Fifty years ago, on August 15, 1971, President Richard Nixon put the economic and financial world into a new era. By his decision to “close the gold window,” he fundamentally changed the international monetary system into the system of today, where the whole world runs on pure fiat currencies. “The dollar was the last ship moored to gold, with all the other currencies on board,and the U.S. cut the anchor and sailed off.” Nobody knew how it would turn out. Fifty years later, we are completely used to this post-Bretton Woods monetary world with endemic inflation and floating exchange rates, and take it for granted. Nobody thinks it is even possible to go back to the old world: We are all Nixonians now. How shall we judge the momentous Nixon decision in its context and since? A fundamental question with pluses and minuses remains. Is the international monetary system now permanently open to more money printing and more monetization of government debt, making faith in central banks misplaced, and expectation of an ideal monetary policy foolish?

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In July 2021, the U.S. Court of Appeals for the Ninth Circuit ruled that California’s recent school closures violated parental rights to direct the education of children, and reversed the lower court’s decision upholding California’s regulations as they relate to private education. Robert Dunn, who argued the case at the Ninth Circuit for plaintiffs, joins us to discuss the litigation, this ruling, and its implications.

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In a January 26, 2021 White House Memorandum, President Biden directed the Secretary of Housing and Urban Development to reexamine actions taken during the Trump presidency, and ordering the Secretary to ensure the 1968 Fair Housing Act, which bans discrimination, was being properly administered. On that initiative, Housing Secretary Marcia Fudge moved to reinstate two Obama-era Fair Housing rules rejecting former Secretary Ben Carson’s previous directives.

Secretary Fudge rescinded Secretary Carson’s interpretation of the disparate impact rule, rescinded the Preserving Community and Neighborhood Choice Rule, and reinstated the Affirmatively Furthering Fair Housing Rule.

As students prepare return to universities across the country, many schools are putting in place Covid vaccine mandates. These mandates require proof of vaccination, and typically include medical and religious exemptions. But, as Professor Ronald Colombo’s new paper raises, some kinds of exemption schemes may be unjustly discriminatory. Beyond the issue of exemptions, some students and staff object to the mandates as such. A group of students challenged one such mandate at Indiana University; in July, a district court judge sided with the university, and the ruling was recently upheld 3-0 by the U.S. Court of Appeals for the Seventh Circuit. These cases, the nature of the mandates and exemptions, and more will be discussed in this virtual program.

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A Dubious Expediency: How Race Preferences Damage Higher Education is a collection of eight essays written by experts in the field examining and analyzing the impact of racial diversity preferences and identity politics in American colleges and universities. The book’s title comes from a 1976 California Supreme Court opinion in Bakke v. UC Regents authored by Justice Stanley Mosk, who wrote:

“To uphold the [argument for race-preferential admissions] would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality.”

On June 23, 2021, the U.S. Supreme Court in Collins v. Yellen held 7-2 that 1) because the Federal Housing Finance Agency did not exceed its authority under the Housing and Economic Recovery Act of 2008, the anti-injunction provisions of the Recovery Act bar the statutory claim brought by shareholders of Fanne Mae and Freddie Mac; and 2) the Recovery Act’s structure violates the separation of powers.

Justice Alito wrote the majority opinion. Justice Gorsuch joined the opinion as to all but Part III–C, Justices Kagan and Breyer joined as to all but Part III–B, and Justice Sotomayor joined as to Parts I, II, and III–C. Justice Thomas filed a concurring opinion. Justice Gorsuch filed an opinion concurring in part. Justice Kagan filed an opinion concurring in part and concurring in the judgment, in which Justices Breyer and Sotomayor joined as to Part II. Justice Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined.

On June 21, 2021, the U.S. Supreme Court unanimously decided NCAA v. Alston in favor of respondent. Writing for the Court, Justice Gorsuch explained that the district court’s injunction on NCAA rules limiting the benefits schools can make available to student athletes is consistent with antitrust law and principles. Justice Kavanaugh filed a concurring opinion.

A former senior DOJ Antitrust official joins us to discuss the ruling and its implications.

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.

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— 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