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Federalism

Saving Congress from Itself: Emancipating the states & Empowering Their People - Event Video

2014 National Lawyers Convention
James L. Buckley, John C. Eastman, Michael S. Greve, Robert R. Gasaway November 17, 2014

Saving Congress from Itself proposes a single reform: eliminate all federal grants-in-aid to state and local governments. This action would reduce federal spending by over $600 billion a year and have a profound effect on how we govern ourselves. The proliferation of federal grants-in-aid programs is of recent vintage: only about 100 such grants existed before Lyndon Johnson took office, and now they number more than 1,100. Eliminating grants to the states will result in enormous savings in federal and state administrative costs; free states to set their own priorities; and improve the design and implementation of programs now subsidized by Washington by eliminating federal regulations that attend the grants. In short, it will free states and their subdivisions to resume full responsibility for all activities that fall within their competence, such as education, welfare, and highway construction and maintenance. And because members of Congress spend major portions of their time creating grants and allocating funds assigned to them (think earmarks), eliminating grants will enable Congress to devote its time to responsibilities that are uniquely national in character.

The Federalist Society's Practice Groups presented this closing discussion on "Saving Congress from Itself: Emancipating the States & Empowering Their People" on Saturday, November 15, during the 2014 National Lawyers Convention.

Featuring:

  • Hon. James L. Buckley, U.S. Court of Appeals for the D.C. Circuit (ret.) and former U.S. Senator
  • Dr. John C. Eastman, Henry Salvatori Professor of Law and Community Service; Former Dean (2007 – 2010); and Director, Center for Constitutional Jurisprudence, Dale E Fowler School of Law, Chapman University
  • Prof. Michael S. Greve, Professor of Law, George Mason University School of Law
  • Moderator: Mr. Robert R. Gasaway, Partner, Kirkland & Ellis LLP

Mayflower Hotel
Washington, DC

The President's Duty to Take Care that the Law Be Faithfully Executed - Event Video

2014 National Lawyers Convention
John S. Baker, Jr., Ronald A. Cass, Neal E. Devins, Christopher Schroeder, Thomas B. Griffith, John C. Eastman November 17, 2014

Is President Obama failing in this basic obligation of the President?  Allegations of lawlessness have been made about his decisions not to enforce the immigration law, to suspend some requirements of the Affordable Care Act, and to flout Congress’s requirement of thirty-day notice before freeing prisoners from Guantanamo.  Are these fair charges or does the President enjoy inherent constitutional power or specific statutory authority to decline enforcement?  What should be Congress’s reaction to non-enforcement?  Does this pattern of non-enforcement imply anything more general about the President’s legal or political philosophy?

The Federalist Society's Federalism & Separation of Powers Practice Group presented this panel on "The President's Duty to Take Care that the Law Be Faithfully Executed" on Thursday, November 13, during the 2014 National Lawyers Convention.

Featuring:

  • Dr. John S. Baker, Jr. Visiting Professor of Law, Georgetown University Law Center; Professor Emeritus of Law, Dale E. Bennett Professor of Law, Louisiana State University Law School
  • Hon. Ronald A. Cass, Dean Emeritus, Boston University School of Law and President, Cass & Associates, PC
  • Prof. Neal E. Devins, Goodrich Professor of Law, Cabell Research Professor, Professor of Government, Director, Institute of Bill of Rights Law; and Director, Election Law Program, The College of William & Mary
  • Prof. Christopher H. Schroeder, Charles S. Murphy Professor of Law and Public Policy Studies; Co-Director of the Program in Public Law, Duke Law School
  • Moderator: Hon. Thomas B. Griffith, U.S. Court of Appeals, D.C. Circuit
  • Introduction: Dr. John C. Eastman, Henry Salvatori Professor of Law and Community Service; Former Dean (2007 – 2010); and Director, Center for Constitutional Jurisprudence, Dale E Fowler School of Law, Chapman University; and Chairman, Federalism & Separation of Powers Practice Group

Mayflower Hotel
Washington, DC

2014 National Lawyers Convention Opening with Justice Scalia - Event Video

2014 National Lawyers Convention
Antonin Scalia, Leonard A. Leo November 13, 2014

United States Supreme Court Justice Antonin Scalia opened the 2014 National Lawyers Convention on November 13 at the Mayflower Hotel in Washington, DC. Justice Scalia discussed the importance of Magna Carta.

Featuring:

  • Hon. Antonin Scalia, United States Supreme Court
  • Introduction: Mr. Leonard A. Leo, Executive Vice President, The Federalist Society

Mayflower Hotel
Washington, DC

Regulating the Regulators: North Carolina Board of Dental Examiners v. Federal Trade Commission - Podcast

Litigation Practice Group Podcast
Rebecca Haw Allensworth, Misha Tseytlin October 20, 2014

The North Carolina State Board of Dental Examiners is the state agency responsible for regulating the practice of dentistry in North Carolina. Under state law, six of the Board's eight members are practicing dentists elected by the state’s licensed dentists. In response to the Board's enforcement actions against non-dentist teeth-whitening providers, the FTC issued an administrative complaint charging that the Board had engaged in concerted action to exclude competition from those non-dentist providers.

The Board moved to dismiss under the state-action antitrust doctrine, which exempts a State’s anticompetitive actions from federal antitrust scrutiny. The doctrine also exempts the activities of private actors if their conduct is (1) authorized by a clearly articulated state policy to displace competition, and (2) “actively supervised” by state officials. Municipal actors are exempt so long as they act pursuant to a clearly articulated state policy.

The FTC determined that the state-action doctrine did not exempt the Board’s conduct. According to the FTC, a state regulatory body that is controlled by participants in the market that it regulates must be actively supervised by the State—it is treated as a private actor rather than a municipality. Thus, the FTC concluded, even assuming that the Board’s actions were authorized by a clearly articulated state policy, because no state official had “actively supervised” the Board’s enforcement activities, the state-action doctrine did not apply. The Board petitioned for review, which the Fourth Circuit denied. The Fourth Circuit agreed with the FTC that a state agency operated by market participants elected by other market participants is a private actor for purposes of the state-action exemption. And for such agencies, the court reasoned, the State must "exercise sufficient independent judgment and control" to address the “danger” that they are acting “to benefit [their] own membership,” even where their conduct is authorized by a clearly articulated state policy.

The Supreme Court heard oral arguments on October 14. The Court will consider whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants.

  • Prof. Rebecca Haw Allensworth, Vanderbilt University Law School
  • Misha Tseytlin, Deputy Attorney General, Office of West Virginia Attorney General

North Carolina State Board of Dental Examiners v. Federal Trade Commission - Post-Argument SCOTUScast

SCOTUScast 10-20-14 featuring Alexander Volokh
Alexander Volokh October 20, 2014

On October 14, 2014, the Supreme Court heard oral argument in North Carolina Board of Dental Examiners v. Federal Trade Commission.  The question in this case is whether the state-action exemption from federal antitrust laws applies to a state dental regulatory board when the majority of board members are dental professionals who are elected by other market participants--and thus potential competitors of anyone seeking entry into the dental industry.

To discuss the case, we have Prof. Alexander Volokh, who is an Associate Professor of Law at the Emory University School of Law.