FedSoc Forums

In West Virginia v. EPA, the Supreme Court held that the major questions doctrine requires courts to, “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” Some argue that the Court’s opinion in the case leaves doubt as to how the doctrine will be applied in future cases and how it will impact future regulatory policy. In the past, Executive branch agencies have invoked Title IX to introduce many new rules and regulations. Some of these rules and regulations have faced significant opposition from inside and outside of government. Do elements of modern Title IX administration constitute a major question that Congress is best suited to consider? If so, how will this impact the future administration of Title IX regulations? Join us as Jennifer Braceras and Professor Daniel Farber discuss the future of Title IX in the wake of West Virginia v. EPA. Featuring: Jennifer Braceras, Director, Independent Women's Law Center Professor Daniel Farber, Sho Sato Professor of Law, Berkeley Law [Moderator] Farnaz Farkish Thompson, Partner, McGuireWoods LLP

In November 2022, the District of Columbia City Council passed the Revised Criminal Code Act of 2022 (RCCA) that significantly reformed the D.C. Criminal Code to “modernize and overhaul” the District’s criminal laws including a reduction in penalties for many violent offenses. D.C. Mayor Muriel Bowser initially vetoed the bill citing concerns about some of the changes, but the Council overrode her veto in early 2023. Because D.C. government is not autonomous from the federal government, the legislation requires Congressional approval. The U.S. House voted to nullify the bill, and the Senate is slated to vote on whether to block the bill this week. Should the Senate vote to block the D.C. bill, it could be the first time in almost 3 decades that Congress has nullified a D.C. law. If the Senate votes to nullify the law, the bill will go to President Biden to sign or to veto. While many had anticipated he would veto the resolution, President Biden indicated in a March 2 tweet that he would sign the resolution should it pass. On March 6, D.C. Council Chairman Phil Mendelson wrote a letter to the Senate attempting to withdraw the legislation. Such a withdrawal has not been attempted before. The Senate is still slated to take the issue to a vote later this week. As the Senate vote approaches, please join us for a webinar featuring an opening address from U.S. Senator Bill Hagerty, followed by a discussion of the bill and what may come next. Opening Address Featuring: --Hon. Bill Hagerty, United States Senator, TennesseeDiscussion Featuring:--Zack Smith, Legal Fellow and Manager, Supreme Court and Appellate Advocacy Program, Edwin Meese III Center for Legal and Judicial Studies, Heritage Foundation

How are we to understand scientific consensus? Who is authorized to speak on behalf of doctors and scientists as a whole, and how do those who present themselves as messengers of the majority reach their material findings? In the aftermath of the COVID-19 pandemic, these questions, and others like them, have important consequences for the future of American science and medicine. The complaint in Missouri v. Biden arises from the controversy surrounding the Great Barrington Declaration, a declaration written in October 2020 and authored by renowned epidemiologists criticizing contemporary, aggressive COVID-19 policies. Plaintiffs allege that the federal government coerced social media companies to silence opposing viewpoints under the pretense of halting “disinformation” and “misinformation” thereby violating the First Amendment. Hoeg v. Newsom is born of similar allegations at the state level. On September 30, 2022, the California State Legislature passed Assembly Bill No. 2098 that purports to rein in “disinformation” and “misinformation” about the COVID-19 virus and vaccines. The Bill states that “It shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.” Plaintiffs – all physicians licensed by the Medical Board of California – allege that the Bill violates their First and Fourteenth Amendment rights by interfering with their ability to freely communicate to patients and dissent from mainstream viewpoints in their professional capacity as trained doctors. Observers have noted that achieving scientific consensus on an emergent and politicized disease is very difficult. For example, the purported scientific consensus on masks, lockdowns, natural immunity, and various other COVID-related matters has remained in flux over the past three years. Some argue that government attempts to stifle debate are concerning and illustrate the purpose of the First Amendment.Jenin Younes is Litigation Counsel for the New Civil Liberties Alliance (NCLA) and represents plaintiffs in both cases. In this recorded webinar Jenin delivers updates on these cases and discusses the ongoing power struggle over the dissemination of medical information.Featuring:--Jenin Younes, Litigation Counsel, New Civil Liberties Alliance--[Moderator] Margaret A. Little, Senior Litigation Counsel, New Civil Liberties Alliance

This virtual event featured a panel of current and former state solicitors general exploring and discussing how state SGs balance their duty to defend state sovereignty with different political priorities. There are some areas in which the states seem to be more on the same page (such as criminal law) and others that involve sharp disagreements among the states in terms of the duty to defend state sovereignty (e.g. DACA). Focusing on the role of the SG—as opposed to the presumably more overtly political state attorney general position—how do different SGs approach these issues?Featuring:--Benjamin M. Flowers, Solicitor General, Ohio--Elbert Lin, Chair, Issues & Appeals, Hunton Andrews Kurth LLP; Former Solicitor General, West Virginia--Ryan Park, Solicitor General, North Carolina--Moderator: Hon. Britt C. Grant, Judge, United States Court of Appeals, Eleventh Circuit; Former Solicitor General, Georgia

February 28, 2023, the U.S. Supreme Court heard oral argument in two cases challenging the Biden Administration's Student Loans forgiveness program: Board of Education v. Brown and Biden v. Nebraska. In August 2022, the Biden Administration's Department of Education announced plans to forgive up to $20,000 in federal student loans for borrowers who qualified. In order to do this, the DOE relied on the HEROES Act, which allows the government to modify student loans, among other things, during a national emergency.Both cases challenge this action. Biden v. Nebraska involves a challenge to the Executive action from six states who contend they will suffer direct harm based on a loss of tax revenue. In Department of Education v. Brown, two individual borrowers, one of whom has loans that are fully intelligible for forgiveness under the program, and one of whose loans only qualify for part of the maximum relief possible, also challenge the legitimacy of the program. The Court will be faced with two questions in both cases: first, do the challengers, whether they be the states or the individual borrowers, have standing to sue? The Biden administration contends neither of the respondents possess standing. Second, assuming the Court decides there is standing to sue, the Court will face the question “Does the plan exceed the statutory authority available to the Secretary of Education, and adopted in a procedurally proper manner?”We broke down and analyzed how oral argument went in both cases in this Courthouse steps program.Featuring:--Mark Chenoweth, President and General Counsel, New Civil Liberties Alliance

Much of global economic competition today centers around gaining market share in the semiconductor industry. Over the past decade, the Chinese Government has attempted to expand its market share across the semiconductor value chain through a complex regime of subsidies and state-owned enterprises.Beginning in the Trump Administration, the United States launched targeted export controls to restrict certain Chinese firms - like Huawei - from obtaining American semiconductor technology. Over the past two years, the Biden Administration has built on and broadened these efforts. In the Fall of 2022, the Commerce Department announced two new rules that restricted the sale of advanced semiconductors, semiconductor manufacturing equipment, and related software or technical assistance to China. Earlier this January, U.S. officials announced the existence of a deal with Japan and the Netherlands to craft broad, multinational export controls on semiconductor exports to China.Can the Chinese semiconductor industry survive these new restrictions? How will they impact U.S. firms and researchers in this sector? Do they form a blueprint for new export control restrictions on other technology exports to China? This panel with two leading experts on strategic technology and trade controls discussed these and other questions.Featuring: --Hon. Nazak Nikakhtar, Partner, Wiley Rein LLP--Thomas Krueger, Senior Policy Advisor, Akin Gump LLP; Adjunct Senior Fellow, Center for a New American Security--Moderator: Trevor Jones, JD Candidate, Harvard Law School

On February 27, 2023, the United States Supreme Court heard Oral Argument in Dubin v. United States. At issue in the case is whether, when using (reciting, mentioning, or employing) someone else’s' name or identifying information in the committing a predicate offense, one also commits aggravated identity theft.Petitioner David Dubin was convicted of healthcare fraud for submitting a factually inaccurate reimbursement claim to Medicaid that mischaracterized the nature of the provider, the time spent on the testing in question, and the date of the test. Additionally, because he used the name and identifying information of a real patient, Dubin was also convicted of one count of aggravated identity theft. Both the district court and the Fifth Circuit upheld the convictions on appeal.Dubin claims that the Fifth Circuit’s decision, if upheld, has massive and undesirable implications for a spectrum of other white collar crimes.In this webinar, we broke down and analyzed how oral argument went before the Court the same day this case is argued. Featuring:--John C. Richter, Partner, King & Spalding

On February 21, 2023, the U.S. Supreme Court heard oral argument in Gonzalez v. Google.After U.S. citizen Nohemi Gonzalez was killed by a terrorist attack in Paris, France, in 2015, Gonzalez’s father filed an action against Google, Twitter, and Facebook. Mr. Gonzalez claimed that Google aided and abetted international terrorism by allowing ISIS to use YouTube for recruiting and promulgating its message. At issue is the platform’s use of algorithms that suggest additional content based on users’ viewing history. Additionally, Gonzalez claims the tech companies failed to take meaningful action to counteract ISIS’ efforts on their platforms.The district court granted Google’s motion to dismiss the claim based on Section 230(c)(1) of the Communications Decency Act, and the U.S. Court of Appeals for the Ninth Circuit affirmed. The question now facing the Supreme Court is does Section 230 immunize interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limit the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information?In this recorded webinar, Erik Jaffe broke down oral argument in this case.Featuring:--Erik S. Jaffe, Partner, Schaerr | Jaffe LLP

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this episode are included below.Gonzalez v. Google (February 21) - Telecommunications; Whether Section 230(c)(1) of the Communications Decency Act allows social media companies to make targeted recommendations of information provided by another content provider, or only limits the liability of such services when they engage in traditional editorial functions. Twitter v. Taamneh (February 22) - Telecommunications; Whether a defendant providing generic services “knowingly” provided substantial assistance to terrorists using the platform under 18 U.S.C. § 2333 because it allegedly could have taken more “meaningful” or “aggressive” action to prevent such use.Dubin v. United States (February 27) - Criminal Law; Whether a person commits aggravated identity theft any time they mention or otherwise recite someone else’s name while committing a predicate offense.New York v. New Jersey (February 27) - Whether the Supreme Court should issue declaratory judgment and/or enjoin New Jersey from withdrawing from its Waterfront Commission Compact with New York, which grants the Waterfront Commission of New York Harbor broad regulatory and law-enforcement powers over all operations at the Port of New York and New Jersey.Biden v. Nebraska (February 28) - Federalism, Administrative Law; (1) Whether six states have Article III standing to challenge the Department of Education's student-debt relief plan; and (2) whether the plan exceeds the secretary of education's statutory authority or is arbitrary and capricious.Department of Education v. Brown (February 28) - Federalism; (1) Whether two student-loan borrowers have Article III standing to challenge the Department of Education's student-debt relief plan; and (2) whether the department's plan is statutorily authorized and was adopted in a procedurally proper manner.Featuring: --Karen Harned, President, Harned Strategies LLC--John Richter, Partner, King & Spalding--Prof. Adam Candeub, Professor of Law & Director of the Intellectual Property, Information & --Communications Law Program, Michigan State University--Moderator: Robert S. Driscoll, Shareholder, Reinhart Boerner Van Deuren s.c.

Section 706 of the Administrative Procedure Act instructs courts to "set aside" agency action that is unlawful. These two words—"set aside"—have sparked much debate among lawyers, jurists, and scholars. In particular, administrative law enthusiasts disagree about whether the "set aside" language means that courts must enter universal injunctions against unlawful regulations. Some suggest that "set aside" contemplates wholesale invalidation of regulations. Others take the position that the scope of the "set aside" remedy is more limited. In United States v. Texas, which is before the Supreme Court this term, the Court is set to decide whether the "set aside" language requires universal vacatur of regulations. In advance of the Court's ruling, this teleforum panel discussed discuss this difficult question.Featuring:--Hon. Beth A. Williams, Member, United States Privacy & Civil Liberties Oversight Board, Professorial Lecturer in Law at the George Washington University Law School, and former Assistant Attorney General for the Office of Legal Policy, United States Department of Justice--Prof. John Harrison, James Madison Distinguished Professor of Law and Thomas F. Bergin Teaching Professor at the University of Virginia School of Law--Prof. Ron Levin, William R. Orthwein Distinguished Professor of Law at the Washington University in St. Louis School of Law--[Moderator] Judge Steven J. Menashi, U.S. Court of Appeals for the Second Circuit