FedSoc Forums

Can the Feds keep the courthouse doors closed to you when they have effectively frozen your property? That is the question the Supreme Court of the United States considered on March 30th, when the Solicitor General, representing the U.S. Army Corps of Engineers, and Pacific Legal Foundation, representing Hawkes Company, squared off regarding the Corps’ decision that Hawkes Company could not use its property for peat farming without first spending hundreds of thousands of dollars in pursuit of a federal wetlands permit under the Environmental Protection Agency’s “Waters of the United States” (WOTUS) rule. Pacific Legal Foundation argues that its client should be allowed to challenge that decision, called a Jurisdictional Determination, in court; the Corps disagrees. What will the justices say? The co-counsel for the Hawkes Company who appeared before the Supreme Court discussed the case, how the oral argument went, and what we might expect to see in the Court's decision. -- Featuring: Mark Miller, Managing Attorney, Atlantic Center, Pacific Legal Foundation.

On Tuesday, March 29, the U.S. Supreme Court announced a 4-4 decision in Friedrichs v. California Teachers Association. The two questions presented were: (1) Whether the Abood precedent should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech. What is the effect of the 4-4 decision? Are there other cases percolating in the circuit courts that might present the same or similar questions to the Court in the near future? -- Featuring: Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law.

On Monday, March 21, the Court heard RJR Nabisco, Inc. v. The European Community. The case arose in the 2nd Circuit. The question presented is whether, or to what extent, the Racketeer Influenced and Corrupt Organizations (RICO) Act applies extraterritorially. The European Community, now the European Union, alleged that RJR participated in a scheme to launder illegal drug sale proceeds in Europe. -- Mr. Richard Samp, Chief Counsel of the Washington Legal Foundation, attended oral arguments on behalf of the WLF, which filed an amicus brief in support of RJR. -- Featuring: Richard A. Samp, Chief Counsel, Washington Legal Foundation.

Our expert gave our listeners background information on the Little Sisters of the Poor Home for the Aged v. Burwell case and reported on what transpired during oral argument. In the much-discussed case, the Court will decide an important challenge to the Affordable Care Act (ACA). At issue is the ACA’s contraceptive mandate, and whether it imposes a substantial burden on religious exercise or a violation of RFRA. Has the Department of Health and Human Services satisfied RFRA’s test for overriding a sincerely-held religious objection? -- Featuring: Roger Severino, Director, DeVos Center for Religion and Civil Society, The Heritage Foundation.

In the much-discussed Little Sisters of the Poor Home for the Aged v. Burwell case, the Court will decide an important challenge to the Affordable Care Act (ACA). At issue is the ACA’s contraceptive mandate, and whether it imposes a substantial burden on religious exercise or a violation of RFRA. Has the Department of Health and Human Services satisfied RFRA’s test for overriding a sincerely-held religious objection? -- Featuring: Michael P. Moreland, Mary Ann Remick Senior Visiting Fellow and Concurrent Professor of Law, University of Notre Dame.

On March 17th the United States Court of Appeals for the Sixth Circuit heard oral arguments in The State of Tennessee et al. v. FCC. This appeal involves a challenge to the FCC’s March 2015 order that preempted certain provisions of Tennessee and North Carolina state laws, which impose restrictions on the deployment of municipal broadband services. The Sixth Circuit will determine whether the FCC has the power to intervene and define the relationship between state and municipal governments when it comes to providing these services. Our expert discussed the FCC’s order, the parties’ arguments, and the takeaways from the oral argument. -- Featuring: Raymond L. Gifford, Wilkinson Barker Knauer LLP.

On March 10, 2016, the D.C. Circuit Court of Appeals heard oral arguments in Rothe Development Corporation v. Department of Defense. Rothe alleges that Congress has failed to bring a statutory racial classification under section 8(a) of the Small Business Act into compliance with subsequent Supreme Court precedent as well as a 2008 decision in which the Federal Circuit Court of Appeals (in litigation also involving Rothe) unanimously struck down a Department of Defense affirmative action program as unconstitutional racial discrimination. The program struck down in Rothe required the DoD, the Coast Guard, the Air Force, and NASA to ensure that five percent of all contract dollars be awarded to individuals or businesses designated as disadvantaged individuals. Our expert argued the case before the D.C. Circuit last week. -- Featuring: David F. Barton, The Gardner Law Firm.

The Professional and Amateur Sports Protection Act (PASPA) forbids any state (other than Nevada) from authorizing or licensing sports gambling. In striking down an earlier effort by New Jersey to legalize sports gambling, the Third Circuit interpreted this to bar states from giving affirmative authorization to engage in sports gambling, but allowing them to repeal their own sports-gambling prohibitions, in whole or in part. This qualification was necessary, the Third Circuit held, to avoid unconstitutionally commandeering the states. In the wake of that decision, New Jersey repealed its prohibitions to the extent that they apply to bets placed by those over 21 at casinos or race tracks. This too has been challenged under PASPA and oral argument in the case was heard by the Third Circuit, sitting en banc, on February 17, 2016. Our expert gave listeners background information on the case and reported on what transpired during oral argument. -- Featuring: Jonathan Wood, Staff Attorney, Pacific Legal Foundation.

Everyone has heard of the Clean Power Plan, but fewer people actually understand its contours and requirements. Most recently, on February 9, 2016, the U.S. Supreme Court stayed implementation of the rule, pending judicial review. Our expert discussed the scope and impact of the rule and the latest developments in the litigation. -- Featuring: Elbert Lin, Solicitor General, West Virginia.

In an 8-0 judgement announced on April 4, 2016, the U.S. Supreme Court held that it is permissible, but not mandatory, to draw legislative districts based on total population rather than on voting population. Our expert discussed Justice Ginsburg’s opinion, as well as the concurrences of Justices Thomas and Alito. -- Featuring: Andrew Grossman, Partner, Baker & Hostetler LLP, and Adjunct Scholar, Cato Institute.