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On June 27, the Supreme Court decided Department of Commerce v. New York, the legal challenge arising from Commerce Secretary Wilbur Ross’s decision to ask about the citizenship of census respondents. The case presents three questions: First, whether the 2020 Decennial Census can ask regarding each person counted at each residential address in the nation whether that person is a U.S. citizen. Second, whether district courts in an Administrative Procedure Act (APA) can order discovery beyond the administrative record to examine a Cabinet officers’ decision-making. And third, whether adding a question on citizenship violates the Constitution’s Enumeration Clause.
Chief Justice Roberts delivered the majority opinion (5-4) which claimed Secretary Ross did not violate the Enumeration Clause or the Census Act by reintroducing a citizenship question on the 2020 census, however because of the discrepancy between the Department of Commerce's evidence and the Secretary's explanation for his decision, the case is sent in part back to the District Court.
Please join us as our expert shares his reaction to and analysis on the decision.
Featuring:
Dr. John S. Baker, Jr., Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University

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This morning the Supreme Court decided the much-anticipated Kisor v. Wilkie case. The Court had granted certiorari in Kisor to decide whether to overrule Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997). Seminole Rock and Auer are often cited for the proposition that when an administrative agency promulgates a regulation and the regulation is ambiguous, a reviewing court must give “controlling weight” to the agency’s interpretation of the regulation unless the interpretation is plainly erroneous or is inconsistent with the regulation. A number of the Court’s members had cast doubt on the soundness of the Seminole Rock/Auer deference doctrine in recent years, and many observers have predicted that the doctrine’s days are numbered.
Karen Harned and Stephen Vaden will join us today to discuss that morning’s highly-fractured decision in Kisor and its potential implications -- including for the Chevron deference doctrine that applies to agency interpretations of statutory provisions (set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)).
Featuring:
Karen Harned, Executive Director, NFIB Small Business Legal Center
Stephen Vaden, General Counsel, United States Department of Agriculture

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.

Just over a year ago, in a case involving an obscure car dealership exemption from the Fair Labor Standards Act’s overtime requirement, the Supreme Court established a new standard for interpretation of FLSA exemptions. Citing Justice Scalia’s final book, Reading the Law, the Court rejected the made-up cannon that courts must narrowly construe FLSA exemptions; rather, the Court held, FLSA exemptions must be given a fair interpretation. One year later, how has this change from “narrow” to “fair” interpretations impacted FLSA litigation and DOL investigations?
Featuring:
Tammy D. McCutchen, Principal, Littler Mendelson P.C.

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On June 11, 2019, the Washington State Supreme Court heard back-to-back arguments in a pair of cases entitled, Yim v. City of Seattle (Yim I and Yim II). At issue are two Seattle ordinances that significantly alter the way residential landlords are allowed to select their tenants. Yim I concerns the City’s “first in time” rule, which requires landlords to offer tenancy to the first qualified applicant. If the applicant does not exercise the right, then it passes to the next in time applicant until accepted. The ordinance declares it unlawful for a landlord to deviate from this process, depriving landlords of discretion in the selection process (including the common practice of waiving minimum requirements for otherwise worthy applicants). A King County trial court held that the ordinance violated the takings, due process, and free speech clauses of Washington’s constitution. Seattle appealed the decision directly to Washington’s Supreme Court, asking the Court to overrule decades of regulatory takings and due process case law.
Yim II involves a substantive due process challenge to Seattle’s “fair chance housing ordinance,” which declares it unlawful for a landlord to inquire into an applicant’s criminal history or deny an application based on the applicant’s criminal history. At issue there is Washington’s due process test, which asks, in part, whether a law is unduly oppressive on individual rights. On summary judgment, the City argued that the unduly oppressive test is an anachronism that had been impliedly overruled by Amunrud v. Bd. of Appeals, 158 Wn.2d 208 (2006). The Washington Supreme Court took review of this issue as part of a certified question regarding the proper standard of review in a due process claim involving a deprivation of a property right.
Featuring:
Ethan W. Blevins, Attorney, Pacific Legal Foundation
Brian T. Hodges, Senior Attorney, Pacific Legal Foundation

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.

For decades, the law surrounding the constitutionality of monuments and memorials has been in disarray, primarily as a result of the application, or, as it turns out, misapplication of the Supreme Court’s 1971 decision in Lemon v. Kurtzman. On June 20, 2019, the United States Supreme Court held in The American Legion v. American Humanist Association, a 7-2 decision that included a variety of concurring and dissenting opinions, that the 94-year-old Bladensburg World War I Veterans Memorial, or Peace Cross, is constitutional. Even apart from the ruling on the Peace Cross itself, one of the most long-lasting impacts of the decision may lie in Part II-A which, though it did not garner a majority of votes, essentially announced the end of the application of Lemon in Establishment Clause challenges to monuments and memorials. Christopher DiPompeo, of Jones Day, who represented The American Legion, joins us to discuss why that is so and other implications of the case.
Featuring:
Christopher DiPompeo, Partner, Jones Day


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 U.S. Supreme Court’s decision in Gundy v. United States disappointed some observers who were hoping that the Court would use the case to reinvigorate the nondelegation doctrine. Instead, the Court upheld the federal government’s authority under the Sex Offender Registration and Notification Act (SORNA), a 2006 law requiring sex offenders to register with authorities in the state where they reside. A plurality of the Court held that the statute contains enough of an “intelligible principle” to guide the Attorney General’s decision-making regarding the statute’s application to past offenders to pass muster under the nondelegation doctrine. It also decided that the statute was explicit enough in specifying its retroactive application to pre-SORNA offenders. Justice Alito joined the Court’s four liberals, concurring in the judgment only. He reasoned that “it would be freakish to single out the provision at issue here for special treatment” different from the Court’s approach since 1935. And he could not “say that the statute lacks a discernable standard that is adequate under” that prevailing approach. However, he also stated that he would be willing to join a Court majority in reconsidering that approach in a future case. No such majority existed here, perhaps in part because Justice Kavanaugh did not participate in the case.
This teleforum will examine the Court’s decision in Gundy, dissect the various viewpoints that the justices presented, and explore questions such as:

Will the 4-1-3 decision here leave the status quo intact or embolden lower courts to identify more nondelegation problems?
Why didn’t the Court order new oral argument in the case with Justice Kavanaugh participating this time?
Will Congress view this outcome as an invitation to delegate more decisions about the scope of the criminal law to the Attorney General?
Do Justice Alito’s concurrence and the strong dissent from Justice Gorsuch (joined by The Chief Justice and Justice Thomas) signal that the nondelegation doctrine will soon be revived?

Featuring:
Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties Alliance

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.

Since the 1985 Williamson County v. Hamilton Bank decision, property owners have been able to file claims against local government for takings only in state court. And once there, any decision is res judicata to any subsequent federal action. This made property rights claims the only constitutional right that cannot be vindicated in federal court.
Mrs. Rose Mary Knick owns roughly 40 acres in rural Scott Township in Pennsylvania. At the behest of some local activists the township passed an ordinance that allows members of the public to trespass across her property to visit some large stones that the activists claim are colonial-era gravestones. Mrs. Knick had no legal way to stop this invasion of her property – short of suing for a taking. When she tried to sue in state court she was rebuffed because she hadn’t yet been fined for not allowing the trespass. When she next tried to sue in federal court for a taking, she was again rebuffed, that time because of Williamson County.
The Supreme Court decided by a vote of 5-4 in Knick v. Township of Scott, Pennsylvania to vacate the judgment of the Third Circuit and remand the case. Chief Justice Roberts' majority opinion states, "We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it. That does not mean that the government must provide compensation in advance of a taking or risk having its action invalidated: So long as the property owner has some way to obtain compensation after the fact, governments need not fear that courts will enjoin their activities. But it does mean that the property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under §1983 at that time."
Please join us as our featured speakers review this decision and its implications.
Featuring:
James S. Burling, Vice President for Litigation, Pacific Legal Foundation
Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason 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 U.S. Supreme Court will soon consider the third of several petitions for certiorari asking it to review a question which has split the lower federal courts: whether district courts have the power under the Federal Rules of Civil Procedure to issue preliminary injunctions in takings under the Natural Gas Act which allow private pipeline condemnors to obtain immediate possession of property, even though Congress has withheld the federal “quick take” power in the NGA. The Third, Fourth, Ninth, and Eleventh Circuits have concluded that simply because Congress did not delegate to private pipeline condemnors the quick take authority—the power to obtain immediate title and possession of condemned property upon a deposit of estimated compensation—neither did it withhold from federal courts their usual equitable powers to issue injunctions. The Seventh Circuit concluded otherwise: that because private pipeline condemnors were not delegated the quick take power in the NGA, possession must wait until the court adjudicates the final compensation owed, and the pipeline condemnor exercises its option and makes that payment. This Term, the Court declined to review two of the three petitions, but the issue is one that is not going away.
Featuring:
Chris Johns, Partner, Johns & Counsel PLLC
Jeffrey A. Simmons, Partner, Foley & Lardner LLP
Moderator: Robert H. Thomas, Director, Damon Key Leong Kupchak Hastert

In Gamble v. United States, Terance Gamble received two sentences and two convictions for the same crime - once under Alabama law and once under federal law due to the doctrine of dual sovereignty. While convicting someone twice for the same crime usually violates the double jeopardy clause of the constitution, the Supreme Court decision in Abbate v. United States declared that because states and the federal government are separate sovereigns, an individual can be prosecuted for the same crime twice, once by the Federal government, and once by a state government. In Gamble v. United States, the Supreme Court upheld this dual sovereignty doctrine. Clark Neily joins us to discuss the decision and its implications.
Featuring:
Clark Neily, Vice President for Criminal Justice, Cato Institute

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.

On June 4, 2019, a Ninth Circuit panel heard oral argument in a high-profile interlocutory appeal in Juliana v. United States, regarding whether the U.S. Constitution gives rise to cognizable constitutional and federal common law claims against the Executive Branch for actions alleged to cause or contribute to climate change.
The Juliana plaintiffs – most of whom were minor children when the suit was filed in 2015 – argue, inter alia, that the federal government has violated their fundamental right to a stable climate grounded in the Due Process and Equal Protection Clauses of the Fifth Amendment to the Constitution. The plaintiffs also argue that the government has breached its duty to hold the atmosphere in trust under federal common law principles. In 2016, the district court denied the federal government’s motion to dismiss the complaint. After many twists and turns (including unusual mandamus proceedings in the Ninth Circuit and the Supreme Court), the district court certified the case for interlocutory appeal to the Ninth Circuit in late 2018. The federal government argues that the plaintiffs lack standing; that the case is not justiciable in any federal court under Article III of the U.S. Constitution; that the plaintiffs’ claims were not properly brought pursuant to the Administrative Procedure Act; and that the plaintiffs have failed to state a claim on the merits upon which relief can be granted.
Featuring:
Prof. James R. May, Distinguished Professor of Law, Widener University Delaware Law School
Damien M. Schiff, Senior Attorney, Pacific Legal Foundation
Moderator: Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law; Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University 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.