2015 National Lawyers Convention
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.
- 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 2015 National Lawyers Convention
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.
- 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 Financial Services & E-Commerce Practice Group Podcast
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).
International & National Security Law Practice Group Podcast
- Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association
- Julius L. Loeser, Of Counsel, Winston & Strawn LLP
The "Iran Deal" as negotiated by the Obama Administration and approved by the UN raises controversies on many levels. One foundational question concerns whether a president's constitutional Article II power extends to an executive agreement that incurs foreign obligations and implicates international law. The congressional response in the Corker-Cardin review act demurred from challenging whether the nuclear deal was an end-run around treaty Senate ratification requirements by acknowledging the executive agreement classification. Now there are questions as to whether the final deal is sufficiently inconsistent with the anticipated agreement such that the Corker-Cardin bill is undermined. Does UN approval prior to congressional review moot Corker-Cardin? Additionally, as yet unquantified side agreements may have a bearing on congressional posture. Also, some states have sanctioned Iran separately. Since an executive agreement does not carry the federal pre-emptive power as would a treaty, may states continue to act independent of Corker-Cardin, UN, or administration commitments?
Third Annual Executive Branch Review Conference
- Jamil N. Jaffer, Adjunct Professor of Law and Director, Homeland and National Security Law Program, George Mason University School of Law and former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee
- David B. Rivkin, Jr., Partner, Baker & Hostetler LLP
- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California Berkeley School of Law
After delegating significant power to the administrative state, is Congress properly discharging its oversight role? Are there tools available to Congress that are underutilized? Would a proper annual budget process help? Are Congress’ oversight hearings meaningful, well-run, and properly focused? Should Congress be requesting more information from agencies through other avenues?
This panel was presented on June 18, 2015, at the Mayflower Hotel in Washington, DC during the Third Annual Executive Branch Review Conference.
Plenary Panel: Congressional Oversight
2:00 p.m. – 3:30 p.m.
- Prof. Jonathan H. Adler, Case Western Reserve University School of Law
- Mr. Michael D. Bopp, Gibson Dunn and Crutcher
- Prof. Sally Katzen, New York University School of Law
- Mr. Adam J. White, Boyden Gray & Associates
- Moderator: Hon. Todd F. Gaziano, Pacific Legal Foundation
June 18, 2015