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FedSoc Forums

*This series was formerly known as Teleforums.

FedSoc Forums is a virtual discussion series dedicated to providing expert analysis and intellectual commentary on today’s most pressing legal and policy issues. Produced by The Federalist Society’s Practice Groups, FedSoc Forum strives to create balanced conversations in various formats, such as monologues, debates, or panel discussions. In addition to regular episodes, FedSoc Forum features special content covering specific topics in the legal world, such as:

Courthouse Steps: A series of rapid response discussions breaking down all the latest SCOTUS cases after oral argument or final decision

A Seat at the Sitting: A monthly series that runs during the Court’s term featuring a panel of constitutional experts discussing the Supreme Court’s upcoming docket sitting by sitting

Litigation Update: A series that provides the latest updates in important ongoing cases from all levels of government

The Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Latest Episodes:

The FCC's Digital Discrimination Rulemaking: Facilitating Equal Access to Broadband Services Jun 28, 2023

Show notes

The Infrastructure Investment and Jobs Act, signed into law on November 15, 2021, requires the Federal Communications Commission (FCC), within two years, to promulgate rules to facilitate equal access to broadband internet services and to prevent "digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin." Significantly, the statute also requires that the rules take into account "issues of technical and economic feasibility." The FCC issued a notice of proposed rulemaking on December 22, 2022, and comments and reply comments have now been submitted.
Given the importance of widespread access to broadband services, the "Digital Discrimination" proceeding is one of the most important items on the FCC's agenda. Does the agency have authority to adopt rules that would impose liability on broadband providers based only on a showing of unintentional disparate impact or is evidence of intentional discrimination required? In considering liability, how should the agency take into account claims relating to the technical and economic feasibility of making available access? What impact will the rules have on investment and innovation under various scenarios? What type of process should the Commission employ in considering complaints of digital discrimination?
A panel of experts joined us for a lively discussion of these and other questions as the FCC prepares to adopt final rules in the digital discrimination proceeding.
Featuring:
--Seth L. Cooper, Director of Policy Studies & Senior Fellow, The Free State Foundation
--Harold Feld, Senior Vice President, Public Knowledge
--Clint Odom, Vice President, Strategic Alliances & External Affairs, T-Mobile
--Moderator: Randolph J. May, President, The Free State Foundation

Major Questions Doctrine and the Tech and Telecom Sectors After West Virginia v. EPA Jun 27, 2023

Show notes

Last year, the Supreme Court issued a landmark decision in West Virginia v. EPA, in which the Court reinvigorated the “Major Questions Doctrine” of administrative law. Given the Federal Trade Commission’s efforts to expand its rulemaking powers under Section 5 of the FTC Act and the likely return of the “net neutrality” fight at the Federal Communications Commission once a third Democratic commissioner is confirmed, this webinar explored how the reinvigorated “Major Questions Doctrine” may impact tech and telecom policy.
Featuring:
--Ian Heath Gershengorn, Partner and Chair, Appellate & Supreme Court Practice, Jenner & Block LLP; Former Acting Solicitor General
--Thomas M. Johnson, Jr., Partner and Chair, Issues & Appeals Practice, Wiley Rein LLP; Former General Counsel, Federal Communications Commission
--Hon. Maureen K. Ohlhausen, Partner and Chair, Antitrust & Competition Practice, Baker Botts LLP; Former Acting Chairman and Commissioner, Federal Trade Commission
--Christopher J. Wright, Partner and Co-Chair, Issues & Appeals Practice, Harris, Wiltshire & Grannis LLP; Former General Counsel, Federal Communications Commission
--Moderator: Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal & Economic Public Policy Studies

Courthouse Steps Decision: Haaland v. Brackeen Jun 27, 2023

Show notes

On Thursday, June 15, 2023, the Supreme Court issued its decision in Haaland v. Brackeen. The case was primarily concerned with the constitutionality of the Indian Child Welfare Act (ICWA), a federal law enacted in 1978 that governs state-level adoption and foster care cases involving Native American children. Among other provisions, the ICWA gives tribal governments jurisdiction over the adoption of Native American children who reside on a reservation or have certain tribal connections.
In a 7-2 decision, the Court affirmed the Fifth Circuit’s finding that the ICWA is constitutional, rejected petitioners’ Tenth Amendment argument, and found that petitioners lacked the standing required for other challenges made. Justice Barrett delivered the opinion for the Court; Justices Gorsuch and Kavanaugh filed concurring opinions; Justices Thomas and Alito filed dissenting opinions.
In this recorded webinar Jennifer Weddle discussed the Court’s findings.
Featuring:
--Jennifer Weddle, Principal Shareholder & Co-Chair, American Indian Law Practice Group, Greenberg Traurig, LLP

Talks With Authors: Judge Amul Thapar on "The People's Justice" Jun 27, 2023

Show notes

On June 20, Judge Amul Thapar of the Sixth Circuit published "The People's Justice," in which he explores "the human stories behind twelve illustrative cases on which Justice [Clarence] Thomas has ruled."
In this video podcast, Judge Thapar joined the Federalist Society's Dean Reuter to discuss the book and Justice Thomas's legacy.
Featuring:
Hon. Amul R. Thapar, U.S. Court of Appeals for the Sixth Circuit
Moderator: Dean Reuter, Senior Vice President and General Counsel, Federalist Society
Transcript

Courthouse Steps Decision: United States v. Hansen Jun 26, 2023

Show notes

On Friday, June 23, 2023, the Supreme Court released its decision in United States v. Hansen. At issue in Hansen was whether 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), a federal criminal statute that prohibits encouraging or inducing unlawful immigration for commercial or financial benefit sometimes termed “the encouragement provision,” violates the First Amendment.
Helamen Hansen operated an advising service for undocumented immigrants who wanted to pursue U.S. citizenship. Under the encouragement provision, Hansen was convicted of two counts of encouraging or inducing illegal immigration for financial gain (along with other federal crimes). He challenged those convictions, contending the law is facially overbroad. The Ninth Circuit agreed, vacating his convictions on those counts. The Court heard Oral Argument on March 27, 2023.
In this recorded Post-Decision Courthouse Steps webinar, where we broke down and analyzed the Court’s decision.
Featuring:
--Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland

Transatlantic Debate: Evaluating the EU-US Data Privacy Framework Jun 26, 2023

Show notes

In October 2022, President Biden issued an executive order regarding the European Union - U.S. Data Privacy Framework. The Framework allows for data flows between the EU and the U.S., and it was established after the European Court of Justice struck down a prior agreement known as the EU-U.S. Privacy Shield. The executive order addresses U.S. collection of signals intelligence, which has been a source of concern for EU regulators and privacy advocates. The executive order limits signals intelligence collection to defined national security objectives, requires the privacy and civil liberties of all persons be considered regardless of nationality, and the collection must be proportionate. In addition, the executive order calls for a multi-layered review process that will allow individuals to lodge complaints regarding the collection of signals intelligence.
Our experts discussed whether the Framework addresses the concerns of privacy advocates in the EU and the U.S., and they considered the implications of the review process for U.S. intelligence collection. This program also explored whether the EU and U.S. can reach a durable privacy agreement given the tension between EU privacy preferences and U.S. national security needs.
Featuring:
--Max Schrems, Founder, NOYB
--Stewart Baker, Of Counsel, Steptoe & Johnson LLP
--Moderator: Matthew R. A. Heiman, General Counsel & Corporate Secretary, Waystar Health; Senior Fellow and Director of Planning, National Security Institute

Burnett v. Smith & Implied Rights of Action Jun 22, 2023

Show notes

If a federal agent violates a citizen’s constitutional rights, does a justiciable cause of action arise? If yes, do federal courts have the power to award damages for constitutional violations? These questions have been considered by the U.S. Supreme Court in cases like Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) and Egbert v. Boule (2022).
Three state supreme courts have recently issued competing decisions on whether similar separation of powers concerns arise when state courts recognize rights under state constitutions.
Burnett v. Smith, issued on May 5, 2023, was the latest of these three decisions. The case arose after the plaintiff, garbage truck driver Cory Burnett, was pulled over by Iowa Department of Transportation Officer Philip Smith for a cracked windshield. Burnett was eventually arrested by Officer Smith for interference with official acts (Iowa Code §719.1). The charges were ultimately dismissed following a trial. Later, Burnett sued Officer Smith for, among other things, an unreasonable seizure directly under the Iowa Constitution. On appeal, the Supreme Court of Iowa unanimously affirmed the district court’s judgment against Burnett and, in the process, held that courts in Iowa cannot imply remedies directly under the Iowa constitution, overruling Godfrey v. State (898 N.W.2d, 2017).
In alignment with recent federal precedent, the court held that letting plaintiffs bring constitutional claims without the Iowa legislature first authorizing them “undermined the established allocation of responsibility between the legislative and the judicial branches of government.” This holding is at odds with decisions in Michigan (Bauserman v. Unemployment Insurance Agency) and Nevada (Mack v. Williams) where plaintiffs are allowed to sue without a legislative cause of action, provided certain conditions are met.
Are state courts allowed to recognize remedies directly under their state constitutions? Or are they similarly constrained by separation of powers? In this recorded webinar discussion Anya Bidwell and Erin Hawley consider these questions and more.
Featuring:
--Anya Bidwell, Attorney, Institute for Justice
--Erin Hawley, Senior Counsel, Alliance Defending Freedom

Dueling Decisions on the Regulation and Distribution of Mifepristone: AHM v. FDA & WA v. FDA Jun 21, 2023

Show notes

Two cases concerning the FDA’s approval of Mifepristone, Alliance for Hippocratic Medicine v. United States Food and Drug Administration (AHM v. FDA) and Washington v. United States Food and Drug Administration (WA v. FDA) have caused significant conversations concerning the FDA’s approval processes, statutes of limitation for challenges to approvals, standing, administrative review, and judicial authority. The cases present interesting questions concerning the regulatory process, separation of powers, and the role of judges.
In AHM v. FDA, a judge out of the Northern District of Texas blocked the FDA’s approval of the drug, meaning it could no longer be distributed as an FDA-approved drug. The same day, in WA v. FDA, however, a separate district judge ruled the FDA was being overly restrictive and barred it from altering the regulatory status of Mifepristone in approximately a third of the country. Perhaps due to the drastic split between the courts, both cases have quickly ascended through the courts of appeals.
Join our panel of experts, including Adam Unikowsky --a partner at Jenner & Block who has written substantively on the issue and and whose firm submitted an amicus brief on behalf of numerous organizations in support of the FDA in AHM v. FDA, and Thomas Jipping –a Senior Legal Fellow at the Heritage Foundation where he has published on these issues, in a conversation moderated by Jennie Lichter as they discuss these cases, their substance, and the possible ramifications of future decisions.
Featuring:
Thomas Jipping, Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
Adam Unikowsky, Partner, Jenner & Block LLP
[Moderator] Jennie Lichter, Deputy General Counsel, The Catholic University of America

New START, Nuclear Weapons, and the New Landscape: Arms Control and Deterrence Post-Ukraine Jun 20, 2023

Show notes

In February 2023, Russian President Vladimir Putin announced that Russia would withdraw from the New START arms reduction treaty, which was the last remaining arms control treaty between the two nations that together control almost 90% of the world’s nuclear warheads. Then, in March, Putin announced that Russia would place nuclear-capable ballistic missile systems in Belarus, which shares a border with Poland. Harvard Professor and national security expert Stephen P. Rosen discussed the implications of these events for the U.S. security and arms-control efforts, as well as the broader strategic landscape for nuclear weapons.
Featuring:
--Stephen P. Rosen, Beton Michael Kaneb Professor of National Security and Military Affairs, Harvard University
--Moderator: Dan West, Director, SCF Partners

Courthouse Steps Decision: Sackett v. Environmental Protection Agency Jun 20, 2023

Show notes

In Sackett, the Court clarified one of the longest-standing environmental law challenges: defining “waters of the United States.” The Court unanimously rejected the “significant nexus” test for jurisdiction and adopted the “relatively permanent waters” test from the plurality decision in the 2006 case, Rapanos v. United States. Also in Sackett, a 5-4 majority narrowed the definition of adjacent wetlands significantly.
Listen to a recording of this panel as they discuss the Court’s decision, how it might impact the Biden EPA’s recently adopted regulation, and the future of the Clean Water Act.
Featuring:
--Moderator: Hon. Thomas Griffith, Fmr. Judge, US Court of Appeals, DC Circuit; Special Counsel, Hunton Andrews Kurth
--Deidre Duncan, Partner & Environmental Practice Group Leader, Hunton Andrews Kurth
--Tom Ward, Vice President for Litigation, National Association of Home Builders
--Sambhav Sankar, Senior Vice President of Programs, Earthjustice
Professor William W. Buzbee, Director, Environmental Law & Policy Program, Georgetown Law

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