RTP's Fourth Branch Podcast

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 AdministratorBoris Bershteyn, Partner, Skadden, Arps, Slate, Meagher, and Flom, former acting OIRA AdministratorModerator: Hon. Stephen Alexander Vaden, United States Court of International TradeVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

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.*******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, NetChoiceHodan Omaar, Senior Policy Analyst, Center for Data InnovationAdam Thierer, Senior Fellow, R Street InstituteVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.*******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. Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

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

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.

Some employers were surprised by the en banc Fifth Circuit’s December 2021 decision in Helix Energy Solutions Group, Inc. v. Hewitt that a supervisor for an offshore oil company who received approximately $1,000 per day for a total of over $200,000 annually was eligible for overtime pay under the Fair Labor Standards Act. The Act exempts from overtime pay workers “employed in a bona fide executive, administrative, or professional capacity,” and the oil company argued that a highly compensated supervisor like Mr. Hewitt qualifies for this “EAP” exemption. The en banc Fifth Circuit applied a Department of Labor regulation requiring EAP-exempt employees to have a fixed weekly salary to conclude that, notwithstanding high pay and supervisory duties, Mr. Hewitt was non-exempt because he was paid on a daily rather than weekly basis. However, that argument has not been accepted across the bench. Judge Jones dissented that the weekly salary rule is inapplicable for workers who satisfy a separate regulatory requirement for exempt “highly compensated employees” who make over $100,000 per year (now $107,432). Judge Wiener’s dissent added that application of the weekly salary rule—which dates from 1940s—is illogical and unreasonable under the circumstances. DOL took no view on this case. Additionally, Helix Energy created an apparent split with the First and Second Circuits, and the Supreme Court granted on certiorari May 2, 2022. Oral argument took place October 12. If the Court upholds the decision, employers that relied on the First and Second Circuits may face significant retroactive liability. In this podcast, experts provide a litigation update on Helix Energy, what it is, what the possible outcomes may be, and the potential consequences of the same. Featuring: Dave Dorey, Senior Litigation Counsel, The Fairness Center Timothy Taylor, Partner, Holland & Knight LLP [Moderator] Sheng Li, Litigation Counsel, New Civil Liberties Alliance Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

Tornado Cash is an open source, decentralized cryptocurrency tumbler that was introduced in 2019. The service allows users to mix identifiable Ethereum cryptocurrency funds with others, thus obscuring the trail back to the funds original source. On August 8, 2022, the Treasury’s Office of Foreign Assets Control (OFAC) sanctioned Tornado Cash, making it illegal for United States citizens, residents, and companies to receive or send money through the service. OFAC claims that Tornado cash is responsible for laundering more than $7 billion in virtual currencies, including money believed to be stolen by North Korea and criminal groups. As opposed to sanctioning people, organizations, or particular addresses associated with rogue regimes, OFAC has sanctioned the code of Tornado Cash itself, causing critics to claim that OFAC has exceeded its statutory authority . In this podcast, experts discuss OFAC’s blacklisting of Tornado Cash, potential litigation from opponents, and the broader implications for financial privacy, national security, and free speech. Featuring: Paul Brigner, Head of U.S. Policy and Strategic Advocacy, Electric Coin Company. Michael Mosier, General Counsel, Espresso Systems Kevin Werbach, Professor of Legal Studies and Business Ethics at the Wharton School, University of Pennsylvania Moderator: J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University

In the last few years, the Federal Energy Regulatory Commission (FERC) has emerged from relative obscurity to find itself squarely in the middle of many of today’s most contentious public policy fights. As the agency that regulates wholesale electricity and transmission rates, the Commission faces the tension between the rapid adoption of renewable generation sources and the reliability of the bulk power system. And as the agency that reviews applications to build natural gas pipelines and liquified natural gas export facilities, how should the Commission consider the European energy crisis? Given the “economic and political significance” of these tasks, how should the Commission carry out its mission in light of West Virginia v. EPA?At a live Regulatory Transparency Project event, following remarks from FERC Commissioner James Danly, an expert panel discussed the present and future challenges facing energy reliability and regulation.Featuring:Michael Buschbacher, Counsel, Boyden Gray & AssociatesJennifer Chen, Senior Manager, Clean EnergyJim Wedeking, Counsel, Sidley Austin LLP[Moderator] Marc L. Spitzer, Steptoe & JohnsonVisit our website – https://www.RegProject.org – to learn more, view all of our content, and connect with us on social media.*******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 the last few years, the Federal Energy Regulatory Commission (FERC) has emerged from relative obscurity to find itself squarely in the middle of many of today’s most contentious public policy fights. As the agency that regulates wholesale electricity and transmission rates, the Commission faces the tension between the rapid adoption of renewable generation sources and the reliability of the bulk power system. And as the agency that reviews applications to build natural gas pipelines and liquified natural gas export facilities, how should the Commission consider the European energy crisis? Given the “economic and political significance” of these tasks, how should the Commission carry out its mission in light of West Virginia v. EPA?At a live Regulatory Transparency Project event, FERC Commissioner James Danly addressed the present and future challenges facing energy reliability and regulation. An expert panel including Michael Buschbacher, Jennifer Chen, Jim Wedeking, and moderator Marc Spitzer then followed the Commissioner’s remarks with a lively discussion.Featuring:James Danly, Commissioner, Federal Energy Regulatory CommissionVisit our website - https://www.RegProject.org - to learn more, view all of our content, and connect with us on social media.*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.