FedSoc Forums

Efforts to achieve “environmental justice” have been a top priority of the Biden Administration and its Environmental Protection Agency (EPA). As stated in the EPA’s FY 2022-2026 Strategic Plan, “EPA will center its mission on the integration of justice, equity, and civil rights across the nation’s environmental protection enterprise,” (27). Accordingly, the EPA has invoked Title VI of the Civil Rights Act in some of its environmental emissions investigations even where the situation appears compliant with applicable environmental laws. One such investigation recently occurred in Louisiana where the EPA found “significant evidence” of disparate adverse impacts on Black residents of St. John the Baptist Parish, St. James Parish, and an Industrial Corridor in the area. These disparate impacts were alleged to be the result of poor air quality despite the fact that the EPA had deemed the relevant emissions compliant with applicable laws shortly before opening their civil rights investigation. In May 2023, the Louisiana Attorney General filed suit against the EPA, arguing that EPA lacked authority to impose disparate-impact based mandates under Title VI and that the agency had unconstitutionally delegated power to special interest groups to direct how EPA conducted investigations. Shortly after the State sought a preliminary injunction, the EPA abruptly abandoned its pending investigations, although it continues to adhere to its Title VI disparate-impact regulations generally. Briefing is ongoing and a hearing has been set for January 9, 2024. Click here to view the complaint.Drew Ensign served as Special Assistant Solicitor General and Counsel to the State of Louisiana during this matter. In this recorded webinar he delivered a Litigation Update on the case. Featuring:--Drew C. Ensign, Owner, Drew C. Ensign PLLC & Special Assistant Solicitor General, State of Louisiana

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

John Malcolm and John Yoo continued their discussion of presidential power with a focus on the Hunter Biden investigations. They will take a look at the probes surrounding Hunter Biden’s business dealings, the role of President Joe Biden, and the competing roles of Congress and the executive branch in the investigations.Featuring: --John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation--Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley; Nonresident Senior Fellow, American Enterprise Institute; Visiting Fellow, Hoover Institution

John Malcolm and John Yoo examined the indictment of former President Donald Trump in the 2020 election probe in Georgia as he now faces 91 charges across four separate indictments. They will discuss the facts and law of Trump's latest indictment and the intersection between criminal law, presidential elections, and the Constitution.Featuring: --John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation--Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley; Nonresident Senior Fellow, American Enterprise Institute; Visiting Fellow, Hoover Institution

Fairfax County, Virginia’s Thomas Jefferson High School for Science and Technology – commonly known as TJ – is the #1 ranked public high school in the country. In 2020, the Fairfax County School Board enacted measures intended to increase racial diversity in TJ’s student body. These policies changed the school’s admissions process and drew criticism from some TJ parents, locals, and national observers. The changes included discontinuing the admissions test, allowing race-consciousness, and capping the number of students allowed admission from each of the district’s 23 middle schools. In the end, the new system led to a reduction in the number of Asian-American students admitted to TJ. In March 2021, Coalition for TJ sued the Fairfax County School Board over the new admissions policies alleging discrimination against applicants of Asian heritage. The U.S. District Court for the Eastern District of Virginia granted Coalition for TJ’s motion for summary judgment in February 2022. Fairfax County School Board then appealed the District Court’s permanent injunction to the Fourth Circuit. The Fourth Circuit stayed the District Court order. The Coalition for TJ filed an emergency stay application to the U.S. Supreme Court but was denied; the case was remanded to the Fourth Circuit and heard in September 2022. In May 2023, the Fourth Circuit reversed the District Court allowing the new admissions plan to be enacted. Coalition for TJ’s legal representation, Pacific Legal Foundation, is now planning to file a cert petition to the U.S. Supreme Court. In the lead up to filing, Erin Wilcox will join us to discuss the case and offer an update on the latest events. Featuring:--Erin Wilcox, Attorney, Pacific Legal Foundation

Environmental, Social, and Corporate Governance (ESG) investing has grown in popularity in recent years. As a result of major investment firms and individual stockholders making ethical and social considerations in their investing, firms and corporations have developed ESG rating matrices to grade publicly traded companies on their commitment to diversity and the fight against climate change. These ranking systems, however, have raised eyebrows in light of recent news that major tobacco companies are receiving higher ESG scores than the electric car manufacturer, Tesla. Serious questions are being raised about the reliability of these rating systems as tools for investors, and whether a company's focus on diversity and inclusion on its board of directors should be considered an ethical investment, even if its main product is responsible for millions of deaths every year.

Does New York’s “rent stabilization” law violate the federal Constitution? The law, which regulates approximately 1 million apartments in New York City, was enacted more than fifty years ago and remains in effect based on an every-three-year declaration of a housing “emergency.” The law does not merely regulate rent levels. It also limits a property owner’s right to determine who uses an apartment, to convert the property to new uses or to replace the existing building with a new structure, and to occupy the property for use by the owner and his or her family.A lawsuit filed in 2019, Community Housing Improvement Program v. City of New York, asserted that the New York law—including 2019 amendments that significantly increased the restrictions on property owners— violates due process and affects both physical and regulatory takings of the property that it regulates. The case was first dismissed at the District level. Earlier this year, the United States Court of Appeals for the Second Circuit affirmed the District Court's ruling and found the 2019 amendments compliant with the Fifth Amendment to the U.S. Constitution. The case now moves to the Supreme Court as plaintiffs—armed with 14 amicus briefs—petition the Court to reverse the Second Circuit’s decision.Rent regulation is not just a New York phenomenon. Other cities across the country have enacted, or are considering, rent regulation legislation. Andrew Pincus, lead counsel for the plaintiffs, discussed the constitutional challenge in the context of the Supreme Court’s evolving property rights jurisprudence.Featuring:--Andrew Pincus, Partner, Mayer Brown

In this recorded webinar, John Malcolm and John Yoo revive their discussion of presidential power, prosecution, impeachment, and separation of powers with the prosecution of former President Donald Trump for the events surrounding the January 6, 2021 attack on the U.S. Capitol. They discussed the facts and law of Trump’s indictment, the developments in the Hunter Biden investigations, and the intersection between criminal law, presidential elections, and the Constitution.Featuring: --John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation--Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley; Nonresident Senior Fellow, American Enterprise Institute; Visiting Fellow, Hoover Institution

How far can states use their local economy to put economic pressure on other states to change their policies? In National Pork Producers Council v. Ross (2023), the Supreme Court considered this question, and had a very unusual split 5-4 with Justices Gorsuch, Thomas, Sotomayor, Kagan, and Barrett in the majority. The Court rejected a challenge to a California regulation that prohibited the in-state sale of pork which was previously out-of-state “confined in a cruel manner.”This panel will discuss the decision and the originalist foundations, if any, of the dormant Commerce Clause jurisprudence. Additionally, even if it properly exists, what is its extent and the impact of the Court’s decision?Featuring:--Jack Fitzhenry, Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation--Prof. Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law--Prof. Michael S. Greve, Professor of Law, Antonin Scalia Law School--Moderator: Elizabeth Slattery, Senior Legal Fellow, Pacific Legal Foundation

In 1984, Hon. Pauline Newman became the first judge appointed directly to the United States Court of Appeals for the Federal Circuit. Judge Newman has served on that court since, and serves to this day. Reports surfaced in April of this year that Federal Circuit Chief Judge Kimberly Moore had initiated a complaint against Judge Newman under the Judicial Conduct and Disability Act of 1980. On May 10, 2023, Judge Newman filed suit in the United States District Court for the District of Columbia against Chief Judge Moore; two other Federal Circuit judges in their capacities as members of the special committee appointed by Chief Judge Moore to investigate the complaint; and the Judicial Council of the Federal Circuit and its members. Judge Newman's federal lawsuit raises issues not just of judicial conduct (given the underlying complaint) and patent law (which are interesting given Judge Newman's and the court's history as well as what some view as its drift away from innovation-protective jurisprudence), but also separation of powers (since Judge Newman was appointed by the President and confirmed by the Senate), and even age/disability discrimination (Judge Newman is 95 years old). Our panel discussed these and related issues arising from this most-unusual set of circumstances. Featuring: --Prof. Paul R. Gugliuzza, Professor of Law, Temple University Beasley School of Law--Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston--Prof. Arthur Hellman, Professor Emeritus of Law, University of Pittsburgh School of Law--Cheryl Stanton, Chief Legal and Government Affairs Officer, BrightStar Care--Moderator: John J. Park Jr., Of Counsel, Strickland Brockington Lewis LLP