the fha. here is the supreme court oral argument in the case with bank of america's attorney. >> the argument before this morning case 151111. bank of america corporation versus city of miami and consolidated case. >> thank you, mr. chief justice and may it please the court. the question in this case whether the city can sue in fair housing act and answer is, yes, three times. first the answer can't be yes always because that is two key doctrines in the court, proximate cause and interest. second, the answer can be no never because the cities can identify complete farms that fall within the interest such as expenditures to combat a particular defendant's racial misconduct and third, this lawsuit fails interest and proximate cause because it's unrelated to the purposes and because the injury is several steps removed from any agod acts of petitioners. if could start -- >> could you please tell us, you said your city's can sue under the fha but not on this scenario. can you tell us what -- under what circumstances could a city sue? >> absolutely, justice ginsburg. the law identifies two places where they can sue. one is a heaven-like situation in which a city is combating discreet instances of discrimination by defendant in outlying protestors or something, if you took the allegations in this complaint and made them out to be the banks were engaged in discriminatory loans and the city had to basically expend funds to test that out to enforce statutes, that looks very much like the one-to-one relationship issued in haven. >> i'm sorry, they were not city employees. they were private organizations employees whose job it was to do this, so why are you attributing the testers work directly? >> paragraph f, the complaint asks for the city's expenditures to combat, identifies specific things including other -- >> why is this different than the other allegations in havens that had to do like here with loss revenues, with loss tax base which the court cited as well? here are direct expenditures of increased monitoring of the area by police and other services. aren't those city expenditures? >> that's not haven. i think that's stone. our position is that to the extent the city complain, the second bucket in which the city -- just like gladstone where there's a segregation claim that's being advanced. the real stores were steering african americans out of the village. for interest purposes, it doesn't talk about proximate cause at all. there's absolutely nothing wrong with that. that is the city -- >> i'm sorry. you're thinking that if banks are forcing people out of a neighborhood that that's not discrimination? >> your honor to the extent that segregation absolutely it is and that's what gladstone recognizes. here is what it doesn't recognizes, something like this complaint, not that the city is pleading interest but they are borrowing somebody's interest. our position is the direct victims can obviously sue for that but can justice department and hud because that's what congress empowers them to do to have standing but what they're saying is, well, we are harmed downstream from tax revenues and things like that. that looks like the shareholder in thompson. the shareholder there was not identifying discrimination injury, they were identifying economic injury and cutting and pasting. >> of a village suing. they weren't suing for diminished property values which resulted in loss of revenue. is that -- so to that extent the cases seem to me the bottom line that min-- municipality says. >> judge ginsburg i don't think that's totally correct. it was ant antidiscrimination injury. that's the first part of gladstone, page 110 of the opinion. hire they haven't identified antidiscrimination harm. they identified economic harm, that's why this case is not within the zone of interest but the one there is. it looks -- you can think of it this way, one is the thompson shareholder, the shareholder who has an economic injury, no doubt they are hurt by underlying act of discrimination at the front end against someone who was fired like the ceo who was fired for race discrimination or something like that, but this court said, ah, that opens the door to too many lawsuits. >> that was a hypothetical the court brought up on its own. i'm surprised you put so much weight on thompson because that was the case that upheld standing. >> absolutely. the language in opinion itself was something justice kennedy raised oral argument but picked up by thompson. it's not just thompson. the court's unanimous decision says something much the same about landlords and utility companies. you're opening the door not just to the city but to anyone else who can borrow someone else's antidiscrimination interest, cut and paste it -- >> is your concession, i call it a concession, your formulation that the city can sue sometimes. are you thinking that the city might be in the same position as home was in -- was tit havens's case? >> the city is like home. they are identifying specific concrete interests, expenditures that they have to outlay to combat a defendant's, you know, racial misconduct and so to the extent a city wants to do, that's absolutely fine. >> are you saying and i don't want to foreclose from finishing your answer, are you saying that the city is limited to the damages that it can recover? >> on that theory and bucket they are limited to the damages there. on the second bucket -- >> the cost that they incur in trying to terminate discrimination? >> you're troubled by that but i point out the second thing the gladstone segregation category. in that circumstances the city can recover for the proximate cause but in terms of zone of interest it can recover for the harms by making an integrated neighborhood become segregated. however marginally that may be. that's something they can recover for injunctive damages. >> would that be added police force or something? >> no, i don't think it would be -- that would run into proximate cause problems down the road because there are many steps. >> what could the city recover for general damages of having the segregated community as a result of the defendant's actions? >> well, i think that anything that they can directly outlay -- that may very hard to identify and that's why normally this is done more on the i think -- injunctive side and to hud to bring these cases. >> your concession runs into the same problem as your main argument. i mean, if the city can recover for having a more segregated environment, that seemed to be measured by all sorts of things including tourists aren't going to visit as much. how would you measure the damage ifs the harm is simply having a segregated city? >> i'm making an argument about what this court's precedence require in 1980 decision for which the city has to identify his injury, so here the city has to identify an antidiscrimination interest that they have suffered, they can't cut and paste and borrow someone else's, to the extent we are talking risk complain does, tax bases and so on, that is not an antidiscrimination injury. and so the way to reconcile -- >> mr. katyal, it was only looking at individual acts of discrimination to particular persons, but the fha is a very peculiar and distinctive kind of administrative -- antidiscrimination statute which really is focusing on community harms and we talked about this a lot in a texas housing case a couple of years ago. it's not just individuals that are harmed, it's community that is are harmed and that's the basic idea of the entire statute, why congress passed it and here the cities are standing up and saying, every time you do this redline and this reverse redlining essentially a community is become inflated and who better than the city to recognize the interest and assert it. >> we should recognize that is something at issue and one of the goals of the fair housing act but i think the way congress dealt with that is not by saying cities are empower to have standing. that's why they gave the justice department and hud and congress empowered state and local enforcement over housing discrimination to deal problems that you're talking about. in here they are not using any of that. they are, quote, person of grieve. quote, enforcement by private persons and our position -- >> but they are a person aggrieved under the given congress purposes in the act because they're saying as you did this redlining, as you did this reverse redlining, our communities the things that make us a city are becoming more and that's what we are trying to recover for, the costs of responding to that, the costs of not having revenues in order to carry out our services for that community and for others. this is their own interest in maintaining their communities free of the kind of racial discrimination that the act says causes neighborhood. >> justice kagan if the complaint was written to say it was about segregation causing blight, we would have no problem with respect to zone of interest. is city would fall within that interest, that's gladstone. it's caused not just on its own but as a result of regular gas -- segregation. >> how far out would damages extend in the hypothesis you just gave? >> the presumed interest, i think, you're able to get -- i don't think it matters. that is to the extent that the city can place complaint by the city pleads a segregation harm even if it's downstream, within the zone of interest now to tush to proximate cause. >> i don't understand why this isn't a segregation harm. the city is saying, you've done this redlining. it's not causing foreclosures all over the city, it's causing foreclosures in concentrated areas and it's doing that because of racial segregation and at the same time it's preventing that racial segregation from ever being lifted because those communities are being more blighted and capable of becoming integrated communities. so everything about this complaint is about racial segregation it seems to me. >> justice kagan, i encourage you to look at what you just said and read it against the complaint. >> so do you think that everything i said if their complaint was written like that that they could maintain -- >> they could maintain a suit for segregation and measure of damages wouldn't be the measure of damages which they are seeking which is recovery for the 2008 foreclosure crisis in miami and billions of dollars nationwide. it would be, again, at most, i want to get to proximate cause but at most the delta between segregated community that it now exists as a result of the defendant's particular conduct and integrated community that would have existed otherwise. that would be the only measure of damages. >> how do you measure that? >> i'm not sure. and that's why i do think it mate fail on proximate cause. we have been talking about zoning interest. that's what gladstone dealt with. with respect to zone of interest, i think that complaint, the one that justice kagan you read would satisfy zone interest and allow the city to get injunctive relief to preserve community center concept that you're talking about. now the question is, would they be able to recover damages for that including damages to the tax base. gladstone which talks about tax revenues. the next line is enough for article 3 standing. so i don't think this court has ever decided the question of whether or not proximate cause principles allow a segregation lawsuit -- >> i take it from everything you said that gladstone was proximate cause stage? >> i do think that that's right. that is there would be so many steps involved. if you can just take a look at this complaint and look at brief page 30, you see all the steps that are required before the city is injured, you have to have discriminatory loans, discriminatory loans have to lead to defaults. the defaults have to lead to foreclosures and increase in vacancies need to lead to reduction in property values. >> i usually think of proximate cause, correct me if i'm wrong, as a question of liability not damages. you said proximate cause doesn't cause liability and damages? >> i do. the court could have thought about it that way. what the court has said you looked to the underlying damage that is -- damages that are being standard proximate cause principles and in here if you accept their theory, you'll be doing something that i don't know the court has ever done before to allow such a chain of causation, nondirect cause of causation to begin billions of dollars to recover. >> could i ask a separate question. we've been talking about zone of interest and the question about whether the zone of interest does supply at all. you have the three cases prior to 1988 reenactment of the old 1968 language and in each of these three cases, the court very specifically says that this language stretches to the limits of article 3. so congress is amending the statute in 1988 against that backdrop, why shouldn't we understand that demand that the language stretches to the limits of article 3? >> for three reasons, justice kagan. first only applies to holdings of the court and i know you weren't on the court for thompson but all the rest were here and in thompson the -- the court unanimously -- totally not. [laughter] >> and so i think the court went through this, they heard the general's argument at the time which was this was limiting and binding holdings. >> i guess i don't understand that. we can argue about whether these were holdings, whether they were arguments on both sides of that, but here i am on congress, suppose you were an adviser to a congressman. i don't really like this idea of going to the limits of article 3. i think we should limit it. you say, no worries, just use the same language and he says, use the same language, that language has been consistently understood to go to the limits of article 3. and you say u oh, no, don't worry, it's dicta. i feel relief. wouldn't you be fired? >> i think i would be fired not following what the court case require, not borrowing from some, you know, implicit doctrine because it's high-watermark the court set, congressional doctrine is only guide to where congress implicitly thought and starting in 1983 in the case and even before that in the agc case, perhaps before that. this court has said you need an express negation by congress. >> the zone of interest at least it was announced in data processing was understood to expand standing over what had been there. facilitating the ability to bring lawsuits. >> well, certainly by the time the case was about limited standing, that was before 1988, i think you've got that problem. you'd also be fired justice kagan in your hypothetical about the house report as staffer says, you know, there's only two things that you were trying to codify and the other is that administrative and judicial standing applies the same standard. those are the only two things in the house report. >> i don't view the house report that way. the house does refer to particular aspects of the cases. but it seems to cut against you because it makes clear that congress knew about those cases and those cases are, of course, the cases which said that standings stretching to the limits of article 3. and if you really look at the legislative history of this act, it's pretty clear. when congress is acting in 1988, it took off the shelf a bill that was discussed in 1980 and in that bill there was a lot of discussion about whether standings should go to the limits of article 3 and congress was thinking of changing that language and drew dayes, assistant attorney general and hud secretary they both come in and if you change the language it's a problem because then you're cutting back on standing and congress decided not to change the language because it warranted as drew said and hud secretary said to go to limits of article 3. >> i would like to turn to proximate cause. justice kagan, if that is true, i think this court is insistent on expressed negation for precisely this reason. >> this is not an expressed limitation that means we are not -- we are doing away or we are keeping the zone of interest, because it establishes that rule. there was no explicit statement. what the court did look at the statute, endangered species statute and looked at the words and any person meant any person and decided to do away with the zone of interest. here we have a congress in 1988 taking the word agreed which was in the entitled 7 and many other statutes but unidentified and what it did was take the definition, looked at by prior regulations, examines by this court in its three cases establishing article 3 standing and put in a definition of aggrieved that is very different from the normal definition. why is that? >> it is not very different. plain jane determination. it allows any person to sue. their interpretation is accepted, there's no commerce damaging statute that allows anyone to sue the way their interpretation would. in proximate cause our main point to you is this, this court says there's argument rule. there's a general rule that says that liability is cut off after the first step. you adopt this theory of the complaint you're accepting six-step liability in a way that this court has never done before. at most the court unanimously said you can expand it a little bit beyond the first step for one-to-one relationship, but here this complaint is seeking damages for the foreclosure crisis of 2008. something that's way beyond anything this court has -- >> when you said to me that the complaint that i wrote would have been covered by the act, do you think it also would fall within proximate cause principles? >> i think it would have to satisfy and to the extent that the city could identify segregation interest -- segregation harms directly in the way that maybe university could when they become, you know, when they used diversity or something like that, to the extent there's some kind of direct one-to-one relationship every day absolutely every day of the week and congress can writes statute, but here they haven't done any of that. here plain jane version of damages and what they are seeking, the fair housing act has been around since before i was born and only until a couple of years ago have we ever seen a complaint that looks anything like this. here they are seek to go recover for -- seeking to recover for foreclosure of 2008. going all the way to the opinion of this court, we have holmes and homes. >> i guess when i started reading the briefs, i was confused about. proximate cause is about fear -- foreseeability and there's places where there's additional directness required but only in pretty discreet areas. i guess, i sort of come back to this notion that i think what our precedent adjusts is statute by statute as to what it's a foreseeable inquiry or whether it has additional components. >> i will answer that if i can reserve the balance of my time. i think the court said that, quote, proximate cause there must be direct relationship between the injuries and the injuries conduct. they both do that. that's the general rule not the outlier rule. >> what do we do have all of the statements in havens, i'm quoting, there's significance in direct and indirect injuries for purposes of filing suit under the fha. while members of minority groups were damaged the most from discrimination, the proponents of the legislation emphasized that those who were not the direct objects of discrimination had an interest in ensuring fair housing. >> justice sotomayor, absolutely. >> direct and indirect, it has no meaning in the statute, the foreseeability always has meaning. >> you've never head anything about proximate cause. that all goes to standing. that's a completely different inquiry, if i may reserve. >> thank you, counsel. >> may it please the court. the city of miami brought these cases seeking injunctive relief and monetary damages because the bank's practice of providing minority borrowers with more expensive and riskier loans than they qualified for than nonminority borrowers received. and to cause the city to lose benefits of social, professional and business opportunities that come with integrated community, free from housing discrimination. now, you heard my friend describe these as two buckets that if the complaint makes that out fairly, then we do have standing that we sit within the zone of interest. we thought that the original complaint that we filed made this apparent, 11th circuit agreed with us, but when the district court dismissed us with prejudice on the original complaint, we made a motion for reconsideration to try to make more explicit what we thought was emplicit. the court did deny us the opportunity to do that. if you look at the amended complaint it does talk about the city operates a department of economic and economic development which takes complaints about fair housing and tries to mediate and in charge of all kinds of effort that is we thought were part of our original complaint. at the same time we recognize that the injury to the city is one that comes from the nondiscrimination principles in the fair housing act. those two buckets do exist in this complaint and they do exist if we had the opportunity to amend the complaint and made it more explicit. >> i'm looking at the joint appendix page 186, you're opening paragraph where you say, conduct has harmed the residents of miami and impaired the strong -- the city's strong long standing and active commitment to open integrated residential housing patterns and attendant benefits creating a stable community. and then you go onto the specific damages, loss of tax revenues and increased expenses. it's those types of allegations in your amended complaint that you're pointing to? >> i point to those and those on 232 and 233 which describe the operation of our department of community and economic development and so as a result -- >> this pretty much struck havens and gladstone. >> it does, indeed, justice sotomayor. regardless if you take the article 3 approach to standing in this case or narrow formulation that depends on the fact that we are agreed with violations of the act, the city of miami has standing and the -- i don't understand either bank in their briefs as long as we make those pleadings. it seems odd that we would be prevented from making those pleadings as explicit as possible in rule 15. >> do you think you're a direct victim of discrimination because it seems to me that the damages that you seek are not going to be paid to those who were the direct victims of the discrimination. >> we are seeking -- we are a direct victim. the court has repeatedly in all three cases stealing with standing under the fair housing act recognize that it's direct and incorrect damages that are at issue that plaintiffs who are indirectly harmed are also harmed. we do not have patriotic status to sue for our residents. >> injuries are derivative of the injury to the home owners who had subprime mortgages. i don't see how you can say that loss of property tax is a direct injury. >> it is a -- what we are saying the injury here is the injury toward interest in integrated community that has those business and social opportunities that this court found in -- >> where is the limit to that? i mean, you ask for property taxes but presumably you suffer loss of sales taxes because of the blight of the community, you lose tourist revenues. would you be able to recover loss in tourist revenues? >> we do not think we can. >> i can certainly see the logic. people are going to go somewhere else and so on. >> this is their neighborhood and residents. there are zoning laws. the issues of property values and property taxes are baked into the home loan that is are made by the banks. they are part and parcel of the issue here and the fact is that the cities have affirmative obligation that require them to look out for fair housing, miami and other cities gets blocked grants. >> articulate in the sentence what the difference is, you don't get taxes that you would get from tourists, you do get property taxes. so what is it that cuts off the chain? >> because it has to be tied specifically to the property, we could get property taxes -- >> how are cost of increase services whether it's police or how -- >> our department had to look for unsafe structures and find those structures because they had been abandoned after foreclosure. our department has to remediate neighborhoods. so this is the other end of having fought against to fair housing. this is the other end when you try to remediate neighborhoods and make them whole again. those efforts are the ones we seek damages for and those are directly from it. in gladstone the court recognized that a city, municipality is directly injured in its property values and the taxes forgone that go to services. so that's where we see the direct connection. >> gladstone never got to proximate cause. he just decided whether there was standing -- >> justice ginsburg, the court did not describe proximate cause here but it's hard to read that sentence as anything but referring to proximate cause. it is the direct injury that flows from the discriminatory conduct. one thing that my friend also said was we mentioned the fact that we had lost millions, not hundreds of millions, before the city of miami brought its case, the city memphis and baltimore both brought cases and they ended upset lg with -- settling with $10 million each. >> the question is presented today. >> it's possible. at that point i don't believe anyone had raised proximate cause as a separate issue but the cities survived multiple motions that went to zone of interest. that's what caused other cities to see the survival of that as a possibility. >> would you go back to the question about how do you define limits, foreseeable tests, clearly less tourism, less sales tax, less of a lot of other things can be potentially foreseeable. but you're suggesting they're not recoverable. so is it because they're not foreseeable or is it because they are not measurable? >> i think they are difficult to measurable. they may be foreseeable but also the potential of superceding events that cut off the chain there. >> you want us to use the word, the phrase, the concept proximate cause in determining how far damages extend? >> you know, i think it provides some help but not a great deal of help. >> so where do i turn next? >> well, you know, the guidance that the court gave was that damages to the very conduct of statute prohibits. we think that what we've done is propose -- >> the statute doesn't prohibit decreasing property tax values. >> but it does prohibit -- prohibits discrimination in housing and this is one of the damage that is we suffered that is directly from -- as a result of these kinds of home loans. so therefore, we've try today -- tried to cabin our damages with respect to the specific properties and the damages they direct to the city. >> you know, all proximate cause requires that alleged misconduct and result and includes any injury the statute seeks to protect against. here we have injury that is the statute seeks to protect and my friend doesn't disagree that those are protected by the statute and certainly in gladstone and havens, those injuries are the ones the court recognizes. the question is what becomes appropriate damages. damages tightly connected to the actual injury that the city has suffered. >> we have to go into that. do we have to to decide this case? >> you do not need to decide that. wasn't of the things that the 11th circuit noted that in the time between when briefs were written and when we argued the case, this court came down with the decision of inclusive communities and in that decision the courts mention that there is a proximate cause pleading standard that needs to be incorporated and we are not going to delve into what that exactly is and remand it to the district court. we think that that can play out in the further litigation of this lawsuit. >> did we include language, don't worry based on the experience in baltimore and memphis? [laughter] >> our opponents are talking about billions and billions of dollars and the 2008 financial crisis which also want to deny needed response and with respect to the financial crisis, if the 2008 financial crisis was indeed the purpose of this lawsuit, the statute of limitations which is two years would have ended the lawsuit a long time ago but instead what we found and what the 11th circuit acknowledged is while the kinds of loans, the financial crisis was stood off by subprime lending, but the kinds of loans are taking different forms but the underlying practice remains the same that minority borrowers are getting more expensive and riskier loan that is are quicker to foreclosure and some minorities seven times as frequently as nonminority borrowers. >> is there a difference, the complaint was not different, subprime loans and predatory loans? >> predatory loans are generic terms of taking advantage of a bar -- borrower. >> aren't all subprime loans categorize as predatory? >> i believe the subprime loans are all considered predatory. >> suppose you have a business that is losing money, losing employees because the neighborhood is deteriorating, do they have a -- a stronger or a weaker claim than you do, they've lost profits from their business because the neighborhood has been debilitating? >> i think they have a weaker claim. we have a claim that's tied to the fact -- >> they are property owners. >> they are property owners but commercial property anders -- owners. there's no damage to personal property. but here what we are seeing is -- if i can step back for a moment. endangered species act recognizes that article 3 standing applies to the endangered species act, but you still center to make a claim that's based on an interest in the preservation of animals. you can't make a claim based on discrimination that applies to housing discrimination or something like that. there is some generalized zone of interest that tie it is statute to the cause of action. here i say that the city has a special interest in fair housing and in integrated community, but the fha is beginning to vindicate. the local dry cleaner does not. they have the unique relationship to the fact that this is their community, their neighborhoods, their residents, which they zone and they decide how the property is posed to be used and they provide services to every one on of these residents. >> why wouldn't the business owner have an interest in running his business in an integrated vibrant neighborhood just as the city i would say a less direct interest in having that neighborhood preserved in the city. >> you know, it may be so. i think it's difficult to claim the damages that you are claiming. we allow neighbors, nonprofit organizations, city, developers, all to sue to vindicate that interest. we don't allow the equivalent of a neighbor, a coworker to bring an action for discrimination that's been given upon colleagues. we don't allow others within that kind of realm to bring these actions. i think that's part of the problem that a business that makes this claim might have. so in the end what i'm suggesting is that there are direct injuries by virtue of these two what my friend describes as buckets, a direct injury to the city in efforts to secure fair housing by draining those resources and those resources are recoverable and that -- that, indeed, sounds like any kind of proximate cause as well as injury to that interest and integrated community that allows the business opportunities, the social opportunities, professional opportunities to flow but this quote recognized in the gladstone case and suggests that event -- even my friend that appropriate damages is the lost of property values and property taxes which frankly are part and parcel of this whole mortgage-loan industry. so we are not asking for something that's different, that's out of the realm, that's away from what this process is, but something that is integral and its injuries are so far-field from it that we are outside the zone of interest, whatever zone the interest applies because after all it's not a very demanding text and there's a reason for that and that's because we are aggrieved in every sense of the word by the discrimination that was propounded here and at the same time we think that it has to essentially flow from the fact that there was some violation of the act and in each instance we think our injury is direct but even if it were to be examined or my -- like my friend suggests, they have to take out a discriminatory loan who then defaults and arrive in foreclosure, who then has to find that he has to abandon the house and then all those different steps, you know , financial state of the economy, the nature of his job situation, his family situation, all have effects on that. we recognized that proximate cause, damage proximate cause from the injury that the fair housing act recognizes. for those reasons, i suggest that the court ought to affirm the 11th circuit. >> thank you, counsel. >> mr. chief justice and may it please the court n. gladstone the court conclude that had the municipality was injured if discriminatory housing practices caused a reduction in property values and therefore diminished tax revenues. congress recodified that result and the court should hold the same injury is still cognizeable today. if i could turn to some of the points that come up today. my friend on the other side says you can't cut and paste injury from one plaintiff to one victim of discrimination to another. that's an argument that gladstone specifically rejected in footnote nine the court said that what matters here and this is what was the breath of the triology is that somebody has had legal rights violated by discriminatory housing practices, it doesn't have to be the plaintiff's legal right. the plaintiff has to be injured by the violation but doesn't have to be their right that is are violated and that's what we think is the work that's being done by the atypical definition of a grieved person. >> that's a broad statement, what do you think for laundry cleaner that wants to sue for somebody else's discrimination. >> i agree with my both friends on both sides. we don't disagree that there's a proximate cause limitation implicit in the statute and here we think that although gladstone didn't address proximate cause in those terms, it's important and significant that the court there said that the city is directly injured by the decrease in property values and we think that the ultimate test stated, of course, the court repeated recognized that proximate cause is a statute by statute situation inquiry that depends upon the nature of the individual statutes but the ultimate test is whether there's a sufficiently close connection to the conduct that the statute prohibits and what this statute prohibits is discriminatory practice. >> you could have the dry cleaner and magazine that writes about successes an integration, wants to write about this community before it got wrecked or whatever. clause could be absolutely clear. do they all have suits? >> i think that what we are saying -- >> they haven't argued that. >> to the extent they can get themes into the home framework for havens maybe they can say they -- >> no, no. you heard what the question was, the question before and still is if we get into it we may not need to but if we did somebody in alaska who writes magazine articles about successes and integration is going to be wrecked because they don't have the integration in prime example. absolutely clear the causal connection. can he bring the lawsuit? >> no, we think that that is further field. >> not because of causation, because it's cause, we proof that it's cause. >> it's cause. proximate cause is about determining something that's caused is still too far away either in terms of foreseeability or distance or intervening cause or something else and so problem mate cause by definition is caferring -- carving out that otherwise be carved out under article 3 and here we think that the reason why this is sufficiently closely connected to the conduct that the statute prohibits, this statute prohibits discriminatory housing practices and those practices include like the terms and condition of sale and rental of property, things about the real estate-related transactions . minorities coming into this neighborhood. that conduct had an effect on property sighs sis. >> how do we write it? let's take the corner grocier who has been running accounts for the gardner who every week cleans the property, i doubt someone who is in foreclosure can afford a gardner but let's assume that possibility. how do we write that the city has standing and its injuries are proximately caused but those people don't? what's the -- how do we stand? >> the link that we see is two property values and that's the injury that the court already recognized in gladstone. this is a question of congressional intent. same thing was said true about the neighbors. i would say that the corner store to the extent that it has property values diminished situated like one of those neighbors. to the extent it's talking about something else, those things we think are further afield and not so closely connected and proximate cause is traditionally done -- >> could you give us concrete answers. the utility company, you say it's further afield, is it covered or not? >> we think it's not covered. what this court recognized in gladstone is something that congress is taking account of and the property value, effect on property values is closely tied to discriminatory housing practices. congress was entitled to think that that relationship would endure and in -- >> how about real estate brokers? >> yes, we discuss in our brief that those are the type of people that have an interest in the transaction even if it's just an economic interest, they are able to recover. i don't understand my friends on the other side to be disputing that that if they have a transaction that fails to go through because of racial discrimination they can sue. we think it's important that the court to remember that you just -- >> this is now a poor community, our commissions are going to be lower across the board. they're somehow different from the corner grocery store, i don't get it. >> if they were just generically saying business is down. that might be harder where developers, real estate agents have talked about specific transactions that they can say were caused by -- by discriminatory housing practices. we do think it's important for the court to recall that those cases involve plaintiffs who don't necessarily have a quote, unquote desegregation interest as my friend on the other side puts it. they are injured in economic interests and as the court pointed out inclusive communities, real estate developer, we don't require that they add on that there's something like the nonprofit in havens where in addition to wanting to make money off of developing property, they also have an interest in desegregation. >> please. >> your answer, i think, to the questions is that it's limited to those cognizabel suits contemplated by the statute and you see by having to do with the possession or value of the property? >> we think the harms directly from changes in property value were ones that congress contemplated both in 1968 and 1988 after the court had enumerated that as a particular type of harm at issue here. we don't think that the city should have to establish that there's been a change in racial composition in the neighborhood because the fair housing act is intended to cover -- intend today prohibit discriminatory practices. >> the city can sue based on isolated instances discrimination? it affects the community as a whole and the city has an interest in ensuring the stability of the communities not that the city could enforce particular instances of the housing discrimination. >> i think it's both. i think that they do have the community representing interest but i also think that to the extent that they can say we suffer a harm from this particular transaction, let's assume it's just one particular apartment complex or something. >> one particular home. >> i suspect that that's one where there wouldn't be that much in it to have the city bring the suit instead of the individual owner. >> i don't know if there's much in it. can the city bring it or no? >> yes, whenever there's a decline in property value on primary victim, they suffer corresponding decline in tax revenue. >> the city can bring an action to the sort we are talking about here in the case of one subprime mortgage that results in foreclosure? >> if they can say that that was caused by discriminatory housing practices an it injured them, yes, that's just like the residents in city in gladstone, they are able to say we are injured by this. >> thank you, counsel. mr. kaytal you have four minutes. >> four points, your honor. we agree and believe page 33 says identify interest but impact on segregation in order to survive. they haven't done that. they haven't told you that segregation is increasing or decreasing, second, the damages here they seek are way, way broader than what they paid out to be. the bank of america petition page 34, cites one of the complaints by same counsel against counties seeking hundreds of millions of dollars, there are 19,300 cities in america. if they adopt their theory you would be allowing all of them to bring complaints. if you accept their interpretation you'd be opening the door. proximate cause is somehow a limitation on that. their own proximate cause test eliminates the directness requirement. i think it'll be hard and that's why i don't think he had an answer on the magazine or things like that and when justice is sotomayor you asked him about gardener, that cannot be a theory on the court on proximate cause principles for many reasons. it's not brief to argue but second the language that's he's read to go you is at the end of gladstone saying that if you have reduction in property values it would reduce tax base. you have five steps as brief explains before you even get to the reduction in property values. each of those are opportunities for intervening causes and all the kinds of things that the court said are the reasons why we cut off liability at the first step. his.other answer was to say that they were concerned with cities, that congressional report says that congress is equally concerned with employers who stufferred from segregated neighborhoods, employees who were fired because the neighborhoods suffered from blight and other things. if you take their standard, look at the congressional report, figure out who is harmed by housing discrimination even downstream, you would come to the same conclusion we do, which is this is an unlimited theory of liability that would allow more to sue, utility companies to sue and, justice sotomayor gardeners to sue. if you adopt on zone of interest, their interpretation of aggrieved persons, 36-12 allows persons to intervene as a matter of right in federal litigation. .. >> and. >> the case is submitted with. >> arrival is then a student of american history. cough the african descended people >> my local formed an impression from watching but negative 1.to tear each other down. so to form that impression that is what americans would do it to you, shoot you, if you look them in the eye. [inaudible conversations] >> good afternoon. the constitution project specializes in a consensus of controversial issues and they have been able to continue to think that they could do so over the next four years or eight years. we're glad to welcome you here and our panel last and the biography of the panel is in the program. so i will introduce the reporter for the supreme court. >> en thanks to the panelist for joining us today. >> way live-in interesting times. one aspect of the of all its title government that we live in with the supreme court to maybe conduct president obama is nomination of the chief justice eric garland to be to the supreme court. and with b-2 influential thinkers and writers president and ethics public policy center is a widely read of plugger who contributes to "national review" and the office of legal counsel and the general counsel to the senate committee judiciary. steve is a law professor at the university of texas for both and contributes want to the supreme court and is of a graduate of yale law school with two federal circuits and on the ninth circuit in the 11th circuit i don't know what is but the supreme court here at the constitution center. >> get might correct looking back? is there anything that the president can do for the supreme court quick. >> no. basically the nomination is dead. >> yes there are legal things he could attempt to do but i don't think it will happen on. >> for example, there is that moment when the senate will be in recess where theoretically he could recess appointee and to the supreme court but there are somewhere procedural maneuvers pet none of those will happen. >> and in that infinitesimal moment the supreme court said of the least 10 days to be available. with a long-shot possibility. >> this is fun and frivolous >> okay then let's assume the nomination is dead. i will ask a couple of questions. there is some talk the senate in refusing to act in any way from the nomination violated some of constitutional duty. >> it was rejected from the ideological spectrum is clearly wrong. i had a meeting with former obama wide house counsel and chief knowledge of what she would have recommended that they take the course. so there is a single appointments clause that applies to all officers and that is a restriction to turn the nominee in to the appointee. it route to american history for the of full range of offices it has routinely killed nominations by that action. that the argument is unconstitutional to support the sections and got past. >> let me broaden out the question a little bit so there is a constitutional obligation doesn't violate that political norm? into those other kinds of appointments. edges by failing to act? >> if i may the entitled is constitutional prerogative for crisis. but there is no question on the structure the senate has the right to withhold as in the case of 25 and 30 percent of all nominations to the supreme court. but eric garland's nomination will now be 250 days the previous record is 2025 for one single nomination and brandeis was confirmed at the end of that time period. so there is no right for anyone nominee but the fragile and important point to make and the power is not from the official mandate but from article three where the jurisdiction comes from from the fact that we have proceeded as starkly and without regard to politics so that narrative shows respect pet so have the judicial built -- judiciary doctrine so with the express understanding that even orrin hatch said was about as well qualified issue could imagine but simply the cause of a political calculation of the far side of the election to crystallize the view of the supreme court and in up process to have that potential to not have the legitimacy but if this goes on to where the supreme court is other than an instrument of political will. >> the more that is viewed as a political institution but if you make that political argument quick. >> it is important to distinguish based on that understanding of philosophy have agreed deal of respect for him except he is a judicial liberal. and then is a sufficient ground for senate republicans to say no. not on our watch. not from the white house counsel if the situation were reversed. from so i think it takes the constitution seriously what could be their highest duty than to confirm to the office only they think will construe the constitution properly? so what happened this past year was baked into the process. after all it was back in 1992 so in that election year. so all of vacancies in us situations to make that nomination to control by the same party as the president chose to have that partisan conflict and then with no vacancy arises in the election year since 1968 when the nine nominations of borne barry were blocked from. >> so first it is worth stressing the of the opposition is ideological. there were senior leaders for even before he was nominated they would oppose any nominee simply because they did not want obama his nomination. >> dennis based on the assumption. >> president obama will not nominate a conservative ever >> but 1988 kennedy what is not made within one year of the election it was one month before. >> but the vacancy nearly a year-and-a-half before rewriting history not to mention that vacancy is a big omission. >> but that it is all okay it is the wrong way to look at this problem. is a race to the bottom whoever is in power to go to the other side that is that moderate consensus nominee but it is lost at the end of the process to say scheerer but that is not that behavior on the part of the republicans. >> when they have then on the other foot? >> episode ned is not to be commended. with no world of which those reaction to the supreme court vacancy is to maximize to turn the car into a political institution. why the supreme court has nine justices. in response to the greatest in the courts history and then try to take away from andrew johnson and it took the court a long time to have that credibility of that period. but what we look at now is any mechanism of power that congress can and deploy a that everything is okay to the supreme court nomination . >> i think you are lost in the process. but the democrats would have been the same but the deeper point is money we talk about is a long-term battle over judicial philosophy so there is a view of the constitution from living constitution so if you want to talk about how to destroy the supreme court as an independent institution that insures that and it is against that very notion of the constitution as the document with the independent meeting whose job it is to interpret partially. so the bigger picture is the debate. so to get off citizen is united on one side. so one of two things is true. but in fact, reflects the alignment so on therefore it is not beholden horror in which case we should not protect them class a common law professor and i think the reason why a people follow the supreme court decisions whether it is your least favorite decision of the day why do you follow that? it is not simply political. so at the end of the day would is a political end game. >> with the current reality schedule prattle of the cases with justice kennedy swinging back and forth it is not a very good argument. >> i think the court over time is inconsistent with america but because the decisions are perceived to be in line with public opinion so my point is simply if the next nominee to the supreme court is simply because the republicans want and the senate and of the white house in the election that demeans the institution and i cannot do any thing by unanimous consent. with that irresponsible use of power as a race to the of bottom. >> so let's talk about the supreme court nomination. he is not only way that trump speaks in this their way to characterize. >> it don't pretend to have full full read on all candidates on the list. and do wishes of more although list but and i do think you have folks who have strong credentials overall it is a very good list and many of us here help them to do so with the nomination of the nominee. select edit it is very conventional but i don't doubt to those conservatives as the time you would want to replace justice scalia on the supreme court. in that relatively inconsistent credentials but it is interesting to think of the diversity of the supreme court hearing is very little obama. >> there are nine state supreme court justices. >> although he was a lower state cedeno law of people did not go to harvard yale law school there are other law schools in the world. >> if you want diversity are you looking for politicians? that we don't want the court to look political judges are the natural place to look. that is of part of the supreme court justice. >> in net and the point is what do they do when they are off the court? but the court is diverse when you looked at the election map you can see a very different pattern. >> so all of this sitting supreme court justices but with one exception in any exception sits on the court of appeals. so that is pretty and surprising. and even with justice scalia. and what we know about these nominees. >> what about tightening? will we get a nomination or confirmation hearing? >> there is no reason to rush. i have been saying last nine months there is no crisis with the supreme court and i continue to believe that. the key is to rule out a smooth and proper so the naming of these election will advance of the inauguration he could name his election tomorrow and make the nomination but to have sole whole team in place so that would be shooting. and by the end of january. with the oral arguments. >> but i disagree and and those of have then fully briefed and scheduled for argument. i wonder why? and compared to the prior terms as with the said day couple years ago are not there. >> but that is not what i am hearing. but with my personal preference is from my analysis as a supreme court scholar it is a despite nine justices. and referring to almost anyone on that list of 21, yes. i did not say that it did not have been in packages said it wasn't a crisis. so those cases of the argument was a constitutional crisis. >> if it had gone differently if the senate was holding then booted be closer to the constitutional crisis greg. >> idol think is significant. and with the port with the inability to resolve for ideological or other reasons. i think the reason why we have the supreme court and the constitution with us inability to resolve. >> but that is the reason rehab the supreme court wide is the constitution say it grants review why hasn't the supreme court said that it sold? with their are a circuit split. >> it sounds like so let's assume so what type of democratic response? >> there are two scenarios. the first from their garden delaware pol out all the stops. to invoke the filibuster and to be equally possible that doesn't seem that radical of a shift from justice scalia from the next appointment. sudden have a real serious conversation and those of our not opposed to the filibuster. so whether the change of leadership that it will have an impact. >> and if they would attend the filibuster? into the filibuster of the nominees. but then what happened back then but three years ago with those filibuster efforts by the republicans they said no more we will abolish the of filibuster. moonves said democrats first launched their campaign against the supreme court nominee. but that ended up going not back through 2005. through those filibuster efforts. when harry reid newt of filibuster but planned parenthood and other abortion groups are very concerned with the abstract of the supreme court nominees. with so way to make it easier for republican president to get confirmed for the nominee. so let's wait until you run and it's done of battle with the bipartisanship with the supreme court nominees. over the outlast couple of months with the supreme court nominees of hillary clinton that but republican events will act in kind. >> don't think it is helpful i think the answer is yes. but talk about the lower court judges all the attention pace to slow negative paid to the skull re-export vacancy of the lower federal courts today at the end of the second term 38 of those have then classified by the u.s. court not exactly as of partisan vacancy that has been placed on the courts so does and just about the supreme court to the democratic elected a president. they can say it is ideological. with c8 years. you can slice things in a different period of time. they don't have the doc get pressure. >> title have the answer. but what happened back in in 2008 when president bush managed to get the nominees confirmed and those are those summer nominated and confirmed. >> i don't want to go through the of list of all the nominations but i will say briefly it is hard to look at that list of the of 59 as the most liberal nominations in america i think there is more compromise than you think. >> there is a way to slice and dice this but as steve said a second ago that the stakes may be perceived to be a little bit lower because broadly speaking more less than we knew in february is there a more nuanced view? >> i don't want to speak but that is reasonable but in terms of whoever is elected that is a huge road to fill. but the supreme court deals with challenging questions nobody can expect anyone to hold the same set of use with zero whole host of areas and what others might lean the same way. so there could be some areas that are of particular concern. >> i wonder if they will hold different views with one conservative vision of the constitution but that aside the criminal procedure area those sat were all profile to join in the most democratic. >> there are those cases for the criminal defendant. when so it is possible whether of the list or not could be more consistently pro government in that area but like i said i not sure that is the wedge for those that might fill the next seat. >> so let's imagine ourselves back into that area for generally conservative for a liberal justice kennedy are their cases of the dock and are on the horizon where we could see some movement because we are back in that area quick. >> the most obvious candidate is transgendered case out of carolina that is all about the department of education regulation. but there are some, but in issues there are a couple of decisions to but guantanamo back up in seven or eight years. >> but that religion case been is not scheduled might be a case. >> and the last term i think there is another case where the trump administration doesn't need to go to court. >> but what about the public union case the challenge? there are versions of that case coming back to the court. >> as your question indicates there are those in the pipeline that decide that case. >> and justice scalia was the dominant story. but the move of justice kennedy. from the affirmative-action program the same one that joey digest this prior of of deliberation so it is not clear. so this is why there would not be quite as much blood spilled over the justice scalia seat because for the moment justice kennedy has won a bit further than they have in previous years from somebody other than kennedy to scale back. >> to the surprise of many what do you attribute that to? >> if i was being obnoxious i would say common sense. but i don't know and that would hate to speculate. at the constitutional law professor and as late "casablanca" he blows with the wind. but i do wonder if the specter of a trump in presidency might further push him to be especially thoughtful and careful as recently as six or eight months ago. >> you have the grand unified theory one? >> and i don't dispute that justice kennedy has moved even further left as a statement in recent years but we saw the genesis of this back in 1992 to define the concept of the meeting or the mystery of the universe with this fortune cookie a consistently lack of rigor that it is reactive of how those institutions of government are working. that is why the supreme court was selective and with that guantanamo military commission to step back. and it is crazy to speculate that to suggest that they could indeed the more individual rights question invest similar coalition could re-emerge so a degree of the consensus the next nomination will not change the world. so which ones might those be? and those that are not 100 percent reliable justice ginsberg is 83 justice byron is 78. into have a mind the senate of 52 republicans and 48 democrats, it is likely to be securely in republican hands after the 2018 elections, 25 of the 33 seats up for election are currently held by low level democrats or first term democrats. food knows what might happen but the point is if it is reasonable not what happens over the next two years but the next four. in with the vacancies of that period. >> if it arises voluntarily or involuntarily and with the justices stepping down it might be perfectly happy especially if he is confident to share with his commitments. and then to leave by choice. >> so to test the proposition that authority diminishes when they do leave voluntarily they make an effort to leave under a president who shares their world view isn't that putting a political motive to the court quite. >> that is to the justice. they cannot be beholden to the political process so are their politics behind decisions? yes. so filleted dominate the seats? so those two things with the court of legitimacy so that the reason why to a particular president corrects that is when we get into trouble. >> so with the up process of politics? >> or by a blocking those that would transform the core. is used to be the case to but politicians on the supreme court. and what has broken down over the last two decades but there is some understanding in the lead to the concerns. >> gamble of law professors. and that is material for the point. >> when i was general counsel steven briar was confirmed. >> forget that ammunition is from the chief justice rehnquist. >> and to understand the history over the last three decades so who's controlling the senate? and that explains 90%. >> so with the recent democratic party so for them to be confirmed by the senate? >> so i don't know if we can say if it is of a giant. [laughter] it is right politics will always have with degree of what has happened over the last 10 months but what is different and again that the obama white house counsel to recommend exactly is this same court. soleil is that baked into the unprocessed? still makes so let's take as argument that whenever there is any divided subject the right answer to actual conflict is an action because that is the natural extension. >> how was it not? and then he knows of what he speaks. of the lessons that we should take away and this is even before he was nominated . there is no principle it is all about power. so then having conversations like this. and how you look of soleil and control power. >> that looks eyeglass 10 months have indicated why do we have the supreme court? imagine where one of the three oldest like ginsberg or kennedy or prior -- or justice breyer is replaced by at donald trump nominee other then chief justice roberts is put into the swing seat. and what is under pressure. >> of course, that depends of what they are that his days case that needs to go is roe v. wade and the matter and what it is that is on the firing line. but there may be other cases as well so to solvay over a the prospect of a liberal supreme court and they were wrong the moment that it was decided i don't think conservatives have a long list like that. and i think what you will see is an effort on the part to work these things out. so the conservatives divide on a host of cases. but yields easy answers. there are difficult questions but was it is curious the liberal justices are always together. and labatt conspiracy -- with that conspiracy they don't see separate opinions from of left. not because they endorse that rationale. >> >> so talk about when they disagreed. >> and he writes that concurrence to overrule that president. >> so your counter example is a disagreement? >> in there is the sharp divide but it is more complex and the conservatives always do that. the case where a day are to the bottom line question? >> so that is the case? >> for better or worse and of those pending cases so what do you thank you have in mind? if they are military combat and to be tried sticky made clear his line. >> pet leaving that aside with historical record it is critical but the larger point is the underlying question. >> so do you agree with one vacancy away quick. >> i have heard that story before that it would be automatically overruled there are a couple of nominations that did not work out that way in the '90s. >> alison has ben learned in the effort, to have a stealth conservative on the court with the senate democratic majority. it carries a law of weight but is actually right that for years people say he goes to overturn roe v wade and that has not happened but i am quite aware of that but right now you have a much more sophisticated nomination of period myers there are all sorts of reasons that explain this trust us we know what we are doing that is not they will not accept any more and with john roberts to be the swing vote this is very different from where we are today. i have faith in the chief justice with the separation of powers in rehab different views so we think would have a law of confidence with chief justice roberts and those to limit the rules of the courts and those editing the court has and those under the most with administrative law there is up possibility of a paradigm shift with much less deference given. >> that might suggest the court could keep uh trans gender case we will see what happens. >> but president-elect trump said even though it is hard to reconcile the supreme court he said that roe v wade needs to be overturned so it does seem that i've not sure that i follow that. >> so the law professor basically made that same line of division of donald trump. that different people can have different understandings of what it is settled or not. and the office of the joint opinion they said they went call an international division that did not work out. with of controversy of the status of abortion remains very heated. but i believe the of wrong precedent could be seen around the world. but the court has the ability with that understanding of marriage to deny that biological right -- reality and it is also true that same-sex marriage has the enduring impact that will affect their perceptions in a way that is not comparable to kill the unborn. >> and then i vehemently disagree. >> >> and again i am simply explaining why it is conceivable of donald trump to argue the point of view. >> also referring to the us star a decisive us -- stare decisis to feel that is with the supreme court. and it is the most pro-abortion decision. and it is a similar mood that is so wrong decided. but it is an effort by donald trump to draw a different line from what he was trying to draw up. >> but you think it would be the lowercase not the new work case where. >> but i think touching on of political reality so i do is think abortion is a hot-button issue through discourse and that has nothing to do with the constitution. >> yesterday's t6 gave a speech at the federalist society that he thought to be agenda setting for what supreme court should be looking at in the interest of the court dominated by the justices might want to address. but he seems to think that first amendment values are under attack. . . which is to say after a second trump nomination might take a different view of things. >> well yes i might well. i think we are seeing faultlines that he perceived. i think these are some issues that are very divisive and the more conservatives you have on the court the more likely to get a consensus contrary to the courthouse. >> even before the last 10 months, the first amendment was very entrenched in and not obvious flashpoint for the roberts court. we have seen a number of cases where the court was not fighting for it and was invested in integrating the first amendment against legislation like the animal cruelty laws in the stephen's case come the continuing effort by congress to get legislatures to legislate around child pornography so if the question is speech it's not obvious to me that more nominees of the ilk of trump or samuel alito will move the needle that radically but the other side is religion. i think that is where there is a real potential ground shift in a court where john roberts is the center seat and where i think the missouri case of the courthouse this term is a very small and modest flashpoint compared to the tension between the -- so i think that could be a very big sensitive topic in the coming years. >> we will turn to your questions in just a second. let me ask one more follow-up question along those lines. so we talked about the eight-member court in the number of times it was deadlocked and not a particularly large number but they did issue some quite muddled decisions and one of them -- well even by their standards and i'm thinking in particular of the case sometimes called the rules court case where there was a clash between the regulations under the affordable care act guaranteeing free gift coverage to women and religiously-based groups objecting to that on religious grounds and the court said why don't you guys go and figure that out? it struck the lack of family court mediator might do in an established democracy. what becomes of those kinds of clashes even this year and next year? >> well in terms of the obamacare regulations i would hope that those controversies or crew quickly mooted. it's hard to see it in any other way but i would think that in relatively quick order the new administration would eliminate the requirement of listing the source of the conflict. >> and i'm going to be fascinated have the trump administration handles the aca. i don't think it will be as easy as candidate trump but it would be and i think even if they find a way around the dispute over the exception for religious non-profits there will be other litigation. i don't think the supreme court is in the last of the aca. >> agreed. this has been a lively discussion, very easy to moderate. but we'd love to get some questions from all of you. here comes the microphone back there. >> i'd like to hear your opinion on several retired supreme court justices that are out there and confirmed. would the president have the chance to actively take the bench again and but that require the senate to take any action just to hear your thoughts on that. >> we have i guess three justices now who have hired, i forget now the specific, they are still kind of senior status. they are still able to say this lower court judges justice o'connor and justice souter. no they cannot be redesignated as supreme court justices. they resign the office and that office is filled so you'd have to go through the whole process again. >> at the risk of being -- for a moment i do think congress could by statute provide that in the event of a lack of a full bench a retired sort of statutorily retired supreme court justice by designation to provide which is how number of supreme court's filled open seats either with retired or lower court judges. i don't think they would have to be reconfirmed from the post of retired justice. congress would have to authorize them to do it. >> do you think congress could do that with respect to already retired justices or would that change be effective only with respect to those appointed to the office of justice later on? >> imagine the constitutional argument and that constitutional arguments differing in those two cases. my own personal view is that would be within congress's power to still provide it but i think we agree that this is a holy academic question. it is true that among the many reforms that have been discussed in the supreme court having nothing to do with politics at the moment one of the objectives has been four cases that actually been in recusal providing mechanism for someone to provide a vote. i think that's a conversation worth having although not right now because of the political impossibility. >> you would want to do it behind the veil of ignorance or something because all three of the potential, all three of the retirees are moderate to left. i've also heard supreme court justices say in private at the same the constitution there shall be one supreme court in this sounds like it would be different iterations of the supreme court. >> maybe. it's the same debate about whether the court could be allowed to -- the court actually ask for one justice. when we have emergency applications for so-called data docket so the common view was not open and shut on this question but i think there's more room than we might think in a different world in a different time. >> other questions? yes, please. >> hi. this has been beyond fascinating and stimulating. it seems to me that the lobby is the same concerns we have with the deadlock and who has the power with judicial nominations for the circuit court and the justice court. do you think a beer for presidency or a fourth-year would have no justices have all confirmed? >> of course in. that could happen and that hasn't happened but there has been a slowdown in the last year of the president's term and thus they indicated earlier only with real consensus picks or surrenders getting confirmed especially after some point in the late spring or early summer. >> i'd do think it's an election-year mentality and is not limited to judicial nominations. the exact argument that majority leader for connell would not consider passing a use of force authorization for isis even though there's obviously a rich debate on that question. and you know this separation of powers worries about a world in which ordinary -- are suspended by default because in an election year opposed to the amuf case it was not. there's a larger conversation that hopefully we will keep having about why the eighth year but two two-term president should be any different and not just judicial nominations and i worry when congress passes last legislation and does less work in the eighth year for presidency might feel duty bound to exercise their powers without congress and to thereby actually arrogate power that might be in health and long-term. >> if we could have a president in his or her eighth year of office hasn't lost the senate and the house it would be easier. >> yes or no. i don't think this is the last time we'll have a president in his fourth or eighth year that has a congress in the way that the political process has worked historically. presidents lose even midterms. does that mean that president should have a year and a half to govern and the rest are just hope for the best? i'm a little more naïvely optimistic. >> might not the constitutional structures suggest the political branches can be held politically accountable by the voters who at least in theory might have been unhappy about the senate republican strategy? i would love to hear your views but it doesn't seem to me the republicans paid a political price for what at the outs he dashed outside seemed seen by bold and controversial strategy. >> i can speak from experience that i have with acquaintances who voted for donald trump so we because of the supreme court and had that not been opened to them they may not have voted or voted for somebody else. >> a permanent benefit. >> indeed but that's inevitable. i think that's natural and this is why mitch mcconnell is disconnected by conservatives for holding his ground and again i just want try come if we try to take the long view which is something we become allergic to doing this down the long view is less disposed towards obstructionism at in a policy insofar as. >> is seems that the selection has dispelled any fear of obstruction going forward so maybe it's good. >> if chuck schumer does come out and say i'm going going to did not give consent for every single thing that happens in the senate and why my going to do it? not because i've concerned about policies but because it's fair play. >> while you criticize that? >> there are sorts of political constraints on how senators acting youth seem to be operating in this realm of logic divorce from political reality. it's a good thing the framers understood that of course there will be political pressures on senators and representatives and they are shaped by it. senator schumer is not going to do that or he will pay the price for a pithy decided you want to take that gamble bunnies ready to face the voters. i've made clear from the beginning that is perfectly fine for folks to offer criticisms and whether or not i agree with them of what republicans did on the garland's nomination. i have spent a lot of time criticizing law professors and others who claim that there is some sort of constitutional duty on the part of the senate. folks making the argument that i don't think they can -- given their past record on things actually believe and does not pass the laugh test project never criticize anyone for making political arguments against the republican point. that's exactly what we have ought to be debating in the political realm. what is the responsible course of conduct and what isn't? you indicated earlier that you thought if i heard you correctly the democrats would have been rewarded if they had taken the same course of conduct and of course i think democrats would have been forced to take the same course that but they might well a bin punished for doing so. what we have in this election is opportunity for the people to speak their voices and i think that's a good thing. >> other questions? right here. >> hi. in the event of two trump nominees on the court if he could talk a little bit more, those of you about this hypothetical paradigm shift in regards to administrative law and sort of put them that are the corollary i'm envisioning may be a scenario where president trump wants to push through certain initiatives on immigration policy that congress isn't supportive of and how this hypothetical court will respond to certain executive orders involving that type of an issue? >> look i agree with what steve had to say earlier about possible changes over the longer term in administrative law. i think it's very difficult to discern with respect to any of the candidates on the list and where they will be on these complicated administrative law issues. i do have every hope and i think every confidence that none of these folks would change their views to accommodate a particular president's views on a particular issue. if anything chief justice roberts has been critical of the courts more deferential administrative law questions. there is a tension between president trump who wants to wield his executive power and a court that is nervous about -- i think it would be a very easy consensus with the democrat appointed on the court to use constraints by been certified to reign in perceived access by president trump and that's one area where we could see it ideologic way. >> i want to go back to the separation of powers for a minute. you said he would not be bothered if the senate extended the blockade passed in 2019. do you believe the senate theoretically doesn't have to act on any nominee ever and if so how does that not conflict with article iii that there shall be a supreme court? >> that's an interesting question. i don't think you would present a constitutional crisis over an extended period of time. does the president have any obligation to nominate a supreme court justice, let me affect question. the clause says the president shall nominate with the advisor consent of the senate shall appoint a whole range of officers. for some reason that for show is imposing an application to nominate folks for all these vacancies. that's a kasem president obama has been grossly in violation of the constitutional duty by failing to -- it's far more plausible as one scholar argues to understand the show clause from setting up out government operates in the first place and explained who shall nominate? the president, not the senate. look, if president washington had never nominated anyone to the supreme court and the supreme court had never gotten up and running i think that would the one question that could be very difficult to defend. where we are now i don't think a president would have an altercation to make a nomination. i don't think the senate would have an outfit asian to confirm any particular nominee. the president generally speaking doesn't have an incentive to nominate to fill vacancies so the very fact we have that incentive makes a gratuitous to be obligatory. >> federal law currently provides that for purposes of the supreme court a quorum of justices and it's an interesting question whether in a scenario in which the number of actual justices fell below six. the justices by themselves believe that was unconstitutional. i will say i think they are question highlights something i was trying to get back at the beginning of session which is i think it is possible that you could have a constitutional prerogative exercised in this case not exercised in a way that actually violates constitutional norms. and the answer at the end of the day is because constitutional violation in someone could walk into the court the answers to constitutional crisis because two institutions try to stick to their perceived understanding of their own power having engaged in digital destruction. that is not a lawsuit but it's a basis for the destruction of the supreme court as a power and we are not there. >> imagine if a elena kagan was the last just justice they could be confirmed to the supreme court because the politics of congress. >> unfortunately we have these things called elections to make sure that never happens. >> we also had an election in 2012 and 2014 that should have had consequences that apparently didn't matter either. >> my point is i think we are in agreement steve and that at some point under certain hypotheticals one could envision a point where we say yes there's a constitutional crisis in and the court being able to act. it's nonetheless a crisis. again our system of elections conditions senators and presidents not to act in such a way to provoke back and we are so far from that that i think the hypotheticals should understand where we are. >> i think folks looking for elections last week the victory for mitch mcconnell and where these attacks can be awarded in demographic patterns have changed in a way where one party is going to be assured relative objectivity for some period of time i can see this is a powerful and useful precedent. the bottom line here is that divided government will be paralyzed. >> let me illustrate why i think that's overstated. the argument that senate republicans made is let's have the election come. let's keep this open forever. c-net let's keep it open until 2018 midterm? >> i think it's highly implausible. one stray comment by one senator. i think you are misstating what they said. if anyone took a position certainly there is no consensus among republican senators and it's hard for me to imagine knowing the politics that anyone would say okay no matter who president-elect hillary nominates to the court we will not have hearings and we will not have up or down votes. even if they say that it's a game of chicken. it's a game of negotiation. this is politics. don't take these statements as though this is something that is iron cast and they are not going to budge from that and not pay a political price. >> other questions? we have a few minutes left. we have answered everything. >> we are on the precipice of an abyss. >> this is in sight. >> mike stern, thank you for this very interesting discussion. it seems to me that the two of you agree on one thing which is that we have a serious problem with the eroding distinction between law and politics. the only question now i guess is which one of you will give them so we can have that problem? b my question is since i don't think that's going to happen is there any way to solve this problem of reestablishing, which i agree with you is a problem and i might tend to agree with one side more than the other for the cause of it but it seems to me we are probably not going to solve it through one side giving up so is there another way of addressing it? >> i think the underlying cause of this deep division over the role of the court, i said three weeks ago when i was pessimistic about what would happen in the elections that the only way this impasse gets resolved is for one side to crush the other and i was anticipating that my side would get crushed. the only way this ever gets resolved is when one side crushes the other. if steve wants us to and he should be cheering her liberal justices to retire and be replaced. and we have a majority for decades going forward. >> it is true i spent more times in the 10 day thinking about how the more horrible things are in the next four years the better the things are going to be that that -- and it does seem very real. i think that they are right, there are two possible ways we resolved the problem. one is that members of congress start acting like institutionally responsible citizens. that's not going to happen. i aspire to that happening. i is fired to world where an old episode the new democrat comes the house and says where are the republicans come any to meet the enemy and they say the republicans are the opposition. those days are gone. i aspire to those days and i wish we could get those days back, that would be nice. failing that the solution is to normalize the court nominations. i have not always been a fan but i've come around in the last year to proposals by folks like professor harrison who basic we has nine justices serving 18 year terms words just understood that every two years the president's going to be able to pursue a nomination which understands the senate confirms at least is is a sufficiently moderate nominee in that situation and therefore there is no gratuity of time on who dies when, and there is a stable process. that won't solve everything because of obstructionism but i think it would be harder to be obstructionist in a situation where there's an understanding as opposed to the fortuitousness it wouldn't be so be so to say it's election year so therefore we are going to stop. i will say i don't know that waiting for all to burn down is the right way to solve the problem. i think we -- it took the supreme court a long time to recover from the damage brought to its by the 1860s. the next crisis was fdr's court packing plan. i'm not sanguine about his prospects going forward. >> do you think hearing the proposal would require constitutional amendment? >> there's a debate among the crazy liberal law professors is added for for two. i will say i will align myself with the camp that would not require an amendment as long as you keep justices and their carrying out some kind of duty and receiving a salary for the rest of their nationalized. >> it can be applied to justices. >> i'm not sure about that but i will say it's not going to happen ever anyway. the weirdest thing about federal court the weirdest thing about teaching it as many of the most interesting questions never happen. that's a good thing and i think we are heading into a world than the -- laughing at any in the back. we should be happy with the fact that this never happened and i worry we are owing to be having more of these questions raise that have to be resolved now. >> is your view that crazy liberal law professors are a redundancy? >> there are some crazy conservator one. stu: . i do not include everyone. that is a restrep have -- restrictive, not redundant. i don't see how we ever get to adopting a proposal like the one steve recommends which i think has something to say for it as farsi is farsi and intended consequences of what that would be. >> i'm sorry to say we are at a time. this is the super lively discussion. please thank the panel. [applause] [inaudible conversations] we are asking students to participate in this year studentcam video documentary competition at telling us what is the most urgent issue for our next president donald trump and the incoming congress to address in 2017? are competition is open to all middle school and high school students grades six through 12. students can work alone or in a group of up to three to produce a five to seven minute documentary on the issue selected. a grant of $5000 will go to the student or team with the best of earl entry. $100,000 in cash prizes will be awarded and shared between 150 students in the t-3 teachers. this year's deadline is january 20, 2017. that's a migration day. for more information about the competition go to our web site studentcam.org. >> carnegie talked about the burning sun of chemical knowledge and settled he understood things from a scientific point of view, an engineering point of view whereas other people were still going on the seat-of-the-pants operations. >> i think by looking at some of the materials we have selected here that carnegie really had a love for learning and through this wonderful institution felt that this would be a way for the public to escape into another world. >> that was wasn't the long-haul of that story is that black people and prosper in this ohio river valley became part of a new industrial environment that really took off in the period after the civil war. >> these are really great insight into just how self-conscious andy warhol actually was pretty think a lot of people have a vision of him being really cool and aloof and he was definitely cool and aloof but it came with a lot of work. >> we were with congressman elect paul mitchell. begins on the mexican border from mcallen to northeast san antonio. >> a district if president-elect trump builds a wall would be impacted by those efforts. can you talk about the border issues in the 15th district in what the state of the barrier between united states and mexico is right now? >> well the wall won't work. if it did i would be for it but it doesn't. we have done a good job securing our border particularly in texas the state has done a good job and we have state troopers throughout our border region. security is much more controlled than people imagine. obviously we need to continue to improve it and make it better but obviously a border wall sounds good for campaign rhetoric but in terms of reality i would advise donald trump to come down and see things for himself. i think you might have a different point of view. >> as a democrat would but advisor you giving to the democratic leadership in congress specifically on the immigration and border security issue especially now that democrats are in the minority in both chambers? >> we need nine common ground with the other side and i'm here to try to make america better in move our region forward. we have an immigration policy that does the work. the policy that's in place now and has divided families. we have parents and children living in different countries, it's broken families and is not who we are as a country or region so it's something we need to continue to work on. >> what do you do before running for congress? >> i am new to politics. >> and immigration cases that you have worked on or did any of your legal issues touch on those? >> my cases ended up being immigration issues because a lot of people have represented that immigration issues even though i mostly represent civil cases. it was the time he couldn't get ahold of a family member or one of the relatives or families because of the immigration policies in place. many times i've had to travel across the border to get documents signed because folks who had legal actions or beneficiaries in the united states couldn't come across in than a simple document. these were folks that needed to come and take your business. >> what is that process like traveling across the border? describe that for those who don't live on the border. spent traveling across the border has been a tradition for hundreds of years in texas and we do a lot of commerce and will they or a large trading partner in a very important part of our community. i will say this it has become more dangerous and we need to engage the government of mexico across our border to make it safer than it has been before. seven years ago and prior was a lot safer than it is today. i will concede that but in terms of security in south texas we are one of the safest communities in the state and i feel comfortable there. think people who come to visit what a the same thing. >> can you tell us about your committee assignments in congress? >> we start at the top at appropriations. my predecessor was on financial services and he will leave the void after he is gone. transportation is a big issue. i'm very interested in trying to implement a fast rail from san antonio to the valley of the border and into monterrey mexico. those are some important things. agriculture is huge so these are all committee assignments that i'm asking for hopefully will be fortunate trades congressman elect thank you for your time. paul mitchell joins us from michigan's tenth district a republican serving in that seat and congressman candice miller c who is running during titian and the administration committee. as i give you extra insight into the orientation process?ss >> i'm not sure about that but there will be big shoes to fill as you mentioned that she's been here for 14 years and has been a leader in congress of their high expectations on the part of my district. i spent 35 years in work force development.needed to retr the last 27 years ceo and retired in 2011 i decided it was time to something more to serve. >> haditha about going from seau for a company where you make the decisions to now being in thishi legislative body one of quarter and 35? >> i believe that good ceo worked with the people around him works with the people to get a consensus on the best ideas.ts i think the same approach works in congress. the same approach s for congress. see if we can get a consensus that moves the ball forward. i learned there are few perfect solutions. but no decision is a decision. make a decision. . >> as you go through the orientation process, what sticks out to you? >> i think listening to the speaker, kevin mccarthy, talking about the responsibility we have. i got a text message from kevin about recognizing that serving in congress is a rare opportunity and a huge opportunity. very few people get to do this. and to root -- and to treat that with respect and honor. >> there is a debate about how long members of congress should stay in d.c. or if they shared get a house in the city. how are you dealing with that? , two children,y still in school. so i will go back and forth. week all be here about a month, so they can get some experience in washington. but my home is in michigan. we have 50 acres of chickens and goats. i cannot just moved to washington. that is not represent the district well. >> there are long-time members who think washington experience is the way you build contestants -- consensus, get to know fellow representatives. >> i think there can be both. dinners will be with members. it is not as if you neglect those. you just remember homebase is home base. the people who elected me are from michigan. my family will be there. i will be sure not to lose track of that. sometimes it can be overwhelming . >> what committees do you want to work on? >> as you know, that is not a decision you make. i hope to work on transportation and infrastructure. the other is education and workforce. i spent my entire career doing that. that is what i hope to congress, thank you very much. >> "washington journal" continues. now isoining us republican congressman tom cole of oklahoma, a member of the appropriations and budget committees, as well as deputy whip. he is here to talk about the election of donald trump and key issues in the lame-duck session and where the gop stands to expand next congress. thank you for joining us. guest: great to be here. before we get to our discussion and measures and and the budget, some breaking news here. has beenan mike pompeo tapped as cia director. he reportedly accepted that post . as well as senator jeff sessions being chosen at the next attorney general. this being reported by the "washington post." what is your reaction? .uest: excellent i know jeff well. background foric this. i can never quite remember, but he was either number one in is graduating class at west point and number two at harvard, but it may have been the other way around. he is a successful business person in wichita and sits on the intelligence committee now in the house. i cannot think of anyone with a better background. senator sessions i have known for a lot of years. not as well as mike, because we serving thein -- same body. he was the first senator to endorse president-elect trump. i am sure that was helpful in getting his name to the top. but again, this is a guy with a lifelong career in law enforcement. i have every reason to believe he will do a good job. yesterday, vice president-elect mike pence was meeting with members of congress. what was said during that meeting? guest: it was a wonderful meeting. years in the2 house. i served 10 of those years with him. how upbeat ite was. particularly, a sweet moment for speaker ryan. president-elect pence were very close, personal friends. so we had a very good discussion. not a lot of specifics. but just the nature and wished -- in which the tradition would operate. he introduced key staffers, people we all knew, when he was in the united states congress. we had a round of good meetings. he is a known thing here -- figure. trump is not well known by a lot of members. he had not been active in republican politics before. but mike has. not only is just a member, but he was chair of our conference, the fourth ranking position in our leadership. he was also a very successful governor in indiana. and interestingly did not endorse mr. cruz but -- did not endorse mr. tromp, but mr. cruz. i like the fact that trump reached for someone who had not been for him in the beginning. but we know that mike knows the hill, knows the players on the hill on both sides. he will probably be a very consequential vice president in terms of the president's domestic policy. host: had he spoke with the president-elect? guest: i have not. no need for him to call me. i like the job i have. [laughter] host: moving on, do you have any concerns about steve bannon? do not know him. i just operate by the assumption any president deserves to pick their own staff. at the end of the day, the tone of any administration is set by the president. that has been true with every presidency i have seen. i do not worry about it much. it will work out. if this is somebody the president-elect thinks will help him govern subtly -- successfully. during the meeting with mike pence, did he discuss any of his priorities? did you tell them any of your legislative priorities? well, his priorities are whatever the president-elect's priorities are. aggressive 100 and 200 days, which is being put into discussion with the incoming administration. it is easy to see, there is no question there will be major tax legislation. to repeal andfort replace obama. i expect there will probably be --uccessful effort to list list the sequester on american military. the it is early days. you have to give the legislative leadership and the leadership of the new administration, most of which is still yet to be determined, an opportunity to lay out their plans. we did talk about the lame-duck and what we want to converse there, though. host: -- and what we want to accomplish there, though. host: we are talking with republican congressman tom cole. bernard calling in from north carolina on our republican line. good morning. caller: good morning. the last eight years -- hello? guest: we lost you there for a second. caller: yes. glad to get this opportunity to speak to you. my problem the last eight years is we have had, the truck drivers, have not been paid. we have been paid, but even paid now, we are getting the rate from the 1970's. and as far as the cost of kids some of thelege, interest rates now -- they pay a certain amount? and then parents get the bill and have to pay it all. or double and a half. what are the plans for these? wages forterms for truck drivers, i cannot give you anything specific. i do know there will be an effort across the board to regular industries and make sure we are not making it more difficult for people to be productive. in terms of college, it is a problem. i think you put your finger on something extremely difficult. when you see young people graduating and owing tens of thousands of dollars, you wonder how they will ever get that paid off and be able to move forward with their own lives. part of that is driven -- most stateis driven at the level. colleges and universities are largely financed i state governments. but there is a big federal proponent in we have tried to steadily increase pell grants, scholarships for students under a certain income level. but there is a problem, like we see with medical rates. college tuition has been growing at around twice the rate of inflation. i suspect you will see efforts to change the pell grant program, make sure the interest rates, down. we used to do a lot of this privately. we could've had a lower interest rate, had we remain that way. we changed it at the beginning of the obama years. again, i think it will get a long, hard look. let's talk about the republican caucus, the freedom caucus and other republican members. in the "new york times," there was a piece that said donald s victory could defend the gop caucus. she writes the daily errors aftermath of donald j. trump's the divide. erased republicans are now rushing to lists.f their wish and you said "it has been roses and sunshine." [laughter] now reporters like me have written about the divisions between the freedom caucus and speaker rise in -- and speaker ryan paid has i really been erased? guest: maybe not a race but certainly softened. it will be a different world for most members. only about 60 of the 240 republican members of congress have ever served with a republican president and republican senate. it will frankly be easier to unify behind the agenda. these are still independent and principled members, but i think they will like a lot of what is there, and a lot of frustration in the caucus has been when we get things to the president's desk, like obamacare's the keystone pipeline, they get vetoed. now they will be signed. but we still have to get through the senate, which will be challenging, given the nature and rules of the senate. i think people know a lot rides on president trump being successful. i think there is a strong desire to make sure he is. that does not mean there will not be differences, but for the most part, at least in the opening session of congress, probably the president, like most presidents before him, can rely on unified support from his party. host: we are joined by congressman tom cole. viewers can join the conversation. democrats, (202) 748-8000. republicans, (202) 748-8001. independents, (202) 748-8002. on our independent line now, we have jim from maine. .aller: good morning just one comment. i am glad to see donald trump unorthodoxself and cabinet so far. two things i would like you to comment on. one is donald trump, moving forward with domestic spending, that will be hard for some republicans to get behind, especially talking about a $1 trillion if a structure -- infrastructure plan. back militaryg operations overseas. the other thing is regarding the press, with what was revealed with wikileaks regarding 70 members of the press being an extension of the political campaign, that was scary. these networks became an extension of the clinton campaign. that was alarming. it does not say much to being the free press and being the government watchdog. how can you trust the press nowadays when these people are writing stories slanted towards one particular person? host: let's let the congressman respond. guest: infrastructure, i think you make an important point. we have seen proposals of maybe $1 trillion worth of spending over a decade. there is no question the country could use that kind of investment, but the problem is paying for it. inre is about $2 trillion profits stranded overseas that american companies will not bring back, because they have been taxed over there. and when they come home, they are fully taxed over here. and we have a tax code that encourages major companies to the united states. that has to change. that is something republicans and democrats have talked about together. you may actually get bipartisanship in that. some of that revenue could be used in a public-private infrastructure bank to finance some of these needs. the question you raised about the press is interesting, but the press is not monolithic. while you may have individual reporters or commentators that have particular points of view, prettyrience is they are skeptical of everybody. certainly of anyone with power. it has served us pretty well. i would feel better if there was more ideological diversity, if you will, in the press. because it is pretty evident that it slants pretty liberal. by a margin of eight to one, according to some surveys, that journalists favored secretary clinton. 88% of the american people thought the coverage was unfair, unfairly skewed towards her. with thatoters agreed conservative critique. there's always some introspection after these elections. i would hope there is some introspection in the press as well. but at the end of the day, you still have the opportunity to express your own points of view. i do not think we lack in diverse city in commentary. but individual organs probably need to think we never had any in thevailing coverage newspaper or their own network. that is sometimes by design, we have networks that leaned ideologically, but it is always wise to have a dissenting point of view or check or something else. that is something the press has to puzzle through itself. host: let's talk about the spending bill. a stopgap measure is set to be taken up by congress instead of an omnibus, according to bloomberg. house appropriations committee ambers had fought to complete current year package and preserve the work already done on getting bipartisan agreements for spending preferences. they also argued that leaving funding decisions unresolved would needlessly add to a large 's firstitem for trump 100 days. into next yearay will reignite be battle in congress over whether or not to cut congressional areas spending -- congressional spending by $30 billion. are you concerned about potential problems with putting off the discussion of an omnibus? guest: i am very concerned. this is one where i was on the losing side of the debate, to be honest. we could and should finish up all of our work and provide stability for the incoming administration to write the budget for the following year, which it is required to do by the middle of february. now, it will be impossible. it should focus on getting its people in place, then have a supreme court fight, a debt ceiling issue pop up in march. and getting spending done. --would have been a good day good thing. i disagree with the decision, but i except that it was made. because i think this was preeminently the call of whoever be.president-elect would if secretary clinton did not want to finish up things and tod her party, "i want you stall it," it would have been. that would have been her right. i would have argued for either her or mr. trump -- you have plenty on your plate, and i promise you this will be more difficult than you think. we were pretty close. it was actually much easier to pass an omnibus this year. a lot of these policy riders you referred to really had to do with efforts to block executive order's or rules by the current administration. now.is all moved -- moot so you really just have spending decisions to make. providing the government with certainty is important. people in these specific agencies need to know what their budget is. there are some things you cannot do when you are operating on a continuing resolution as opposed -- and a budget that has been enacted in the past. we will put together -- and that process is already underway -- a bill that would take us through march 31. it will have an always -- anomalies, where you make adjustments to try to not adversely impact the military, to make sure agencies can make timely and responsible decisions. but again, that is a decision the incoming administration made. they deserve a chance to try to get it done their way. they will be complex and make things more difficult. host: we are joined by .. house administration. catherine is calling in from taxes on our republican line. good morning. caller: good morning. host: go ahead. caller: i have three things and it quick question to say. first, i did not vote for obama, i votedhe was black, for him because he would make changes in the immigration law. that was never addressed. he dropped the ball on so many things. it was ridiculou >> black woman in amer one. >> he does it pay taxes but i think these illegalt immigrants are breaking our country they're taking all of our housing and federal and social and then they take the money to send back to mexico. that is more than trump can never do because there are no laws put in place to stop them. so what he is doing he us to start somewhere he is not a perfect president just as obama was not caught and iot am a black woman but obama dropped the ball so in your opinion if you back trump went the way some of them do with the illegal immigration issues quick. >> i think that will be onese of the top agenda items. and honestly that republicans and democrats can agree on. on that is the issue of everybody wants a secure border.n but we need one comprehensive bill i don't possible.t was ever possible so you take those areas that you agree in make process -- progress like on border security so i think once they think their borders are sick care to have us sayow longe they're usually pretty generous. we take more legal immigrants almost every country so which isn't as if w we're not willing if they want to work harder become part of in the system but you just cannot have everybody, willy-nilly with no security check your frankly no thought of our own citizens with the labor market that is legitimate things to secure the border they have never worried much because ithe of problem . but we have to president sandro george bush and president obama that would assigned anything they would have passed with the bush administration but nothing was ever passed. in those that promised plan when obama was redding said i will have the immigration bill of the floor and now in the eighth year the presidency in december. >> it is suggested never saw that they have obamacare to o the floor with a dodd/franks thy but forgive me if i question how sincere that desire was he said and he will and he better as that has been a hallmark c. will see border security. >> will he be able to workth in a bipartisan way quick. >> with barter security if the kiki and idol think my friends on the democratic side are interested in or been borders the they want to use that as a hook to a pathway to citizenship so far with his rhetoric it has then pretty tempered talk about the security piece butec if you are a record we don't want you to stay so start with those eyes agree then we can sort to the other issues out over time. >> how redoing? >> i want it to ask you about doing away with obamacare.nt could you please tell the american people the a charge number that you will replace obamacare with. don't give us the rhetoricple but let of moderator pull that up and let the american people read. >> that is a great question we don't have one signed but i would go to a better way .com that lays out the republican house position now lays out repealed and replaced but the highlights there is a couple ofth elements and obamacare that should be kept. one was the ability of people to keep children through 26 years of age.ive ame that another bill is called the indian health care improvement act nothing to do with the obamacare was very bipartisan. in with those populations to vote for the bill so that should be preserved for those things it would be added is the associated insth care plan. with their right to sell insurance across state borders right now you're limited i would argue medical liability reform and have a bite to see you all lot more in the way of health care savings plans to let those individuals have a bigger role to dictate their health care plan.ons is and with those pre-existing conditions is a big issue and one of the republican proposals is a high-risk pool funded largely from the government. they could be compensated at don't pretend to be an expert in health care i am not on the ways and means or energy your commerce but it is a key republican promisehave frankly none of them never voted for obamacare. so repealing is not a big surprise but a replacement could take a while but the p basic principles are out on the internet and easy to find. >>host: let's talk about president-elect trump withd his plans with today "usa today." with the federal reserve chared janet yellen warned congress that the government spending to the proposal was swelling of the national debt. that the trump victory has altered the plan so those economic policies could force the central bank to reassess the outlook that those outlays would drive up inflation as they would attract a limited pool of workers to keep in mind and national debt and 77 percent of growth so there isn't lot y of fiscal space are you concerned about the price tag? >> with these same concerns of the president to drive the deficit at 1. 1.$4 trillion. we would cut back roughly in half in the last five years.asi but the basic point is true we are living in a low inflationary era and president obama has the benefit of the complaint said to keep interest rates low that would now ask the seriousness of the deficit because he could do that with cheap money. simply because the cost of money goes up it will roughly double. and with uh trump campaign with the administration with medicaid medicare social security 60 percent of all federal spending in the throne in the interest on the debt with food stamps your 70%. if you don't have plans to reform to have any serious deficit reduction plan. se but after so security what they did with the tip o'neill to set up a commission of whoever is in doubt white house read it in nova that would be but you have to have nine votes to have that reform plan. they have spent developed but congress never had the nerve to pass that legislation and congress would have to go up and down with no amendments within 60 days. unique op index president of have a unique opportunity for social security.an and they are living longer than any previous generation. but it does mean they have to change the of funding mechanism. that is what is bankrupting us government. i agree there is a waste of government the big thing is the entitlement programs and this administration refuses to address and frankly the next one will have to or you will run for reelection four years with a rising deficit. >> as president for responsible federal budgetcretay on this show who was undersecretary clinton and now under the president-elect plan to have a bigger impact she says there is a real risk with an onslaught of deficit financing goodies with tax cut and infrastructure spending call in the name of stimulus which in reality will massively ballooned the debt. >> know her very well and i think very highly of it to make a contribution and to be fair this is all donaldld trump's fall. and and take it that 10 or $20 billion and then to put dollars wasn that. distil way too high 1. didn't $4 trillion of a democratic congress. but the point to say how big-- are here again. unless we move ahead to address entitlements spending then i think some of these sayings to cut back dangerous lee on defense.ay to t so the best way to do that is through economic growth because we're not going very fast we have to do with entitlements and the republican congress fails to do that then the criticisms are fair. >> calling from big prairie ohio on the republican line.e. >> caller: thanks for your time. i have two questions. of that protection act that was introduced in the congress not to long ago and a wondered if you are familiar with that?we hav would that be brought up with a republican president rex and i understand you postpone the cadillac tax portion separately. but that is really what is hurting the deserting the insurance premium for the state of ohio as a hertz the ability with the state of ohio it cost millions of dollars in taxes that would be added to the budget. >> i am not familiar with the care and protection act honestly a probably will not be dealt with between now and the end of the year assuming congress stays on schedule so there is some important legislation with the resolution that is the effort to streamline biomedical research. to inject spending like a care for cancer and alzheimer's. five am probably to three other major pieces oflz legislation like a water resources development act is very bipartisan and very popular so in terms of of a cadillac tax, there will be an effort to postpone. so it is something that democrats oppose as well it was pretty bipartisan in a lot of labor unions with uh cadillac texas with the employers in states have h chosen to compensatesa taxa because that is a taxable benefit. to get more bang for theis black it is not right or wrong but probably a academic and frankly they are not either in if you do repeal obamacare with that they are run a deficit to figure out a way to replace the money that is built in either by lowering the of cost because of the additional revenue obviously everybody wants it to grow faster in the way of revenue the democratic line go-ahead >> caller:ant >> have a question and also was statement but with the democratic coalition but with the campaign finance so according to the sec 150,000 was paid over the course of a campaign to make number: negative america number one. with the super pac to directly coronate with what what they support. >> i am not familiar with that. this is the first i have heard of this. into violate the campaign laws sometimes happen is an attorney sometimes people get in trouble but not meaning to. i expect the actions to be from law-enforcement. >>host: wisconsin on the republican line good morning >> caller: thanks for taking my call.he will they hold to the rulees making with the administrative agencies until the next president greg. >> sometimes these agencies are within their right to do this. it isn't good practice to load up a bunch of rules to do this take balm for the next administration.ma white hoa and the obama whitehouse and we did pass legislation to repeal those rules that allows congress to go back any t 60 legislative days to e disapprove of the event is rationed that would be a problem so we are in a good position with a last-minute regulations but he has made it clear he will repeal a lot of the executive orders that were passed during the obama and attrition in congress will be cooperative with and in that effort. >>host: as a republicanurnal co. congress from oklahoma thanks for joining us today. joining us now is the executive director of democracy for america here to talk about the democratic party.whethe and whether they need to adjust the of messaging ando platform thank you so much for joining us. so speaking after the election that they can take some time what but then they need to regroup in recent data across the border sho people were in shock and what we see is a surge of interest to all get involved to stop the worst of of trump agenda and continuedfo to move forward on the back of the democratic agenda. w >>host: what is that moving forward? do they need to do the same autopsy that republicans did after they lost in 2012 to figure out where things went wrong quick. >> there should be like the clinton campaign the wayen they put this into a situation where the nominee was one of the least popular candidates we have ever had for president. that is important so how did we choose that how did they get there? but that settled think the message is broken when it was led by bernie sanders or elizabeth warren in, and inequality is the biggest issue of our time. without that trump could not use race or sex as some or is lawful be a to mobilize people against of democratic party to fight for real people instead of corporations and the rigid system we don't need to fix the message but fix the messengers in some cases so take a look at congress for a moment do you support him quick. >> what i support is so i went example -- excited but the dnc chair race we will have khanates to figure out who will lead the party for words so like there is a to repsion to go one. end if it is between him and nancy i would support nancy but for those other options the that is more reflective of the constituency that comes with at the end potentially could support someone else. >> and charles schumer is in the lead role in the chamber so what do you think about that decision? >> chuck is a complicated peter to represent new yorkk for years because his weaknesses are though way to represent big donors that is not good for democrats with the election results they lost patrick murphy and those that one are women of color like california and nevada and it is important to look to the future that we are winning by fighting wall street nonsupport in an so chuck schumer is not a fantastic choice but what is good is he listens to the people. he is movable when he is wrong he listens. a great example that he did not organize extensively against that. >> from the independent bernie sanders candidate for president for the democrats so let's take a look at what he said thursday when asked about the state of the democratic party. >> it is time for soul-searching within the democratic party. we admittances pretty clear that when you lose the white house in a campaign against a gentleman who live believe will enter the white house as the least populist candidate in the history of this country, when you loseus the senate and house and two-thirds of state governments or governors' chairs in the country, and 900 seats of legislatures around the country i think it is time for the democratic party to reassess whs what it stands for and where it wants to go. but at the end of the day the democratic party house to make a fundamentalac decision it goes back to the old song of which side are you want? -- all and? and it is impossible to be a candidate of corporate america is not possible to be a kennedy of the insurance companies or wall street to not take huge amounts of money from powerful special interest then to say i will champion the needs of the declining middle-class to fight for the needs of the working-class people. i don't think you can do that and you have to make a decision to which side you are on. so when the middle-class iss shrinking with moms who cannot afford child care millions are ripped off by the pharmaceutical industry the only major country on earth that don't give health care as a right not toil provide paid family medical leave with more income and wealth inequality than any other country for the democratic party to say wey will stand with the working families to take on the billionaire class you take on wall street we will take on the insurance companies. >>host: do think the democratic party is progressive enough? >> i think what he said is 100 percent correct. we cannot be the party of corporations and working people at the same time.e time. a big and starting back with the bill clinton presidency getting too close to corporations we have the opposition we will just workoo for the better corporations like starbucks instead of halliburton or lockheed martin but that problem is corporations are necessary but they don't need to parties to represent them in congress. real people need to have a party that fights for them when i was growing up of ed democratic party was working people and a republican party was for the rich incorporations that is when the democratic party is fighting a for the people so they have wages that they s can live off of and eat and pay their bills. that is the of party that wed used to me. >> and calling in on the democratic line. >> i wish people could remember in the '50s they were a very prosperous country. with far less income inequality. sixty-two exist at a 90% tax bracket. that the small top of the very very rich people was taxable at 90%. also the next big amount was taxed at 75%. and then it would break on down. behalf to remember and at and republicans win elections when they confuse and deceiving and razzle dazzle people. no more ignorant the voters are how more likely they would be to vote for republicans. >>host: let's give them a chance to respond. >>guest: i absolutely agree one of the problems in this country is the fact the middle-class and the pork share the overwhelming burden of tax dollars compared to the corporations and very rich if you have general electric not paying any taxes or super rich people like donald trump, it is no wonder we have a high deficit and question if we can find the programs like rebuilding schools or rose or pay for police and fire. they're all at risk of we don't have people paying their fair share we need to continue to look at the tax code to make sure we pulled the rich people and the middle-class to force them to p. to pay taxes because that is how we make of government work for everyone instead of the top 1 percent.in >> good morning on the republican line. >> good morning. i first comment is about hillary clinton. and glad she lost the election because of the muslim brotherhood organization the entire family is a member of the muslim brotherhood and they have access to all white house secret documents. that is 1.if the democratic party wants to win the next election any change their policies to go from the donald trump policies. >>guest: first of all, i am not sure that she is correct but the bottom line is ameritech is a big country can have a lot of people that have allowed the police i am confident she is committed to make the worldd and america a better place which is exactly what hillary clinton was fighting for but republicans of the future this is how we have across the board knows that took on wall street with working-class americans across the country of all ethnicities and when we fight for actual americans into c. illinois a also to lose in florida and in mint indiana because they are wall street shows in those 21. >> the voters that turned up in a big way as the democrats lost ability to connect with rural voters? and then to have that problem that personnel that top of your ticket to of trouble connecting with people of the art world community's. why was that blacks but the bottom line and it will be fighting for them. >> when i went to the polls in 2016 i noticed the lack of millenials, african-americans and hispanic americans. i in 2008 and 2012 there were all watch. this time i could count them on one hand. t i believe we lost the election because we cannot organize young african-americans and hispanics and millenials. i cannot get over that trump got more hispanic and american votes than mitt romney. how do you explain that? maybe instead of tim kane as a vice-presidential candidate we should've had one from california or goodyear is or clay from texas. these groups need an american on the ticket.panic lineup ticket. >> to the need more diversity? >>guest: absolutely. wins and isaak came from people of color across the country especially women here in washington state in the southern california both women of color. i think we absolutely need to look at and recognize they are reflective of the country to have day life experience in a way that cannot be done by the same old politics. but bernie sanders campaignwhate is one of the democratic establishment to sit down and shut up. at the end of the primary to invite them back to make them the nominee that is part of the establishment so a lot to the race of the dnc chair alas the candidates what will you do to rebuild the party? c clean house comment what will you do to have the reach of the entire party. hav and also up for that you were you supporting and why? but governor dean was a fantastic chair when he ledtastc to major victories but we did duh campaign we love howard dean but we're not taking a a position because what happened did in this primary is people in the back room in washington d.c.ed decided the nominee to push all other candidates out to say we don't want to a conversation and that is a problem. and were waiting to hear from our members who do they want to see the? and he is what he is running on before. and let's be honest he is younger of these overall experience that comes with that and here's the question that support hillary clinton q lead the party for word? and then to work for them very hard to put them in a special position even more viable. >>host: you are on with charles chamberlain. >> caller: i have a question about the republican party. but the constituents because some of the laws that areas passed because the interestng, i creates of problem a good example is the program in california because they take the job we from california because of the farmers produce because of that the government look the other g way to work on the field where before that they're happy to go back and that is pretty well. >>guest: i definitely think that to way to much of our politics is run by corporations that care more about the bottom line than the american people. that is what they should do that is evolving to make profit. they're not necessarily out there to do good although some of them are or should be but we cannot have corporations run the government and to often it feels like they run both parties and this is what i have said one of the problems is the have to step away from corporations across the board to be the party fighting for the people. this is part of the bernie sanders message that was so exciting he understood pharmaceutical companies should not decide our health care policy the tobacco industry should not be deciding what is appropriate for the fda.climat climate change should not be regulated by big oil in those who are interested in for racking but these decisions and those parties that defend them and interestingly enough that is what they thought they weree getting when they were supporting donald trump with that populist rhetoric that call on is somehow he wouldom not be owned little thing that is true disease uh corporation person himself does not pay taxes. slidell thing he is that person that was part of the message and the reason whynote that corporations have to much power in the democratic party to make sure that they can seek to for that working-class. >> with that lack of grass roots organizing with those democratic losses that republic that talks about the obama coalition is says upon his election organizing for america the grassroots- maintains our registry of 13 million e-mail supporters and have the financialf backing of these donors and incredible for a candidate was in the black $18 billion in the bank and obama turned this resource over to the democratic party know organization the history of politics ever had a more expensive apparatus for to develop policies into with the electoral base but they fumbled their advantage almost immediately civic that is probably 100 percent correct. unfortunately this isn't easy to change from a campaign into a organization. that was one of the first ever happened mentioned we were founded by the governor out of his losing campaign for president. we wanted to continue to work together.o going from one campaign that is why we're still here 12 years later we are effectiveve in bigger and stronger but it doesn't surprise me that barack obama who had to leave the country had trouble making his country be effective but don't undercut what they could do. we passed health care for the first time. refor thought although it was not perfect, we also cover 30 million more americans with health care and made it with pre-existing conditions . there is a number of different things and that would not have passed if they were not organized in support of what the president was doing that said premature reading they said was correct. >> calling from akron ohio democratic line. >> caller: i have a couple of things. please to be in one district but since it was elected i have always been a volunteer always this year i called t the party to volunteer they gave me a name i said can have a number? no. go online provider of go on line item of volunteer. three years. think wil we have a lot of educated fools who thought they knew everything about how to push the voters will they didn't vote in 2010 we were gerrymandered than we could not get them out then how about the democratic party to step then? we don't have a plan yet. so now is a presidential election. so now let them run rampant. everywhere outside of the city limits there is a trump signed a did not want this to help them i am discouraged but i think we have to keep up. so tell me how we keep it up if you tell people to stay i online? >> caller: i definitely think this election had a problem extremely arrogant democratic party establishment who thought they knew best and relied on things like television ads to run their campaign rather than face-to-face power of people talking to each other and organizing.oo often, to often there were places where you could not even go volunteer or could not find the office or go door-to-door to talk to other democrats and telling them why it was important there was not a way to do that. but it is scary when i hear things like this somebody from ohio that is very clearly a battleground so many to fight those of every level. so that is one of the reasons i'm looking at who will run the dnc is removed for word with that strategy to stand of for thosery democratic values in every d district is absolutely critical for the future and we need to make it so people like you can volunteer when they want to. >>host: calling from washington on a republican in line. >> caller: it is inc's the problem with the democratic party and obama is they started to back up criminals . the black lives matter. they let them tear up the towns of st. louis and ferguson and baltimore. they'll let them all andor illegal immigrants but you can have of party that is for the criminals and look at who we let loose out of the jails. always worried about food they could lead out not the towns that they went back to . that is all they cared about >> that was fundamentally inaccurate. the idea that black lives matter is filled with criminals sadly that is ignorant but the reality is we're looking at grass-roots organizing fighting for what they believe these are goodd citizens who believe they are held down with no police accountability that favor a constituent they always get often don't even get tried fredonia and have to have court to to know if it was fair and internally are behind closed doors so black lives matter is courageous and what they have done to go to the streets to protest to draw attention if not for black lives matter we would not see those that our i proven from the country and f that just isn't about police accountability boss of criminal-justice reform that people go to jail for longer a force skin color is different and cocaine is the short senses. sentenc you could be sentenced in the difference between that is the of way the criminal justice system to hold significant parts of thehe country down to take on these issues to show that we have the country that has a problem with too much white supremacy built into the structure and the of fabric with the criminal-justice system the way we do our policing work for me to look very deep and hard that immigrants is not just white people muslim americans and latinos and they have to be included and not held back. they're not supporting criminals but america. >> the other is the piece that democrats should be built from the ground up to make several pointsthad including one that says the house to begin with the basics and less than 60 percent of those eligible cast ballots that bothered it to do so to say it is a center right nation maybe in terms of who votes but notf who of who could go to the country favors democrats over republican positions on most issues. what kept people? >> 100 percent right.right. when you look at polling like expanding social security the vast majorityandinc i'm not interested in destroying it. and the reality is that democrats or republicans and independents is a working problem to be expanded so across the of board and a tough situation for a city struggling. and i will work with you told build a middle and working-class and severalks local government run by developers. that's it. if you want to get them not to go in the majority of americans out to vote we need to be fighting for those policies. >> can you do that without a dynamic candidate? >> that dynamic candidate if you're out there and campaigning. and she is the reason why she talks about friends and families to push for ideas on the policies. and america wants government to work for them. to often they feel the government is working against them. >> good morning. how much power they had at the dnc with the superdelegates? and then before they announce that he was runnings r. >> i hope so the super delegates is a disaster for the party there should never be a circumstance where the big funders can make backroom deals and decisions to overrule the rank-and-file of the party. in fact, at attitude that clear the field to make only one candidate for a long time bernie sanders start -- decided to run to have a competitive prairie and have him fight for the ideas in the democratic party. the entire real discussion what our policy should be. i have 10 candidates with a real debate when it came down to clinton and the obama was a fantastic state of ideas to dominate across the country and we almost did not get that at all because of the people like the super delegates to put their thumb on the scale.gettin even with the clinton and sanders debate they put their thumbs on the scale to make sure that he never had a chance even though he won 23 states. >>host: calling from missouri on the democratic line good morning. >> caller: >> good morning. >> caller: '01 to say that bern bernie sanders was the one that we wanted.als ou because they are non-violent b now to pay 60,003 year and then they made the mistake the only reason they wanted trump because he said the average thing that is what america once and everybodygs started to go to a candia other thing is they want to raise the minimum wage but do you know, what they do to hurt us they'll let the landlords raise the rent. >> it is ironic he could succeed by talking aboutd making products in america again donald trott decimate the single product in america for decades and doesn't pay taxes. he is like the poster child for the american businessman the one that believes global corporations should move all profits. . . somebody who has fought hard against nafta are the most recent transpacific partnership. he would've been been a fantastic leader for the country. win and democracy for america we supported bernie sanders and worked hard to have him win. we believed he would win the general election because he understood the problems america basis. i hope moving ahead the democratic party recognizes that bernie sanders is right that's why he was able to mobilize so many people. over the to why some people didn't show up like millennial's working-class people, here a lot of talk about working-class whites

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