FedSoc Events

The panel will discuss what reforms Congress should or should not make to the administrative state. Topics will include the REINS Act, the position of independent agencies, and rules of deference to the administrative state, including Chevron and Auer.
Panelists:

Jack Beermann, Boston University School of Law
Kathryn Kovacs, Rutgers Law School
Michael Rappaport, University of San Diego School of Law
Christopher Walker, Ohio State University College of Law
Moderator: Emily Bremer, University of Wyoming School of Law

The Constitution does not explicitly grant Congress the authority to conduct inquiries or investigations of the Executive branch. However, oversight authority is inherent in many facets of the Legislature's duties and responsibilities. The Supreme Court confirmed this in McGrain v. Daugherty, 273 U.S. 135 (1927) stating:
A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change, and where the legislative body does not itself possess the requisite information -- which not infrequently is true -- recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete, so some means of compulsion are essential to obtain what is needed. Id. at p.175.
From legislating and appropriating to confirmation, impeachment, and war, Congress’ ability to compel information and properly supervise federal activity and policy implementation is essential to its nature.
Throughout the history of our country, Congress has exercised oversight via numerous means such as committee hearings, direct Member contact, staff studies and casework, statutory commissions and inspector general reports. Through these methods and others, Congress endeavors to ensure faithful execution of Congressional intent, monitor the efficacy and efficiency of federal programs, protect legislative authority from Executive encroachment, investigate waste, fraud and abuse, assess agency management and financial priorities, and safeguard individual liberties.
In recent decades some have observed that the federal growth of agencies, programs, debt, political polarization, and divided government have greatly intensified the environment in which oversight occurs. They assert that oversight has become weaponized and too partisan. Others lament the use of federal time and energy for “show hearings” designed to embarrass individuals or score purely political points. This panel will explore the current oversight landscape, compare it with prior eras, and offer insight for how it may be improved.
Featuring:
Michael D. Bopp, Partner, Gibson Dunn & Crutcher LLP
Machalagh Carr, Oversight Staff Director, Committee on Ways and Means, U.S. House of Representatives
Hon. Neil Eggleston, Partner, Kirkland & Ellis LLP
Moderator: Amanda Neely, General Counsel for Senator Rob Portman, and Deputy Chief Counsel, U.S. Senate Permanent Subcommittee on Investigations

"The philosophic fight for the future of America" is how John Allison describes the force driving much of today's partisan and social divide. The former BB&T and Cato Institute CEO, now an executive in residence at Wake Forest University, described the fight during a speech Tuesday, October 3, 2017, to the Triangle Lawyers Chapter of the Federalist Society.
Footage courtesy of CarolinaJournal.com.
Speaker:

John Allison, Former President and CEO, Cato Institute; Former Chairman and CEO, BB&T
Introduction: Kevin Hales, President, Triangle Lawyers Chapter

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Congressional redistricting is the process by which voter district boundaries are drawn for the election of representatives to the U.S. House of Representatives. Historically Congressional districts have been based on numerous factors including population, geography, ethnic groupings, voting records, and the preferences of political parties. Manipulation of districts for partisan gain, or gerrymandering, has been around since before 1812 when Massachusetts Governor Elbridge Gerry redistricted his state to the benefit of his party. One of Governor Gerry’s districts carved out voters in an unusual shape that some felt resembled a salamander and the now commonplace portmanteau, combining the Governor’s name with salamander, was coined.
Until the 1960’s challenges to redistricting plans were generally considered to present non-justiciable political questions. Since then there have been several prominent court challenges and this term the Supreme Court is once more weighing the constitutionality of legislative districts, this time in Wisconsin, in Whitford v. Gill.
But beyond the important legal issues raised by these cases lies the impact redistricting may be having on the makeup and environment within the Legislative branch. Some contend that with advances in technology the partisan control of how districts are drawn has become too exacting and manipulative and resulted in a detrimental increase in polarization. Others argue that partisan redistricting has been a part of our system for over 200 years, other more important factors are driving Congressional dysfunction, and even if the current system is scrapped, no alternative could eliminate bias. Our panel will explore these and other important topics.
Featuring:

Jay Cost, Contributing Editor, Weekly Standard
Hon. Christopher Shays, Former Congressman
Moderator: Nathan Kaczmarek, Deputy Director, Article I Initiative, The Federalist Society

Advocates of limited government are sometimes accused of being blind to issues of race and sex. Here's one way in which that might be true: Over the last few decades our legal system has been increasingly shaped by identity politics. Legislation often contains numerous benefits aimed at one or more identity groups. But perhaps even more strikingly, race and sex increasingly permeate the activity of regulatory agencies. For example, disparate impact liability, originally the brainchild of EEOC lawyers, used to be limited to employment law. But in more recent years it has spread to areas like housing and credit, thus putting lenders and landlords in the same boat with employers, where every criterion they use for hiring, promoting, lending, or leasing is presumptively illegal. Elected officials who otherwise support the principles of limited government are often reluctant to push back when expansions of the administrative state are couched in terms of race or sex. Are they being prudent? Or something else?

Prof. Gail Heriot, Professor of Law, University of San Diego School of Law
Mr. Peter Kirsanow, Partner, Benesch Attorneys at Law
Prof. R. Shep Melnick, O'Neill Professor, Boston College, Department of Political Science
Prof. Ted Shaw, Julius L. Chambers Distinguished Professor of Law & Director of the Center for Civil Rights, University of North Carolina School of Law
Moderator: Hon. Rachel L. Brand, Associate Attorney General, United States Department of Justice

The Internet has dynamically changed the way we live. It touches every sector of the U.S. and global economies. For two decades, it flourished in an environment devoid of heavy-handed regulatory oversight, resulting in $1.5 trillion in investments by Internet Service Providers. However, the FCC dramatically changed course in 2015 when it reclassified broadband as an old style utility regulated under Title II of the Communications Act of 1934. Earlier this year, the FCC initiated a new proceeding, Restoring Internet Freedom, that proposes to return to the classification of broadband service as a Title I information service. But the legal and policy debate continues with passionate supporters on both sides.Moving forward, how should these tensions be addressed? How should the FCC move forward with its Internet Freedom proceeding? Is there a legislative or regulatory fix? Is there a role for other administrative agencies? Should so called "edge companies" (like Google and Facebook) be regulated differently from Internet Service Providers? Today's panel will explore these and other issues.

Hon. Brendan Carr, Commissioner, Federal Communications Commission
Dr. Roslyn Layton, Visiting Scholar, American Enterprise Institute
Hon. Maureen K. Ohlhausen, Acting Chairman, Federal Trade Commission
Mr. Jonathan B. Sallet, Partner, Steptoe & Johnson LLP
Mr. Jonathan Spalter, President & CEO, USTelecom
Dr. Nicol Turner-Lee, Fellow, Governance Studies, Center for Technology Innovation, The Brookings Institution
Moderator: Hon. Stephen F. Williams, United States Court of Appeals, District of Columbia Circuit

This panel will examine the history of the emergence of the Administrative State and will ask whether even in a reformed fashion such a state can ever be consistent with the separation of powers. The panelists will each comment on the separation of powers challenge to modern Administrative Law. Can modern Administrative Law be made consistent with the Framers' Constitution of 1787? The Framers envisioned a much smaller government. How does one govern and oversee in a meaningful way a government of this size? Is accountability practical? Does the idea of accountability need rethinking?

Prof. Akhil Reed Amar, Sterling Professor of Law, Yale Law School
Prof. Philip Hamburger, Maurice & Hilda Friedman Professor of Law, Columbia Law School
Prof. John Harrison, James Madison Distinguished Professor of Law, University of Virginia School of Law
Prof. Gary Lawson, Philip S. Beck Professor of Law, Boston University School of Law
Prof. Kevin M. Stack, Lee S. and Charles A. Speir Chair in Law, Vanderbilt Law School
Moderator: Hon. Kevin Newsom, United States Court of Appeals, Eleventh Circuit

How much leeway do agencies have in implementing federal law? What is the source of this leeway? In whom is it vested? What is the remedy for exceeding it? What are the consequences of exceeding it?Administrative agencies are comprised of numerous components and employ tens of thousands of individuals with different ideas about what the law requires and what policies best serve the public interest. Individually or collectively, agency officials may disagree with all or parts of congressionally-enacted laws, with regulations properly adopted by prior administrations, or with the regulatory and enforcement priorities of politically-appointed agency leaders. They may even question the legitimacy of those political appointments. Government resources are finite: both enforcement priorities and resource allocation decisions are primarily within the authority of the Executive Branch. Does permitting agency personnel, whether high ranking or low, to decide to selectively enforce or not enforce laws on the basis of their policy preferences or perceptions of legitimacy turn our government away from the rule of law and toward the rule of man? What can agency personnel do when their agency refuses to administer laws for which it is responsible, or enforces laws they consider unlawful or ill advised? What recourse do Congress or the courts have if the Executive Branch will not follow their commands?

Prof. Michael McConnell, Richard and Frances Mallery Professor of Law, Director of the Constitutional Law Center; Stanford Law School and Senior Fellow, Hoover Institute
Mr. Stuart S. Taylor Jr., Contributing Editor, National Journal
Prof. Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law; Director of the Environmental Law Advocacy Center; Executive Director, Project for Older Prisoners, The George Washington University Law School
Prof. Michael Uhlmann, Professor of Government, Claremont Graduate University
Moderator: Hon. A. Raymond Randolph, United States Court of Appeals, District of Columbia Circuit

Multidistrict litigation (“MDL”) accounts for nearly half of all civil cases in federal courts. Although MDLs were designed to be efficient mechanisms for “coordinated or consolidated pretrial proceedings,” in some instances they have become one-sided forums known for lacking the basic protections afforded to all other cases by the Federal Rules of Civil Procedure (FRCP), the Federal Rules of Evidence and appellate review.
Featuring:

John Beisner, Partner, Skadden Arps LLP
Brian Jackson, Partner, Butler Snow LLP
Chris Seeger, Founding Partner, Seeger Weiss LLP
Jonathan D. Selbin, Partner, Lieff Cabraser Heimann & Bernstein, LLP
Moderator: Jeffrey B. Clark, Partner, Kirkland & Ellis LLP

Multidistrict litigation (“MDL”) accounts for nearly half of all civil cases in federal courts. Although MDLs were designed to be efficient mechanisms for “coordinated or consolidated pretrial proceedings,” in some instances they have become one-sided forums known for lacking the basic protections afforded to all other cases by the Federal Rules of Civil Procedure (FRCP), the Federal Rules of Evidence and appellate review.
Featuring:

Prof. Jaime Dodge, Director, The Institute for Complex Litigation & Mass Claims, Emory Law School
Prof. Maria Glover, Associate Professor of Law, Georgetown Law Center
Prof. Francis McGovern, Professor of Law, Duke Law School
Kate Comerford Todd, Former Senior Vice President & Chief Counsel, U.S. Chamber Litigation Center
Moderator: Mary Nold Larimore, Partner, IceMiller LLP