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tv   Key Capitol Hill Hearings  CSPAN  January 8, 2015 5:00am-7:01am EST

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program interactsé4 ç with the trend towards greater executive power, whethery they reinforce executive power or serve to check executive power. that's what i will focus on this the rest of my remarks.>ui and again, i'm going to focus in terms of the affordable ìáhp &hc% and no child left behind waiver. i mentionedgs the key issue in the affordable care act is the expansion of medicaid. another issue, very important, [rñ has been getting the state to run health exchange. and in the education contest, the concern has been getting relief from requirements of no child left behind that the states are unable to meet. and é bgt uy interestingly in a program that is a grant program that came about in the release at the time of the financial crisis, called race to the top. getting additional fund together
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states. those are two instances after great deal of state, federal interaction in education. i think these two examplesp give us several important insights about the dynamic of cqa federal state program and theirvkqór impact on power and vice versa. you see the political polarization has a huge impact at the state level. huge impact on federal governments in theseby programs, that involve the+fqñ state and implemented at thega!j state level. polarizationi@h[ is at the state level as well as the federal level. there is much÷5÷[nsjuu'ified government at the state level. you have 30 states governed by one8ropartym0#7ñ5 a and those governments are overwhelmingly republican. it gets the state to do something at the state level, will have to be negotiating and compromising with republican-led administration, republican-led
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government.bgbcl which are often quite ideal logically opposed to these initiatives. studies of documents at the state level republicanes have been getting a lot of presszñ from the national level to keep the vertical ideological line.wrhy and stick to it and not compromise. there is a big impact of implementation.]ø÷ but there are also more4) h interesting cases of compromise and bipartisanship than we are seeing at the national or federal level. if you take the affordable care act,@aos a study reports that 4 of 5 republican states and 8 of 12 split states in theípb education context, the political affiliation of the government hasn't had it atf;h 44 states applied for andk ox been
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granted waivers. another two under review. if you look more closely at the detail of state implementation, i think some factors emerge is particularly critical. ideological, political views at the state level matter. equally important is the baseline. the legal:a structure against which you are getting the federal state interaction. right? in the education context, the state has been much more dependent on the obama administration for relief. they can't meet the no child left behind performance standards. and therefore the bam administration has been able to do much more in terms! achieving its own independent policy goal as conditioned on the waivers that have been granting and aoiú4i fordable care act, with more leverage particfd#&y after the supreme court made granting pled cade reasons the obama administration need the stateoypq to not just expand medicaid but also to participate in health exchanges. and you see how that12nm baseline
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played in in terms of the administration's negotiationes with states. the admin has been quite flexible and in the accordable care act has had a lot of back and forth being willing to consider state concerns, move in interesting directions to get republicans on board. you see that in the idea called partnership exchanges and also 1 waivers for private insurance. sog a as result of federal state aspect. another thing3,jñ to consider, and i think this is the last thing i have, i will be happy to talk more about this in q & separation of power and impact. clearly we seey policy changes coming at< behest of the executive and the changes involve waves in terms of statutes. right? and not only at the behest ofzo&ak(t&háhp
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&hc% executive branch but we are talking really presidential administrations. white house involvement. and theáúbqm affordable care act and in the white house. and at the same time, it isn't a one-sided story of executive, there have been real limits on bm's ability to achieve his policy goals. is you have the state serving as a potent check and having a big impact on how these programs are being implemented at the state level. the other thing tod ç bear in mind is the background statutory authorization. waivers have a basis on the express text of statutes. agencies have broad four implement the program andil"ñ to set the term ofcsz state participation as a result. one final thing i want to say here, is it is interesting to think not just of the state check on the executive branch in congress, but the accommodations and the executive branch to interact asv;dyx a check on congress.
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and on the excessive[è4vdó] partisanship and functionality of congress. if you can get between the state and executive branch the adq ,9áu)ation can do a lot of its policy goals without bringing congress on board. if they do have that effect thatg$yç arguably is a good result from our separation of power and standpoint because it is again reinforcing the idea of having m/lh]vle branches voched and checking too much dysfunctionality in any one of the branches. thank you very much.dysfunctionality in any one of the branches. thank you very much.checking too much dysfunctionality in any one of the branches. thank you very much. [ applause ] >> next we willo/z professor golosecrhu. >> thank you for invieding me to this greath[:1 y
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>> any frailties that i say today you can attribute to (frrs he is not here to stand up for himself. not so concerned with the idea of federalism thinking of how to pc234q any of that but more consequential q#÷n ñ and instrumental that is to sayy,#kt we are concerned about utility of
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used to vindicate power concern and as jillian metzger mentioned, to realizehd8@& )jz and so it ismyy federalism perhaps we can say masquerading, or at least used as a vehicle to show the other types of2@lñ concern. with bill marshal on the prior panel, withzx"q=$ immigration federalism is strongly part of it. the reaction you get at state and local level often times we argue has nothing with demographic reality and have oo'f1 o partisan reality more than anything else. the localities have been significant.é players on the immigration field. those years have been devoid of congressional action. i say not kwens dentally because
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as we argue using larry cramer's work, with the state federalism, that those two are wink phenomena. that is the increase in state and local policy making has an effect on congress's ability to amass immigration facts of reform. congress hasn44qç proposed and considered comprehensive immigration reform underru he bush administration and under the obama administration, has not passed. stand alone portion which is the dream act. enjoying a popular sport among the -- sorry, the american voting public. also have failed in congress. there is simply no more middle when it comes to reform, something of development of the last 10 15 years. not so in prior[6ñ eras 1955 1976, 1986, 1996, all bipartisan so in the
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there is high profile immigration activity. most people know, remember arizona and other states' attempt to have sanctioned bills. right? whichkm court in the widing case. arizona's case and copy cat legislation across several states, like rental ordinances, municipality, and memoranda of understanding what the department of homeland security and forcing immigration law and trends as well. not just restrictionist, here we might think about efforts to resist federal enforcement and refuse cooperation went driver ex/1%m webs id cards, welfareuw2dç provision, how health care might be pro invited to undocksmented immigrants, professional licensing, concerns which have arisen in california and florida. at the same[kf n9g.1ñ that you have had no5)#cú congressionvu0x wall action,
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significant state involvement and you have seen s(gç presidential involvement by the president himself, the ñs j announcements!b and of course new administrative agencyiesagencies. this is a con speckus part and people have discussed particularly the family on the prior7úlr panel the circumstances peculiar to immigration lód
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areas. actions that actions that curtail state and local p!o49hujp'd actions"
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the federal government rarely sues in immigration cases. if you look atxa9ñ cases with immigration federalism, the federal government sued exactly five#trézimes and those all five instances were after arizona. arizona and then the state level copy cats that occurred afterward. a couple of cases, handful, which were district court cases that never went beyond that.?u:b it is actually a fairly unique and outstanding maneuver for the federal government. worth thinking about a counter factual here. both[écu÷ mccain and romney inzdñ their respective campaign pledged support for arizona's sb-1070. stands4z9h÷ that they minotmight notru% havez7fsñ used litigation power against them. not to say there would have been other suitesq úç that had standing, at least three suites, that'w]zñ could have changed stand awning preemtive grounds. but as other imperial work is
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shown, the solicitor general makes a significant difference.ze13y'"áe >> thinking about secure community, the ability after federal government to executive to use administrative1jv directors there at the program security communities used as a way[yk÷ of concluding information or advantages that state and local law enforcement have under detecting and'p÷ discovering the presence of but doing so on immediatated and ;z controlled by the federal executive. the program arguably had the need of certain jurisdictions considering restripgsist types of legislation. it doesn't completely work there were jurisdictions enacting their own legislation and it garnered backlash right?
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memo one of the memos the family was talking about, it takes apart or discontinues the program and replaces it with a new program and in doing so jay johnson notes specifically the state and local reaction against the security communities is one of the motivating factors for the i,ájápáion changing that policy. and also suggests the executives as a nimble branch of government able to respond to those sorts of -- that sort of push back in the way that congress couldn't. i want to talk about what i aspect of this executive lay level relationship and immigration and that is the president's ability tos" cattalizexmñ 98gvate and local law making. we are not necessarily arguing &ñ thi zewis, at least rinitially an intended dynamic but certainly an important part of how the
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president can realize a revision without congressional involvement. here we want to draw on some political sciencedly hgh%ñscholarships, specifically thinking about frank,0gwq 2010 book, in which they talk about theq,6 concept of punctuated equal brum. the arrival in 2012 has azbvv substantive policy goal benefitting a class of people that the president thought was particularly deserving remaining in the united st temporarily, shielded from +y deportation. but the other goal expressedé "çnpdc by the administrationzn&d seemed to have been to o prod congress into action.,w&pç immigration reform or the dream ¤'9w of the stand alone piece of w legislation. neither of thoscty9'9áq'ed butr-ps what you did see instead was a cascade of integrated policies at the state and local level. since the 2012.
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thex]fñ example we reich to highlight has to do with driver%j licenses. if from 2003 to: gave driver lie he is notes to undocumented immigrant chose to rescind the licenses or overturn people thp them.he is notes to undocumented immigrant chose to rescind the licenses or overturn people thp them.s notes to undocumented immigrant chose to rescind the licenses or overturn people thp them.notes to undocumented immigrant chose to rescind the licenses or overturn people thp them.snotes to undocumented immigrant chose to rescind the licenses or overturn people thp them.em.q[ag6mñ more o broadly, daca excels in other areas such as instate tuition, financial aid and welfare provision. we argue states are acting in substitute federal legislation. smaller jurisdiction, having policies pass that help substantiate the president's vision.9iñ it create a facto glalgs policy
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without having to use the federal legislature and with some sort of democratic passage. the mostw recent executive action the dynamics, rightxr8oñ after daca was announced, you had a coalition of cities for embracing action. 20 mayors, all democratic meeting in new york city with de blasio to think aboutté ways in which the localities enable and entrench the president, through the enactment of the immigration types of lawless. you had also a lawsuit by 24 states and republican governor's association meeting in which several governors pledged to do what they could to resist implementation of the president's order and using whatever powers they had at their disposal. so here in that+db resistance, we
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can see what jessica is imposing, what might be called federalism separation of powers. federalism acting as a check on presidential activity. unwilling tore simply has no standing to make these sorts of claims against the president. so i will conclude by just saying that immigration provided immigration federalism provide fertile ground the last six to eight years to rep clarify the myriad of ways to interact with state level policy. they can act as potential checks on presidential authority and i think going forward both the fez ral executive and states will remain being significant players in the immigration landscape in ways thatqj9kp require us to rethinkesgx analysis in wait that kim argued and the value of state and
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federal interactions. thanks. [ applause ]> professor amy stein from the university of florida school of law.agñ fz . >> good morning and thank you all for joining us and sticking it out. you made it almost to lunch. we are almost there. thank you, raquel, for putting together such a fabulous s throughout the entire day. we have already learned so much. i was inspired by my visit to
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the national archives as i brought my children. and i wondered, what would be my best use of@r .v 12 minutes with you today. i have been exploringmth questions but i thought it might be best to focus on what has been teed up for me which is this interaction between state levelr programs and the executive and this relationship comesu most for me through my work in environmentalaaqñ realms throughg$ programs. theirs have been a significant amount of attention given to the hol of state to senate in8 programs. states are often pushing back against aggressive federal actions with obama actions providing case in point in the environmental realm. i'm often the discussion seems a bit narrow sometimes. where túqqtjtuáhjrjápátq(u of the relationship. not only exploring it in┘r status
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moment in time but also just one side of the very kpli kamted federalism dynamic. so i thought i would spend my time focussing on cooperative federalism and two points within that. one thinking if we are trying to assess the value and no action should be evaluated in isolation p. so making sure we are looking at% oi the whole picture and not swrust focussing on one momentf in time, and two that looking and making the argument that federal response to the state matters just asx5r)ju more and so trying to9?õt 4 éñ think through what would be a a ruleburg. so using kopt rattisms in ál% @r(t&háhp &hc% general and in particular. i have slideswiy that will hopely help and not hinder. i think most of you know that this particular flavor of federalism where congress is
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atekting to elicit both of the state control by a shared regime. congressv"m may offer state the choice between implementing a program pursuant to federal standard and having state law6rzo cf1 o preemptive through direct federal con trel and this type of preempting and of course you see it beyavq!eát(r(r) act clean water act. and this is our coal statute but energy statutes. wedo.!ñvf see it in telecommunications acts. so it raisees a number of questions for us.(@
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how does the is there some sort after different leverage analysis that we should"úv between the federal government agency answers states in these contexts. and happens when theydñ!t disagree which is the focus of my remaining nine minutes now, or something. so the piece we are focussing on today.ç) and i'm doing that in the context of federalism and ib-q:p&l use the two controversial de jour, being regulation of grown house gasses under the clean air act and regulation of nutrients under the clean water act. nutrients, if you don't know are generally nitrogen and phosphorous and it is generally nutritious for agriculture. and they are not as nutritious4zo cf1 o in the water. though i should say they are about ten times as nutritious when they hit the sort of life
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forms that exist in the' waterways. so we have algae blooms and dead zones. mosty ay1e in the gulf, there is a picture as previously at tulane university where a wonderful institution and of course we have a significant number of dead zone numbers there. the other big one is in the close peek baycheck /* ch5 r(t&háhp &hc% bay.i fh 31 states have run off into the bay. six states inú contributingl $ @r(t&háhp &hc% contributing. how do you deal with those kind of constraint in a program where congress established that the federal government will be working with the states to address these issues. there is a complex ;@÷5 where we have to designate which waters are impaired and establish pollutants, something called tmdl and we are trying to
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figure that out. and how do we factor in things like 25 yearsyy([ñ of trying to do this. and we are still seeing anything problems. is that justification for federal intervention to step under? what about the clean water act where states are coming to epa and saying, please help us. we can't work together on this.,nouuz need some other level of authority to help us get through the issues. the clean air act is probably the one you know more about. you have probably seen something about the epa overstepping bounds to use the clean airn act to work witheói green air gasses. it concluded that by automatic operation by the clean air act, now÷g÷ stationary sources like power plants would be regulated. so something called a psd permit.
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soít implemented by the state and then approved, they have a state implementation plan.d+tçsl but they need go. they have oversight over the state's actions. they may issue the permits directly. but if epa finds it is inadequate then it may issue a fip, a federal implementation plan. yes, welcome to the world of acronyms in environmental law. what is important for thatúict in federalism, since i was in law school epa has that authority but never really use it. there is always the talk of reluctance of epa to use the power. they don't really want to take over the programs. and yes, if you look in a number of these controversyqø of late epa has been using its fip power. so texas for instance telling
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the 13 states they were no longer in compliance because of their fip did not properly regulate greenhouse gasses, so 12 of them got together with epa and established the schedule and texas said authorit6)eìáhp &hc% so epa comes back and says fine, here is my fip. and now i'm taking over your program. can you imagine anythinga:[ for texas? the federal government coming in and saying you can't permit any stationary sources without the federal government. so we have these interesting tensions. in the interest of time, what are the forums of state descent. the first might be a state just may register its disagreement with the epani#j]÷ as a few months ago, we are4÷ni3 writing to talk about the proposal and we are getting existing power plants as well. 1r5 governors got together. but it can also come in a failure to:ias act.
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we all remember ablgtcts and@wb omissiones. what about an0uv outright refusal to act like texas did? what about when the state actually is suing? that's the the -- example of descent. but there can also be defensive maneuvers. kentucky just came out with a new legislation that basically says if you skip down to three efficiency and other measures that can beechñy undertaken can reduce carbon dioxide without doing the following. one, switching from cold to other fuel. ov look at c, eliminating the electrical generating un pipts that just means coal play. these are the four building blocks that epa just put out for the 111-b rule. if you look at the first one makes plants for efficient. and guess what, the kentucky just said you can't do. and the second one lower emitting power sources. using natural gas mostly to try
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and push towards natural gas instead of coal. but kentucky has come out with an interesting piece of legislation. west virginia i believe has something very similar. so all of there is making us remember that no mat wlaer we're sort of attacking whether a state, federal aggression, this is just one piece of whhat i am trying to show us perhaps a cycle. i think it would be an endless spiral. no matter what story you pick, you can fit all these things in. right? if you are looking at regulation or greenhouse gasses. i would put that on top.iweìáhp &hc% epa did not want to do this originally. then we add catalyst.$b what would be our catalyst? then, what is the federal response? folks who claim that agencies are+y+pw just overreaching, and this
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all sort of ends up inx legislation. and there is statutory authority under this and can you fit just every piece somewhere on that cycle. and here epa ended up issuing a memo, the supreme court ií0!/vñ 2007 masters of epa said guess what you are going to move forward thinking about carbon dioxide as a pollutant. can't avoid your obligations. now you're into the current world where agency action and epa is now regulated. but a lot of times the)mz catalyst other important piece the third party citizen suit. i think another dimension of this whole relationship that isn't really focused on because we are often in federalism thinking states and federal government but almost all of the suites have been initiated through third party citizen suites try frog pell theing to propel the agency do more.h%u
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some states have disciplinary issues such as the clean air act and take ov=2(7x the fifth provision i was just explaining. i think there is a minimal desire of the federal government to do this. this is from epa's most recent clean power plan and in the state of time just know it said we recognize the states are best suited. we just want to be the role of providing guidance. so given that why do the feds move forward in these instances? right? what could it be? is there really no hope left? do theyth[y feel like they've tried for years and years? do we need to step in? is there no hope left for congress? that gets back to the congressional can dysfunction side. is the agency thinking creatively in 40pqw bounds of their authority. is it that the problem reached such critical levels. the if congress isn't going to act, it is at such a global importance that the federal
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agency is trying to decide what it can do without the bound of its authority. the agency often doesn't have tate program. you will see in a lot of suites that if the states bind together they seem to have stronger reactions from the epa, many of these are 15-state suites. that seems to go better than the rogue states that are in disagreement. but we also have to think about the states descenting with 35 that are in agreement. and there was talk about how the states are often on both sides of these issues. chesapeake bay, the lawsuit, is 15 states and only west virginia is one of the actual bay states
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being impacted by the tml for close peek bay. nota itt(puáq of the close peek bay because they don't want the next tmdl to be in the mississippi river. how do you deal with these pieces? active versus passive federal agency may respond differently if your outsite refusal. what is the emphasis behind this? are we doing this because we think the federal agency is overreaching, which seems to be the focus. but we could just as easily look at this when they are underreaching. they don't think epa is doing enough. what exactly is the impact? the more interstate impacts we have perhaps more justification for federal involvement. and of course what's the likelihood of success in terms of your statutory and constitutional authority. this is a lovely chart of all of the fine litigation going on. mike gerard at columbia creates this wonderful data base for us all and if that's not enough it keeps going and going.
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so every single epa action is deemed challenged. and so there's another forum for these fights to be resolved. i know i'm out8 remember states are not just one state. we have 50 different opinions when we are trying to adjust this. and opinions and actions can't be evaluated in a vacuum. that the value of the state needs to be comforted by looking at federal response. and so evaluating it multiple variables. thank you. [ applause ]
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