Adam chats with AEI’s Peter Wallison and John Yoo about their new book: The Administrative State Before the Supreme Court: Perspectives on the Nondelegation Doctrine. They discuss common arguments about the nondelegation doctrine and whether the US Supreme Court is likely to start applying the doctrine to restrain administrative agencies.

Ed Whelan, Distinguished Senior Fellow at the Ethics and Public Policy Center, chats with Paul D. Clement, 43rd Solicitor General of the United States, about Clement’s experience with religious liberty cases leading up to the 110th case he has argued before the US Supreme Court, Kennedy v. Bremerton School District.

Attorneys Nathan Lewin, Erin E. Murphy, Mark Rienzi, and Marc D. Stern talk about upcoming religious liberty cases before the US Supreme Court in a panel discussion moderated by former Assistant Attorney General Steven A. Engel. The panelists debate the potential impact of Supreme Court rulings in those cases in addition to whether current approaches to protecting religious liberty are adequate to navigate contemporary challenges.

Matt Bowman of Alliance Defending Freedom, Andrea R. Lucas of the Equal Employment Opportunity Commission, and Roger T. Severino of the Ethics and Public Policy Center talk about developing policy challenges related to the free exercise of religion in a panel discussion moderated by D.C. District Court Judge Trevor N. McFadden. The panelists touch on issues like Covid-related limits on worship services, funding abortion, children being prescribed puberty-blocking drugs, vaccine mandates, and discrimination based on gender identity.

Adam chats with Wharton School Assistant Professor Brian D. Feinstein about his new paper, “Submerged Independent Agencies,” co-authored with the University of Chicago Law School’s Jennifer Nou. The paper covers hundreds of examples of administrative agency officials sub-delegating rulemaking powers to civil servants who are not appointed by the president, a court of law, or a department head and surveys the constitutional implications of those arrangements.

On March 18, the Gray Center hosted the First Annual Gray Lecture on the Administrative State, an event that we hope to make a keynote of our calendar each year.

This included a panel discussion, featuring Professors John Harrison, Aaron Nielson and Aditya Bamzai, along with Gray Center Co-Executive Director Adam White. They discussed the future of “agency independence” in the aftermath of Seila Law v. CFPB (2020) and Collins v. Yellen (2021), along with the broader trajectory of the Supreme Court’s jurisprudence on appointments and removal.  Each of the professors has also authored or co-authored a new Gray Center Working Paper.

Last month, the Second Circuit heard oral arguments in Community Housing Improvement Program v. City of New York, a constitutional challenge to New York’s Rent Stabilization Law. The plaintiffs argue that New York’s law violates the Constitution’s Due Process and Takings Clauses. To discuss the case—and its relationship to federal administrative state issues—Adam chats with the plaintiffs’ lead counsel: Andrew Pincus, one of our era’s leading constitutional litigators.

Steven Engel

Today, in the Gray Center’s “Pulse of the Court” podcast series, Steve Engel of Dechert LLP and Jenn discuss the just-completed February oral argument sitting at the Supreme Court. They focus primarily on the final case of the sitting, Egbert v. Boule, which raises important questions about whether, and when, federal officers should be subject to monetary damages for alleged violations of constitutional rights.

Please join us for a conversation on the Supreme Court’s term so far, and the cases soon to be heard.

Halfway through the Supreme Court’s term, the Justices already have issued decisions with major consequences for the administrative state — most recently, its decisions on the OSHA and HHS vaccine mandates. Next the Court will hear cases involving the breadth and limits of the EPA’s powers on climate and energy regulation. And we are awaiting the Court’s decisions in cases involving Chevron deference and New York’s administration of gun laws, among other things.

When the Supreme Court ruled that OSHA’s Covid vaccine mandate was unlawful, Justice Gorsuch wrote separately that the Court’s decision “rightly applies the major questions doctrine.” The Major Questions Doctrine has been increasingly important in the Supreme Court and lower courts’ decisions, among judges who believe (as Gorsuch puts it) that the doctrine “ensures that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs—with the people’s elected representatives.” To discuss the past, present, and future of the Major Questions Doctrine, Adam White chats with Professors Gillian Metzger and Kristin Hickman.

This episode features Kristin Hickman, Gillian Metzger, and Adam White.

Louis Brandeis famously wrote that “a single courageous State may, if its citizens choose, serve as a laboratory” for government reform. Today we see many states becoming laboratories for the reform of administrative law. Last year, the Gray Center hosted a roundtable to discuss new research on administrative law in the states.

Those papers were recently released as Gray Center Working Papers, and in today’s episode Adam White chats with two of the authors: Penn State Law’s Dan Walters, on state nondelegation doctrines; and the Pacific Legal Foundation’s Daniel Ortner, on state deference doctrines.

On Friday, the Supreme Court heard oral arguments on the legality of the Occupational Safety and Health Administration’s (“OSHA”) vaccination-or-test mandate. The parties challenging the mandate contend that it is unprecedented in the breadth of its assertion of authority. On this podcast, Professor Jenn Mascott, co-director of the Gray Center, interviews Steve Lehotsky of Lehotsky Keller–the counsel of record for the business groups challenging the mandate.

Mascott and Lehotsky discuss the oral arguments from Friday, including the questioning faced by Lehotsky’s partner, Scott Keller, who was the first attorney to argue before the Court in 2022. Friday’s argument was in an unusual posture, as it involved the parties’ request that the Court stay the government’s mandate, which Lehotsky and Mascott will also address. Tune in for discussion of the Justices’ consideration of who, and which institution, in our federal system has the power to decide health and economic policy questions of enormous magnitude, based on the terms of a law passed by Congress more than five decades ago in 1970.

When President Biden signed the new infrastructure law in mid-November, most attention was focused on the money it will spend, and the projects it might fund. But infrastructure expert DJ Gribbin was focused on a subtler part of the law: Title VIII’s provisions for “Federal Permitting Improvement,” which seek to streamline the infrastructure-approval process, making it more efficient and more effective. To discuss the new law, its antecedents in earlier laws and executive orders, and the road ahead (so to speak), DJ visits the show for a conversation with Adam White.

On October 21, 2021, the Gray Center and the Heritage Foundation co-hosted a special event to commemorate the 30th anniversary of the confirmation of Justice Clarence Thomas to the Supreme Court of the United States. This event, consisting of a daytime law symposium and evening lecture, brought together jurists, legal academics and practitioners, including many of the Justice’s former clerks, where we discussed his jurisprudence and impact on the Court over the past three decades.

In a special evening lecture, the inaugural “Justice Clarence Thomas First Principles Award” was presented by Ambassador C. Boyden Gray to Laurence H. Silberman, Circuit Judge of the U.S. Court of Appeals for the District of Columbia Circuit. This was followed by Donald F. McGahn II’s introduction of Mitch McConnell, Senate Republican Leader, who provided Keynote Remarks. The lecture concluded with Concluding Thanks by Justice Clarence Thomas, U.S. Supreme Court.

On October 21, 2021, the Gray Center and the Heritage Foundation co-hosted a special event to commemorate the 30th anniversary of the confirmation of Justice Clarence Thomas to the Supreme Court of the United States. This event, consisting of a daytime law symposium and evening lecture, brought together jurists, legal academics and practitioners, including many of the Justice’s former clerks, where we discussed his jurisprudence and impact on the Court over the past three decades.

The fourth and final panel featured a Solicitors General discussion about advocacy in the U.S. Supreme Court, with Justice Thomas as a key influencer, over the last thirty years. It included: Noel Francisco, Partner-in-Charge of the Washington office of Jones Day and 47th Solicitor General of the United States; Paul Clement, Partner at Kirkland & Ellis and 43rd Solicitor General of the United States; Lisa Blatt, Partner and Chair of the Supreme Court and Appellate practice group of Williams & Connolly LLPm and former Assistant to the Solicitor General of the United States, and Jeffrey Wall, Sullivan & Cromwell LLP and former acting Solicitor General of the United States. It was moderated by Gray Center Co-Executive Director Jennifer Mascott.

On October 21, 2021, the Gray Center and the Heritage Foundation co-hosted a special event to commemorate the 30th anniversary of the confirmation of Justice Clarence Thomas to the Supreme Court of the United States. This event, consisting of a daytime law symposium and evening lecture, brought together jurists, legal academics and practitioners, including many of the Justice’s former clerks, where we discussed his jurisprudence and impact on the Court over the past three decades.

Michael Pack, President and Founder of Manifold Productions, Inc., and producer of the documentary “Created Equal: Justice Thomas in His Own Words,” sat down with Mark Paoletta of Schaerr Jaffe LLP to discuss the film, its portrayal of Justice Thomas, and its impact.

On October 21, 2021, the Gray Center and the Heritage Foundation co-hosted a special event to commemorate the 30th anniversary of the confirmation of Justice Clarence Thomas to the Supreme Court of the United States. This event, consisting of a daytime law symposium and evening lecture, brought together jurists, legal academics and practitioners, including many of the Justice’s former clerks, where we discussed his jurisprudence and impact on the Court over the past three decades.

The second panel looked at the constitutional liberties of the first amendment, religion, race, and natural law, relating them to Justice Thomas’s jurisprudence. It included a discussion featuring: Allison Jones Rushing, Circuit Judge of the U.S. Court of Appeals for the Fourth Circuit; Nicole Stelle Garnett, Professor of Law at Notre Dame Law School; Elbert Lin, Partner at Hunton Andrews Kurth and former Solicitor General of West Virginia, and Michael McConnell, Professor and Director of the Constitutional Law Center at Stanford Law School. It was moderated by Adam Mortara, Lecturer in Law at University of Chicago Law School.

On October 21, 2021, the Gray Center and the Heritage Foundation co-hosted a special event to commemorate the 30th anniversary of the confirmation of Justice Clarence Thomas to the Supreme Court of the United States. This event, consisting of a daytime law symposium and evening lecture, brought together jurists, legal academics and practitioners, including many of the Justice’s former clerks, where we discussed his jurisprudence and impact on the Court over the past three decades.

The first panel focused on the structural constitution, including the concepts of federalism and the separation of powers. It included a discussion featuring: William Pryor Jr., Chief Judge of the U.S. Court of Appeals for the Eleventh Circuit; Edith Jones, Circuit Judge of the U.S. Court of Appeals for the Fifth Circuit; Neomi Rao, Gray Center Founder and Circuit Judge of the U.S. Court of Appeals for the District of Columbia Circuit, and Thomas Hardiman, Circuit Judge of the U.S. Court of Appeals for the Third Circuit. It was moderated by John Yoo, Professor of Law at UC Berkeley School of Law.

On October 1, 2021, the Gray Center hosted a conference to mark the twentieth anniversary of Elena Kagan’s published article on “Presidential Administration,” where authors and scholars discussed and presented seven new working papers and two new books on this important and timely concept, during a series of panel discussions.

The fourth and final panel featured two authors of recent books on presidential power: Saikrishna Prakash, author of The Living Presidency: An Originalist Argument against Its Ever-Expanding Powers, and John Yoo, author of Defender in Chief: Donald Trump’s Fight for Presidential Power. They were joined by University of Michigan Professor of Law Julian Mortenson. The session was moderated by the Gray Center’s Co-Executive Director Jennifer Mascott.

On October 1, 2021, the Gray Center hosted a conference to mark the twentieth anniversary of Elena Kagan’s published article on “Presidential Administration,” where authors and scholars discussed and presented seven new working papers and two new books on this important and timely concept, during a series of panel discussions.

The third panel analyzed current issues in presidential administration and executive power. It included a discussion featuring The Wharton School of the University of Pennsylvania’s Brian Feinstein, University of California Hastings College of the Law’s Zachary Price, and Arizona State University’s Bijal Shah, which was moderated by The Ohio State University’s Christopher Walker.