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Internet, allowing consumers and small businesses to have an equal playing field. but in u.s. telecom association vfcc, in your own opinion you went out of the way to dissent. this is the full d.c. court against you. the rules were upheld by a panel of judges appointed by presidents from both parties. here you relied on something else that you came up with called the major rules doctrine. and i know it's been mentioned in a 2015 case, but in claiming that the fcc lacked authority to issue net neutrality rules because they were in your words major. so again it feels to me like congress set up t...

The dastardly if there's a way to differentiate. >> but just to underscore, that was a proposal to be considered, it was not a constitutional position. i did not take any constitutional position on the issues you're raising. i want to underscore that. if a constitutional question came to me, i would have an open mind and decide that. >> there isn't any clear text in the constitution that speaks to the question, so instead these are your own recommendations based on your own views and experience. would that be a fair characterizati characterization? >> but there are two different things going o...

When and how to enforce particular laws. who is protected by prosecutorial discretion? ultimately it protects individual liberty. and then even when the congress has passed a law and the executive has enforced a law, that dudsant mean you go straight to prison. you go -- if you're charged with a crime, you go before an independent judiciary. and just to add further protections for liberty, you have a -- the jury protections that are in the original text of the constitution and also reflected in the bill of rights. so in check after check after check, the constitution tilts toward individual li...

The document is chock full of protections with individual liberty and that is ultimately why the separation of powers matters, as much as the individual protections that are in the bill of rights, and also in article 1 section 9 article 1 section 10 of the original constitution. >> how about the doctrine of federalism? that's been an issue you haven't encountered as much serving on the d.c. circuit, but can you share with this committee why federalism matters? and again, why americans watching this hearing at home should care about the principles of federalism? >> federalism matters for severa...

Low-level marijuana offenses go in terms of an exercise of prosecutorial discretion. >> but if a court has held a statute constitutional, do you believe that a president should have to enforce it? >> so, for example, let's talk about, for example, the marijuana laws. those are constitutional, but a u.s. attorney or the attorney general could say we're not going to devote our resources to low-level marijuana offenses. those are perfectly constitutional. >> let me try another example for you, the texas case on pre-existing conditions. the administration has taken the position that that is uncons...