FedSoc Forums

Does the Endangered Species Act authorize FWS to designate as “critical habitat” for an endangered species private land that is not inhabited by the species and that cannot supply habitat without a radical change in land use? Should the Supreme Court Grant Certiorari in Weyerhaeuser v. U.S. Fish and Wildlife Service (No. 17-71)?
In January 5th conference, the Supreme Court is expected to take up the cert petition in a case arising out of the Fifth Circuit, Weyerhaeuser. The case involves federal government regulation of private land in Louisiana for the purpose of protecting an endangered species, the dusky gopher frog. The United States Fish and Wildlife Service has asserted power under the Endangered Species Act to declare private land “critical habitat,” for the protection of this endangered species though the frog has not been seen there for 50 years and cannot live there absent a radical change in the use of the land. The Service has stated that it "will likely increasingly use” this authority to designate non-habitat areas outside the geographical area occupied by the species. Several organizations have challenged the Service’s authority and are appealing the divided decision of the Fifth Circuit Court of Appeals. Whether the Supreme Court decides to take the case or not, Weyerhaeuser will clearly be an important environmental law case.
Featuring:
Timothy S. Bishop, Partner, Mayer Brown
Prof. Dave Owen, Professor of Law, University of California Hastings College of the Law San Francisco
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In January 16, 2018, the comment period will close on the Environmental Protection Agency's notice of proposed rulemaking (proposed rule), issued in October 2017, that would repeal the Clean Power Plan (CPP), an Obama Administration rule that would have regulated greenhouse gas emissions from electric power plants. The Supreme Court has ruled three times since 2007 that EPA has the authority and responsibility to limit greenhouse gas emissions under the Clean Air Act. When the Obama Administration promulgated the CPP in August 2015, EPA viewed it as "confirm[ing] the international leadership of the U.S. in the global effort to address climate change." The CPP was also the subject of high-profile litigation following its issuance. The CPP was famously stayed by the Supreme Court in February 2016, just before Justice Scalia's passing. And litigation challenging the CPP remains pending in the D.C. Circuit, which heard the first and only oral argument in the case sitting en banc (a rare occurrence) in September 2016.
The Trump Administration's proposed rule to repeal the Clean Power Plan disagrees with the Obama Administration's previous interpretation of Clean Air Act section 111(d). The Obama Administration interpreted section 111(d) to allow it to require compliance with overall emissions limits that effectively require changes outside the "fence line" of power plants, including shifting power generation to cleaner sources from sources deemed to be less clean. In the Trump Administration's view, section 111(d) is limited to authorizing EPA to require the best system of emissions reduction (BSER) achievable through technological improvements within individual power plants. The Trump Administration's proposed rule also reassesses the cost of complying with the CPP, which opponents had argued was improperly minimized by the Obama administration. EPA has not yet proposed an alternative rule to replace the CPP, but EPA has stated that it intends to issue an Advance Notice of Proposed Rulemaking in the near future that will solicit information on systems of emission reduction that are in accord with the legal interpretation set forth in EPA's proposed rule to withdraw the CPP.
With the comment period closing shortly, a number of important legal and policy questions are now on the horizon, including these: (1) likely next steps in the still-pending litigation challenging the Clean Power Plan; (2) the administrative law issues and litigation possibilities that are likely to arise when and if EPA proceeds with its proposed repeal of the CPP; and (3) questions about the options that the Administration has for crafting a proposed replacement rule; and (4) questions about the prospects for litigation challenging any such replacement. EPA, industry parties, and non-governmental organizations all have strong and disparate views on the substantive legal and policy paths that EPA should pursue to comply with its statutory obligations and protect the environment, without imposing inappropriate burdens on regulated parties.

Featuring:

-- David Doniger, Director, Climate & Clean Air Program, Natural Resources Defense Council

-- Tom Lorenzen, Partner, Crowell & Moring LLP

On the day he was to resign, former CFPB Director Richard Cordray appointed his former Chief of Staff Leandra English to deputy director. The Dodd-Frank Act states that the deputy director is to “serve as acting Director in the absence or unavailability of the Director.” That day, President Trump appointed Office of Management and Budget Director Mick Mulvaney to serve as the acting director, under authority given to him in the Federal Vacancies Reform Act. On Monday, November 27, the CFPB opened with two directors claiming authority. Two days later, a federal judge denied Leandra English’s request for a restraining order to prevent Mick Mulvaney from serving as the agency’s head.
Professor John C. Eastman will join us to discuss the CFPB and why this battle may not be over.
Featuring:
Prof. John C. Eastman, Henry Salvatori Professor of Law and Community Service and Director, Center for Constitutional Jurisprudence, Dale E. Fowler School of Law, Chapman University

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The Obama administration was aggressive in its use of the “disparate impact” approach to civil-rights enforcement, which holds that policies that have a different statistical result for various demographic groups are illegally discriminatory even if they are neutral by their terms, in their intent, and in their application. One example is in the school discipline area, where the administration’s Department of Education sent a “Dear Colleague” letter to state and local education officials, warning that this approach would be vigorously applied in K-12 schools receiving federal money and thus subject to the nondiscrimination provisions of Title VI of the 1964 Civil Rights Act.

Critics claim that this has resulted in students not being disciplined who should be, with the resulting disruption meaning that many students — and disproportionately poor and minority students — now have worse learning environments and that some teachers are being put at physical risk. Proponents of the policy claim it is necessary to protect the disciplined.

Jason Riley of the Manhattan Institute has recently written on this topic in his Wall Street Journal column, and Roger Clegg of the Center for Equal Opportunity has worked on this issue for the Federalist Society’s Regulatory Transparency Project. Both experts will join us to discuss this important topic.

Featuring:
Roger B. Clegg, President and General Counsel, Center for Equal Opportunity
Jason Riley, Senior Fellow, Manhattan Institute; Columnist, The Wall Street Journal; Author: False Black Power?

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Recent developments have lead to the Logan Act resurfacing in the news. The Act was enacted in 1799 and prohibits unathorized persons from engaging in negotiations with foreign state officals. It has never been used to successfully prosecute anyone in the United States, though prosecution was attempted twice, in 1803 and 1852, before charges were dropped. How should the Logan Act be viewed today?
Featuring:
Prof. Michael D. Ramsey, Hugh and Hazel Darling Foundation Professor of Law, University of San Diego School of Law

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On December 11, a Ninth Circuit panel heard argument in San Francisco in an unusual appellate proceeding that presents the question whether the U.S. Constitution provides judicially enforceable protection to individual citizens against governmental actions that are alleged to cause or contribute to climate change.
In June, the U.S. Department of Justice (DOJ) filed a rare mandamus petition in the Ninth Circuit in Juliana v. United States, a lawsuit pending in the U.S. District Court for the District of Oregon. The Juliana plaintiffs claim that the President and other federal government officials have violated their right to a stable climate, which the plaintiffs characterize as a fundamental, unenumerated right protected by the Due Process Clause of the Fifth Amendment to the Constitution. The plaintiffs separately claim, on a public-trust theory, that the federal government has an enforceable obligation to ensure that the atmosphere and other resources are protected from climate change. In November 2016, the district court denied DOJ’s motion to dismiss the complaint. DOJ requested permission for an interlocutory appeal. After the district court denied that request, DOJ filed its mandamus petition in the Ninth Circuit.
In its petition, DOJ asks the Ninth Circuit to direct the district court to dismiss the Juliana case. DOJ argues that the district court’s decision upholds an “amorphous and sweeping right” as judicially enforceable, and would permit that court “to dictate and manage – indefinitely – all federal policy decisions related to fossil fuels, energy production, alternative energy sources, public lands, and air quality standards.” The plaintiffs respond that their constitutional claim is grounded in established, fundamental rights to life and personal security; property; autonomy; and dignity. They further argue that the drastic and extraordinary remedy of a writ of mandamus is not needed to short-circuit the case. A wide range of non-governmental organizations, plus a group of several dozen law professors, submitted eight proposed amicus briefs supporting the plaintiffs.
Professor Jim May and Damien Schiff of the Pacific Legal Foundation discuss the oral arguments and potential impacts of the Ninth Circuit’s forthcoming decision, including possible implications for climate-change litigation pending in other courts. The Ninth Circuit may weigh in on a number of very important questions, including questions about justiciability (Article III standing and the political-question doctrine); the substantive reach of the substantive due-process and public-trust doctrines; and the criteria for granting mandamus relief.
Featuring:
James R. May, Distinguished Professor of Law, Widener University Delaware Law School
Damien M. Schiff, Senior Attorney, Pacific Legal Foundation
Moderator: Andrew R. Varcoe, Partner, Boyden Gray & Associates PLLC
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The petitioner in this case was convicted on nine counts of tax-related offenses stemming from his business practices, which included not filing personal or corporate income tax returns. In addition, he shredded bank statements and business records. He challenged one of the convictions on 26 U.S.C. § 7212(a) which makes it a crime to “corruptly… obstruct or impede… the due administration of this title.” The petitioner maintains that violation of the statue required his knowledge of an ongoing Internal Revenue Service investigation. The Second Circuit Court disagreed and upheld that conviction. Ted Cooperstein, General Counsel at the United States Office of Personnel Management, will attend oral argument and join us to discuss the case.
Featuring:
Theodore Cooperstein, General Counsel, United States Office of Personnel Management

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Thomas Jefferson famously wrote that the earth belongs to the living. His letter to James Madison is often quoted for the proposition that we should not be bound to the 'dead hand of the past', suggesting that the Constitution should instead be interpreted as a living, breathing document. Less well-known is Madison's response, in which he said the improvements made by the dead - including the US Constitution - form a debt against the living, who benefit from them. In this illuminating book, Ilan Wurman introduces Madison's concept of originalism to a new generation and shows how it has shaped the US Supreme Court in ways that are expected to continue following the death of Justice Antonin Scalia, one of the theory's leading proponents.
Prof. McConnell will join author Ilan Wurman to discuss A Debt Against the Living: An Introduction to Originalism.
Featuring:
Prof. Michael W. McConnell, Richard and Frances Mallery Professor, Director of the Constitutional Law Center, Stanford Law School
Ilan Wurman, Author, A Debt Against the Living: An Introduction to Originalism; Nonresident Fellow, Constitutional Law Center, Stanford Law School


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The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom provides a complete overview of the American Founders' political theory, covering natural rights, natural law, state of nature, social compact, consent, and the policy implications of these ideas. The book is intended as a response to the current scholarly consensus, which holds that the Founders' political thought is best understood as an amalgam of liberalism, republicanism, and perhaps other traditions. Prof. West argues that, on the contrary, the foundational documents overwhelmingly point to natural rights as the lens through which all politics is understood. The book explores in depth how the Founders' supposedly republican policies on citizen character formation do not contradict but instead complement their liberal policies on property and economics. Additionally, the book shows how the Founders' embraced other traditions in their politics, such as common law and Protestantism.
Author Prof. Thomas West and Prof. Eric Claeys will join us to discuss this new book.

Featuring:
Prof. Eric R. Claeys, Professor of Law, Antonin Scalia Law School, George Mason University
Prof. Thomas G. West, Paul Ermine Potter and Dawn Tibbetts Potter Endowed Professorship in Politics, Van Andel Graduate School of Statesmanship, Hillsdale College

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On December 4th, the Supreme Court heared oral arguments in Rubin v. Islamic Republic of Iran. The case involves a question of statutory interpretation, whether 28 U.S.C. § 1610(g), an amendment to the Foreign Sovereign Immunities Act, permits victims of state-sponsored terrorism to collect on non-commercial goods. 28 U.S.C. § 1610(g) allows Americans to sue foreign governments that support terrorism by which they or their family is harmed, an exception to the Foreign Sovereign Immunities Act, which generally bars such suits.
In 1997, Hamas, a terrorist group aided by Iran, sent three suicide bombers into a Jerusalem shopping mall, killing 7 people and injuring 200. Eight American victims sued Iran and won a judgement for $423.5 million in damages. When Iran did not pay, the victims tried to seize Iranian artifacts housed at the University of Chicago. The question at hand is whether they should be permitted to under 28 U.S.C. § 1610(g).
Andrew Grossman will join us to describe the oral argument.

Featuring:
Andrew M. Grossman, Partner, Baker & Hostetler 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.