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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.
Public notice and comment on rulemaking is a core requirement of the Administrative Procedure Act, and creates the administrative record on which any subsequent judicial review will be based. Yet many people (even people who take the trouble to vote) seem to think that commenting on rules is difficult or futile, and therefore don’t participate – even when they care about the outcome. This Teleforum will discuss the practical mechanics of tracking the development of rules and filing timely comments; in fact, timely filing is about the only legal requirement for getting comments onto the record. It will describe the sorts of comments that tend to be effective in persuading an agency, including comments made directly by affected small entities without professional representation. It will also explain the concept of a “Public Interest Comment” which argues, not on behalf of any particular party or cause (however worthy), but in favor of a balanced resolution of the conflicting considerations that an agency must take into account.
Featuring:
— Prof. Susan Dudley, Director, GW Regulatory Studies Center and Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University
— Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
— Prof. Brian F. Mannix, Research Professor, Regulatory Studies Center, George Washington University
Amazon Web Services, Inc. (Amazon) has claimed in a lawsuit in the United States Court of Federal Claims that unlawful intervention by President Donald Trump deprived it of a $10 billion decade-long contract with the Department of Defense (DoD) for a cloud computing system known as the Joint Enterprise Defense Infrastucture (JEDI). Long considered the favorite, Amazon nevertheless lost the award to Microsoft Corp. in a competitive bidding process that Amazon claims was arbitrary and capricious and tainted by President Trump’s open feud with Amazon company founder Jeffrey Bezos.
Dan Kelly, Alexander Major and Franklin Turner, nationally recognized commentators and practitioners in the federal bid protest arena, will unpack what we know about Amazon’s case, and discuss the possible grounds, laws and regulations governing mandates for competitive contracting by federal agencies.
Bridget Anne Kelly and William Baroni were convicted of wire fraud, federal program fraud, and conspiracy for orchestrating lane closures on the George Washington Bridge in September, 2013, as an elaborate punishment to the mayor of Fort Lee, New Jersey, for refusing to endorse Governor Chris Christie for re-election. In Bridget Anne Kelly v. United States, the latest in a series of political corruption cases to reach the Supreme Court, the justices will consider whether these acts can amount to defrauding the government. Steve Klein, a partner at Barr & Klein PLLC and a member of the Free Speech & Election Law Executive Committee, will discuss the implications of the case and give his thoughts on oral argument.
Featuring:
— Steve Klein, Partner, Barr & Klein PLLC
This teleforum focuses on the sundry problems with so-called “Brand X deference,” whose name derives from the 2005 Supreme Court decision in National Cable & Telecom. Assoc. v. Brand X Internet Services. The judicial deference holding in the case was that federal agencies may issue new regulations that supersede previous interpretations of the relevant statute made by federal courts of appeals (unless that prior federal-court interpretation purported to be the only permissible interpretation of the statute). Hence, even if a federal circuit court of appeals has previously interpreted a statute, if an agency with jurisdiction subsequently issues a new regulation interpreting that statute differently, the federal court in a future case must defer (i.e., give Chevron deference) to the agency’s new interpretation of the statute.
This month the U.S. Supreme Court will consider whether or not to take up a case that could do for Brand X deference what Kisor v. Wilkie did for Auer deference. That is, the Court could radically reduce the scope of Brand X’s application and/or clarify that Brand X deference only applies when a prior federal court did not use traditional tools of statutory analysis in interpreting the statutory provision at issue. Or, the Court could go even further and do away with Brand X deference altogether, as then-Judge Gorsuch called for when he was serving on the Tenth Circuit.
At issue in the case of Holguin-Hernandez v. United States is whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence. Daniel Guarnera joined us to discuss the case as presented at oral argument before the Supreme Court on December 10, 2019.
Featuring:
— Daniel Guarnera, Associate, Kellogg, Hansen, Todd, Figel & Frederick
On Wednesday evening, the United States House of Representatives voted to impeach President Donald Trump. This is the third impeachment of a sitting U.S. President after Johnson and Clinton. As a part of their continuing conversation series, John Malcolm and John Yoo discuss the vote, Trump’s letter, possible Senate trial rules, comparisons to the historic meaning of impeachment, and more.
Featuring:
— 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
In late October, the People of the State of New York v. ExxonMobil Corp. trial began in the Supreme Court of the State of New York before Justice Barry Ostrager. The lawsuit was brought under New York’s Martin Act, an anti-fraud statute, and alleged that ExxonMobil misled its investors about how the company accounted for climate-change risks. The trial was the culmination of a nearly three year investigation that was initially launched by former New York Attorney General Eric Schneiderman with his successor eventually filing a lawsuit against ExxonMobil in the fall of 2018. Justice Ostrager handed down his decision on December 10, 2019, ruling for Exxon. Andrew M. Grossman, partner at BakerHostetler, joins us to discuss the ruling, next steps in the case and its implications for other ongoing litigation brought by states and municipalities against energy companies.
Featuring:
— Andrew M. Grossman, Partner, Baker & Hostetler LLP
On September 30 a federal district judge in Massachusetts issued a ruling rejecting discrimination claims in Students for Fair Admissions v. President and Fellows of Harvard College, 2019 U.S. Dist. LEXIS 170309 (D. Mass.), a case that many expect to go to the U.S. Supreme Court and potentially redefine affirmative action law. In the case, Asian-American students allege that Harvard’s racial preferences for other minority groups discriminate against them in violation of Title VI of the 1964 Civil Rights Act. The students introduced evidence that Asian enrollment at Harvard is less than half what it would be if admission was based solely on academic achievement; that Asian applicants receive the lowest scores on an amorphous “personal rating” assigned by admissions officials who have not met them; and that Harvard’s “holistic” admissions system, touted by the Supreme Court as the model for permissible racial preferences, was originally devised to exclude Jews.
The case raises the question of the meaning of “diversity” in an increasingly multi-racial era, and the continued justification for affirmative action in that era when its burden may now fall largely not on the white majority but on another historically marginalized racial minority group.
In Atlantic Richfield Co. v. Christian, the Supreme Court will determine whether the Comprehensive Environmental Response, Compensation, and Liability Act preempts state common law claims for restoration damages for pollution also addressed by an EPA-directed cleanup plan. In this case, a Montana copper smelter polluted its neighbors’ properties for decades, but has also spent $450 million to remediate this pollution under a plan negotiated with EPA. Believing Montana state law entitles them to more extensive restoration than the EPA plan provides, neighboring property owners sued Atlantic Richfield for trespass and nuisance, seeking restoration damages and other relief. Jonathan Wood and Corbin Barthold join us to discuss the oral argument in this case and its implications for CERCLA and property rights.
Featuring:
— Jonathan Wood, Senior Attorney, Pacific Legal Foundation
— Corbin K. Barthold, Senior Litigation Counsel, Washington Legal Foundation
In 2017, Congress and the President used the Congressional Review Act to disapprove 14 agency rules issued at the end of the Obama administration. As we enter another presidential election year, the CRA may soon experience another resurgence. Our speakers will address recent CRA developments, including ongoing litigation and an OMB memo asserting CRA authority over agency guidance documents, as well as how the upcoming deadline for submitted rules for review by this Congress and President (rather than their successors) affects agency decision-making.
Featuring:
— Amit Narang, Regulatory Policy Advocate, Public Citizen Inc.
— Jonathan Wood, Senior Attorney, Pacific Legal Foundation
— Moderator: Paul J. Larkin Jr., Senior Legal Research Fellow, Meese Center for Legal and Judicial Studies, Institute for Constitutional Government, The Heritage Foundation
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.
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
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
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”).