FedSoc Forums

In the aftermath of Hurricane Harvey, the US Army Corps of Engineers deliberately flooded thousands of homes and businesses because they believed it was necessary in order to prevent even worse flooding elsewhere. Many of the affected property owners have filed lawsuits claiming that this deliberate flooding qualifies as a taking that requires the government to pay "just compensation" under the Takings Clause of the Fifth Amendment. The outcome of these cases may well set important precedents for the future and Professor Richard Epstein will join us to discuss them.
Featuring:
Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law


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.

The 11th Circuit’s decision in LabMD v. FTC comes just as the new FTC Chairman and Commission have been sworn in. The long-awaited decision arises in a case which raised fundamental questions regarding the FTC’s data breach enforcement authority under Section 5 of the FTC Act and the level of injury that gives rise to a cognizable privacy harm. A fraught factual and procedural history – involving allegations of FTC misconduct and an ALJ decision in LabMD’s favor reversed by the full Commission – preceded the 11th Circuit’s action. Is this the end of the road or will the Court’s decision be subject to further appeal? What are the implications for the new Commission and its privacy enforcement authority?
Featuring:
Neil Chilson, Senior Research Fellow for Technology and Innovation, Charles Koch Institute
Scott Delacourt, Partner, Wiley Rein LLP

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.

Perhaps in no area was President Obama’s expansive approach to executive authority more apparent than in the Environmental Protection Agency’s (“EPA”) interpretation of the Clean Water Act. Although both critics and supporters of the Obama-era EPA have recognized that many of the Agency’s Clean Water Act decisions reflected attempts by the Agency to legislate where Congress had not, some observers have found another pattern: EPA was usurping land use decisions that had traditionally been within the exclusive domain of state and local governments. The Waters of the United States rule expanded federal jurisdiction to cover routine farming activities, and the designation of Wilderness Study Areas has prevented development in areas not otherwise subject to extra environmental regulation. While President Trump and EPA Administrator Scott Pruitt have reversed many Obama-era policies, one important one remains: preemptive vetoes of development permits under Section 404 of the Clean Water Act.
The Clean Water Act provides that the U.S. Army Corps of Engineers (“Corps”) is in charge of the Section 404 permit application process, including receiving input from the public as well as state and local governments, preparing a comprehensive environmental impact statement, and deciding whether to grant a permit application. By contrast, the Clean Water Act provides EPA with narrow authority to veto a Corps-issued permit at the end of the application process. In 2014, however, EPA initiated a veto of the Pebble Mine, a potential copper and gold mine on state-owned lands in southwest Alaska, before the developer submitted a permit application, much less completed the Corps’ permit application process. EPA did so over the express wishes of the State of Alaska. Internal EPA documents even suggest that it believed that the preemptive veto aimed at Pebble could be used as a model for future zoning and watershed planning at the federal level.
This teleforum provides an overview of certain current Clean Water Act developments and jurisprudence, as well as a discussion of the steps EPA has taken to veto the Pebble Mine, a proposed veto that remains pending. In particular, the teleforum focuses on the effects that EPA’s expansive authority has on state and local governments’ ability to manage public lands.
Featuring:
Myron Ebell, Director of the Center for Energy and Environment, Competitive Enterprise Institute
Robert Perciasepe, President, Center for Climate and Energy Solutions
Tom Collier, CEO, Pebble Partnership
Moderator: Shannen W. Coffin, Partner, Steptoe & Johnson LLP
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.

Most states have laws that prohibit electioneering within polling places on election day, and the Supreme Court has upheld buffer zones that extend this prohibition to areas immediately surrounding polling places. But Minnesota law went beyond electioneering and prohibits wearing “a political badge, political button, or other political insignia . . . at or about the polling place[.]” This included Gadsden flag t-shirts, buttons demanding to be asked for voter identification, or apparel referencing an organization such as the AFL-CIO. In Minnesota Voters Alliance v. Mansky, the Court ruled 7-2 that the law is unconstitutional under the First Amendment.
Featuring:
Elizabeth Slattery, Legal Fellow and Appellate Advocacy Program Manager, Edwin Meese, The Heritage Foundation

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.

The Lives of the Constitution: Ten Exceptional Minds that Shaped America’s Supreme Law is a blend of biography and history, Joseph Tartakovsky tells the story of our Constitution through the eyes of ten extraordinary individuals―some renowned, like Alexander Hamilton and Woodrow Wilson, and some forgotten, like James Wilson and Ida B. Wells-Barnett.
Mr. Tartakovsky brings to life their struggles over our supreme law from its origins in revolutionary America to the era of Obama and Trump. Sweeping from settings as diverse as Gold Rush California to the halls of Congress, and crowded with a vivid Dickensian cast, The book shows how America’s unique constitutional culture grapples with questions like democracy, racial and sexual equality, free speech, economic liberty, and the role of government.
From the 1787 Philadelphia Convention to the clash over gay marriage, this is an interesting grand tour through two centuries of constitutional history as never told before.
Join our Teleforum call with author Joseph Tartakovsky and Ilya Shapirio discussing the book.
Featuring:
Mr. Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute
Mr. Joseph Tartakovsky, James Wilson Fellow in Constitutional Law, Claremont 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.

Although the Obama administration’s controversial Affirmatively Furthering Fair Housing (AFFH) rule has not yet been enforced in the manner originally envisioned, it has the potential to be as transformative as the Affordable Care Act. America’s system of local government would be significantly altered by aggressive enforcement of AFFH, leaving potent implications for the federalist system itself.

This teleforum will examine the workings and ambitions of AFFH, will clear up confusion about the current state of the rule, will challenge the legal history of the rule promulgated by its supporters, and will sketch out the transformative potential of the rule under a future administration.

Featuring:

Stanley Kurtz, Senior Fellow, Ethics and Public Policy Center

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.

In Collins v. Virginia, police searched a motorcycle which was partially hidden under a tarp outside a private residence. The police believed the motorcycle was the same one they had seen earlier committing traffic violations, and had been reported stolen. Later it was found out that the motorcycle was indeed stolen and the owner, who lived in the private residence, had known the vehicle was stolen before purchase.
At trial, the owner tried to suppress the motorcycle as evidence because the police officers had not obtained a warrant before searching under the tarp. Under the Fourth Amendment automobile exception, is a police officer permitted to enter private property without a warrant in order to search a vehicle near the house? On May 29th, 2018, the Supreme Court decided 8-1 that such a search was not permitted under the Fourth Amendment.
Greg Brower will join us to discuss the decision and its implications.

Masterpiece Cakeshop v. Colorado CRC, one of the most highly publicized of the term, was decided 7-2 in favor of the petitioner.
The facts of the case are as follows: two men, Charlie Craig and David Mullins, were planning their wedding and sought a wedding cake from Jack Phillips, the owner of Masterpiece Cakeshop. Phillips told the men that he could not make them a cake, citing his religious beliefs. The Colorado Civil Rights Commission determined that Phillips was discriminating against the couple on the basis of sexual orientation. Phillips was told to “cease and desist” such discrimination and was ordered to provide “remedial measures.” As a result, Phillips stopped offering custom cakes entirely.
The case deals with the balance of religious liberties and equality through anti-discriminatory laws. It also involves the Free Speech Clause, as Phillips considers his custom cakes art and himself an artist. Phillips and many others see the “cease and desist” as a form of compelled speech, since he would be legally obligated to create art with a message he does not support.
Dale Carpenter, Judge William Hawley Atwell Chair of Constitutional Law at the SMU Dedman School of Law and Kim Colby, Director at the Center for Law & Religious Freedom, Christian Legal Society, will join us to discuss this important decision.
Featuring:
Prof. Dale A. Carpenter, Judge William Hawley Atwell Chair of Constitutional Law; Professor of Law, SMU Dedman School of Law
Kim Colby, Director at the Center for Law & Religious Freedom, Christian Legal Society

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.

“Supply chain security” has been a hot topic in Congress and federal agencies in recent months. There is concern among policymakers that the use of Chinese telecommunications equipment in U.S. networks and connected devices could pose security risks. Clete Johnson (Wilkinson Barker Knauer), Nova Daly (Wiley Rein), and Sarah Geffroy (AT&T) join us to share their thoughts on these concerns. They also discuss the general role of Chinese equipment in the U.S. technology sector and the effect of banning sales to the U.S. public sector of such equipment on the U.S. and global economies.
Featuring:
Nova Daly, Senior Public Policy Advisor, Wiley Rein LLP
Sarah Geffroy, Director, Global Public Policy, AT&T; Senior Fellow, George Washington University Center for Cyber and Homeland Security
Clete Johnson, Partner, Wilkinson Barker Knauer, LLP

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.