RTP's Fourth Branch Podcast

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

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

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

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

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

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

Over the past decade or so, increasing attention has been paid to agency guidance, the role it serves, and whether it has begun to supplant legally binding regulation as a governing tool. To place more parameters around its use, President Trump issued Executive Order 13891. President Biden rescinded that order upon taking office, and agencies are in the process of unwinding actions taken to implement the order.In this episode, experts conduct a lively discussion of agency guidance – what it is, how and why it is issued, pros and cons of current guidance practices, thoughts on reforms in E.O. 13891, and the potential future of guidance reform.Featuring:- Bridget Dooling, Research Professor, George Washington University Regulatory Studies Center- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center- Paul Ray, Senior Advisor, Patomak Global Partners- [Moderator] Daniel Flores, Senior Counsel, Committee on Oversight and Reform, U.S. House of RepresentativesVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

The Biden administration had barely named a cabinet, let alone staffed the government, when it began taking cybersecurity hits from all directions. The Russian government was revealed to have carried out a sophisticated supply chain attack through SolarWinds. Then Chinese government hackers launched attacks through Microsoft Exchange, often using extremely irresponsible and promiscuous tactics. Then Russian ransomware gangs threatened a fuel pipeline to the East Coast and beef supplies nationwide.And that's just the first six months. What has been the fallout from these events and how is the administration responding? The calls for regulation of critical infrastructure, of cryptocurrency, and for aggressive retaliation have never been louder. Which will have a long-term impact?In this live podcast, Stewart Baker and Tatyana Bolton trade insights on this pressing topic.Featuring:- Stewart Baker, Partner, Steptoe & Johnson LLP- Tatyana Bolton, Director, Cybersecurity and Emerging Threats, R Street InstituteVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

On June 10, the Kentucky Supreme Court heard a pair of cases to consider whether and to what extent the Commonwealth's legislature may set parameters on the Governor's exercise of emergency powers.In March 2020, Kentucky Governor Andy Beshear declared a state of emergency related to the COVID-19 pandemic. Since then, he and other executive branch officials have issued executive orders, regulations, and other directives aimed at combatting the spread of the virus. On February 2 of this year, Kentucky's General Assembly enacted a series of bills — over Governor Beshear's vetoes — that amended the Commonwealth's emergency powers laws. Under those laws, executive emergency orders that restrict private entities like businesses and churches lapse automatically after 30 days unless extended with the agreement of the legislature. Without legislative action, the Governor's existing orders lapsed on March 4, 2021. The Governor maintains, however, that the new laws invade the executive's authority to respond to emergencies and that he may continue to enforce emergency orders.Two lawsuits followed. First, Governor Beshear sued the leaders of Kentucky's legislature and the Attorney General and asked the court to declare that the new laws usurp his executive powers. Separately, Pacific Legal Foundation sued the Governor on behalf of three restaurant owners who challenge the Governor's authority to continue the enforcement of business restrictions after March 4.The judges in each case issued temporary injunctions. In the Governor's case, a Franklin County judge suspended certain provisions of the new laws. In PLF's case, a Scott County judge ordered the Governor to cease enforcement of orders against PLF's clients. The order in the latter case has been put on hold, and both cases have been appealed. The Kentucky Supreme Court accepted "transfer" from the appellate court and ordered that the two cases be heard together.Governor Beshear has announced the easing of restrictions, effective June 11. The parties dispute whether this latest directive from the Governor renders the case moot.In this live podcast, Mitchel Denham (DBL Law) and Oliver Dunford (Pacific Legal Foundation) debate and discuss the implications of these cases.Featuring:- Mitchel Denham, Partner, DBL Law- Oliver Dunford, Attorney, Pacific Legal FoundationVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

With his new casebook, "Administrative Law Theory and Fundamentals: An Integrated Approach," Professor Ilan Wurman seeks to provide fresh thinking to the field of administrative law. In the casebook, Professor Wurman proposes a theory of administrative power that he feels explains constitutional text and structure, as well as historical and modern practice, more completely than competing accounts. He argues that there are "exclusive" powers that only Congress, the President, and the courts can respectively exercise, but also "nonexclusive" powers that can be exercised by more than one branch. With this theory of "nonexclusive powers" Professor Wurman seeks to help students and scholars of administrative law critically analyze administrative law concepts such as delegation, quasi-powers, judicial deference, agency adjudications, and the separation of powers more broadly.In this episode, Professor Wurman and Professor Richard Epstein discuss the new casebook and its theory of administrative power.Featuring:- Ilan Wurman, Associate Professor of Law, Sandra Day O'Connor College of Law, Arizona State University- [Moderator] Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of LawVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.