FedSoc Forums

On March 26, 2021, the Federalist Society's Federalism & Separation of Powers Practice Group hosted a webinar panel to discuss "When the Government Changes Sides in Ongoing Litigation."

In the early months of the Biden Administration, the US Solicitor General's Office (OSG) has switched the federal government's position in several high-profile cases and withdrawn from other cases. While some may think the moves are politically motivated, there are legal reasons OSG switches its position between presidential administrations. Some believe, however, that OSG risks undermining the rule of law when it makes such decisions.

Are we seeing an increase in altered litigation positions following administration change, or have the recent administrations’ decisions been consistent with prior practice? What are the appropriate factors to consider? What are some important such cases in the current and previous administrations, and are the decisions to switch sides or end those cases defensible? How should courts treat the switches?

Featuring:
-- Beth Brinkmann, Partner, Covington & Burling LLP; former Deputy Assistant Attorney General, Civil Division and Assistant to the Solicitor General, Department of Justice
-- Gene P. Hamilton, former Counselor to the Attorney General, Department of Justice
-- Hashim M. Mooppan, former Deputy Assistant Attorney General, Civil Appellate and Counselor to the Solicitor General, Department of Justice
-- Moderator: Hon. Beth A. Williams, former Assistant Attorney General, Office of Legal Policy, Department of Justice

Education policy has long been a bi-partisan priority, and education has played a significant role in the development of constitutional law—from First to Fourteenth Amendment—over the past century. During the COVID-19 pandemic, debates about the structure of the public school system and the parental right to choose private or home schooling have come to a head.

This program will focus on the debate over reform and school choice through the lens of a new book, Unshackled: Freeing America's K-12 Education System. Co-authors Clint Bolick and Kate Hardiman join education law expert Nicole Garnett to review the new book.

Register here to attend live

Featuring:

Hon. Clint Bolick, Supreme Court of Arizona

Kate Hardiman, William H. Rehnquist Fellow, Cooper & Kirk PLLC

Moderator: Prof. Nicole Stelle Garnett, John P. Murphy Foundation Professor of Law, University of Notre Dame Law School

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This Zoom discussion is open for public registration. See above link.

This teleforum will include a discussion about the Unitary Executive Theory, its judicial and legislative history, and its applicability to the President’s recent termination of EEOC General Counsel Sharon Gustafson. Ms. Gustafson will share her thoughts regarding her duties at the EEOC and the challenges for any individual performing such duties. The panelists will debate and discuss the authority of the President to exercise “at-will” termination authority over Senate-confirmed individuals serving on 'independent' boards and commissions.

Featuring:
-- Hon. W. Neil Eggleston, Partner, Kirkland & Ellis LLP
-- Hon. Sharon Fast Gustafson, Former General Counsel, United States Equal Employment Opportunity Commission
-- G. Roger King, Senior Labor and Employment Counsel, HR Policy Association

On March 23, 2021, the Supreme Court will hear oral argument in United States v. Cooley. The Court will address whether the Ninth Circuit erred in upholding the suppression of evidence obtained when an Indian tribe police officer temporarily detained a non-Indian crossing a reservation on a public right of way and discovered evidence of federal crime during the stop. Defendant Cooley argues the evidence should be suppressed because the officer’s stop and search exceeded the scope of jurisdiction permitted by the Indian Civil Rights Act of 1968.
Joining us to discuss the Oral Argument is Anthony J. Ferate, Of Counsel at Spencer Fane LLP.



Featuring:
Anthony J. Ferate, Of Counsel at Spencer Fane LLP.



Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

On February 24, 2021, President Biden signed an executive order (EO) on a whole-of-government strategy to secure supply chains for critical and essential goods. The EO institutes a parallel examination of supply chain vulnerabilities: (1) a 100-day review of four key industries, including semiconductors and (2) a one-year review of a broader range of industries, including information and communications technology (ICT). At the same time, the Biden Administration did not withdraw the ICT supply chain security rule from the Trump Administration that is scheduled to go into effect March 22. Citing security benefits to the ICT supply chain, the Acting Chairwoman of the FCC has teed up a Notice of Inquiry on Open Radio Access Networks (ORAN) for the FCC’s March 17 meeting. The Commerce Department’s National Telecommunication and Information Administration has launched its own Notice of Inquiry on 5G Open Stack Challenge on behalf of the Department of Defense.

What do these actions mean for the ICT sector, and the semiconductor industry particularly? Will ORAN result in more secure and trusted 5G networks? Will it be adopted due to perceived long-term cost savings and operational benefits, or will government mandate its adoption? If the ICT supply chain rule goes into effect this month, will there be enough semiconductors to power 5G? Join us for a panel of informed experts to discuss these critical issues.

Featuring:
-- Maryam Khan Cope, Director, Government Affairs, Semiconductor Industry Association
-- Kelsey Guyselman, Deputy Policy Director, U.S. Senate Committee on Commerce, Science & Transportation
-- Hon. John Kneuer, President and Founder, JKC Consulting LLC; former Assistant Secretary of Commerce for Communications and Information, U.S. Department of Commerce
-- Gregory Watson, Policy Advisor, Hon. Brendan Carr, Federal Communications Commission
-- Moderator: Patricia Paoletta, Partner, Harris, Wiltshire & Grannis LLP

On February 24, 2021, President Biden signed an executive order (EO) on a whole-of-government strategy to secure supply chains for critical and essential goods. The EO institutes a parallel examination of supply chain vulnerabilities: (1) a 100-day review of four key industries, including semiconductors and (2) a one-year review of a broader range of industries, including information and communications technology (ICT). At the same time, the Biden Administration did not withdraw the ICT supply chain security rule from the Trump Administration that is scheduled to go into effect March 22. Citing security benefits to the ICT supply chain, the Acting Chairwoman of the FCC has teed up a Notice of Inquiry on Open Radio Access Networks (ORAN) for the FCC’s March 17 meeting. The Commerce Department’s National Telecommunication and Information Administration has launched its own Notice of Inquiry on 5G Open Stack Challenge on behalf of the Department of Defense.
What do these actions mean for the ICT sector, and the semiconductor industry particularly? Will ORAN result in more secure and trusted 5G networks? Will it be adopted due to perceived long-term cost savings and operational benefits, or will government mandate its adoption? If the ICT supply chain rule goes into effect this month, will there be enough semiconductors to power 5G? Join us for a panel of informed experts to discuss these critical issues.
Register here to attend live
Featuring:
Maryam Khan Cope, Director, Government Affairs, Semiconductor Industry Association
Kelsey Guyselman, Deputy Policy Director, U.S. Senate Committee on Commerce, Science & Transportation
Hon. John Kneuer, President and Founder, JKC Consulting LLC; former Assistant Secretary of Commerce for Communications and Information, U.S. Department of Commerce
Gregory Watson, Policy Advisor, Hon. Brendan Carr, Federal Communications Commission
Moderator: Patricia Paoletta, Partner, Harris, Wiltshire & Grannis LLP
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This Zoom panel is open to public registration. See the above link.

In Cedar Point Nursery v. Hassid, the Supreme Court will decide whether a California “Access Regulation” violates the Takings Clause of the Fifth Amendment. The Access Regulation allows union organizers to enter the private property of agricultural employers in the state for three hours per day, 120 days per year, for the purposes of soliciting employees to join the union.
Petitioners Cedar Point Nursery and Fowler Packing Company, Inc., are California agricultural employers subject to the Access Regulation. In 2015, union organizers came onto the property of Cedar Point Nursery, a strawberry plant harvester near the Oregon border. The same year, union organizers filed an unfair labor practices charge against Fowler Packing, a citrus and table grape grower, alleging that Fowler denied access to union organizers seeking to enter their property. Petitioners contend that the Access Regulation constitutes a per se taking by appropriating an easement for the benefit of third party union organizers. Petitioners add that, because there is no mechanism for providing just compensation to Petitioners, the Access Regulation violates the Takings Clause.Respondents are members of the Agricultural Labor Relations Board. They argue that per se taking analysis is inappropriate because of time, place, and manner limitations contained in the Access Regulation. They urge the Court to analyze the Access Regulation under the multi-factor balancing test invoked in cases involving regulatory takings.In 1979, a divided California Supreme Court rejected a takings claim brought by other California growers shortly after the Access Regulation went into effect. Petitioners in this case brought this case in federal court. A divided Ninth Circuit affirmed a district court’s decision rejecting Petitioners’ Fifth Amendment claim, and Petitioners’ petition for rehearing en banc was denied over the dissent of eight judges. The Supreme Court accepted the case in November 2020, and will hear oral arguments on March 22, 2021.
Featuring:
Wen Fa, Attorney, Pacific Legal Foundation

Dial 888-752-3232 to access the call.

On February 3, 2021, the Supreme Court unanimously decided Federal Republic of Germany v. Philipp and Republic of Hungary v. Simon.

The plaintiffs in Federal Republic of Germany are heirs of German Jewish art collectors who purchased a collection of medieval relics termed the Welfenschatz. As the Third Reich took control of Germany and began assimilating the great cultural achievements of the West, the Nazis government bought the Welfenschatz for one third of its value. Following World War II, the Welfenschatz changed hands, ultimately landing in a Berlin museum owned by the Federal Republic of Germany and maintained by the Stiftung Preussischer Kulturbesitz (SPK).

After unsuccessfully seeking compensation from Germany, the heirs to the original owners brought common law property claims against Germany and SPK in United States District Court. Generally, the Foreign Sovereign Immunities Act (FSIA) would bar such a suit; Germany argued that the possibly applicable exception for “property taken in violation of international law” did not apply to domestic takings where a government takes the property of its own citizens. The heirs argued Germany’s coerced taking was an act of genocide bringing their suit within the exception since genocide violates international human rights law.

The Court relied on the long established history of international law to determine the phrase “property taken in violation of international law,” refers specifically to the law of expropriation, which includes the domestic taking rule. Violations of international human rights law do not fall within the phrase, so Germany retains sovereign immunity under FSIA and the heirs cannot recover in U.S. Courts. Relying on Federal Republic of Germany, the Court issued a per curiam decision in Republic of Hungary, directing the United States Court of Appeals for the D.C. Circuit to decide the case in light of its ruling in Federal Republic of Germany.

Featuring:
-- Professor Alberto R. Coll, Vincent de Paul Professor of Law and Director of Global Engagement, DePaul College of Law

The DOJ has charged Douglas Mackey, aka Ricky Vaughn, with conspiracy “to injure, oppress, threaten, or intimidate” people in the exercise of their constitutional rights. His crime? Using his social media platform in the months leading up to November 2016 to post memes about the Presidential election, including ones that – if taken literally – falsely state that people could vote for Hillary just by posting on Twitter and Facebook. Are such prosecutions consistent with the First Amendment? Are they authorized by federal law? Joining us to discuss is Professor Eugene Volokh, noted First Amendment scholar and the Gary T. Schwartz, Professor of Law at the UCLA School of Law, who recently wrote on the subject.
Featuring:
Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law

Dial 888-752-3232 to access the call.

On March 8, 2021, the U.S. Supreme Court decided Uzuegbunam v. Preczewski. Writing for the 8-justice majority, Justice Clarence Thomas explained that a completed violation of a legal right does in fact satisfy the redressability element necessary for Article III standing. Justice Kavanaugh filed a concurring opinion, while Chief Justice Roberts filed a dissenting opinion.
John Bursch, head appellate litigator at Alliance Defending Freedom, the firm that represented petitioner Chike Uzuegbunam, joins us to discuss the case, ruling, and implications for religious liberty, free speech law, and more.
Featuring:
John Bursch, Senior Counsel and Vice President of Appellate Advocacy, Alliance Defending Freedom
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This Teleforum is open to the public and press. Dial 888-752-3232 to access the call.