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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:

Humphrey’s Executor and Presidential Removal Power Nov 15, 2022

Show notes

In one of its most significant separation of powers opinions, the U.S. Supreme Court decided Humphrey’s Executor v. United States 87 years ago, in which it held that President Roosevelt’s authority to remove a commissioner that his predecessor nominated and the Senate confirmed to the Federal Trade Commission was not “illimitable” under the Constitution. The Court held that the President’s discretion to remove the commissioner based on his differing policy views was bounded by the Federal Trade Commission Act’s limitation on removal only for "inefficiency, neglect of duty, or malfeasance in office."
Humphrey’s continues to have significant implications today, in cases like FTC v. Walmart (N.D. Ill.) where Walmart has argued that by virtue of Humphrey’s, the “quintessentially executive law-enforcement power” that the FTC has under its authorizing statute is unconstitutional because its commissioners are not removable at will by the President.
This teleforum will analyze the contemporary implications of Humphrey’s and its continuing vitality in U.S. Supreme Court’s administrative law jurisprudence.
Featuring:
Gregory Dolin, Senior Litigation Counsel, New Civil Liberties Alliance
Daniel Epstein, Director, Trust Ventures
Roger Severino, Vice President, Domestic Policy and The Joseph C. and Elizabeth A. Anderlik Fellow, The Heritage Foundation
Kimberly Wehle, Professor of Law, University of Baltimore Law School; Visiting Professor, Washington College of Law, American University
[Moderator] Aram A. Gavoor, Associate Dean for Academic Affairs and Professorial Lecturer in Law, the George Washington University Law School

Courthouse Steps Oral Argument: SEC v. Cochran Nov 08, 2022

Show notes

On November 7, 2022, the U.S. Supreme Court will hear oral argument in Michelle Cochran v. U.S. Securities and Exchange Commission. In April 2016, the Securities and Exchange Commission (SEC) brought an enforcement action against Michelle Cochran, a certified public accountant, alleging that she had failed to comply with federal auditing standards. A SEC administrative law judge (ALJ) determined Cochran had violated federal law, fined her $22,500, and banned her from practicing before the SEC for five years. The SEC adopted the ALJ’s decision, and Cochran objected.
Before the SEC could rule on Cochran’s objection, the Supreme Court decided Lucia v. SEC, in which it held that SEC ALJs are officers of the United States under the Appointments Clause, who must be appointed by the President, a court of law, or a department head. In response to the Lucia ruling, the SEC remanded all pending administrative cases for new proceedings before constitutionally appointed ALJs, including Cochran’s.
Cochran filed a federal lawsuit arguing that while Lucia may have addressed one constitutional issue with ALJs, it left uncorrected another problem: because SEC ALJs enjoy multiple layers of "for-cause" removal protection, they are unconstitutionally insulated from the President's Article II removal power. The district court dismissed her case for lack of subject-matter jurisdiction based on five circuit courts of appeal ruling that the Exchange Act implicitly stripped district courts of the jurisdiction to hear challenges to ongoing SEC enforcement proceedings. Arguing that in 2010, the Supreme Court had unanimously ruled in Free Enterprise Fund that nothing in the Exchange Act stripped federal court jurisdiction either explicitly, or implicitly, Cochran appealed to the U.S. Court of Appeals for the Fifth Circuit. A three judge panel affirmed the dismissal 2-1, but later, the Fifth Circuit sitting en banc, reversed 9-7, holding that Cochran had district court jurisdiction to bring her challenge to the SEC ALJ’s removal protections.
The case is set to be argued on Nov 7, 2022. We will break down the oral argument for this case on the next day, November 8, 2022.
Featuring:
Margaret A. Little, Senior Litigation Counsel, New Civil Liberties Alliance

Tiwari v. Friedlander: Which Rational Basis Test is it Anyway? Nov 07, 2022

Show notes

In Tiwari v. Friedlander, the Petitioners ask the Supreme Court to grant certiorari to address whether the Fourteenth Amendment requires meaningful review of restrictions on the right to engage in a common occupation. The petition argues that the right to engage in a common occupation is deeply rooted in the nation’s history and tradition, but its protection has been inconsistent, sometimes leading to conflicting results across the lower courts. The petition also contends this inconsistency is caused by the standard under which courts review economic-liberty challenges— the rational basis test.
The Petitioners, Dipendra Tiwari and Kishor Sapkota, challenge Kentucky’s Certificate-of-Need (CON) Law as an unconstitutional infringement on their right to earn an honest living. The CON law prevents them from opening a healthcare agency they designed to provide home services to the large community of Nepali-speaking refugees and immigrants in Louisville. By contrast, Kentucky contends that the CON law is necessary for lowering competitive pressure and increasing profits for incumbents who can pass their gains to the public.
The petition raises questions about the proper articulation of the rational basis test and whether the right to engage in a common occupation is deeply rooted in history and tradition under the Court’s recent landmark decision Dobbs v. Jackson Women’s Health Organization.
Which Rational Basis Test is it anyway? Is the Right to Engage in a Common Occupation Deeply Rooted in History and Tradition and does the Fourteenth Amendment Guarantee Meaningful Protection for that Right?
To discuss the petition and these questions, please join the lead attorney for the Petitioners, Andrew H. Ward, attorney at the Institute for Justice, and Professor David Upham, Director of Legal Studies and Associate Professor at the University of Dallas.
Featuring:
--Andrew Ward, Attorney, Institute for Justice
--Prof. David Upham, Director of Legal Studies & Associate Professor, University of Dallas
--Moderator: Adam Griffin, Law Clerk, US District Courts

Litigation Update: Garrison v. U.S. Dept. of Ed.: A Challenge to Biden’s Student Loan Forgiveness Nov 04, 2022

Show notes

In August 2022, the Biden administration announced plans to cancel up to $20,000 in student loan debt per person for more than 40 million Americans. To do this, the Department of Education relies on the HEROES Act which, as an aid to veterans and their families, allows the government to modify student loans during times of war or national emergency. On September 27, 2022, the Pacific Legal Foundation, on behalf of Frank Garrison, filed suit against the U.S. Department of Education to block the Department’s move to cancel more than $500 billion in student loan debt. Plaintiff seeks a temporary restraining order from the U.S. District Court for the Southern District of Indiana to prevent the loan cancellation from going into effect. Mr. Garrison, as a part of an existing, congressionally authorized Public Service Loan Forgiveness (PSLF) program, will receive debt forgiveness after making 10 years of payments on his loans. The challenged program, however, will, as a result of cancelling his loans, stick him with a new state tax bill which he would not have under his existing PSLF program. Indiana is one of seven states that plans to tax any debt forgiven in Biden's plan, and thus Garrison would owe more than $1,000 in state and local taxes.
This Litigation Update from Caleb Kruckenberg will provided a current look at Garrison v. U.S. Department of Education.
Featuring
--Caleb Kruckenberg, Litigation Counsel, Pacific Legal Foundation
--[Moderator] Diana Furchtgott-Roth, Director, Center for Energy, Climate, and Environment and The Herbert and Joyce Morgan Fellow in Energy and Environmental Policy, The Heritiage Foundation

Courthouse Steps Oral Argument: SFFA v. Harvard Nov 02, 2022

Show notes

On October 31, 2022, the U.S. Supreme Court heard Students for Fair Admissions Inc. v. President & Fellows of Harvard College.
In perhaps the most anticipated case of this term, the court considers a challenge to the use of racially preferential undergraduate student admissions practices at Harvard University and the University of North Carolina.
Our experts broke down the oral argument on the same day, October 31, 2022.
Featuring:
--Prof. Amanda Shanor, Assistant Professor of Legal Studies & Business Ethics, The Wharton School
--Devon Westhill, President and General Counsel, Center for Equal Opportunity
--Moderator: Curt Levey, President, Committee for Justice

What Are the Limits of Emergency Executive Powers? Nov 01, 2022

Show notes

The use of presidential emergency powers has raised controversy under administrations of both parties. President Trump’s attempt to transfer funds to build his border wall, the CDC’s eviction moratorium and OSHA vaccine mandate, Title 42 border expulsions, and President Biden’s student loan forgiveness plan have all raised questions of overreach. This panel explored the pros and cons of executive emergency powers and whether or not there should be tighter constraints on their use.
Featuring:
Daniel J. Dew, Legal Policy Director, Pacific Legal Foundation
Elizabeth Goitein, Senior Director, Liberty & National Security Program, Brennan Center for Justice at New York University Law School
Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
Moderator: Ilya Shapiro, Senior Fellow and Director of Constitutional Studies, Manhattan Institute

Is the Office of Foreign Assets Control's Sanctioning of Tornado Cash a Threat to the Future of Financial Privacy? Oct 27, 2022

Show notes

Tornado Cash is an open source, decentralized cryptocurrency tumbler that was introduced in 2019. The service allows users to mix identifiable Ethereum cryptocurrency funds with others, thus obscuring the trail back to the funds original source. On August 8, 2022, the Treasury’s Office of Foreign Assets Control (OFAC) sanctioned Tornado Cash, making it illegal for United States citizens, residents, and companies to receive or send money through the service. OFAC claims that Tornado cash is responsible for laundering more than $7 billion in virtual currencies, including money believed to be stolen by North Korea and criminal groups.
As opposed to sanctioning people, organizations, or particular addresses associated with rogue regimes, OFAC has sanctioned the code of Tornado Cash itself, causing critics to claim that OFAC has exceeded its statutory authority .
Join our experts as they discuss OFAC’s blacklisting of Tornado Cash, potential litigation from opponents, and the broader implications for financial privacy, national security, and free speech.
Featuring:
Paul Brigner, Head of U.S. Policy and Strategic Advocacy, Electric Coin Company.
Michael Mosier, General Counsel, Espresso Systems
Kevin Werbach, Professor of Legal Studies and Business Ethics at the Wharton School, University of Pennsylvania
Moderator: J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University

A Seat at the Sitting - November 2022 Oct 26, 2022

Show notes

Each month, a panel of experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this program are included below.

Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (October 31) – Whether institutions of higher education can use race as a factor in admissions; and whether Harvard University is violating Title VI of the Civil Rights Act by purportedly penalizing Asian American applicants.

Students for Fair Admissions, Inc. v. University of North Carolina (October 31) – Whether institutions of higher education can use race as a factor in admissions; and whether a university can reject race-neutral admissions without proving that such action would damage the student body or standard of education.

Securities and Exchange Comm’n v. Cochran (November 7) – Whether a federal district has jurisdiction to hear a suit in which the respondent in an SEC administrative proceeding seeks to enjoin that proceeding based on an alleged constitutional defect regarding the removal of administrative law judges.

Axon Enterprise, Inc. v. Federal Trade Comm’n (November 7) – Whether Congress stripped federal district courts of jurisdiction over constitutional challenges to the FTC by granting the courts of appeals jurisdiction over FTC cease-and-desist orders.

Haaland v. Brackeen (November 9) – Equal protection clause; whether the Indian Child Welfare Act of 1978 violates the anti commandeering doctrine of the 10th amendment.

Featuring:

Jennifer Weddle, Shareholder, Greenberg Traurig
Margaret A. Little, Senior Litigation Counsel, New Civil Liberties Alliance
Alison Somin, Legal Fellow, Center for the Separation of Powers, Pacific Legal Foundation
Elyse Dorsey, Partner, Kirkland & Ellis LLP
Moderator: Amy Howe, Howe on the Court

Talks with Authors: Vincent Phillip Munoz on Religious Liberty and the American Founding Oct 25, 2022

Show notes

What did the American Founders mean when they declared religious liberty to be an “inherent,” “natural” and “inalienable” right? Does the right to religious liberty provide religious exemptions from generally applicable laws? What is wrong with a state establishment of religion?
In Religious Liberty and the American Founding, Vincent Phillip Muñoz addresses these questions and others, offering a novel interpretation of Founders’ philosophy and constitutionalism of religious liberty. Drawing on early state constitutions, declarations of religious freedom, Founding-era debates, and the First Amendment’s drafting record, the book documents and articulates the Founders’ understanding of religious liberty as an inalienable natural right, uncovers what we can and cannot determine about the original meaning of the First Amendment’s Religion Clauses, and constructs a natural rights jurisprudence of religious liberty, exploring and explaining how the Founders’ principles would adjudicate First Amendment church-state issues. Contrary to what many might assume, Muñoz contends that adherence to the Founders would lead neither to consistently conservative nor consistently liberal results, but rather to a novel church-state jurisprudence that, in most cases, would return authority from the judiciary to the American people.
Join us for a conversation of Professor Muñoz’s new book, with Professor Muñoz himself and moderated by Michael McConnell, the director of Stanford Law School’s Constitutional Law Center.
Featuring:
--Vincent Phillip Muñoz , Tocqueville Associate Professor Department of Political Science and Concurrent Associate Professor of Law, University of Notre Dame Law School
--Moderator: Michael McConnell, Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School; Senior Fellow at the Hoover Institution

Courthouse Steps Oral Argument: National Pork Producers Council v. Ross Oct 19, 2022

Show notes

In National Pork Producers Council v. Ross, the Supreme Court will address the dormant commerce clause in the context of a California law regarding the housing of farm animals. Specifically, the Court will decide "whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant commerce clause..."
Oral arguments took place on October 11. That afternoon, the Manhattan Institute's Ilya Shapiro joined us to analyze the arguments and examine the issues underlying the case.
Featuring:
Ilya Shapiro, Senior Fellow and Director of Constitutional Studies, Manhattan Institute

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