FedSoc Forums

On June 30, 2022, the Supreme Court decided Biden v. Texas.In a 5-4 decision, the Court ruled that the Biden administration can end the Migrant Protection Protocols (MPP), an immigration enforcement program put in place under the Trump administration.Under MPP (colloquially known as "Remain in Mexico"), many individuals seeking asylum in the United States after entering via the southern border were sent back to Mexico to await their court dates. Soon after taking office President Biden sought to end the program, but the administration was ordered to continue enforcing the Protocols by a federal district court and the Fifth Circuit Court of Appeals.Please join Professor Ilya Somin as he breaks down the ruling and its implications for immigration policy and administrative law.Featuring:Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University---To register, please click the link above

On June 30, 2022, the Supreme Court decided West Virginia v. EPA. In a 6-3 decision, the Court held that EPA exceeded its authority under Clean Air Act Section 111 when it issued the 2015 Clean Power Plan, which sought to control carbon dioxide emissions from existing fossil fuel-fired power plants by imposing limits based on a “system” of shifting power generation away from fossil fuels and towards renewable fuels at the grid-wide level. Although the Supreme Court stayed the Clean Power Plan in February 2016 before it could take effect, the Court’s decision in West Virginia v. EPA was the first time it pronounced on the Plan’s merits.This case is a major development in administrative law. For the first time, a majority opinion of the Supreme Court used the phrase “major questions doctrine” to describe its methodology. The Court determined that the Clean Power Plan dealt with issues of such “economic and political significance” that it required a clear statement of Congressional intent to authorize this specific type of action. Because the CAA contains no such clear statement, the Clean Power Plan was unlawful.Justice Gorsuch, joined by Justice Alito, wrote a concurring opinion expanding on the “major questions doctrine” and its relationship to the constitutional principle of non-delegation. Justice Kagan, joined by Justices Breyer and Sotomayor, wrote a dissenting opinion arguing the Court improperly placed “major questions” at the beginning of its statutory analysis—instead of conducting a traditional Chevron-style textual inquiry and concluding with “major questions.” Further, the dissent states that Congress provided EPA with the authority to require “generation shifting” in the CAA’s use of broad language authorizing the Agency to identify a “system of emission reduction” to address air pollution.Please join our legal experts to discuss the case, the legal issues involved, and the implications going forward.Featuring:David Fotouhi, Partner, Gibson, Dunn & Crutcher LLP, former Acting General Counsel, EPAJustin Schwab, Founder, CGCN Law; former Deputy General Counsel, EPA.Moderator: Garrett Kral, Associate Member of the Environmental Law & Property Rights Practice Group’s Executive Committee; former Special Advisor for Oversight, EPA.

Americans have been privately manufacturing and assembling firearms since before this country’s founding. Now, thanks to the prevalence of commercially available firearm parts, “buy, build, shoot” kits, and 3D printers, it is easier than ever to build a gun in the comfort of one’s own home, which bypasses many of the statutory and regulatory regimes that govern buying a fully built firearm from a gun store. To some, this represents a loophole in America’s gun laws. Others see this as a modern innovation in the tradition of home gun building that has always existed in America. The Biden Administration shares the former view. On April 11, 2022, Attorney General Merrick Garland signed ATF Final Rule 2021R-05F. Among other measures, this rule changes the ATF’s definition of “firearm frame or receiver” found in the Gun Control Act of 1968, greatly expanding the list of what is considered a firearm by the agency, and therefore what can be strictly regulated under existing federal law. Furthermore, both houses of Congress currently have bills before them designed to increase the regulation of homemade firearms, and to ban certain types of these so-called “ghost guns”. In this timely webinar, our experts will cover the ATF’s Final Rule, set to go into effect on August 24, 2022, and will discuss the legal and political implications surrounding homemade firearms and the regulation thereof. Featuring:--Matthew Larosiere, Director of Legal Policy at Firearms Policy Coalition--Dru Stevenson, Wayne Fisher Research Professor, Professor of Law, South Texas College of Law Houston --Moderator: Ryan Lacey, Assistant Director, Practice Groups, The Federalist Society

Who decides the rules for federal elections? The Constitution generally assigns that power to the “Legislature” of each state, but state courts are playing an increasing role. Recent elections have witnessed an increase in decisions applying broad provisions of state constitutions to override election laws and congressional maps adopted by legislators. That is what happened in Moore v. Harper, which the Supreme Court will hear in its upcoming term. Recently North Carolina gained a House seat, and its legislature adopted a new district map. The state’s supreme court deemed that map a partisan gerrymander and substituted in its place the court’s own map. That result, it concluded, was required by four separate parts of the state constitution, including clauses protecting the “freedom of speech” and guaranteeing “free” elections. Although the Supreme Court denied an emergency request to block that ruling for the 2022 election, it agreed to take the case to answer the broader question of state-court authority over the laws governing federal elections. Supporters of legislature primacy—often called the “independent state legislature” doctrine—say that a decision enforcing the doctrine will cut back on election-litigation gamesmanship, end the disruption of last-minute rule changes, and put primary responsibility back in the hands of democratically accountable legislators. Opponents, however, say that a decision for the state would threaten voting rights and democracy itself. Their Exhibit A: the Trump campaign’s failed strategy to convince state legislatures to overrule voters in the 2020 presidential election. This webinar will provide an overview of the legal debate, background on the Moore case, and discussion of the key issues and controversies that the Court will confront. Featuring: Andrew M. Grossman, partner at Baker & Hostetler LLP, co-leader of the firm’s Appellate and Major Motions practice, and Adjunct Scholar at the Cato Institute --- To register, click the link above

The EEOC is denying employers’ FOIA requests for the EEOC’s charge investigation files when resulting employment claims are proceeding in arbitration rather than litigation. Our panel will discuss whether the EEOC’s justifications for denying such FOIA requests are consistent with FOIA and other governing federal statutes. We will consider a number of related issues. What is the EEOC’s basis for treating litigation and arbitration differently in responding to employers’ FOIA requests? How long has the EEOC been making this distinction between litigation and arbitration? In light of the increasing prevalence of employment arbitration, should employers challenge the EEOC’s FOIA practices and, if so, how?Featuring:--Janet Dhillon, Commissioner, EEOC--Eric Dreiband, Partner, Jones Day--Moderator: Christopher C. Murray, Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart

Join us on July 27 to hear three experts give a response to our April 26th event on The America Invents Act and the role of Patent Trial and Appeal Board in resolving patent disputes. Featuring:--Prof. Thomas D. Grant, Senior Research Fellow (Wolfson College); Fellow (Lauterpacht Centre for International Law), Faculty of Law, University of Cambridge--Prof. F. Scott Kieff, Fred C. Stevenson Research Professor of Law and Director, Planning and Publications, Center for Law, Economics, & Finance, George Washington University Law School--Moderator: Hon. Paul Michel, U.S. Court of Appeals, Federal Circuit (ret.)

With billions of dollars allocated to broadband funding in the Infrastructure Investment and Jobs Act, the future of the FCC’s Universal Service Fund (USF) is a hotly debated topic. Now, with multiple lawsuits challenging the very legality of the USF contribution system, as well as new guidance from the Supreme Court on the limits of federal agencies’ power, the future of the Fund hangs in the balance. Join industry experts to discuss the issues raised in Consumers’ Research v. FCC and where the lawsuits stand in the aftermath of West Virginia v. EPA.Featuring:Robert Frieden, Emeritus Professor of Telecommunications and Law, Penn State UniversityHarold Furchtgott-Roth, Senior Fellow and Director, Center for the Economics of the Internet, Hudson InstituteMichael Romano, Sr. VP of Industry Affairs and Business Development, NTCA – The Rural Broadband AssociationModerator: Arielle Roth, Legislative Counsel, U.S. Senator Roy Blunt

The continuous stream of regulations and other guidance the Internal Revenue Service (IRS) must publish to inform the public how it is going to implement, administer, and enforce the frequent, numerous, and complicated changes to the tax laws, along with the high dollar stakes involved, create constant opportunities and incentives to challenge the IRS. Some contend that the IRS’s ability to defend itself against these challenges seems to be vanishing as one after another the IRS has lost a string of recent challenges to its guidance. A recent blog post summarizes some of these defeats. Our speakers will discuss them in more detail, along with what they might portend for how the Internal Revenue Service and the Treasury Department issue future guidance. Another direction to watch is at the other end of Pennsylvania Avenue: will Congress begin to do a better job drafting laws and providing instructions and guidance about how they are to be implemented, administered, and enforced? Featuring:--Kristin Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School--Gilbert Rothenberg, Adjunct Professor of Law, American University's Washington College of Law and the University of Pennsylvania's Carey Law School--Interlocutor: Robert Carney, Senior Counsel, Caplin & Drysdale; Adjunct Professor of Law, Georgetown Law--Moderator: Eileen O'Connor, Founder, Law Office of Eileen J. O'Connor PLLC

What can the government do to counter "disinformation" or other statements that it believes to be false? The Supreme Court famously protected some false defamatory statements in New York Times Co. v. Sullivan and extended that holding, in United States v. Alvarez, that the First Amendment prevented the government from punishing a speaker from falsely claiming to have won military honors. Yet other false statements, such as fraud and perjury, may be punished, and recently the question of the government's power to limit false speech has assumed more prominence. In response to the Capitol attack of January 6, 2021 and President Trump's claims that the 2020 election was stolen, the governor of Washington State proposed a law punishing false speech that was likely to lead to violence. Elsewhere controversies surrounding the truth of COVID-related information have arisen and the Biden Administration's Department of Homeland Security had planned to create a board to counter disinformation. Amid free-speech outcries, the proposal was set aside, but the Administration remains focused on combating disinformation. This program will feature panelists with contrasting views of the government's authority in this field and whether efforts to limit false speech represent a threat to First Amendment values. Featuring:--Harmeet K. Dhillon, Founding Partner, Dhillon Law Group Inc.--Catherine Ross, Lyle T. Alverson Professor of Law, The George Washington University Law School --Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law--Moderator: Hon. Donald Palmer, Commissioner, U.S. Election Assistance Commission

Please join the Federalist Society's Practice Groups for a virtual event on Dobbs v. Jackson Women's Health Organization. On June 24, 2022, the US Supreme Court decided this case in a 6-3 decision. The Court reversed and remanded the decision of the US Court of Appeals for the Fifth Circuit, holding that the Constitution does not confer a right to abortion; that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey are overruled; and that the authority to regulate abortion is returned to the people and their elected representatives.Justice Alito delivered the opinion of the Court. Justices Thomas and Kavanaugh filed concurring opinions. Chief Justice Roberts filed an opinion concurring in the judgment. Justices Breyer, Sotomayor, and Kagan filed a dissenting opinion.Please join our team of legal experts to discuss the significance of this case.Featuring:--Prof. Daniel Farber, Sho Shato Professor of Law, University of California - Berkeley; former law clerk, Justice John Paul Stevens--Carrie Severino, President, Judicial Crisis Network; former law clerk, Justice Clarence Thomas--Moderator: Hon. Thomas B. Griffith, former Circuit Judge, U.S. Court of Appeals, D.C. Circuit--Host: Dean Reuter, Senior Vice President and General Counsel, The Federalist Society