RTP's Fourth Branch Podcast

In September, a panel of judges on the Fifth Circuit Court of Appeals heard oral argument in Illumina v. Federal Trade Commission. Earlier this year, the Federal Trade Commission (FTC) ordered biotechnology company Illumina to unwind its $8 billion acquisition of Grail, a cancer-screening startup. This case began with a 2021 administrative complaint challenging the transaction. In September 2022, the FTC’s administrative law judge (FTC) concluded that the FTC “failed to prove its asserted prima facie case that Illumina’s post-Acquisition ability and incentive to advantage Grail to the disadvantage of Grail’s alleged rivals is likely to result in a substantial lessening of competition in the relevant market.” The FTC complaint counsel appealed the decision of the ALJ to the commissioners, who then voted to overturn the ALJ’s decision, ordering Illumina to divest the acquisition. The case is now pending before the Fifth Circuit.

Please join us as we break down oral argument and discuss the broader implications of Illumina v. FTC.

Featuring:

• Ashley Baker, Director of Public Policy, Committee for Justice
• John B. Kirkwood, Professor of Law, Seattle University School of Law
• Moderator: Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason University

*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Six months ago, we experienced bank runs and three of the four largest bank failures in U.S. history. Regulators declared there was "systemic risk" and provided bailouts for large, uninsured depositors. What is the current situation? While things seem calmer now, what are the continuing risks in the banking sector? Banks face huge mark-to-market losses on their fixed-rate assets, and serious looming problems in commercial real estate. How might banks fare in an environment of higher interest rates over an extended period, or in a recession? Reform ideas include a 1,000-page "Basel Endgame" capital regulation proposal. Which reforms make the most sense and which proposals don’t? Our expert and deeply experienced panel will take up these questions and provide their own recommendations in their signature lively manner.

Featuring:
- William M. Isaac, Chairman, Secura/Isaac Group
- Keith Noreika, Executive VP & Chairman, Banking Supervision & Regulation Group, Patomak Global Partners
- Lawrence J. White, Robert Kavesh Professorship in Economics, Leonard N. Stern School of Business, New York University
- [Moderator] Alex J. Pollock, Senior Fellow, Mises Institute

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

For the past thirty years, the Magnuson-Stevens Act (MSA) has given the National Marine Fisheries Service (NMFS), an arm of the National Oceanic and Atmospheric Association (NOAA), the authority to place third-party observers on commercial fishing boats. Those observers have largely been federally funded except in certain limited instances where the MSA provides NMFS with the power to collect fees from the regulated industry. When NMFS and the New England Fishery Management Council decided to explore the possibility of increased discretionary monitoring in the Atlantic herring fishery, however, they realized the federal government would be unable to pay for additional monitoring. The solution was a rule that would instead shift the cost of increased coverage to small businesses—the fishermen themselves. NMFS estimated the cost of industry-funded monitoring in the herring fishery would run upwards of $700 per day and lead to a 20% reduction in most of the fleet’s net revenue.
If the story sounds familiar, that’s because the 2022 Academy Award Best Picture, CODA, concerns the same kind of industry-funded monitoring scheme in New England’s storied groundfish fishery. Up and down the Atlantic seaboard, commercial fishermen have long protested they are facing an onslaught of overlapping and ever-increasing state and federal regulations, all while fishing quotas and revenue continue to decline. NMFS, in the face of multiple lawsuits, has sought to justify industry-funded monitoring as a compliance cost necessary to preserve fishing stocks. Moreover, the agency has relied on Chevron deference to defend its reading of the MSA.
In May 2023, the Supreme Court agreed to hear Loper Bright Enterprises v. Raimondo, a lawsuit brought by a group of herring fishermen from Cape May, NJ challenging NMFS’s industry-funded monitoring rule. Rather than agreeing to directly address NMFS’s interpretation of its authority under the MSA, however, the Court agreed to consider whether Chevron v. NRDC should be overruled or, alternatively, clarified such that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in a statute does not constitute an ambiguity requiring deference to an agency. The implications of Loper Bright are tremendous across multiple agencies and regulatory spaces—it could turn out to mark a defining shift in administrative law.
Featuring:

Ryan Mulvey, Counsel, Cause of Action Institute
Eli Nachmany, Former Law Clerk to Hon. Steven J. Menashi, U.S. Court of Appeals for the Second Circuit

In May, the EPA proposed a new rule to regulate greenhouse gas emissions from new and existing power plants. This is a third attempt by the EPA to regulate these emissions. The Supreme Court struck down the Obama administration’s Clean Power Plan in West Virginia v. EPA, which was the first time the Court formally acknowledged and explicitly relied on the “major questions” doctrine. The DC Circuit had previously struck down the Trump Administration’s Affordable Clean Energy Rule and, although West Virginia involved an appeal of that decision, the Supreme Court did not rule on the Trump Administration’s rule.

The new rule’s supporters say it’s well in line with EPA’s statutory authority, the state of the electric markets, and available emissions-reduction measures. Its opponents say it is legally flawed and threatens grid reliability. What are the potential legal and policy issues associated with the proposed rule? Does it raise “major questions” issues? Is the agency relying upon unproven technology in violation of the statutory requirement that its standards be based only on the “best system of emission reduction” that “has been adequately demonstrated?” Does this rule violate state prerogatives for regulating existing sources? Join us as we explain the rule and then discuss the legal and policy issues it raises.

Featuring:

• Jeffrey Holmstead, Partner, Bracewell LLP
• Kevin Poloncarz, Partner, Covington & Burling LLP
• Justin Schwab, Founder, CGCN Law, PLLC
• [Moderator] Daren Bakst, Director of the Center for Energy and Environment and Senior Fellow, Competitive Enterprise Institute

*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

On President Biden’s first day in office, he signed Executive Order 13985: Advancing Racial Equity and Support for Underserved Communities Through the Federal Government. He then signed Executive Order 14035: Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce later that year on June 25, 2021. Taken together, these orders outline what President Biden has described as an “ambitious whole-of-government equity agenda.”

Executive branch agencies are now charged with creating, implementing, and assessing a large variety of DEI initiatives. As examples, agencies have been encouraged to hire a Chief Diversity Officer, workforce DEI training programs have been implemented and expanded, and federal health benefits have been augmented to include “comprehensive gender-affirming health care” for employees and their dependents.

These initiatives cost time, money, and resources, and they are not without controversy. Some question the legal grounding of these initiatives and assert that they run afoul of constitutional guarantees to equal protection of the law. A separate concern is whether federal DEI priorities fail on a utilitarian calculus and drain the federal government’s financial and manpower resources. Still, many Americans support the executive branch initiatives in both theory and practice.

Should the executive branch maintain such a robust focus on DEI initiatives? Is the current administration’s focus constitutional? Is it appropriate? Does it serve the American people?

Featured Speakers:

Veronica Venture, Deputy Officer for Civil Rights and Civil Liberties, Director of Equal Employment Opportunity and Diversity, Department of Homeland Security (DHS)

Hans von Spakovsky, Manager, Election Law Reform Initiative, Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation

Devon Westhill, President and General Counsel, Center for Equal Opportunity

Dean Todd Clark, Dean, Delaware Law School

[Moderator] Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law, Former Assistant U.S. Secretary of Education for Civil Rights, U.S. Department of Education

In October 2022, President Biden issued an executive order regarding the European Union - U.S. Data Privacy Framework. The Framework allows for data flows between the EU and the U.S., and it was established after the European Court of Justice struck down a prior agreement known as the EU-U.S. Privacy Shield. The executive order addresses U.S. collection of signals intelligence, which has been a source of concern for EU regulators and privacy advocates. The executive order limits signals intelligence collection to defined national security objectives, requires the privacy and civil liberties of all persons be considered regardless of nationality, and the collection must be proportionate. In addition, the executive order calls for a multi-layered review process that will allow individuals to lodge complaints regarding the collection of signals intelligence.

Our experts will discuss whether the Framework addresses the concerns of privacy advocates in the EU and the U.S., and they will consider the implications of the review process for U.S. intelligence collection. This program will also explore whether the EU and U.S. can reach a durable privacy agreement given the tension between EU privacy preferences and U.S. national security needs.

Featuring:
- Stewart Baker, Of Counsel, Steptoe & Johnson LLP
- Max Schrems, Founder, NOYB
- [Moderator] Matthew R. A. Heiman, General Counsel & Corporate Secretary, Waystar Health; Senior Fellow and Director of Planning, National Security Institute

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

As children's lives become increasingly digital, how can we protect their safety online while weighing potential trade-offs like privacy interests and free speech?

Join us for a panel discussion examining the complex legal and ethical implications of enacting age verification requirements for access to social media and adult websites. The panel will dive into regulatory and legislative proposals and efforts, the role of tech companies and educational institutions, and the technological solutions available. Key questions include: How can we balance children's privacy and safety? What are the roles of government, companies, and parents? Is it necessary to restrict access by age? This timely discussion will provide a nuanced look at the issues from all sides as we seek to build a safer, more responsible digital world for the next generation.

Featuring:
- Clare Morell, Senior Policy Analyst, Technology and Human Flourishing Project, Ethics and Public Policy Center
- Ben Sperry, Senior Scholar, Innovation Policy, International Center for Law & Economics
- Jamie Susskind, Legislative Director for Senator Marsha Blackburn, U.S. Senate
- Shoshana Weissmann, Director, Digital Media, Communications and Fellow, R Street Institute
- [Moderator] Ashkhen Kazaryan, Senior Fellow, Free Speech & Peace, Stand Together

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

Eleventh Annual Executive Branch Review Conference — EBRXI
Theme: Transparency, Accountability, and the Administrative State

The White House recently released much-anticipated changes to federal regulatory practices, including a new Executive Order 14094 on “Modernize Regulatory Review,” draft revisions to Circular A-4 governing regulatory impact analysis, and draft guidance on meetings with entities outside of the executive branch. The Office of Information and Regulatory Affairs (OIRA) has the lead for implementing these changes, which comprise the most significant regulatory policy initiatives of the Biden administration. In this opening session, OIRA experts, including several former OIRA administrators will review these developments.

Featuring:
- Anthony Philip Campau, Principal, Clark Hill Public Strategies & Attorney, Clark Hill PLC
- Susan Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice Trachtenberg School of Public Policy & Public Administration, George Washington University
- Sally Katzen, Professor of Practice and Distinguished Scholar in Residence & Co-Director of the Legislative and Regulatory Process Clinic, New York University
- [Moderator] Andrew Olmem, Partner, Mayer Brown

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

During President Obama’s second term, the U.S. Education Department began sharing studies indicating that black students were disciplined at higher rates than their white peers. These data were viewed as evidence of racial bias, and, in 2014, the Education and Justice Departments jointly published a resource package to help American schools “…promote fair and effective disciplinary practices that will make schools safe, supportive, and inclusive for all students,” (DOJ).

Supporters applauded these steps from the federal government saying they reduced schools’ racial disparities in disciplinary decisions thereby curtailing the “school-to-prison pipeline.” Critics countered that the guidance misstated federal civil rights law, encouraged racial discrimination in the allocation of school discipline to produce demographic parity, and left classrooms less functional.

The 2014 resource package was ultimately rescinded in 2018 under the Trump Administration, only to be largely restored by the Biden Administration. In May 2023, the Education and Justice Departments published a “Resource on Confronting Racial Discrimination in Student Discipline.”

What is the best path forward for appropriate and meaningful disciplinary decision making in American schools? How will our school children be best served? What does the evidence really show about race and school discipline? Please join us as an expert panel discusses the legal and educational contours of the most recent guidance on race and school discipline.

Featuring:
Dr. Juan Del Toro, Assistant Professor, Department of Psychology, University of Minnesota
Max Eden, Research Fellow, American Enterprise Institute (AEI)
Kristen Harper, Vice President for Public Policy and Engagement, Child Trends
Dan Morenoff, Executive Director, American Civil Rights Project
[Moderator] Alison Somin, Legal Fellow, Center for the Separation of Powers, Pacific Legal Foundation

*******
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Join us for an in-depth exploration into the SEC's recent lawsuit against Coinbase – a case that will no doubt influence the legal landscape of crypto asset trading and securities laws well into the future.

The SEC alleges that Coinbase has operated its trading platform as an unregistered exchange, broker, and clearing agency, and further contends that Coinbase's staking-as-a-service program has been unlawfully engaged in securities offerings. On the other hand, Coinbase has challenged the classification of digital currencies as 'investment contracts' and has invoked the Major Questions Doctrine to question the SEC's authority to regulate without affirmative Congressional authorization.

Join Paul Grewal from Coinbase, Stephen Palley from Brown Rudnick LLP, and Professor J.W. Verret from George Mason University as they discuss regulators’ approach towards this burgeoning asset class, the legal arguments at play in the SEC’s lawsuit, and the broader implications of the case going forward.

Featuring:
- Paul Grewal, Chief Legal Officer, Coinbase
- Stephen Palley, Partner, Brown Rudnick LLP
- Moderator: J.W. Verret, Associate Professor of Law, George Mason University

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