On February 8, 2024, the Supreme Court will hear Oral Argument in Trump v. Anderson. The Court will consider whether the Colorado Supreme Court erred in ordering former President Donald Trump excluded from the 2024 presidential primary ballot.
Legal questions involved in the case include whether Section 3 of the Fourteenth Amendment is "self-executing" or requires an additional act of Congress, whether the events of January 6, 2021, constitute an insurrection, and if so whether Donald Trump participated in that insurrection, and whether the President is an "officer of the United States" as meant by Section 3.
Join us as a panel of experts, including Prof. Kurt Lash, who submitted an amicus brief in the case, and Prof. Ilya Somin, who also submitted an amicus brief, preview this case the day before the oral argument, discussing the case and the questions implicated by it.
Featuring:

Prof. Kurt T. Lash, E. Claiborne Robins Distinguished Chair in Law, University of Richmond School of Law
Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
(Moderator) Prof. Derek T. Muller, Professor of Law, Notre Dame Law School

On January 18, the Supreme Court heard oral arguments in Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce. These cases will determine whether Chevron v. NRDC, a 1984 case in which the Court held that courts should defer to agency interpretations of ambiguous statutes, should be overturned.
This program will discuss the potential effect of the decision on new rulemaking, specifically in labor law. The discussion will cover how deference has been applied in the past and how Loper and Relentless may impact recent rulemaking. The program will focus on a series of recent rulemaking, including the Section 541 Exemption Revision of the Fair Labor Standards Act, the NLRB’s modified Independent Contractor Standard, the NLRB Joint Employer rule, and the FTC proposal to ban Non Compete Clauses.
Please join us as an expert panel addresses recent rulemaking and more in pursuit of understanding the potential fallout after Loper and Relentless.
To learn more about Loper's potential impact on Labor Law, check out Alex MacDonald's article on the subject here.
Featuring:

Alexander Thomas MacDonald, Shareholder Littler
Hon. Tammy Dee McCutchen, Former Administrator, Wage and Hour Division, U.S. Department of Labor

Title IX of the Education Amendments of 1972 applies to educational institutions at all levels that receive federal financial assistance from the Department of Education. As such, it has traditionally not applied to private schools that do not accept government funding, generally doled out in the form of federal grants or loans.
Two recent cases however (Buettner-Hartsoe v. Baltimore Lutheran High School Association & Chen et al. g. Hillsdale College) have presented a novel theory that would classify an institution's tax-exempt status as federal financial assistance, leaving even those private schools who have sought to remain independent from governmental regulation subject to Title IX. This would affect schools at all levels, as Buettner-Hartsoe concerns a secondary school serving grades 6-12 and Chen et al. is challenging Hillsdale College's actions.
Join us for a litigation update on these two cases featuring Mary Margaret Beecher of Napa Legal Institute, which filed an amicus brief in Buettner-Hartsoe.
Featuring:

Mary Margaret Beecher, Vice President and Executive Director, Napa Legal Institute
(Moderator) Amanda Salz, Associate, Morgan, Lewis, & Bockius LLP

In two cases this term (Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce) the Court will consider whether Chevron v. NRDC, a 1984 case in which the Court held that courts should defer to agency interpretations of ambiguous statutes, should be overturned.
Both cases concern attempts of the National Marine Fisheries Service (NMFS) to promulgate rules requiring industry-funded monitoring of Atlantic herring fishery under the Magnuson-Stevens Fishery Conservation and Management Act (MSA). Regulated fisheries contended that the MSA does not allow the NMFS to create a program requiring the industry to pay for monitoring services. The NMFS does not contend there is an explicit grant of this power, but argues its interpretation of the statute is appropriate and due deference under the precedent of Chevron.
Oral argument is set to be heard in both cases on January 17th, 2024. Join us for a courthouse steps oral argument webinar featuring John Vecchione, who argued the Relentless case in the lower court, where we will discuss and break down how oral argument went in both cases before the court.
Featuring:

John Vecchione, Senior Litigation Counsel, New Civil Liberties Alliance

On January 9, 2024, the U.S. Supreme Court will hear oral argument in Sheetz v. County of El Dorado, CA. This case is a property-rights challenge by a California landowner to nearly $24,000 in development fees levied by the county as a condition for receiving a permit to build a manufactured home. The court will determine whether a monetary exaction imposed by a local government as a condition for a building permit is exempt from the “essential nexus” and “rough proportionality” requirements established in Nollan v. Cal. Coastal Comm’n and Dolan v. City of Tigard, simply because the exaction is authorized by local legislation.
Please join us as we break down and analyze how oral argument went before the Court.
Featuring:

David P. Lanferman, Partner, Rutan & Tucker LLP
Nancie G. Marzulla, Partner, Marzullla Law

After Carson v. Makin (2023) --a U.S. Supreme Court case holding that Maine may not prohibit families from using state-provided voucher funds at private religious schools-- St. Isidore of Seville Catholic Virtual School (St. Isidore) applied to become the first faith-based virtual charter school in Oklahoma. The Oklahoma Statewide Virtual Charter School Board approved St. Isidore’s application. On July 31, 2023, the Oklahoma Parent Legislative Action Committee, represented by the ACLU, Americans United for Separation of Church & State, and other organizations, filed a lawsuit against State Superintendent of Public Instruction Ryan Walters, the Oklahoma State Department of Education, the Oklahoma Statewide Virtual Charter School Board, and St. Isidore. The lawsuit alleges that it is a violation of the Oklahoma Constitution and Oklahoma law to grant charter school status and distribute state aid to a faith-based school.
Subsequently, the Attorney General of Oklahoma, Gentner Drummond, filed a separate lawsuit requesting original jurisdiction in the Oklahoma Supreme Court, taking the side of the ACLU and its allies, and seeking to ban St. Isidore from operating a faith-based virtual charter school. Currently, Oklahoma families may choose to send their children, for free, to local public schools, local charter schools run by private organizations, or virtual charter schools run by private organizations. Those seeking to block St. Isidore’s operation take the position that, while Oklahoma may allow secular private organizations to operate charter schools, it must deny the same opportunity to all faith-based organizations. The Defendants in the suits argue that Carson v. Makin and other recent precedents applying the First Amendment to the U.S. Constitution, as well as different Oklahoma state laws, prohibit the state from discriminating against St. Isidore because of its faith-based status and denying families of Oklahoma a faith-based choice among the many secular choices for free education in Oklahoma.
Join us for a litigation update on OKPLAC, Inc. v. Statewide Virtual Charter School Board.
Featuring:

Michael McGinley, Partner, Dechert LLP
(Moderator) Hiram Sasser, Executive General Counsel, First Liberty Institute

On January 16, 2023, the U.S. Supreme Court will hear oral argument in Devillier v. Texas. This takings case will determine whether a person whose property is taken without compensation may seek redress under the self-executing takings clause of the Fifth Amendment even if the legislature has not affirmatively provided them with a cause of action.
The petitioners in this case sued the state after the Texas Department of Transportation elevated an interstate and constructed a barrier to obstruct natural water flow, subsequently flooding and damaging the petitioners’ properties.
Ilya Somin, Professor of Law at Antonin Scalia Law School at George Mason University, joined us to discuss the case and its developments following oral argument.
For more analysis from Professor Somin, you can read his blog post on the arguments here and find his amicus brief on behalf of the CATO Institute here.
Featuring:

Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University

As we entered the new year, John Malcolm and John Yoo examined the latest regarding presidential power. In recent weeks, both Colorado and Maine have removed former President Donald Trump from their primary ballots under Section 3 of the Constitution's 14th Amendment. In D.C., House Republicans are are preparing contempt charges against Hunter Biden for defying a congressional subpoena. Tune in to hear the latest.

Chevron v. NRDC (1984) and subsequent precedents held that courts should defer to agency interpretations of ambiguous statutes. This “Chevron Deference” has been a topic of great debate, with many calling for it to be overturned, while others argue it is a vital part of how Courts address the complexity of law and agency actions. Experts on both sides argue it has implications on the role of judges, judicial independence, separation of powers, stare decisis, governmental accountability, and the rule of law.
In two cases this term (Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce) the Court will be asked whether that precedent should be overturned. Join us as a panel of experts give a preview of these two important cases in a discussion of what the Chevron doctrine has done, how these cases may affect it and the body of precedent surrounding it, and what they may mean moving forward.
Featuring:

Prof. John Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law
Prof. Philip Hamburger, Maurice and Hilda Friedman Professor of Law, Columbia Law School; CEO, New Civil Liberties Alliance
Prof. Kristin Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School
(Moderator) Hon. Stephen Alexander Vaden, Judge, United States Court of International Trade

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.

Federal Bureau of Investigation v. Fikre (January 8) - Civil Rights, National Security; Whether a lawsuit alleging that the plaintiff was wrongly placed on the “No Fly List” can go forward when the government has removed the plaintiff from the list and promised not to put him back on the list “based on the currently available information.”
Campos-Chaves v. Garland (January 8) - Immigration; Whether the federal government provided adequate notice of an immigration proceeding, allowing the immigration court to enter a deportation order when the non-citizen does not appear.
U.S. Trustee v. John Q. Hammons Fall 2006, LLC (January 9) - Bankruptcy; In the wake of the court’s 2022 decision holding unconstitutional a federal law imposing higher fees on bankruptcy filers in 48 states, what should the remedy for that constitutional violation be?
Sheetz v. County of El Dorado, California (January 9) - Property Rights; Property-rights challenge by California landowner to nearly $24,000 in development fees levied by the county as a condition for receiving a permit to build a manufactured home.
Smith v. Arizona (January 10) - Sixth Amendment, Criminal Law & Procedure; Whether the Sixth Amendment, which guarantees a defendant the right to confront the witnesses against him, allows prosecutors to use expert testimony about evidence – here, a report prepared by a different crime lab analyst who no longer worked at the lab and did not testify at trial – that was not itself admitted into evidence, on the grounds that the testifying expert was simply offering his own opinion and that the defendant could have subpoenaed the original analyst.
Macquarie Infrastructure Corp. v. Moab Partners, L.P. (January 16) - Federalism & Separation of Powers; Whether the failure to make a disclosure required by Item 303 of Securities and Exchange Commission Regulation S-K, which requires a company to disclose known trends or uncertainties that are likely to have a material impact on its financial position, can support a private claim under Section 10(b) of the Securities and Exchange Act of 1934, which prohibits deception in connection with the purchase or sale of securities, even if there has not been an otherwise-misleading statement.
Devillier v. Texas (January 16) - Property Rights, Takings; Whether property owners can seek compensation under the Constitution for “taking” of their property by the state, if the state has not specifically given them a right to sue.
Relentless v. Department of Commerce (January 17) - Administrative Law, Federalism & Separation of Powers - Whether to overrule or limit the court’s 1984 decision in Chevron v. Natural Resources Defense Council.
Loper Bright Enterprises v. Raimondo (January 17) - Administrative Law, Federalism & Separation of Powers - Whether to overrule or limit the court’s 1984 decision in Chevron v. Natural Resources Defense Council.

Featuring:

Eric B. Boettcher, Partner, Wright Close & Barger
Allyson Newton Ho, Partner and Co-Chair, Constitutional and Appellate Law Practice Group, Gibson, Dunn & Crutcher LLP
Hon. Grover Joseph Rees, III, Former General Counsel of the U.S. Immigration and Naturalization, Former United States Ambassador to East Timor
Mark L. Rienzi, President, Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, Catholic University; Visiting Professor, Harvard Law School
Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School
Moderator: Eli Nachmany, Associate, Covington & Burling LLP