FedSoc Forums

With campaign season in full swing, a high-stakes legal and policy battle is intensifying over whether those in prison, on probation and parole, or simply with a past felony record should be eligible to vote. In January 2024, a rare Fifth Circuit en banc hearing will consider Mississippi’s felony disenfranchisement law that was struck down by a divided three-judge panel. Plaintiffs in such cases claim violations of equal protection and cruel and unusual punishment, raising the questions of how the original meaning of such provisions should apply today and whether this is a political question that should be left by judges to the elected branches of government to determine. Also, in Texas and Florida, prosecutions against those who voted despite a disqualifying criminal record implicate the question of mens rea. Join us as we consider varied perspectives on this issue that brings to the fore conflicting conceptions of the purpose of punishment, the impact of our nation’s history on the present, and the very meaning of citizenship and democracy. Featuring: Jeff Jacoby, Columnist, Boston Globe Nicole Porter, Senior Director of Advocacy, The Sentencing Project (Moderator) Marc Levin, Chief Policy Counsel, Council on Criminal Justice

John Malcolm and John Yoo continued their discussion of presidential power as they examined the latest updates on former President Donald Trump's civil and criminal cases, presidential immunities, and the expected House impeachment vote.

In Fall 2022 the Montgomery County Board of Education (MCBOE) revised its literature/ language arts curriculum for Pre-K to eighth grade to include new books centered around LGBTQIA+ issues, including pride parades, gender transitioning, same-sex marriage, and pronoun preferences. Although this concerned some parents, initially parents were notified when the books were being read and could opt their children out of those lessons. However, in March 2023 the MCBOE issued a statement alerting parents that they would no longer be notified when these books were being taught and requests to opt-out would not be honored. In light of this new statement, a coalition of parents of elementary school children in Montgomery County from a variety of faiths, including Islam, Catholicism, and Orthodox Christianity, brought suit in the U.S. District Court for Maryland. They argued that the MCBOE's refusal to alert parents when potentially objectional books on sex education & related topics were being taught and to deny them the option to opt their children out of such education was violative of their free-speech, free-exercise, and substantive-due-process rights under the U.S. Constitution and under Maryland law. The parents sought a preliminary injunction against the MCBOE. The U.S. District Court for the District of Maryland heard oral argument on August 9, 2023. Soon after it ruled against the parents, who appealed to the Fourth Circuit Court of Appeals. Oral argument at the 4th Circuit is set to occur on December 5. Please join us for a Litigation Update on Mahmoud v. McKnight with Eric Baxter, who is VP & Senior Counsel at Becket and is representing the plaintiffs in this case, as he gives a breakdown of this important case concerning religious liberty, free speech, education policy, and parental rights. Featuring: Eric Baxter, Vice President & Senior Counsel, The Becket Fund For Religious Liberty (Moderator) Emilie Kao, Senior Counsel, Vice President of Advocacy Strategy, Alliance Defending Freedom

Miracle Hill Ministries is one of nearly two dozen private entities with which the state of South Carolina contracts to help serve the thousands of children in its foster care system. Miracle Hill has been operating for over 80 years and, as a faith-based ministry, it chooses to partner only with potential foster parents who affirm its doctrinal statement—a choice that, under regulations issued at the end of the Obama administration, would have precluded it from receiving federal funds that otherwise are available to private foster care entities. In 2019, South Carolina Governor Henry McMaster learned of the situation and worked with the federal Department of Health and Human Services to obtain a waiver that allowed Miracle Hill to continue its foster care service in a way that was consistent with its religious commitments. That waiver was rescinded in 2023 by the Biden administration. Two recent cases, both of which were filed while the 2019 waiver was in place, challenged the constitutionality of the waiver and, more broadly, challenged the constitutionality of the State’s licensure of and contracting with Miracle Hill, alleging it constituted an unlawful establishment of religion and allowed publicly funded discrimination on the basis of religion. One of the cases (Rogers v. HHS et al.) was brought by a same-sex couple who identified as members of the Unitarian Universalist Church. The other case (Maddonna v. HHS et al.) was brought by a prospective foster mother who claimed to be Roman Catholic but who argued she could not affirm Miracle Hill’s Christian doctrinal statement. In both cases, the plaintiffs contended Miracle Hill should be ineligible to receive the government funding traditionally provided by HHS and the State of South Carolina to licensed private foster-care agencies. Summary judgment in favor of the defendants was granted in both Rogers v. HHS and Maddonna v. HHS earlier this year. Join us as litigating attorney Miles Coleman, who represented Governor Henry McMaster and the Director of the S.C. Dept. of Social Services, provides a litigation update on these two cases concerning child welfare, a religious non-profit foster care ministry, and religion in the public square. Featuring: Miles Coleman, Partner, Nelson Mullins Riley & Scarborough LLP (Moderator) Daniel Blomberg, Vice President and Senior Counsel, The Becket Fund for Religious Liberty

Former Colorado Corrections Sergeant Josh Young is suing the Colorado Department of Corrections alleging that mandatory Diversity, Equity, and Inclusion training subjected him to hostile work environment discrimination under Title VII of the Civil Rights Act of 1964. Young is being represented by General Counsel of Mountain States Legal Foundation, Will Trachman. Will recently argued the case at the Tenth Circuit Court of Appeals and will join us to discuss the case, the oral argument, and more.

The current FTC has criticized prior Commission positions, stating they are making a sharp departure from the decades-long approach they inherited. Almost three years into the current administration, how have these efforts fared? Has the FTC actually adopted a different standard in place of the consumer welfare standard and does it accurately reflect the law, as they claim? How durable will their efforts to implement changes likely be? This fireside chat led by former FTC Chief of Staff Svetlana Gans answered these and other important questions.

This webinar will explore the complex legal and humanitarian aspects surrounding recent events in the Israel-Palestine conflict. Specifically, this program will feature a discussion of Israel’s military operation in the Gaza Strip, proportionality in armed conflict, and the right to self defense in international law. Following Hamas’s atrocities in Israel on October 7th, the Israeli Defense Forces (IDF) began warning residents of Gaza to evacuate southward in anticipation of a large-scale military operation. Now, more than a month into the conflict, the military operation is well underway, offering further dilemmas for consideration such as the scale of the IDF’s response, the international reaction to the conflict, and future control of the Gaza Strip. Join our panel of National Security and Law of Armed Conflict experts for an educational discussion of these crucial legal considerations and more. Featuring: Prof. Jennifer Maddocks, Assistant Professor of Law, US Military Academy, West Point Prof. Paul Stephan, John C. Jeffries, Jr., Distinguished Professor of Law, University of Virginia School of Law Moderator: Prof. Jeremy Rabkin, Professor of Law, Antonin Scalia Law School, George Mason University

On November 13, 2023, the Supreme Court formally announced a Code of Conduct, a significant development encapsulated in a 14-page document outlining five canons of conduct. Addressing issues such as judicial recusal and permissible outside activities, the Code consolidates ethical rules guiding the Court's members. This webinar assembles a panel of Supreme Court and Legal Ethics experts to delve into the nuances of the Code, exploring surprises within its text and elucidating its implications for the Court's future. The release of a Code coincides with the Professional Responsibility & Legal Ethics Practice Group's sponsorship of a National Lawyers Convention breakout panel titled "Originalist Perspectives on Ethics and the Supreme Court." The discussion, held just days before the Code's unveiling, pondered the necessity of an Ethics Code for the Supreme Court and foreshadowed lingering questions for the Court. A recording is available here. Featuring: Prof. Arthur Hellman, Professor of Law, University of Pittsburgh School of Law David Lat, Founder, Original Jurisdiction Moderator: Hon. Jennifer Perkins, Arizona Court of Appeals, Division One

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below. Brown v. United States (November 27) - Criminal Law; Whether the definition of “serious drug offense” in the Armed Career Criminal Act incorporates the federal drug schedules that were in effect when the individual committed the firearm offense, or instead the schedules that were in effect at the time of the state drug offense. McElrath v. Georgia (November 28) - Criminal Law, Double Jeopardy; A challenge by a Georgia man who was found not guilty by reason of insanity on one charge arising from the stabbing death of his mother and guilty but mentally ill on another charge to the state’s ability to try him again on the charge on which he was acquitted. Wilkinson v. Garland (November 28) - Immigration; Whether federal courts have the power to review an agency’s determination that a noncitizen did not meet the “exceptional and extremely unusual” hardship requirement to cancel deportation. Securities and Exchange Comm’n v. Jarkesy (November 29) - Administrative Law, Financial Services; A challenge to the SEC’s use of in-house judges. Harrington v. Purdue Pharma, L.P. (December 4) - Whether the Bankruptcy Code gives a court the power to approve a release that extinguishes claims against third parties, without the consent of the individuals or entities holding the claims. Moore v. United States (December 5) Federalism & Separation of Powers - Whether a federal “mandatory repatriation tax” violates the 16th Amendment. Muldrow v. City of St. Louis, Missouri (December 6) - What protections does Title VII of the Civil Rights Act of 1964 provide to employees who contend they were the victim of a discriminatory transfer? Featuring: Justin Aimonetti, Attorney, Dechert LLP Adi Dynar, Attorney, Pacific Legal Foundation Prof. Jennifer Jenkins, Associate Professor of Law, Ave Maria School of Law Prof. Lindsey Simon, Associate Professor of Law, Emory University Law School Moderator: Stephanie Maloney, Chief of Staff and Associate Chief Counsel, U.S. Chamber Litigation Center

On November 29, 2023, the U.S. Supreme Court will hear oral argument in SEC v. Jarkesy. The following three questions are presented – (1) Whether statutory provisions that empower the Securities and Exchange Commission (SEC) to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment; (2) Whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine; (3) Whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection. Please join us as Margaret A. Little, Counsel of Record on an amicus brief filed by New Civil Liberties Alliance, discusses the case and its developments after oral argument.