Federalist Society Practice Groups Podcasts

In 1996, President Bill Clinton signed the Comprehensive Nuclear Test Ban Treaty, but the treaty did not go into effect because the Senate refused to ratify it. Twenty years later, the Obama administration still favors ratification of the treaty as part of its nuclear disarmament strategy. President Obama appears to be attempting to go around the Senate by signing a U.N. Security Council Resolution that would, according to a National Security Council spokesman, “call on states not to test and support the CTBT’s objectives,” but would not be legally binding. Professor Kontorovich of Northwestern University School of Law and Professor Spiro of Temple Law School joined us to debate the international & national security law implications of these actions. -- Featuring: Prof. Eugene Kontorovich, Professor of Law, Northwestern Pritzker School of Law and Prof. Peter J. Spiro, Charles R. Weiner Professor of Law, Temple University Beasley School of Law.

The Antiquities Act of 1906 provides, in part, that “The President may, in the President's discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.” 54 U.S.C. §320301(a). Declaring a national monument brings substantial new layers of protected status to the areas or thing so designated, precluding many previously-authorized uses of the area or thing as well. To varying degrees, U.S. Presidents have exercised this authority both during the regular course of their administration and sometimes with heightened vigor at the end, or “midnight hour,” of their final term. Our experts examined the historic use of the Antiquities Act authority and particularly the phenomena of “midnight monument” designations across administrations, including those already completed or anticipated by the now-outgoing Obama Administration. Their analysis included a discussion of the controversial proposal to designate a Bears Ears national monument in Utah in the coming weeks, the historically large expansion in August of the Papahanaumokuakea Marine National Monument to 582,578 square miles of land and sea, the September 15 designation of the Northeast Canyons and Seamounts Marine National Monument, and more. -- Featuring: Prof. Donald J. Kochan, Professor and Associate Dean for Research and Faculty Development, Chapman University School of Law and Prof. Charles Wilkinson Distinguished Professor, Moses Lasky Professor of Law History and Society in the American West; Indian Law; Public Land Law; Water Law.

From the EPA to HHS to the CFPB, the volume of regulatory rulemaking and other agency actions has been a major point of controversy throughout the Obama Administration’s eight years. So it is only fitting that the Administration’s closing months should spur research on new regulations and those yet to come before the Administration’s clock strikes “midnight.” On September 22, the Federalist Society will host a teleforum to discuss these issues, with the authors of two such studies. -- In “600 Major Regulations,” Sam Batkins of the American Action Forum updates the AFF’s 2015 report on the Administration’s volume of "major rules”—that is, the rules that each have a projected impact of $100 million or more annually. According to his report, the Administration’s 600 rules in 7.5 years "is 20 percent more than the previous president did in eight years,” and will "cost for more than $740 billion in regulatory burdens.” -- And in “The Final Countdown: Projecting Midnight Regulations,” Sofie Miller and Daniel Pérez of George Washington University’s Regulatory Studies Center analyze the “midnight rules” that the Obama Administration might finalize in coming weeks and months, before the next President has a chance to block them. Applying new quantitative models, they forecast that an average of 72 "economically significant” rules will be published between July 2016 and January 2017, a 118% increase over the Obama Administration’s current average rate of regulation. -- The Federalist Society’s Administrative Law Section is pleased to host two of the authors of these reports to discuss their findings: Sam Batkins and Sofie Miller. The discussion will be moderated by Adam White, a research fellow at the Hoover Institution. -- Featuring: Sam Batkins, Author, Director of Regulatory Policy, American Action Forum and Sofie Miller Senior Policy Analyst, Regulatory Studies Center, George Washington University. Moderator: Adam White, Research Fellow, The Hoover Institution.

On September 8, 2016 Liberty Counsel filed its opening brief with the Ninth Circuit Court of Appeals in Mountain Right to Life v. Kamala Harris. The case is a challenge to California’s Assembly Bill 775, which requires all “licensed covered facilit(ies)” which have a “primary purpose” of “providing family program or pregnancy-related services” to tell clients on site that “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women.” The legislation was passed in response to pro-life crisis pregnancy centers, which do not mention abortion in their pregnancy counseling. -- Featuring: Stephen Casey, Author, President and Senior Counsel, Casey Law Office, P.C.

Stolen Sovereignty: How to Stop Unelected Judges from Transforming America, by Daniel Horowitz, discusses the possible political repercussions of President Obama’s judicial appointments. President Obama has filled roughly 30% of the federal judicial seats in his tenure as President. In this Teleforum, Daniel Horowitz will discuss his book and how he believes the will of the people is being usurped by activist judges. -- Featuring: Daniel Horowitz, Author, Stolen Sovereignty: How to Stop Unelected Judges from Transforming America and Moderator: Hon. Eileen J. O'Connor, Founder, Law Office of Eileen J. O'Connor, PLLC.

Our panel of three experts in legal and judicial ethics discussed several recent cases and regulatory developments in the field, with an eye to translating these developments into practical wisdom about their likely impact on law practice in 2016 and beyond. -- Topics included the American Bar Association's move to expand the scope of the regulation of race, gender and other harassment and discrimination into the practice of law generally, including law firm management; amendments to the rules of discovery to help reduce the gamesmanship now often infecting the process; the extent to which the Supreme Court's decision in the North Carolina Dentists case may foreshadow limitations on the ability of states to regulate the practice of law without running afoul of the antitrust laws; whether competent legal advice must include a business advice component in certain settings; and how the use of social media to complain about a sitting judge can cross the line into unethical conduct. -- Featuring: Prof. W. William Hodes,Professor Emeritus of Law, Indiana University & President, The William Hodes Professional Corporation; Prof. Thomas D. Morgan, Oppenheim Professor Emeritus of Antitrust and Trade Regulation Law, George Washington University Law School; and Prof. Ronald Rotunda, Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University Dale E. Fowler School of Law.

On September 27, 2016, the D.C. Circuit Court of Appeals will hear oral argument in West Virginia, et al. v. EPA, a case testing the constitutionality of the Clean Power Plan. Among two procedural peculiarities (the U.S. Supreme Court has granted a stay in the implementation of the Plan, and the D.C. Circuit Court of Appeals has, sua sponte, decided to hear the case en banc without a prior three-judge panel), the case includes myriad federalism and separation of powers issues. Our experts will discuss the primary issues in the case – the balance of power between the federal and state governments, and the separation of powers within the federal government. -- Featuring: David Bookbinder, Founding Member, Element VI Consulting and David B. Rivkin, Jr., Partner, Baker & Hostetler LLP.

Native Americans on reservations suffer higher rates of crime, addiction, alcoholism, and poverty than any other group of Americans. In her new book The New Trail of Tears: How Washington Is Destroying American Indians, journalist Naomi Schaefer Riley examines the dismal situation—and the rays of hope—and shows how the cycles of poverty, addiction, crime, and family breakdown are perpetuated by government policies. “Indians,” writes Riley, “have chosen civilization; now it’s time for America to make them equal Americans.” With commentary by the Goldwater Institute Vice President for Litigation, Timothy Sandefur, our Teleforum will look at the legal and political problems that plague the more than 500 reservations in North America. -- Featuring: Naomi Schaefer Riley, New York Post columnist, author of The New Trail of Tears: How Washington Is Destroying American Indians and Commentary by: Timothy Sandefur, Vice President for Litigation, Goldwater Institute.

On Tuesday, September 27, the D.C. Circuit Court of Appeals will hear West Virginia v. Environmental Protection Agency, the case that will determine the fate of President Obama’s Clean Power Plan. If enacted, the Clean Power Plan would set a national limit for carbon emissions, and require each state to reduce its own output and meet state-specific standards. In February, the Supreme Court voted 5-4 to stay the Clean Power regulations while the case was pending in the D.C. Court. Twenty-four states, and various energy producers, have joined the suit against the federal government. Does the EPA have the authority to regulate a state’s carbon emissions under the Clean Air Act? Elbert Lin, the Solicitor General of West Virginia, will join us to discuss the arguments as briefed in this highly important case. -- Featuring: Mr. Elbert Lin, Solicitor General, State of West Virginia.

On May 19, 2016, the United States District Court for the Southern District of Texas entered a Memorandum Opinion and Order in which it found that lawyers from the United States Department of Justice violated their duty of candor in the course of their representation and imposed sanctions. The court initially required additional ethics training for all Justice Department attorneys practicing in 26 states for a period of five years. The Court concluded, in part, that “the Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions.” The Justice Department acknowledged that its attorneys made mistakes and misrepresentations to the court and opposing counsel, but contended that none were intentional, and agreed to some limited sanctions. Since then, the court has stayed its order. -- What are the limits, if any, to Court sanctions for attorney conduct? Here to discuss these issues are Thomas H. Dupree Jr., who formerly served in the Department of Justice, and Richard Painter, whose experience includes service in the White House Counsel’s Office. -- Featuring: Mr. Thomas H. Dupree Jr., Partner, Gibson Dunn and Prof. Richard W. Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School.

The use of eminent domain to condemn property for pipelines has become an increasingly controversial practice. Critics claim that it undermines private property rights and causes environmental damage. Defenders argue it is essential to enable effective exploitation of the nation's energy resources. In recent months, Georgia and South Carolina have passed new legislation limiting pipeline condemnations, an effort backed by a coalition of conservative property rights advocates and left of center environmentalists. Similar reforms have been proposed in many other states. This forum will examine the growing controversy over pipeline takings. -- Featuring: Prof. Alexandra Klass, Distinguished McKnight University Professor, University of Minnesota Law School and Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University.

In April, the mortgage lender PHH Corporation challenged the constitutionality of the Consumer Financial Protection Bureau (CFPB) after being ordered by the CFPB to disgorge $109 million. PHH challenged the bureau’s legitimacy under Article II, and cited Free Enterprise Fund v. Public Company Accounting Oversight Board as relevant precedent, because PCA officers could be removed for cause, and then, only by officers of the SEC. Meanwhile, the CFPB cited Humphrey’s Executor v. United States, in which the Supreme Court upheld the constitutionality of the Federal Trade Commission Act, which allowed the president to remove an FTC commissioner only for cause. Professor Peter Conti-Brown of The Wharton School and Gregory Jacob, partner at O'Melveny & Myers LLP joined us to discuss the CFPB and the constitutionality of other independent agencies like it. -- Featuring: Mr. Peter Conti-Brown, Assistant Professor of Legal Studies and Business Ethics, The Wharton School and Mr. Gregory F. Jacob, Gregory F. Jacob Partner, O'Melveny & Myers LLP.

Mr. Gregory S. Baylor of Alliance Defending Freedom discussed current and future challenges to the religious freedom of faith-based institutions of higher education, with a special focus on the ongoing debate over California Senate Bill 1146. Earlier versions of SB1146 would have significantly curtailed longstanding religious freedom protections in state anti-discrimination law, thereby exposing faith-based schools to liability for discrimination on the basis of religion, sexual orientation, and gender identity in student and employee relations. The bill's prime sponsor recently removed its most controversial provisions, but he indicated that a similar bill may be proposed in the next legislative session. -- Featuring: Mr. Gregory S. Baylor, Senior Counsel & Director of the Center for Religious Schools, Alliance Defending Freedom.

General Michael V. Hayden, former Director of the National Security Agency and the Central Intelligence Agency, and retired United States Air Force four-star general, joined us to discuss his new book, Playing to the Edge: American Intelligence in the Age of Terror, his memoir as a career intelligence officer and leader. Though the book covers the arc of his entire professional life, our Teleforum focuses primarily on the cyber world, which General Hayden describes as “a domain of conflict and cooperation whose importance seems to grow by the hour” couched “in an era of shrinking trust in government and expanding global threats." -- Featuring: General Michael V. Hayden Principal, The Chertoff Group, Former NSA and CIA Director. Moderator: Prof. Jamil N. Jaffer, Adjunct Professor and Director, Homeland and National Security Law Program.

Recent North Carolina, North Dakota, Texas, and Wisconsin court decisions have invalidated voter ID laws under constitutional and Voting Rights Act challenges. How do these recent decisions square with Crawford v. Marion County Election Board, where the United States Supreme Court upheld the Indiana voter ID law in 2008? In this podcast, Maya M. Noronha, an election attorney at BakerHostetler, and Dan Tokaji, a law professor at The Ohio State University, Moritz College of Law, addressed these recent decisions and debated the legality of voter ID laws. -- Featuring: Ms. Maya Noronha, Associate, BakerHostetler and Prof. Daniel P. Tokaji, Moritz College of Law, The Ohio State University.