The case of Midwest Institute of Health, PLLC v. Whitmer concerns the state-law claims (brought to the Michigan Supreme Court through the certified-question process from federal court) made in challenge to all of Michigan Governor Whitmer’s Executive Orders issued after April 30, 2020. On that date, the Michigan Legislature refused to extend Governor Whitmer’s emergency declaration. She asserted this denial was irrelevant under Michigan’s 1945 Emergency Powers of Governor Act, which unlike Michigan’s 1976 Emergency Management Act, does not have an explicit mechanism permitting the Legislature to terminate an emergency declaration. Governor Whitmer has issued around 175 COVID Executive Orders and almost all of the 41 still-active ones were issued after April 30, 2020. Plaintiffs focused their argument on the statutory construction concept of constitutional avoidance – specifically that if read in the manner that the Governor claimed, the 1945 EPGA would violate the 1963 Michigan Constitution’s separation of powers provision as it would be an unlawful delegation.

— Patrick J. Wright, Vice President for Legal Affairs, Mackinac Center for Public Policy

In Epic Systems Corp. v. Lewis, the Supreme Court confirmed that federal law permits employers to include class action waivers in employment arbitration agreements. In the wake of that decision, employers have increasingly adopted arbitration programs to gain the benefit of class action waivers. Employee-side class action attorneys have responded by filing “mass arbitrations” as a substitute for traditional class actions. Mass arbitrations can involve hundreds or even thousands of individual arbitrations filed simultaneously. Our panel will review the increasing use of the mass-arbitration approach from the perspective of employer-side and employee-side attorneys. In addition, the panel will discuss proposals for modifying arbitration procedures to accommodate mass arbitrations, including, in particular, the new Mass Arbitration Protocol released by the International Institute for Conflict Prevention and Resolution.

— Allen Waxman, President & CEO, International Institute for Conflict Prevention and Resolution (CPR)
— David E. Gottlieb, Partner, Wigdor LLP
— Moderator: Christopher C. Murray, Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Now six months into the COVID pandemic, the Internet has offered Americans a welcome economic, educational and sometimes even psychological lifeline to weather the crisis. Given Americans’ increased reliance on broadband, politicians on both sides of the aisle are now actively campaigning on the issue of expanding broadband deployment. Republicans are focusing on promoting private-sector deployment, while Democrats are pushing for the expansion of government-owned networks (“GONs”).
While the debate over the merits of municipal broadband is nothing new, what has been missing from the debate over the years is a cohesive legal and economic analysis to frame the discussion. A new 100-page study recently published in the Federal Communications Law Journal attempts to fill that gap. To explore this important topic in detail, we will be joined in this teleforum by two of the authors of this new study to discuss their findings.

Note: The full paper, The Law and Economics of Municipal Broadband, 73 Federal Communications Law Journal 1 (2020) may be downloaded here.

Section 230 of the Communications Decency Act provides liability protection to platforms, internet service providers, and other online intermediaries for third-party content they host or republish. It also provides liability protections for actions taken “in good faith” by such entities to moderate content. Section 230 has recently come under scrutiny from President Trump, members of Congress, and others who have raised questions about the appropriateness of these protections and their continued viability “in the Age of Twitter.”

In May, President Trump issued an Executive Order that directed the National Telecommunications and Information Administration (NTIA) to file a petition for rulemaking with the Federal Communications Commission (FCC) proposing regulations to clarify the scope of Section 230. The FCC is currently soliciting public comment on the NTIA petition, which was filed on July 27.

Join us as Mike Pompeo, the U.S. Secretary of State, discusses the priorities and work of his office before, during and after COVID-19.

— Hon. Michael R. Pompeo, U.S. Secretary of State

On Monday, the Supreme Court released its decision in United States Agency for International Development v. Alliance for Open Society International. By a vote of 5-3, the judgment of the U.S. Court of Appeals for the Second Circuit is reversed. The justices held that the enforcement of a law requiring foreign affiliates of domestic groups receiving funds to fight HIV/AIDS to have a policy opposing prostitution and sex trafficking does not violate the First Amendment. Justice Kavanaugh’s majority opinion was joined by the Chief Justice and Justices Thomas, Alito, and Gorsuch. Justice Thomas also filed a concurring opinion. Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor. Justice Kagan took no part in the consideration or decision of the case. Our speakers will discuss the decision and its implications.

— Casey Mattox, Senior Fellow, Free Speech and Toleration, Charles Koch Institute
— Krystal B. Swendsboe, Associate, Wiley Rein LLP

In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Supreme Court decided the constitutionality of the CFPB, an agency long criticized not just by the business community but also constitutional scholars who see major problems a single-director agency seemingly unaccountable to the president or anyone else. The lawsuit was brought by a law firm that assists in resolving personal-debt issues, among other legal work that puts it in the crosshairs of those who want greater regulation of consumer-facing financial services. The CFPB is the most independent of independent agencies, with power to make rules, enforce them, adjudicate violations in its own administrative hearings, and punish wrongdoers. It doesn’t need Congress to approve its budget, because its funding requests are met by another agency insulated from political control: the Federal Reserve. Even CFPB supporters concede that the CFPB structure and authority is unique. John Eastman and Brian Johnson join us to discuss the Supreme Court’s decision and the greater implications.

— John Eastman, Henry Salvatori Professor of Law and Community Service and Director, Center for Constitutional Jurisprudence, Chapman University Fowler School of Law
— Brian Johnson, Partner, Alston & Bird

John Malcolm and John Yoo continue their Teleforum series, joining us to discuss recent events including updates on the Michael Flynn case, the Supreme Court decision on DACA, recent unrest and free speech issues, and more.

— 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 School of Law

On June 29, 2020, the Supreme Court issued its first major abortion decision on the merits since Justice Anthony Kennedy’s retirement. The consolidated cases, June Medical Services v. Russo and Russo v. June Medical Services, involved the constitutionality of Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital, and whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations, such as Louisiana’s admitting privileges law, on behalf of their patients. The plurality opinion held that the abortion providers had standing and Louisiana’s law was unconstitutional because it imposed an undue burden. This teleforum will discuss this opinion, as well as Chief Justice Roberts’ concurrence, the four dissents, and the decision’s implications.

— Steven H. Aden, Chief Legal Officer & General Counsel, Americans United for Life

Nigel Farage has been campaigning for Britain’s withdrawal from the European Union since 1999, when he founded the UK Independence Party, which got more votes in the 2014 European elections than either the Labour or Conservative Parties. Farage then played a leading role as advocate for the “leave” side in the 2016 UK referendum on EU membership. He followed up by organizing a new Brexit Party to keep up pressure for full withdrawal in subsequent UK elections. Farage has been a frequent commentator on FOX NEWS and hosts his own program on British radio station LBC. In this Teleforum, Mr. Farage will address current developments in Britain and the EU but also talk about nationalist and populist trends in the U.S. and other countries.

— Nigel Farage, Former Member of the European Parliament, South East England Constituency
— Moderator: Prof. Jeremy A. Rabkin, Professor of Law, Antonin Scalia Law School, George Mason University

The Insurrection Act of 1807 empowers the President of the United States to deploy U.S. military and National Guard troops inside the United States in certain circumstances. But what are the limits of this Presidential power; does does the Insurrection Act narrow the powers granted to the President under the Constitution, or is it perfectly compatible with the Constitution? Who decides the precise scope of these powers? Can a governor or state legislature reject the offer for help or assertion of power?

— 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 School of Law

Three cases before the Supreme Court consider the ability of grand juries and congressional committees to subpoena the personal tax records of the President. In Trump v. Mazars USA and Trump v. Deutsche Bank, three House committees subpoenaed the President’s tax records. In Trump v. Vance, a local grand jury has subpoenaed these tax documents as well. There are several issues at play in determining if these subpoenas are valid.

Starting with the Congressional subpoenas, the President claims that these subpoenas are for information protected under the Right to Financial Privacy Act, which prohibits disclosure of a customer’s financial records to “any Government authority” without certain procedures the committees concede they did not follow; but the committees claim that they are not a “Government authority” under the meaning of the Act. Secondly, the President claims the Internal Revenue Code, which allows disclosure but only with procedural requirements the committees admit that they have not done. But the committees claim this requirement only applies if the bank acquired the tax documents from the IRS. Third, the President claims there is no legitimate legislative purpose to the subpoena which is required for such a legislative subpoena. The committees note that although that requirement exists, the scope of what is within a proper legislative purpose is very broad and met in this case.

COVID-19 has disrupted the world like few other events in recent history. The disruptions are sure to lead to disagreements and serious legal disputes. As matters are sorted out in courts across the country, how should and how will science and expert testimony be used? How will the ‘battle of experts’ be engaged in the courts? Will standards of expertise change in either direction, either in sympathy for people who have suffered, or in anticipation of opportunistic plaintiffs seeking a payout?

— Mark A. Behrens, Partner and Co-Chair, Public Policy Group, Shook Hardy & Bacon LLP
— Jeff Stier, Senior Fellow, Taxpayers Protection Alliance

Paul Atkins, Patomak Global Partners CEO, and banking consultant Bert Ely will discuss the numerous programs Congress, in response to the COVID-19 pandemic, has directed the Federal Reserve to implement to provide financial support to America’s financial institutions, state and local governments, and the broader economy. Much of this support will consist of the Fed purchasing bonds and other debt instruments, which could balloon the Fed’s balance to a record size. Some of these support programs were undertaken after the 2008 financial crisis; others have never been tried before. Paul and Bert will also offer their views as to how these programs might play out, and their potential longer term impacts on the U.S. financial system and the broader economy – all of which is taking place in an election year. The latter portion of this one-hour teleforum will be open for comments and questions from participants.

— Paul Atkins, CEO, Patomak Global Partners
— Bert Ely, Principal, Ely & Company Inc.

Shut-down orders issued by state governors amid the COVID-19 pandemic and federal responses to the pandemic such as the CARES Act raise a range of issues related to religious freedom. Join us for this teleforum that will discuss the constitutional and statutory issues raised by these measures, including religious exemptions and participation by religious institutions in federally funded relief programs.

— Kim Colby, Director of the Center of Law and Religious Freedom, Christian Legal Society
— Prof. Michael P. Moreland, University Professor of Law and Religion and Director of the Eleanor H. McCullen Center for Law, Religion and Public Policy, Villanova University Charles Widger School of Law

First appearing in a 1949 dissent authored by Justice Robert H. Jackson, the phrase “the Constitution is not a suicide pact” is being cited today by critics of perceived government overreach. Local, state, and federal authorities have directed citizens to self-isolate to prevent the spread of COVID-19, causing the biggest economic shutdown in modern history. Part of the effort to “flatten the curve,” these initially voluntary quarantines are quickly becoming legal mandates in certain states (and nations across the world). In California and New York, people violating stay-home orders for non-essential activities have been ticketed and cited with misdemeanors. Is there a point at which these restrictions on travel and assembly violate the rights inherent in America’s constitutional order? Many legal scholars agree the chief executive has quasi-wartime powers during national pandemics, but is there a limiting principle or expiration date? Join Professors Richard Epstein and Anthony Kreis as they discuss the viral menace and civil liberties in this Teleforum.

— Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
— Prof. Anthony Kreis, Visiting Assistant Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology

Conversation with the chairman of the Federal Communications Commission, Ajit Pai.

A coronavirus outbreak is raising attention and concern worldwide. Dr. Jennifer Nuzzo and Prof. Lawrence Gostin will discuss the outbreak. What can be done about it? What do we know, and what remains unknown? Join the call to learn about the law and policy options available against this urgent national security crisis.

Dr. Nuzzo is an epidemiologist and Senior Scholar at the Johns Hopkins Center for Health Security. Her work focuses on outbreak detection and response. Dr. Nuzzo has advised national governments on pandemic planning efforts, and also worked as a public health epidemiologist for the City of New York.

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, and to occupy the property for use by the owner and his or her family.

A lawsuit filed last year asserts that the New York law—including 2019 amendments that significantly increased the restrictions on property owners—violates due process and effects both physical and regulatory takings of the property that it regulates. New York City, New York State, and tenant advocacy groups have moved to dismiss the action.

On February 24, 2020, the Supreme Court will hear argument in two consolidated cases, U.S. Forest Service v. Cow Pasture River Assn. and Atlantic Coast Pipeline Assn. v. Cow Pasture River Assn., in which the Fourth Circuit invalidated the permit for construction of a multi-billion-dollar natural gas pipeline that crosses the Appalachian Trail on Forest Service land in Virginia. The issue is which, if any, federal agency can authorize construction that impacts the Trail, which crosses private, state and federal land from Georgia to Maine and operates under a host of statutes, regulations and private agreements. The case is a textbook study in legislative interpretation, congressional intent and private-public cooperative agreements.

Our presenters will be two of the lawyers who filed amicus briefs for parties directly impacted by the case. Keith Bradley, counsel for the Appalachian Trail Conservancy, is a partner with the Squire Patton Boggs firm in Denver and former counsel with the Department of Energy, where he was lead lawyer on implementation of the Iran nuclear deal. Tom Jensen is a partner with Perkins, Coie in Washington, D.C. He formerly served as the majority counsel to the U.S. Senate Committee on Energy and Natural Resources and was the associate director for natural resources on the White House Council on Environmental Quality. Roger Marzulla, partner at Marzulla Law in Washington, D.C. and former head of the U.S. Justice Department’s Environment and Natural Resources Division, will moderate.