FedSoc Forums

After one year of Joint Comprehensive Plan of Action assessments and critiques, have American security interests been damaged? Is Iranian gamesmanship ephemeral, or durably threatening? Critics point to evasions of the JCPOA like the easing of economic sanctions and the un-reviewed arms deals and contracts with Russia to say that the “deal” has only served as cover for Iranian nuclear infractions. Is the U.S. Congress empowered to demand a better deal, even after a year of performance and European reliance on a return to the status quo ante for financial re-engagement with Iran? Are there historic precedents for resetting the terms? In light of coming sunset clauses that may see Iran at near zero break-out time, what leverage potential does NATO possess, and do any “snap back” sanctions represent real restraining power? -- Featuring: Mark Dubowitz, Executive Director, Foundation for Defense of Democracies (FDD) and Peter Harrell, Adjunct Senior Fellow, Center for a New American Security.

Six years after its enactment, Obamacare remains one of the most controversial, divisive, and enduring political issues in America. In this much-anticipated follow-up to his critically acclaimed Unprecedented: The Constitutional Challenge to Obamacare (2013), Professor Blackman argues that, to implement the law, President Obama has broken promises about cancelled insurance policies, exceeded the traditional bounds of executive power, and infringed on religious liberty. At the same time, he writes that conservative opponents have stopped at nothing to unravel Obamacare, including a three-week government shutdown, four Supreme Court cases, and fifty repeal votes. Author Joshua Blackman and Michigan Law Professor Nicholas Bagley joined us to discuss the book and the saga of Obamacare. -- Featuring: Prof. Josh Blackman, Author, Unraveled: Obamacare, Religious Liberty, & Executive Power, Associate Professor of Law, Houston College of Law and Prof. Nicholas Bagley, Assistant Professor of Law, University of Michigan Law School.

In 1996, President Bill Clinton signed the Comprehensive Nuclear Test Ban Treaty, but the treaty did not go into effect because the Senate refused to ratify it. Twenty years later, the Obama administration still favors ratification of the treaty as part of its nuclear disarmament strategy. President Obama appears to be attempting to go around the Senate by signing a U.N. Security Council Resolution that would, according to a National Security Council spokesman, “call on states not to test and support the CTBT’s objectives,” but would not be legally binding. Professor Kontorovich of Northwestern University School of Law and Professor Spiro of Temple Law School joined us to debate the international & national security law implications of these actions. -- Featuring: Prof. Eugene Kontorovich, Professor of Law, Northwestern Pritzker School of Law and Prof. Peter J. Spiro, Charles R. Weiner Professor of Law, Temple University Beasley School of Law.

The Antiquities Act of 1906 provides, in part, that “The President may, in the President's discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.” 54 U.S.C. §320301(a). Declaring a national monument brings substantial new layers of protected status to the areas or thing so designated, precluding many previously-authorized uses of the area or thing as well. To varying degrees, U.S. Presidents have exercised this authority both during the regular course of their administration and sometimes with heightened vigor at the end, or “midnight hour,” of their final term. Our experts examined the historic use of the Antiquities Act authority and particularly the phenomena of “midnight monument” designations across administrations, including those already completed or anticipated by the now-outgoing Obama Administration. Their analysis included a discussion of the controversial proposal to designate a Bears Ears national monument in Utah in the coming weeks, the historically large expansion in August of the Papahanaumokuakea Marine National Monument to 582,578 square miles of land and sea, the September 15 designation of the Northeast Canyons and Seamounts Marine National Monument, and more. -- Featuring: Prof. Donald J. Kochan, Professor and Associate Dean for Research and Faculty Development, Chapman University School of Law and Prof. Charles Wilkinson Distinguished Professor, Moses Lasky Professor of Law History and Society in the American West; Indian Law; Public Land Law; Water Law.

From the EPA to HHS to the CFPB, the volume of regulatory rulemaking and other agency actions has been a major point of controversy throughout the Obama Administration’s eight years. So it is only fitting that the Administration’s closing months should spur research on new regulations and those yet to come before the Administration’s clock strikes “midnight.” On September 22, the Federalist Society will host a teleforum to discuss these issues, with the authors of two such studies. -- In “600 Major Regulations,” Sam Batkins of the American Action Forum updates the AFF’s 2015 report on the Administration’s volume of "major rules”—that is, the rules that each have a projected impact of $100 million or more annually. According to his report, the Administration’s 600 rules in 7.5 years "is 20 percent more than the previous president did in eight years,” and will "cost for more than $740 billion in regulatory burdens.” -- And in “The Final Countdown: Projecting Midnight Regulations,” Sofie Miller and Daniel Pérez of George Washington University’s Regulatory Studies Center analyze the “midnight rules” that the Obama Administration might finalize in coming weeks and months, before the next President has a chance to block them. Applying new quantitative models, they forecast that an average of 72 "economically significant” rules will be published between July 2016 and January 2017, a 118% increase over the Obama Administration’s current average rate of regulation. -- The Federalist Society’s Administrative Law Section is pleased to host two of the authors of these reports to discuss their findings: Sam Batkins and Sofie Miller. The discussion will be moderated by Adam White, a research fellow at the Hoover Institution. -- Featuring: Sam Batkins, Author, Director of Regulatory Policy, American Action Forum and Sofie Miller Senior Policy Analyst, Regulatory Studies Center, George Washington University.
Moderator: Adam White, Research Fellow, The Hoover Institution.

On September 8, 2016 Liberty Counsel filed its opening brief with the Ninth Circuit Court of Appeals in Mountain Right to Life v. Kamala Harris. The case is a challenge to California’s Assembly Bill 775, which requires all “licensed covered facilit(ies)” which have a “primary purpose” of “providing family program or pregnancy-related services” to tell clients on site that “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women.” The legislation was passed in response to pro-life crisis pregnancy centers, which do not mention abortion in their pregnancy counseling. -- Featuring: Stephen Casey, Author, President and Senior Counsel, Casey Law Office, P.C.

Stolen Sovereignty: How to Stop Unelected Judges from Transforming America, by Daniel Horowitz, discusses the possible political repercussions of President Obama’s judicial appointments. President Obama has filled roughly 30% of the federal judicial seats in his tenure as President. In this Teleforum, Daniel Horowitz will discuss his book and how he believes the will of the people is being usurped by activist judges. -- Featuring: Daniel Horowitz, Author, Stolen Sovereignty: How to Stop Unelected Judges from Transforming America and Moderator: Hon. Eileen J. O'Connor, Founder, Law Office of Eileen J. O'Connor, PLLC.

Our panel of three experts in legal and judicial ethics discussed several recent cases and regulatory developments in the field, with an eye to translating these developments into practical wisdom about their likely impact on law practice in 2016 and beyond. -- Topics included the American Bar Association's move to expand the scope of the regulation of race, gender and other harassment and discrimination into the practice of law generally, including law firm management; amendments to the rules of discovery to help reduce the gamesmanship now often infecting the process; the extent to which the Supreme Court's decision in the North Carolina Dentists case may foreshadow limitations on the ability of states to regulate the practice of law without running afoul of the antitrust laws; whether competent legal advice must include a business advice component in certain settings; and how the use of social media to complain about a sitting judge can cross the line into unethical conduct. -- Featuring: Prof. W. William Hodes,Professor Emeritus of Law, Indiana University & President, The William Hodes Professional Corporation; Prof. Thomas D. Morgan, Oppenheim Professor Emeritus of Antitrust and Trade Regulation Law, George Washington University Law School; and Prof. Ronald Rotunda, Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University Dale E. Fowler School of Law.

On September 27, 2016, the D.C. Circuit Court of Appeals will hear oral argument in West Virginia, et al. v. EPA, a case testing the constitutionality of the Clean Power Plan. Among two procedural peculiarities (the U.S. Supreme Court has granted a stay in the implementation of the Plan, and the D.C. Circuit Court of Appeals has, sua sponte, decided to hear the case en banc without a prior three-judge panel), the case includes myriad federalism and separation of powers issues. Our experts will discuss the primary issues in the case – the balance of power between the federal and state governments, and the separation of powers within the federal government. -- Featuring: David Bookbinder, Founding Member, Element VI Consulting and David B. Rivkin, Jr., Partner, Baker & Hostetler LLP.

Native Americans on reservations suffer higher rates of crime, addiction, alcoholism, and poverty than any other group of Americans. In her new book The New Trail of Tears: How Washington Is Destroying American Indians, journalist Naomi Schaefer Riley examines the dismal situation—and the rays of hope—and shows how the cycles of poverty, addiction, crime, and family breakdown are perpetuated by government policies. “Indians,” writes Riley, “have chosen civilization; now it’s time for America to make them equal Americans.” With commentary by the Goldwater Institute Vice President for Litigation, Timothy Sandefur, our Teleforum will look at the legal and political problems that plague the more than 500 reservations in North America. -- Featuring: Naomi Schaefer Riley, New York Post columnist, author of The New Trail of Tears: How Washington Is Destroying American Indians and Commentary by: Timothy Sandefur, Vice President for Litigation, Goldwater Institute.