RTP's Fourth Branch Podcast

Jon Kotler, a California fan of the London soccer club Fulham FC, wanted to put the letters "COYW" on his license plate. The letters stand for a common phrase that Fulham fans use to support their team: "Come on You Whites!" "White" is meant to refer to the color of Fulham's home kits, but the DMV deemed the acroynym offensive and prevented Kotler from using it.

Kotler filed a federal suit claiming that the DMV had violated his free speech rights. In this short episode, Wen Fa, an attorney in the case, describes the details.

Featuring:
- Wen Fa, Attorney, Pacific Legal Foundation

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The Endangered Species Act has been credited with preventing extinctions but criticized for failing to recover species and imposing unfair burdens on property owners. Recently, the U.S. Fish and Wildlife Service and the National Marines Fisheries Service finalized several new Endangered Species Act regulations intended to improve the law’s implementation and promote species recovery. Lawsuits challenging those regulations are expected from several states and conservation groups.

Featuring:
- Jonathan Wood, Senior Attorney, Pacific Legal Foundation
- [Moderator] Daren Bakst, Senior Research Fellow in Agricultural Policy, The Heritage Foundation

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In this episode, Jeff Holmstead and Megan Herzog discuss the recent rule change from the EPA on emissions standards. The Affordable Clean Energy plan replaces the Obama-era Clean Power Plan. The reduction in admissions standards has raised new questions: what does the Clean Air Act authorize EPA to regulate, how much discretion does EPA have in regulating emissions, which plan more closely fits the intent of the original law? These and other questions are taken up in this engaging discussion.

Featuring:
- Jeffrey R. Holmstead, Partner, Bracewell LLP
- Megan Herzog, Special Assistant Attorney General, Massachusetts Attorney General's Office

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In this inaugural Tech Roundup podcast, experts discuss various questions raised by "deep fake" technology, in which machine learning algorithms are used to create synthetic videos and photos. What are the potential societal and political implications of their emergence? What challenges might they present to regulators?

Join Professor Robert Chesney (co-author of "Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security"), Matthew Feeney, and Will Rinehart as they explore the implications of this emerging technology.

Featuring:
- Robert M. Chesney, James A. Baker III Chair in the Rule of Law and World Affairs and Associate Dean for Academic Affairs, The University of Texas at Austin School of Law
- Matthew Feeney, Director, Project on Emerging Technologies, Cato Institute
- [Moderator] Will Rinehart, Director of Technology and Innovation Policy, American Action Forum

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In 2018, the California Superior Court announced a new test for determining whether a worker is an employee or an independent contractor. In this Explainer podcast episode, Luke Wake of the National Federation of Independent Businesses breaks down the case and its implications for small business owners in California.

Featuring:
- Luke Wake, Senior Staff Attorney, NFIB Small Business Legal Center

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In this inaugural episode of the Regulatory Transparency Project's Explainer podcast series, Ann Carlson and James Coleman discuss the merits and implications of the Green New Deal.

What is the Green New Deal, what are its aims, and how might it achieve them? Is the proposal realistic? How does it compare to landmark pieces of environmental legislation from the past decades?

These and other questions are explored in this short podcast.

Featuring:
- Ann Carlson, Shirley Shapiro Professor of Environmental Law and Faculty Co-Director of the Emmett Institute on Climate Change and the Environment, UCLA School of Law
- James Coleman, Associate Professor of Law, Southern Methodist University Dedman School of Law

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Title III of the Americans with Disabilities Act requires public accommodations be accessible to the disabled community. Since its enactment in 1991, it has been understood that any store, restaurant, theater, hotel facility, school, or other building private entities own or lease and make available to the public meet certain requirements for disability access.

Plaintiffs attorneys have been aggressive in enforcing the ADA against all types of physical businesses for years. And now we are seeing a new frontier of litigation - websites. Banks, hotels, service providers, and retailers of all types are beginning to see lawsuits alleging their websites are not accessible to the disabled.

Karen Harned will provide the background on this new trend in ADA litigation, the current state of the law, and highlight a case the Supreme Court is being asked to take this next term on the issue.

Featuring:
- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center

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The strictures of the Appointments Clause are receiving renewed attention in the courts, including the Supreme Court. A year ago, the High Court ruled that the SEC’s administrative law judges must be appointed in conformity with this clause, and it has placed another Appointments Clause case on the docket for its next term. In Buckley v. Valeo (1976), the Court held that rulemaking was a significant government power such that rulemakers must be appointed in conformity with the Clause, but it had no reason to address whether rules must be issued by principal officers or could also be issued by inferior officers.
On behalf of nine vaping retailers, Pacific Legal Foundation is challenging the FDA’s "Deeming Rule" issued by a career employee, Leslie Kux. A new research study of HHS rules over a 17-year period, also by PLF, found that nearly two-thirds of HHS regulations were issued by non-Senate-confirmed staff. Within FDA, 98% of its rules (1,860 of them) were issued by civil service employees in career positions like that held by Ms. Kux. In the pending litigation, FDA argues that Ms. Kux was also an inferior officer when she issued rules, and that inferior officers may lawfully issue such binding rules, even if no supervisor may subsequently change them without a new rulemaking process.
The speakers examine a variety of topics related to the subdelegation of rulemaking power, including the creation of offices by department heads and who within those offices can lawfully exercise rulemaking power.
Featuring:

Todd F. Gaziano, Chief of Legal Policy and Strategic Research and Director, Center for the Separation of Powers, Pacific Legal Foundation
Prof. Anne Joseph O'Connell, Adelbert H. Sweet Professor of Law, Stanford Law School
[Moderator] Prof. Kristin E. Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School

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The Federal Reserve plays a central role in the nation’s payment systems. Reserve banks keep currency in circulation to meet demand, provide check collection services to banks, operate payment systems, and provide financial services to the United States government and foreign institutions.
The Federal Reserve is currently exploring ways to support faster payments in the U.S. The potential actions would facilitate real-time interbank settlement of faster payments. Proponents feel the actions may assist smaller banks and credit unions to service local communities, while detractors raise concerns about interoperability, the ability to exchange messages among different instant-payment systems, and other issues. This teleforum will address these topics and much more.
Featuring:

Aaron Klein, Fellow in Economic Studies and Policy Director, Center on Regulation and Markets, Brookings Institution
George Selgin, Senior Fellow and Director, Center for Monetary and Financial Alternatives, Cato Institute
[Moderator] J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University

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On June 18, 2019, the Federalist Society's Article I Initiative and Regulatory Transparency Project hosted a panel on "Agency Rulemaking: Unnecessary Delegation or Indispensable Assistance?" at the National Press Club in Washington, DC.

In his recent article, “Strategic Institutional Positioning: How We Have Come to Generate Environmental Law Without Congress,” published in the Texas A&M Law Review, Donald Kochan lays out the argument that delegation of authority to agencies serves the interests of both sides of Congress. Those ostensibly elected to oppose further regulation can argue that any proposed rule changes are out of their control. Conversely, representatives elected to increase regulation can blame agency heads for not following the intent of the authorizing statute. However, both sides avoid blame by the electorate.

What are the advantages and disadvantages of such a system? Should specialized bureaucrats do the lion’s share of rulemaking? Or should elected Senators and Congressman, often without the same level of expertise, write the rules that govern our nation?

Featuring:
- Andrew Grossman, Partner, Baker & Hostetler LLP and Adjunct Scholar, The Cato Institute
- Prof. Donald Kochan, Professor in Law and the Associate Dean for Research & Faculty Development, Chapman University Dale E. Fowler School of Law
- Prof. Robert Percival, Professor of Law and Director, Environmental Law Program, University of Maryland School of Law
- Brianne Gorod, Chief Counsel, Constitutional Accountability Center
- [Moderator] Jeff Holmstead, Partner, Bracewell LLP

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