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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 70: Congressional Oversight and Investigations – New Developments and Outlook for the 117th Congress Aug 11, 2021

Show notes

With Democrats holding power in both houses of Congress and the White House, how will congressional oversight and investigations affect private industry and the Biden administration during the 117th Congress? What should we expect if Republicans take back one or both houses of Congress in the midterm elections? What should private entities expect from congressional investigations, and what effect will recent court decisions such as Mazars have on industry? A panel of current and former congressional investigators discuss these issues and more, as well as how recent investigations and judicial decisions will affect the structural relationship between Congress and the Executive Branch in the years ahead.
Featuring:
- Ashley Callen, Deputy Staff Director, House Oversight and Reform Committee
- Daniel Goshorn, Chief Investigative Counsel, U.S. Senate Committee on Finance
- Allison Murphy, Former Chief Oversight Counsel of the House Select Subcommittee on the Coronavirus Crisis, Majority Staff; Partner in the Government, Regulatory & Internal Investigations Practice Group, Kirkland & Ellis
- Christopher Armstrong, Former Chief Oversight Counsel, Senate Committee on Finance; Partner, Holland & Knight LLP
- Moderator: Michael D. Bopp, Partner, Gibson Dunn & Crutcher LLP

Necessary & Proper Episode 69: The U.S. Senate Filibuster – A Feature of or Impediment to Democracy? Jul 13, 2021

Show notes

Then-Senator Biden said in 2005 that "American citizens have benefited from the Senate's check on the excesses of the majority" with "minority protections" through the filibuster. Now, however, President Biden believes the filibuster is being abused and, potentially, impeding democracy. Is Senator Biden or President Biden right? Recent pressure from the press and powerful interest groups on the left seem to agree with President Biden and are urging senators to cast aside their centuries-old tradition of parliamentary procedure in favor of simple majority rule. Should they? What are the consequences if the Senate exercises the nuclear option? Can the Senate still act as our cooling saucer and protect against the "excesses of the majority" without the filibuster?
Featuring:
- Jon Kyl, Senior Advisor, Covington & Burling, and former United States Congressman and Senator
- Martin Gold, Partner, Capitol Counsel LLC
- Moderator: Peter Roskam, Partner, Sidley Austin, and former Congressman, Illinois' 6th Congressional District

Necessary & Proper Episode 68: H.R. 1, the For the People Act, Explained Jun 23, 2021

Show notes

The For the People Act was introduced in the House of Representatives in 2019 as H.R. 1, the symbolic designation marking it as the top priority of the new Democratic House majority. Described by its author, Representative John Sarbanes, as addressing "voter access, election integrity and security, campaign finance, and ethics for the three branches of government," the 570 page bill passed the House later that year, but was never voted on in the Republican-controlled Senate.
The measure was reintroduced in the 117th Congress as H.R. 1 in the House and S. 1 in the Senate, but with still more provisions expanding it to over 800 pages. Proponents supporting passage have cited the importance of expanding voter access and fighting "voter suppression." Opponents argue that the bill significantly restricts free speech by changing campaign finance rules, creates the potential for widespread voter fraud by relaxing necessary voting integrity safeguards, and constitutes a federal takeover of state-run elections.
The House passed the bill on a near party-line vote (1 Democrat voted "no"), and its fate now lies with the 50-50 divided Senate. Senate Republicans can block a vote with the filibuster, and H.R. 1 has been cited frequently as a reason to abolish the filibuster. But at least one Senate Democrat, Joe Manchin of West Virginia, has stated that he will not vote for the bill in its current form, depriving the legislation--for now--of even a simple majority.
Mr. Bradley A. Smith, Chairman and Founder of the Institute for Free Speech and one of the nation's foremost experts on campaign finance law, joined the Federalist Society to discuss some of the more important provisions and implications of H.R.1/S. 1, the For the People Act.
Featuring:
- Bradley A. Smith, Chairman and Founder, Institute for Free Speech

Necessary & Proper Episode 67: Non-Delegation? Or No Divesting? Art. I, Sec. 1 at the Founding and Today May 20, 2021

Show notes

On May 17, as part of their annual Executive Branch Review Conference, the Federalist Society's Practice Groups hosted an expert panel on the non-delegation doctrine.
Whether as the result of hyper-partisanship or as a residue of the constitutional design for lawmaking, government by executive "diktat" is lately increasing. Many of these executive actions appear to have dubious — if any — statutory authority, but the courts have been reticent to validate objections along these lines. The U.S. Supreme Court has indicated a willingness to revisit and possibly to reinvigorate the non-delegation doctrine (with 5 Justices adhering to that view publicly), or at least to put some teeth into its supposedly constraining intelligibility principle. To do so, the Court first will have to grapple with whether Article I, Section 1 of the Constitution contains a non-delegation principle at all.
Featuring:
- Prof. Nicholas Bagley, Professor of Law, University of Michigan Law School
- Prof. Philip Hamburger, Maurice & Hilda Friedman Professor of Law, Columbia Law School
- Prof. Jennifer Mascott, Assistant Professor of Law, Antonin Scalia Law School
- Prof. Nicholas Parrillo, William K. Townsend Professor of Law, Yale Law School
- Moderator: Hon. Neomi Rao, United States Court of Appeals, D.C. Circuit

Necessary & Proper Episode 66: Federalist Papers Book Club – The Senate Apr 09, 2021

Show notes

The Federalist Papers Book Club ran weekly on Tuesday evenings for 10 one-hour sessions beginning January 26th 2021. This session covers Federalist numbers 62, 63, 65, and 66, which discuss the United States Senate.
The recommended edition of The Federalist is edited by Carey and McClellan, published by Liberty Fund. It comes in paper and online versions.
The Federalist by Publius (AKA Madison, Hamilton, and Jay) contains 85 essays. The recommended reading pace was 9 to 10 essays per week. The sessions focus only on selected essays, however.
Slides are available at https://fedsoc.org/federalist-papers-book-club.
Featuring:
- Dr. John S. Baker, Jr., Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University

Necessary & Proper Episode 65: Federalist Papers Book Club – The House of Representatives Apr 08, 2021

Show notes

The Federalist Papers Book Club ran weekly on Tuesday evenings for 10 one-hour sessions beginning January 26th 2021. This session covers Federalist numbers 52, 55, 56, and 57, which discuss the House of Representatives.
The recommended edition of The Federalist is edited by Carey and McClellan, published by Liberty Fund. It comes in paper and online versions.
The Federalist by Publius (AKA Madison, Hamilton, and Jay) contains 85 essays. The recommended reading pace was 9 to 10 essays per week. The sessions focus only on selected essays, however.
Slides are available at https://fedsoc.org/federalist-papers-book-club.
Featuring:
- Dr. John S. Baker, Jr., Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University

Necessary & Proper Episode 64: Federalist Papers Book Club – The Separation of Powers Apr 05, 2021

Show notes

The Federalist Papers Book Club ran weekly on Tuesday evenings for 10 one-hour sessions beginning January 26th 2021. This session covers Federalist numbers 47, 48, and 51, which discuss the Constitution's separation of governmental powers.
The recommended edition of The Federalist is edited by Carey and McClellan, published by Liberty Fund. It comes in paper and online versions.
The Federalist by Publius (AKA Madison, Hamilton, and Jay) contains 85 essays. The recommended reading pace was 9 to 10 essays per week. The sessions focus only on selected essays, however.
Slides are available at https://fedsoc.org/federalist-papers-book-club.
Featuring:
- Dr. John S. Baker, Jr., Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University

Necessary & Proper Episode 63: Kisor and Gundy – The Future of Administrative Law? Feb 26, 2021

Show notes

On February 15, 2021, Erin M. Hawley and Jennifer Nou joined the Federalist Society's Chicago Student Chapter for a discussion on the future of administrative law.
Featuring:
- Erin M. Hawley, Senior Legal Fellow, Independent Women's Law Center
- Jennifer Nou, Professor of Law, University of Chicago Law School
- [Introduction] Hallie Saunders, Programming Director, The Federalist Society's Chicago Student Chapter

Necessary & Proper Episode 62: Congressional Review Act: First Branch Gets the Last Word Feb 08, 2021

Show notes

After living in relative obscurity since its passage in 1996, the Congressional Review Act caught the nation's attention in 2017 when a Republican-led Congress and newly-elected President Trump used it to overturn 14 "midnight" regulations issued at the end of the Obama administration. Some prominent Democratic lawmakers opposed the CRA's framework as well as its individual uses in 2017. Will roles be reversed in 2021 regarding Trump administration "midnight" regulations? Can they be completely reversed?
In this live podcast, experts review the overriding purposes of the CRA and do a deep dive into its technical elements, such as the law's expedited congressional procedures, the types of actions it covers, the number of votes needed to overturn an action, and the consequences of disapproval.
Featuring:
- Todd F. Gaziano, Chief of Legal Policy and Strategic Research & Director, Center for the Separation of Powers, Pacific Legal Foundation
- [Moderator] Susan Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University

Necessary & Proper Episode 61: Congress and the Administrative State Jan 29, 2021

Show notes

In this presentation co-sponsored by the Federalist Society's Article I Initiative and Columbia Student Chapter, Professor Christopher J. Walker discusses the proper the role of Congress in the modern administrative state.
Featuring:
- Christopher J. Walker, John W. Bricker Professor of Law; Director, Washington, DC, Summer Program, The Ohio State University Moritz College of Law

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