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On May 13, 2020, the Supreme Court will hear arguments in a pair of cases concerning the Electoral College. In Colorado Department of State v. Baca, Case No. 19-518, the Court will consider the claim of a presidential elector in Colorado who attempted to vote for someone other than Hillary Clinton, despite the fact that Hillary Clinton won Colorado's popular vote, and was replaced by another elector. In Chiafalo v. Washington, the Court will hear the claims of three presidential electors who were each fined $1000 after they voted for a candidate other than Hillary Clinton in 2016, who also won Washington's popular vote. The cases will examine state power to regulate the actions of presidential electors and could affect how electors behave in the 2020 election.
Featuring:
Prof. Derek Muller, Associate Professor of Law, Pepperdine University School of Law

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Please join Amy Swearer of the Heritage Foundation and David Thompson of Cooper & Kirk for a discussion of the Supreme Court’s recent decision in NY State & Rifle Pistol Association Inc. v. City of New York. The presenters will cover the contents of the decision, its import, and the future of Second Amendment litigation at the Supreme Court.
Featuring:
David Thompson, Cooper & Kirk
Amy Swearer, Legal Fellow, Meese Center for Legal and Judicial Studies

Governments that seek to acquire nuclear weapons, such as Iran and North Korea, are sometimes serious violators of the rights of their citizens. Is it appropriate for the United States and other democratic nations to negotiate agreements with these governments to prevent or roll back their acquisition of weapons of mass destruction without also addressing internment camps, severe persecution of political and religious dissidents, and other conduct?

Our speakers will be Roya Hakakian, who has written extensively about Iran and who co-founded the Iran Human Rights Documentation Center at Yale; Ben Rogers, who serves as East Asia Team Leader at Christian Solidarity Worldwide and who is a founder of the International Coalition to Stop Crimes Against Humanity in North Korea; and Professor David Koplow of Georgetown University, an expert on national security law and policy who has served in senior USG arms control positions, most recently in the Defense Department.

Featuring:
-- Roya Hakakian, Author and Founding Member, Iran Human Rights Documentation Center
-- Prof. David A. Koplow, Professor of Law, Georgetown University Law Center
-- Benedict Rogers, East Asia Team Leader, Christian Solidarity Worldwide
-- Moderator: Sean Nelson, Legal Counsel for Global Religious Freedom, ADF International

Three cases before the Supreme Court consider the ability of grand juries and congressional committees to subpoena the personal tax records of the President. In Trump v. Mazars USA and Trump v. Deutsche Bank, three House committees subpoenaed the President’s tax records. In Trump v. Vance, a local grand jury has subpoenaed these tax documents as well. There are several issues at play in determining if these subpoenas are valid.

Starting with the Congressional subpoenas, the President claims that these subpoenas are for information protected under the Right to Financial Privacy Act, which prohibits disclosure of a customer's financial records to "any Government authority" without certain procedures the committees concede they did not follow; but the committees claim that they are not a “Government authority” under the meaning of the Act. Secondly, the President claims the Internal Revenue Code, which allows disclosure but only with procedural requirements the committees admit that they have not done. But the committees claim this requirement only applies if the bank acquired the tax documents from the IRS. Third, the President claims there is no legitimate legislative purpose to the subpoena which is required for such a legislative subpoena. The committees note that although that requirement exists, the scope of what is within a proper legislative purpose is very broad and met in this case.

The Supreme Court has also asked the parties to brief whether these congressional subpoenas are the kind of dispute between the branches that the court should avoid.

As to the local New York grand jury subpoena, the President claims that he is absolutely immune from all stages of state criminal process while in office, including pre-indictment investigation.

Devin Watkins of the Competitive Enterprise Institute will join us to discuss the results of the Supreme Court oral argument on these cases.

Featuring:
-- Mr. Devin Watkins, Attorney, Competitive Enterprise Institute

Tribal jurisdiction is again before the Supreme Court. Following November 2018 arguments, Chief Justice John Roberts first requested additional briefing and then announced new arguments would occur in Sharp v. Murphy. Instead, the Court granted certiorari in McGirt v. Oklahoma, and Justice Gorsuch, who had recused himself from the earlier case, will participate. Jimcy McGirt sought post-conviction relief of his rape, molestation, and sodomy convictions, citing Murphy, and arguing his crimes occurred in Indian Country and thus were subject to the Indian Major Crimes Act. If that law applies, Mr. McGirt’s crimes should have been prosecuted in federal court, rather than state court. The Oklahoma Court of Criminal Appeals rejected his request for relief. Because tribal jurisdiction related to criminal, civil, and regulatory matters generally flow together under Alaska v. Native Village of Venetie Tribal Government 522 U.S. 520 (1998), some legal analysts view this case as representative of a much larger matter than simply prosecuting criminals in the proper court.

Join us for a Courthouse Steps Teleforum for reaction to the McGirt argument. The panel will feature Andy Lester and A.J. Ferate, with the Oklahoma City office of Spencer Fane, and University of Oklahoma W. DeVier Pierson Professor of Law Taiawagi “Tai” Helton.

Featuring:
-- A.J. Ferate, Of Counsel, Spencer Fane LLP
-- Andy Lester, Partner, Spencer Fane LLP
-- Prof. Taiawagi “Tai” Helton, W. DeVier Pierson Professor of Law, University of Oklahoma College of Law

In Mozilla v. FCC, the D.C. Circuit upheld the Federal Communications Commission’s 2018 Restoring Internet Freedom Order in which the current Commission rejected the Obama Administration’s 'net neutrality' efforts to impose legacy common carrier regulation on the Internet and returned broadband Internet access service to a “light touch” regulatory regime under Title I of the Communications Act. Mozilla was not a complete victory for the Commission, however. Not only did the D.C. Circuit reverse the FCC’s broad efforts to preempt categorically state efforts to regulate the Internet, but the court remanded several issues to the Commission for further explanation, including how reclassification affects access to pole attachments, how reclassification affects the ability to include broadband in the FCC’s Lifeline program, and how reclassification affects public safety. Last March, the Commission issued a public notice to refresh the record in this case, and the comment period is on-going. Please join our panel of experts to discuss the legal issues at bar and how the FCC should respond to the court.

Featuring:
-- Matthew Brill, Partner, Latham & Watkins, LLP
-- Kristine (Fargotstein) Hackman, Vice President, Policy & Advocacy at USTelecom – The Broadband Association
-- Russell Hanser, Partner, Wilkinson Barker Knauer, LLP
-- Moderator: Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal & Economic Public Policy Studies

In Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, the Supreme Court, in 2012, unanimously held that, under the First Amendment’s Religion Clauses, “it is impermissible for the government to contradict a church’s determination of who can act as its ministers.” Accordingly, the Court recognized that there is a “ministerial exception” that precludes application of employment-discrimination laws to claims concerning the relationship between a religious institution and its ministers. But who qualifies as a minister? The Hosanna-Tabor Court refused “to adopt a rigid formula,” but found that the employee at issue in that case was a minister in light of several “considerations”—the formal title given to the employee by the church, the substance reflected in that title, the employee’s own use of that title, and the important religious functions the employee performed.
Eight years later, the question of “who’s a minister?” is back before the Court in Our Lady of Guadalupe v. Morrissey-Berru, and St. James School v. Biel. In each case, teachers at Catholic schools brought discrimination claims, and the Ninth Circuit concluded the ministerial exception did not apply. Now before the Supreme Court, the schools contend that the Ninth Circuit has adopted the “rigid formula” that the Hosanna-Tabor Court eschewed, and they argue that in most cases a “religious functions” test is sufficient.
This is one of the few cases the Court has selected for telephonic argument, which will be held on May 11, 2020. Joining us hours after the argument, for a Courthouse Steps teleforum, will be Jesse Panuccio, who authored an amicus brief in the case on behalf of members of Congress and in support of the schools. Mr. Panuccio is a partner at Boies Schiller Flexner LLP and is the former Acting Associate Attorney General of the United States.
Featuring:
Jesse Panuccio, Partner, Boies Schiller Flexner LLP

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Bridget Anne Kelly and William Baroni were convicted of wire fraud, federal program fraud and conspiracy for orchestrating lane closures on the George Washington Bridge in September, 2013, as a political punishment against the mayor of Fort Lee, New Jersey for refusing to endorse the Governor re-election. On appeal, Bridget Anne Kelly v. United States was the latest in a series of political corruption cases to reach the Supreme Court. In an unanimous decision written by Justice Kagan, the Court ruled that Kelly and Baroni’s acts did not amount to defrauding the government, and reversed their convictions.
Steve Klein, a partner at Barr & Klein PLLC and a member of the Free Speech & Election Law Executive Committee, will offer his thoughts on the implications of the ruling.
Featuring:
Mr. Stephen R. Klein, Partner, Barr & Klein PLLC

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In Thryv, Inc. v. Click-To-Call Technologies, LP (Supreme Court, April 20, 2020), the Supreme Court held that the Patent Office decision to hear an inter partes review (“IPR”) challenge is not subject to judicial review on time-bar grounds. The majority found that ruling otherwise would “unwind the agency’s merits decision” and “operate to save bad patent claims.”
While this case deals largely with an issue of IPR appellate procedure, it should be interesting to a wider audience because it illustrates the Justices' disparate views on a key question: are issued patents property?
In a strongly worded dissent, Justice Gorsuch argued that the Constitution does not permit a “politically guided agency” (here the Patent Office) to revoke a property right (like an issued patent) without judicial review. He analogized issued patents to the land patents that the government once granted to “homesteaders who moved west.” He expressed his view that since the Court would not “allow a bureaucracy in Washington to ‘cancel’ a citizen’s right to his farm…” the Court should not allow the Patent Office to cancel an issued patent (especially without judicial review).
Justice Gorsuch’s dissent argued against the core principles established in the Supreme Court’s Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 584 U. S. ___ (2018) decision—where he also dissented. In Oil States, the Supreme Court held that patents are not “property rights” in the traditional sense, but rather are “public franchises” granted (and subject to revocation) by the government. Oil States left, for another day, the question of whether compensation is required, and in what circumstances, when the government acts to revoke a previously granted patent.
In response to Justice Gorsuch’s dissent, the majority asserted that:
The dissent acknowledges that “Congress authorized inter partes review to encourage further scrutiny of already issued patents.” . . . The second look Congress put in place is assigned to the very same bureaucracy that granted the patent in the first place. Why should that bureaucracy be trusted to give an honest count on first view, but a jaundiced one on second look?
The majority reached its conclusion – the Patent Office’s decision to hear an IPR challenge is not reviewable on time-bar grounds – in harmony with the expressed purpose of IPR reviews: making it easier to eliminate “bad patents” and to prevent the “wast[e] of resources spent resolving patentability.” Essentially, majority concluded that if the patent owner was able to challenge the PTO’s decision to cancel a patent on the merits – as opposed to on the procedure – she would do so (and such merits based challenges are subject to judicial review).
Please join our expert, Daniel L. Geyser, in a discussion of the oral argument. Dan represented Click-to-Call Technologies, LP, in the Supreme Court.
Featuring:
Mr. Daniel L. Geyser, Chair, Supreme Court and Appellate Practice, Geyser, P.C.

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 this case will be held on May 6, 2020. At issue is whether the government-debt exception to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.
Featuring:
Prof. Michael R. Dimino, Sr., Professor of Law, Widener University Commonwealth Law School