FedSoc Forums

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases that will be covered are included below.

Percoco v. United States (Nov. 28) - Criminal Law; whether a private citizen who can influence government decision-making owes a duty to the public, so that he can be convicted of bribery.
Ciminelli v. United States (Nov. 28) - Criminal Law; whether a defendant can be convicted under the federal wire-fraud statute based on a “right to control” theory.
United States v. Texas (Nov. 29) - Immigration; a challenge to the Biden administration’s policy of prioritizing certain groups of unauthorized immigrants for arrest and detention.
Wilkins v. United States (Nov. 30) - Property Rights, whether the 12-year statute of limitations to bring a lawsuit under the Quiet Title Act is jurisdictional and cannot be waived.
303 Creative v. Elenis (Dec. 5) - Civil Rights; whether applying Colorado’s public-accommodation law to require an artist to speak or stay silent violates the Constitution’s free speech clause.
MOAC Mall Holdings LLC v. Transform Holdco LLC (Dec. 5) - Bankruptcy; whether a provision of federal bankruptcy law limits the power of the courts of appeals over an order approving the sale of a debtor’s assets.
Bartenwerfer v. Buckley (Dec. 6) - Bankruptcy; whether a bankruptcy debtor can be held liable for another person’s fraud.
Moore v. Harper (Dec. 7) - Election Law; whether a state supreme court’s order invalidating a state’s congressional map and ordering the state to draw a new one violates the Constitution’s elections clause.

Featuring:

Andrew Grossman, Partner, Baker & Hostetler LLP; Adjunct Scholar, The Cato Institute
Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity Network
Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
Moderator: Samuel D. Adkisson, Associate Attorney, Gibson Dunn

The Justice Department recently announced the issuance of a revised internal policy for charging cases brought under the Computer Fraud and Abuse Act (CFAA), our nation's main computer crime statute. This revised policy was issued in the wake of the Supreme Court case of United States v. Van Buren, which held that the CFAA’s “exceeds authorized access” provision does not cover those who have improper motives for obtaining information that is otherwise available to them. Additionally, the new DOJ policy for the first time directs federal prosecutors that good-faith security research should not be charged under the CFAA, but also acknowledges that claiming to be conducting security research is not a free pass for those acting in bad faith.

Does the new DOJ charging policy strike a reasonable balance between privacy and law enforcement interests? Do its protections for security research go far enough, or do they extend too far? In the wake of Van Buren and this policy, does the federal government have adequate tools to address insider threats, especially where such threats are focused on invasions of privacy and confidentiality instead of being motivated by financial gain?

Join us as our panel of experts break down these questions.

Featuring:--Prof. Orin Kerr, Willam G. Simon Professor of Law, University of California, Berkeley School of Law
--Prof. Michael Levy, Adjunct Professor of Law, Penn Carey Law, University of Pennsylvania
--[Moderator] John Richter, Partner, King & Spalding

On November 8, 2022, the U.S. Supreme Court will hear oral argument in Mallory v. Norfolk Southern Railway.
Petitioner Robert Mallory, a Virginia resident, sued Virginia-based Norfolk Southern in sued in the Court of Common Pleas, the court of general jurisdiction in Pennsylvania, claiming that exposure to carcinogens while working for the company caused him to develop colon cancer. According to his complaint, Mallory was exposed to harmful carcinogens while employed by Defendant in Ohio and Virginia between 1988 through 2005. He did not allege that he suffered any harmful occupational exposures in Pennsylvania but sued in Pennsylvania court on a theory that the court could exercise jurisdiction over the Virginia company because it had registered to do business in Pennsylvania.
Under Pennsylvania law, a foreign corporation “may not do business in this Commonwealth until it registers” with the Department of State of the Commonwealth. State law further establishes that registration constitutes a sufficient basis for Pennsylvania courts to exercise general personal jurisdiction over that foreign corporation. Norfolk Southern Railway objected to the exercise of personal jurisdiction, arguing that the exercise violated the Due Process Clause of the Fourteenth Amendment. The trial court agreed and held Pennsylvania’s statutory scheme unconstitutional. The Pennsylvania Supreme Court affirmed.
The Supreme Court is to decide if a state registration statute for out-of-state corporations that purports to confer general personal jurisdiction over the registrant violates the Due Process Clause of the Fourteenth Amendment.
Please join us for analysis of how oral argument went before the Court.
Featuring:
John Masslon, Senior Litigation Counsel, Washington Legal Foundation.

Associated Blog Post: Mallory v. Norfolk Southern: Oral Argument Preview
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In one of its most significant separation of powers opinions, the U.S. Supreme Court decided Humphrey’s Executor v. United States 87 years ago, in which it held that President Roosevelt’s authority to remove a commissioner that his predecessor nominated and the Senate confirmed to the Federal Trade Commission was not “illimitable” under the Constitution. The Court held that the President’s discretion to remove the commissioner based on his differing policy views was bounded by the Federal Trade Commission Act’s limitation on removal only for "inefficiency, neglect of duty, or malfeasance in office."
Humphrey’s continues to have significant implications today, in cases like FTC v. Walmart (N.D. Ill.) where Walmart has argued that by virtue of Humphrey’s, the “quintessentially executive law-enforcement power” that the FTC has under its authorizing statute is unconstitutional because its commissioners are not removable at will by the President.
This teleforum will analyze the contemporary implications of Humphrey’s and its continuing vitality in U.S. Supreme Court’s administrative law jurisprudence.

Featuring:

Gregory Dolin, Senior Litigation Counsel, New Civil Liberties Alliance
Daniel Epstein, Director, Trust Ventures
Roger Severino, Vice President, Domestic Policy and The Joseph C. and Elizabeth A. Anderlik Fellow, The Heritage Foundation
Kimberly Wehle, Professor of Law, University of Baltimore Law School; Visiting Professor, Washington College of Law, American University
[Moderator] Aram A. Gavoor, Associate Dean for Academic Affairs and Professorial Lecturer in Law, the George Washington University Law School

On November 7, 2022, the U.S. Supreme Court will hear oral argument in Michelle Cochran v. U.S. Securities and Exchange Commission. In April 2016, the Securities and Exchange Commission (SEC) brought an enforcement action against Michelle Cochran, a certified public accountant, alleging that she had failed to comply with federal auditing standards. A SEC administrative law judge (ALJ) determined Cochran had violated federal law, fined her $22,500, and banned her from practicing before the SEC for five years. The SEC adopted the ALJ’s decision, and Cochran objected.

Before the SEC could rule on Cochran’s objection, the Supreme Court decided Lucia v. SEC, in which it held that SEC ALJs are officers of the United States under the Appointments Clause, who must be appointed by the President, a court of law, or a department head. In response to the Lucia ruling, the SEC remanded all pending administrative cases for new proceedings before constitutionally appointed ALJs, including Cochran’s.

Cochran filed a federal lawsuit arguing that while Lucia may have addressed one constitutional issue with ALJs, it left uncorrected another problem: because SEC ALJs enjoy multiple layers of "for-cause" removal protection, they are unconstitutionally insulated from the President's Article II removal power. The district court dismissed her case for lack of subject-matter jurisdiction based on five circuit courts of appeal ruling that the Exchange Act implicitly stripped district courts of the jurisdiction to hear challenges to ongoing SEC enforcement proceedings. Arguing that in 2010, the Supreme Court had unanimously ruled in Free Enterprise Fund that nothing in the Exchange Act stripped federal court jurisdiction either explicitly, or implicitly, Cochran appealed to the U.S. Court of Appeals for the Fifth Circuit. A three judge panel affirmed the dismissal 2-1, but later, the Fifth Circuit sitting en banc, reversed 9-7, holding that Cochran had district court jurisdiction to bring her challenge to the SEC ALJ’s removal protections.

The case is set to be argued on Nov 7, 2022. We will break down the oral argument for this case on the next day, November 8, 2022.

Featuring:

Margaret A. Little, Senior Litigation Counsel, New Civil Liberties Alliance

In Tiwari v. Friedlander, the Petitioners ask the Supreme Court to grant certiorari to address whether the Fourteenth Amendment requires meaningful review of restrictions on the right to engage in a common occupation. The petition argues that the right to engage in a common occupation is deeply rooted in the nation’s history and tradition, but its protection has been inconsistent, sometimes leading to conflicting results across the lower courts. The petition also contends this inconsistency is caused by the standard under which courts review economic-liberty challenges— the rational basis test.
The Petitioners, Dipendra Tiwari and Kishor Sapkota, challenge Kentucky’s Certificate-of-Need (CON) Law as an unconstitutional infringement on their right to earn an honest living. The CON law prevents them from opening a healthcare agency they designed to provide home services to the large community of Nepali-speaking refugees and immigrants in Louisville. By contrast, Kentucky contends that the CON law is necessary for lowering competitive pressure and increasing profits for incumbents who can pass their gains to the public.
The petition raises questions about the proper articulation of the rational basis test and whether the right to engage in a common occupation is deeply rooted in history and tradition under the Court’s recent landmark decision Dobbs v. Jackson Women’s Health Organization.
Which Rational Basis Test is it anyway? Is the Right to Engage in a Common Occupation Deeply Rooted in History and Tradition and does the Fourteenth Amendment Guarantee Meaningful Protection for that Right?
To discuss the petition and these questions, please join the lead attorney for the Petitioners, Andrew H. Ward, attorney at the Institute for Justice, and Professor David Upham, Director of Legal Studies and Associate Professor at the University of Dallas.
Featuring:
--Andrew Ward, Attorney, Institute for Justice
--Prof. David Upham, Director of Legal Studies & Associate Professor, University of Dallas
--Moderator: Adam Griffin, Law Clerk, US District Courts

In August 2022, the Biden administration announced plans to cancel up to $20,000 in student loan debt per person for more than 40 million Americans. To do this, the Department of Education relies on the HEROES Act which, as an aid to veterans and their families, allows the government to modify student loans during times of war or national emergency. On September 27, 2022, the Pacific Legal Foundation, on behalf of Frank Garrison, filed suit against the U.S. Department of Education to block the Department’s move to cancel more than $500 billion in student loan debt. Plaintiff seeks a temporary restraining order from the U.S. District Court for the Southern District of Indiana to prevent the loan cancellation from going into effect. Mr. Garrison, as a part of an existing, congressionally authorized Public Service Loan Forgiveness (PSLF) program, will receive debt forgiveness after making 10 years of payments on his loans. The challenged program, however, will, as a result of cancelling his loans, stick him with a new state tax bill which he would not have under his existing PSLF program. Indiana is one of seven states that plans to tax any debt forgiven in Biden's plan, and thus Garrison would owe more than $1,000 in state and local taxes.

This Litigation Update from Caleb Kruckenberg will provided a current look at Garrison v. U.S. Department of Education.

Featuring
--Caleb Kruckenberg, Litigation Counsel, Pacific Legal Foundation
--[Moderator] Diana Furchtgott-Roth, Director, Center for Energy, Climate, and Environment and The Herbert and Joyce Morgan Fellow in Energy and Environmental Policy, The Heritiage Foundation

On October 31, 2022, the U.S. Supreme Court heard Students for Fair Admissions Inc. v. President & Fellows of Harvard College.
In perhaps the most anticipated case of this term, the court considers a challenge to the use of racially preferential undergraduate student admissions practices at Harvard University and the University of North Carolina.
Our experts broke down the oral argument on the same day, October 31, 2022.

Featuring:
--Prof. Amanda Shanor, Assistant Professor of Legal Studies & Business Ethics, The Wharton School
--Devon Westhill, President and General Counsel, Center for Equal Opportunity
--Moderator: Curt Levey, President, Committee for Justice

The use of presidential emergency powers has raised controversy under administrations of both parties. President Trump’s attempt to transfer funds to build his border wall, the CDC’s eviction moratorium and OSHA vaccine mandate, Title 42 border expulsions, and President Biden’s student loan forgiveness plan have all raised questions of overreach. This panel explored the pros and cons of executive emergency powers and whether or not there should be tighter constraints on their use.

Featuring:

Daniel J. Dew, Legal Policy Director, Pacific Legal Foundation
Elizabeth Goitein, Senior Director, Liberty & National Security Program, Brennan Center for Justice at New York University Law School
Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
Moderator: Ilya Shapiro, Senior Fellow and Director of Constitutional Studies, Manhattan Institute

Tornado Cash is an open source, decentralized cryptocurrency tumbler that was introduced in 2019. The service allows users to mix identifiable Ethereum cryptocurrency funds with others, thus obscuring the trail back to the funds original source. On August 8, 2022, the Treasury’s Office of Foreign Assets Control (OFAC) sanctioned Tornado Cash, making it illegal for United States citizens, residents, and companies to receive or send money through the service. OFAC claims that Tornado cash is responsible for laundering more than $7 billion in virtual currencies, including money believed to be stolen by North Korea and criminal groups.
As opposed to sanctioning people, organizations, or particular addresses associated with rogue regimes, OFAC has sanctioned the code of Tornado Cash itself, causing critics to claim that OFAC has exceeded its statutory authority .
Join our experts as they discuss OFAC’s blacklisting of Tornado Cash, potential litigation from opponents, and the broader implications for financial privacy, national security, and free speech.

Featuring:
Paul Brigner, Head of U.S. Policy and Strategic Advocacy, Electric Coin Company.
Michael Mosier, General Counsel, Espresso Systems
Kevin Werbach, Professor of Legal Studies and Business Ethics at the Wharton School, University of Pennsylvania
Moderator: J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University