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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 Federal Vacancies Reform Act and Implications for Presidential Transitions Jan 20, 2021

Show notes

The Federal Vacancies Reform Act (FVRA) is a federal statute permitting the President to appoint acting officials to fill vacancies that arise within federal departments and agencies when certain conditions are met. Last amended in 1998, the law represents a compromise of sorts between the Legislative and Executive branches, which share power regarding the appointment and confirmation of many federal officers. The FVRA’s use in recent years to fill vacancies within the Departments of Justice and Veterans Affairs and agencies such as the Consumer Financial Protection Bureau, among others, has been controversial. What are the limits of the FVRA? Is the FVRA constitutional as applied to the appointment of acting principal officers? Does it apply when an organic agency statute also provides for a more specific succession plan? Does it apply to vacancies created by firing rather than temporary absence, death or resignation? Who has standing to challenge an FVRA appointment or the actions of an FVRA appointee? How should the incoming Administration think about the use of FVRA?
Featuring:
Thomas Berry, Research Fellow, Robert A. Levy Center for Constitutional Studies, Cato Institute
Stephen Migala, Attorney-Adviser, U.S. Department of State
Anne Joseph O'Connell, Adelbert H. Sweet Professor of Law, Stanford Law School
Moderator: Brian Johnson, Partner, Alston & Bird
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

The Myths and Facts Regarding the EPA’s Benefit-Cost Analysis and Science Transparency Rules Jan 20, 2021

Show notes

Over the past month, the Environmental Protection Agency has finalized two new transparency-related rules. The stated purpose of the rule “Increasing Consistency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process” is “to codify procedural best practices for the preparation, development, presentation, and consideration of BCA in regulatory decision-making under the CAA.” The rule “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information” is intended to help shed light on the science used and disseminated by the agency. Both of these rules have garnered both praise and criticism. There is also a significant amount of confusion over what these rules would actually do. Join us as we discuss these new rules.
Featuring:
-- Rachel Jones, Vice President, Energy and Resources Policy, National Association of Manufacturers (NAM)
-- Clint Woods, Policy Fellow for Regulations, Americans for Prosperity
-- Moderator: Daren Bakst, Senior Research Fellow, The Heritage Foundation.

Legacy of the Unalienable Rights Commission: Discussion with Dr. Peter Berkowitz, Director of the Policy Planning Office, U.S. Department of Jan 20, 2021

Show notes

In May 2019, Secretary of State Mike Pompeo announced formation of the Commission on Unalienable Rights, tasked with reexamining human rights in U.S. foreign policy. The very concept of “unalienable rights” proved immediately controversial with “traditional” human rights organizations, and four of them sued the State Department in federal court, claiming the Commission was unbalanced in its view on human rights. The Commission completed its work in August with a report outlining how “unalienable rights” – the rights inherent in all persons – inform the Declaration, and the U.N. Declaration of Human Rights, and how unalienable rights should inform U.S. foreign policy.
Human Rights organizations continue to write that they are alarmed by the Commission, arguing that it is the basis of a “pick-and-choose” version of human rights. Mary Ann Glendon, the Commission’s chair, recently stated, in a curated discussion with Secretary Pompeo, that human rights should be independent of sovereign decision making: “[I]f there are no rights that exist independently of the sovereign, then we are in a world where the strong do what they will and the weak and the vulnerable suffer the consequences.”
Are the Commission’s concerns different from the concerns that have been traditionally expressed in international human rights law, and, if so, what does the future hold for the Commission’s report?
Featuring:
-- Dr. Peter Berkowitz, Director of the Policy Planning Office, U.S. Department of State

Litigation Update: BP P.L.C. v. Mayor and City Council of Baltimore Jan 18, 2021

Show notes

In 2018, the City of Baltimore filed climate change litigation in state court against multiple energy companies seeking damages from the impact of climate change. The energy companies moved the lawsuit to federal court, arguing it was the proper venue; however, the U.S. District Court for the District of Maryland disagreed and ruled the case belonged in state court. The Fourth Circuit Court of Appeals in Richmond, Virginia affirmed the lower court’s decision and the energy companies appealed to the United States Supreme Court. Last October, the justices granted their petition for writ of certiori requesting review of the Fourth Circuit’s ruling remanding the case to state court. Oral arguments are set for Tuesday, January 19th.
Indiana Solicitor General Tom Fisher joins us to preview this pivotal hearing, the implications for similar litigation around the country and his role in leading a 15-state coalition that is taking a stand against climate change litigation.
Featuring:
Thomas M. Fisher, Indiana Solicitor General
Moderator: Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
This call is open to the public - please dial 888-752-3232 to access the call.

Courthouse Steps Oral Argument Teleforum: AMG Capital Management v. FTC Jan 18, 2021

Show notes

On January 13, 2021, the Supreme Court will hear oral argument in AMG Capital Management v. FTC, a case that could define the scope of the FTC's remedial authority and explore the limits of textualism. The FTC Act authorizes the Commission to seek a "permanent injunction" in federal court to stop “unfair methods of competition” and “unfair or deceptive acts or practices.” For many years, the FTC and most courts have interpreted "permanent injunction" to give the FTC the power to require defendants to return money to victims. The Seventh Circuit recently disagreed and held that the term "permanent injunction" does not encompass equitable monetary relief for past misconduct. To cover the oral arguments, Asheesh Agarwal, Deputy General Counsel at TechFreedom and an alumnus of the FTC, will moderate a distinguished panel featuring Alden Abbott, the FTC's General Counsel, and Corbin Barthold, TechFreedom's Director of Appellate Litigation.
Featuring:
-- Hon. Alden Abbott, General Counsel, Federal Trade Commission
-- Corbin Barthold, Director of Appellate Litigation, TechFreedom
-- Moderator: Asheesh Agarwal, Deputy General Counsel, TechFreedom

Courthouse Steps Oral Argument Teleforum: Uzuegbunam v. Preczewski Jan 14, 2021

Show notes

On Tuesday, January 12, 2021, the Supreme Court hears oral argument in Uzuegbunam v. Preczewski. The issue the Court will be deciding is whether the government’s post-filing change of an unconstitutional policy moots nominal-damages claims. The case has important implications for litigation involving myriad constitutional rights, and has garnered national attention. Our panel of experts joins us to discuss oral argument and possible outcomes.
Featuring:
Sarah M. Harris, Partner, Williams & Connolly
Justin Sadowsky, Trial Attorney, Council on American-Islamic Relations
Moderator: Casey Mattox, Senior Fellow, Free Speech and Toleration, Charles Koch Institute
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Capital Conversations: Craig Leen, Director of Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor Jan 14, 2021

Show notes

Join us as Director Craig Leen gives an overview of enforcement of civil rights and Equal Employment Opportunity laws at the Office of Federal Contract Compliance Programs (OFCCP) during the Trump Administration.
Featuring:
-- Craig Leen, Director of Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor

Clean Water & the Rule of Law: Recapping 4 Years of Reform and the Path Ahead Jan 08, 2021

Show notes

Under the current administration, the U.S. Environmental Protection Agency (EPA) has adopted a variety of regulations and policies aimed at reforming the nation’s water quality programs, with a focus on cooperative federalism and rule of law principles. Reflecting on EPA’s accomplishments and remaining agenda items, Assistant Administrator Ross will share his perspective on a range of topics, such as: A new definition of the “Waters of the United States”; Groundwater pollution; Enforcement of federal clean water laws; Reforms to state water quality certification procedures; Improvements to drinking water and wastewater infrastructure; Ocean pollution; and the newly established “Water Subcabinet.”
Featuring:
-- David P. Ross, Assistant Administrator for the Office of Water, U.S. Environmental Protection Agency
-- Moderator: Jeffrey H. Wood, Partner, Baker Botts L.L.P.

International Reference Pricing and Negotiation: Yes or No? Jan 08, 2021

Show notes

Drug prices are a pressing policy issue. On November 20, 2020, President Donald Trump announced two new rules aimed at reducing drug prices for Medicare beneficiaries. These rules use a system known as reference pricing, which ties the price the federal government pays for patented drugs and treatments to the prices other countries pay. These rules are set to take effect in January 2021. Meanwhile, legislation pending in the U.S. House of Representatives and supported by Speaker Nancy Pelosi would create an International Pricing Index. These policies enjoy bipartisan support, but they also face bipartisan opposition. Some think the Trump rules do not go far enough and others argue that reference pricing is bad policy regardless. Two distinguished experts who have worked and written extensively on this issue, Prof. Adam Mossoff and Dr. Wendell Primus, join us for a moderated discussion of reference pricing, current policy proposals, and future challenges.
Featuring:
-- Prof. Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason University; Senior Scholar, Hudson Institute; Visiting Fellow, Meese Center for Legal and Judicial Studies, The Heritage Foundation
-- Dr. Wendell Primus, Senior Policy Advisor on Budget and Health Issues, Office of Speaker Nancy Pelosi; Former Minority Staff Director, Joint Economic Committee
-- Moderator: Hon. Dean A. Reuter, Vice President, General Counsel, and Director of Practice Groups, The Federalist Society

Litigation Update: Restoring the Lost Privileges or Immunities Clause? Dec 22, 2020

Show notes

A new petition for certiorari at the U.S. Supreme Court presents an invaluable opportunity for the Court to revisit the Privileges or Immunities Clause. And it is unlike any opportunity in recent memory. First, it presents a question upon which every theory of the Fourteenth Amendment agrees: Does the Amendment protect a citizen against rights violations perpetrated by that citizen’s own state? The text and history of the provision, as well as Supreme Court precedent, unequivocally say “Yes,” but the lower courts have fundamentally misunderstood the Clause and rendered it impotent against one’s own state. Second, unlike most Privileges or Immunities cases, this case does not ask the Court to overrule the Slaughter-House Cases. Instead it asks for judicial protection of a right expressly recognized in Slaughter-House: the right to use the navigable waters of the United States, a right that was critically important to the freedmen at the time of the Fourteenth Amendment’s ratification. Thus, unlike recent cases such as McDonald, Timbs, and Ramos, in which the Court was able to avoid confronting the Privileges or Immunities Clause by ruling on alternative grounds, this case begins and ends with the Clause. It therefore offers an opportunity for the Court to begin—in a principled and incremental way—the process of revitalizing the provision that most recognize as the keystone of the Fourteenth Amendment. How have the courts construed this provision since its post-Civil War enactment? What should the Supreme Court do here? And should the oft-criticized Slaughter-House Cases be affirmed?
Tune in for a fascinating discussion of the original meaning of the Privileges or Immunities Clause and the unique case of Courtney v. Danner. Counsel of record for the plaintiffs in the case, Michael Bindas of the Institute for Justice (IJ), and Fourteenth Amendment scholar Christopher Green, Professor of Law and H.L.A. Hart Scholar in Law and Philosophy at the University of Mississippi School of Law, will join IJ attorney and moderator Adam Griffin for an exciting litigation update.
Featuring:
Michael Bindas, Senior Attorney, Institute for Justice
Prof. Christopher Green, Professor of Law and H.L.A. Hart Scholar in Law and Philosophy, University of Mississippi School of Law
Moderator: Adam Griffin, Constitutional Law Fellow, Institute for Justice
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

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