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.
On January 26, 2015, the Supreme Court issued its decision in M&G Polymers USA, LLC v. Tackett. The issue in this case is whether, when courts interpret collective bargaining agreements in Labor Management Relations Act (LMRA) cases, they should assume that silence concerning the duration of retiree health-care benefits means the parties intended those benefits to vest (and therefore continue indefinitely), or should require that it be stated explicitly (or at least stated in some way) that health-care benefits are intended to endure after the expiration of the collective bargaining agreement.
In an opinion delivered by Justice Thomas, the Court held unanimously that when determining whether retiree benefits should continue indefinitely after the expiration of a collective bargaining agreement, courts should apply ordinary contract principles. Those principles do not support a presumption that the agreement reflects an intent to vest retirees with lifetime benefits. The judgment of the Sixth Circuit was vacated and the case remanded for further proceedings. Justice Ginsburg filed a concurring opinion, which Justices Breyer, Sotomayor, and Kagan joined.
To discuss the case, we have Michael DeBoer, who is an Associate Professor of Law at the Faulkner University School 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