FedSoc Forums

The National Telecommunications and Information Administration (NTIA) unveiled the National Spectrum Strategy in November 2023 with significant attention and has since introduced an implementation plan. This webinar will delve into potential implementation scenarios, expected outcomes, and how the upcoming presidential election might influence the strategy's execution.
Featuring:

Jennifer Warren, Vice President, Technology Policy & Regulation, Lockheed Martin Government Affairs
Hon. Robert McDowell, Partner, Cooley
Umair Javed, Acting Chief Counsel, Office of Acting FCC Chairwoman Jessica Rosenworcel
Moderator: John Kneuer, President and Founder, JKC Consulting LLC

In his new book The Indispensable Right: Free Speech in an Age of Rage, Professor Jonathan Turley turns his attention to current attacks on free speech, analyzing them in the context of the historical, legal, and political traditions of free speech and the First Amendment which frame them. In so doing he discusses the interaction and role of government, academia, media, and others in creating the current climate surrounding speech which he finds troubling.
Join us as Prof. Turley and (moderator) Hon. Eileen O'Connor discuss these issues of free speech and the book itself.
Featuring:

Prof. Jonathan R. Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law; Director of the Environmental Law Advocacy Center; Executive Director, Project for Older Prisoners, The George Washington University Law School
(Moderator) Hon. Eileen J. O'Connor, Founder, Law Office of Eileen J. O'Connor PLLC

Please join us for a fireside chat with Gwendolyn Cooley, former Chair of the National Association of Attorneys General (NAAG) Multistate Antitrust Task Force (2021-2024) and former Wisconsin Assistant Attorney General (2005-2024). This candid conversation will cover how State Attoneys General work together across administrations, their work with Federal antitrust agencies, and more.

Gwendolyn J. Lindsay Cooley
Featuring:

Gwendolyn J. Lindsay Cooley, Former NAAG Antitrust Task Force Chair and Former Assistant Attorney General at Wisconsin Department of Justice
Moderator: Dina Kallay, Head of Antitrust and Competition Law, Ericsson

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In Laredo, Texas, officials arrested local journalist and regular government critic Priscilla Villarreal for soliciting and receiving “information that has not been made public” with the "intent to obtain a benefit", a felony under a local statute. Ms. Villareal had asked a Laredo police officer for facts about two newsworthy events, which the officer shared and Ms. Villarreal then published.
Interestingly, this marked the first time the statute had been enforced, despite sitting on the books for over two decades. Ms. Villareal sued, alleging the law violated her First, Fourth, and Fourteenth Amendment rights.
In a deeply splintered 9-7 decision, the en banc Fifth Circuit held those officials have qualified immunity from Villarreal’s First and Fourth Amendment claims.
Villarreal has filed a petition of certiorari at the Supreme Court, asking the Court to answer (1) whether it obviously violates the Constitution to arrest someone for asking government officials questions and publishing the information they volunteer and (2) whether qualified immunity is unavailable to public officials who use a state statute in a way that obviously violates the First Amendment.
Join us for a litigation update on this interesting case.
Featuring:

JT Morris, Supervising Senior Attorney, Foundation for Individual Rights and Expression (FIRE)
(Moderator) Casey Mattox, Vice President, Legal Strategy, Stand Together

For many years, legal scholars have declared that the nondelegation doctrine is dead. Professor Cass Sunstein once quipped that the nondelegation doctrine had only "one good year" and more than 200 "bad ones." But that has changed recently. In 2024, the en banc Fifth Circuit held that the Federal Communications Commision's (FCC) Universal Service Fund is unconstitutional on nondelegation grounds. It was one of the only times since 1935 that a court has done so, and it appears that 2024 (and beyond) may turn out to be good years for the nondelegation doctrine.
Contrary to the FCC's argument, the en banc Fifth Circuit concluded that the Universal Service Fund operates as a tax, which only Congress has the power and authority to require. Regardless of the public policy that it seeks to advance, Congress cannot delegate this power to the FCC or to any other executive branch agency. The nondelegation doctrine has not been entirely dead for the last hundred years; courts often construe statutes so as not to invalidate them under the nondelegation doctrine. The en banc Fifth Circuit rejected that approach.
Does the canon in the common law of agency, mentioned by the Fifth Circuit, known as delegata potestas non potest delegari (Latin for “delegated power may not be delegated”), have any impact on the original meaning of the nondelegation doctrine? Assuming the nondelegation doctrine is valid, what are the standards that courts should look to when determining whether a statute is sufficiently intelligible? Do words like “in the public interest” or instructions for the agency to “provide reasonable regulations” provide sufficient guidance to agencies? What kind of principles can be applied that are also judicially enforceable?
If the Supreme Court affirms the Fifth Circuit, what will be the impact on other statutes? To discuss these important questions and others, Jeff Beelaert, a partner at Stein Mitchell, and Trent McCotter, a partner at Boyden Gray, will join us.
Featuring:

Jeffrey Beelaert, Partner, Stein Mitchell
Trent McCotter, Partner, Boyden Gray PLLC
Moderator: Devin Watkins, Attorney, Competitive Enterprise Institute

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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.

Royal Canin U.S.A. v. Wullschleger, (October 7) -Federalism & Separation of Powers; Whether a post-removal amendment of a complaint to omit federal questions defeats federal-question subject matter jurisdiction pursuant to 28 U.S.C. § 1331; and (2) whether such a post-removal amendment of a complaint precludes a district court from exercising supplemental jurisdiction over the plaintiff’s remaining state-law claims pursuant to 28 U.S.C. § 1367.
Williams v. Washington, (October 7) -Federalism & Separation of Powers; Whether exhaustion of state administrative remedies is required to bring claims under 42 U.S.C. § 1983 in state court.
Garland v. VanDerStok, (October 8) -Second Amendment; Whether “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive” under 27 C.F.R. § 478.11 is a “firearm” regulated by the Gun Control Act of 1968; and (2) whether “a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver” under 27 C.F.R. § 478.12(c) is a “frame or receiver” regulated by the act.
Lackey v. Stinnie, (October 8) -Civil Procedure; (1) Whether a party must obtain a ruling that conclusively decides the merits in its favor, as opposed to merely predicting a likelihood of later success, to prevail on the merits under 42 U.S.C. § 1988; and (2) whether a party must obtain an enduring change in the parties’ legal relationship from a judicial act, as opposed to a non-judicial event that moots the case, to prevail under Section 1988.
Glossip v. Oklahoma, (October 9) -Criminal Law; (1) Whether the state’s suppression of the key prosecution witness’ admission that he was under the care of a psychiatrist and failure to correct that witness’ false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; (3) whether due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it; and (4) whether the Oklahoma Court of Criminal Appeals' holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment.
Bouarfa v. Mayorkas, (October 15), -Immigration; Whether a visa petitioner may obtain judicial review when an approved petition is revoked on the basis of nondiscretionary criteria.
Medical Marijuana v. Horn, October 15 -Criminal Law; Whether economic harms resulting from personal injuries are injuries to “business or property by reason of” the defendant’s acts for purposes of a civil treble-damages action under the Racketeer Influenced and Corrupt Organizations Act.
City and County of San Francisco v. Environmental Protection Agency, (October 16) -Environmental Law & Regulation; Whether the Clean Water Act allows the Environmental Protection Agency (or an authorized state) to impose generic prohibitions in National Pollutant Discharge Elimination System permits that subject permit-holders to enforcement for violating water quality standards without identifying specific limits to which their discharges must conform.
Bufkin v. McDonough, (October 16) -Vetrans Affairs; Whether the U.S. Court of Appeals for Veterans Claims must ensure that the benefit-of-the-doubt rule in 38 U.S.C. § 5107(b) was properly applied during the claims process in order to satisfy 38 U.S.C. § 7261(b)(1), which directs the court to “take due account” of the Department of Veterans Affairs’ application of that rule.

Featuring:

James S. Burling, Vice President of Litigation, Pacific Legal Foundation
John Masslon, Senior Litigation Counsel, Washington Legal Foundation
Matthew Rice, Solicitor General, Tennessee Attorney General's Office
Zack Smith, Legal Fellow and Manager, Supreme Court and Appellate Advocacy Program, The Heritage Foundation
(Moderator) Kirby T. West, Attorney, Institute of Justice

On June 25, 2024, the Oklahoma Supreme Court ruled that the nation’s first religious charter school, St. Isidore of Seville Catholic Virtual School, was unconstitutional under the Establishment Clause based on its view that the privately operated school was both a government entity and a state actor. This finding of state action also led the court to uphold a state law that expressly bans religious entities but not secular ones from operating charter schools. This forum will present views from litigation counsel on both sides of this historic case. Panelists will explore the arguments for and against St. Isidore, including whether St. Isidore can fairly be considered a state actor and whether the Free Exercise Clause prevents a state from discriminating against religious operators in a public program that encourages private innovation in the formation of charter schools.
Featuring:

Alex J. Luchenitser, Associate Vice President & Associate Legal Director, Americans United for Separation of Church and State
Philip A. Sechler, Senior Counsel, Alliance Defending Freedom
(Moderator) Prof. Michael P. Moreland, Professor of Law and Director of the Eleanor H. McCullen Center for Law, Religion and Public Policy, Villanova University Charles Widger School of Law

In Nowhere to Live: The Hidden Story of America’s Housing Crisis, author James Burling describes the interesting history of America's housing market. With stories going back to the Civil War, the early twentieth century, and the “urban renewal” movement of the 1950s, Nowhere to Live argues that a series of governmental mistakes helped to create a current housing crisis. Burling also proposes a solution: "not by government fiat, but through the restoration of private property rights." Join the author and moderator Eric Claeys as they discuss these issues and the book itself.
Featuring:

James S. Burling, Vice President of Litigation, Pacific Legal Foundation
Moderator: Prof. Eric R. Claeys, Professor of Law, Antonin Scalia Law School, George Mason University

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Click here to read James Burling's blog post.

The Supreme Court recently decided that they will review a case dealing with the Clean Water Act (CWA), which prohibits the pollution of US waters without a National Pollutant Discharge Elimination System (NPDES) permit. In order to comply with the statute, the city of San Francisco was issued a permit by the Environmental Protection Agency (EPA) in 2019. The permit, however, lays down narrative limitations on the discharge of pollutants, such as anything which may “cause or contribute to a violation of any applicable water quality standard.” The city of San Francisco challenged the EPA’s permit, arguing that these restrictions “expose San Francisco and numerous permit-holders nationwide to enforcement actions while failing to tell them how much they need to limit or treat their discharges to comply with the Act.” In July 2023, the Ninth Circuit Court of Appeals rejected San Francisco’s argument, finding that the narrative limitations are not too vague but are rather important to ensuring that state water standards are met. This then prompted the city to appeal the decision to the Supreme Court.
Join this FedSoc Forum as panelists discuss varying views of this case and what the Supreme Court’s review might bring.
Featuring:

Prof. Robin Craig, Robert A. Schroeder Distinguished Professor of Law, University of Kansas School of Law
Andre Monette, Managing Partner, Best Best & Krieger LLP
Moderator: Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law and Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law

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The Bureau of Land Management (BLM) recently adopted comprehensive new land management regulations known as the “Conservation and Landscape Health Rule,” or simply, “the Public Lands Rule.” The rule has spurred litigation challenging the Interior Department’s authority to establish a conservation “overlay” over 245 million acres of federal lands. Some argue that this rule, which aims to “build and maintain the resilience of ecosystems on public lands,” violates the Federal Land Policy Management Act (FLPMA), which requires BLM to “manage the public lands under principles of multiple use and sustained yield” and “regulate, through easements, permits, leases, licenses, published rules, or other instruments as the Secretary deems appropriate, the use, occupancy, and development of the public lands.” In the Public Lands Rule, BLM claims “wide discretion to determine how those [FLPMA] principles [of multiple use and sustained yield] should be applied.”
Whether this new rule improperly places “conservation” above other uses of federal lands – for grazing, recreation, energy production, or otherwise – is the subject of heated debate. In this FedSoc Forum, a panel of experts from different vantage points will consider the legal and policy merits of the “Public Lands Rule” and address whether the rule should survive judicial review and/or congressional scrutiny.
Featuring:

Prof. Sam Kalen, Associate Dean, William T. Schwartz Distinguished Professor of Law, University of Wyoming College of Law
Jeffrey Wood, Partner, Baker Botts LLP
Jonathan Wood, Vice President of Law & Policy, Property and Environment Research Center
Moderator: Jim Burling, Vice President of Litigation, Pacific Legal Foundation

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