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Since 1789, the Supreme Court has struck down only two laws on “nondelegation” grounds, both in 1935. Gundy v. United States will potentially be a third such ruling, depending on whether the Deputy Solicitor General can convince the justices to save the delegation of authority in the Sexual Offence Notification Act (SORNA). The particular provision of SORNA at issue, which directs the Attorney General to decide whether SORNA’s registration requirements apply to sexual offenders convicted before the Act’s passage, may allow the Court to issue a narrow or broad ruling, but any opinion applying the nondelegation doctrine is likely to be a landmark ruling. The case directly affects three of the Federalist Society’s practice groups, and the case indirectly affects almost every other area of federal law.
The nondelegation doctrine operates to prevent Congress from delegating the lawmaking power the people vested in it to another branch or any other entity, but what is the core lawmaking power that Congress cannot delegate? How broadly can Congress phrase its legislation, and how much can it delegate to the regulatory agencies to fill in? The courts’ role in enforcing the constitutional delegation line is even more hotly debated. No justice has disagreed that the nondelegation rule is essential to maintaining the constitutional Separation of Powers, but some have expressed concern in prior decades about a judicially manageable standard for the courts to apply. In recent years, the Court’s lax enforcement of its “intelligible principle” standard from 1928 has been criticized by Justice Thomas, then Judge Gorsuch and many other commentators. The Gundy case presents the Court with a range of options, including from amici who have asked the Court to provide teeth to its intelligible principle standard or to adopt a textually-based standard that would more fully restore the delegation doctrine. How far will the majority go to revive the nondelegation rule, and will concurring justices urge additional movement in the same direction? Or will the doctrine, now on life support, be further diminished?
Todd Gaziano is the counsel of record for Pacific Legal Foundation’s brief in Gundy supporting reversal of the decision below, and joins us to discuss the oral arguments.
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Axios recently opined that:

Be it guns or global warming, a fascinating trend is unfolding in the Trump era: Corporations, under intense social pressure, are filling a void left bygovernmental gridlock or avoidance. (emphasis added) … [t]his phenomenon is inspired not by the pure benevolence of corporations. Instead, it’s intense pressure from social media mobs …

Seeking a remedy to the “governmental gridlock,” Senator Elizabeth Warren introduced the Accountable Capitalism Act,which would seem to codify political government involvement in what has historically been viewed as the exercise of free market capitalism by U.S. based business entities.

Charles Elson and Mark Nance join us to discuss this trend and what the law regarding a board’s duty to stakeholders is and should be.

Featuring:

Charles Elson, the Edgar S. Woolard, Jr., Chair in Corporate Governance and the director of the John L. Weinberg Center for Corporate Governance at the University of Delaware.

Mark Nance, Senior Vice President and Global General Counsel for Mylan N.V

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In this groundbreaking work, Stephen M. Bainbridge and M. Todd Henderson change the conversation about corporate governance by examining the origins, roles, and performance of boards with a simple question in mind: why does the law require governance to be delivered through individual board members? While tracing the development of boards from quasi-political bodies through the current 'monitoring' role, the authors find the reasons for this requirement to be wanting. Instead, they propose that corporations be permitted to hire other business associations - known as 'Board Service Providers' or BSPs - to provide governance services. Just as corporations hire law firms, accounting firms, and consulting firms, so too should they be permitted to hire governance firms, a small change that will dramatically increase board accountability and enable governance to be delivered more efficiently. Outsourcing the Board should be read by academics, policymakers, and those within the corporations that will benefit from this change.
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In Knick v. Township of Scott, the Supreme Court will consider overturning a 33-year old precedent that prevents property owners from filing federal “takings” claims against state and local governments in federal court. The case arose when Scott Township, a small town in rural Pennsylvania, passed an ordinance that imposed a public easement on Rose Knick’s private farm. But the Town did not pay Ms. Knick just compensation or acknowledge that it had taken her property. Instead it threatened her with daily fines.
When Ms. Knick tried to protect her property rights in state court, the state court held that it could not hear her case until the town brought civil enforcement proceedings against her. So Ms. Knick filed a takings claim in federal court. But that court dismissed her claim as unripe, because of a 1985 decision, Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, in which the Supreme Court held that a federal takings claim against state or local government is not ripe until after the property owner pursues a takings claim in state court.
But in 2005, in San Remo Hotel v. City and County of San Francisco, the Supreme Court held that once litigated in state court, the full faith and credit statute bars federal courts from hearing the related case. In other words, the very action that ripens a federal takings claim also destroys the claim. In short, Williamson County closed the federal courthouse doors to federal takings claims against state and local governments. Will Knick open those doors once again?
Christina Martin is an attorney with the Pacific Legal Foundation and is co-counsel and second chair for Rose Knick in Knick v. Township of Scott.
Featuring:
Christina M. Martin, Attorney, Pacific Legal Foundation

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In 2012, the U.S. Fish and Wildlife Service (Service or agency) designated 1,544 acres of land in Louisiana and additional land in Mississippi as “critical habitat” for the endangered dusky gopher frog. The agency made this designation pursuant to authority delegated by Congress in the Endangered Species Act. The Louisiana designation includes land owned by three family businesses that have held the property in their family for over a century and Weyerhaeuser Company, which leases some land from those landowners and also owns a small portion of it (collectively, the Landowners).
The government designated the Louisiana property critical habitat for the “shy frog” even though the frog has not been seen anywhere near the land—let alone in Louisiana at all—in more than 50 years; this led the Service to designate it unoccupied critical habitat. Because the Landowners did not believe the Endangered Species Act and the Constitution allowed the agency to designate their Louisiana land critical habitat for the frog, they challenged the designation as exceeding the agency’s statutory and constitutional authority. That challenge has now hopped its way to the Supreme Court, which will hear argument in the case on October 1, 2018—the first day of the new Court term. The case will have implications for both environmental law and administrative law practice throughout the country.

Featuring:
Mark Miller, Senior Attorney, Pacific Legal Foundation

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On October 2, the Supreme Court will hear oral arguments in Gundy v. United States. In this case the Court will once more be asked to interpret the Sex Offender Notification and Registration Act (SORNA). Petitioner Gundy asks the Court to review an issue under the Act which he claims impacts “hundreds of thousands of individuals.” Namely, whether SORNA improperly delegates to the U.S. Attorney General authority to decide whether the law’s registration requirements should apply to sex offenders who were convicted before SORNA was passed. Gundy argues that SORNA’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the nondelegation doctrine. Director of the Center for Judicial Engagement for the Institute for Justice, Sheldon Gilbert, will join us to preview this interesting case, which impacts several practice areas of law.
Featuring:
Sheldon Gilbert, Director of the Center for Judicial Engagement (CJE), Institute for Justice

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Recently the State National Bank of Big Spring filed a petition for certiorari seeking Supreme Court review of the D.C. Circuit's decision in June that affirmed the constitutionality of the CFPB. The case had been held in aveyance on the district court level until the decision in PHH v. CFPB, in which an en banc panel for the D.C. Circuit held that the structure of the CFPB was indeed constitutional. The District Court subsequently ruled against Big Spring, and after an appeal, the district court's ruling was upheld by the D.C. Circuit in June.
Big Spring is urging the Court to take the case due to a recent decision from the Fifth Circuit in Collins v. Mnuchin, in which the circuit held that the structure of the Federal Housing Finance Agency is unconstitutionally insulated from Executive Branch oversight. Big Springs argues that the similar structures at the FHFA and CFPB, and the two conflicting decisions result in a circuit split that the Supreme Court should resolve.
The Honorable C. Boyden Gray joins us to discuss various aspects of this latest challenge to the constitutionality of the CFPB.

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Black and Hispanic children in Hartford, Connecticut are lined up in waiting lists hundreds deep for an opportunity to go to the city’s world-class magnet schools. The schools consistently rank higher in academic achievement and graduation rates than the city’s failing neighborhood schools, but many of these Black and Hispanic children are turned away—despite the fact that the schools have empty seats and would love to offer these children a spot. The reason is a state-wide racial quota imposed on magnet schools: schools must maintain a ratio of 25% white and Asian students or risk losing state funding.Pacific Legal Foundation recently filed a case, Robinson v. Wentzell, challenging the state’s racial quota regulations and the racially-rigged lottery system that the City relies on when admitting students in its attempts at achieving racial balance within Hartford magnet schools. The suit alleges that Connecticut and Hartford are discriminating on the basis of race in violation of the Equal Protection Clause of the Fourteenth Amendment. The parties have just completed briefing on motions for judgment on the pleadings brought by the defendants, with oral argument scheduled for October.
Featuring:
Joshua Thompson, Senior Attorney, Pacific Legal Foundation
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In 2015, Russian hackers tunneled deep into the computer systems of the Democratic National Committee, and the subsequent leaks of the emails they stole may have changed the course of American democracy. But to see the DNC hacks as Trump-centric is to miss the bigger, more important story: Within that same year, the Russians not only had broken into networks at the White House, the State Department, and the Joint Chiefs of Staff, but had placed implants in American electrical and nuclear plants that could give them the power to switch off vast swaths of the country. This was the culmination of a decade of escalating digital sabotage among the world’s powers, in which Americans became the collateral damage as China, Iran, North Korea, and Russia battled in cyberspace to undercut one another in daily just-short-of-war conflict.The Perfect Weapon is the startling inside story of how the rise of cyberweapons transformed geopolitics like nothing since the invention of the atomic bomb. Cheap to acquire, easy to deny, and usable for a variety of malicious purposes—from crippling infrastructure to sowing discord and doubt—cyber is now the weapon of choice for democracies, dictators, and terrorists. Two presidents—Bush and Obama—drew first blood with Operation Olympic Games, which used malicious code to blow up Iran’s nuclear centrifuges, and yet America proved remarkably unprepared when its own weapons were stolen from its arsenal and, during President Trump’s first year, turned back on the US and its allies. The government was often paralyzed, unable to threaten the use of cyberweapons because America was so vulnerable to crippling attacks on its own networks of banks, utilities, and government agencies.Moving from the White House Situation Room to the dens of Chinese government hackers to the boardrooms of Silicon Valley, New York Times national security correspondent David Sanger—who broke the story of Olympic Games in his previous book—reveals a world coming face-to-face with the perils of technological revolution. The Perfect Weapon is the dramatic story of how great and small powers alike slipped into a new era of constant sabotage, misinformation, and fear, in which everyone is a target.
Featuring:
David E. Sanger, national security correspondent for the New York Times and bestselling author of The Inheritance and Confront and Conceal

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

Skepticism of the Chevron doctrine has risen in recent years, with some commentators calling for the Court to overturn or Congress to repeal Chevron. The addition to the Supreme Court of Justice Neil Gorsuch -- a Chevron skeptic -- prompted much speculation about Chevron's future. The nomination of Judge Brett Kavanaugh -- another Chevron skeptic -- has only furthered that speculation. Our panel will discuss the future of the Chevron doctrine in light of these and other developments.
Featuring:
Professor Christopher Walker, Associate Professor of Law, The Ohio State University Moritz College of Law
Adam White, Director, Center for the Study of the Administrative State, Research Fellow, Hoover Institution
Moderator: Professor Jennifer L . Mascott, Professor of Law, Antonin Scalia Law School
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. 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.