RTP's Fourth Branch Podcast

The EPA has rescinded The Safer Affordable Fuel Efficient Vehicles Rule Part One: One National Program rule. It has reinstated a waiver of Clean Air Act (CAA) preemption for California’s greenhouse gas standards and Zero Emission Vehicle sales mandate. These are some facets to California’s Advanced Clean Car Program.
In Ohio v. EPA, now pending before the D.C. Circuit, various industry and state petitioners have challenged EPA’s reinstatement of the waiver as preempted by the CAA; and have argued that Congress has not implicitly authorized it either. Numerous amici have weighed in on this issue as well. The D.C. Circuit soon will hear oral argument in this case, which eventually might make it to the Supreme Court.
Raised by some amici, one of the pertinent issues here is that the federal government is showing favoritism to California in contravention of the Constitution’s equal-sovereignty principle, which the Supreme Court has recognized in a long line of cases (most recently culminating in Shelby County v. Holder).
This litigation update will feature a vital discussion from the eminent Jonathan Brightbill, who served as Acting Assistant Attorney General of the United States (leading the Justice Department’s Environment and Natural Resources Division, where he worked on the Trump Administration’s One National Standards Rule), and who currently is a partner at Winston & Strawn LLP; Robert Percival, the Robert F. Stanton Professor of Law and the Director of the Environmental Program at the University of Maryland School of Law; and Sohan Dasgupta, who served as the Deputy General Counsel of the U.S. Department of Homeland Security and who is a partner at Taft LLP.
Featuring:

Jonathan Brightbill, Partner, Winston & Strawn LLP
Robert Percival, Robert F. Stanton Professor of Law, University of Maryland Carey School of Law
[Moderator] Sohan Dasgupta, Partner, Taft Stettinius & Hollister LLP

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On December 19, 2022, the Reagan-Udall Foundation for the Food and Drug Administration, an independent 501(c)(3) organization created by Congress “to advance the mission of the FDA to modernize medical, veterinary, food, food ingredient, and cosmetic product development, accelerate innovation, and enhance product safety” released the second of two highly anticipated reports on its state of affairs. The first, released December 6, 2022, served as an operational evaluation of the FDA’s Human Foods program, which had struggled significantly during the course of the supply chain issues brought on during the COVID pandemic. The second December 19th, 2022 report covered “certain components of FDA’s Tobacco program,” evaluating operations there. Both were highly anticipated not just because of the serious and pertinent issues they addressed, but because questions circulated concerning how the Foundation is made up of many former FDA high officials, and how the report would rate the proceedings of the current FDA team.

In this podcast Jeff Stier, a senior fellow at the Consumer Choice Center, senior fellow at the Taxpayers Protection Alliance, and a policy advisor to the Heartland Institute breaks down some of what the reports say, and what the next steps for both the FDA and Congress may be.

Featuring:

• Jeff Stier, Senior Fellow, Consumer Choice Center

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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.

The Federalist Society’s Regulatory Transparency Project and Capitol Hill Chapter hosted the third in a lecture series on the administrative state. The subject of this discussion was 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.

In this final event in our co-sponsored luncheon series on the administrative state, experts investigated the impact such cases may have on Congress in terms of lawmaking delegation, and looked to forecast 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

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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.

The Federalist Society’s Regulatory Transparency Project and Capitol Hill Chapter hosted the second in a lecture series on the administrative state’s role in policymaking in modern American government.

This second event of our 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 the discussion.
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

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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.

The first in a lecture series on how the administrative state functions in modern American government, presented by the Federalist Society’s Regulatory Transparency Project and Capitol Hill Chapter.

This first luncheon featured former “regulations czar” Paul J. Ray, who served as President Trump’s Office of Information and Regulatory Affairs Administrator (OIRA). As OIRA Administrator, Ray oversaw the review of hundreds of regulations, and led efforts on regulatory reform.

The luncheon also featured Boris Bershteyn, a partner at Skadden, Arps, Slate, Meagher, and Flom, LLP. Mr. Bershteyn served as acting Administrator of ORIA in 2012 and 2013. He was also General Counsel of the Office of Management and Budget starting in 2011.

Our moderator was Hon. Stephen Alexander Vaden from the United States Court of International Trade. Before joining the bench, Judge Vaden served as General Counsel of the United States Department of Agriculture. During his nearly four-year tenure as head of the Office of General Counsel, the Department won two cases before the United States Supreme Court, relocated and reorganized the agencies that comprise the Department to better serve rural America, engaged in substantial regulatory reform, developed new regulations to allow for the legal sale of hemp and the labeling of bioengineered products, and implemented the 2018 Farm Bill.

Featuring:

• Paul J. Ray, Director, Thomas A. Roe Institute for Economic Policy Studies, The Heritage Foundation, former OIRA Administrator
• Boris Bershteyn, Partner, Skadden, Arps, Slate, Meagher, and Flom, former acting OIRA Administrator
• Moderator: Hon. Stephen Alexander Vaden, United States Court of International Trade

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In this podcast episode, Michael Cannon, Director of Health Policy Studies at Cato Institute and Marisa Maleck, Partner at King & Spalding LLP join us to discuss telehealth regulation - what it is, what happened to it during COVID-19, and what the opportunities and barriers are for future telehealth innovation.

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

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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.

In this podcast, technology and data privacy experts discuss the evolving landscape of artificial intelligence, machine learning, and what these new technologies mean for existing and future policy and technology innovation. Without a clear regulatory framework, differing definitions and taxonomies have been adopted to regulate AI technology. What will future AI trends look like, and what should policymakers prioritize moving forward?

Featuring:

• Jennifer Huddleston, Policy Counsel, NetChoice
• Hodan Omaar, Senior Policy Analyst, Center for Data Innovation
• Adam Thierer, Senior Fellow, R Street Institute

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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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.

In this episode, Hon. Gail Heriot, discusses her recent article for the New Criterion, An Agenda for Congress, in which she provides recommendations for Congress to adjust existing incentives that provide structural support for race-preferential admissions. Professor Heriot shares her projections for the outcome of Students for Fair Admissions against Harvard and the University of North Carolina, and what the implications of these cases will be for colleges and universities.
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Kimberly Hermann, General Counsel for Southeastern Legal Foundation and Tiffany Justice, Co-Founder of Moms for Liberty, share their insights on the interplay of parents, unions, and government regulators. In this episode, learn how "parental rights" have become a growing influence on education reform.

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On November 7, the U.S. Supreme Court heard Axon Enterprise, Inc. v. Federal Trade Commission, to decide whether Congress stripped federal district courts of jurisdiction over constitutional challenges to the FTC by granting the courts of appeals jurisdiction over FTC cease-and-desist orders. This panel will discuss key take-aways from the oral argument and implications for administrative litigation at the Federal Trade Commission, and perhaps for other agencies as well.
Featuring:

Ashley Baker, Director of Public Policy, Committee for Justice
Ronald Cass, President, Cass & Associates, PC
Henry Su, Partner, Bradley Arant Boult Cummings LLP
[Moderator] Svetlana Gans, Partner, Gibson, Dunn & Crutcher, LLP

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.