Federalist Society Practice Groups Podcasts

Under the Agricultural Marketing Agreement Act of 1937, the USDA has authority to regulate the sale of certain agricultural products, including California-grown raisins, through the use of “marketing orders.” The marketing order specific to California-grown raisins directs the Raisin Administrative Committee, a branch of the USDA, to establish a yearly raisin tonnage reserve requirement. Every year in February, raisin farmers are told what percentage of their crop is the “reserve requirement” they must turn over to the Committee. Failure to comply results in fines and penalties. In 2002 and 2003, the Horne family refused to comply and was fined over $700,000. In a 2013 decision, the United States Supreme Court unanimously held that regulated entities cannot be compelled to pay regulatory fines before they may contest their constitutionality, under the Fifth Amendment’s protection against uncompensated government seizure of private property (the Takings Clause). On remand in Horne, the federal district court and the Ninth Circuit Court of Appeals found that there was no taking. The Supreme Court heard oral arguments on April 22, 2015, and considered three questions: (1) Whether the government's “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property” applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government's discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking. -- Featuring: John Elwood, Partner, Vinson & Elkins LLP

Members of the Federalist Society’s Financial Services & E-Commerce Practice Group Executive Committee provided an update on recent important activity at the Consumer Financial Protection Bureau (CFPB). -- Featuring: Julius L. Loeser, Of Counsel, Winston & Strawn LLP and Prof. Todd J. Zywicki, Foundation Professor of Law, George Mason University School of Law

The Environmental Protection Agency and the Army Corps of Engineers are currently engaged in a controversial rulemaking to redefine its jurisdiction over bodies of water through a new definition of the “Waters of the United States” under the Clean Water Act. Some have criticized the proposed rule, claiming that it is an overreach that would give the federal government authority over huge areas of private and state land that are rarely even wet, while others have dismissed these concerns as overblown and have pointed out the benefits of clarifying what is currently a murky area of law. Our experts discussed the rulemaking and presented both sides of the argument. -- Featuring: Brent A. Fewell, Partner, Troutman Sanders LLP and Prof. Patrick A. Parenteau, Senior Counsel, Professor of Law, Vermont Law School

The still-unfolding story of America’s Constitution is a history of heroes and villains—the flawed visionaries who inspired and crafted liberty’s safeguards, and the shortsighted opportunists who defied them. Those stories are known by few today. -- In Our Lost Constitution, Senator Mike Lee tells the dramatic, little-known stories behind six of the Constitution’s most indispensable provisions. He shows their rise. He shows their fall. And he makes vividly clear how nearly every abuse of federal power today is rooted in neglect of this Lost Constitution. Senator Mike Lee joined a Teleforum conference call for a special discussion with Federalist Society members regarding his new book. -- Featuring: Hon. Michael S. Lee, United States Senate

The “residual clause” of the Armed Career Criminal Act requires a mandatory minimum fifteen-year sentence for anyone who has three prior “violent felony” convictions and is found to unlawfully possess a firearm. This clause has been addressed at the Supreme Court on numerous occasions in recent years, with Justice Scalia suggesting that it is unconstitutionally vague. The Supreme Court heard oral arguments in Johnson v. United States in November with no mention of the question, and after two months of silence re-scheduled the case for additional argument and instructed the parties to address this question directly. Many Court-watchers have suggested that there may now be five votes on the Court to declare the residual clause unconstitutionally vague. -- Featuring: Vikrant P. Reddy, Senior Policy Analyst, Center for Effective Justice, Texas Public Policy Foundation

Over the course of the last year, various SEC officials have stated publicly that the agency intends to bring more of its litigated enforcement cases in administrative proceedings rather than in federal district court. The SEC points to the recent expansion of its authority under Dodd-Frank to bring such administrative proceedings. The defense bar has responded by filing lawsuits seeking to block these administrative proceedings and force the agency to bring any enforcement action in federal court. Commentators have also written op-eds and given speeches criticizing the agency's approach as misguided policy. And recently, Congress has weighed in by questioning SEC officials about this new approach during oversight hearings. Matthew Martens (a securities enforcement partner at WilmerHale and the former SEC Chief Litigation Counsel) discussed these recent developments, including a review of the constitutional arguments the defense bar has raised to administrative proceedings, the procedural differences between administrative proceedings and district court actions, and the tactical challenges that administrative proceedings present to potential defendants. -- Featuring: Matthew T. Martens, Partner, WilmerHale

In two separate cases to be argued the week of March 30, 2015, the U.S. Supreme Court continued to provide close oversight, often with critical disagreement, of the U.S. Court of Appeals for the Federal Circuit in the area of patent law. The Supreme Court will decide whether a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se. In a second case, the Court will determine whether a defendant's belief that a patent is invalid is a defense to induced infringement. Our expert was on hand to hear the oral arguments and reported to our Teleforum audience. -- Featuring: Prof. Gregory Dolin, Co-director, Center for Medicine and Law, University of Baltimore School of Law

Are shareholder lawsuits, filed in opposition to proposed corporate mergers or asset acquisitions, on the rise and, even if so, does that indicate a problem? Does the fact that most such lawsuits are quickly settled indicate they have underlying merit? Who are the winners and losers in such lawsuits, and are the interest of shareholders generally served by such lawsuits? How are attorney’s fees calculated? Assuming something is amiss, is there a remedy? Is the opportunity for intervention by an objector useful? -- Featuring: Prof. Jonathan R. Macey, Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law, Yale Law School and Hon. Gerald Walpin, former Inspector General, Corporation for National and Community Service, former Chief of Prosecutions, Office of the United States Attorney, Southern District of New York

On December 15, 2014, the National Labor Relations Board published a final rule amending its representation case procedures, which will become effective on April 14, 2015. According to the Board, the final rule retains the essentials of existing representation case procedures but removes “unnecessary barriers to the fair and expeditious resolution of representation cases.” Among other things, the rule shortens the election process to as few as 14 days from the current median time of 38 days, requires employers to give unions employees’ personal telephone numbers and email addresses, and makes post-election appeals discretionary with the Board rather than as of right. -- The final rule has been challenged in lawsuits brought by employer associations in the U.S. District Courts for the District of Columbia and Western District of Texas. The complaints allege that the rule will restrict communication between employers and employees before an election, depriving employers of due process and speech rights and employees of information needed to decide intelligently how to vote. -- Featuring: Homer L. Deakins, Jr., Chairman Emeritus, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.; Brent Garren, Deputy General Counsel, Local 32BJ, Service Employees International Union; and Hon. John N. Raudabaugh, former member, National Labor Relations Board, Reed Larson Professor of Labor Law, Ave Maria School of Law, National Right To Work Legal Defense Foundation.

On March 25, 2015, the United States Supreme Court heard oral arguments in Michigan v. Environmental Protection Agency. The case is comprised of three consolidated petitions, one from a group of 21 states, one from the trade group for electrical power plants, and one from the trade group for suppliers of coal to these plants. The Court will answer “Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.” -- Featuring: Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law

The laws of six states prohibit businesses—but not unions or other groups—from contributing to political parties, committees, or candidates. On February 24, 2015, the Goldwater Institute filed suit on behalf of two family-owned Massachusetts businesses to challenge Massachusetts’ political contribution ban. Since 1908, businesses have faced a total contribution ban, but special rules implemented in 1988 allow unions to contribute as much as $15,000 before any disclosure requirements or other contribution limits apply to the union. After unions have donated $15,000 to campaigns, their PACs can continue to contribute up to the ordinary limits. Meanwhile, business-funded PACs are banned from contributing. Does the Massachusetts law violate state and federal constitutional guarantees of equal protection, free speech, and free association? -- Featuring: Jim Manley, Senior Attorney, Scharf-Norton Center for Constitutional Litigation, The Goldwater Institute

In February of 2015, federal District Court Judge Andrew Hanen (Southern District of Texas) temporarily blocked President Obama’s executive actions on immigration, which would have shielded as many as five million people from deportation proceedings. Judge Hanen subsequently refused the federal government’s request to reconsider, and last week the government filed an emergency motion in the Fifth Circuit Court of Appeals asking that court to overturn the injunction. This week, Judge Hanen and federal government lawyers reportedly sparred over representations made in court by government attorneys on details of waivers already granted under the executive actions. What is the basis of Judge Hanen’s injunction? Is it likely to be overturned or upheld by the Fifth Circuit? What are the next steps in the proceedings? -- Featuring: Prof. John C. Eastman, Director, Center for Constitutional Jurisprudence, Henry Salvatori Professor of Law and Community Service, Chapman University Dale E. Fowler School of Law and Brianne Gorod, Appellate Counsel, Constitutional Accountability Center

On March 9, 2015, in Perez v. Mortgage Bankers Association, the United States Supreme Court ruled unanimously that agencies are not required to use notice-and-comment rulemaking to significantly revise its prior "authoritative" interpretation of a regulation. But several of the Justices wrote separately to criticize sharply the doctrine of "Auer deference," under which courts give utmost deference to agencies' interpretations of regulation. -- So what is the future of Auer deference, in the aftermath of Mortgage Bankers? On this teleforum, two administrative law scholars offered their views. -- Featuring: Prof. Jeffrey Pojanowski, University of Notre Dame Law School and Prof. Christopher J. Walker, The Ohio State University Moritz College of Law. Moderator: Adam J. White, Counsel, Boyden Gray & Associates.

Two American Muslim professors have been targeted by ISIS for criticizing the Charlie Hebdo attacks. The Organization of Islamic Cooperation has redoubled efforts to criminalize expressions of “Islamophobia” in Western nations. The most recent Intelligence Squared debate revealed heightened concern about restrictive speech codes on American campuses (e.g., the blacklisting of distinguished speakers who are labeled controversial by some people). What speech is, and what speech should be, protected in these and other contexts? -- Featuring: Dr. M. Zuhdi Jasser, Founder and President, American Islamic Forum for Democracy; Nina Shea, Senior Fellow and Director, Center for Religious Freedom, Hudson Institute; and Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law

Members of the Federalist Society’s Financial Services & E-Commerce Practice Group Executive Committee provided an update on recent important activity at the Consumer Financial Protection Bureau (CFPB). Recent developments included the results of the CFPB's arbitration study, the suspension of credit card agreement submission to the CFPB, new criticism of the CFPB's mortgage rate tool, and new payday lending rules. -- Featuring: Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association and Prof. Todd J. Zywicki, Foundation Professor of Law, George Mason University School of Law