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Fourteenth Amendment

The Barriers to the American Innovation Economy - Event Audio/Video

Fifth Annual Executive Branch Review Conference
Sally Greenberg, Robert Fisher, Abbott (Tad) Lipsky, Bret Swanson, Kathleen Q. Abernathy June 07, 2017

The Fifth Annual Executive Branch Review Conference will examine the changing and often convoluted relationship between the legislative and the executive branches in the United States government. The Conference began with this opening address by Senator Mike Lee and concluded with a closing address by OMB Director Mick Mulvaney.

This panel of the 2017 Executive Branch Review Conference was held at the Mayflower Hotel in Washington, D.C. on May 17, 2017.

Breakout Session: The Barriers to the American Innovation Economy
2:15 p.m. – 3:45 p.m.
Palm Court Ballroom

  • Ms. Sally Greenberg, Executive Director, National Consumers League 
  • Mr. Robert Fisher, Senior Vice President, Federal Government Relations, Verizon 
  • Mr. Abbott "Tad" Lipsky, Acting Director of Bureau of Competition, Federal Trade Commission 
  • Mr. Bret Swanson, Visiting Fellow, Center for Internet, Communications, and Technology, American Enterprise Institute
  • Moderator: Hon. Kathleen Q. Abernathy, Former Commissioner, Federal Communications Commission

Mayflower Hotel
Washington, DC

Bethune-Hill v. Virginia State Board of Elections - Post-Decision SCOTUScast

SCOTUScast 5-15-17 featuring Jack Park
John J. Park, Jr. May 15, 2017

On March 1, 2017, the Supreme Court decided Bethune-Hill v. Virginia State Board of Elections. Plaintiffs in Bethune-Hill each resided in one of twelve newly proposed majority-minority districts for the Virginia Legislature, created to satisfy Section 5 of the Voting Rights Act (VRA), which requires that any new districting plan must ensure that there be no “retrogression” in the ability of racial minorities to elect the candidate of their choice. Plaintiffs argued that the new districts constituted racial gerrymanders that violated the Equal Protection Clause of the Fourteenth Amendment. A three-judge panel of the U.S. District Court for the Eastern District of Virginia disagreed, holding that the plaintiffs had failed to establish that race was the predominant factor in the creation of 11 of the 12 challenged districts. The district court also held that, although race was the predominant factor in the creation of one district--District 75--the state legislature had satisfied the requirements of a compelling state interest and narrow tailoring.

On appeal to the United States Supreme Court, plaintiffs argued that the district court panel erred in a number of respects, including in determining that that race could not predominate unless its use resulted in an “actual conflict” with traditional districting criteria. Plaintiffs also argued that the use of race in drawing House District 75 was not narrowly tailored to serve a compelling government interest.

By a vote of 7-1, the Supreme Court affirmed the judgment of the district court panel in part, vacated it in part, and remanded the case. In an opinion delivered by Justice Kennedy, the Court held that the district court panel had employed an incorrect legal standard to determine whether race predominated, noting that challengers are permitted to establish racial predominance in the absence of an “actual conflict” by presenting direct evidence of the legislative purpose and intent or other compelling circumstantial evidence. The Court rejected Plaintiffs’ challenge to District 75, however, determining that the legislature’s action ultimately survived strict scrutiny.

Justice Kennedy’s majority opinion was joined by the Chief Justice and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito filed an opinion concurring in part and concurring in the judgment. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part.

To discuss the case, we have Jack Park, who is Of Counsel at Strickland Brockington Lewis LLP.

The Role of Economic Liberty in the United States - Event Audio/Video

Administrative Law & Regulation and Telecommunications & Electronic Media Practice Groups
Michelle P. Connolly, Clark Neily, Lawrence J. Spiwak, Maureen K. Ohlhausen, Dean A. Reuter March 30, 2017

The Federalist Society hosted a lunch and discussion on the role of Economic Liberty in the United States on Tuesday, March 28, 2017.  

Today, many job-seeking Americans and companies face significant government barriers that restrict their full participation in the economy. These barriers, often in the form of restrictive regulatory regimes, prevent consumers from using their skills, entering new professions, and starting new businesses. They also prevent low and middle-class Americans from moving up the ladder.  Competition and free markets have the power to spur innovation, create new business models, and drive economic opportunity and growth.

Policymakers, like Acting Chair of the Federal Trade Commission Maureen Ohlhausen, have begun to take actions to address these barriers.  For example, Ms. Ohlhausen recently announced the creation of an Economic Liberty Task Force to advance economic liberty issues, with a particular focus on occupational licensing regulations.  These topics and others were addressed.

Speakers Include: 

  • Prof. Michelle P. Connolly, Professor of the Practice of Economics, Duke University
  • Clark Neily, Senior Attorney, Institute for Justice
  • Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal and Economic Public Policy Studies
  • Moderator: Hon. Maureen K. Ohlhausen, Acting Chairman, Federal Trade Commission
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

National Press Club
Washington, DC

The Role of Economic Liberty in the United States - Sen. Ted Cruz Keynote Address - Event Audio/Video

Administrative Law & Regulation and Telecommunications & Electronic Media Practice Groups
R. Ted Cruz, Dean A. Reuter March 30, 2017

Senator Ted Cruz gives the keynote address to open the Federalist Society's lunch and discussion on the role of Economic Liberty in the United States on Tuesday, March 28, 2017.

Featuring: 

  • Hon. R. Ted Cruz, United States Senator, Texas
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

National Press Club
Washington, DC

Ziglar v. Abbasi - Post-Argument SCOTUScast

SCOTUScast 2-10-17 featuring Jamil Jaffer
February 10, 2017

On January 18, 2017, the Supreme Court heard oral argument in Ziglar v. Abbasi, which was consolidated with the cases Ashcroft v. Abbasi and Hasty v. Abbasi. Ziglar v. Abbasi was part of a series of lawsuits brought by Muslim, South Asian, and Arab non-citizens who were who were detained after the terrorist attacks on September 11, 2001 and treated as “of interest” in the ensuing government investigation. These plaintiffs contended, among other things, that the conditions of their confinement violated their constitutional rights to due process and equal protection. The defendants included high-level officials in the Department of Justice (DOJ) such as Attorney General John Ashcroft, FBI director Robert Mueller, and Immigration and Naturalization Service Commissioner James Ziglar, as well various detention officials. Some of the parties reached settlements, and the district court eventually dismissed some of the allegations against the DOJ officials for failure to state claim. The U.S. Court of Appeals for the Second Circuit affirmed the lower court’s dismissal of plaintiffs’ Free Exercise claims, but otherwise reversed most of the district court’s judgment. Plaintiffs, the Second Circuit held, had adequately pleaded claims for violations of substantive due process, equal protection, the Fourth Amendment, and civil conspiracy, and Defendants were not entitled to qualified immunity. Defendants then sought, and the Supreme Court granted, a petition for writ of certiorari.

The questions now before the Supreme Court are threefold: (1) whether the Second Circuit, in finding that Plaintiffs’ due process claims did not arise in a “new context” for purposes of implying a remedy under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, erred by defining “context” at too high a level of generality; (2) whether the Second Circuit erred in denying qualified immunity to Defendant Ziglar; and (3) whether the Second Circuit erred in holding that Plaintiffs’ Fourth Amendment Complaint met the pleading requirements identified by the Supreme Court in its 2009 decision in Ashcroft v. Iqbal.

To discuss the case, we have Jamil N. Jaffer, who is Adjunct Professor of Law and Director of the Homeland and National Security Law Program at the Antonin Scalia Law School.