Necessary & Proper Podcast

The development of standing jurisprudence has been inextricably intertwined with the growth of the administrative state over the past 60 years and the bevy of new statutory rights, privileges, obligations, constraints, and interbranch dynamics that came with it. Over the past three terms, the U.S. Supreme Court has issued numerous opinions that are rich with standing doctrine. Three new voices in administrative law--all recent law school graduates--will address recent developments in standing jurisprudence, focusing on State standing, associational standing, and post-TransUnion common law analogues.
Featuring:

Eric Bush, Law Clerk to the Hon. Justin Walker, U.S. Court of Appeals for the D.C. Circuit
Shiza Francis, Associate, Shutts and Bowen LLP
Aaron Watt, Law Clerk to the Hon. Brian Miller, Eastern District of Arkansas
[Moderator] Prof. Aram Gavoor, Associate Dean for Academic Affairs, The George Washington University Law School

Chevron v. NRDC (1984) and subsequent precedents held that courts should defer to agency interpretations of ambiguous statutes. This “Chevron Deference” has been a topic of great debate, with many calling for it to be overturned, while others argue it is a vital part of how Courts address the complexity of law and agency actions. In two cases this term (Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce) the Court considered challenges to that precedent. Oral argument was heard in both cases on January 17th, 2024.

On June 28, 2024, a 6-3 Court issued its decision overturning Chevron, in a decision that may notably change the nature of the administrative state and the role of judges in reviewing agency actions moving forward.

Join us for a courthouse steps program where we will discuss and break down the decision and the potential future impacts of this sea change in administrative law.

Featuring:

• Prof. Ronald M. Levin, William R. Orthwein Distinguished Professor of Law, Washington University in St. Louis School of Law
• John J. Vecchione, Senior Litigation Counsel, New Civil Liberties Alliance
• (Moderator) Prof. Kristin E. Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School

Congress’s impeachment power has been used dozens of times since the republic’s founding, mostly for relatively low- and mid-level executive and judicial officers involving clear instances of bribery or other felonies. Its attempted use to remove Supreme Court justices, presidents, and now cabinet secretaries is more controversial, and since the 1990s, in arguably partisan or overtly political ways. The impeachment inquiry into President Biden and the House vote to impeach Homeland Security Department Secretary Mayorkas (which recently failed a snap Senate vote) may be seen as tit-for-tat for the two impeachment trials of President Trump. Is that a false equivalence? Regardless of who threw the first partisan stone, are recent uses of the Impeachment power a good development or arguable abuses? What does it portend for the future? Our distinguished panel of scholars will discuss the power itself, recent impeachment proceedings, and the potential implications for the future.

Featuring:

• Prof. Michael J. Gerhardt, Burton Craige Distinguished Professor of Jurisprudence, UNC School of Law
• Prof. Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University
• (Moderator) Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University

In his recent book Why Congress, Dr. Phillip Wallach covers the past, present, and future of the Legislative branch to help measure its modern level of dysfunction and offer suggestions for future restoration. The book traces how Congress was designed to operate, how it has met the challenges of decades past, and the trends that have contributed to increased polarization and decreased power. Having established how we got where we are, Dr. Wallach articulates three potential paths forward for Congress: continued dysfunction, increased power for the Executive branch, or a revival of the forms that ensured it will function as designed in the past.

Join the author and our panel of guest experts for an enlightening discussion!

Featuring:

• Prof. Bridget Dooling, Assistant Professor of Law, The Ohio State University - Moritz College of Law
• Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School
• Dr. Philip A. Wallach, Senior Fellow, American Enterprise Institute
• (Moderator) Mr. Joel S. Nolette, Associate, Wiley Rein LLP

On March 28, 2023, Representatives Harriet Hageman and Chip Roy joined the Georgetown University Chapter of the Federalist Society for a discussion moderated by David Hoppe. Topics ranged from the representatives' careers prior to joining Congress to the proper role of Congress in the federal government, and the event concluded with audience Q&A.

Featuring:
- Hon. Harriet Hageman, U.S. Representative, Wyoming
- Hon. Chip Roy, U.S. Representative, 21st District of Texas
- Moderator: David Hoppe, President, Hoppe Strategies

On March 23, 2023, the Center for Constitutional Design at Arizona State University's Sandra Day O'Connor College of Law and the Federalist Society's Arizona State University Student Chapter and Article I Initiative co-hosted a debate about whether the legislative power can be delegated.

The debate featured Professor James Stoner and Professor Michael Rappaport, and was moderated by Arizona State Supreme Court Justice Clint Bolick.

Featuring:
- Prof. Michael Rappaport, Hugh & Hazel Darling Professor of Law and Director, Center for the Study of Constitutional Originalism, University of San Diego School of Law
- Prof. James Stoner, Hermann Moyse, Jr., Professor and Director, Eric Voegelin Institute, Department of Political Science, Louisiana State University
- [Moderator] Hon. Clint Bolick, Justice, Arizona Supreme Court
- [Introduction] Prof. Stephanie Lindquist, Foundation Professor of Law and Political Science and Director, Center for Constitutional Design, Sandra Day O'Connor College of Law, Arizona State University

The University of Richmond chapter of the Federalist Society hosted this panel discussion on "The Major Questions Doctrine, Chevron Deference & the Future of the Regulatory State" on Tuesday, March 21, 2023.

Featuring:
- Prof. Joel B. Eisen, Professor of Law, University of Richmond School of Law
- Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School
- Jonathan Wolfson, Chief Legal Officer and Policy Director, Cicero Institute

In November 2022, the District of Columbia City Council passed the Revised Criminal Code Act of 2022 (RCCA) that significantly reformed the D.C. Criminal Code to "modernize and overhaul" the District's criminal laws including a reduction in penalties for many violent offenses.

D.C. Mayor Muriel Bowser initially vetoed the bill citing concerns about some of the changes, but the Council overrode her veto in early 2023. Because D.C. government is not autonomous from the federal government, the legislation requires Congressional approval.

The U.S. House voted to nullify the bill, and the Senate is slated to vote on whether to block the bill this week. Should the Senate vote to block the D.C. bill, it could be the first time in almost 3 decades that Congress has nullified a D.C. law.

If the Senate votes to nullify the law, the bill will go to President Biden to sign or to veto. While many had anticipated he would veto the resolution, President Biden indicated in a March 2 tweet that he would sign the resolution should it pass.

On March 6, D.C. Council Chairman Phil Mendelson wrote a letter to the Senate attempting to withdraw the legislation. Such a withdrawal has not been attempted before. The Senate is still slated to take the issue to a vote later this week.

As the Senate vote approached, we hosted a webinar featuring an opening address from U.S. Senator Bill Hagerty, followed by a discussion of the bill and what may come next.

Opening Address Featuring:

Hon. Bill Hagerty, United States Senator, Tennessee

Discussion Featuring:

Zack Smith, Legal Fellow and Manager, Supreme Court and Appellate Advocacy Program, Edwin Meese III Center for Legal and Judicial Studies, Heritage Foundation

On October 17, 2022, the Federalist Society's Regulatory Transparency Project and Capitol Hill Chapter hosted part III in a lecture series on the administrative state. This discussion covered the major questions doctrine and how Congress may respond to the Supreme Court's decision in West Virginia v. EPA.

Arguably unenforced for some time, recent federal court cases have once again raised the specter of nondelegation doctrine. In so doing, cases such as West Virginia v. EPA at the Supreme Court, and the 5th Circuit's decision in Jarkesy v. SEC, arguably throws into question the status quo under which administrative agencies have heretofore operated.

This final event in the co-sponsored luncheon series on the administrative state investigated the impact such cases may have on Congress in terms of lawmaking delegation, and forecasted what Congress can expect if SCOTUS continues to enforce the nondelegation doctrine while moving away from former deference doctrines.

Featuring:
- Sarah Binder, Senior Fellow, Governance Studies, Brookings Institution
- Daniel Flores, Senior Counsel, Committee on Oversight and Reform, House of Representatives
- Moderator: Hon. Trevor McFadden, Judge, United States District Court, District of Columbia

This second event of a co-sponsored series on the Administrative State focused on the role of the administrative state in policymaking. Through its various roles and capacities, the Administrative state can have great leeway to create policy that has similar effects to rules and laws created through the legislative process but comes to be via different means. Agencies can make rules, issue guidance documents that often carry significant weight, interpret statutes, and enforce their rules. All these can contribute to agencies making policies that have the force of law.

Some argue that this policy-making by non-elected individuals serving in the administrative state is improper and usurps elected officials' authority. Others contend this is a valuable and necessary part of the Administrative State's ability to operate as authorized, and that the policy-making capacity of the Administrative State is a net benefit.

Panelists David Fotouhi, a current partner at Gibson, Dunn & Crutcher LLP who spent four years serving with the EPA, and Richard Peirce, a professor of Law at George Washington University who focuses on the Administrative State, discussed the policy-making power of the Administrative State, and the practical ways in which that power can often be applied. Judge Lisa Branch moderated.

Featuring:
- David Fotouhi, Partner, Gibson, Dunn & Crutcher LLP
- Richard Pierce, Lyle T. Alverson Professor of Law, George Washington University Law School
- Moderator: Hon. Lisa Branch, Judge, United States Court of Appeals, Eleventh Circuit