case, saying only one light is necessary. I dont know what the law is. You better get this fixed. I think theres two questions there. And then he sees the contraband. Pardon me . And in the course of this conversation, he sees the contraband. Well, i think theres two questions embedded in there. One is whether the officer can look to Court Decisions or other Third Party Sources to help him do his job. Now, again, that is what the court has said in the kroll and davis cases that you take into account things like Policeman Police manuals it, Court Decisions, the rest. The court has embraced that in its remedy jurisprudence but many in wren has said that is off limits. There is also an element of your question asking if all the officer was worried about was the safety on the roadway. That would be a very different case. Again, im going to turn the court to wren where the court said if theres a stop done for reasons aside from probable cause, then the purpose of that stop such as the Community Care taking function might kick in. But of course the state hasnt made any argument in that respect in this case because the record is quite clear the officer was performing a criminal investigation. Mr. Fisher, we dont review opinions. We review judgments. We review results. What youre complaining about here is the admission of what was discovered in the search of the car. Right . Now, what difference does it make whether that was lawfully admitted because it was a constitutional search or it was lawfully admitted because the remedy of excluding it would not be applied if there was a mistake of law, a reasonable mistake of law. I mean, the constitutional problem is the admission of this evidence. And it seems to me whether its properly admitted because the Fourth Amendment wasnt violated or whether its properly admitted because the remedy for that violation is not exclusion of the evidence, you lose either way, dont you . Well, Justice Scalia, nobody has addressed the question of remedy in this case because nobody needs to address we need to if we find as you were just to find that it violates the Fourth Amendment to make the search. We would then have to in order to decide whether this judgment is lawful we would have to decide whether the remedy of excluding that evidence has to be applied. Forgive me. With respect, Justice Scalia, im not sure the court needs to do that. Of course, i think the court can vacate and remand the judgment just as it does innumerable other times it finds a problem with the Lower Court Decision and therefore, sends it back. Even if this were purely a federal case, Justice Scalia, i think id be saying the same thing, which is nobody has briefed or argued the good faith exception in this case. Well, you have. You have. And you acknowledge that it applies to remedies. No, no, no. Heres what ive acknowledged Justice Scalia. I guess this is important. Weve acknowledged that the question of whether the mistake was reasonable would be relevant if at all at the remedy stage. So what you would do is youd ask the question if this were a federal case where you had to reach the question, youd ask whether the officers mistake of law in this case renders suppression inappropriate. Now, i would add that holding that it did render suppression inappropriate would be an extension of the courts current good faith jurupa which thus far has held that good faith doctrine applies only when an officer relies on binding law from a legislature or a court. So the most we can get from us is a remand. Thats right. But i do think its just let the North Carolina court decide whether the remedy of exclusion should have been thats right. Im not sure its any different if i said theres a constitutional violation that i may or may not be entitled to a remedy under chapman because the error was harmless or not. Those are the kinds of situations where the court would always resolve the constitutional question that the lower court addressed and then send it back down for the question of remedy. I dont know why following up on what Justice Scalia is saying. Hes saying we dont give you a remedy unless we believe that one is warranted under the Fourth Amendment. And since we apply, doesnt matter whether North Carolina applies good faith or not. What we apply in terms of determining whether a federal violation, constitutional violation is subject to any type of remedy for you is the good faith exception. So why do we have to remand . I think thats Justice Scalias question. Im not quite sure youve answered it. The reason to remand is because the lower court hasnt addressed any question of remedy. So in the first instance, you should send it back to the lower court for a full adversarial briefing. But North Carolina has a rule, i thought, that if you violate the Fourth Amendment, thats it. We dont have a good faith exception. That will be our position on remand, justice ginsburg. The state may try to persuade the court of something else. Isnt that what the North Carolina law is now . So it would be futile to send it back for them to answer the good faith exception since they have none. It wouldnt be futile, justice ginsburg. I think the analogy that i gave earlier about chapman is more or less on point. The court has held if the constitution is violated that the defendant in criminal case doesnt get a remedy unless he satisfies that test. Now, all the time in criminal cases you would decide the constitutional issue and then send it back for remedy analysis if the lower court hadnt addressed it thats because they would be applying federal law. They would be answering the question that you want us to leave unanswered. Namely whether the constitution requires that this evidence be stricken from the case. Well, let me but if, indeed, theyre not going to ask that question when we send it back, it seems to me we have to answer that question here. Before we are able to reverse or affirm that the North Carolina court, its a federal question. They are not going to get to that. But youre asking us to invalidate this conviction on the basis of federal law. And it seems to me we cannot do that even if there has been a violation of the Fourth Amendment, the remedy must be exclusion of the evidence. Thats a federal question. I think were going to have to decide it. If we send it back to North Carolina, theyre not going to decide it. No, i dont believe they would or should. But i but just if a state had adopted a rule saying were going to have a more favorable jurisprudence of constitutional error and give automatic new trials, the court wouldnt be prohibited from deciding a constitutional issue and sending it back to the state. In the retroactivity sphere, dan forde says states can choose for themselves. Theres no question if North Carolina applied a state constitutional analog to the Fourth Amendment, they could have a more extensive remedy than is recognized under our Fourth Amendment cases. But your argument is they can adopt a state law rule for Fourth Amendment violations that is more protective of defendants than federal case law provides. That would be your argument, right . I dont need to make that argument. I think that would be an interesting question and i think the state may be able to do that, but what the carter decision in North Carolina says is violations of the state constitution cannot be overlooked on good faith doctrine. Was this decision based on the state constitution . No, it was based on the federal constitution. So we would send it back down and we preserved an argument that under state law the violation of Fourth Amendment also violates the North Carolina constitution. But youre asking us to reverse it on the basis of federal law. And youre asking us to send it back to a state court which is not going to inquire any further interfederal law. Even though federal law arguably, you will concede, says that even if there is a Fourth Amendment violation, if there is a good faith reasonable belief that the law was violated, the remedy of exclusion will not be imposed. Thats what the constitution requires. And youre asking us to say, oh, no. Theres been a violation of the constitution and were going to reverse this judgment. Even though we havent inquired into whether the remedy that you want is required. It seems to me, i dont sees how we can do that. I dont want to keep saying the same thing. Ill try to say one more time, i think its fully customary for this court to have a case from state courts where a state court issues a ruling on federal law. There may be many other issues in the case. Federal, state, whatever. But if the question of federal law the state court decided is incorrect, this court can reverse that judgment, say you got federal law wrong. Were going to send it back down. But it chooses to decide based on only half of the federal law or orders of the federal law. North carolina more or less set us up this way. That this is there isnt forgive me. Which is a followup on Justice Scalias question. They didnt get federal law wrong. Their opinion got federal law wrong. But their judgment did not get federal law wrong. If indeed a good faith mistake of law does not require the exclusion of the evidence from the trial. The judgment did not get federal law wrong. If thats the case. Well, i think that their analysis got federal law wrong for the reasons weve described. We dont review analyses. We review judgments. Youre urging that this conviction has to be set aside. Thats what were reviewing. The conviction, not the opinion. Well, Justice Scalia, if you want to decide the good faith question that has not been briefed by any party, i suggest you might want to tread carefully. Now, weve given you maybe what i need to do is explain to you why even if you did feel like you needed to get to that question which i dont think you need to, but if you did need to get to that question, why you should say that the good faith doctrine doesnt apply. I dont want to take up your rebuttal time, but your argument has confused me on something i thought i understood. I thought the reason youve argued this case the way you have, trying to convince us to draw a sharp distinction between right and remedy is because you believe North Carolina has the right under state law to device its own version of the exclusionary rule. If thats not your argument, then im really puzzled by what youre doing. Functionally, thats the way things work in North Carolina, justice alito. I think the only thing that maybe i need to make more clear is that the reason why it works that way in North Carolina is because the state has held that violations of our state constitution cannot be subject to a good faith exception. The state constitution is irrelevant because youre arguing about whether there can be mistake of law in determining whether a search is reasonable under the Fourth Amendment to the constitution of the United States. Whatever we hold on that, North Carolina can do whatever it wants on the same question with respect to the state constitution. Thats the next thing i was going to say. In theory youre right, justice alito, but what North Carolina has said is we construe to be pro terp news with the Fourth Amendment. So thats not the way the court goes about its business. Functionally in the state of North Carolina where you are is that Fourth Amendment questions run parallel to state substantive constitutional law questions and if theres a violation, you suppress. Mr. Fisher, suppose this were a federal case and we had available to us and had all been briefed two alternative holdings in order to support the conviction and one holding was this is not a violation of Fourth Amendment law in the first instance and the other holding was this is a violation of Fourth Amendment law but the exclusionary rule operates and so the good faith exception to the excluesry rule operations and so the evidence comes in. Is there any difference between those two holdings . I think the difference between those two holdings if the Court Remanded may well play out differently in North Carolina. No, no, no. I mean if it were a federal case im sorry, i missed that. If it were a federal case, it would be functionally the same holding as to the outcome of that case. Yes, please. But there would be Important Reasons nonetheless. Even though that would be a functionally identical holding, for the parties in the case. There would be very Important Reasons nonetheless to make sure that you rendered that holding as to remedy jurupa not as to the remedy itself. In one reason ive opened with and have tried to say a couple times is that the government should be presumed to know the law. It would undercut Public Confidence in Law Enforcement and the common law rule upon which the criminal law is built to say that government doesnt have to be presumed to know the law when it acted. You say that, but some people say the existence of a rule remedy gap undermines Public Confidence in the law. So why should we take that argument any more seriously than the rule remedy gap problem . Because people have argued that you shouldnt suspend remedy and the court has rejected and said, no, as judge wilkinson wrote in the law review piece that i cite in the brief, theres an important reason to announce the right even if youre not going to give a remedy. Now, there are practical reasons for this as well. Even in the courts good faith jurisprudence, the court has given leeway to officers only to the extend the officer are relying on a clear directive by a third party like a legislature or a court. This is very different. This is like the johnson case from 1982 where the court held if the officer acts on his own view of a, quote, unruled law, unsettled rule of law, we not only find a Fourth Amendment violation, we have to suppress. Even if i have to argue this case do you dispute that this is a reasonable interception of state law . I would dispute if you were asking in the chevron sense that the statute was ambiguous that it could be read this way. But i dont think it should be viewed as a reasonable mistake under the good faith doctrine. Because the good faith doctrine deals with directives from third parties. And officers relying on third parties. Johnson that i was just citing to you says that unsettled questions of law i dont need to ask this in the context of any other body of the courts case law. Just in the common sense understanding of the term. Was it reasonable if even an attorney sat down and read the relevant North Carolina statutes, do you think it would be reasonable for that attorney to conclude that you have to have two functioning brake lights and not just one . I think in the common sense way i could concede that that would be reasonable but theres a legal way of asking what a reasonable and what is not, justice alito. Let me say two things about that. One is the court has never taken into account ambiguity or the possibility for error in asking whether or not a governmental officer gets the law right. And secondly, you have to define the concept of can reasonable. Even if you look at the facts of this case and think this mistake was reasonable, the other side hasnt given a definition of a of what it would say would be a reasonable mistake of law. Theres a reference in the states brief and solicitor general describes, uses language to say a foothold in the statutory text. Im not sure what definition would apply here, but one thing i do know from the courts qualified immunity and jurisprudence you have to define that concept. The definitions that exist in the law right now are very, very broad. I think that goes to the practical reason that i was going to describe to the court why you shouldnt hold that the Fourth Amendment is satisfied here. Because if you say that anything thats reasonable as the court has defineded in other cases is susceptible to debate, you vastly expand Police Officer to direct traffic stops. Officers have enormous discretion by the nature of the traffic laws and mr. Fisher, let me try my problem one last time before your time. You assert that we should not decide the remedy question because it hasnt been argued. But wasnt it your responsibility to argue it . Youre asking us to set aside a judgment of the North Carolina court. That judgment can be set aside only if number one, the Fourth Amendment was not violated. Or number two, it was violated, but the remedy does not have to be remedy of exclusions. It seems to me its your burden to establish not just that the Fourth Amendment was violated but also that exclusion was necessary under the constitution. And it is no answer to say well, that hasnt been argued. You havent argued if i need to argue it, i would refer you to the part three arguments in our opening brief which explain why even if you move good faith into the right and those would be my arguments, Justice Scalia. The only other case that comes to mind is the courts iolta case several years ago where the there was a taking question brought to the court and the court divided that federal law question into two pieces. When the lower court had only addressed the first piece of the case, the Court Reversed on that first piece of the case and sent it back down. So i think what im asking you for isnt terribly different. Send it back down for that court to decide the other piece. But this court will not decide the other piece. As you acknowledge. If a state makes that choice that its going to give a more favorable remedy, then federalism should respect that choice, Justice Scalia. Id like to reserve the rest of my time. Thank you, mr. Fisher. Mr. Montgomery. Mr. Chief justice and may it please the court, the Fourth Amendment prohibits unreasonable searches and seizures but it does not require that Police Officers be perfect. Because the touchstone of the Fourth Amendment is reasonableness, all that is required is that a Police Officer have a reasonable view of the facts and apply those facts to a reasonable understanding of the law. Will we ever get an understanding, the right understanding of the law . Meaning as i read the North Carolina Supreme Court decision, it still hasnt told me whether its one or two brake lights. And the next Police Officer who wants to stop someone wont know that either. Now, he may be bound by the Appellate Court decision, but that wont help clarify the state of the law. Isnt what youre doing going to leave criminal law unclear . Its one thing to say you dont want to subject officers to civil liability. Its another to say you want to leave the law unclear in a criminal prosecution. Well, your honor, in North Carolina controlling precedent does come from the intermediate court of appeals. Thats not to say our Supreme Court might not reach a different decision some day. But for now Police Officers would be bound by what the North Carolina court of appeals decided. So the law has been decided. An officer who goes out and makes a stop tomorrow because one brake light is out would be acting unreasonably under that decision. So it doesnt leave criminal law uncertain. Well, it will for the Appellate Division if its now taking your view that it can just find out whether the reading, the officers reading of the law is reasonable. It basically means any open question Police Officers will rule in favor of their right to search. It depends on whether the question is an open question and whether that interpretation by the officer is reasonable. It certainly may be an unreasonable interpretation. Define what would make it unreasonable. Well, it would be unreasonable if there was plain language of the statute that no one could reach a different interpretation about at all if it was plain or if there was a definite decision by an Appellate Court, it would be unreasonable for the officer to interpret it in his own way. And the whole standard would be a reasonable person standard. Would a reasonable person be able to take this view of the statute . Thats a very broad definition of reasonable. I understand the idea that when 99 people out of a hundred think you have to have two brake lights like you do everywhere else in the country that its reasonable for the Police Officer to think that. But it sounds to me like youre adopting the same standard that we apply in qualified immunity which gives the officers quite broad scope. And thats troubling. Its not the same as qualified immunity. Qualified immunity protects the plainly incompetent. Were not saying that is the standard here. No, i think it doesnt protect the im sorry. It doesnt protect the i think the chief justice is asking you to describe a case for us where the officer would receive qualified immunity but it would not count as reasonable for these purposes. One of the things that this court has said in wilson v. Lane is that this court and courts can look beyond just the officers interpretation. Like this it could look to other matters. There could be an officer ho had an unreasonable interpretation of the statute and yet, he may still have qualified immunity. For instance, because he was told by a judge or by the attorney general or by someone that this was correct. And that was a complete misunderstanding of the statute. It may be that that officer would still be protected by qualified immunity but for Fourth Amendment purposes, that would not be a reasonable interpretation of the statute. You would not give a pass. Lets say the case is flipped here and the most reasonable reading of the statute is that you only need one brake light. And so someones driving around with one brake light, you pull him over, hes going to say i reasonably thought i only needed one. And the court comes out and says i needed two. In that case, his ignorance of the law would not save him, would it . No, it would not. But the flip side of that is an officers belief that you needed all of your brake lights and that is not actually the law does not mean that that person is guilty. In other words, in this instance, this driver excuse me. The defendant here or the driver actually could not be held liable its not the fact that an officer thinks reasonably that the law is something. That doesnt make it the law. Just like if a citizen does not think thats the law. That does not mean he can escape liability. There is a problem, however im sorry. The Police Officer wasnt stopping him because of a brake light. The Police Officer was involved in criminal interdictions and admitted that this was a pretext. A lawful pretext he thought. So he wasnt there just to tell him. If he had just stopped them and said fix your brake light and drove away. Thered never be a lawsuit, correct . Thats correct. So how many citizens have been stopped for one brake light who are asked to have their car searched . And is that something that we as a society should be encouraging . Well, wholly innocent people are stopped quite often because of states of fact, for instance. Thats part of the whole how terri works and those type of brief stops. There turns out times that citizens have not committed any kind of offense and yet they are stopped. This is just another example of that in which an officer acted reasonably just as with a reasonable mistake of fact. And it turned out that this was not actually a violation. Id like to focus again on your definition of reasonableness. Lets say you have two court of appeals decisions. One says you need two brake lights. The other says you need one. Is it reasonable for the officer to pull somebody over when one of their two brake lights is burned out . If you have conflicting rulings from the court of appeals, it would be reasonable then for the officer to decide which he thought was the better rule, if there were two different decisions from the court of appeals which is not supposed to happen in our system. But if that did happen, then it would be reasonable for the officer to rely on either one of those. Mr. Montgomery, i take it that one of mr. Fishers arguments, maybe his primary argument is that this just looks like a remedies question. It does not look like a rights question. It focuses on the culpability of the officer in the way we do when we think about immunity or when we think about the exclusionary rule. So why isnt that exactly right . To the extent that this conviction ought to be upheld, it ought to be upheld on remedies reasons rather than rights reasons to fit in with our basic understanding of what remedies and rights do and do differently in our law. Certainly this court looks at Different Things when it looks at the right versus the remedy. Reasonableness is important in the right stage that may be considered and also the culpability of the officer, whether he was dibrately disregarding the law, those types of things. This court has addressed mistakes of law both in the rights and the remedy stage. And so it would be important to address it in the rights stage. Here in this particular case. Because then we dont get into the sorts of things that wouldnt be necessary in the remedy stage, if that answers. What about the dissenter in the North Carolina court of appeals who said North Carolina has no good faith exception. And so all that this decision does is it allows the police to get around the absence of a good faith exception. Wasnt that position of the dissenter the support of law. Is the functional equivalent of a good faith exception. That was the position of the dissenting justices at the North Carolina Supreme Court, one of the things that they said. But again, this gets back to reasonableness as the standard for the Fourth Amendment. That is what this court has said is important at that is taken is whether an officer is acting reasonably. There are other considerations that take place at the remedy stage. So the state was asking for nothing more than simply whether this violated the Fourth Amendment. And not about remedy. Counsel, maybe you have all the answer to the questions i was asking of mr. Fisher. And i guess the answer is you havent argued that point. You did not assert in your brief and you havent asserted it in your oral argument thus far anyway that even if it did constitute a violation of the Fourth Amendment, the remedy did not have to be exclusion of the evidence. And that remedy is indeed subject to reasonable mistake of law. And therefore the decision has to be affirmed. But you didnt make that argument. You want to put all your eggs in the basket of whether its a violation of Fourth Amendment. Am i right about that . Thats correct, your honor. Im sorry. It wastes so much of our time. Well, we did not make that argument below the North Carolina Supreme Court. And mr. Fisher is correct in that it is our state constitution that says that theres no good faith exception. If a defendant had only raised a Fourth Amendment question in our courts, the good faith exception would still be available if that defendant did not make a claim under the state constitution. Well, im not too sure it makes good credential sense to allow the North Carolina Supreme Court to put to us which is basically an abstract question. The question of to give an answer without reference to the fact that, as Justice Scalia indicates, part of the Fourth Amendment is the good faith exception. It bears unreasonableness. Thats correct. And this court has in cases like rodriguez dealt with mistakable law just in the rights stage rather than the remedy stage. And thats all that has been briefed in this instance. Thats correct. And one of the things that is different about this that is different from kroll and davis is that were not talking about excuse me. That just doesnt wash. Yeah, in other cases we just decide theyre right and dont have to decide the remedy, but this is a case in which unless the remedy is exclusion, theres no basis for us to set aside the judgment of the North Carolina Supreme Court. Unless the remedy is exclusion. It seems to me thats part of the case to reverse. If we cant say that, we have no business reversing it. If it hasnt been argued, i guess we can do that, i guess. That has not been argued here or below, thats correct. A difference between this case and krul and davis is that this case this involves a mistake of law as to a substantive statute rather than a mistake of law as to the Fourth Amendment itself. The difference in that is that a reasonable violation of the Fourth Amendment is still a violation of the Fourth Amendment is still a violation of the Fourth Amendment. If theres a statute that gives an officer the opportunity to make a seizure on less than what is required by the constitution, less than probable cause or less than reasonable suspicion, even if the officer is reasonable, that is still a Fourth Amendment violation, which is why there court would have to go to the remedy portion to decide whether the exclusionary rule applied. In this instance, this case it was a mistake as to a substantive statute that was used by the officer as part of the facts and circumstances of this case. As part of the totality of the circumstances of this case, the officer considered what he thought was the correct law. Why should you draw the line between if he gets the Fourth Amendment wrong, the Fourth Amendment is violated. But if he gets the statute wrong, then the Fourth Amendment is not violated. Because the because the officer only needs to act reasonably. And the fact he gets the statute wrong does not mean he acted necessarily unreasonably. Well, fact that he made a mistake about what the Fourth Amendment requires could also be reasonable. It could be and that would be proper to consider as this court has in the remedy is taken rather than in the right stage. In the de filippo case the court decided there was a situation in which a statute, a substantive statute was found unconstitutional and void for vagueness, and yet this court found that there was probable cause in that case for the officer to make an arrest paced upon than statute. So that was one case in which this court looked at it at the right stage as a mistake of law rather than at the remedy stage. Do you think if de filippo came up again today with all the cases that have been decided since then that we would decide it the same way . Or do you think we would conceptualize it now as a remedies question . I think the court would decide it the same way. And this court in arizona v. Evans said that if the case is decided even before the good faith exception are still viable in terms of the Fourth Amendment. What kind of mistake of law did the Police Officer make in de filippo . The law said exactly what he thought it said. Thats correct. Why do you classify this as a mistake of law question . I believe we said it was presumptively valid and he acted according to the statute. You dont ask Police Officers to ignore the law. That is correct that its different from this case no, no. This was a mistake of law. He wasnt following the law, presumably, according to the Appellate Division. Thats right. The de filippo case is important because you had someone who was acting wholly innocently. He was not committing an offense at all. As in this case you had someone who was acting wholly innocently and was not committing a violation of the law. And so even though the court said the conduct was wholly innocent, there still was probable cause despite the mistake of law. And thats all that were saying. Isnt there another difference between de filippo and this case . The court in de filippo talks a lot about how theres a presumption of functionality for any statute and we dont want officers to go around questioning the constitutionality of statutes. But here thats not the case. Here theres a statute and an officer is not supposed to read it as broadly as possible. An officer is supposed to read it fairly. So theres no presumption that goes into effect and theres no way in which we could say the same thing bandage de filippo is we dont want officers to inquire into this area. It is different, but we do want officers to enforce the law. We dont want them to just sit back and not enforce it. We want them to enforce the law fairly and as written and not to push every statute to its, you know, the furthest it could go without being found utterly unreasonable. Thats correct, your honor. But we do want them to act reasonably and still enforce the law, not turn a blind eye to what may be a violation. How does the statute read here . What are the exact words of the statute . The statute has two parts. It has a subsection d. Where do we find it . This would be in the appendix to the respondents brief. Appendix pages one through five has all of the relevant portions of the statute. Subsection d involves rear lamps. And says every Motor Vehicle shall have all originally equipped rear or the equivalent in good working order. Thats the relevant portion of subsection d. Subsection g which is on page three of the appendix says no person shall sell or operate on the highways of the state any Motor Vehicle manufactured after december 31st, 1955, unless it shall be equipped with a stop lamp on the rear of the vehicle. That is the language that the North Carolina court of appeals said when it said a stop lamp, that meant that only one was required. That seems to be what it says. The confusion comes in, Justice Scalia, in the last sentence of subsection g which says the stop lamp may be incorporated into a unit with one or more other rear lamps. Where the confusion comes in is that sentence would seem to imply that the stop lamp is a rear lamp. That it can be incorporated into a unit with one or more other rear lamps. And if you go back to subsection d, thats the section that says that all originally equipped rear lamps must be in good working order. So theres some conflict in that applies to all real rear lamps, a stop lamp and all the other lamps. Thats correct. So it has to be plural. If its going to apply to the stop lamp and all the other lamps. Of course,ed you say lamps. My time is up. Thank you. Thank you, counsel. Mr. Chief justice and may it please the court, since the founding, the probable cause standard has allowed Police Officers to make stops when there are reasonable grounds to believe that a person committed a crime even if the officer later turns out to have been mistaken about either the facts or the law. And as Justice Kennedy observed at the start of this argument, given this courts case organized there can be a reasonable mistake of law, an officer who makes a reasonable mistake of law may have a reasonable grounds to believe that a person committed a crime. If i can go to a question that Justice Kagan asked about why this question is more appropriately addressed at the right stage than the remedy is taken, we think there are three main reasons. The first has to do with history. Since the founding, this court has treated the probable cause standard as allowing for reasonable mistakes of law. Are all the cases you cite including riddle all in the context of a customs statute that didnt permit customs officers to suffer damages . Yes, your honor. For purposes of an error of law, correct . Thats correct. The reason none of those cases involved a violation of a Fourth Amendment. Thats correct. The reason those cases are relevant here is because those cases are interpretations of the probable cause standard. How is that different in terms of its analysis, those cases, from what weve ultimately applied as a qualified immunity standard with respect to civil damages today . Dont they follow exactly the same reasoning . I dont think so, your honor. Those cases, the probable cause reasoning that the court has followed in those cases is what the court has done at the merit stage of the Court Amendment analysis. So this court has routinely cited under those customs statutes as illuminating the meaning of the probable cause standard and is there ever illuminating so you disagree with the justice when he looked at those and made the point i just made. You think he was wrong. No. Theres no doubt in the case the the question the court was ultimately answering is are those customs officers liable. The way to determine that is whether they had probable cause. And probable cause is the constitutional standard. Thats why this court has relied on those cases in illuminating can i ask you a question id like just like you to address for a minute. Assume for the sake of argument that i agree with you that a reasonable mistake of law is an excuse. But what is is a reasonable mistake . Now, thats what id like to you address. And it has to be exceedingly rare, two, objective, three, it has to be that the reasonable lawyer would think that the policeman was right on the law and only if after quote your brief, a careful scrutiny and serious difficulty in construing the law, does it turn out that hes wrong. Now, what do you think about that or some other standard . I think we agree with each of those descriptions of a reasonable. If you agree with those, then what about this case . Because after all, it does say a stoplight. Whats the difficulty of construing that to mean a stoplight . So we think that the North Carolina Supreme Court and the court of appeals were right that an officer could reasonably interpret the statute to require only after a careful jute juteny and serious difficulty in construing the law does it turn out that the officer is wrong. Whats the difficulty . A stoplight . Here the difficulty is in the other provision which requires all originally equipped rear lamps to be working. That includes the stoplight and any other lights, okay . The stoplight, the turn lights, the backup lights. So you had to use the plural for those other provisions. Agreed its not the plural. Its the fact that all originally equipped rear lamps need to be working which means if a car was orally equipped with multiple stop lamps as cars now are, then when one of them is broken, one of the originally equipped rear lamps is not work. Thats the difficulty. Thats why none of the courts that considered this question thought this was anything other than a very hard question of statutory interpretation. Where do you come out in my the hypothetical two court of appeals decisions . Is it reasonable for the officer to say im going to pick this and follow that . If the officer is in a jurisdiction whose court of appeals has decided the question, we think the officer is bound by that interpretation even if other courts of appeals come out differently. If the officer is in a jurisdiction where the question is undecided and different courts have come out differently in other jurisdictions, we dont think the fact that one court has decided it in one way is dispositive. Then the court looks to this question, is it a really difficult. I forgot one thing which may be obvious to me. Were not talking about a difficulty in con stug the Fourth Amendment itself. Were talking only about a difficulty in construing a criminal statute where in fact, the reason for the stop or seizure is based on a violation of criminal law. Thats right. We think the probable cause standard allows for an officer to act when he has reasonable grounds. How is your standard different from the qualified immunity standard of reasonableness . We think that an officer in order to have reasonable grounds for a stop needs to be able to point to something in the statute that supports his view. The qualified immunity seems to require theres a precedent that forecloses what the officer does in order to protect only those hose are acting protect everybody those except those who are clearly incompetent . One argument in your brief i didnt follow is the importance of holding the way you recommend is so that you can get this question solved. Tee up the question what is the rule, one light or two lights . But yet in this case, it was consent. The evidence that came in, had nothing at all to do with a traffic violation, so we wouldnt need to the court wouldnt need to decide that traffic violations, there was consent. I think the North Carolina intermediate Appellate Court said it was a legitimate consent. There was consent and this evidence comes in and we never have to deal with what the traffic regulation was. Thats correct, your honor. And this question comes up in two contexts, sometimes it will be litigated in the suppression context and sometimes it will be litigated because the officer actually issue acitation. And our concern expressed in that portion of the brief is if the court takes the position that whenever an officer is wrong about the law, hes violated a Fourth Amendment, its going to deter officers from making stops where there are argument onds both sides. Do you agree that if there is an illegal stop, that this consent is the fruit of the poison tree . We think that will be a difficult question, we dont necessarily agree with that, this court has said, its not simply a but for test, but even if the stop was a but for clause, it doesnt necessarily mean that the evidence was fruit of the poisonous tree but the question wasnt argued below by the state and it hasnt been briefed here. So weve addressed simply the question that the parties you started your argument by saying you were going to give us three reasons why this should be a rights question rather than a remedies question. You said history, which frankly, i think your history probably doesnt say as much as you think it says. So i want to know what number two and number three are. The second is an administrate tblt reason. You ask courts to decide whether an officer can reasonably think that a person had committed a crime. And you dont separate whether its a question of law or a question of fact and one in the rights section and one in the remedies section. The third is, we dont think theres a reason to treat mistakes of law and facts differently. When an officer makes a stop in this situation, he can just as reasonably be confused as to what the law is under these statutes as confused as to what the facts are. If were going to treat mistakes of fact as parts of the rights analysis it, makes sense to treat reasonable mistakes of law in the same way. The court has no further questions. Thank you. Thank you, counsel. Mr. Fisher, you have three minutes left. Thank you, i would like to make four points if i could. To start with the administerability of the question, what would reasonableness mean, i think it your hypothetical of two differing court of appeals opinions in a state, i think under tunder the analysis that just described, that it would violate the Fourth Amendment in half the state, and not until other half of the state, because each would be binding in its own component of the state. And that shows why in rand and many other cases the court has rejected that analysis and kept and cabined it only to the remedy stage. In this case, didnt the centers in the North Carolina Supreme Court say that the interpretation adopted by the court of appeals was surprising. So all we would have to say on reasonableness is that if its surprising, if the correct interpretation is surprising, then the contrary interpretation is reasonable. Would we have to go further than that . I think you do, because you have to give a little more teeth to it. What the solicitor general says it you would have to have foot hold in the statute. Theres a recent d. C. Court of appeals opinion that holds that a Police Officer could argue from a foothold in a statute that all license plates are illegal. They rejected that under their code but 80s just one of innumerable arguments that a Law Enforcement officer could make. It would be one way, one court one way, one court the other way, the officer loses because it has to be unusual, it has to be you heard what i think the problem with that is that its the core presumption that the officer needs to understand the law as it existed as it was later construed. And mr. Chief justice, you asked i think about the ignorance canon and the states response was well, if somebody is reasonably mistaken about the law, we would convict him. And the reason why is because we would assume he knew the law. He would assume that somebody at if the court of appeals split and there court divided 54, the person is still convicted because we assume they knew the law when they acted. And all were asking for is the you exact same assumption to be apply to the officer. And with respect to the inspector general, the cases they describe dont help them, theyre only remedy cases, and even when the court has cited those cases, theyre all in the context where the court didnt distinguish rights from remedies. If you want to look at the founding, the controlling rule would be the common law rule. And as we said in our brief with, no disagreement from the other side, the common law rule dating back centuries was that ignorance of the law on the Police Officers part even if it was perfectly reasonable didnt juify account stop. If i could say one last thing about the colloquies we were having before, with all due respect, i really do think theres nothing unusual about a party litigating a case up through the courts. It may arises in state or federal court but they can choose to raise the arguments they choose to raise. And when we got a judgment in our favor from the North Carolina court of appeals, it was up to the state at that point, to choose what arguments it wanted to pursue further in this case. So just like a state may a party may ride the First Amendment instead of the second, or a rights question instead of remedy, we think thats all thats happened here. Thank you, council. The case is submitted. Tonight tonight on cspan3, washington journals interview with Purdue University president mitch daniels. The former indiana governor and white house budget director spoke with viewers as part of our special series on universities in the big ten conference. Thats followed by a debate ob genetically modified foods. A Senate Hearing on School Lunch Nutrition and a look at how bees are being used today for more than just making honey and pollinating plants. It all begins at 8 00 p. M. Eastern here on cspan3. With the 2014 Midterm Election next week, our Campaign Debate coverage continues. Tonight, at 8 00 eastern, the illinois governors debate between governor pat quinn and bruce rounder. At 9 00, the new york governors debate with the andrew cuomo, rob astor rin know, Howie Hawkins and michael mcdermott. At 10 00, the New Hampshire Senate Debate between senator Jeanne Shaheen and scott brown. At 8 00 p. M. Eastern on cspan2, the New Hampshire governors debate between the governor and walt haven stein. At 9 00, the oregon governors debate with the governor john kits hauber and dennis richardson. And the south dakota Senate Debate between mike rounds, rick we land, Larry Pressler and gordon howie. Cspan campaign 2014, more than 100 debates for the control of congress. The National League of cities recently released its annual report tracking fiscal conditions in cities across the u. S. At a forum to discuss the findings, white House Counsel of economic advisors chair jason furman offered a federal perspective. He was joined by local leader who are their own fiscal outlooks. This is an hour and ten minutes. Cities are the economic engine of america. With over 80 of americans living in cities, it is clear that the economy of cities drives the economy of our nation of america. Again, cities are the economic engine of america. So if cities are prospering, are so does america prosper. Like new york, los angeles, respectively represent the second and sixth largest growth domestic product in america, economy represents jobs, it represents opportunities, it represents talent, and it represents tourism and it represents america. That is why the National League of cities which represents 19 thought cities and towns in america knows that the economy is one of the most important elements of a community. Good morning. Im cleanser anthony, chief executive officer and executive director of the National League of cities. Im excited to welcome you to the launch event for the city fiscal conditions 2014. Its now our 29th edition that the National League of cities has produced the annual report that serves as a critical resource to cities, shedding light on National Trends and local revenues, city budgets, municipal workforce, and what we should expect in the years to come as americans who live in cities. Since the economic downturn in 2008, the impact of the Great Recession has been the unavoidable under lined theme in our yearly look at fiscal conditions. As city leaders know well, wider Economic Conditions are the fuel of local government. Providing the resources that cities use to shape personnel decisions, infrastructure investments, and key services that communities rely on day in and day out. But we also know that the decisions made at the local level can kick start that very important Economic Activity in the nation. The investments cities make in roads and transitity systems, the services cities provide to keep communities safe, the work cities do to ensure the availability of Affordable Housing all provide a Strong Foundation for Economic Vitality for america. Todays event will help us better understand this relationship between city Fiscal Health and the Economic Health of communities. Well hear insights from local and National Leaders on the state of Cities Fiscal conditions and what levers will further power the innovation and leadership we are seeing across the nation thats occurring in cities daily. This report by the National League of cities will provide an indepth look at the report findings, our president mayor Chris Coleman will bring in the local perspective, followed by a panel discussion. But first, im produced to introduce a special guest and a special friend, jason furman, chairman chairman of the White House Council of economic advisors. Prior to his role as the chairman of economic advisors, he served as assistant to the president for Economic Policy and the Principal Deputy director of the national council. From 2007 top 2008, furman was a senior fellow in economic studies and director of the hamilton project at the brookings institute. Furman was the Economic Policy advisor for obama for america. Furman who earned his ph. D. In economics and ma from government from Howard University in economics as well as an ms in economics from the London School of economics. Im so honored today to invite mr. Furman here, and hes conducted a wide range of research. So he is the person who can set the stage for this dialogue today. Good morning, welcome. Thank you so much. Thank you so much for that introduction. And thank you for really putting cities at the heart of our discussion about the u. S. Economy, its economic recovery, and its economic future. Were at a moment right now where the United States economy is the envy of many around the world. While you see troubles in many countries around the world in the United States, weve had 55 straight months of job growth. The pace of job growth is picking up. The Unemployment Rate is the falling at nearly the fastest rate its fallen in 30 years. And our growth rate is picking up. At the same time, were seeing some of the the first signs the wages for typical workers that is just above inflation and not enough to make up for the past losses. If you ask yourself why the recession had such a long Lasting Impact on the economy and why it is our growth has just started to pick up and strengthen, an important part of that answer is our nations cities. There is a lot of economists who analyzed the question as to why this recovery from the Great Recession was different from others. It is growing out of a financial crisis is more difficult than growing out of an ordinary reception. Because households leverage up and businesses overinvest and in the process of recovery there is a long and painful process. Surely thats part of it, but in our analysis, perhaps the single biggest factor that differentiates the current economic recovery from the ones that came before it is whats happened at the state and local level. This is the first economic recovery we have seen where states and localities rather than expanding employment and the output were hit so hard by the decline in Property Values and the reduction in taxes and other aspects of the recession, that they contracted rather than helping us in the national stages get out of the recession. Their own difficulties were contributing to deepening. If you took the normal economic recovery for states and localities, if we had that, we would have had a growth rate that was a half point higher per year over the course of the economic recovery. There is good news here. Sms something you see documented in the fiscal conditions report. This is something we heard about and hopefully will hear a lot more about. States and localities, our economy as a whole added 10. 3 million jobs in the private sector since we started adding jobs. It only added 9. 8 million in total. The same issue i was talking about. States and localities subtracted 400,000 jobs. Thats now reversed. In the last 12 months, states and localities added 80,000 jobs. The contribution that they made to grow and for the economy as a whole and that made the largest contribution in five years. Thats a contribution that has been positive in five years so this turn around in local fiscal conditions has led to a turn around in local investment. It led to a turn around in employment of teachers and of firefighters and Police Officers. All of that has made this important contribution to the overall strengthening of our national economy. We are of course not all the way there yet in terms of our national economy. They are not all the way there yet in terms of our citys contributions to it. They are investing more in the infrastructure. It puts people to work today and increases productivity over the medium and long run and at the meetings that just concluded, the International Monetary fund, they endorsed what every mayor in this country knew. Thats no less true for the United States. A second issue is continuing to strengthen the fiscal position of our cities. One way it has been eroded is by not collecting the taxes that are generally oh,ed and having an unlevel Playing Field between the Small Businesses and their competitors over the internet. The president strongly supports the act because its not just good for our cities, but Small Businesses and good for jobs. We are pleased to see it was passed on a strong basis in the senate and we would like to see the house act on it. Beyond the two specific issues which get very much to the relationship with cities, the president s entire broader economic agenda will create the virtuous circle that will help strengthen the national economy. That includes investing in education, raising the minimum wage and making the efforts on housing and overall agenda to strengthen the Economic Growth and make sure that that growth is shared. We are very pleased to have the nations mayors working together with us. Good morning and thank you for joining us here today. I am the director of City Solutions and applied research. We very much appreciate the time you took to answer the questions and i know you dont have a lot of time. I will get right into it. 248,000 private sector gaining for the last 55 month. I hope you can provide with thoughts of how they fared with local government and what it means for economic recovery. Its 600,000 below where it was at the peak. That 600,000, the single largest shortfall is in teachers. The student population has only sgroen that means teachers to pupils has moved in the wrong direction. This is not just about our jobs today, its about the future of our children. The single most important factor is how the economy is doing and what the finances are. Thats why its so important that we strengthen the economy and take steps like infrastructure and market place fairness to put localities in a better position to be, for example, hiring teachers which is just about as winwin of an idea that we should be able to agree on as i can think of. Despite gapes in employment, recovery has been slow. This uncertainty in the economy has direct implications for miskal health. Can you give us perspective on the outlook . I feel good about the Economic Outlook right now. You have to see both sides of the ledger. There is a set of concerns and certainly the situation and the rest of the world as i alluded to before is a concern for the United States and our economy. We have a lot of strength with the american consumer. We are in a difficult position a couple of years ago having borrowed a lot with the recession and a lot of that has been worked off. Interest rates remain low. With that deleveraging process having worked through the system, consumers are in a better position. The housing sector is about 3 of our economy that make makes a disproportionate contribution when the economy is going down and going up. We are building the steady state sustainable level is more like a million and a half a year. The fast growth of low wage jobs puts a downward on them. How might this impact them Going Forward . I absolutely think that to strengthen our economy you can strengthen the workers and raise wages. The beginning of 2013. We are gratified that since that date, states and cities around the country have raised the minimum wage. As a result the minimum wage has been raised to 8 million works. There is more than and there workers that have the entire