This past August the U.S. Court of Appeals for the Fifth Circuit issued a significant administrative law opinion that has thus far drawn too little attention. The case involved guidance the Equal Employment Opportunity Commission issued in 2012 telling private and public employers—such as the State of Texas—that they could not run criminal background checks on potential employees without incurring potential disparate impact liability for disproportionately screening out statutorily protected groups. Most news articles discussing the case have focused on the immediate outcome, which is that the Fifth Circuit enjoined EEOC’s guidance, effectively preventing the agency from bringing any enforcement actions based on its theory of liability.

But that’s not the big story here. Rather, it is how the Fifth Circuit’s decision did it that could reverberate far beyond the confines of this case. The court may have sounded the death knell for *all* EEOC guidance. When Congress created EEOC, it deliberately denied the agency the ability to issue rules. For the past half century, EEOC did not let this statutory constraint slow it down much. Denied the ability to pass rules, EEOC passed mere “guidance” instead. But because that guidance was backed up with (1) the threat of enforcement; and (2) employers’ knowledge that federal courts readily defer to EEOC’s interpretations of its governing statute, the guidance was as good as law. However, by enjoining the criminal background check guidance on the ground that EEOC has no substantive rulemaking power, the Fifth Circuit exposed the fact that EEOC has long been acting outside its congressional grant of authority. In other words, the reason the Fifth Circuit gave for prohibiting this particular EEOC guidance would apply to most—if not all—substantive guidance that the agency issues.

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The Ninth Circuit recently split from seven other Circuits in deciding a First Amendment question of cardinal importance: should the church choose who will teach religion to children in church schools, or should the state? Our Lady of Guadalupe School is a small California Catholic parish school sued by a former teacher for age discrimination. The fifth-grade teacher taught religion, led prayer, planned liturgy, and performed other important religious functions. Following the Supreme Court’s unanimous 2012 decision in Hosanna-Tabor v. EEOC (which concerned a fourth-grade teacher at a Lutheran school who also performed religious duties), the district court found that the teacher’s religious functions were enough to allow dismissal, since allowing the case to proceed would entangle the state in internal religious affairs and violate the school’s right to select its teachers of religion. But, breaking with seven other circuits, seven state supreme courts, and over the dissent of nine of its judges, the Ninth Circuit reversed. Eric Rassbach, counsel for Our Lady, will explain why the Supreme Court should take the case.

Featuring:
— Eric Rassbach, Vice President and Senior Counsel, Becket Fund for Religious Liberty

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Legal challenges to legislative prayer continue to play out in the courts. Most recently, in Barker v. Conroy, Williamson v. Brevard County, and Speaker v. Fields, atheists have brought a series of Establishment Clause actions against prayer practices that prohibit them from offering secular (as opposed to religious) invocations. Thomas Hungar joins us to discuss those cases and their important implications.

Featuring:
— Thomas Hungar, Partner, Gibson, Dunn & Crutcher LLP

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On September 16, 2019, the Arizona Supreme Court issued a 4-3 decision in Brush & Nib Studio v. City of Phoenix. The case pitted a city anti-discrimination ordinance against a business offering hand-drawn invitations and paintings for various circumstances. The business owners declined to provide custom invitations for same-sex weddings.

The majority opinion rules for the business owners on all three issues presented, holding that (1) the plaintiffs had standing to bring pre-enforcement claims; and (2) the city’s anti-discrimination ordinance, as applied to the plaintiffs’ calligraphy services in connection with gay weddings, both (a) violates the free speech clause in the Arizona constitution and (b) fails to satisfy the test established by Arizona’s Free Exercise of Religion Amendment (“FERA,” i.e., the Arizona equivalent of the federal Religious Freedom Restoration Act or “RFRA”).

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States and municipalities have brought litigation in state court arguing that energy companies should be liable for the effects of global climate change. District courts across five states have issued conflicting rulings on whether state court or federal court is the proper forum to litigate these claims, and whether courts or legislatures should address global environmental questions. In addition, legal investigations and lawsuits are underway by state Attorneys General, particularly in New York where the Attorney General has filed a climate and securities-related lawsuit under the Martin Act. As these municipal lawsuits move to federal appellate court, Hon. C. Boyden Gray joins us to discuss the latest developments in climate change litigation at the municipal level, and the developments involving the New York Attorney General’s litigation.

Featuring:
— C. Boyden Gray, Founding Partner, Boyden Gray & Associates

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This week, the D.C. Circuit issued its long-awaited opinion in Mozilla v. Federal Communications Commission in which the court largely upheld the Commission’s 2017 Restoring Internet Freedom Order that reversed the Obama Administration’s 2015 decision to apply common carrier regulation to the Internet. While the court upheld the bulk of the agency’s actions as reasonable under the Supreme Court’s rulings in Chevron and Brand X, the court also found that the agency lacked plenary preemption authority over state efforts to regulate the Internet under the FCC’s theory of the case. As such, this case does not mark the end of the net neutrality debate; instead, it simply closes one chapter and opens a new one.

In this teleforum, a panel of legal and economic experts shares their views of the court’s reasoning and of the implications of this case upon the on-going net neutrality debate.

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In her new book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration, Professor Rachel Elise Barkow argues that the key problems with our criminal justice system are largely institutional and flow from a failure to properly understand–and constrain–the incentives that drive us toward ineffective policies of overcriminalization and mass incarceration. According to Barkow, our collective desire to punish wrongdoing through our criminal justice system too often outweighs the data that suggest better ways to improve public safety and reduce criminal recidivism. She proposes a fresh approach that includes greater oversight for prosecutors and others who wield vast discretion within the system, along with new expert bodies to collect and analyze data to formulate evidence-based crime policy and insulate policymakers from the populist whims that too often result in punitive laws and long sentences. In these and other ways, Barkow presents arguments for how our criminal justice system could reduce crime, provide justice, and roll back mass incarceration all at the same time.

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Terroristic threats straddle the line between criminal acts and constitutionally protected speech. This is especially so when the apparent threats could also be interpreted as “artistic” speech, say, as song lyrics. How can law enforcement and courts tease out “true” threats from, say, outlaw country music or hip-hop? When should society trade the right to hear the next “I Shot the Sheriff” for protection against illegal intimidation?
Master attorneys John Elwood and Michael Dreeben litigated these questions from opposite sides at the U.S. Supreme Court. Listen to them continue the conversation this Friday at noon, with moderator Prof. Eugene Volokh – America’s most prominent scholar of speech and the law.

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On Thursday, August 29th, the Justice Department’s Office of the Inspector General released its “Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda.” The inspector general report concluded that James Comey violated numerous. This follows an OIG Report earlier this summer criticizing Comey’s conduct in connection with the Clinton email server investigation.
The OIG also released a report in February of 2018, heavily criticizing the conduct of former top FBI official Andrew McCabe for “lack of candor.” The final decision on whether to prosecute McCabe is expected to be made soon.
John Malcolm and John Yoo join us to discuss these and other developments.

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The 2018-2019 Supreme Court term saw the continued evolution of Criminal Law Jurisprudence. Over a dozen cases were decided that will serve to shape and guide criminal law jurisprudence moving forward, on both the State and Federal level. Several prominent legal experts join us to recap the influential Criminal Law related Supreme Court decisions of 2019. Among the cases discussed will be, Timbs v. Indiana, Madison v. Alabama, Bucklew v. Precythe, United States v. Haymond, Mitchell v. Wisconsin, and many more.

Featuring:
Greg Brower, Shareholder, Brownstein, Hyatt, Farber, Shreck
Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation
Dean Mazzone, Deputy Chief of the Criminal Bureau of the Massachusetts Attorney General’s Office, Massachusetts Attorney General

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For over half a century, federal law and most states have regulated secretly recording speech over phone lines and in person by the government and private citizens. Recently, some of the most restrictive of these laws have been struck down on First Amendment grounds, and even some longstanding, widespread provisions are now subject to litigation. Steve Klein, partner at Statecraft PLLC and counsel to James O’Keefe, Project Veritas and Project Veritas Action Fund in several of these lawsuits, will discuss the constitutional and policy considerations of secret recording by citizens.

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The EPA released the final Affordable Clean Energy (ACE) Rule in June 2019. The ACE Rule replaces the 2015 Clean Power Plan and establishes emissions guidelines for states to utilize when crafting plans to limit carbon dioxide at existing coal-fired power plants. Our panelists will discuss how the ACE Rule differs from the Clean Power Plan in terms of statutory construction, delegation of authority and flexibility to the states. Discussion will include anticipated legal challenges as well as judicial review timelines.

Featuring:
Michael J. Nasi, Partner, Jackson Walker (Austin)
Thomas A. Lorenzen, Partner, Crowell & Moring (Washington, D.C.)

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In his book, A Covert Action: Reagan, the CIA, and the Cold War Struggle in Poland, Dr. Seth Jones examines the Reagan administration’s efforts during the Cold War to aid Poland’s Solidarity movement. Reagan used the CIA to support underground operations in Poland like printing leaflets, producing radio and television broadcasts, and coordinating public demonstrations. After extensive research, including review of recently declassified documents, Jones details the success of CIA’s covert activities including the emphasis on leaving no identifiable indicators of U.S. involvement.

Dr. Michael Ledeen served in the Reagan administration and is an analyst and commentator on the Iranian peoples’ efforts to achieve a democratic system of government. Ledeen will interview Dr. Jones about the findings of his book and will inquire as to what comparisons may exist between the Polish Solidarity movement and the Iranian peoples’ struggle for freedom.

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The Supreme Court decided the much-anticipated Kisor v. Wilkie case on July 3. The Court had granted certiorari in Kisor to decide whether to overrule Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997). Seminole Rock and Auer are often cited for the proposition that when an administrative agency promulgates a regulation and the regulation is ambiguous, a reviewing court must give “controlling weight” to the agency’s interpretation of the regulation unless the interpretation is plainly erroneous or is inconsistent with the regulation. A number of the Court’s members had cast doubt on the soundness of the Seminole Rock/Auer deference doctrine in recent years, and many observers have predicted that the doctrine’s days are numbered.

Karen Harned and Stephen Vaden discuss the highly-fractured decision in Kisor and its potential implications — including for the Chevron deference doctrine that applies to agency interpretations of statutory provisions (set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)).

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Chinese targeting and misappropriation of U.S. technology has increasingly been identified as a threat to U.S. prosperity, competitiveness, and national security. However, the scope and nature of the problem is not yet widely understood. Moreover, the long term commitment of the U.S. government to addressing the problem has been questioned.

This teleforum features leading experts on the issue who will assess the nature and scope of the problem, the tools the U.S. government has to address it, and the adequacy, costs and benefits of using these tools.

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In Return Mail v. US Postal Service, the Supreme Court held that the United States Government does not qualify as a “person” in the organic statutory provisions that created the Patent Trial & Appeal Board (PTAB) in the American Invents Act of 2011. The patent statutes provide that a “person” may file petitions in the various administrative review programs at the PTAB, i.e., inter partes review, post-grant view, and covered business methods. Thus, governmental agencies may not file petitions to cancel patents at the PTAB. The PTAB has been a flashpoint of controversy in the patent system. It was created to provide efficient and quick cancelation of mistakenly issued patents that hampered the innovation economy. Since it began operations in 2012, the PTAB has been accused by judges, lawyers, and commentators of engaging in procedural and substantive “shenanigans.” With very high cancelation rates, one federal judge has called it a “death squad[] killing property rights.” This Courthouse Steps teleforum will review Return Mail v. US Postal Service and discuss its legal and policy implications for the patent system, the PTAB, the innovation economy, and limitations on federal executive power.
Featuring:
Prof. Adam MacLeod, Professor of Law, Faulkner University
Matthew J. Dowd, Founder and Partner, Dowd Scheffel PLLC

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

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On May 20, 2019, the U.S. Supreme Court issued a 5-4 ruling in the case of Herrera v. Wyoming. In Herrera, the Court encountered the question of whether a portion of an 1868 treaty between the Crow, a Native American tribe which today resides on Montana reservation land, and the United States, is enforceable. In the treaty, the Crow were promised, in exchange for the tribe’s territory in Montana and Wyoming, “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon…and peace subsists…on the borders of the hunting districts.” The State of Wyoming, in prosecution of Crow tribal member Clayvin Herrera, argued that the Tenth Circuit decision in Repsis precluded the argument of Mr. Herrera that the treaty’s hunting rights provision remains valid. In defense, Mr. Herrera argued that the Supreme Court decision in Minnesota v. Mille Lacs repudiated Repsis and the 1896 Supreme Court decision in Ward v. Race Horse.

Justice Sotomayor, writing for Justices Ginsburg, Breyer, Kagan, and Gorsuch issued an opinion in favor of Mr. Herrera, and remanded for further proceedings.

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What is the proper balance between Congressional oversight and Executive privilege? As it becomes clear that Congress is not satisfied with the Mueller Report on its face, and it will seek to conduct follow-up inquiries on its own, it has requested an unredacted copy of the Mueller Report, and its supporting documentation, and several witnesses who were interviewed during the investigation, including the former White House Counsel.

Historically, Congress and the Executive have resolved their differences on disclosure requirements and moved forward, without significant resort to the Judiciary. What will and should be the role of the courts in any upcoming litigation? Could a final court ruling enhance rather than limit the power of the Executive? These and other questions will be discussed by our experts.

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Special Counsel Robert Mueller’s Report on The Investigation Into Russian Interference in the 2016 Presidential Election was released to the public on April 18th, 2019, capping off a nearly two-year-long investigation into the allegations of collusion between the Donald Trump campaign and Russian government officials during the 2016 election. The conclusions of the report are divided into two volumes. Volume I details the extent to which Russia attempted to influence the outcome of the election. Volume II addresses the claims of obstruction of Justice. What do the conclusions mean for the Trump Administration and the country going forward?

Featuring:
Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law
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

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We are honoring William “Bill” Colwell with a teleforum on a topic we know he would love – the President’s power to approve – and revoke – security clearances. We will discuss recent media accounts of the President reportedly ordering the revocation of clearances of former government officials and insisting on other clearances being granted over the objections of senior government personnel. We will also – in true Federalist fashion – examine the historical wellsprings of each branch of government’s power to act within this realm. It is time to take a closer look at whether there are any practical limits on the Executive’s discretion, and whether Congress can and should play a stronger role.

Bill Colwell was a great patriot and friend to many of us in the Federalist Society, and a pillar within the Washington D.C. legal community, but his appeal was by no means limited to one side of the aisle or to people with whom he agreed. As one recent description phrased it, Bill was “a beautiful mind of insatiable curiosity and creativity, a comedian who made us laugh until tears rolled down our faces, chef and mixologist par excellence.” Bill, a devoted and loving husband and father, was a man of great faith. Bill was Assistant General Counsel and Corporate Director of the Northrop Grumman Corporation. Prior to that, he was employed at The Boeing Company and Wiley, Rein & Fielding LLP. He served in the United States Navy as a nuclear submarine officer on the USS Hampton, where he received numerous awards. A nationally recognized expert in government contracts, Bill frequently spoke and published on procurement issues. He served on the Board of the Federal Circuit Bar Association, chaired the Legal Committee of the National Defense Industrial Association, and recently received the 2018 NDIA Howard H. Cork Memorial Award for exceptional service to NDIA and the defense industry. But beyond all professional interests, Bill loved his family and is mourned by his wife, Robin, their twin daughters and their extended families.

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