Under the Family Smoking Prevention and Tobacco Control Act, the FDA must approve new tobacco products. Wages and White Lion Investments (dba Trion Distribution) and Vapetasia manufacture and sell flavored nicotine-containing liquids for use in refillable e-cigarette systems. They applied for FDA approval in 2020; about ten months later the FDA announced new requirements for approval and, based on those requirements, denied the applications citing the deficiency. The manufacturers challenged the denial and the Fifth Circuit, sitting en banc, found the FDA’s actions were arbitrary and capricious.
SCOTUS granted the FDA’s cert petition and the court heard oral argument on Monday, December 2. Join us in discussing the argument and considering which way the Court might take this.
Featuring:

Misha Tseytlin, Partner, Troutman Pepper Hamilton Sanders LLP
Moderator: Hon. Jennifer Perkins, Arizona Court of Appeals, Division One

This past April, the Department of Education published a 423-page final rule amending its implementing for Title IX, which prohibits sex discrimination in federally-funded education programs and activities, with certain, important exceptions. The new rule was consistent with an order issued by President Biden on his first day in office that the Supreme Court’s 2020 decision in Bostock v. Clayton County be applied across the entire federal government.
Shortly after the new rule issued, at least ten separate lawsuits challenging it were filed by states, school districts, and parental rights groups in various federal jurisdictions. Thus far, the lawsuits have been uniformly successfully, with the rule now preliminarily enjoined in 26 states and numerous additional school districts. As oral argument is set to begin in the circuit courts on the government’s appeal, this webinar will review this litigation’s history, as well as preview its future, including what it might say about Bostock applicability outside of Title VII.
Featuring:

Donald A. Daugherty, Senior Counsel, Litigation, Defense of Freedom Institute

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.

Food and Drug Administration v. Wages and White Lion Investments, LLC (December 2) – Federalism & Separation of Powers; Issue(s): Whether the court of appeals erred in setting aside the Food and Drug Administration’s orders denying respondents’ applications for authorization to market new e-cigarette products as arbitrary and capricious.
U.S. v. Miller (December 2) – Bankruptcy; Issue(s): Whether a bankruptcy trustee may avoid a debtor’s tax payment to the United States under 11 U.S.C. § 544(b) when no actual creditor could have obtained relief under the applicable state fraudulent-transfer law outside of bankruptcy.
Republic of Hungary v. Simon (December 3) – International Law & Financial Services; Issue(s): (1) Whether historical commingling of assets suffices to establish that proceeds of seized property have a commercial nexus with the United States under the expropriation exception to the Foreign Sovereign Immunities Act; (2) whether a plaintiff must make out a valid claim that an exception to the FSIA applies at the pleading stage, rather than merely raising a plausible inference; and (3) whether a sovereign defendant bears the burden of producing evidence to affirmatively disprove that the proceeds of property taken in violation of international law have a commercial nexus with the United States under the expropriation exception to the FSIA.
U.S. v. Skrmetti (December 4) – Federalism & Separation of Powers& SOGI; Issue(s): Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the equal protection clause of the 14th Amendment.
Kousisis v. U.S. (December 9) – Environmental Law & Financial Services; Issue(s): (1) Whether deception to induce a commercial exchange can constitute mail or wire fraud, even if inflicting economic harm on the alleged victim was not the object of the scheme; (2) whether a sovereign’s statutory, regulatory, or policy interest is a property interest when compliance is a material term of payment for goods or services; and (3) whether all contract rights are “property.”
Feliciano v. Department of Transportation (December 9) – Federal Employment Law; Issue(s): Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.
Seven County Infrastructure Coalition v. Eagle County, Colorado (December 10) – Environmental Law & Financial Services; Issue(s): Whether the National Environmental Policy Act requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.
Dewberry Group v. Dewberry Engineers (December 11) – Civil Procedure; Issue(s): Whether an award of the “defendant’s profits” under the Lanham Act can include an order for the defendant to disgorge the distinct profits of legally separate non-party corporate affiliates.

Delligatti v. United States concerns whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.
Known by some as the “non-violent murder case” Delligatti ties into a larger conversation on the way “violent”/”use-of-force” crimes are defined categorically rather than on a solely case-by-case basis.
Oral Argument was heard on November 12, 2024.
Join us for this Courthouse Steps program where we break down and analyze OA and the potential outcomes of this case.
Featuring:

Robert K. McBride, Partner, Taft Stettinius & Hollister

The Atlantic City Fire Department requires all personnel who respond to fires or other emergencies to follow the proper use of an air mask when exposed to hazardous air. To ensure a proper fit, employees are prohibited from growing facial hair that could interfere with the mask seal. Plaintiff, Pastor Alexander Smith requested a religious accommodation to wear a short beard, arguing that growing the beard was an exercise of his faith and that wearing the mask was not part of his technician role in the department. This request was denied, citing safety concerns, prompting Smith to pursue legal action, alleging First Amendment, Equal Protection, and Title VII violations. However, the District Court of New Jersey ruled in favor of the fire department.

Together, the Harvard Religious Freedom Clinic and First Liberty Institute are appealing his case to the Third Circuit, with oral argument on October 30. Join Kayla Toney, who is arguing the case, and Katie Mahoney, Clinical Instructional Fellow at the Harvard Religious Freedom Clinic, as they break down the argument.
Featuring:

In September, the Department of Justice announced that it would withdraw its 1995 bank merger guidelines and apply its 2023 merger guidelines for all industries, a move that some have interpreted as signaling stricter review of bank mergers. At the same time, Congress is considering the “Credit Card Competition Act,” which purports to promote competition in the credit card network space. Join us for a discussion of these topics and their implications for consumers, competition, and the economy as well as Capital One’s proposed acquisition of Discover.
Featuring:

Prof. Todd Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason University
Sen. Patrick Toomey, Former United States Senator (PA), Ranking Member of the Senate Committee on Banking
Dr. Diana Moss, Vice President and Director of Competition Policy, Progressive Policy Institute
Moderator: Jelena McWilliams, Managing Partner and Head of the Financial Institutions Group, Cravath, Swaine, & Moore Washington, D.C. office, Former Chairman of the Federal Deposit Insurance Corporation (FDIC)

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.

Wisconsin Bell v. U.S., (November 4) – Telecommunications; Whether reimbursement requests submitted to the Federal Communications Commission’s E-rate program are “claims” under the False Claims Act.
Advocate Christ Medical Center v. Becerra, (November 5) – Medicare; Whether the phrase “entitled … to benefits,” used twice in the same sentence of the Medicare Act, means the same thing for Medicare part A and Supplemental Social Security benefits, such that it includes all who meet basic program eligibility criteria, whether or not benefits are actually received.
E.M.D. Sales v. Carrera, (November 5) – Labor & Employment; Whether the burden of proof that employers must satisfy to demonstrate the applicability of a Fair Labor Standards Act exemption is a mere preponderance of the evidence or clear and convincing evidence.
Facebook v. Amalgamated Bank, (November 6) – Corporations; Whether risk disclosures are false or misleading when they do not disclose that a risk has materialized in the past, even if that past event presents no known risk of ongoing or future business harm.
Velazquez v. Garland, (November 12) – International and National Security; Whether, when a noncitizen’s voluntary-departure period ends on a weekend or public holiday, a motion to reopen filed the next business day is sufficient to avoid the penalties for failure to depart under 8 U.S.C. § 1229c(d)(1).
Delligatti v. U.S., (November 12) – Criminal Law & Procedure; Issue(s): Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.
NVIDIA Corp. v. E. Ohman J:or Fonder AB, (November 13) – Securities; (1) Whether plaintiffs seeking to allege scienter under the Private Securities Litigation Reform Act based on allegations about internal company documents must plead with particularity the contents of those documents; and (2) whether plaintiffs can satisfy the Act’s falsity requirement by relying on an expert opinion to substitute for particularized allegations of fact.

The Federalist Society is proud to host Mark Rienzi, President of the Becket Fund and Professor of Law at the Catholic University of America, for this year’s annual discussion of Religious Liberty at the Court. This webinar will be moderated by William Saunders, Professor and Co-director of the Center for Religious Liberty at Catholic University of America. Please join us for this latest installment which will look at recent developments in religious liberty litigation and ahead to the Supreme Court’s October term.
Featuring:

Prof. Mark L. Rienzi, President, Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, Catholic University; Visiting Professor, Harvard Law School
(Moderator) Prof. William L. Saunders, Director of the Program in Human Rights, Catholic University of America

Garland v. VanDerStok concerns whether the ATF’s 2022 update to its regulations under the Gun Control Act of 1968, which clarified that federal law requirements that apply to the manufacture and sale of standard firearms also apply to “ghost guns” –readily convertible weapons parts or receiver kits– exceeds the mandate of the same. The ATF argues it simply clarified what had already been true in response to the notable rise in the use of ghost guns. The challengers, including both two individual gun owners and a gun advocacy organization, challenged the rule, alleging it exceeded the statutory authority granted to the ATF. The Court is now set to consider whether such kits constitute “firearms” and/or “frames or receivers” as regulated under the Act.
Oral argument was heard on October 8, 2024.
Join us for a Courthouse Steps Oral Argument program with litigating attorney Peter Patterson who argued on behalf of the respondents.
Featuring:

Peter A. Patterson, Partner, Cooper & Kirk

Liquefied natural gas (“LNG”) technology has enabled the United States to become the world’s largest exporter of natural gas in recent years, boosting our allies’ energy security and our own domestic economy and trade balance. Some estimates show that U.S. LNG export capacity will almost double over the next several years as facilities currently under construction come online. But LNG has met opposition from those concerned about its environmental impacts – including the Biden Administration, which announced a “pause” on approvals of LNG exports earlier this year.

The clash has made its way into the courts: In July 2024, a federal trial judge stayed the administration’s policy, and in August, the D.C. Circuit rescinded FERC’s previous authorization of two LNG projects on the Texas coast due to alleged deficiencies in its environmental analysis. Our panel of experts will discuss these recent policies and rulings, along with the broader implications of American LNG for energy security and international environmental efforts.

For many years, legal scholars have declared that the nondelegation doctrine is dead. Professor Cass Sunstein once quipped that the nondelegation doctrine had only “one good year” and more than 200 “bad ones.” But that has changed recently. In 2024, the en banc Fifth Circuit held that the Federal Communications Commision’s (FCC) Universal Service Fund is unconstitutional on nondelegation grounds. It was one of the only times since 1935 that a court has done so, and it appears that 2024 (and beyond) may turn out to be good years for the nondelegation doctrine.

Contrary to the FCC’s argument, the en banc Fifth Circuit concluded that the Universal Service Fund operates as a tax, which only Congress has the power and authority to require. Regardless of the public policy that it seeks to advance, Congress cannot delegate this power to the FCC or to any other executive branch agency. The nondelegation doctrine has not been entirely dead for the last hundred years; courts often construe statutes so as not to invalidate them under the nondelegation doctrine. The en banc Fifth Circuit rejected that approach.

In Nowhere to Live: The Hidden Story of America’s Housing Crisis, author James Burling describes the interesting history of America’s housing market. With stories going back to the Civil War, the early twentieth century, and the “urban renewal” movement of the 1950s, Nowhere to Live argues that a series of governmental mistakes helped to create a current housing crisis. Burling also proposes a solution: “not by government fiat, but through the restoration of private property rights.” Join the author and moderator Eric Claeys as they discuss these issues and the book itself.
Featuring:

James S. Burling, Vice President of Litigation, Pacific Legal Foundation
Moderator: Prof. Eric R. Claeys, Professor of Law, Antonin Scalia Law School, George Mason University

The Supreme Court recently decided that they will review a case dealing with the Clean Water Act (CWA), which prohibits the pollution of US waters without a National Pollutant Discharge Elimination System (NPDES) permit. In order to comply with the statute, the city of San Francisco was issued a permit by the Environmental Protection Agency (EPA) in 2019. The permit, however, lays down narrative limitations on the discharge of pollutants, such as anything which may “cause or contribute to a violation of any applicable water quality standard.” The city of San Francisco challenged the EPA’s permit, arguing that these restrictions “expose San Francisco and numerous permit-holders nationwide to enforcement actions while failing to tell them how much they need to limit or treat their discharges to comply with the Act.” In July 2023, the Ninth Circuit Court of Appeals rejected San Francisco’s argument, finding that the narrative limitations are not too vague but are rather important to ensuring that state water standards are met. This then prompted the city to appeal the decision to the Supreme Court.
Join this FedSoc Forum as panelists discuss varying views of this case and what the Supreme Court’s review might bring.
Featuring:

Prof. Robin Craig, Robert A. Schroeder Distinguished Professor of Law, University of Kansas School of Law
Andre Monette, Managing Partner, Best Best & Krieger LLP
Moderator: Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law and Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law

This program will provide a short introduction to the world of E-Discovery, predominantly in the civil litigation setting. Join us as Prof. Ted Hirt discusses E-Discovery and some related topics: the challenge of “big data,” how the Federal Civil Rules deal with E-discovery (including case scheduling and orders), and “proportionality.” Additionally, this program will cover topics including dealing with the client, safeguarding privileges, ways to deploy technologies in E-discovery production, and sanctions or measures for the destruction of information.
Featuring:

Prof. Ted Hirt, Professorial Lecturer in Law, George Washington University Law School