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Executive Branch/Power

United States v. Texas - Post-Decision SCOTUScast

SCOTUScast 7-12-16 featuring Josh Blackman
Josh Blackman July 12, 2016

On June 23, 2016, the Supreme Court decided United States v. Texas. This case relates back to the Department of Homeland Security’s (DHS) 2012 Deferred Action for Childhood Arrivals (DACA) program, which set forth special criteria to direct how DHS should exercise prosecutorial discretion in enforcing federal immigration laws against certain young persons. In 2014, DHS issued a memo that then expanded eligibility under DACA and directed establishment of a similar program for the parents of DACA-eligible persons: Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).

Twenty-six states sued in federal district court to prevent the DHS from implementing DAPA, arguing that DAPA violated the Administrative Procedure Act (APA) because it had not gone through a notice-and-comment process, and was moreover arbitrary and capricious. The states also argued that DAPA abrogated the President’s constitutional duty to “take Care that the Laws be faithfully executed.” The district court concluded that of the suing states, Texas had standing, and temporarily enjoined implementation of DAPA after determining that Texas had shown a substantial likelihood of success on its notice-and-comment claim. The U.S. Court of Appeals for the Fifth Circuit affirmed that ruling, and further held that the other states had standing and has shown a substantial likelihood of success on both the notice-and-comment and arbitrary and capricious components of their APA claims. The Fifth Circuit did not reach the Take Care clause claim.

The four questions before the Supreme Court in this case were: (1) whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the APA to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3--a question the Court itself directed the parties to brief.

An equally divided Supreme Court affirmed the judgment of the Fifth Circuit in a single sentence per curiam opinion, thereby leaving the district court’s injunction in place

To discuss the case, we have Josh Blackman, who is Assistant Professor of Law at South Texas College of Law.

Address by Senator Dan Sullivan - Event Audio/Video

Fourth Annual Executive Branch Review Conference
Dan Sullivan, Dean A. Reuter May 20, 2016

United States Senator Dan Sullivan of Alaska delivered this address during the Fourth Annual Executive Branch Review Conference on May 17, 2016.

Featuring:

  • Hon. Dan Sullivan, United States Senate, Alaska
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

The Mayflower Hotel
Washington, DC

Disparate Impact: Reducing Innovation in the Workplace? - Event Audio/Video

Fourth Annual Executive Branch Review Conference
Gail Heriot, James P. Scanlan, James Sharf, John S. Irving May 20, 2016

The slogan "Personnel is policy" reflects the principle that hiring the right people is one of the most important things that employers do. An employer with an innovative approach to bringing on board the best people has a critical edge over her competition. But the rise of interpretations of federal employment law that basically give the Equal Employment Opportunity Commission ("EEOC") veto power over nearly any employment decision means that many creative ideas about hiring will be stillborn. Notably, the EEOC interprets federal civil rights law not just to prohibit employers from discriminating on the basis of race, sex, color, national origin, and age, but also on practices that have a "disparate impact" on members of such groups even if the practice is not actually discriminatory.  Because virtually any job qualification has a disparate impact on members of some such group, this interpretation confers extraordinary powers on the EEOC. Disparate impact is widely believed to have led many employers to abandon paper and pencil tests of cognitive ability. More recently, employers have been discouraged from using the Internet to recruit because racial minorities were thought to lack access to the internet relative to members of other racial and ethnic groups. Further, the EEOC also has put pressure on employers to abandon the use of credit and criminal background checks because of their alleged disparate impact on  racial minorities. This panel will discuss how the metastasis of disparate impact has strangled innovative hiring strategies in these areas as well as others and other perverse consequences of disparate impact's growth.

This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC.

Featuring:

  • Hon. Gail Heriot, United States Commission on Civil Rights, and Professor of Law, University of San Diego School of Law
  • Mr. James Scanlan, Attorney at Law
  • Mr. James Sharf, Sharf & Associates
  • Moderator: Mr. John Irving, Of Counsel, Kirkland & Ellis

The Mayflower Hotel
Washington, DC

Are Patents Under Attack in the Supreme Court? - Event Audio/Video

Fourth Annual Executive Branch Review Conference
John F. Duffy, Michael R. Huston, Adam Mossoff, Jeffrey B. Wall, Randall R. Rader May 20, 2016

As Congress debates controversial patent legislation that some say will undermine patent rights, has the U.S. Supreme Court been steadily eroding the scope and enforceability of patents for the past decade?  The Supreme Court has made it easier to invalidate patents because an invention is “obvious,” not specific enough, or an “abstract idea.”   The Court has also made it more difficult for patent owners to stop or “enjoin” ongoing infringement of their rights and riskier to assert their rights in court. Is the Supreme Court striking the right balance or is it undermining an important property right?

This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC.

Featuring:

  • Prof. John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law
  • Mr. Michael R. Huston, Gibson, Dunn & Crutcher
  • Prof. Adam Mossoff, Professor of Law and Co-Director of Academic Programs and Senior Scholar, Center for the Protection of Intellectual Property, Antonin Scalia Law School, George Mason University
  • Mr. Jeff Wall, Sullivan & Cromwell
  • Moderator: Hon. Randall R. Rader, The George Washington University

The Mayflower Hotel
Washington, DC

Regulatory Barriers to Innovation - Event Audio/Video

Fourth Annual Executive Branch Review Conference
Krishna Juvvadi, Clark Neily, John O'Neill, Peter Pitsch, Maureen K. Ohlhausen May 20, 2016

American technological innovation has given birth to entire new segments of economic activity. The sharing economy alone has given rise to a new class of entrepreneurs, where web platforms enable companies like AirBnB and Uber to allow the peer-to-peer sharing of houses, cars ... even lawn mowers. Connectivity and big data is driving the Internet of Things revolution, where ideas once only seen in science fiction movies (think self-driving cars) may soon become an everyday reality. And all of these innovations have been made possible thanks to the Internet, which, until recently, has benefitted from a light regulatory touch.

Unfortunately, federal and state agencies have not always welcomed innovation and disruption, even when it enhances overall consumer welfare. What can be done to embrace innovation and American leadership? What role should the state and federal governments play as new economies continue to take shape? What role should the FTC play? How will the FCC's current Net Neutrality rules impact growth? These and other issues will be explored.

This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC.

Featuring:

  • Mr. Krishna Juvvadi, Senior Counsel, Uber Technologies, Inc.
  • Mr. Clark Neily, Senior Attorney, Institute for Justice
  • Prof. John O'Neill, Director, School of Hospitality Management, Penn State
  • Mr. Peter Pitsch, Associate General Counsel and Executive Director of Communications Policy, Intel Corporation
  • Moderator: Hon. Maureen Ohlhausen, Commissioner, Federal Trade Commission

The Mayflower Hotel
Washington, DC