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Federalism

The Climate Change Investigations – Fair Regulation of Markets or Executive Overreach that Chills Free Speech?

Litigation Practice Group Teleforum Monday, August 01, 02:00 PMFederalist Society Teleforum Conference Call

Climate change activists have for the past year been urging the Department of Justice and state attorneys general to investigate ExxonMobil, think tanks, and other corporations and organizations that have expressed skepticism or otherwise presented contrary views either on the science or the policy of climate change regulatory action. These calls include members of Congress petitioning the DOJ to investigate whether Exxon and its “brain trust” violated civil RICO, an ongoing Martin Act investigation launched last fall by the New York Attorney General, and more recently, subpoenas issued by the US Virgin Islands and civil investigative demands from the Massachusetts AG. A press conference on March 29, 2016 attended by former vice-president Al Gore, represented that these calls for investigations are supported by a coalition of 20 attorneys general. The next day a majority of state attorneys general, 29 in all, issued a press release that they would not be joining in that call for investigations or other regulatory action, citing respect for the rule of law and the First Amendment. Asserting that good science embraces disagreement and the chilling effect on research when the government decides what is “truth” and what is “fraud,” these majority states revealed a stark divide in our polity about the proper role of the executive branch – state and federal – in formulating, enforcing and financing climate change policy.

At the March 29, 2016 press conference, former vice-President Gore asserted that “our democracy’s been hacked” and that these state and federal enforcement actions were necessary to remedy Congress’s and other legislative inactivity. In this Teleforum, Andrew Grossman – who has been involved in both defending targets of the subpoenas and in challenging the lawfulness of their issuance – will discuss some of the legal and policy questions implicated by this division between the states, and the executive branches and Congress. Should a corporation’s published research that expresses concerns about climate change be grounds for civil RICO or other regulatory action? Would such potential liability disincentive research? Should the government decide what is truth and what is not in the historically uncertain arena of science? Should those matters be decided in legislative hearings with the opportunity for the expression of multiple views on the science, policy, and proposed solutions? Should there have to be a substantiated allegation of unlawful conduct before such investigatory powers are wielded? Who has been defrauded? Is there harm in forcing corporations and think tanks to open up their records, research and communications – isn’t that a good way to determine whether there has been fraud on the energy markets? On the other hand, has Exxon sold oil or raised capital by claiming climate change is not affected by fossil fuels? Are consumers/investors uncritical consumers of industry information? What are the pros and cons of legislative action, inaction or accretional action versus sweeping state and federal executive enforcement actions? What regulatory authority or past practice provides a template for these investigations, and what are their practical and historical goals and outcomes? Do think tanks have a different status vis-a-vis the First Amendment than a for profit business selling fossil fuels, and if so what role, if any, does the source of their funding play?

Featuring:

  • Andrew Grossman, Partner, Baker & Hostetler LLP and Adjunct Scholar, The Cato Institute
  • Moderator: Margaret A. (Peggy) Little, Partner, Little and Little,  Director, The Federalist Society's Pro Bono Center, and Foundation Professor of Law, George Mason University School of Law

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.

Sex and Gender Identity under Title IX: New Guidance for Interpretation - Podcast

Civil Rights Practice Group Podcast
M. Edward Whelan May 19, 2016

On Friday, May 13, the Department of Education and the Department of Justice jointly released new guidance outlining how educators are to interpret Title IX of the Education Amendments of 1972; specifically in the context of transgender students. Under Title IX, schools that receive federal money must not discriminate on the basis of a student’s sex. Friday’s new guidance directs that educators are to consider a student’s sex to mean the gender with which that student self-identifies, not the gender on their birth certificate. Key implications of the guidance are that students will participate in sex-segregated activities and use bathroom facilities according to self-identification, regardless of what school records or identification documents indicate. Our expert discussed the implications of the new guidance.

Featuring:

  • M. Edward Whelan, President, Ethics and Public Policy Center

United States v. Texas - Post-Argument SCOTUScast

SCOTUScast 5-12-16 featuring Josh Blackman
Josh Blackman May 12, 2016

On April 18, 2016, the Supreme Court heard oral arguments in 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 are: (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.

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