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Federalism.

Improving the Use of Science in Regulation

Administrative Law & Regulation and Environmental Law & Property Rights Practice Group Teleforum Thursday, June 29, 02:00 PMFederalist Society Teleforum Conference Call

Regulations intended to address public health and environmental risks depend heavily on scientific information. Yet, they are often the subject of heated debate, involving accusations of “politicized science,” “advocacy science,” and “junk science.” Susan Dudley will discuss her forthcoming paper with Marcus Peacock that explores the motivations and institutional incentives that have led to this acrimony. The paper illustrates the problem with a case study of the National Ambient Air Quality Standards issued under the Clean Air Act, and offers recommendations for improving how science is used to inform regulatory policy.

Featuring: 

  • Hon. Susan E. Dudley, Director, Regulatory Studies Center and Distinguished Professor of Practice, The George Washington University

Courthouse Steps: D.C. Circuit En Banc Argument - Podcast

Federalism & Separation of Powers Practice Group Podcast
Thaya Brook Knight, Christopher G. Michel June 01, 2017

The D.C. Circuit heard a rare doubleheader of en banc arguments on major structural separation of powers questions on May 24. 

First up was Raymond J. Lucia Companies, Inc. v. SEC, which presented the question whether Administrative Law Judges at the SEC are “Officers of the United States” who must be selected in compliance with the Appointments Clause. The SEC contends that its ALJs are employees, not officers, because the ALJs do not exercise “significant authority pursuant to the laws of the United States,” which the Supreme Court has described as the hallmark of officer status. Last August, a three-judge panel of the D.C. Circuit agreed with the SEC, relying almost exclusively on an earlier (divided) D.C. Circuit precedent, Landry v. FDIC, 204 F.3d 1125 (D.C. Cir. 2000), which held the ALJs at the FDIC are not officers because they do not issue final agency decisions. Three months later, the Tenth Circuit issued a 2-1 decision finding that SEC ALJs are officers who must be selected pursuant to the Appointments Clause. The Tenth Circuit panel expressly disagreed with Lucia and Landry that authority to issue final agency decisions is a prerequisite for officer status. The D.C. Circuit subsequently vacated its panel decision and granted en banc review. The status of ALJs under the Appointments Clause has important implications not only for the SEC’s enforcement of the securities laws but also for the system of administrative agency adjudication as a whole.

The second case, PHH Corp. v. CFPB, presented the question whether an “independent” administrative agency may be led by a single person.  In a 100-page opinion by Judge Kavanaugh (joined by Judge Randolph) drawing on historical practice and first principles of separation of powers, the panel concluded that the statutory provision vesting the CFPB’s broad enforcement authority in a single director removable by the President only “for cause” violated Article II of the Constitution. The panel emphasized the absence of any historical precedent for an independent agency with a single director—a structure that created, in the panel’s description, an administrative official with more power than anyone in the federal government other than the President. The panel explained that this concentration of authority in a single person unaccountable to the President except for cause posed a “threat to individual liberty.” The panel remedied the constitutional defect by severing the statute’s “for cause” removal provision, thus making the CFPB director removable by the President at will. Judge Henderson dissented in part, arguing that the panel could have resolved the case on the basis of PHH’s statutory rather than constitutional challenges. The D.C. Circuit granted en banc review on both the constitutional  and statutory questions. The Justice Department (under the Trump Administration) filed an amicus brief in support of the challengers, while the CFPB continues to defend the constitutionality of its structure through its independent litigation authority.

Featuring:

  • Thaya Brook Knight, Associate Director of Financial Regulation Studies, Cato Institute
  • Christopher G. Michel, Associate, Bancroft PLLC

Update: In re Fosamax (Alendronate Sodium) Products Liability Litigation - Podcast

Litigation Practice Group Podcast
Jay Lefkowitz, Douglas G. Smith May 25, 2017

In a recent decision, the Third Circuit held that hundreds of state-law claims alleging that bone fractures were caused by an osteoporosis medication were not preempted by federal law. While defendants argued, and the district court agreed, that the record showed that the FDA would not have approved stronger warnings in the product labeling, the Third Circuit concluded that the record raised factual issues that should go to a jury. In doing so, the court rejected defendants’ contention that preemption was a purely legal issue for the court to decide and suggested that the evidence must show that there was a “high probability” that the FDA would have rejected stronger labeling in order to invoke preemption. Was the appellate court correct? How does its decision fit with other recent preemption cases? Jay Lefkowitz and Doug Smith joined us to discuss these and other issues relating to the court’s decision.

Featuring:

  • Jay P. Lefkowitz, P.C., Partner, Kirkland & Ellis LLP
  • Douglas G. Smith, P.C., Partner, Kirkland & Ellis LLP

Legal Challenge to the President's Executive Order on Reducing Regulation and Controlling Regulatory Costs - Podcast

Administrative Law & Regulation Practice Group Podcast
Thomas M. Johnson, Jr. May 19, 2017

On January 30, 2017, President Trump issued an Executive Order entitled Reducing Regulation and Controlling Regulatory Costs. The Executive Order instructs federal agencies to identify two existing regulations for repeal for each new regulation proposed. The Order further instructs the Director of the Office of Management and Budget to set an incremental cost target for each agency for each future fiscal year. Subject to certain exceptions, each agency must meet its target by offsetting the costs of new regulations by cost savings from repealed rules.

A lawsuit has been filed challenging the legality of the Executive Order in federal district court in Washington, D.C. The complaint argues, among other things, that the Order violates the separation of powers, the President's obligations under the Take Care Clause, and the Administrative Procedures Act. Thomas M. Johnson, Jr., is the Deputy Solicitor General of West Virginia and counsel of record on an amicus brief co-filed with the State of Wisconsin on behalf of a 14-state coalition supporting the legality of the Executive Order. Mr. Johnson joined us to discuss the Order and the pending litigation. This Teleforum is the fourth in our Executive Order Teleforum Series.

Featuring:

  • Thomas M. Johnson, Jr., Deputy Solicitor General of West Virginia

President Trump's Religious Liberties Executive Order - Podcast

Religious Liberties Practice Group Podcast
Gregory S. Baylor, Carl H. Esbeck May 11, 2017

On May 4, President Trump signed a Religious Liberty Executive Order relaxing IRS enforcement of the Johnson Amendment, which bans tax-exempt organizations like churches from political speech and activities. The “Promoting Free Speech and Religious Liberty” Executive Order also directs “the Secretary of Health and Human Services” to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate.”

An earlier version of the Executive Order was leaked in February, and contained many provisions, specifically about LGBTQ discrimination and federal contractors, which did not make it into the final. Prof. Carl Esbeck of the University of Missouri School of Law and Mr. Gregory Baylor of the Alliance Defending Freedom joined us to discuss the order and its precursor. This Teleforum is the third in our Executive Order Teleforum Series.

Featuring:

  • Mr. Gregory Baylor, Senior Counsel & Director of the Center for Religious Schools, Alliance Defending Freedom 
  • Prof. Carl Esbeck, R.B. Price Professor Emeritus of Law/ Isabelle Wade & Paul C. Lyda Emeritus of Law, University of Missouri School of Law