FedSoc Forums

The Congressional Review Act (CRA) was used in 2017 to overturn 15 rules issued near the end of the Obama administration. The shift in political control in the White House and Congress this year set the stage for a possible repeat with respect to Trump administration rules. The CRA’s period for expedited congressional procedures (free of the Senate filibuster) has now expired for late Trump era regulations, and Congress overturned only three such rules. On June 24, Congress finished action to repeal the EEOC conciliation rule and the OCC (Comptroller) true lender rule, and it took final action to repeal the EPA methane rule the following day. President Biden has since signed all three resolutions, making them law.

This latest cycle of CRA actions merit general exploration as well as consideration of the specific rules at issue. What process did Congress use to disapprove the three rules? Why did it use the CRA relatively sparingly this year, and what will the impact be of the three disapprovals? The answers to the last two questions are arguably related. When Congress uses the CRA to repeal federal regulations, the respective agencies are automatically barred from issuing another rule that is “substantially the same” as the one disapproved without new statutory authorization. Though there is no court ruling on what the CRA’s anti-circumvention clause means, the resulting uncertainty may have skewed the CRA’s use in interesting ways.

Join Todd Gaziano and Professor Jonathan Adler discuss the CRA, how it has been used, and the ramifications of its use on the three rules this year and on future federal regulations.

Featuring:

-- Todd F. Gaziano, Chief of Legal Policy and Strategic Research and Director, Center for the Separation of Powers, Pacific Legal Foundation

-- Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Director of the Center for Business Law & Regulation, Case Western Reserve University School of Law

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

On June 25, 2021, the Supreme Court issued its decision in Transunion LLC v. Ramirez. In this case, a class of plaintiffs sued the credit reporting company TransUnion under the Fair Credit Reporting Act. The plaintiffs alleged that the process Transunion used to flag consumer credit worthiness accounts—running consumers names against the U.S. Treasury Departments’ Office of Foreign Assets Control database of terrorists, traffickers, and other criminals and flagging those names that matched database listed names—resulted in harm to the plaintiffs where the match was only a coincidence.

Although the initial class contained 8,185 members, only 1,853 class members incurred harm since Transunion only conveyed credit reports flags for that subset to third parties during the relevant period.

The District Court ruled the whole 8,185 member class had standing to sue. The Supreme Court reversed on the standing issue, ruling that the 6,332 class members whose information had not been conveyed to third parties during the relevant period had no Article III standing since they had suffered no cognizable injury.

Featuring:

-- Theodore "Ted" Frank, Director of Litigation and Senior Attorney, Hamilton Lincoln Law Institute

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

On June 29, 2021, the Supreme Court held that the Eleventh Amendment did not bar Penneast Pipeline Co., exercising federal eminent domain authority under the Natural Gas Act, from suing the State of New Jersey to acquire state-owned property to construct a natural gas pipeline. The Supreme Court rejected New Jersey’s arguments that the federal eminent domain power had not been properly delegated to PennEast, and even if the authorization were appropriate, the State’s sovereign immunity precluded this federal court suit. The federal government has always had the supreme power to condemn state property,the Court ruled, and the tradition of delegating this power to build public infrastructure goes back to the days of the nation’s founding. Penneast was represented by former Solicitor General, Paul Clement.
Chief Justice Roberts delivered the opinion of the Court, joined by Justices Breyer, Alito, Sotomayor and Kavanaugh. Justice Gorsuch filed a dissent joined by Justice Thomas. Justice Barrett filed a dissent joined by Justices Thomas, Kagan, and Gorsuch.
Featuring:

Paul D. Clement, Partner, Kirkland & Ellis LLP
Moderator: Roger J. Marzulla, Partner, Marzulla Law

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

What should the Supreme Court do when it finds one provision of a statute unconstitutional? There is a significant split between current Justices on the question where Congress has not provided express instructions on severance within the statute. Several believe the Court should save the rest of the statute, while others have expressed skepticism towards this practice.
This distinguished panel will explore the foundations of the severability doctrine and the authority of Article III judges in such cases. Panelists will offer their differing views of severability and discuss where the doctrine may be headed.
Featuring:

Prof. William Baude, Professor of Law, University of Chicago Law School
Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston
Erin M. Hawley, Senior Legal Fellow, Independent Women's Law Center
Prof. Kevin C. Walsh, Assistant Professor, University of Richmond School of Law
Moderator: Megan L. Brown, Partner, Wiley

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

On July 1, 2021, the Supreme Court issued its decision in Brnovich, Attorney General of Arizona v. Democratic National Convention. The DNC sued the state of Arizona arguing that two of the State’s election procedures—refusing to count ballots that were incorrectly cast out of precinct and forbidding most third parties from collecting vote-by-mail ballots for delivery—had a disparate impact on racial minority voters in violation of Section 2 of the Voting Rights Act (VRA). The DNC also alleged that the ballot-collection measure was enacted with discriminatory intent.
Although the District Court found no violation of the Voting Rights Act and a panel of the Ninth Circuit affirmed, an en banc panel of the Ninth Circuit reversed finding disparate impact and that the District Court had clearly erred in finding no discriminatory intent. The Supreme Court reversed and remanded the Ninth Circuit’s decision, holding 6-3 that Arizona’s voting rules did not violate Section 2 of the Voting Rights Act and that the ballot collection measure was not enacted with discriminatory intent.
Justice Alito delivered the opinion of the Court joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Justice Gorsuch filed a concurrence in which Justice Thomas joined. Justices Kagan, Breyer, and Sotomayor dissented.
Featuring:

Derek T. Muller, Professor of Law, University of Iowa College of Law

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Several states are considering how to regulate the content moderation practices of social media and other tech platforms. Some are focused primarily on protecting a wider range of expressible user viewpoints, while other states are concerned with strengthening incentives on platforms to engage in more aggressive moderation of potentially harmful speech. Some states are also pursuing antitrust enforcement actions against some tech platforms. Such state level regulation of national – even global – platforms, raises the prospect of a patchwork of competing state regulatory frameworks.
States have their own antitrust statutes that can differ from federal standards, and historically have had authority to regulate and set boundaries for material that cannot be published, such as libel, and content harmful to minors. How should we think about state regulatory efforts when applied to technology platforms - is regulatory federalism likely to be beneficial, or should federal law preempt such efforts? What role can or should the FCC play in preempting such state regulation? How does the Dormant Commerce Clause affect state level efforts to regulate content and content moderation policies of social media within state borders?
Featuring:

Hon. Brendan Carr, Commissioner, Federal Communications Commission
Daniel Francis, Furman Fellow, New York University School of Law
Paul Watkins, Managing Director, Patomak Global Partners
Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, D.C. Circuit

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

On June 17, 2021, the Supreme Court issued its 8-1 decision in Nestle USA, Inc. v. Doe et al and the consolidated case of Cargill, Inc. v. Doe I. In this case, six people from Mali who had been trafficked as child slaves onto cocoa farms in the Ivory Coast sued under the Alien Tort Statute, arguing that since the American companies Nestle and Cargill provided financial and technical support to those farms, they should be liable for aiding and abetting human trafficking.
The Ninth Circuit had reversed the District Court, finding that the respondents had adequately pled a domestic application of the Alien Tort Statute because the corporate decisions driving contracting with the Ivory Coast farms originated in the United States. The Supreme Court reversed the Ninth Circuit holding that the presumption against extraterritoriality required plaintiffs to establish relevant conduct in the United States and that general corporate activity like decision making was insufficient.
Justice Thomas announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which Chief Justice Roberts and Justices Breyer, Sotomayor, Kagan, Gorsuch, Kavanaugh and Barrett joined. Justices Thomas, Gorsuch and Sotomayor all filed concurring opinions and Justice Alito dissented.
Featuring:

Ilya Shapiro, Vice President and Director, Robert A. Levy Center for Constitutional Studies, Cato Institute
William S. Dodge, John D. Ayer Chair in Business Law and Martin Luther King Jr. Professor of Law, UC Davis School of Law
Moderator: Julian Ku, Senior Associate Dean for Academic Affairs, Faculty Director of International Programs, and Maurice A. Deane Distinguished Professor of Constitutional Law, Maurice A. Deane School of Law at Hofstra University

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

On July 1, 2021, the Supreme Court issued its decision in Americans for Prosperity Foundation v. Bonta, Attorney General of California. California state law required charitable organizations soliciting donors in the state to register with the California Attorney General. To file, charities had to submit their IRS Form 990 along with all Schedules including Schedule B which discloses donor names and information.
Two conservative organizations refused to submit Schedule B and ultimately sued arguing that the compelled disclosure of their donor lists violated their First Amendment right to freedom of association. Disclosure would make their donors less likely to donate or associate with the charities of their choice.
The case went through multiple appeals to the Ninth Circuit finally arriving in the Supreme Court, which cited NAACP v. Alabama, clarified the applicable exacting scrutiny standard, and held California’s Schedule B disclosure requirement facially unconstitutional.
Joining us to discuss is Mr. Erik Jaffe, a Partner at Schaerr Jaffe LLP and the author of an amicus brief in support of the petitioners.
Featuring:

Erik Jaffe, Partner, Schaerr Jaffe LLP

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

On June 23, 2021, the U.S. Supreme Court in Collins v. Yellen held 7-2 that 1) because the Federal Housing Finance Agency did not exceed its authority under the Housing and Economic Recovery Act of 2008, the anti-injunction provisions of the Recovery Act bar the statutory claim brought by shareholders of Fanne Mae and Freddie Mac; and 2) the Recovery Act’s structure violates the separation of powers.
Justice Alito wrote the majority opinion. Justice Gorsuch joined the opinion as to all but Part III–C, Justices Kagan and Breyer joined as to all but Part III–B, and Justice Sotomayor joined as to Parts I, II, and III–C. Justice Thomas filed a concurring opinion. Justice Gorsuch filed an opinion concurring in part. Justice Kagan filed an opinion concurring in part and concurring in the judgment, in which Justices Breyer and Sotomayor joined as to Part II. Justice Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined.
Featuring:

Jason Levine, Partner, Alston & Bird
Jeffrey McCoy, Attorney, Pacific Legal Foundation

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

American politics grows embittered because it is increasingly torn between two rival constitutions, two opposed cultures, two contrary ways of life. American conservatives rally around the founders’ Constitution, as amended and as grounded in the natural and divine rights and duties of the Declaration of Independence. American liberals herald their “living Constitution,” a term that implies that the original is dead or superseded, and that the fundamental political imperative is constant change or transformation (as President Obama called it) toward a more and more perfect social democracy ruled by a Woke elite.

Crisis of the Two Constitutions details how we got to and what is at stake in our increasingly divided America. It takes controversial stands on matters political and scholarly, describing the political genius of America’s founders and their efforts to shape future generations through a constitutional culture that included immigration, citizenship, and educational policies. Then it turns to the attempted progressive refounding of America, tracing its accelerating radicalism from the New Deal to the 1960s’ New Left to today’s unhappy campus nihilists. Finally, the volume appraises American conservatives’ efforts, so far unavailing despite many famous victories, to revive the founders’ Constitution and moral common sense. From Ronald Reagan to Donald Trump, what have conservatives learned and where should they go from here?

Along the way, Charles R. Kesler argues with critics on the left and right, and refutes fashionable doctrines including relativism, multiculturalism, critical race theory, and radical traditionalism, providing in effect a one-volume guide to the increasingly influential Claremont school of conservative thought by one of its most engaged, and engaging, thinkers.

Featuring:

-- Prof. Charles R. Kesler, Author, Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness, Senior Fellow, The Claremont Institute

-- Moderator: Prof. Gerard V. Bradley, Professor of Law, Univeristy of Notre Dame Law School

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.