RTP's Fourth Branch Podcast

Last week the Supreme Court decided the much-anticipated Kisor v. Wilkie case. The Court had granted certiorari in Kisor to decide whether to overrule Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997). Seminole Rock and Auer are often cited for the proposition that when an administrative agency promulgates a regulation and the regulation is ambiguous, a reviewing court must give “controlling weight” to the agency’s interpretation of the regulation unless the interpretation is plainly erroneous or is inconsistent with the regulation. A number of the Court’s members had cast doubt on the soundness of the Seminole Rock/Auer deference doctrine in recent years, and many observers have predicted that the doctrine’s days are numbered.

Karen Harned and Stephen Vaden discuss that morning’s highly-fractured decision in Kisor and its potential implications — including for the Chevron deference doctrine that applies to agency interpretations of statutory provisions.

Featuring:
- Karen Harned, Executive Director, NFIB Small Business Legal Center
- Stephen Vaden, General Counsel, United States Department of Agriculture

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The U.S. Supreme Court’s decision in Gundy v. United States disappointed some observers who were hoping that the Court would use the case to reinvigorate the nondelegation doctrine. Will the 4-1-3 decision here leave the status quo intact or embolden lower courts to identify more nondelegation problems? Will Congress view this outcome as an invitation to delegate more decisions about the scope of the criminal law to the Attorney General? Do Justice Alito’s concurrence and the strong dissent from Justice Gorsuch (joined by The Chief Justice and Justice Thomas) signal that the nondelegation doctrine will soon be revived? These and other questions are discussed in this podcast.

Featuring:
- Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties Alliance

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On June 4, 2019, a Ninth Circuit panel heard oral argument in a high-profile interlocutory appeal in Juliana v. United States, regarding whether the U.S. Constitution gives rise to cognizable constitutional and federal common law claims against the Executive Branch for actions alleged to cause or contribute to climate change.

The Juliana plaintiffs – most of whom were minor children when the suit was filed in 2015 – argue, inter alia, that the federal government has violated their fundamental right to a stable climate grounded in the Due Process and Equal Protection Clauses of the Fifth Amendment to the Constitution. The plaintiffs also argue that the government has breached its duty to hold the atmosphere in trust under federal common law principles. The federal government argues that the plaintiffs lack standing; that the case is not justiciable in any federal court under Article III of the U.S. Constitution; that the plaintiffs’ claims were not properly brought pursuant to the Administrative Procedure Act; and that the plaintiffs have failed to state a claim on the merits upon which relief can be granted.

Featuring:
- James R. May, Distinguished Professor of Law, Widener University Delaware Law School
- Damien M. Schiff, Senior Attorney, Pacific Legal Foundation
- [Moderator] Jonathan H. Adler, Johan Verheij Memorial Professor of Law; Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law

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On May 8, 2019, the Ninth Circuit issued a 2-1 decision in Cedar Point Nursery v. Shiroma. In Cedar Point, California agricultural growers asked the court to invalidate an Agricultural Labor Relations Board regulation that allowed union organizers to come on to the growers’ property to solicit workers to join the union for 3 hours per day and 120 days per year. The growers contend that the regulation amounts to a physical taking under the Fifth Amendment. The Ninth Circuit majority rejected that argument, and held that the physical takings doctrine did not apply because the union organizers were not allowed around-the-clock access to the growers’ property.

In this podcast, hear reactions from Wen Fa and Bethany Berger.

Featuring:
- Wen Fa, Attorney, Pacific Legal Foundation
- Prof. Bethany Berger, Wallace Stevens Professor of Law, University of Connecticut School of Law

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LIBOR is a hugely important interest rate benchmark, used globally and embedded in over $200 trillion of financial contracts. It has its notable shortcomings, including having been subject to scandalous attempts at manipulation. Financial regulators, notably the New York Fed, want it to disappear and be replaced by another index. But can the regulators succeed in their effort? Will LIBOR disappear and be replaced? By SOFR or something else? Or will it survive, perhaps as one of multiple competing benchmarks?

Dr. Oonagh McDonald thoroughly explores LIBOR's evolution, scandals, and the issues of its future in her new book, "Holding Bankers to Account." Oonagh will present the lessons of history and the state of current debates. Gary Kalbaugh of ING Financial and Columbia Law School and Alex Pollock of the R Street Institute will be discussants.

Featuring:
- Prof. Gary Kalbaugh, Special Professor of Law at the Maurice A. Deane School of Law
- Alex J. Pollock, Distinguished Senior Fellow, R Street Institute
- Dr. Oonagh McDonald, CBE, Philosophy Lecturer at the University of Bristol, Member of the British Parliament 1976-1987, Member of the Front Bench Treasury Team, Author of Several Books, Including her Newest One "Holding Bankers to Account"

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One of the final acts of former Bureau of Consumer Financial Protection (CFPB) Director Richard Cordray before he left to run for Governor of Ohio in 2017 was the issuance of a comprehensive rule governing payday loans, auto title loans, and other small dollar loans. The centerpiece of the rule would have imposed a new "Ability to Repay" (ATR) underwriting standard on providers of these small dollar products for extensions of credit to repeat borrowers. The Rule was scheduled to go into effect in August 2019. In January of this year, however, new CFPB Director Kathy Kraninger announced a Notice of Proposed Rulemaking that would rescind the ATR requirement. This live podcast discusses the logic of the 2017 Rule and the reasons for the CFPB's reconsideration this year.

Featuring:
- Prof. Todd Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School at George Mason University

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Recently, members of the United States Senate and United States House of Representatives have introduced the "Loan Shark Prevention Act," which imposes a nationwide 15% interest rate ceiling on all consumer credit products, from credit cards to payday loans. They also propose to empower the United States Post Office to engage in the practice of consumer retail banking. This Teleforum examines the economics of interest-rate ceilings on consumer credit and the historical experience with such proposals as well as discussing the proposal to create a Post Office bank.

Featuring:
- Wayne Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association
- Todd Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School

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This episode brings you the audio from the opening panel of the Federalist Society's 7th annual Executive Branch Review Conference. The panel featured Counsels from the Department of Transportation, Department of Energy, Department of the Treasury, Department of Agriculture and the EPA. The speakers take stock of the current administration's regulatory reform agenda two years on.

Featuring:
- Hon. Steven G. Bradbury, General Counsel, U.S. Department of Transportation
- Mr. George H. Fibbe, Deputy General Counsel, U.S. Department of Energy
- Hon. Hon. Matthew Z. Leopold, General Counsel, U.S. Environmental Protection Agency
- Hon. Brent J. McIntosh, General Counsel, U.S. Department of the Treasury
- Hon. Stephen A. Vaden, General Counsel, U.S. Department of Agriculture
- [Moderator] Prof. Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School, George Mason University
- [Introduction] Dean A. Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society

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It is currently a federal crime, under the Bald and Golden Eagle Protection Act, for many Native Americans to possess eagle feathers for religious use. Congress authorized the Department of the Interior (the Department) to permit an exception for eagle feather use for “the religious purposes of Indian tribes” in 1962, yet more than 50 years later the Department’s regulations exclude millions of sincere Native American religious believers. And even Native Americans who are protected (because they are enrolled members of federally recognized tribes) are forced to rely on the “Morton Policy”—an informal memorandum that could be rescinded at any time. Although Native Americans have relied on the Morton Policy for more than 40 years, the Department has never promulgated it as a rule.

In 2014, the Fifth Circuit held that the Department had failed to justify its ban on religious feather possession as required by the Religious Freedom Restoration Act (RFRA). The Department is now considering a Petition for Rulemaking, which proposes to 1) broaden the Morton Policy to include all sincere religious believers who use protected feathers in their religious exercise—as both the Constitution and RFRA require; 2) officially promulgate this policy as a formal rule rather than rely on informal guidance, ending decades of legal limbo for those who worship with feathers; and, 3) empower Native American tribes to help combat the illegal commercialization of federally protected feathers. Join Joe Davis as he addresses the proposed rulemaking and its relationship to evolving First Amendment jurisprudence.

Featuring:
- Joe Davis, Counsel, Becket Fund for Religious Liberty

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Regulation is a pervasive and increasingly a contentious issue in 21st Century America. The propriety of any given regulatory imposition may be debatable; however, in this discussion we address bigger questions about how regulation works as a whole—whether, in the aggregate, regulation at the federal, state and local level is working well, or impacting innovation and economic opportunity. What are the relative benefits of local and state regulation as well the societal costs?

Our co-presenters, Brooks Rainwater (National League of Cities) and Luke Wake (NFIB Small Business Legal Center), will explore whether we should maintain the status quo, seek to scale-back existing regulation, and/or winnow existing regulatory regimes.

Featuring:
- Brooks Rainwater, Senior Executive & Director, Center for City Solutions, National League of Cities
- Luke Wake, Senior Staff Attorney, NFIB Small Business Legal Center

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