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Federalism

2015 Separation of Powers CLE Course

Federalism & Separation of Powers Practice Group Thursday, August 20, 12:00 AMThe Ritz-Carlton, Bachelor Gulch
0130 Daybreak Ridge
Avon, CO 81620

U.S. Supreme Court Associate Justice Antonin Scalia and Professor John Baker of Georgetown Law will teach a ten-hour CLE course on the courts, standing, the non-delegation doctrine, and appointments and removal, as they relate to the separation of powers. This course is offered exclusively to Federalist Society members. [Register now!]

King v. Burwell - Post-Decision SCOTUScast

SCOTUScast 6-26-15 featuring Jonathan Adler and Josh Blackman
Jonathan H. Adler, Josh Blackman June 26, 2015

On June 25, 2015, the Supreme Court issued its decision in King v. Burwell. The question in this highly anticipated case is whether the Affordable Care Act authorizes the Internal Revenue Service to offer tax credit subsidies for individuals purchasing health insurance through federal exchanges.

In an opinion delivered by the Chief Justice, the Court held by a vote of 6-3 that the tax credit subsidies authorized by section 36B of the Affordable Care Act for individuals purchasing health insurance through state exchanges are also available to individuals in states that have a federal exchange.  The judgment of the Fourth Circuit was affirmed.

Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan joined the opinion of the Court. Justice Scalia filed a dissenting opinion which Justices Thomas and Alito joined.

To discuss the case, we have Prof. Josh Blackman, who is an Assistant Professor of Law at the South Texas College of Law and Prof. Jonathan Adler who is the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law.

Congressional Oversight - Audio/Video

Third Annual Executive Branch Review Conference
Jonathan H. Adler, Michael D. Bopp, Sally Katzen, Adam J. White, Todd F. Gaziano June 24, 2015

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.
Promenade Room

  • 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
Washington, DC

The Incentives Behind Congressional Delegation - Audio/Video

Third Annual Executive Branch Review Conference
Jack Beermann, Gillian E. Metzger, Neomi Rao, Dean A. Reuter June 24, 2015

In administrative law the focus has primarily been on how to constrain executive discretion. It may, however, be equally important to consider how to constrain the delegations that create that discretion—not just by telling Congress to “do its job,” but by thinking about how to shift the incentives that members have for delegation. This panel will consider what Congress gains by delegating policymaking authority to the executive. The conventional view holds that delegations only expand the power of the executive, ignoring the myriad reasons that Congress chooses to delegate its power. Members of Congress may realize a variety of benefits from delegation, including control over how agencies exercise their discretion. Panelists will discuss the reasons why Congress delegates so broadly and consider what legal and political solutions might curb such delegations.

Luncheon Panel: The Incentives behind Congressional Delegation
12:30 p.m. – 2:00 p.m.
State Room

  • Prof. Jack M. Beermann, Boston University School of Law
  • Prof. Gillian E. Metzger, Columbia Law School
  • Prof. Neomi J. Rao, George Mason University School of Law
  • Moderator: Mr. Dean A. Reuter, The Federalist Society

June 18, 2015
Washington, DC

Should Federal Law Enjoy a Presumption of Constitutionality? - Audio/Video

Third Annual Executive Branch Review Conference
David M. McIntosh, Clark Neily, M. Edward Whelan III, Thomas B. Griffith June 24, 2015

Does the judiciary owe Congress presumptive deference in reviewing and considering challenges to federal statutes?  If so, what standards should courts impose on those making such challenges?

The historical practice of such presumptive deference, the canon of constitutional avoidance, has been reflected in decades of judicial decisions upholding much Congressional legislation.  However, some believe that, in light of courts' observance of the canon of constitutional avoidance, Congress correspondingly enacts legislation without taking care that such legislation is actually constitutional.

In recent years, Congress is increasingly likely to pass acts that run to hundreds or even thousands of pages.  The bills are typically drafted by staffers, sometimes hastily written and amended at the last moment, and often not read by legislators before votes are cast.  Some bills are passed at the midnight hour, sometimes with provisions for expedited judicial review of the bill's constitutionality, as if Congress is leaving wholly to the judiciary the assessment of a law's constitutionality

Some now assert that, given how Congress enacts legislation, courts should rethink the canon of constitutional avoidance.

Our panel will consider this question and the proper applicability of the canon of constitutional avoidance.

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: Should Federal Law Enjoy a Presumption of Constitutionality?
11:20 – 12:20 p.m.
East Room

  • Hon. David M. McIntosh, Club for Growth
  • Mr. Clark Neily, Institute for Justice 
  • Mr. M. Edward Whelan III, Ethics and Public Policy Center
  • Moderator: Hon. Thomas B. Griffith, United States Court of Appeals for the District of Columbia Circuit

June 18, 2015
Washington, DC