On May 27, 2021, the Sixth Circuit issued a decision in Vitolo v. Guzman. Over a dissent written by Judge Donald, the Court held that the Small Business Act of the American Rescue Plan Act created unconstitutional racial, ethnic, and gender-based priority preferences in distributing covid-relief grants to small businesses. Upon finding the plaintiffs would win on their constitutional claim, the Court granted the plaintiffs a preliminary injunction pending appeal.

Joining us to discuss is Mr. Daniel Lennington, the attorney who represented Mr. Vitolo before the Sixth Circuit.

On April 22, the Supreme Court released its decision in the case of Jones v. Mississippi. By a vote of 6-3, the judgment of the Court of Appeals of Mississippi was affirmed. The case concerns a Mississippi statute that allows imposition of a life without parole sentence, and a defendant who was a juvenile at the time of the commission of the offense. Justice Kavanaugh’s majority opinion was joined by the Chief Justice and Justices Alito, Gorsuch, and Barrett. Justice Thomas concurred in the judgment. Justice Sotomayor dissented, joined by Justices Breyer and Kagan. Marc Levin joins us to discuss the decision and its implications.

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A biracial Wisconsin couple—Konkanok Rabieba and Richard Freihoefer—is suing the state of Wisconsin over its Minority Grant Program: a state scholarship program which awards education grants to certain minorities but not to others or to whites. Although the plaintiffs’ son is half Thai, he is ineligible to apply for the Program because applications are only accepted from persons who are black, Hispanic, American Indian, or “admitted to the United States after December 31, 1975, and who either is a former citizen of Laos, Vietnam or Cambodia or whose ancestor was or is a citizen of Laos, Vietnam or Cambodia.” Rabieba and Freihoefer allege that administration of the program on this basis unconstitutionally discriminates against non-minorities and minorities not included in the program’s defined class on the basis of race and national origin in violation of the Wisconsin state constitution.

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On April 26, 2021, the Supreme Court heard oral arguments in the consolidated cases of Americans for Prosperity Foundation v. Becerra and Thomas More Law Center v. Becerra. The Court will address what level of scrutiny is necessary for a government to require the disclosure of donor lists, a disclosure which Petitioners and others argue chills the freedoms of speech and association protected by the First Amendment and is at odds with the holding in NAACP v. Alabama ex rel Patterson.

Joining us to discuss is Erik Jaffe, Partner at Schaerr | Jaffe LLP and the author of an amicus brief in the consolidated cases.

Judge Robert H. Bork’s famous work, The Antitrust Paradox, has been republished so that the new generation of general practitioners and antitrust thinkers alike can bring his work to bear on their own. Senator Mike Lee, who wrote the republished edition’s foreword, and Robert Bork, Jr., join us to discuss the book, the present state of antitrust issues, and more.

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The national conversation over transgender students’ inclusion in student athletics and school facilities has received unparalleled levels of attention in the past weeks. Some transgender advocates argue affording equal rights to transgender students requires forcing public schools to allow transgender students access to the sports team, the locker room, and the bathroom that matches the gender the trans student identifies with. Others oppose such mandatory access, arguing that treating transgender boys who identify as girls the same as biological girls undermines hard-fought women’s gains in developing women’s sports and safety-protections.

Join us for a discussion between Shannon Minter, transgender rights advocate and Legal Director of the National Center for Lesbian Rights, and Lauren Adams, noted feminist advocate and Legal Counsel at Women’s Liberation Front.

In his new book, The Hollow Core of Constitutional Theory: Why We Need the Framers, historian Donald Drakeman argues that in order to properly interpret the Constitution, one must consider the will of the lawmakers—in this case, those founding fathers who framed the charter—and, more specifically, their decisions about both the ends and the means of the provisions they designed. In the face of ascendant “public meaning” originalism, this book seeks to revive the importance of the framers’ intent in constitutional theory and interpretation.

Joining Mr. Drakeman to review his new book are two distinguished constitutional theorists, Professors Lawrence Solum of the University of Virginia and Keith Whittington of Princeton. All three will offer their views on the matters at hand in a discussion moderated by Judge Britt Grant of the 11th Circuit Court of Appeals.

Recent cyber attacks by the Russian and Chinese governments involving SolarWinds and Microsoft exposed cyber-related vulnerabilities in the supply chains of many large and small companies that rely on SolarWinds and Microsoft for their internal security and IT services, which also experienced security breaches as a result of these attacks. Two former DOJ National Security officials from the Obama and Trump administrations will discuss the impact of these attacks, possible criminal and non-criminal responses, and pros and cons of each approach.

Featuring:
— Kellen Dwyer, Adjunct Professor of Law, Antonin Scalia Law School, Former Deputy Assistant Attorney General, National Security Division
— Alex Iftimie, Partner and Co-Chair, Global Risk & Crisis Management Practice, Morrison & Foerster LLP, former Deputy Chief of Staff and Counsel to the Assistant Attorney General, National Security Division
— Moderator: Brian Lichter, Senior Director – Legal, Global Investigations & Cybersecurity Counsel, Cognizant Technology Solutions

The DOJ has charged Douglas Mackey, aka Ricky Vaughn, with conspiracy “to injure, oppress, threaten, or intimidate” people in the exercise of their constitutional rights. His crime? Using his social media platform in the months leading up to November 2016 to post memes about the Presidential election, including ones that – if taken literally – falsely state that people could vote for Hillary just by posting on Twitter and Facebook. Are such prosecutions consistent with the First Amendment? Are they authorized by federal law? Joining us to discuss is Professor Eugene Volokh, noted First Amendment scholar and the Gary T. Schwartz, Professor of Law at the UCLA School of Law, who recently wrote on the subject.

Featuring:
— Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law

In Pereida v. Wilkinson, the Supreme Court held 5-3 that an individual seeking relief from a lawful removal order under the Immigration and Nationality Act (INA) must “shoulder [the] heavy burden” of proving every element of eligibility for relief including the absence of a conviction for a crime of moral turpitude. Clemente Avelino Pereida argued on appeal that although he was recently convicted of a crime, he remained eligible for relief because he refused to disclose the nature of the crime so moral turpitude could not be proven. The Court disagreed with Pereida, siding with the Eight Circuit and finding Pereida must show the crime was not one of moral turpitude in order to be eligible for relief under the INA.

Featuring:
— Brian M. Fish, Special Assistant, United States Attorney, Baltimore, Maryland

In Brnovich v. Democratic National Committee and the consolidated case of Arizona Republican Party v. Democratic National Committee, the Supreme Court will address issues raised under Section 2 of the Voting Rights Act and the Fifteenth Amendment. Under Section 2—which restates and expands the protections of the Fifteenth Amendment—”no voting qualification or prerequisite to voting or standard, practice or procedure” may be imposed in a manner that is intentionally discriminatory or has a disparate impact on a racial or language minority.

In this case, the DNC challenged two of Arizona’s voting procedures: discarding out-of-precinct provisional votes where the ballot itself was filled out properly and disallowing third parties to collect and deliver completed vote-by-mail ballots. The DNC argued the provisional ballot rule has a disparate impact on African American, Native American, and Hispanic citizens and the ban on third party delivery was enacted with discriminatory intent. On appeal, the Arizona Republican Party challenges the Ninth Circuit’s finding of discriminatory intent and argues that race neutral and generally applicable voting laws which offer all citizens an equal opportunity to vote do not violate Section 2. Although Arizona won at the District Court level and a three judge panel of the Ninth Circuit affirmed, the Ninth Circuit reheard en banc and reversed, finding the District Court clearly erred.

During the last weeks of the Trump Administration’s Treasury Department, the Financial Crimes Enforcement Network (FinCen) unveiled a rule that received more comments than any other proposal in FinCen’s history.  Over seven thousand commentors weighed in, despite only a 15-day comment-period stretching over the Christmas and New Year’s Day holidays. The proposed rule would impose certain Bank Secrecy Act reporting requirements on unhosted virtual currency wallets.  (An unhosted wallet is the digital equivalent of a physical wallet, whereas a hosted wallet is the equivalent of a brokerage account.)  Opponents argued that the proposed rule violated privacy rights, was ineffective, inhibited innovation, and violated the Administrative Procedures Act. Proponents asserted the proposed rule and its abbreviated review period were necessary to limit money laundering, and other illicit activity.

This disagreement represented a shift in positioning between the virtual currency industry and the regulators.  Previously, many virtual currency adherents had argued its unique characteristics made standard regulations inapplicable.  Regulators generally disagreed, imposing traditional financial regulatory frameworks such as the Howey-test, know-your-customer, and money transmitter requirements.  Now virtual currency advocates claimed they were being singled out unfairly, and instead should be treated as their equivalents in the traditional financial system.  Regulators argued that the unique characteristics of virtual currency justified a more stringent approach.  This debate has significant consequences for the scope of government, combatting terrorism and other unlawful activity, personal privacy, and the future of money.

After living in relative obscurity since its passage in 1996, the Congressional Review Act caught the nation’s attention in 2017 when a Republican-led Congress and newly-elected President Trump used it to overturn 14 “midnight” regulations issued at the end of the Obama administration. Some prominent Democratic lawmakers opposed the CRA’s framework as well as its individual uses in 2017. Will roles be reversed in 2021 regarding Trump administration “midnight” regulations? Can they be completely reversed? The teleforum will review the mechanics and overriding purposes of the CRA. The technical elements include the law’s expedited congressional procedures, the types of actions covered, time frames for disapprovals, number of votes needed to overturn an action, and the consequences of disapproval.

Featuring:
— Todd F. Gaziano, Chief of Legal Policy and Strategic Research and Director, Center for the Separation of Powers, Pacific Legal Foundation
— Moderator: Prof. Susan E. Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, The George Washington University

While China is the paramount strategic priority for the United States, the Middle East remains a region of significance for U.S. national security interests. The Trump administration prioritized pressure on Iran, efforts to reduce the number of U.S. military personnel in Iraq and Syria, and good relations with Israel and Saudi Arabia. The incoming Biden administration is expected to continue some aspects of the Trump approach while changing course in others. Our two experts will assess the Trump record in the region and what they expect from the Biden administration. Please join us for this timely discussion.

Featuring:
— Matthew R. A. Heiman, General Counsel & Corporate Secretary, Waystar Health; Senior Fellow and Director of Planning, National Security Institute
— Prof. Jamil N. Jaffer, Adjunct Professor, NSI Founder, and Director, National Security Law & Policy Program, Antonin Scalia Law School, George Mason University

In 2018, the City of Baltimore filed climate change litigation in state court against multiple energy companies seeking damages from the impact of climate change. The energy companies moved the lawsuit to federal court, arguing it was the proper venue; however, the U.S. District Court for the District of Maryland disagreed and ruled the case belonged in state court. The Fourth Circuit Court of Appeals in Richmond, Virginia affirmed the lower court’s decision and the energy companies appealed to the United States Supreme Court. Last October, the justices granted their petition for writ of certiori requesting review of the Fourth Circuit’s ruling remanding the case to state court. Oral arguments are set for Tuesday, January 19th.

Indiana Solicitor General Tom Fisher joins us to preview this pivotal hearing, the implications for similar litigation around the country and his role in leading a 15-state coalition that is taking a stand against climate change litigation.

On December 14, 2020, the Supreme Court released its decision in Texas v. New Mexico. By a vote of 7-1, Texas’ motion to review the Pecos River Master’s determination – that New Mexico was entitled to a delivery credit for evaporated water stored at Texas’ request under the Pecos River Compact – is denied. Justice Kavanaugh’s majority opinion was joined by the Chief Justice and Justices Thomas, Breyer, Sotomayor, Kagan, and Gorsuch. Justice Alito filed an opinion concurring in the judgment in part and dissenting in part. Justice Barrett took no part in the consideration or decision of the case.

Featuring:
— Anthony L. Francois, Senior Attorney, Pacific Legal Foundation

The case of Edwards v. Vannoy will have oral arguments before the Supreme Court on December 2, 2020. At issue is whether the Supreme Court’s decision in Ramos v. Louisiana applies retroactively to cases on federal collateral review. William McClintock joins us to offer commentary on the case and the oral arguments.

Featuring:
— William S. McClintock, Associate, King & Spalding LLP

The post-modern social science framework of “critical race theory” is well-known in certain academic circles and trending in corporate settings. CRT-inspired concepts and terminology– such as “white privilege,” “intersectionality,” “implicit bias,” “microaggressions,” and “systemic racism”—are increasingly used in ethnic studies curricula in higher education. Robin DiAngelo’s NYT best-seller “White Fragility” (2018) brought mainstream attention to some CRT concepts and terminology. This year, the death of George Floyd served as the impetus for many institutions, including corporate employers, governmental entities, and some K-12 school systems, to adopt responsive training for employees and students. In some cases, existing EEO and diversity training programs were enhanced to target anti-racism issues.

Critics have charged that CRT training itself contains racial stereotypes, assigns blame to individuals based solely on their race and sex, and imputes race discrimination as the reason for all disparate outcomes in society. Some employees have complained that being subjected to CRT training constitutes workplace harassment and/or discrimination. Proponents of CRT contend that disparate outcomes can only or best be explained by lingering, systemic racism. President Trump generated controversy in September when OMB Director Russell Vought released a memo instructing federal agencies to identify CRT training within federal agencies, with an eye to stop funding such programs. President Trump also issued an executive order forbidding such training by federal contractors. Our speakers will discuss the background and utilization of CRT, and explore whether the use of CRT (or similar theories) in workplace or K-12 contexts raises legal issues. They will grapple with the foundational question: Is CRT’s focus on race contrary to the traditional goal of a color blind society?

This teleforum reviews the November 4 oral argument in Fulton v. City of Philadelphia. In March 2018, Philadelphia’s Department of Health and Human Services stopped placing foster children with families certified and supported by Catholic Social Services because the agency, as an arm of the Catholic Church, has a sincere religious objection to endorsing same-sex or unmarried heterosexual relationships. Three foster families supported by Catholic Social Services sued, seeking to continue partnering with their chosen agency and challenging the city’s decision on religious free exercise and free speech grounds.

The issues before the Supreme Court involve the appropriate standard for a free-exercise claim, reconsideration of the Court’s decision in Employment Division v. Smith, and the grounds on which a government can condition foster-care participation.

Under the Clean Water Act, the Environmental Protection Agency (EPA) must approve clean water intakes, used by factories to cool machinery, before any are built. The EPA is required to consult with the Fish and Wildlife Service and National Marine Fisheries Service to conduct a study of the new intake on marine life. The Sierra Club made a Freedom of Information Act (FOIA) request for records made by the EPA during the agency’s rule making process, including the documentation of consultation with the services. The Services records were withheld citing Exemption 5 of the FOIA shielding from disclosure documents subject to the “deliberative process privilege”. The district court determined twelve of the sixteen restricted documents were not subject to Exemption 5. The U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s order to disclose some of the records but reversed the decision regarding two of the records. Our discussion will review the record and discuss next steps.

Featuring:
— Damien Schiff, Senior Attorney, Pacific Legal Foundation
— Moderator: Nancie G. Marzulla, Partner, Marzulla Law