FedSoc Forums

We are honoring William “Bill” Colwell with a teleforum on a topic we know he would love – the President’s power to approve – and revoke – security clearances. We will discuss recent media accounts of the President reportedly ordering the revocation of clearances of former government officials and insisting on other clearances being granted over the objections of senior government personnel. We will also – in true Federalist fashion – examine the historical wellsprings of each branch of government’s power to act within this realm. It is time to take a closer look at whether there are any practical limits on the Executive’s discretion, and whether Congress can and should play a stronger role.
Bill Colwell was a great patriot and friend to many of us in the Federalist Society, and a pillar within the Washington D.C. legal community, but his appeal was by no means limited to one side of the aisle or to people with whom he agreed. As one recent description phrased it, Bill was “a beautiful mind of insatiable curiosity and creativity, a comedian who made us laugh until tears rolled down our faces, chef and mixologist par excellence.” Bill, a devoted and loving husband and father, was a man of great faith. Bill was Assistant General Counsel and Corporate Director of the Northrop Grumman Corporation. Prior to that, he was employed at The Boeing Company and Wiley, Rein & Fielding LLP. He served in the United States Navy as a nuclear submarine officer on the USS Hampton, where he received numerous awards. A nationally recognized expert in government contracts, Bill frequently spoke and published on procurement issues. He served on the Board of the Federal Circuit Bar Association, chaired the Legal Committee of the National Defense Industrial Association, and recently received the 2018 NDIA Howard H. Cork Memorial Award for exceptional service to NDIA and the defense industry. But beyond all professional interests, Bill loved his family and is mourned by his wife, Robin, their twin daughters and their extended families.
Featuring:
Opening Remarks: Paul Khoury, Partner, Wiley Rein LLP
Prof. Dakota S. Rudesill, Assistant Professor, Moritz College of Law, The Ohio State University.
Prof. Robert F. Turner, Professor, General Faculty, and Distinguished Fellow and Associate Director, Center for National Security Law, University of Virginia
Moderator: Hartmann Young, Senior Counsel, Government Business, GE Aviation


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 Texas Tech Medical School recently approved an agreement with the United States Department of Education's Office for Civil Rights, to end the use of racial preferences in their admissions process. The agreement was reached after over a decade of negotiation, initiated by a complaint filed by the Center for Equal Opportunity against Texas Tech in 2004. The agreement is a promising sign for opponents of racial preferencing in school admissions process, and could have significant implications for the future.
Roger Clegg joins us to discuss the recent agreement, and its implications.

Remember “The Slants,” the Asian-American rock band who were denied a trademark because the U.S. Patent and Trademark Office (PTO) thought the band’s name was “disparaging”? In Matal v. Tam (2017), the Supreme Court unanimously struck down the Lanham Act’s anti-disparagement provision. (That also resolved the battle over the Washington Redskins’ trademarks.) Well, here we go again, this time with a related provision that prevents registration of “immoral” or “scandalous” marks. It doesn’t take much imagination to figure out what the clothing brand “Fuct” is going for, and the PTO decided it did not pass muster. The Federal Circuit struck down the relevant provision—as it had in Tam—and the Supreme Court again took the case. The government argues that it isn’t stopping Fuct from using its name, only declining to register it as a trademark. Under the First Amendment, should federal officials be making calls about what’s “scandalous” or “disparaging.” Ilya Shapiro, lead counsel of an amicus brief for the Cato Institute, P.J. O’Rourke, and other individuals and groups, is attending the April 15 argument and will share his thoughts afterwards.
Featuring:
Mr. Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, 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.

In Dawn of the Code War, authors John P. Carlin and Garrett M. Graff describe how the Internet has been weaponized by hackers to facilitate election tampering, theft of intelligence files, and many other online forms of attack. The digitization of our economy gives our enemies more avenues to attack us. Carlin and Graff explain the unusual difficulties America has faced in cyber warfare, partially due to our adversaries not abiding by the same rules of engagement online. The United States government does not have a developed framework of how to respond to these various attacks, and many of these technological developments are still unfamiliar. Our understanding of the threats we are facing is essential to combatting them, and this book makes it clear how necessary winning the code war is.
Featuring:
John P. Carlin, Partner, Morrison & Foerster LLP, and former Assistant Attorney General for the U.S. Department of Justice's (DOJ) National Security Division (NSD)


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 February 14, 2019, the Environmental Protection Agency and the U.S. Army Corps of Engineers published a proposed rule defining “waters of the United States” under the Clean Water Act (CWA). This is a critical definition because it clarifies the waters that are regulated under the CWA.
For decades, the EPA and Corps have struggledto come up with a proper definition that is both consistent with the plain language of the statute, respects the state role in addressing water pollution, and is consistent with the rule of law. Does the new proposed rule address these concerns? What are some of the concerns with the proposed rule? How should the EPA and the Corps define key terms such as “tributaries” and “adjacent wetlands?” Should a final rule include intermittent waters? Please join us as we discuss these questions and many others in this timely Teleforum.
Featuring:
Deidre Duncan, Partner, Hunton Andrews Kurth LLP
Tony Francois, Senior Attorney, Pacific Legal Foundation
Moderator: Daren Bakst, Senior Research Fellow in Agricultural Policy, Roe Institute for Economic Policy Studies, The Heritage 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.

Monday, April 1st, the Supreme Court ruled on the 8th amendment case Bucklew v. Precythe. Plaintiff Russell Bucklew was sentenced to death on counts of kidnapping, rape, and murder, and the execution was to take place on May 21, 2014. However, Bucklew then filed an appeal that the lethal injection protocol to be followed would represent cruel and unusual punishment in his case because of his unique medical condition. Plaintiffs argued for an alternative execution method.
The Supreme Court, in a 5-4 decision written by Justice Neil Gorsuch, affirmed the trial court and appellate court rulings and found in favor of the respondent. The Court reasoned that the plaintiff had failed to meet his burdens of proof, based on prior Supreme Court precedent. Justice Stephen Breyer wrote a dissenting opinion, which was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elana Kagan.

The holding has caused significant controversy, and may indicate the future of the Supreme Court on death penalty cases, as well as interpretation of the 8th amendment.
Featuring:
Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation

When state regulators block approval of construction projects, disappointed businesses routinely challenge the decision in court. A lawsuit currently pending in the Western District of Washington, Lighthouse Resources v. Inslee, however, is not your average permit dispute. The plaintiff, Lighthouse Resources, wants to build an export terminal on the Columbia River that can accept and ship coal to Asian customers mined at Lighthouse-owned sites in Montana and Wyoming. The terminal will generate billions in taxable revenue and create thousands of jobs. The defendants, whose opposition to coal as an energy source is well documented, have denied a federally required water-quality certification. Lighthouse’s constitutional claims (also asserted by intervenor BNSF Railway) include federal preemption and violation of the Commerce Clause. Early motions have attracted state amici supporting each side as well as briefs from business associations and environmental groups. The suit has reached a critical stage, with the plaintiffs moving for summary judgment on the Foreign Commerce Clause claim, arguing that the defendants’ actions “implicate” foreign policy issues in a way that prevents the federal government from speaking with “one voice” about international trade.
Featuring:
Glenn G. Lammi, Chief Counsel, Legal Studies Division and Director, Communications, Washington Legal Foundation
Prof. Donald J. Kochan, Parker S. Kennedy Professor in Law and Associate Dean for Research & Faculty Development, Chapman University, Dale E. Fowler 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.

On March 19, 2019, the Supreme Court decided Air & Liquid Systems Corp., et al. v. DeVries, which concerned whether federal maritime law requires a manufacturer of non-asbestos containing parts -- like pumps, turbines and blowers for Navy ships -- to warn Navy sailors when it is likely asbestos will be used with those parts later (in this case as insulation or connected parts). The plaintiffs were two Navy veterans (and their families) who had been exposed to asbestos, developed cancer and died. They sued the manufacturers of the non-asbestos containing products for failing to warn. The district court granted summary judgment in favor of the manufacturer but the Third Circuit vacated and remanded arguing for application of a foreseeability test.
The plaintiffs argued that the manufacturers had a duty to warn because they knew that asbestos would be required to be incorporated with their parts to function properly. The defendants argued that they had no duty to warn because they were not incorporating the asbestos with their product, the Navy was.
The Supreme Court, by a vote of 6-3, in an opinion by Justice Kavanaugh held that “a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize the danger.” The Court noted that they did not agree with the entirety of the Third Circuit’s reasoning but affirmed its judgment directing the district court to reconsider its grant of summary judgment.
Karen Harned will discuss the Supreme Court’s decision and what it could mean for product liability law outside of the maritime context.
Featuring:
Karen R. Harned, Executive Director, NFIB Small Business Legal Center

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.

How an agency counts costs and benefits can often determine whether it will regulate at all. EPA’s reconsideration of its co-benefit accounting methodology in the context of its mercury standard could have significant implications for environmental regulation.
Since the Reagan Administration, federal agencies have been required by Executive Order to quantify the costs and benefits of significant regulatory actions, and to avoid regulations that do more harm than good. Some statutes also explicitly or implicitly require an agency to consider the costs of regulation. The Clean Air Act’s “hazardous air pollutants” provision is such a statute. In Michigan v. EPA, the Supreme Court held that the statutory limitation to “appropriate and necessary” regulation required EPA to consider cost. Justice Scalia’s opinion for the Court explained, “One would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.”
But what counts as a benefit when EPA is regulating air pollution? Just the health effects of reducing the targeted pollutant? Or all the ancillary benefits (known as “co-benefits”) of other pollutants that are reduced along with it? What if those secondary pollutants are already regulated under different provisions of the same act?
The Obama Administration’s Mercury and Air Toxics Standard was estimated to impose $9.6 billion in compliance costs on the energy sector in exchange for $4 to $6 million in mercury-related benefits. But the rule was also estimated to generate $37 to $90 billion in co-benefits from incidental reductions of particulate matter, a pollutant that is regulated under EPA’s National Ambient Air Quality Standards. In a “Revised Supplemental Cost Finding” EPA has recently proposed to re-do its cost-benefit assessment for the mercury standard, excluding the particulate matter co-benefits and rescinding the Obama Administration’s finding that the mercury standard was “appropriate and necessary.”
Professor Dan Farber and Adam Gustafson will discuss different possible approaches to valuing co-benefits in the context of hazardous air pollution and environmental regulation more broadly.
Featuring:
Prof. Dan Farber, Sho Sato Professor of Law and Faculty Director of the Center for Law, Energy, and the Environment, University of California, Berkeley
Adam Gustafson, Partner, Boyden Gray & Associates PLLC

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 the Nielsen v. Preap decision, released on Wednesday, March 20, Justices Thomas, Gorsuch, Kavanaugh, and Roberts joined Justice Alito in finding that a mandatory detention statute regarding potentially removable immigrants applied to a wider class of persons than previously found in Demore v. Kim (2003). The Constitutional issue surrounds 8 U.S.C. § 1226(c)(1), known as the “mandatory detention provision” of the Immigration and Nationality Act, states that “The Attorney General shall take into custody any alien who—when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.” Immigrants who commit certain crimes, specified in the statute, are not entitled to a bond hearing and once detained can be held in federal custody until their removal proceedings are resolved.
In two Ninth Circuit decisions, Preap v. Johnson and Khoury v. Asher, it was ruled that criminals released but not immediately detained were entitled to a bond hearing. The ruling in Nielsen reverses these holdings, insofar as Justice Alito concluded that so long as the immigrants meet the criteria set forth in 8 U.S.C. § 1226, the period of time between release and detention is irrelevant. (DHS did not take Preap “into custody” until about seven years after Preap was released from criminal custody.) Justice Alito, writing for the majority, stated that it was “better late...than never” with regard to detention, supporting this conclusion with a grammatical analysis. Specifically, because “an adverb cannot modify a noun, the “when released” clause cannot modify ‘alien’”. In other words, nothing in the plain meaning of the text supports the Circuit Court’s decisions to differently apply the statute to those aliens who were not detained immediately on release from prison.
Featuring:
Greg Brower, Shareholder, Brownstein, Hyatt, Farber, Shreck

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on the 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.