FedSoc Forums

Recent elections in Latin America have brought about abrupt shifts in government in Argentina, Brazil, Chile, Colombia, and Mexico, while unexpected upheavals in Bolivia and Ecuador have reversed their respective political status quo and challenged the rule of law. Reaction everywhere is mixed; there has been violent social upheaval in Chile, muted protest amidst populist upheaval in Brazil, grave economic worry in Argentina, stymied reform in Colombia, government by prosecution and shutdown in Peru, creeping authoritarianism in Mexico, and increasing influence by militaries on regimes across the region. These developments occur amidst increasing great power interest in the region. China is using its “sharp power” to dominate foreign direct investment and infrastructure in order to supplant U.S. influence in the region. Russia, meanwhile, throws economic lifelines to Venezuela, securing its illicit revenue streams and gaining a disruptive military and economic presence in the Western Hemisphere. What is at the roots of these developments, and what do, or should, they mean for U.S. policy in the region?

Featuring:
-- Ryan Berg, Ph.D., Research Fellow in Foreign & Defense Policy, The American Enterprise Institute; Adjunct Professor is International Relations, The Catholic University of America
-- Brian Winter, Editor In Chief, Americas Quarterly, and Vice-President for Policy, The Américas Society/Council of the Americas
-- Moderator: James Dunlop, Of Counsel, Jones Day

On March 3, 2020, the Supreme Court will hear oral arguments for the case of Liu v. Securities and Exchange Commission (SEC). At issue is "whether the Securities and Exchange Commission may seek and obtain disgorgement from a court as “equitable relief” for a securities law violation even though the Supreme Court has determined that such disgorgement is a penalty." Todd Braunstein joins us to give perspectives on the oral arguments and offer possibilities for outcomes.
Featuring:
Todd F. Braunstein, General Counsel - International, Willis Towers Watson


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.

This teleforum previews the upcoming March 4, 2020, Supreme Court oral argument in consolidated cases June Medical Services v. Russo and Russo v. June Medical Services (formerly June Medical Services v. Gee and Gee v. June Medical Services). These cases involve the constitutionality of Louisiana's law requiring physicians who perform abortions to have admitting privileges at a local hospital and whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations, such as Louisiana's admitting privileges law, on behalf of their patients.
Featuring:
Denise Harle, Senior Counsel, Alliance Defending Freedom
Prof. Stephen l. Vladeck, Professor of Law, The University of Texas at Austin School of Law


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.

In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Supreme Court will decide the constitutionality of the CFPB, an agency long criticized not just by the business community but also constitutional scholars who see major problems a single-director agency seemingly unaccountable to the president or anyone else. The lawsuit was brought by a law firm that assists in resolving personal-debt issues, among other legal work that puts it in the crosshairs of those who want greater regulation of consumer-facing financial services. The CFPB is the most independent of independent agencies, with power to make rules, enforce them, adjudicate violations in its own administrative hearings, and punish wrongdoers. It doesn’t need Congress to approve its budget, because its funding requests are met by another agency insulated from political control: the Federal Reserve. Even CFPB supporters concede that the CFPB structure and authority is unique. Please join Ilya Shapiro for a review of the oral arguments in this important case.

Featuring:
-- Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute

The Supreme Court recently denied Arizona’s motion for leave in Arizona v. California, which sought to challenge California’s extraterritorial taxation and seizures of out-of-state funds as unconstitutional. Specifically, California imposed a “doing business” tax on Arizona entities that conduct no actual business in California and have no connection to the state except for purely passive investments in California companies. Justices Thomas and Alito dissented, and explained that the Court’s policy of treating its jurisdiction over suits between states as discretionary was “not only textually suspect, but also inequitable.”

The Court’s action raises important questions about the nature of the Supreme Court’s original jurisdiction and the Court’s failure to provide any detailed rationale of how its jurisdiction—which is “original and exclusive”—is also discretionary. Listen to Arizona Attorney General Mark Brnovich talk about how this decision could impact future original actions, including pending actions by Montana and Wyoming against Washington and Texas against California.

Featuring:
-- Hon. Mark Brnovich, Arizona Attorney General

In a 9-0 decision, the Supreme Court decided Shular v. United States, rejecting the defense argument that Florida’s unique drug laws cannot be used to enhance a federal sentence. At issue was a federal statute known as the Armed Career Criminal Act (“ACCA”). ACCA imposes a mandatory 15 year sentence on defendants convicted of federal firearms-related felonies if they have 3 or more prior convictions for “serious drug offenses” or “violent felonies.” In 2017, local law enforcement officers executed a search warrant at the Florida home of Eddie Shular who was the target of a drug trafficking investigation being conducted by the Drug Enforcement Administration (“DEA”). During the search, the officers seized a firearm from a bedroom closet. Because Shular was a convicted felon, he was charged under federal law with the crime of being a felon in possession of firearm (18 USC section 922(g)(1)). He pled guilty to that offense and, because he had more than three prior convictions for serious drug offenses, he was sentenced to the mandatory minimum of 15 years in prison under the applicable federal statute. He appealed his sentence arguing that because, under Florida law, none of his state convictions would qualify as a “serious drug offense” because the relevant state laws did not require that the government prove that Shular had “knowledge of the illicit nature of the substance,” and the Florida crimes were, therefore, broader than the generic drug offense analogues under federal law. The Eleventh Circuit upheld his conviction and sentence, rejecting the application of the “categorical approach” to defining “serious drug offenses, and holding that the ACCA definition “requires only that the predicate offense involve certain activities related to controlled substances.” The Supreme Court affirmed, holding that “serious drug offense” requires only that the state offense involve the conduct specified in the statute, and does not require that the state offense in question match certain generic drug offenses under federal law.

Featuring:
-- Gregory A. Brower, Shareholder, Brownstein Hyatt Farber Schreck

Does New York’s “rent stabilization” law violate the federal Constitution? The law, which regulates approximately 1 million apartments in New York City, was enacted more than fifty years ago and remains in effect based on an every-three-year declaration of a housing “emergency.” The law does not merely regulate rent levels, it also limits a property owner’s right to determine who uses an apartment, to convert the property to new uses, and to occupy the property for use by the owner and his or her family.

A lawsuit filed last year asserts that the New York law—including 2019 amendments that significantly increased the restrictions on property owners—violates due process and effects both physical and regulatory takings of the property that it regulates. New York City, New York State, and tenant advocacy groups have moved to dismiss the action.

Rent control is not just a New York phenomenon. Other cities across the country have enacted, or are considering, rent regulation legislation. Andrew Pincus, lead counsel for the plaintiffs, and Prof. Richard Epstein, of New York University School of Law, will discuss the constitutional challenge in the context of the Supreme Court’s evolving property rights jurisprudence.

Featuring:
-- Andrew Pincus, Partner, Mayer Brown LLP
-- Prof. Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law

In a matter of first impression, the Fifth Circuit Court of Appeals recently issued an opinion in the consolidated case of McMahon v. Fenves, concerning the removal of historic Civil War and World War I monuments to American veterans from the University of Texas at Austin and Travis Park in San Antonio. The Court cited lack of standing that precluded its jurisdiction over the controversy under Lujan v. Defenders of Wildlife. The issue of standing is itself of interest, because the question in this context concerns who has authority to control societal memory. Plaintiff-Appellants initially cited to state law cases from Hawaii, New Mexico, and Maine that provide a public-interest exception to general standing requirements. This exception provides for standing to any member of the affected public in a matter of general public interest. Plaintiffs in the instant case argued that the public interest to protect core political speech should provide standing. Plaintiffs contended that political speech is a general good that should be given an exception to the general standing requirements, as political speech enjoys protections in all other areas of law that should, here, be recognized in the protection of historic monuments that communicate political speech. While federal and state constitutions protect core political speech, the question arises as to what protections, including constitutional, should exist to protect historic political speech meant to be expressed in perpetuity. The Fifth Circuit, as an intermediate appellate court, has reasonably applied a temporally narrow interpretation of standing of historic political speech that does not include successor associations to intended beneficiaries, nor successors to testamentary beneficiaries. However, in an era unprecedented in American history in which historical memory is continually challenged, the preservation of societal memory may well deserve an exception to the general standing requirements under Lujan.

Featuring:
-- David D. Vandenberg, Staff Attorney, Eighth Texas Court of Appeals

On Tuesday, in a 5-4 decision in McKinney v. Arizona, the Supreme Court of the United States issued a landmark death penalty and criminal procedure opinion about the division between direct and collateral review and the jury requirements that the Court had previously explicated in the Apprendi line of cases, including Ring v. Arizona and Hurst v. Florida. At issue was an Arizona Supreme Court opinion that conducted an appellate reweighing of aggravation and mitigation after a remand from the En Banc Ninth Circuit for a supposed error in treatment of certain mitigation on direct appeal. Writing for the majority, Justice Kavanaugh clarified or confirmed several important criminal and death penalty procedure issues. First, the majority affirmed the ongoing validity of Clemons v. Mississippi and the availability of appellate reweighing of aggravation and mitigation. Second, the Court confirmed that a jury need only find the existence of an aggravating factor, and need not conduct the weighing of aggravation and mitigation or impose the particular sentence in a death penalty case. Third, the Court affirmed that a state court conclusion as to the collateral nature of a state appellate proceeding was not subject to dispute by the Court.

Featuring:
-- Oramel H. (O.H.) Skinner, Solicitor General for Arizona

On March 15, 2020, certain authorities under the Foreign Intelligence Surveillance Act (FISA) will expire absent renewal by Congress. The authorities set to expire fall into three categories: 1) the business records provision (often referred to as Section 215) that allows for collection of call detail records, among other things; 2) roving wiretaps; and 3) the lone wolf provision. Former Congressman Bob Goodlatte (R, VA-6) who served as the Chair of the House Judiciary Committee will share his views of how he expects Congress will address the renewal of these authorities and his recommendations for reforms to FISA. Please join us for this timely discussion.
Featuring:
Hon. Bob Goodlatte, Former Congressman, United States House of Representatives
Moderator: Matthew R. A. Heiman, Senior Fellow and Associate Director for Global Security, National Security Institute

Please dial 888-752-3232 to access the call.