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Necessary & Proper Podcast

Necessary & Proper is the official podcast of the Federalist Society’s Article I Initiative. The Framers of the Constitution intended the legislature to be the most powerful branch of government. In its present state, as the government operates on a day to day basis, it is not. Were the Founders simply wrong about the inherent powers of the legislative branch? Has the institution of Congress developed practices that are not compatible with the text of the Constitution? Why are current Congressional leaders unable or unwilling to act as an effective check on the presidency? Why is Congress unable to pass a budget? Why has Congress ceded much of its authority to the executive branch and to administrative agencies? What does it mean to serve productively as a member of the House or Senate? These and other important questions are the focus of the Article I Initiative. Periodic releases from Necessary & Proper will feature experts who can shed light on what the Framers envisioned for the legislative branch and how it can be restored to its proper place in the constitutional order.

Latest Episodes:

Necessary & Proper Episode 80: Creatures of Statute II: Administrative Agencies and Policymaking Dec 05, 2022

Show notes

This second event of a co-sponsored series on the Administrative State focused on the role of the administrative state in policymaking. Through its various roles and capacities, the Administrative state can have great leeway to create policy that has similar effects to rules and laws created through the legislative process but comes to be via different means. Agencies can make rules, issue guidance documents that often carry significant weight, interpret statutes, and enforce their rules. All these can contribute to agencies making policies that have the force of law.
Some argue that this policy-making by non-elected individuals serving in the administrative state is improper and usurps elected officials' authority. Others contend this is a valuable and necessary part of the Administrative State's ability to operate as authorized, and that the policy-making capacity of the Administrative State is a net benefit.
Panelists David Fotouhi, a current partner at Gibson, Dunn & Crutcher LLP who spent four years serving with the EPA, and Richard Peirce, a professor of Law at George Washington University who focuses on the Administrative State, discussed the policy-making power of the Administrative State, and the practical ways in which that power can often be applied. Judge Lisa Branch moderated.
Featuring:
- David Fotouhi, Partner, Gibson, Dunn & Crutcher LLP
- Richard Pierce, Lyle T. Alverson Professor of Law, George Washington University Law School
- Moderator: Hon. Lisa Branch, Judge, United States Court of Appeals, Eleventh Circuit

Necessary & Proper Episode 79: Address by Senator Michael S. Lee Nov 21, 2022

Show notes

On Friday, November 11, 2022, Senator Mike Lee of Utah addressed the Federalist Society's National Lawyers Convention.
Featuring:
- Hon. Michael S. Lee, United States Senate, Utah

Necessary & Proper Episode 78: Creatures of Statute: Administrative Agencies in Practice Sep 29, 2022

Show notes

This first luncheon in a series on how the administrative state functions in modern American government featured former "regulations czar" Paul J. Ray, who served as President Trump's Office of Information and Regulatory Affairs Administrator (OIRA). As OIRA Administrator, Ray oversaw the review of hundreds of regulations, and led efforts on regulatory reform.
The luncheon also featured Boris Bershteyn, a partner at Skadden, Arps, Slate, Meagher, and Flom, LLP. Mr. Bershteyn served as acting Administrator of ORIA in 2012 and 2013. He was also General Counsel of the Office of Management and Budget starting in 2011.
Moderating this event was Hon. Stephen Alexander Vaden from the United States Court of International Trade. Before joining the bench, Judge Vaden served as General Counsel of the United States Department of Agriculture. During his nearly four-year tenure as head of the Office of General Counsel, the Department won two cases before the United States Supreme Court, relocated and reorganized the agencies that comprise the Department to better serve rural America, engaged in substantial regulatory reform, developed new regulations to allow for the legal sale of hemp and the labeling of bioengineered products, and implemented the 2018 Farm Bill.
Featuring:
- Boris Bershteyn, Partner, Skadden, Arps, Slate, Meagher, and Flom, former acting OIRA Administrator
- Paul J. Ray, Director, Thomas A. Roe Institute for Economic Policy Studies, The Heritage Foundation, former OIRA Administrator
- Moderator: Hon. Stephen Alexander Vaden, United States Court of International Trade

Necessary & Proper Episode 77: Who Decides if January 6 Was an Insurrection Prohibiting the Election Of Participants? Sep 27, 2022

Show notes

The Fourteenth Amendment prohibits anyone who has engaged in insurrection or rebellion against the United States after swearing an oath to support the Constitution from ever holding public office again. In light of this Disqualification Clause, some have called for participants in the riot that occurred on January 6, 2021 to be barred from future elections.
Who has the authority to enforce this provision, the states or Congress? Normally states cannot add requirements for holding public office, but is this different, or is enforcement left to Congress itself through its ability to expel members?
These questions took on new relevance on September 6, 2022, when New Mexico Judge Francis Mathew ordered that Otero County Commissioner Couy Griffin be removed from office effective immediately for his participation in the January 6 riot under the Disqualification Clause. While this decision is likely to be appealed, it could have serious implications for members of Congress and/or former President Donald J. Trump.
Listen to a discussion on these important issues between James Bopp, Jr., who represented Congressman Madison Cawthorn against challenges to his office under the Disqualification Clause, and Pressly Millen, who represented the challengers to Congressman Cawthorn. That challenge was mooted after Congressman Cawthorn failed to win his primary, leaving the underlying questions unanswered. Joining Mr. Bopp and Mr. Millen will be Kory Langhofer, who successfully represented Congressman Andy Biggs before the Arizona Supreme Court on a Disqualification Clause challenge, and moderator Devin Watkins, an Attorney at the Competitive Enterprise Institute.
Featuring:
- James Bopp, Jr., General Counsel, James Madison Center for Free Speech
- Kory Langhofer, Managing Partner, Statecraft
- Pressly M. Millen, Partner, Womble Bond Dickinson
- Moderator: Devin Watkins, Attorney, Competitive Enterprise Institute

Necessary & Proper Episode 76: 2015 Address by Senator Orrin Hatch Apr 27, 2022

Show notes

Recently we were saddened to hear of the passing of Senator Orrin Hatch. In his honor, we hope you will enjoy revisiting remarks that Senator Hatch gave during the 2015 Federalist Society National Lawyers Convention. That year's Convention was focused on "The Role of Congress," and Senator Hatch eloquently discussed Congress's place in the Constitution's separation of powers as well as the importance of prudence in effective governance. The Senator was introduced by Leonard Leo, then Executive Vice President of the Federalist Society.
Lee Liberman Otis, Senior Vice President and Director, Faculty Division at the Federalist Society, eulogized Senator Hatch here: https://fedsoc.org/commentary/fedsoc-blog/n-memoriam-orrin-hatch.
Featuring:
- Hon. Orrin Hatch, Former United States Senator, Utah
- Leonard A. Leo, Former Executive Vice President, The Federalist Society

Necessary & Proper Episode 75: An Introduction to the Court of Federal Claims Apr 06, 2022

Show notes

On March 24, 2022, Judge Stephen Schwartz joined the Federalist Society's Notre Dame Student Chapter to discuss the historical, theoretical, and practical reasons why law students should care about the Court of Federal Claims. Professor David P. Waddilove then provided a response and moderated an audience Q&A.
Featuring:
- Judge Stephen Schwartz, Judge, United States Court of Federal Claims
- Prof. David P. Waddilove, Associate Professor, Notre Dame Law School

Necessary & Proper Episode 74: Can Congress Improve Budget Transparency and Process? Dec 09, 2021

Show notes

Some experts argue that the first and most important place for congressional reform is its power of the purse. With regular order a distant memory, annual budget proceedings failing to live up to the basic framework of the 1974 Budget Act, the ever-expanding role of the president in spending decisions, and regular threats of federal government shutdowns, some fear the legislative branch has lost its ability to oversee and control our nation's finances.
Senator James Lankford joined us to discuss these issues and some of his specific solutions including the recently passed bipartisan "Taxpayers Right-to-Know Act" and his proposed "End Government Shutdowns Act." Thereafter, our panel of experts discussed those ideas and much more.
Featuring:
- Hon. James Lankford, United States Senator from Oklahoma
- G. William Hoagland, Senior Vice President, Bipartisan Policy Center
- Matthew B. Lawrence, Associate Professor of Law, Emory University School of Law
- Molly Reynolds, Senior Fellow - Governance Studies, Brookings Institution
- Moderator: Ilya Shapiro, Vice President and Director, Robert A. Levy Center for Constitutional Studies, Cato Institute

Necessary & Proper Episode 73: How to Fix the Budget Mess Dec 03, 2021

Show notes

The Evansville Lawyers Chapter hosted Dave Hoppe, President, Hoppe Strategies, for a discussion entitled "How to Fix the Budget Mess."
Featuring:
- David Hoppe, President, Hoppe Strategies
- Introduction: Seth Zirkle, Evansville Lawyers Chapter President

Necessary & Proper Episode 72: Redistricting – Discussing the John R. Lewis Voting Rights Advancement Act Oct 26, 2021

Show notes

An expert panel discusses the impact that changes proposed in HR 4, the John R. Lewis Voting Rights Advancement Act of 2021, may have on drawing voting districts and litigating redistricting cases.
Featuring:
- Mark Braden, Of Counsel, BakerHostetler
- Jeffrey M. Wice, Adjunct Professor of Law, New York Law School; Director, N.Y. Census and Redistricting Institute
- Moderator: Maya Noronha, Visiting Fellow, Independent Women's Law Center

Necessary & Proper Episode 71: The Two-Party System Oct 18, 2021

Show notes

On September 29, 2021, former United States Representative Bob Barr joined the Federalist Society's Southern California Student Chapter to discuss the two-party system.
Featuring:
- Bob Barr, President and CEO, Liberty Strategies LLC

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