FedSoc Forums

In 2015, 32-year old Kate Steinle was shot in San Francisco by an Illegal Immigrant. The immigrant was previously deported five times and had seven prior felony convictions. This incident, along with additional stories of criminal behavior by illegal aliens, drew national attention to the issue of sanctuary cities.The Center for Immigration Studies defines sanctuary cities as localities which, by statute or action, seek to shield information regarding illegal aliens from Immigration and Customs Enforcement (ICE). Sanctuary counties, however, vastly outnumber sanctuary cities, and seven states have adopted statewide sanctuary policies. As of 2017, undocumented immigrants were estimated to number about 12.5 million, with the largest populations of such immigrants in California, Florida, New York, and Texas. Of the illegal immigrants arrested by ICE in 2017, 74% had criminal histories and 16% faced criminal charges. In light of the data, concerns arise that sanctuary cities, by withholding information from ICE, protect illegal aliens who are also dangerous criminals from deportation and thereby pose national security risks.
Furthermore, 8 U.S.C. § 1373 prohibits state and local governments or officials from inhibiting the flow of information regarding immigrants to ICE. Seeking to enforce §1373, President Trump in 2017 issued an executive order conditioning federal grants to states and municipalities upon cooperation with Immigration and Customs Enforcement (ICE). Subsequent legal challenges brought by cities such as Chicago and Philadelphia have successfully blocked the order’s enforcement, citing the Constitution’s requirement that Congress must approve any new conditions on federal funding. State and local governments, however, have also launched their own anti-sanctuary initiatives. Tennessee, for instance, banned sanctuary cities in May of this year, following Texas, whose law mandating full local cooperation with federal immigration enforcement was upheld by the Fifth Circuit, and numerous municipalities in California have declared opposition to their state’s sanctuary policies. California’s sanctuary laws have also been challenged in a lawsuit brought by the United States, which claims that these laws violate the Supremacy Clause of the U.S. Constitution.
Featuring:
William A. Stock, Partner, Klasko Immigration Law Partners, LLP
Christopher Hajek, Director of Litigation, Immigration Reform Law Institute
Moderator: Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland
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On March 24, 2016 the DOL’s Office of Labor-Management Standards (OLMS) issued the so-called “persuader rule” that would have greatly inhibited the ability of employers to obtain legal advice in responding to union organizing campaigns. For nearly 50 years the DOL recognized that advice, including legal advice, is excluded from reporting under federal labor law. The new persuader rule would have forced lawyers and law firms that counsel a business on most labor relations matters to disclose not only their work with that client, but also all fees and arrangements for all clients for all labor-relations services. Several lawsuits were filed challenging this rule on statutory and First Amendment grounds. On June 27, 2016, a district court in Texas issued a preliminary injunction enjoining DOL from implementing the new rule. The district court then made that preliminary injunction permanent in November 2016, and DOL filed an appeal with the Fifth Circuit which remains pending.
DOL has now issued a new rule that rescinds the controversial Persuader Rule. Please join us for a status report regarding these developments, including a discussion of the new rule and how it may affect DOL’s authority in the future.
Featuring:
Christopher Murray, Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart
Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
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Like most private universities, Marquette University guarantees academic freedom to its faculty. John McAdams, a tenured professor who had been with the university for almost forty years, wrote a blog post about the increasing tendency on the left to regard certain points of view as “unsafe” and objects for censorship. He used an example of a graduate instructor who had told a student that the student’s opposition to same sex marriage would “come off” as “offensive” and “homophobic” and would not be tolerated. Marquette moved to fire McAdams for the post. The subsequent litigation raised questions regarding both the judicial review of university decision-making on questions of academic freedom and what the commonly-invoked principles of academic freedom mean. Earlier, this month the Wisconsin Supreme Court held that McAdams’s contractual right to academic freedom had been violated and ordered him to be reinstated to the faculty.
Featuring:
Mr. Rick Esenberg, Founder, President and General Counsel, Wisconsin Institute for Law & Liberty

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How much, if at all, does the First Amendment’s Establishment Clause constrain what the United States can do overseas? In a world where religious groups often participate in the operations and elections of foreign governments, and in a global struggle against violent Islamism that often requires cooperation with moderate Muslim groups, this question is more important than ever.
Join us for a Teleforum discussion featuring Nathan Forrester and David Buckley. Mr. Forrester analyzes these types of legal questions at the Justice Department’s Office of Legal Counsel. Professor Buckley has written about this question and returned last year from the State Department’s Office of Religion in Global Affairs, where the question was frequently considered and sometimes debated. Prof. Justin Walker of Brandeis School of Law will moderate.
Featuring:
David Buckley, Assistant Professor, Paul Weber Endowed Chair in Politics, Science & Religion, University of Louisville
Nathan Forrester, Attorney-Adviser, Office of Legal Counsel, U.S. Department of Justice
Moderator: Prof. Justin Walker, Assistant Professor of Law, University of Louisville Brandeis School of Law

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Within 7 hours of the EU’s General Data Protection Regulation (GDPR) coming into effect, Austrian privacy activist Max Schrems and his non-profit None of Your Business (NOYB) lodged four complaints against Google and Facebook, seeking damages of $8.8 billion. Among its 173 recitals, the GDPR empowers litigants through enumerated rights of representation, judicial remedy, and compensation to create non-profit organizations, lodge complaints, and collect fees on behalf of users. Violations are punishable up to 4 percent of annual revenue. The EU claims that the sweeping regulation empowers consumers to control their data, but seasoned observers note that the law more likely strengthen existing players, those which can afford the $1 million+ compliance costs for new staff and software required by the GDPR. In this Teleforum, privacy and regulatory experts discuss the economic, legal, and geopolitical consequences of the new law and what it could mean for class action litigation.
Featuring:
Sunny Seon Kang, International Consumer Counsel, Electronic Privacy Information Center (EPIC)
Roslyn Layton, Visiting Scholar, American Enterprise Insititute
Adam Thierer, Senior Reserch Fellow, Mercatus Center, George Mason University

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Trinity Western University (“TWU”) is a private institution organized around a specific viewpoint: evangelical Christianity. As part of that conviction, TWU affirms a “conduct covenant” which limits sexual behavior to married heterosexual couples. Two bar societies determined in view of that covenant that TWU graduates were not fit to “article,” that is, sit for the bar due to TWU’s institutional standard, irrespective of whether the graduates agreed or practiced that standard. The Canadian Supreme Court affirmed the bar societies, even though religious liberty is a fundamental right delineated in the nation’s Charter of Rights.
Featuring:
Derek B.M. Ross, Executive Director and General Counsel, Christian Legal Fellowship
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In Carpenter, arrests made in an armed robbery case occurred because the Federal Bureau of Investigation was able to obtain “transactional records” of the cell phones owned by the alleged coconspirators. These records track the date and time of a call and the approximate position of the caller. The records were collected under the Stored Communications Act of 1986, which allows the government certain kinds of telecommunications records relevant to an ongoing criminal investigation. The defendants wanted the stored data to be inadmissible because the FBI failed to get a search warrant to acquire the records, thereby violating the Fourth Amendment.
The district court dismissed this argument and the Sixth Circuit Court affirmed the district court’s decision.
On June 22, the Supreme Court reversed and remanded. Chief Justice Roberts delivered the opinion of the Court, and ruled the government's activities violated the fourth ammendment. The government did not obtain a warrant for the search of the cell phone records, and therefore violated standing constitutional law.
Featuring:
Dean A. Mazzone, Deputy Chief, Criminal Bureau of the Massachusetts Attorney General’s Office
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In Currier v. Virginia, Justice Gorsuch, writing for a 5-4 majority, held that where a criminal defendant elects to sever charges into multiple trials, he cannot, after acquittal at the first trial, argue that the Double Jeopardy clause precludes the second trial from occurring. In Currier, the government charged the defendant with burglary, grand larceny, and felon in possession of a firearm. All three charges arose from an alleged home invasion, in which the government argued the defendant participated. Consistent with a Virginia state rule, the defendant and government jointly moved to sever the felon in possession charge from the other counts to avoid undue prejudice to the defendant. Despite acquittal on the burglary and grand larceny charges, the government opted to follow-through with a second trial on the felon in possession count, even though to convict, the second jury would have to conclude that the defendant participated in conduct for which the first jury acquitted him. While emphasizing that the Double Jeopardy Clause protects re-litigation of offenses (as opposed to issues), the Court concluded that the defendant's consent to severance ended the analysis. Justice Kennedy, who provided the decisive vote, wrote a concurring opinion saying further analysis was unwarranted in this case. Justice Gorsuch, joined by Chief Justice Roberts and Justices Alito and Thomas, went further, however, in a part of the opinion which Justice Kennedy did not join, addressing the dissent's opinion (written by Justice Ginsburg) head on and laying out the dangers of importing civil issue preclusion principles into criminal law through the Double Jeopardy Clause. According to the dissent, these arguments sought to upend clearly established Supreme Court case law to the contrary. The stage appears to be set, therefore, depending on the views of Justice Kennedy's replacement, for the Court to revisit past precedents that arguably incorporate principles of civil issue preclusion into criminal law, as the conservative bloc on the Court seeks to return the Double Jeopardy clause to its original focus on offenses, not issues.
Featuring:
John Hill, Deputy Chief, Felony Major Crimes Section, United States Attorney's Office for the District of Columbia.
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In 2015, the United States, along with China, France, Germany, Russia, the United Kingdom, and the European Union, reached a Joint Comprehensive Plan of Action (JCPOA) with Iran. The terms of the deal called for Iran to take various steps to ensure its nuclear capacity would be exclusively peaceful. Aspects of Iran’s nuclear development program were subject to restrictions for varying lengths of time between 10 and 15 years. In exchange for Iran agreeing to these terms, Iran received relief from U.S., EU, and UN nuclear-related sanctions. Supporters of the JCPOA argued this pushed Iran from the brink of possessing a nuclear weapon and it opened the door for engaging Iran in a more constructive way than in the past. Critics of the deal, including President Trump, contended the time limits were insufficient and the deal failed to address issues such as Iran’s ballistic missile program, its sponsorship of terrorist groups such as Hamas and Hezbollah, and its malign influence in the Middle East. In May 2018, President Trump withdrew the United States from the JCPOA. Our experts will discuss the consequences of this decision as it relates to the role of the U.S. in international agreements and treaties, the impact of the sanctions regime, and what we can expect going forward.
Featuring:
David S. Cohen, Partner, WilmerHale
Lester Munson, Principal, Government Affairs, BGR Group
Moderator: Matthew Heiman, Visiting Fellow, National Security Institute, Antonin Scalia Law School, George Mason University

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With more than 10 percent of Americans moving each year, how can states ensure that their voting lists are kept up to date and that ineligible persons are removed? In Husted v. A. Philip Randolph Institute, the Court held that states can look at failure to vote as evidence to identify people who may have moved, but that it can’t be the sole factor used to remove a voter from the rolls. By a 5-4 vote, the decision upheld an Ohio law that removes from the voter rolls voters who don’t vote in any election for two years, fail to respond to a return card mailed to their registered address, and then don’t vote in any election for another four years. That scheme, according to the advocacy groups that challenged it, violated a section of the National Voter Registration Act that provides that failure to vote “shall not result in the removal of the name of any person” from the rolls. But, as Justice Alito’s majority opinion explained, another section provides that states may mail a “return card” to registered voters and, if they don’t respond, remove them if they fail to vote in the next two federal elections. And nothing in the statute says that states can’t rely on failure to vote as a basis to send out return cards. What states can’t do, the Court concluded, is rely on nonvoting as the sole criterion for removing a voter from the rolls. The majority’s decision preserves the tools that states have used for years to remove ineligible persons from voter-registration rolls and may spur more states to adopt approaches like Ohio’s. It also has important things to say about the courts’ respect for the policy judgments made by Congress and the states.
Featuring:
Mr. Andrew Grossman, Partner, Baker & Hostetler LLP and Adjunct Scholar, The Cato Institute

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.