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The Paperwork Reduction Act of 1980 created the Office of Information and Regulatory Affair (OIRA) within the Office of Management and Budget (Office of Management and Budget ). Executive Order 12291, issued by President Reagan in 1981, gave OIRA the responsibility to review the subject matter of government agency’ regulatory actions before publication in the Federal Register. The Office’s regulatory review persona was initially highly controversial, and it has been criticized throughout the past decades as being both too active and too passive, in regard to agency rules. Regardless of which side of the political spectrum critics fall on however, many believe OIRA is one of the most important, if relatively unknown, sources of government power in relation to the Executive branch and the Administrative state. Although OIRA has a number of specific statutory responsibilities (e.g., paperwork review and regulatory accounting), as a constituent of OMB it is part of the Executive Office of the President, and helps ensure that covered agencies’ rules reflect the President’s policies and priorities.

As our final event of our Executive Branch Review week, Paul Ray, head of OIRA, joins us to discuss his work and the current relevant issues facing the Office of Information and Regulatory Affairs.

Featuring:
-- Hon. Paul J. Ray, Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget

In October of 2019, President Trump issued an executive order that imposed a series of restrictions and requirements on Federal agencies, and even included a requirement that agencies publish their guidance on the Internet. The purpose of the executive order was to promote transparency and democratic fairness in the administrative law process. This has led to a renewed debate over what the relationship should be between the executive branch and the administrative state, and has also led to some disagreement over whether the executive order represented any meaningful change from the status quo.

Featuring:
-- Hon. Steven Bradbury, General Counsel (and performing the functions and duties of Deputy Secretary), U.S. Department of Transportation
-- John Walke, Director, Clean Air Project, Climate & Clean Air Program, Natural Resources Defense Council
-- Prof. Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University

Article II of the United States Constitution provides that “The executive Power shall be vested in a President of the United States of America.” This declarative statement gave rise to a theory of U.S. constitutional law that posits the President should have control over the entire executive branch. This theory has been given increasing attention with the rise of the administrative state. Some argue that the President does not have enough direct power over executive branch agencies, and that this is a violation of the clear statement in Article II Section I of the Constitution. Others argue that allowing the presidency more power would lead to a more dictatorial executive branch, and lead to a weakening of democracy. Proponents of Unitary Executive Theory respond to this concern by arguing that the absence of a unitary executive undermines democracy because without it democratically elected presidents lack the power to enact the policies that the American people elected them to enact, and instead can be stymied by unelected members of the administrative state. Critics of the Unitary Executive Theory assert that the expertise and insulation from political processes necessary to efficiently run government can be found only in the administrative state. The issue has been further complicated by the increased frequency of inter-agency litigation in the form of different executive branch agencies inhabiting both sides of Supreme Court cases. Proponents of the Unitary Executive theory wonder whether an executive branch divided to this extent is what the founders envisioned while writing Article II.

Featuring:
-- Prof. William Buzbee, Professor of Law, Georgetown University Law Center
-- Hon. Daniel Gallagher, Deputy Chair, Securities Department, WilmerHale and former Commissioner of the SEC
-- Hon. Maureen Ohlhausen, Partner, Baker Botts LLP, and former Commissioner of the FTC
-- Prof. David Vladeck, A.B. Chettle Chair in Civil Procedure, Georgetown University Law Center, former Director of the FTC's Bureau of Consumer Protection

What is the true role and authority of courts to nullify Federal law? During the Obama administration, district judges issued twenty nationwide injunctions, and during the Trump administration district judges have issued over forty of these injunctions. This has led to questions from both sides of the aisle as to what the proper extent and purpose of such nationwide injunctions should be. The founding fathers set forth a clear system of checks and balances, creating a balance of power and a series of checks to tyranny that could be used to safeguard liberty. But were district courts meant to have the power to stymie laws passed by the federal government? On the other hand, must litigants bring cases in multiple districts or circuits in order to fully prevail?

Featuring:
-- Hon. Scott Keller, Partner, Baker Botts LLP
-- Hon. Ken Paxton, State Attorney General, Texas
-- Hon. Beth A. Williams, Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice

Section 230 of Communications Decency Act protects platforms from liability for the content produced by users. As social media platforms have evolved, concerns about free speech and platform liability have sparked debates among legislators regarding the best way to regulate social media companies. Some have questioned whether Section 230 is the best solution and have proposed Congressional enforcement of ‘platform neutrality.’ Others have argued that Section 230 is the best way to protect free speech. During this program, our experts will debate and discuss Section 230 and how Congress should approach regulation of social media companies.

Featuring:
-- Hon. Ronald A. Cass, Dean Emeritus, Boston University School of Law; President, Cass & Associates, PC
-- Neil Chilson, Senior Research Fellow for Technology and Innovation, Charles Koch Institute
-- Josh Divine, Deputy Counsel, U.S. Senator Josh Hawley

The Foreign Corrupt Practices Act (FCPA) governs conduct of U.S. businesses and individuals conducting business abroad, penalizing them for paying bribes to foreign officials in business dealings. This teleforum will discuss recent developments in FCPA Enforcement (i.e., the new corporate enforcement policy/declinations, etc.), criticism of enforcement over the past few years, and offer predictions about what enforcement will look like during a second Trump term or a Biden presidency. Rod Rosenstein and Jonathan Su will offer commentary.
Featuring:
Rod J. Rosenstein, Partner, King & Spalding LLP
Jonathan C. Su, Partner, Latham & Watkins
Moderator: Brian Lichter, Senior Director, Global Investigations, Cognizant

This call is open to the public - please dial 888-752-3232 to access the call.

This teleforum will be a collaborative discussion for attorneys who represent financial institutions, in particular those organizations that are participating in paycheck protection program created by the CARES Act.

Featuring:
-- Jennifer R. McCain, Shareholder, Maynard Cooper Gale
-- Christian Otteson, Partner, Shapiro Bieging Barber Otteson
-- Jonathan Hightower, Partner, Fenimore, Kay, Harrison & Ford, LLP
-- C. Wallace Dewitt, Adjunct Scholar, Center for Monetary and Financial Alternatives

In 1787, there existed a well-developed body of law on the subject of infectious diseases. Over the next 150 years, the nation dealt with new viral challenges as contagion(s) spread through wartime, imperial ventures in tropical regions, and the oft-referenced Spanish Flu. What was the legal framework in 1787, and which curtailments of civil liberties were palatable to the Founders? To what extent do local, state, and federal police powers overlap, and to what degree are those authorities empowered to restrict freedom of contract, travel, and the practice of religious communion? These and other topics will be discussed.
Featuring:
Prof. John C. Harrison, James Madison Distinguished Professor of Law, University of Virginia School of Law

This call is open to the public - please dial 888-752-3232 to access the call.

In a decision in Ramos v. Louisiana handed down on April 20, 2020, the Supreme Court held that the Sixth Amendment guarantees criminal defendants the right to a unanimous jury verdict in both federal and state courts. In reaching its decision, the Court fractured over the precedential weight it should accord its prior Sixth Amendment decisions, raising significant doctrinal questions about the role of stare decisis in constitutional cases. John C. Richter, former U.S. Attorney and acting head of the Criminal Division, will discuss the decision and its ramifications.
Featuring:
John C. Richter, Partner, Special Matters and Government Investigations, King & Spalding LLP

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.

Broadcasters—not the FCC—are responsible for selecting the material that they air. This is why the Commission recently denied a petition filed by Free Press, a public interest group focused on media issues, requesting that the Commission investigate broadcasters that have aired the President’s statements and press conferences regarding the novel coronavirus (COVID-19) and related commentary by other on-air personalities. The petition asked the Commission, under its public interest authority and its rules regulating the broadcast of dangerous hoaxes, to investigate these broadcasts and adopt emergency enforcement guidance “recommending that broadcasters prominently disclose when information they air is false or scientifically suspect.”
The Commission denied this petition, citing both the First Amendment and Section 326 of the Communications Act:
The Commission does not—and cannot and will not—act as a self-appointed, free-roving arbiter of truth in journalism. Even assuming for the sake of argument that Free Press’s assertions regarding any lack of veracity were true, false speech enjoys some First Amendment protection, and section 326 of the Communications Act, reflecting First Amendment values, prohibits the Commission from interfering with freedom of the press or censoring broadcast communications.
Thomas Johnson, General Counsel of the FCC and the co-author of the Commission’s letter denying this petition, as well as Randolph May, Founder and President of the Free State Foundation, will discuss the Commission’s response to this petition, as well as broader First Amendment and policy issues raised by the Commission’s role in regulating broadcast journalism. Does the Commission have a duty, as Free Press asserts, “to rein in broadcasters that seed confusion with lies and disinformation”? What is the Commission’s role in regulating broadcast journalism, and how does it square this role with the First Amendment? To what extent does the First Amendment protect false or misleading speech?
Featuring:
Thomas Johnson, General Counsel, FCC
Randolph May, Founder and President, Free State Foundation


This call is open to the public - please dial 888-752-3232 to access the call.