This past August the U.S. Court of Appeals for the Fifth Circuit issued a significant administrative law opinion that has thus far drawn too little attention. The case involved guidance the Equal Employment Opportunity Commission issued in 2012 telling private and public employers—such as the State of Texas—that they could not run criminal background checks on potential employees without incurring potential disparate impact liability for disproportionately screening out statutorily protected groups. Most news articles discussing the case have focused on the immediate outcome, which is that the Fifth Circuit enjoined EEOC’s guidance, effectively preventing the agency from bringing any enforcement actions based on its theory of liability. But that’s not the big story here. Rather, it is how the Fifth Circuit’s decision did it that could reverberate far beyond the confines of this case. The court may have sounded the death knell for *all* EEOC guidance. When Congress created EEOC, it deliberately denied the agency the ability to issue rules. For the past half century, EEOC did not let this statutory constraint slow it down much. Denied the ability to pass rules, EEOC passed mere “guidance” instead. But because that guidance was backed up with (1) the threat of enforcement; and (2) employers’ knowledge that federal courts readily defer to EEOC’s interpretations of its governing statute, the guidance was as good as law. However, by enjoining the criminal background check guidance on the ground that EEOC has no substantive rulemaking power, the Fifth Circuit exposed the fact that EEOC has long been acting outside its congressional grant of authority. In other words, the reason the Fifth Circuit gave for prohibiting this particular EEOC guidance would apply to most—if not all—substantive guidance that the agency issues. This teleforum examines the Fifth Circuit’s decision in State of Texas v. EEOC and discusses what role (if any) EEOC guidance will play going forward.

Featuring:
-- Mark Chenoweth, Executive Director & General Counsel, New Civil Liberties Alliance
-- Moderator: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC

In Kansas v. Glover, a state police officer pulled a Charles Glover Jr. over after running a registration check on the vehicle and finding that Charles Glover Jr had a revoked drivers license. The police officer assumed that Charles Glover was the person driving the vehicle, and proceeded to pull Glover over and then upon confirmation of Glover's identity, issued a citation. Glover is arguing that the fact that the registered owner of a vehicle has a revoked drivers license does not amount to a reasonable suspicion, and that therefore all evidence from the stop should be suppressed. Brian Fish joins us to discuss the oral argument and its implications.
Featuring:
Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

The Ninth Circuit recently split from seven other Circuits in deciding a First Amendment question of cardinal importance: should the church choose who will teach religion to children in church schools, or should the state? Our Lady of Guadalupe School is a small California Catholic parish school sued by a former teacher for age discrimination. The fifth-grade teacher taught religion, led prayer, planned liturgy, and performed other important religious functions. Following the Supreme Court’s unanimous 2012 decision in Hosanna-Tabor v. EEOC (which concerned a fourth-grade teacher at a Lutheran school who also performed religious duties), the district court found that the teacher’s religious functions were enough to allow dismissal, since allowing the case to proceed would entangle the state in internal religious affairs and violate the school’s right to select its teachers of religion. But, breaking with seven other circuits, seven state supreme courts, and over the dissent of nine of its judges, the Ninth Circuit reversed. Eric Rassbach, counsel for Our Lady, will explain why the Supreme Court should take the case.

Featuring:
-- Eric Rassbach, Vice President and Senior Counsel, Becket Fund for Religious Liberty

In Washington Post v. McManus, various newspapers brought suit to strike down a new Maryland law as unconstitutional under the First Amendment. The statute, aimed at Russian online election interference, requires media outlets to collect and make available for public inspection information about persons who purchase online political ads and their donors. Early this year, the District of Maryland issued a preliminary order under both strict and exacting scrutiny. The state appealed to the Fourth Circuit, which will hear oral arguments on Wednesday, October 30.
Erin Chlopak of the Campaign Legal Center and Tyler Martinez of the Institute for Free Speech, who authored amicus briefs for the appellants and appellees, respectively, will offer first impressions of the argument.

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

The oral argument for County of Maui, Hawaii v. Hawaii Wildlife Fund will be heard before the Supreme Court on November 6, 2019. The issue at hand is: "Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater." This teleforum will preview the major issues of the case before the oral argument in November.
Featuring:
Brianne Gorod, Chief Counsel, Constitutional Accountability Center
Glenn E. Roper, Attorney, Pacific Legal Foundation
Moderator: Prof. Donald Kochan, Parker S. Kennedy Professor in Law, Chapman University

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

The oral argument for County of Maui, Hawaii v. Hawaii Wildlife Fund will be heard before the Supreme Court on November 6, 2019. The issue at hand is: "Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater." This teleforum will preview the major issues of the case before the oral argument in November.
Featuring:
Brianne Gorod, Chief Counsel, Constitutional Accountability Center
Glenn E. Roper, Attorney, Pacific Legal Foundation
Moderator: Prof. Donald Kochan, Parker S. Kennedy Professor in Law, Chapman University

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Until recently, the domain of administrative records under the Administrative Procedure Act of 1946 was viewed by most as a peripheral issue to litigation challenging executive branch actions. The landscape shifted in June 2019 when the Supreme Court decided Department of Commerce v. New York, which considered whether the U.S. Census Bureau lawfully added a question to the impending 2020 census that asked respondents whether they are U.S. citizens. The Court addressed the composition of the administrative record in APA litigation for the first time in decades. The majority concluded that the trial court had prematurely ordered supplementation of the record, but held that the order was justified in hindsight. This teleforum examines the domain of APA administrative records following Department of Commerce and its effects on administrative law.

Featuring:
-- Prof. Aram A. Gavoor, Professorial Lecturer of Law, The George Washington University Law School
-- Brett A. Shumate, Partner, Jones Day
-- Moderator: Prof. Adam J. White, Assistant Professor and Executive Director of The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School, George Mason University

John Malcolm and John Yoo joined us to discuss developments on impeachment: the latest on the Ukraine investigation; the procedures for the House investigation; whether the allegations meet the standards for high crimes and misdemeanors; the White House’s strategy of non-cooperation; and more.

Featuring:
-- John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
-- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

Legal challenges to legislative prayer continue to play out in the courts. Most recently, in Barker v. Conroy, Williamson v. Brevard County, and Speaker v. Fields, atheists have brought a series of Establishment Clause actions against prayer practices that prohibit them from offering secular (as opposed to religious) invocations. Thomas Hungar joins us to discuss those cases and their important implications.

Featuring:
-- Thomas Hungar, Partner, Gibson, Dunn & Crutcher LLP

What is the current status of ISIS worldwide? Some European countries have cancelled ISIS-travelers’ citizenship and refuse to repatriate fighters for prosecution. Terror trials in Western judicial systems face formidable procedural and evidentiary hurdles. With prison camps in Syria at risk there are concerns over the security of detainees. While organized ISIS receded as an imminent threat there are signs of resurgence. Evaluating the present status of ISIS and its affiliates before ISIS restructures is imperative, for both European countries, and the United States.

Featuring:
-- Seamus Hughes, Deputy Director, Program on Extremism, George Washington University
-- Dr. Seth G. Jones, Harold Brown Chair; Director, Transnational Threats Project; and Senior Adviser, International Security Program, Center for Strategic and International Studies (CSIS)
-- Robin Simcox, Margaret Thatcher Fellow, Margaret Thatcher Center for Freedom, The Heritage Foundation
-- Moderator: Christopher K. Harnisch, Deputy Coordinator for Countering Violent Extremism, United States Department of State