RTP's Fourth Branch Podcast

In June, President Biden signed into law a bill that repealed changes to Environmental Protection Agency methane emissions regulations made by the Trump administration. In this episode, Professor Jonathan Adler joins the podcast to provide context to this development and to discuss the underlying legal and environmental issues at play.

Featuring:
- Jonathan H. Adler, Johan Verheij Memorial Professor of Law and Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law

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"A Dubious Expediency: How Race Preferences Damage Higher Education" is a collection of eight essays written by experts in the field examining and analyzing the impact of racial diversity preferences and identity politics in American colleges and universities. The book's title comes from a 1976 California Supreme Court opinion in Bakke v. UC Regents authored by Justice Stanley Mosk, who wrote: "To uphold the [argument for race-preferential admissions] would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality." In the book, the authors take up the question of race-based preferences in higher education, arguing that mounting empirical evidence shows race-based solutions cause long term harm both to intended beneficiaries and to society as a whole.

Featuring:
- Gail Heriot, Professor of Law, University of San Diego School of Law
- Maimon Schwarzschild, Professor of Law, University of San Diego School of Law

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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.

In this live podcast, 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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The antitrust agencies' approach to vertical mergers has been the subject of significant debate — with potential changes still on the horizon. Last summer, the Department of Justice and the Federal Trade Commission issued long-awaited Vertical Merger Guidelines, the first update since 1984. The FTC's challenge to the Illumina/Grail merger — which sits at the intersection of healthcare and developing technology issues — is currently scheduled to begin an administrative trial next month. This would mark the first vertical merger litigation under the new Vertical Merger Guidelines, and one of the first since the DOJ's loss in AT&T/Time Warner. Our panel of experts discuss the recent developments in the vertical merger space, the theories at issue in the Illumina/Grail case, and implications for enforcement activity over the coming months and years.

Featuring:
- Steve Cernak, Partner, Bona Law PC
- Michael Kades, Director, Markets and Competition Policy, Equitable Growth
- Bruce Kobayashi, Professor of Law, Antonin Scalia Law School, George Mason University
- Thomas Lambert, Wall Chair in Corporate Law and Governance and Professor of Law, University of Missouri School of Law
- Taylor Owings, Partner, Baker Botts L.L.P.
- [Moderator] Elyse Dorsey, Adjunct Professor, Antonin Scalia Law School, George Mason University

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Motivated in part by Congress's failure to modernize immigration policy in the United States, Presidents in recent years have turned to administrative law and the regulatory process to make major immigration policy. The Obama Administration's DACA and DAPA immigration policies come immediately to mind. So does the Trump Administration's attempted rescission of DACA, among other regulatory or executive branch actions such as the travel ban, regulation of "sanctuary" cities, and major adjudicative and rulemaking policy changes to asylum and related relief.

Now that regulation is the primary means for immigration lawmaking, scholars, judges, and government officials have begun debating the proper regulatory processes for promulgating major immigration policy. In her book Beyond Deportation, for example, Professor Shoba Sivaprasad Wadhia has examined the value of rulemaking over agency guidance for major immigration policy and related relief. In a recent coauthored Duke Law Journal article, Professor Christopher Walker has joined Professor Wadhia to argue that the Biden Administration should shift the immigration policymaking default from administrative adjudication to notice-and-comment rulemaking (and not seek Chevron deference in immigration adjudication).

In this episode, an expert panel explores these arguments regarding the appropriate regulatory process for immigration policymaking and how the Biden Administration (and the federal courts) have already started to take up this call to action. Professors Wadhia and Walker are joined by Professors Susan Dudley and Richard Pierce, both of whom have deep expertise in administrative law and regulatory process.

Featuring:
- Richard Pierce, Lyle T. Alverson Professor of Law, George Washington University Law School
- Shoba Sivaprasad Wadhia, Associate Dean for Diversity, Equity, and Inclusion, Samuel Weiss Faculty Scholar and Clinical Professor of Law, and Director, Center for Immigrants' Rights Clinic, The Pennsylvania State University
- Christopher Walker, Professor of Law, Moritz College of Law, The Ohio State University
- [Moderator] Susan Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University

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The Supreme Court issued its decision in Cedar Point Nursery v. Hassid on June 23, 2021, holding 6-3 that a California regulation allowing California union organizers entry onto the private property of California growers constituted an uncompensated per se physical taking in violation of the Fifth and Fourteenth Amendments. The Ninth Circuit’s decision upholding the regulation was reversed and the case was remanded.
In this episode, attorney Wen Fa analyzes the decision and its implications.
Featuring:

Wen Fa, Attorney, Pacific Legal Foundation

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This episode features a panel discussion on Critical Race Theory, the 1619 Project and the current debates over how best to teach American history. Linda Chavez, Chairman of the Center for Equal Opportunity moderates the program and is joined by Peter Wood, President of the National Association of Scholars and author of 1620: A Critical Response to the 1619 Project, and John Agresto, former President of St. John’s College in Santa Fe.

Featuring:
- John Agresto, Former President, St. John's College
- Peter Wood, President, National Association of Scholars
- [Moderator] Linda Chavez, Chairman, Center for Equal Opportunity

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In May 2021, Rep. Diana Harshbarger (R-Tenneessee) introduced the "Freedom to Work Act," a bill that would utilize the federal government to reduce occupational licensing requirements. In this episode, the Congresswoman joins Shoshana Weissmann to discuss the bill and the most prevalent arguments for and against its passage.

Featuring:
- Rep. Diana Harshbarger, United States Representative, Tennessee
- [Moderator] Shoshana Weissmann, Senior Manager of Digital Media and Fellow, R Street Institute

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In recent years, a number of regulatory agencies have increasingly utilized enforcement actions rather than formal rulemaking to achieve desired policy outcomes. Critics argue that this "regulation by enforcement" raises legal concerns involving fair notice, the rule of law, and the Administrative Procedure Act. One prominent example of this phenomenon is the regulation of the cryptocurrency industry, where explosive innovation and growth have left many players appealing for clear rules of the road, rather than unpredictable enforcement actions carried out by a variety of federal agencies, including the Securities and Exchange Commission (SEC), the Commodity Futures Trading Commission (CFTC), and the Financial Crimes Enforcement Network (FinCEN).

While the SEC has declared that Bitcoin and Ether, the two largest cryptocurrencies, are not securities, the agency has increasingly brought lawsuits arguing that other coins must be registered as securities, relying on New Deal-era statutes and the Supreme Court's 1946 Howey test. Most notably, the SEC recently filed suit against Ripple Labs claiming that XRP, the popular cryptocurrency Ripple launched almost a decade ago, is an unregistered securities offering.
In this live podcast, an expert panel discusses SEC v. Ripple Labs, the broader cryptocurrency regulatory landscape, and potential legislative and regulatory reforms.

Featuring:
- John Berlau, Senior Fellow, Competitive Enterprise Institute
- John Deaton, Managing Partner, Deaton Law Firm
- Carol Goforth, University Professor and Clayton N. Little Professor of Law, University of Arkansas School of Law
- Roslyn Layton, Founder, China Tech Threat; Visiting Researcher, Aalborg University Center for Communication, Media, and Information Technologies; Senior Contributor, Forbes
- [Moderator] Curt Levey, President, Committee for Justice

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Federal and state government authority to mandate automobile manufacturers and consumers switch to electric cars is one of the most contentious legal and policy debates of the last two decades.

The Biden Administration has proposed to rescind two actions of the Trump Administration — EPA's withdrawal of a Clean Air Act waiver of preemption, and a Department of Transportation preemption regulation — that together attempt to establish one preemptive, national standard for automobile fuel economy and greenhouse gas emissions by the NHTSA and EPA and, as a consequence, prohibit California from adopting or enforcing motor vehicle greenhouse gas emissions or zero-emitting vehicle requirements for motor vehicles under state law.

In this live podcast, a panel of lawyers involved in the litigation discuss the legal and policy issues presented by these proposals.

Featuring:
- Jonathan Brightbill, Partner, Winston & Strawn LLP
- Sean H. Donahue, Partner, Donahue, Goldberg & Weaver LLP
- Benjamin Flowers, Solicitor General, Ohio
- [Moderator] James Coleman, Professor of Law, Southern Methodist University Dedman School of Law

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