FedSoc Forums

Under the current administration, the U.S. Environmental Protection Agency (EPA) has adopted a variety of regulations and policies aimed at reforming the nation’s water quality programs, with a focus on cooperative federalism and rule of law principles. Reflecting on EPA’s accomplishments and remaining agenda items, Assistant Administrator Ross will share his perspective on a range of topics, such as: A new definition of the “Waters of the United States”; Groundwater pollution; Enforcement of federal clean water laws; Reforms to state water quality certification procedures; Improvements to drinking water and wastewater infrastructure; Ocean pollution; and the newly established “Water Subcabinet.”

Featuring:
-- David P. Ross, Assistant Administrator for the Office of Water, U.S. Environmental Protection Agency
-- Moderator: Jeffrey H. Wood, Partner, Baker Botts L.L.P.

Drug prices are a pressing policy issue. On November 20, 2020, President Donald Trump announced two new rules aimed at reducing drug prices for Medicare beneficiaries. These rules use a system known as reference pricing, which ties the price the federal government pays for patented drugs and treatments to the prices other countries pay. These rules are set to take effect in January 2021. Meanwhile, legislation pending in the U.S. House of Representatives and supported by Speaker Nancy Pelosi would create an International Pricing Index. These policies enjoy bipartisan support, but they also face bipartisan opposition. Some think the Trump rules do not go far enough and others argue that reference pricing is bad policy regardless. Two distinguished experts who have worked and written extensively on this issue, Prof. Adam Mossoff and Dr. Wendell Primus, join us for a moderated discussion of reference pricing, current policy proposals, and future challenges.

Featuring:
-- Prof. Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason University; Senior Scholar, Hudson Institute; Visiting Fellow, Meese Center for Legal and Judicial Studies, The Heritage Foundation
-- Dr. Wendell Primus, Senior Policy Advisor on Budget and Health Issues, Office of Speaker Nancy Pelosi; Former Minority Staff Director, Joint Economic Committee
-- Moderator: Hon. Dean A. Reuter, Vice President, General Counsel, and Director of Practice Groups, The Federalist Society

A new petition for certiorari at the U.S. Supreme Court presents an invaluable opportunity for the Court to revisit the Privileges or Immunities Clause. And it is unlike any opportunity in recent memory. First, it presents a question upon which every theory of the Fourteenth Amendment agrees: Does the Amendment protect a citizen against rights violations perpetrated by that citizen’s own state? The text and history of the provision, as well as Supreme Court precedent, unequivocally say “Yes,” but the lower courts have fundamentally misunderstood the Clause and rendered it impotent against one’s own state. Second, unlike most Privileges or Immunities cases, this case does not ask the Court to overrule the Slaughter-House Cases. Instead it asks for judicial protection of a right expressly recognized in Slaughter-House: the right to use the navigable waters of the United States, a right that was critically important to the freedmen at the time of the Fourteenth Amendment’s ratification. Thus, unlike recent cases such as McDonald, Timbs, and Ramos, in which the Court was able to avoid confronting the Privileges or Immunities Clause by ruling on alternative grounds, this case begins and ends with the Clause. It therefore offers an opportunity for the Court to begin—in a principled and incremental way—the process of revitalizing the provision that most recognize as the keystone of the Fourteenth Amendment. How have the courts construed this provision since its post-Civil War enactment? What should the Supreme Court do here? And should the oft-criticized Slaughter-House Cases be affirmed?
Tune in for a fascinating discussion of the original meaning of the Privileges or Immunities Clause and the unique case of Courtney v. Danner. Counsel of record for the plaintiffs in the case, Michael Bindas of the Institute for Justice (IJ), and Fourteenth Amendment scholar Christopher Green, Professor of Law and H.L.A. Hart Scholar in Law and Philosophy at the University of Mississippi School of Law, will join IJ attorney and moderator Adam Griffin for an exciting litigation update.
Featuring:
Michael Bindas, Senior Attorney, Institute for Justice
Prof. Christopher Green, Professor of Law and H.L.A. Hart Scholar in Law and Philosophy, University of Mississippi School of Law
Moderator: Adam Griffin, Constitutional Law Fellow, Institute for Justice


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.

In April, 2020, the United States Supreme Court held that, in certain situations, the Clean Water Act requires Section 402 permits for point source discharges that travel through groundwater to reach navigable waters. According to the Court, a permit is required if the discharge is the "functional equivalent of a direct discharge from the point source into navigable waters." This month, the EPA issued a draft memorandum to help apply the Maui decision and clarify what is required for a "functional equivalent" analysis. What does this draft guidance cover and is it consistent with the Maui decision? Is the guidance helpful to regulated entities and what changes should be considered? Join us as we discuss this critical new guidance that seeks to help to make sense of the Maui decision.

Featuring:
-- Damien Schiff, Senior Attorney, Pacific Legal Foundation

On December 14, 2020, the Supreme Court released its decision in Texas v. New Mexico. By a vote of 7-1, Texas’ motion to review the Pecos River Master’s determination – that New Mexico was entitled to a delivery credit for evaporated water stored at Texas’ request under the Pecos River Compact – is denied. Justice Kavanaugh's majority opinion was joined by the Chief Justice and Justices Thomas, Breyer, Sotomayor, Kagan, and Gorsuch. Justice Alito filed an opinion concurring in the judgment in part and dissenting in part. Justice Barrett took no part in the consideration or decision of the case.
Featuring:
Anthony L. Francois, Senior Attorney, Pacific Legal Foundation



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.

As 2020 draws to a close, Federal Communications Commission Chairman Ajit Pai joins Bryan Tramont, head of the Federalist Society's Telecommunications & Electronic Media Practice Group and Managing Partner at Wilkinson Barker Knauer, in a fireside chat to review Pai's term as Chairman of the FCC, the FCC's significant accomplishments during his tenure, and the most pressing matters facing the Commission ahead. A panel discussion will follow the fireside chat, featuring Randolph May, Shane Tews, and Patricia Paoletta.

Featuring:
-- Hon. Ajit Pai, Chairman, Federal Communications Commission
-- Randolph May, President, Free State Foundation
-- Patricia Paoletta, Partner, Harris, Wiltshire & Grannis LLP
-- Shane Tews, Visiting Fellow, American Enterprise Institute
-- Moderator: Bryan Tramont, Managing Partner, Wilkinson Barker Knauer

On December 14, 2020, the Federalist Society hosted an online teleforum with Ambassador Robert Lighthizer, United States Trade Representative. Ambassador Lighthizer discussed judicial activism at the Appellate Body of the World Trade Organization.

Featuring:
-- Hon. Robert Lighthizer, 18th United States Trade Representative
-- Moderator: Hon. Dean Reuter, Vice President, General Counsel and Director of Practice Groups, The Federalist Society

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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 speakers.

On December 16, 2020, The Federalist Society's Federalism and Separation of Powers Practice Group hosted a debate on "Court-Packing, Term Limits, and the Debate Over Reforming the Judiciary."

The battles over the nominations of Merrick Garland, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett suggest that the Supreme Court is now part of the same politicized cloud that envelops all of the nation's public discourse. Politics have always played a role in judicial confirmations, but it's a modern phenomenon for divergent legal theories to map onto partisan preferences at a time when the parties are ideologically sorted and polarized. Has the culmination of these trends led some people to think of judges and justices in partisan terms, and to question the legitimacy of our judiciary altogether -- or at least its mode of selection and appointment? The threat of "court-packing" was a live issue in the 2020 campaign, as a potential Democratic response to alleged Republican violations of the norms surrounding judicial nominations. Is there anything we can do to fix this dynamic, to turn down the political heat on Supreme Court vacancies? Reform proposals abound: term limits, politically rebalancing or changing the size of the Court, setting new rules for the confirmation process, and more. President-elect Joe Biden promised to establish a bipartisan judicial reform commission and our distinguished panel will provide a preview of the sort of discussion such a commission would likely have.

Featuring:
-- Prof. Noah Feldman, Felix Frankfurter Professor of Law and Director, Julis-Rabinowitz Program on Jewish and Israeli Law, Harvard Law School
-- Prof. James T. Lindgren, Professor of Law, Northwestern University Pritzker School of Law
-- Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network
-- Prof. Rivka Weill, Professor of Law, Harry Radzyner Law School, Interdisciplinary Center
-- Moderator: Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute
-- Introduction: Nick Marr, Assistant Director, Practice Groups, The Federalist Society

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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 speakers.

The United States Mexico Canada Agreement (USMCA) free trade agreement went into force in July of 2020. Under that agreement, Mexico committed to a comprehensive reform of its laws governing labor unions and collective bargaining. Mexico's labor laws as they relate to unions have historically been criticized as encouraging employers and established labor unions to enter into agreements to serve as a protection against independent labor unions. Often the workers who are represented know nothing of the unions or the agreements. Some believe this system has led to suppression of wages in Mexico and that, in turn, has created an unfair competitive advantage against U.S. business. As part of an effort to ensure labor law reform, the USMCA created a mechanism that allows enforcement against individual facilities for failure to comply with the reformed laws, called a Rapid Response dispute resolution process. Under that process, claims for failure to comply can be brought directly against facilities in Mexico. Following investigation and adjudication, these cases can result in a loss of the preferential tariffs accorded under the USMCA for goods or services coming from that facility, creating the first-ever international process that holds an individual business accountable for its failure to comply with the labor laws of another country. Will mechanisms like this be incorporated into other free trade agreements in the future?

Featuring:
-- Lewis Karesh, Assistant U.S. Trade Representative for Labor
-- Matthew Levin, Director, Office of Trade and Labor Affairs, U.S. Department of Labor
-- Stefan J. Marculewicz, Shareholder and Co-Chair, Business and Human Rights Practice Group, Littler Mendelson P.C.
-- Philip A. Miscimarra, Partner, Morgan & Lewis

On December 10, 2020, the Supreme Court released its decision in United States v. Briggs. Consolidated with United States v. Collins, United States v. Briggs challenged the idea that a rape charge may only be prosecuted if it is discovered within five years of the crime. By a vote of 8-0, the judgments of the U.S. Court of Appeals for the Armed Forces were reversed and the cases remanded. Justice Alito's opinion was joined by all other members of the Court except Justice Barrett, who took no part in the consideration or decision of the case. Justice Gorsuch filed a concurring opinion.
Featuring:
Arthur Rizer, Director, Criminal Justice & Civil Liberties; Resident Senior Fellow, R Street Institute
Prof. Richard Sala, Assistant Professor of Law, Vermont Law School



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.