Federalist Society Practice Groups Podcasts

The enactment of lengthy no-parole sentences and the atrophy of other statutory early release mechanisms has placed unusual demands on the clemency mechanism in recent years, notably in the federal system. Similarly, an increase in the number and severity of collateral penalties has made pardon the only way most people with a criminal record can pay their debt to society. As Enlightenment philosophers recognized, clemency was never intended to substitute for a well-functioning legal system. With all due respect to Alexander Hamilton, in today’s world it is questionable whether a politician is “a more eligible dispenser of the mercy of the government” than a court. -- The American Law Institute recently approved a revision of the sentencing articles of the Model Penal Code, the first such revision in 60 years. The revised MPC includes provisions intended to reduce the need for executiveclemency, in two ways. First, the MPC provides authority for courts to reduce prison sentences in situations where circumstances have fundamentally changed. Second, the MPC proposes a comprehensive scheme for managing the collateral consequences of conviction that makes courts the primary source of relief. Former U.S. Pardon Attorney Margaret Love, currently the Executive Director of the Collateral Consequences Resource Center, will discuss the merits and potential consequences of these proposed MPC reforms. -- Featuring: Margaret Love, Law Office of Margaret Love. Moderator: John Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation.

o whom is the Federal Reserve accountable? Does the Fed's insistence on its "independence" mean it thinks the answer is: To no one? Who should oversee the results, successful or unsuccessful, of the Fed's actions? One answer was given by a former president of the New York Fed years ago: "The Congress which set us up has the authority and should review our actions at any time they want to, and in any way they want to." The CHOICE Act, recently passed by the House Financial Services Committee would in its Title X., "Fed Oversight Reform," create greater Fed accountability to the Congress. This Federalist Society Teleforum explored the bill's provisions and the issues involved. -- Featuring: Alex Pollock, Senior Fellow, R Street Institute and Norbert Michel, Senior Research Fellow, Financial Regulations and Monetary Policy, The Heritage Foundation.

During the presidential campaign, there were calls for changes to the Office of the Director of National Intelligence (ODNI), a federal agency created in response to the events of 9/11 to ensure that the seventeen organizations that make up the intelligence community act in a coordinated fashion. Following President Trump’s inauguration, former Senator Dan Coats was appointed as the Director of National Intelligence (DNI). There has also been significant media coverage around the relationship between the intelligence community and the President. During this Teleforum, we were joined by intelligence experts to discuss the relationship between the President and the intelligence community, whether the ODNI is in need of reform, and the top priorities of DNI Coats. -- Featuring: Benjamin Powell, Partner, Wilmer Cutler Pickering Hale and Dorr LLP and David Shedd, Advisory Board Member, Beacon Global Strategies LLC. Moderator: Matthew R. A. Heiman, Vice President, Corporate Secretary & Associate General Counsel, Johnson Controls.

The Immigration and Nationality Act (INA) was used as grounds for the deportation of Juan Esquivel-Quintana, a permanent resident admitted to the U.S. in 2000, after he pled guilty to a California statute in 2009, making sexual intercourse with a minor more than three years younger than the perpetrator a misdemeanor or felony. After the California ruling, Esquivel-Quintana moved to Michigan where the Department of Homeland Security used INA to remove him from the country. INA states that a non-citizen convicted of an aggravated felony (ex: sexual abuse of a minor) may be removed from the United States. An immigration judge authorized Esquivel-Quintana’s removal from the country after finding him guilty of sexual abuse of a minor. The Board of Immigration Appeals (BIA) affirmed the decision without looking at the individual facts of the case; and the U.S. Court of Appeals affirmed the BIA’s decision, establishing that BIA should be afforded deference considering an ambiguous statute under Chevron, USA, Inc. v. Natural Resources Defense Council, Inc. Additionally, BIA found that the rule of lenity, which favors defendants in the face of ambiguous statutes, did not apply. -- Vikrant Reddy, a Senior Research Fellow at the Charles Koch Institute, discussed the potential impact of the recent Supreme Court ruling and the main question of the case: whether a California statute’s “unlawful sexual intercourse with a minor” should be considered an aggravated felony (i.e. “sexual abuse of a minor”) under the Immigration and Nationality Act, and therefore, require mandatory removal. -- Featuring: Vikrant P. Reddy, Senior Research Fellow, Charles Koch Institute.

Advocate Health Care v. Stapleton is a combination of three cases, Advocate Health Care v. Stapleton, St. Peter’s Healthcare v. Kaplan, and Dignity Health v. Rollins, that confront the Employee Retirement Income Security Act of 1974 (ERISA) as it applies to churches and non-church religious non-profits. ERISA sets minimum standards for pension plans in private industry, such as an appeals process for participants and the right to sue for benefits. Churches are exempted from ERISA, however, the circuit courts have split over whether non-profit hospitals and schools are also exempted. Eric Baxter of the Becket Fund joined us again to discuss the 8-0 decision issued by the Supreme Court on June 5. -- Featuring: Eric Baxter, Senior Counsel, The Becket Fund for Religious Liberty.

In 2014, the Supreme Court unanimously held in Daimler AG v Bauman that, as a general matter, companies could only be sued in the state in which they are headquartered and incorporated or the plaintiff is injured. Nonetheless, the Supreme Court in BNSF Railways Co.. v. Tyrell was asked to define, once again, when a company has a substantial and continuous enough presence in a state to provide “general jurisdiction.” In BNSF, plaintiffs brought suit in Montana state court although neither were injured in that state and BNSF is headquartered in Texas. On May 30, the Supreme Court, in an 8-1 decision issued by Justice Ginsburg reaffirmed its holding in Daimler. In BNSF, it found that -- barring an exceptional case -- companies may only be sued where they are headquartered/incorporated or the plaintiff is injured. Karen Harned discussed the BNSF opinion and its impact on business and the plaintiff’s bar. -- Featuring: Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center.

On May 1, the D.C. Circuit denied petitions for en banc review of United States Telecom Association v. Federal Communications Commission. The petitioners challenge the FCC’s Open Internet Order, in which the FCC established Internet access as a telecommunications service subject to Title II of the Communications Act and adopted net neutrality rules. At the same time, the new Chairman of the FCC, Ajit Pai, has announced that he plans to reclassify Internet access as a Title I information service and roll back some of the net neutrality rules. -- Daniel Berninger, one of the petitioners in the case, and Adam White, who has been counsel for the intervenors, joined us to discuss the status of the case. In particular, discussed the D.C. Circuit’s order denying rehearing, the concurring opinion by Judges Srinivasan and Tatel, the dissenting opinions from Judges Brown and Kavanaugh, the pending FCC rulemaking, and the potential for Supreme Court review of the D.C. Circuit’s decision affirming the FCC’s Open Internet Order. Brett Shumate, counsel to petitioners Alamo Broadband and Daniel Berninger, moderated the discussion. -- Featuring: Daniel Berninger, Founder, VCXC - Voice Communication Exchange Committee and Adam J. White, Research Fellow, The Hoover Institution and Adjunct Professor, Antonin Scalia Law School, George Mason University. Moderator: Brett A. Shumate, Partner, Wiley Rein LLP.

On April 4, 2017, the Seventh Circuit handed down a divided en banc opinion in Hively v. Ivy Tech Community College, opening a circuit split on how to interpret Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on "race, color, religion, sex, or national origin[.]" In Hively, the Seventh Circuit became the first Court of Appeals to hold that sex discrimination encompasses discrimination based on sexual orientation. It held that plaintiff Kimberly Hively could pursue a claim against her former employer, Ivy Tech Community College, for her firing, which she claimed was motivated by her sexual orientation. In doing so, the court opened a split with the Eleventh Circuit, which had held just a few months earlier that employer decisions based on sexual orientation were not discrimination prohibited by Title VII. In addition to paving the way for a potential Supreme Court case to resolve the issue, the Seventh Circuit's decision includes an array of opinions demonstrating different methods of statutory interpretation. -- Featuring: Kenneth A. Klukowski, General Counsel, American Civil Rights Union and Prof. Anthony Michael Kreis, Visiting Assistant Professor of Law, Chicago-Kent College of Law.

The D.C. Circuit heard a rare doubleheader of en banc arguments on major structural separation of powers questions on May 24. -- First up was Raymond J. Lucia Companies, Inc. v. SEC, which presented the question whether Administrative Law Judges at the SEC are “Officers of the United States” who must be selected in compliance with the Appointments Clause. The SEC contends that its ALJs are employees, not officers, because the ALJs do not exercise “significant authority pursuant to the laws of the United States,” which the Supreme Court has described as the hallmark of officer status. Last August, a three-judge panel of the D.C. Circuit agreed with the SEC, relying almost exclusively on an earlier (divided) D.C. Circuit precedent, Landry v. FDIC, 204 F.3d 1125 (D.C. Cir. 2000), which held the ALJs at the FDIC are not officers because they do not issue final agency decisions. Three months later, the Tenth Circuit issued a 2-1 decision finding that SEC ALJs are officers who must be selected pursuant to the Appointments Clause. The Tenth Circuit panel expressly disagreed with Lucia and Landry that authority to issue final agency decisions is a prerequisite for officer status. The D.C. Circuit subsequently vacated its panel decision and granted en banc review. The status of ALJs under the Appointments Clause has important implications not only for the SEC’s enforcement of the securities laws but also for the system of administrative agency adjudication as a whole. -- The second case, PHH Corp. v. CFPB, presented the question whether an “independent” administrative agency may be led by a single person. In a 100-page opinion by Judge Kavanaugh (joined by Judge Randolph) drawing on historical practice and first principles of separation of powers, the panel concluded that the statutory provision vesting the CFPB’s broad enforcement authority in a single director removable by the President only “for cause” violated Article II of the Constitution. The panel emphasized the absence of any historical precedent for an independent agency with a single director—a structure that created, in the panel’s description, an administrative official with more power than anyone in the federal government other than the President. The panel explained that this concentration of authority in a single person unaccountable to the President except for cause posed a “threat to individual liberty.” The panel remedied the constitutional defect by severing the statute’s “for cause” removal provision, thus making the CFPB director removable by the President at will. Judge Henderson dissented in part, arguing that the panel could have resolved the case on the basis of PHH’s statutory rather than constitutional challenges. The D.C. Circuit granted en banc review on both the constitutional and statutory questions. The Justice Department (under the Trump Administration) filed an amicus brief in support of the challengers, while the CFPB continues to defend the constitutionality of its structure through its independent litigation authority. -- Featuring: Thaya Brook Knight, Associate Director of Financial Regulation Studies, Cato Institute and Christopher G. Michel, Associate, Bancroft PLLC.

On May 22, the Supreme Court threw out two North Carolina congressional districts as discriminatory. State legislatures face confusion over how to redistrict without violating either the Voting Rights Act or the Equal Protection Clause of the 14th Amendment. What does this case mean for the redistricting that will occur throughout the country after the 2010 Census? How can courts distinguish between legally acceptable partisan and unacceptable racial motives in redistricting when certain racial groups disproportionately support one particular political party? Hans von Spakovsky, a former commissioner on the Federal Election Commission and former Counsel to the Assistant Attorney General for Civil Rights at the U.S. Justice Department, discussed these issues and the Cooper decision. -- Featuring: Hans A. von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, The Heritage Foundation.

On May 22, 2017, the Supreme Court handed down its unanimous opinion in the closely-watched TC Heartland LLC v. Kraft Foods Group Brands LLC case. The patent venue statute provides that a domestic corporation may be sued for patent infringement anywhere the defendant “resides,” and the question before the Court was whether that rule incorporates the broader definition of corporate residence found in the general venue statute. The district court and the Court of Appeals for the Federal Circuit both held that it did, thus giving patent owners more choices of where they could sue for infringement. However, the Supreme Court reversed, holding that a corporate defendant only “resides” in its state of incorporation. -- While the Supreme Court rested its opinion solely on the statutory language and its own precedent interpreting it, many of the arguments raised in the amicus brief supporting both sides focused on the policy implications. In particular, the briefs argued that the Court should consider the effect its decision would have on certain patent assertion entities (PAEs) or “patent trolls”—non-practicing patent owners who litigate their patents, oftentimes in the Eastern District of Texas. Whether such arguments persuaded the Court is unclear, though it is clear that the Court’s narrow rule for where patent owners may sue will change the litigation landscape for practicing and non-practicing entities alike. -- Featuring: Mr. William J. Brown, Jr., Managing Partner, Brown Wegner LLP and Prof. J. Devlin Hartline, Assistant Director, Center for the Protection of Intellectual Property (CPIP) and Adjunct Professor, Antonin Scalia Law School, George Mason University.

In a recent decision, the Third Circuit held that hundreds of state-law claims alleging that bone fractures were caused by an osteoporosis medication were not preempted by federal law. While defendants argued, and the district court agreed, that the record showed that the FDA would not have approved stronger warnings in the product labeling, the Third Circuit concluded that the record raised factual issues that should go to a jury. In doing so, the court rejected defendants’ contention that preemption was a purely legal issue for the court to decide and suggested that the evidence must show that there was a “high probability” that the FDA would have rejected stronger labeling in order to invoke preemption. Was the appellate court correct? How does its decision fit with other recent preemption cases? Jay Lefkowitz and Doug Smith joined us to discuss these and other issues relating to the court’s decision. -- Featuring: Jay P. Lefkowitz, P.C., Partner, Kirkland & Ellis LLP and Douglas G. Smith, P.C., Partner, Kirkland & Ellis LLP.

On January 30, 2017, President Trump issued an Executive Order entitled Reducing Regulation and Controlling Regulatory Costs. The Executive Order instructs federal agencies to identify two existing regulations for repeal for each new regulation proposed. The Order further instructs the Director of the Office of Management and Budget to set an incremental cost target for each agency for each future fiscal year. Subject to certain exceptions, each agency must meet its target by offsetting the costs of new regulations by cost savings from repealed rules. -- A lawsuit has been filed challenging the legality of the Executive Order in federal district court in Washington, D.C. The complaint argues, among other things, that the Order violates the separation of powers, the President's obligations under the Take Care Clause, and the Administrative Procedures Act. Thomas M. Johnson, Jr., is the Deputy Solicitor General of West Virginia and counsel of record on an amicus brief co-filed with the State of Wisconsin on behalf of a 14-state coalition supporting the legality of the Executive Order. Mr. Johnson joined us to discuss the Order and the pending litigation. This Teleforum is the fourth in our Executive Order Teleforum Series. -- Featuring: Thomas M. Johnson, Jr., Deputy Solicitor General of West Virginia.

When is an alleged injury “concrete and particularized” under Article III of the U.S. Constitution? Spokeo, a self-proclaimed “online people search” site, was sued by Thomas Robins for publishing false information about him, which he claimed damaged his employment prospects. After being dismissed by the District Court and the Ninth Circuit for failing to state an injury “in fact,” the case was appealed to the Supreme Court where, one year ago, a 6-2 decision saw the Court vacate and remand the case. Legal experts Jeffrey Jacobson and Alan Raul joined us as we discussed the lasting implications of this decision on its first anniversary. -- Featuring: Jeffrey S. Jacobson, Partner, Kelley Drye & Warren LLP and Alan Charles Raul, Partner, Sidley Austin LLP.

Popular legend has it that before the Federal Radio Commission was established in 1927, the radio spectrum was in chaos, with broadcasting stations blasting powerful signals to drown out rivals. In this fascinating and entertaining history, Prof. Thomas Winslow Hazlett, a distinguished scholar in law and economics, debunks the idea that the U.S. government stepped in to impose necessary order. Instead, regulators blocked competition at the behest of incumbent interests and, for nearly a century, have suppressed innovation while quashing out-of-the-mainstream viewpoints. -- In his book, The Political Spectrum: The Tumultuous Liberation of Wireless Technology, from Herbert Hoover to the Smartphone, Prof. Hazlett details how spectrum officials produced a “vast wasteland” that they publicly criticized but privately protected. The story twists and turns, as farsighted visionaries—and the march of science—rise to challenge the old regime. Over decades, reforms to liberate the radio spectrum have generated explosive progress, ushering in the “smartphone revolution,” ubiquitous social media, and the amazing wireless world now emerging. Still, the author argues, the battle is not even half won. -- Featuring: Prof. Thomas W. Hazlett, H.H. Macaulay Endowed Professor of Economics, Clemson College of Business.