On November 29, 2023, the U.S. Supreme Court will hear oral argument in SEC v. Jarkesy. The following three questions are presented – (1) Whether statutory provisions that empower the Securities and Exchange Commission (SEC) to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment; (2) Whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine; (3) Whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection. Please join us as Margaret A. Little, Counsel of Record on an amicus brief filed by New Civil Liberties Alliance, discusses the case and its developments after oral argument.

Courthouse Steps Oral Argument: SEC v. Jarkesy

*This series was formerly known as Teleforums. FedSoc Forums is a virtual discussion series dedicated to providing expert analysis and intellectual commentary on today’s most pressing legal and policy issues. Produced by The Federalist Society’s Practice Groups, FedSoc Forum strives to create balanced conversations in various formats, such as monologues, debates, or panel discussions. In addition to regular episodes, FedSoc Forum features special content covering specific topics in the legal world, such as:Courthouse Steps: A series of rapid response discussions breaking down all the latest SCOTUS cases after oral argument or final decisionA Seat at the Sitting: A monthly series that runs during the Court’s term featuring a panel of constitutional experts discussing the Supreme Court’s upcoming docket sitting by sittingLitigation Update: A series that provides the latest updates in important ongoing cases from all levels of governmentThe Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

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Throughout Arizona’s history as a state, the criminal code authorized penalties against any person who performed or procured an abortion for a pregnant woman. In 1971, Planned Parenthood Center of Tucson challenged that law on state and federal constitutional grounds. In early 1973, the state intermediate appellate court upheld the criminal law as constitutional. Shortly thereafter, SCOTUS issued Roe v. Wade recognizing a federal constitutional right to abortion. And the Arizona appellate court then enjoined enforcement of the state’s criminal abortion law.  The Arizona legislature codified numerous abortion-related laws in the ensuing years. One such law, enacted in 2022, adopted a “15-week ban.” Later that same year, SCOTUS issued its opinion in Dobbs v. Jackson Women’s Health Organization, which overturned Roe and concluded that the federal constitution does not support a right to abortion.Dobbs thus set a collision course for two Arizona laws: the previously enjoined but still on-the-books criminal law from 1973 and the 2022 15-week ban. On April 9, 2024, the Arizona Supreme Court issued its opinion in Planned Parenthood v. Mayes / Hazelrigg, resolving the question of which law currently governs.Hon. James D. Smith will join us to break down the majority and dissenting opinions.

Litigation Update: Arizona Supreme Court Opinion in Planned Parenthood v. Mayes / Hazelrigg

On April 23, 2024, the FTC voted 3-2 to adopt a final rule banning the use of non-compete agreements nationwide, impacting 30 million workers by the FTC’s own estimates. This near categorical ban on the non-compete agreements is a contrast from a regime in which these agreements had been recognized to have potential procompetitive value and therefore were reviewed for reasonableness. It also marks a departure from the state law in many jurisdictions. Less than 24 hours after the vote, two lawsuits have challenged the rule based on statutory and Constitutional grounds. This breaking news panel discussed the final rule, grounds for statutory and Constitutional challenges, and state AG reactions.

FTC’s Sweeping Non-Compete Ban: Summary, States’ Views, and Litigation Challenges

FTC Chair Khan has sought to implement aggressive and profound changes at the agency from novel approaches on antitrust to groundbreaking rulemakings. But will these efforts have lasting effects?Former FTC Chairs Tim Muris and Maureen Ohlhausen were joined by Howard Beales, former Director of the Bureau of Consumer Protection at the FTC, to compare these efforts with previous Chair-initiated policy shifts at the agency. Professors Muris and Beales also unveiled their extensive research, published by the Competitive Enterprise Institute, analyzing key differences compared to earlier FTC efforts at promoting change.This panel discussed: How should a change agent manage the existing career staff? How should relations with Congress and other key stakeholders be managed? How can change best be implemented in the face of a potentially hostile judiciary and other formidable obstacles? What role should institutional norms play in answering these questions?

FTC Policy Unpacked: Achieving Change at the Federal Trade Commission

On March 5, 2024, U.S. District Court Judge Mark Pittman of the Northern District of Texas entered a declaratory judgment and nationwide injunction against the Minority Business Development Agency, preventing the agency from extending a federally-sponsored racial preference to groups seeking to access capital and government contracts. This case, Nuziard v. MBDA, expands upon last summer's Supreme Court ruling in SFFA v. Harvard, which struck down affirmative action in college admissions. Daniel Lennington of the Wisconsin Institute for Law & Liberty, who litigated the case, discussed the case and its impact on the future of equality.

Nuziard v. MBDA: What is the Future of Equal Protection Litigation?

In 2002, under Chairman Michael Powell, the FCC passed the Cable Modem Order which classified cable modem internet service providers (ISPs) as not subject to common carrier non-discrimination requirements. The order’s critics said the FCC had created a non-neutral internet where dominant firms could use their market power to harm consumers and diminish competition. After several attempts, which the D.C. Circuit rejected, the FCC under Chairman Wheeler imposed network neutrality requirements on ISPs in the Protecting and Promoting the Open Internet order in 2015. Then, the FCC under Chairman Pai largely revoked the network neutrality rules in the Restoring Internet Freedom order in 2017. Now, under Chair Rosenworcel the FCC has just reimposed network neutrality.This panel discussed the legal future on appeal of this most recent iteration in what appears to be an unending partisan regulatory saga—especially in light of the Supreme Court’s changing views on administrative review. The panel also investigated whether this over two decade old policy dispute is fighting yesterday’s war as many believe that there have been few competitive abuses by ISPs during the last two decades—and arguably competitive abuses by dominant firms has moved elsewhere in the web.

Courthouse Steps Oral Argument: SEC v. Jarkesy

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