The Role of Congress in Policing the Administrative StateThursday, June 18, 09:00 AMThe Mayflower Hotel 1127 Connecticut Ave N.W. Washington, DC 20036
The theme of the Third Annual Executive Branch Review Conference, what role does and should Congress play vis-a-vis the administrative state, will be developed in a series of addresses, debates and panel discussions. Experts will discuss incentives for Congressional action and inaction, reducing delegation from Congress to the agencies through more precise statutory language, the tools of Congressional oversight, and more. The conference will also include breakout sessions by selected practice groups to provide detailed discussion about executive branch activities in particular areas of the law.
On January 21, 2015, the Supreme Court issued its decision in Department of Homeland Security v. MacLean.
The question in this case concerns the Federal Whistleblower Protection Act, which prevents the government from terminating an employee for revealing “any violation of any law, rule, or regulation” or “a substantial and specific danger to public health or safety”--unless that revelation is "specifically prohibited by law." The question here is whether a federal air marshal’s disclosure that the Transportation Security Administration (TSA) had decided to cut costs by removing air marshals from certain long-distance flights was a disclosure “specifically prohibited by law.”
In an opinion delivered by Chief Justice Roberts, the Court held by a vote of 7-2 that the disclosure in this case was not “specifically prohibited by law.” The judgment of the United States Court of Appeals for the Federal Circuit was affirmed. The Chief Justice’s opinion was joined by Justices Scalia, Thomas, Ginsburg, Breyer, Alito, and Kagan. Justice Sotomayor issued a dissenting opinion, which was joined by Justice Kennedy.
To discuss the case, we have Kevin Govern, who is an Associate Professor of Law at the Ave Maria School of Law.
On March 9, 2015, the Supreme Court issued its decision in Perez v. Mortgage Bankers Association, a case which concerned the Administrative Procedure Act, or APA. The question was whether the rule announced by the D.C. Circuit in its earlier case Paralyzed Veterans of America v. D.C. Arena L.P. was consistent with the APA. Under the Paralyzed Veterans rule, an agency must use the APA’s notice-and-comment procedures when it wishes to issue a new interpretation of a regulation that deviates significantly from one the agency has previously adopted.
In an opinion delivered by Justice Sotomayor, the Court held by a vote of 9-0 that the Paralyzed Veterans rule conflicted with the text of the APA and improperly imposed procedural requirements on agencies beyond those authorized by the statute. The Chief Justice and Justices Kennedy, Ginsburg, Breyer and Kagan joined Justice Sotomayor’s opinion in full, and Justice Alito joined it except for part III-B. Justice Alito also filed an opinion concurring in part and concurring in the judgment. Justice Scalia and Justice Thomas filed opinions concurring in the judgment. The judgment of the D.C. Circuit was reversed.
To discuss the case, we have Andrew Hessick, who is a Professor of Law at the University of Utah College of Law.
The Environmental Protection Agency and the Army Corps of Engineers are currently engaged in a controversial rulemaking to redefine its jurisdiction over bodies of water through a new definition of the “Waters of the United States” under the Clean Water Act. Some have criticized the proposed rule, claiming that it is an overreach that would give the federal government authority over huge areas of private and state land that are rarely even wet, while others have dismissed these concerns as overblown and have pointed out the benefits of clarifying what is currently a murky area of law. Our experts discussed the rulemaking and presented both sides of the argument.
Brent A. Fewell, Partner, Troutman Sanders LLP
Prof. Patrick A. Parenteau, Senior Counsel, Professor of Law, Vermont Law School
We are in an age of accelerating technology but many fear we are also in an age of growing inequality. Does the fast pace of innovation pose a threat to social stability? Many fear that machines will take away jobs from the less skilled and extend the reach of superstars, thus deepening inequality. This panel will address the dangers of innovation to employment and equality and what, if anything, the government should do about it.
Prof. Richard Epstein, NYU School of Law
Ms. Beth Kregor, Director of the Institute for Justice Clinic on Entrepreneurship at the University of Chicago Law School
Prof. John McGinnis, Northwestern University School of Law
Moderator: Hon. Frank Easterbrook, U.S. Court of Appeals, Seventh Circuit
This program was presented on February 21, 2015, as part of the 2015 Federalist Society National Student Symposium.