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On December 5,2022, the U.S. Supreme Court will hear oral argument in 303 Creative LLC v. Elenis. Petitioner Lorie Smith, an artist in Colorado and owner/founder of the graphic design firm 303 Creative LLC. is challenging Colorado’s Anti-Discrimination Act (CADA) on the grounds it is unconstitutional, arguing, among other things, it violates her right to free speech. Ms. Smith was looking to expand her business to include designing websites for weddings but would only design for weddings that were in line with her religious convictions, which meant she would not design websites for same-sex weddings. Further, in expanding her business, she wanted to post a message to her own professional website to communicate what wedding websites she would do, and explain her religious objections to same-sex weddings. Because 303 Creative LLC. is a business open to the public, however, it falls under CADA, which prohibits any business from discriminating against possible patrons based on a list of characteristics, one of which is sexual identity. Further, CADA defines discrimination not only as the refusal to provide goods or services but also as the promulgation of messaging that says or implies that a potential patron’s business would be unwelcome based on them possessing a protected trait. Under CADA, both the refusal to create webpages for same sex weddings and the promulgation of a message that Ms. Smith would not create such webpages, even if she is never asked so to do, would be illegal. Before any action was taken against her under CADA, Ms. Smith and 303 Creative LLC. challenged CADA in federal court, alleging its unconstitutionality. The district court granted summary judgement in favor of Colorado, and upon appeal, the Tenth Circuit affirmed that decision. Our panel of experts will break down and analyze how the Supreme Court oral argument went the same day. Featuring: Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity Prof. Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law [Moderator] Prof. Michael Dimino, Professor of Law, Widener University Commonwealth Law School

In 2018, the North Carolina General Assembly placed several constitutional amendments before voters for ratification. Voters approved the amendments, which included amendments related to voter ID and a cap on the state income tax. But in August 2022, a sharply divided Supreme Court of North Carolina held that these amendments may be invalid. The majority's opinion focused on a federal court decision issued before the amendments were placed on the ballot which declared several of the state legislative districts to be the result of an unconstitutional racial gerrymander. It concluded that the General Assembly may have lost the ability to propose constitutional amendments given the fact that many of its members were elected from unconstitutionally gerrymandered legislative districts.Our panel of experts discussed this case and considered its implications for North Carolina and states across the country.Featuring:--Jeanette Doran, President and General Counsel, North Carolina Institute for Constitutional Law--Rick Glazier, Executive Director, North Carolina Justice Center--Prof. Derek T. Muller, Ben V. Willie Professor in Excellence, University of Iowa College of Law--Moderator: Hon. Robert T. Numbers, II, U.S. Magistrate Judge, Eastern District of North Carolina

On November 28, 2022, the U.S. Supreme Court is set to hear oral argument in Percoco v. United States. Justice Scalia once commented “[t]hough it consists of only 28 words, the [honest services] statute has been invoked to impose criminal penalties upon a staggeringly broad swath of behavior.” In this case, which has potentially broad implications for the continued criminalization of politics and lobbying, the Court is asked to decide if a private citizen who holds no elective office or government employment owes a fiduciary duty to the general public sufficient to be convicted of honest-services fraud if they have informal “influence” over government decisions. Joseph Percoco was a longtime friend of New York Governor Andrew Cuomo and served as Governor Cuomo’s Executive Deputy Secretary until he decided to leave government service to manager Governor Cuomo’s reelection campaign. While he was working on Governor Cuomo’s campaign, he was paid by a New York businessman to reach out to a state agency to resolve a labor issue. According to the trial court and the Court of Appeals for the Second Circuit, this effort deprived the citizens of New York of Mr. Percoco’s honest services. According to both courts, the fact that Mr. Percoco was not a state employee was not dispositive -- what mattered was that Mr. Percoco “dominated and controlled” government business and that government officials “actually relied on” Percoco based on some “special relationship” between Mr. Percoco and the government. If upheld, the Second Circuit’s test has the potential to greatly expand the application of federal honest services charges to people engaged in politics and lobbying. This talk, featuring Mr. Gary Lawkowski, who is counsel of record for an amicus brief submitted on behalf of Citizens United, Citizens United Foundation, and the Presidential Coalition in Percoco v. United States, will break down the issues in this case and provide instant analysis on the oral argument heard by the Court. Featuring: Mr. Gary M. Lawkowski, Counsel at Dhillon Law Group and Senior Fellow with the Institute for Free Speech.

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases that will be covered are included below. Percoco v. United States (Nov. 28) - Criminal Law; whether a private citizen who can influence government decision-making owes a duty to the public, so that he can be convicted of bribery. Ciminelli v. United States (Nov. 28) - Criminal Law; whether a defendant can be convicted under the federal wire-fraud statute based on a “right to control” theory. United States v. Texas (Nov. 29) - Immigration; a challenge to the Biden administration’s policy of prioritizing certain groups of unauthorized immigrants for arrest and detention. Wilkins v. United States (Nov. 30) - Property Rights, whether the 12-year statute of limitations to bring a lawsuit under the Quiet Title Act is jurisdictional and cannot be waived. 303 Creative v. Elenis (Dec. 5) - Civil Rights; whether applying Colorado’s public-accommodation law to require an artist to speak or stay silent violates the Constitution’s free speech clause. MOAC Mall Holdings LLC v. Transform Holdco LLC (Dec. 5) - Bankruptcy; whether a provision of federal bankruptcy law limits the power of the courts of appeals over an order approving the sale of a debtor’s assets. Bartenwerfer v. Buckley (Dec. 6) - Bankruptcy; whether a bankruptcy debtor can be held liable for another person’s fraud. Moore v. Harper (Dec. 7) - Election Law; whether a state supreme court’s order invalidating a state’s congressional map and ordering the state to draw a new one violates the Constitution’s elections clause. Featuring: Andrew Grossman, Partner, Baker & Hostetler LLP; Adjunct Scholar, The Cato Institute Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity Network Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University Moderator: Samuel D. Adkisson, Associate Attorney, Gibson Dunn

The Justice Department recently announced the issuance of a revised internal policy for charging cases brought under the Computer Fraud and Abuse Act (CFAA), our nation's main computer crime statute. This revised policy was issued in the wake of the Supreme Court case of United States v. Van Buren, which held that the CFAA’s “exceeds authorized access” provision does not cover those who have improper motives for obtaining information that is otherwise available to them. Additionally, the new DOJ policy for the first time directs federal prosecutors that good-faith security research should not be charged under the CFAA, but also acknowledges that claiming to be conducting security research is not a free pass for those acting in bad faith. Does the new DOJ charging policy strike a reasonable balance between privacy and law enforcement interests? Do its protections for security research go far enough, or do they extend too far? In the wake of Van Buren and this policy, does the federal government have adequate tools to address insider threats, especially where such threats are focused on invasions of privacy and confidentiality instead of being motivated by financial gain?Join us as our panel of experts break down these questions. Featuring:--Prof. Orin Kerr, Willam G. Simon Professor of Law, University of California, Berkeley School of Law --Prof. Michael Levy, Adjunct Professor of Law, Penn Carey Law, University of Pennsylvania --[Moderator] John Richter, Partner, King & Spalding

On November 8, 2022, the U.S. Supreme Court will hear oral argument in Mallory v. Norfolk Southern Railway. Petitioner Robert Mallory, a Virginia resident, sued Virginia-based Norfolk Southern in sued in the Court of Common Pleas, the court of general jurisdiction in Pennsylvania, claiming that exposure to carcinogens while working for the company caused him to develop colon cancer. According to his complaint, Mallory was exposed to harmful carcinogens while employed by Defendant in Ohio and Virginia between 1988 through 2005. He did not allege that he suffered any harmful occupational exposures in Pennsylvania but sued in Pennsylvania court on a theory that the court could exercise jurisdiction over the Virginia company because it had registered to do business in Pennsylvania. Under Pennsylvania law, a foreign corporation “may not do business in this Commonwealth until it registers” with the Department of State of the Commonwealth. State law further establishes that registration constitutes a sufficient basis for Pennsylvania courts to exercise general personal jurisdiction over that foreign corporation. Norfolk Southern Railway objected to the exercise of personal jurisdiction, arguing that the exercise violated the Due Process Clause of the Fourteenth Amendment. The trial court agreed and held Pennsylvania’s statutory scheme unconstitutional. The Pennsylvania Supreme Court affirmed. The Supreme Court is to decide if a state registration statute for out-of-state corporations that purports to confer general personal jurisdiction over the registrant violates the Due Process Clause of the Fourteenth Amendment. Please join us for analysis of how oral argument went before the Court. Featuring: John Masslon, Senior Litigation Counsel, Washington Legal Foundation. Associated Blog Post: Mallory v. Norfolk Southern: Oral Argument Preview --- To register, click the link above.

In one of its most significant separation of powers opinions, the U.S. Supreme Court decided Humphrey’s Executor v. United States 87 years ago, in which it held that President Roosevelt’s authority to remove a commissioner that his predecessor nominated and the Senate confirmed to the Federal Trade Commission was not “illimitable” under the Constitution. The Court held that the President’s discretion to remove the commissioner based on his differing policy views was bounded by the Federal Trade Commission Act’s limitation on removal only for "inefficiency, neglect of duty, or malfeasance in office." Humphrey’s continues to have significant implications today, in cases like FTC v. Walmart (N.D. Ill.) where Walmart has argued that by virtue of Humphrey’s, the “quintessentially executive law-enforcement power” that the FTC has under its authorizing statute is unconstitutional because its commissioners are not removable at will by the President. This teleforum will analyze the contemporary implications of Humphrey’s and its continuing vitality in U.S. Supreme Court’s administrative law jurisprudence. Featuring: Gregory Dolin, Senior Litigation Counsel, New Civil Liberties Alliance Daniel Epstein, Director, Trust Ventures Roger Severino, Vice President, Domestic Policy and The Joseph C. and Elizabeth A. Anderlik Fellow, The Heritage Foundation Kimberly Wehle, Professor of Law, University of Baltimore Law School; Visiting Professor, Washington College of Law, American University [Moderator] Aram A. Gavoor, Associate Dean for Academic Affairs and Professorial Lecturer in Law, the George Washington University Law School

On November 7, 2022, the U.S. Supreme Court will hear oral argument in Michelle Cochran v. U.S. Securities and Exchange Commission. In April 2016, the Securities and Exchange Commission (SEC) brought an enforcement action against Michelle Cochran, a certified public accountant, alleging that she had failed to comply with federal auditing standards. A SEC administrative law judge (ALJ) determined Cochran had violated federal law, fined her $22,500, and banned her from practicing before the SEC for five years. The SEC adopted the ALJ’s decision, and Cochran objected. Before the SEC could rule on Cochran’s objection, the Supreme Court decided Lucia v. SEC, in which it held that SEC ALJs are officers of the United States under the Appointments Clause, who must be appointed by the President, a court of law, or a department head. In response to the Lucia ruling, the SEC remanded all pending administrative cases for new proceedings before constitutionally appointed ALJs, including Cochran’s. Cochran filed a federal lawsuit arguing that while Lucia may have addressed one constitutional issue with ALJs, it left uncorrected another problem: because SEC ALJs enjoy multiple layers of "for-cause" removal protection, they are unconstitutionally insulated from the President's Article II removal power. The district court dismissed her case for lack of subject-matter jurisdiction based on five circuit courts of appeal ruling that the Exchange Act implicitly stripped district courts of the jurisdiction to hear challenges to ongoing SEC enforcement proceedings. Arguing that in 2010, the Supreme Court had unanimously ruled in Free Enterprise Fund that nothing in the Exchange Act stripped federal court jurisdiction either explicitly, or implicitly, Cochran appealed to the U.S. Court of Appeals for the Fifth Circuit. A three judge panel affirmed the dismissal 2-1, but later, the Fifth Circuit sitting en banc, reversed 9-7, holding that Cochran had district court jurisdiction to bring her challenge to the SEC ALJ’s removal protections. The case is set to be argued on Nov 7, 2022. We will break down the oral argument for this case on the next day, November 8, 2022. Featuring: Margaret A. Little, Senior Litigation Counsel, New Civil Liberties Alliance

In Tiwari v. Friedlander, the Petitioners ask the Supreme Court to grant certiorari to address whether the Fourteenth Amendment requires meaningful review of restrictions on the right to engage in a common occupation. The petition argues that the right to engage in a common occupation is deeply rooted in the nation’s history and tradition, but its protection has been inconsistent, sometimes leading to conflicting results across the lower courts. The petition also contends this inconsistency is caused by the standard under which courts review economic-liberty challenges— the rational basis test.The Petitioners, Dipendra Tiwari and Kishor Sapkota, challenge Kentucky’s Certificate-of-Need (CON) Law as an unconstitutional infringement on their right to earn an honest living. The CON law prevents them from opening a healthcare agency they designed to provide home services to the large community of Nepali-speaking refugees and immigrants in Louisville. By contrast, Kentucky contends that the CON law is necessary for lowering competitive pressure and increasing profits for incumbents who can pass their gains to the public.The petition raises questions about the proper articulation of the rational basis test and whether the right to engage in a common occupation is deeply rooted in history and tradition under the Court’s recent landmark decision Dobbs v. Jackson Women’s Health Organization. Which Rational Basis Test is it anyway? Is the Right to Engage in a Common Occupation Deeply Rooted in History and Tradition and does the Fourteenth Amendment Guarantee Meaningful Protection for that Right? To discuss the petition and these questions, please join the lead attorney for the Petitioners, Andrew H. Ward, attorney at the Institute for Justice, and Professor David Upham, Director of Legal Studies and Associate Professor at the University of Dallas.Featuring: --Andrew Ward, Attorney, Institute for Justice--Prof. David Upham, Director of Legal Studies & Associate Professor, University of Dallas--Moderator: Adam Griffin, Law Clerk, US District Courts

In August 2022, the Biden administration announced plans to cancel up to $20,000 in student loan debt per person for more than 40 million Americans. To do this, the Department of Education relies on the HEROES Act which, as an aid to veterans and their families, allows the government to modify student loans during times of war or national emergency. On September 27, 2022, the Pacific Legal Foundation, on behalf of Frank Garrison, filed suit against the U.S. Department of Education to block the Department’s move to cancel more than $500 billion in student loan debt. Plaintiff seeks a temporary restraining order from the U.S. District Court for the Southern District of Indiana to prevent the loan cancellation from going into effect. Mr. Garrison, as a part of an existing, congressionally authorized Public Service Loan Forgiveness (PSLF) program, will receive debt forgiveness after making 10 years of payments on his loans. The challenged program, however, will, as a result of cancelling his loans, stick him with a new state tax bill which he would not have under his existing PSLF program. Indiana is one of seven states that plans to tax any debt forgiven in Biden's plan, and thus Garrison would owe more than $1,000 in state and local taxes. This Litigation Update from Caleb Kruckenberg will provided a current look at Garrison v. U.S. Department of Education.Featuring --Caleb Kruckenberg, Litigation Counsel, Pacific Legal Foundation --[Moderator] Diana Furchtgott-Roth, Director, Center for Energy, Climate, and Environment and The Herbert and Joyce Morgan Fellow in Energy and Environmental Policy, The Heritiage Foundation