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Executive Branch/Power

The New Chevron Skeptics - Event Audio/Video

18th Annual Faculty Conference
Blake D. Morant, Kellye Y. Testy, Lee Liberman Otis, Michael E. Herz, Jeffrey Pojanowski, Peter L. Strauss, Christopher J. Walker, John O. McGinnis January 15, 2016

When Chevron was first decided it was generally welcomed on the right side of the political spectrum as a principled method constraining judicial discretion and permitting the executive to exert policy control over the administrative state. But as the administrative state continues to grow, some now see Chevron as removing an important check on government power and an abdication of the judiciary’s authority to say what the law is. Some members of the Supreme Court are now open to reconsidering judicial deference to agency action, at least in certain areas, such as determining their own jurisdictions and interpreting their own regulations. The panel will consider the extent to which the new skepticism toward Chevron in particular and judicial deference to agencies in general is justified.

This panel took place during the 18th Annual Faculty Conference at the Sheraton New York Times Square Hotel in New York, NY on January 8, 2016.

Welcome
8:45 am

  • Dean Blake D. Morant, President, Association of American Law Schools & Dean and Robert Kramer Research Professor of Law, George Washington University Law School and 
  • Dean Kellye Y. Testy, President Elect, Association of American Law Schools & Toni Rembe Dean & Professor of Law, University of Washington School of Law
  • Introduction: Hon. Lee Liberman Otis, Senior Vice President & Faculty Division Director, The Federalist Society

Panel: The New Chevron Skeptics
8:45 am - 10:15 am

  • Prof. Michael Herz, Yeshiva University Benjamin N. Cardozo School of Law
  • Prof. Jeffrey Pojanowski, University of Notre Dame Law School
  • Prof. Peter Strauss, Columbia Law School
  • Prof. Christopher Walker, The Ohio State University Moritz College of Law
  • Moderator: Prof. John McGinnis, Northwestern University School of Law

New York, NY
January 8, 2016

Showcase Panel III: ROUNDTABLE: Can Changes in Incentives Significantly Address Congressional Dysfunction? - Event Audio/Video

2015 National Lawyers Convention
Howard L. Berman, James W. Ceaser, Michael S. Greve, Frances E. Lee, Richard Pildes, Matthew Lee Wiener, Frank H. Easterbrook, Dean A. Reuter November 19, 2015

Over the years, and especially recently, it appears as though members of Congress primarily need to avoid offending constituents if they wish to stay in office. There are few rewards for genuine political leadership or the hard-nosed political deals that are oftentimes crucial to good governance. “Passing the buck" to the Executive branch, usually in the form of the Administrative State or even to the Judiciary seems less effective but more prudent. Are the incentives for members of Congress deleterious to its overall function? Is it possible to effectively change them?

Showcase Panel III: ROUNDTABLE: Can Changes in Incentives Significantly Address Congressional Dysfunction?
9:00 a.m. – 10:45 a.m.
Grand Ballroom

  • Hon. Howard L. Berman, Former U.S. Representative, California’s 28th Congressional District, Senior Advisor, Covington & Burling LLP
  • Prof. James W. Ceaser, Professor of Politics, University of Virginia
  • Prof. Michael S. Greve, Professor of Law, George Mason University School of Law
  • Prof. Frances E. Lee, Professor, University of Maryland
  • Prof. Richard H. Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law
  • Mr. Matthew L. Wiener, Executive Director, Administrative Conference of the United States
  • Moderator: Hon. Frank H. Easterbrook, U.S. Court of Appeals, Seventh Circuit
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

The Mayflower Hotel
Washington, DC

Deference Meets Delegation: Which is the Most Dangerous Branch? - Event Audio/Video

2015 National Lawyers Convention
John C. Eastman, C. Boyden Gray, Neal K. Katyal, David B. Rivkin, Jr., Brett M. Kavanaugh November 18, 2015

Article I, Section 1 of the Constitution provides that “All legislative Powers herein granted shall be vested in a Congress of the United States." Critics argue that, given this mandate, too much of the lawmaking power is exercised by unelected people in unaccountable agencies. These bureaucracies make “law" by both formal and informal regulation, and oftentimes both enforce their own laws and adjudicate their own enforcement actions. Some have even been given self-funding mechanisms, which removes them from even the check of Congress's appropriation power. Proponents of such delegation argue that administrative agency staff have expertise in myriad substantive areas that legislators could never obtain, and that what critics describe as a lack of accountability is actually insulation from political pressure and influence. They assert that delegations of lawmaking power are permissible if Congress provides an “intelligible principle" setting the boundaries within which the agencies are permitted to operate. The Supreme Court has, under this standard, upheld such broad grants of power to the agencies as legislative direction to regulate “in the public interest," for the “public convenience, interest, or necessity," to do what is “just and reasonable," or to prevent “unfair methods of competition." In other words, critics assert, the “intelligible principle" limitation on delegations of lawmaking power is no limitation at all. The last time the Court struck down an act of Congress because it delegated lawmaking power was in the 1935 case of Schechter Poultry Corp. v. United States, and that case involved a double delegation, first to the executive and then to a committee of private businesses.

The phenomenon of agency officials making most of the nation's laws expanded when the Court decided, in Chevron v. Natural Resources Defense Council, (1984) to start deferring to agency interpretation of ambiguous statutes. Several members of the Court have started to question this state of affairs, and this past term, in three separate opinions, Justice Thomas called on the Court to revisit both Chevron deference and the demise of the non-delegation doctrine. Others fear an over-empowered, unelected judiciary. One response to reliance on Chevron deference was offered by Chief Justice Roberts in the King v. Burwell case. There, the Chief (writing for a 5-4 majority) declined to defer to the agency's interpretation of the statute, and instead applied Chevron deference to the Court's own interpretation. This panel will address the present state of affairs and the possible roads forward.

Federalism: Deference Meets Delegation: Which is the Most Dangerous Branch?
3:45 p.m. – 5:15 p.m.
Grand Ballroom

  • Prof. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law
  • Hon. C. Boyden Gray, Boyden Gray & Associates and former U.S. Ambassador to the European Union
  • Mr. Neal K. Katyal, Hogan Lovells and former Acting U.S. Solicitor General
  • Mr. David B. Rivkin, Jr., Partner, BakerHostetler
  • Moderator: Hon. Brett Kavanaugh, U.S. Court of Appeals, D.C. Circuit

The Mayflower Hotel
Washington, DC

Consumer Financial Protection Bureau Update - September 2015 - Podcast

Financial Services & E-Commerce Practice Group Podcast
Wayne A. Abernathy, Julius L. Loeser September 29, 2015

Members of the Federalist Society’s Financial Services & E-Commerce Practice Group Executive Committee provided an update on recent important activity at the Consumer Financial Protection Bureau (CFPB).

  • Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association
  • Julius L. Loeser, Of Counsel, Winston & Strawn LLP