Almost never his litigated in the this is an area of law and there is lots of learning based on opinions and the posturing of congress. These debates rarely it in the court. The george w. Bush administration. And both the administrations refuse to enforce the statute on the grounds they are constitutional power rendered that statute again person born in jerusalem commenced litigation that first went to the court three years ago. The court said no and direct the dc circuit to decided on the merits. Some some people thought the court was depriving itself an escape route. Would not be able to use the political question if they concluded it would have been desirable seem to be a lot disconcerting noises they were being forced to decide something that had a lot of Foreign Affairs and political visibility. Obviously obviously taking sides owns and controls yours is politically loaded question. In the court did address the merits and so he was right. Justice kennedy writing for the majority in the chief justice of the of a little bit of background framework for deciding these questions will set by Jennifer Jackson he basically said there are three ways this can run. On the same they want the same thing the president s power strongest. The pres. Is acting alone he has some authority. In the present is acting contrary the harvest time hardest time for the president s power to the upheld. Only if only if the presence power exclusive and conclusive. President. It has been thought the president is almost always going to lose. Some of this at the present facing down congress successfully. The the court said here are the president alone to make the decisions what foreign powers recognized cant be forced to contradict decisions with some formal document. Dangerous dangerous woman israel would contradict the president s determination. Victory for the administration of the frustration also suffered a bit a bit of a defeat. As hold opinion though the context in which president is authorized to do something. That opinion had some Strong Language that the Justice Department quoted the scene of the president have broad power. Justice Kennedy Catholic is the case in category one. Future sessions ability to present so the nation and its external relation quoting chief justice marshall. That whole argument goes away. Administration on this panel say relies on history. It history. It is actually quite similar to last terms of just the start existence of the text of history of life on history. Concurrence really say he still believe this was a political question. You have to his influence would seem to be there. This is thomass concurrence is more pro. The way to interpret the constitution• Pacific Power is mentioned as the presence. A very broad view and surprisingly all three people who worked in the executive branch to very harsh view with the majority rule the pres. President has been permitted to defy statute. See the opening of the scope of executive authority and how to reconcile the conflicting claims in the Foreign Affairs area. We we dont see a lot of cases so its hard to say that this was ball a lot of litigation interesting to see how the alignments shakeout differently. As you know, obama care was before the court. In our discussions you said you saw connections between that case and the Texas Department of housing and Community AffairsFair Housing Act disparate impact i would like to discuss both. Heres retrenchment. I want to discuss the case talked about her formative experience and was getting at this issue. More importantly with what you saw is a huge step backwards in unanimous in context. Understand the context. I started law school and 79 with the case which involve title and the 1964 Civil Rights Act. What is. Forced Labors Office of the ccp. He he went to court and set up the statute. You cant. Cap denying Employment Opportunity because of race. You cant discriminate to which the majority of the courts so were not going to allow a couple of words and statute to be interpreted. The overall purpose is to help minorities. Next line lets face it you are going are going to ignore the plain meaning of the statute that the overall congressional purpose. Justice Justice Rehnquist wrote a very famous dissent started off by saying this decision was in 79. Big brother has come down until the populace the words have no meaning. That time i got interested in this question in another similar case directly relative to the texas case. And again you cant discriminate against any individual because of race or sex. And some members of the Supreme Court like the decision they made about banning discrimination against any people on the basis of race so they changed it to say against non minority individuals and then you must to do with under the test. There is no difference in proportion to the availability of minorities that has a prohibited discriminatory effect. So what you see is the opinions that only favored groups are treated equally but that now that is turned into a right to proportional representation on the business necessity. And with a basic american notions and i thought in the subsequent theory going along way to the judicial revision of statutes on those of enacted law. How was true in does precisely lake whether the majority opinion said to have the natural meaning that a broader purpose was to give subsidies. Precise facts the only provision that the subsidies are available for purchases exchanges established by the state under 30 beloved 1311. What if there was established by the federal government . The state means state which is not a complicated question. But it was for those six members of the Supreme Court and to analyze of donny weber that to provide that language i will not walk you through the ways but to adjust have that dissent what that majority was doing but then i will make three general points in addition to what justice pallia pointed out. But that is not a case because they did not delegate to deal precisely to be on federal exchanges so the promise of the statute is that congress made this decision to say you will have subsidies established by the federal government by writing the words he will have some cities established by the states. To make ted decision to say precisely the opposite you can use the majority opinion of some explanation people intent would have said the opposite in this is all a big mistake and we did not intend but nobody can explain it if you did not intend why would use that for relation . Then to save ambiguity and then to pretend there was any anomaly but then for the Affordable Care act with the language on this seamless web. [laughter] with the qualified individuals to transport this back in this case. The notion of a qualified individuals provision but i dont even care why would you transport that over . And that makes no sense. Just because they said it established by the state but those other provisions dont tell you that much. But to look at those other provisions to figure out what it says was with my 36 b and so anywhere in the Affordable Care act that is not terribly daunting. So with this legislative masterpiece so that the judiciary has free rein to do whatever they want. This is not the debate between people who thank you should were born dash looking words in isolation now of the statutory context to understand the purpose we could have emphasized more to look at the words in the context because that is precisely what they said that it makes it clear to deal with subsidies with the majority opinions that this was a strange place. But the context makes clear section 1311 the strongest possible into have the states run the exchange. 1311 tells you why they did that because they needed to incentivize states and the rest of the statutes because when they talk about territory with the exclusive provision you will treat this as a state to change that is not bound in this provision. And with that policy can tromp the purpose of this statute that is clearly with the majority opinion did. And then the broader purpose wherever we want to was the key decision and then if there is sitting in the statute anything with the legislative history is somebody said yes 31 subsidies. Here for all Public Policy we will not see anything reflecting back. The other thing is any explanation that the states will run the exchange. To try to pretend the subsidies will be available on all exchanges because thered be no incentive for this thankless task. So we return full circle that this is or million because you saying descriptions that is contrary to the statute that is the of e jut here are not invokingni anmng because you looked at said judges own views of what they think is the policy. We think it is good policy to help minorities but they decided to do it in a way we do not discriminate against giant non minorities. But it also wanted the states to run the exchanges which is why of the condition. Nobody disputes with they really wanted medicaidni for needed health care but they condition did they want them to have action with that same judicial override we got to was stage where literally with the budgetary issues unless it was done by people to have some accountability with the tax regime employer mandate to impose tax credits to be affected by a representative government. Because it merits brief discussion but title eight which was enacted four years after the 1964 Civil Rights Act says you cannot deny housing or discriminate because of the other prohibited criteria then texas said because you cannot treat people differently because of their race. The majority response was that okay so people in congress probably did not know to discuss the words the fact that they had provided the basis with the Fair Housing Act but as they say that what we thought was a vestige of the 70s with the magisterial purposes to says Justice Renquist said the orwellian enterprise to rewrite the law as for those elected by the people and accountable to the people. File will spend a minute on this because they say you just be a fuddyduddy but this is the essence of popular sovereignty but it is usurped the legislative function to make those five unelected lawyers establish National Policy from what those elected representatives have done. And that is us definition of charity. Is a completely perverts the judicial role. So if you play by the rules or read the law as the states to, you but if it is the policymaking body to argue the same policy that went into whatever legislation was enacted then there is no way to get beyond the political system because the judiciary is another stop along the legislative process so not ready violated something or if they keep you are a nice guy or a powerful corporation so that is to do those protections what you are entitled to be another branch of the legislative form but that first judicial role has complete disrespect whenever you hear debates about the opinions solely about the policy results rather or not the approach is consistent with a separation of powers that is my june 20 fed, 2016 was a sad orwellian day and the great port jurisprudence and to Pay Attention and with this analysis. The inshrined you is really not a nation of laws and you have to appeal to the policy preferences not to those that should form their judgment as a gigantic set back. I knew there was a highrisk. But lets see if we can get it a couple more so the court decided criminal law cases having to do with the Death Penalty also to do with one of the cases that you argued with mens rea. You the was the Amusement Park worker with his wife of 70 years took there two kids and dumped him. Be an american so he shared it with everyone on earth so he would pose to facebook some things were styled as rap music in said enough bad beijings about his wife schaede data protection. Personally i concede there was a more restrained tone. And to think about shooting up a kindergarten believe it or not he got a light combat. Which was an indication people knew he did not mean that literally and said that things about local police and eventually the officer came to arrest him with the prevailing view of nine of the circuits have adopted the view as the court would want to recognize and negligence standard if you Say Something reasonable person would think is the thread is of felony and the prosecutor said in a closing statement doesnt matter what he says that i made a. 50 times in the brief and the chief justice who wrote the opinion finding for my client on the eight one basis encoded a back to west now i find that gratified some now widely repeated 50 times in briefs. But it was litigated nor unconstitutional basis saying the constitution required to have to be higher than negligence and under the penal code it could mean to threaten someone someone that you know, the person will take as a print that is the only issue that what we had petitioned on as a clinic had petition in earlier on a constitutional basis and on the statutory argument. We did not want to raise it. Per with that statutory argument but lo and behold to old dash statutory argument the agreement to the oral argument as was spent on the constitutional issue so of course, the court decided on a statutory basis. [laughter] but all these cases between the negligence standard of a couple questions from Justice Kagan and maybe a followup question with a recklessness standard. All the court wound up doing was saying and in addition to. For the purposes of the statute to have some sort of intent it would not cross recklessness off the list. The onus that it took the third longest to decide. When it is the h one decision with the concurrence from Justice Alito and a dissent from Justice Thomas you figure Something Else happened and i presume there was a danger with on the recklessness grounds. In a when the papers of the court are released and will not live long enough to see Justice Souter pain from by to see what was going on is there was a recklessness standard but there was an early stage votes for negligence then to go to the Third Circuit but to be like the conservative Justice Ginsberg most are happy to answer the question to ignore the case but Justice Alito likes to write the brief and he did a very good job with this issue how will it was preserved so it will be interesting to see what happened misheard. But mcfadyen was the case to send us signal to be a serious enough crime. So with the First Amendment case and to have a rule whether they cannot personally solicit Campaign Contributions to find the committee who are the solicitors in to be the treasurer of his or her community to write thankyou notes to contributors. And florida took this rule not just to ban with similar solicitation for those that ask for contributions and then for posting the letter as it was up personal solicitation. So based on and the jurisprudence which im sure people are familiar with whether the ban on speech was constitutional. And a tough opinion to say this is a limitation on speech and it is content based if youre asking for money but it satisfies strict scrutiny and i think most impartial observers who have read the opinion concluded this was of variant of strict scrutiny. So the four justices who have dissented almost all of the decisions and are happy to join the chief justice justice, joined him to say essentially that judges are different we have to go after the integrity and it is bad for judges to ask for contributions from their supporters so if they will know about those contributions but my view that we have said this in oral argument in addition to the technical First Amendment reasons there were two Important Reasons why they did not stand up for it is a sham that we will attract people to think that judges are not involved but dont worry it will just appear that way because that is a good thing and second, which Justice Scalia mentioned in his dissent was that this isnt actually a rule that favors the establishment. It will not be hard to find a prominent lawyer who was on your committee who can effectively go out to get contributions. But if you are not that well connected, you may need the personal touch to understand why your campaign is important so this is a rule that was propagated by the American Bar Association about the judicial establishment. What this case shows is that context increasingly matters with the First Amendment jurisprudence. The other two cases was walker with the First Amendment also lost five four and many people believed the argument was on the license plate of government speech or the person whos car is in many people believed it is a hybrid but they put it into the governments speech box because then they gave him power in the third case, was about municipal finds where the First Amendment aside one and content based speech they did apply scrutiny with different size rules and that was the ideological sign or a commercial synar directional sign the court said it fails but the context was the was clear from the record was being persecuted so it could find a way to get the science up the ordinance would change so in all three cases the judicial and legal establishment worried about government power to regulate signs or license plate programs or an ordinance were ther