FedSoc Forums

The Wisconsin Institute for Law & Liberty (WILL) filed a lawsuit in federal court challenging allegedly unconstitutional race discrimination in the American Rescue Plan’s provision to offer loan forgiveness based on racial categories. The plaintiffs are twelve farmers and ranchers from Wisconsin, Minnesota, South Dakota, Ohio, Missouri, Iowa, Arkansas, Oregon, and Kentucky. Each plaintiff would be eligible for the federal loan forgiveness program, but for their race. In response, U.S. District Judge William Griesbach issued a temporary restraining order on June 10, 2021 halting payments. Other cases subsequently resulted in similar orders.

These lawsuits challenge the extent to which the government can prefer one racial group over another based on allegations of generalized societal or industry discrimination. Prior litigation had addressed allegations of particularized discrimination by the government against black farmers but this more traditional focus on discrimination and tailored remedy was thought by the administration to be inadequate. How should courts respond?


Featuring:

--Rick M. Esenberg, Founder, President, and General Counsel, Wisconsin Institute for Law & Liberty
--Devon Westhill, President and General Counsel, Center for Equal Opportunity

In response to Russia’s invasion of Ukraine, assets of Russian oligarchs have been frozen in Western Europe and the United States. Now some leaders in Western countries urge that these assets be assigned to reconstruction efforts in Ukraine. Are there legal limits on such diversion of foreign-owned property? Should that matter to U.S. policy? Is this rough justice or dangerous precedent? Our legal experts will discuss these questions on this timely webinar.

Featuring:
--Dean Ronald A. Cass, Dean Emeritus, Boston University School of Law; President, Cass & Associates, PC; Former Vice-Chairman and Commissioner, U.S. International Trade Commission
--Prof. Paul B. Stephan, John C. Jeffries, Jr. Distinguished Professor of Law, David H. Ibbeken '71 Research Professor of Law, University of Virginia School of Law
--Moderator: Jeremy Rabkin, Professor of Law, Antonin Scalia Law School, George Mason University

Professor Nelson Lund will moderate a debate between Professors Adam Winkler and Robert Leider on the Supreme Court’s latest Second Amendment decision. In New York State Rifle & Pistol Association v. Bruen, the Supreme Court held that the Second Amendment guarantees a right to carry a handgun in public for self-defense. In justifying its holding, the Supreme Court engaged in a methodical historical inquiry, grappling with sometimes contradictory historical facts. In future cases, the Supreme Court also instructed lower courts to examine text, history, and tradition when deciding Second Amendment claims. The Court explicitly rejected the interest-balancing approach previously adopted by most courts of appeals. Bruen may prove to be a watershed decision in constitutional and criminal law.
Did Bruen correctly decide that the right to bear arms applies outside the home? Will Bruen’s text, history, and tradition test be a viable means of analyzing modern gun control laws that have no historical analogue? And now that the right to bear arms outside the home has been recognized as a constitutional right, what effects will Bruen have on state laws criminalizing the carrying of weapons and on police stop-and-frisk policies?

Featuring:
--Adam Winkler, Connell Professor of Law at UCLA School of Law
--Robert Leider, Assistant Professor, George Mason University, Antonin Scalia Law School
--Moderator: Nelson Lund, University Professor, George Mason University, Antonin Scalia Law School

After years of tragic deaths and through a global pandemic, some experts contend that the opioid epidemic has only gotten worse.
Three noted voices in the field provide their thoughts and opinions on the opioid crisis, how it began, why it persists, and how it finally can be solved.

Featuring:
--Trevor Burrus, Research Fellow, Robert A. Levy Center for Constitutional Studies, Cato Institute
--Joseph Grogan, Founder, Fire Arrow Consulting, and Former Director, United States Domestic Policy Council
--Paul Larkin, Senior Legal Research Fellow, the Center for Legal and Judicial Studies, The Heritage Foundation
--Moderator: Mike Hurst, Partner, Phelps Dunbar LLP and Former U.S. Attorney for the Southern District of Mississippi

Mark Paoletta and Michael Pack have co-edited a new book, Created Equal: Clarence Thomas in His Own Words, which is a follow-on project of Michael Pack’s very successful 2020 documentary of the same name. In making the film, Pack interviewed Justice Thomas for 25 hours. Created Equal is a book-length interview taken from those 25 hours of interviews, where Justice Thomas discusses in an informal and moving way his remarkable life – from being born into abject poverty in 1948 in the segregated Deep South of Georgia to being a justice on the U.S. Supreme Court. He talks about the challenges he faced and overcame, including his contentious confirmation battle in 1991. 95% of what is in the book did not appear in the film.

Co-editor Mark Paoletta joined us for a discussion of one of our most interesting justices. Mr. Paoletta served as a lawyer in the White House Counsel’s Office in the George H.W. Bush administration and worked on the confirmation of Justice Thomas. He is a partner at Schaerr-Jaffe.

Featuring:
--Mark Paoletta, Partner, Schaerr-Jaffe

On June 29, 2022, the Supreme Court decided Oklahoma v. Castro-Huerta. In a 5-4 decision, the Court reversed and remanded the judgment of the Court of Criminal Appeals of Oklahoma. The Court held that the federal government and the state have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.
Justice Kavanaugh delivered the opinion of the Court. Justice Gorsuch filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined.
Please join our legal expert to discuss the case, the legal issues involved, and the implications going forward.
Featuring:

David Casazza, Associate Attorney, Gibson Dunn
Anthony J. Ferate, Of Counsel, Spencer Fane LLP
Jason Manion, Associate Attorney, Gibson Dunn
Jennifer Weddle, Shareholder, Greenberg Traurig

The Supreme Court decided multiple administrative law cases this term, but in no majority opinion did the Court cite its landmark 1984 precedent Chevron v. NRDC. The lack of citation to Chevron raises an important question: Is the Court ignoring the Chevron doctrine (which provides for judicial deference to agency interpretations of ambiguous statutes)? Whatever the status of Chevron at the Supreme Court, lower courts continue to apply the doctrine. Scholars have lodged thoughtful critiques of Chevron's rule, but after October Term 2021, its continued vitality is unclear.

This panel analyzes what's next for Chevron, with a particular focus on what Chevron's conspicuous absence in the Court's opinions this term might mean for the doctrine's future.

Featuring:
--Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School
--Yaakov M. Roth, Partner, Jones Day
--Moderator: Eli Nachmany, Editor-in-Chief, Harvard Journal of Law & Public Policy

On June 30, 2022, the Supreme Court decided Biden v. Texas.
In a 5-4 decision, the Court ruled that the Biden administration can end the Migrant Protection Protocols (MPP), an immigration enforcement program put in place under the Trump administration.
Under MPP (colloquially known as "Remain in Mexico"), many individuals seeking asylum in the United States after entering via the southern border were sent back to Mexico to await their court dates. Soon after taking office President Biden sought to end the program, but the administration was ordered to continue enforcing the Protocols by a federal district court and the Fifth Circuit Court of Appeals.
Please join Professor Ilya Somin as he breaks down the ruling and its implications for immigration policy and administrative law.
Featuring:
Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
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On June 30, 2022, the Supreme Court decided West Virginia v. EPA. In a 6-3 decision, the Court held that EPA exceeded its authority under Clean Air Act Section 111 when it issued the 2015 Clean Power Plan, which sought to control carbon dioxide emissions from existing fossil fuel-fired power plants by imposing limits based on a “system” of shifting power generation away from fossil fuels and towards renewable fuels at the grid-wide level. Although the Supreme Court stayed the Clean Power Plan in February 2016 before it could take effect, the Court’s decision in West Virginia v. EPA was the first time it pronounced on the Plan’s merits.
This case is a major development in administrative law. For the first time, a majority opinion of the Supreme Court used the phrase “major questions doctrine” to describe its methodology. The Court determined that the Clean Power Plan dealt with issues of such “economic and political significance” that it required a clear statement of Congressional intent to authorize this specific type of action. Because the CAA contains no such clear statement, the Clean Power Plan was unlawful.
Justice Gorsuch, joined by Justice Alito, wrote a concurring opinion expanding on the “major questions doctrine” and its relationship to the constitutional principle of non-delegation. Justice Kagan, joined by Justices Breyer and Sotomayor, wrote a dissenting opinion arguing the Court improperly placed “major questions” at the beginning of its statutory analysis—instead of conducting a traditional Chevron-style textual inquiry and concluding with “major questions.” Further, the dissent states that Congress provided EPA with the authority to require “generation shifting” in the CAA’s use of broad language authorizing the Agency to identify a “system of emission reduction” to address air pollution.
Please join our legal experts to discuss the case, the legal issues involved, and the implications going forward.
Featuring:

David Fotouhi, Partner, Gibson, Dunn & Crutcher LLP, former Acting General Counsel, EPA
Justin Schwab, Founder, CGCN Law; former Deputy General Counsel, EPA.
Moderator: Garrett Kral, Associate Member of the Environmental Law & Property Rights Practice Group’s Executive Committee; former Special Advisor for Oversight, EPA.

Americans have been privately manufacturing and assembling firearms since before this country’s founding. Now, thanks to the prevalence of commercially available firearm parts, “buy, build, shoot” kits, and 3D printers, it is easier than ever to build a gun in the comfort of one’s own home, which bypasses many of the statutory and regulatory regimes that govern buying a fully built firearm from a gun store.

To some, this represents a loophole in America’s gun laws. Others see this as a modern innovation in the tradition of home gun building that has always existed in America.

The Biden Administration shares the former view. On April 11, 2022, Attorney General Merrick Garland signed ATF Final Rule 2021R-05F. Among other measures, this rule changes the ATF’s definition of “firearm frame or receiver” found in the Gun Control Act of 1968, greatly expanding the list of what is considered a firearm by the agency, and therefore what can be strictly regulated under existing federal law. Furthermore, both houses of Congress currently have bills before them designed to increase the regulation of homemade firearms, and to ban certain types of these so-called “ghost guns”.

In this timely webinar, our experts will cover the ATF’s Final Rule, set to go into effect on August 24, 2022, and will discuss the legal and political implications surrounding homemade firearms and the regulation thereof.

Featuring:
--Matthew Larosiere, Director of Legal Policy at Firearms Policy Coalition
--Dru Stevenson, Wayne Fisher Research Professor, Professor of Law, South Texas College of Law Houston
--Moderator: Ryan Lacey, Assistant Director, Practice Groups, The Federalist Society