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Justice Scalia and the Evolution of Chevron Deference - Event Audio/Video

Second Annual Texas Chapters Conference
Prerak Shah, Ken Paxton, Aditya Bamzai, Ron Beal, Charles J. Cooper, Aaron Nielson, Edith H. Jones, Karen J. Lugo September 22, 2016

For over thirty years, the seminal Supreme Court decision in Chevron v. NRDC has provided the principles used to determine the extent to which a court reviewing agency action should defer to the agency’s interpretation of its own rules as well as fill in “blanks” in the text. For much of his career on the Supreme Court, Justice Scalia (and the Court) deferred to this decision. However, late in his tenure, Justice Scalia had begun to reconsider Chevron deference. For the Chevron example, in his opinions in King v. Burwell andUtility Air Regulatory Group v. EPA, Justice Scalia criticized agencies’ assertions of unprecedented power. This panel will explore how judicial deference to agency decision-making has evolved since and whether it is time to revisit the doctrine of “Chevron deference.”  How might Justice Scalia have come down on US v. Texas, net neutrality, or the EPA’s “Clean Power Plan”? Might his views have continued to evolve if he had remained on the Court? And what is the future of Chevron deference with the Roberts Court? Is a new balance between courts and agencies needed?

This panel took place on September 17, 2016, during the Second Annual Texas Chapters Conference in Austin, Texas. The theme for the conference was "The Separation of Powers in the Administrative State".

Welcome 
9:00 - 9:15 a.m.

Amphitheater 204

  • Hon. Ken Paxton, Texas Attorney General
  • Introduction: Mr. Prerak Shah, Senior Counsel to the Attorney General

Panel One: Justice Scalia and the Evolution of Chevron Deference 
9:15 a.m. - 10:45 a.m.

Amphitheater 204

  • Prof. Aditya Bamzai, Associate Professor of Law, University of Virginia School of Law
  • Prof. Ron Beal, Baylor University Law School
  • Hon. Charles J. Cooper, Partner, Cooper & Kirk, PLLC and former Assistant U.S. Attorney General for the Office of Legal Counsel
  • Prof. Aaron Nielson, Brigham Young University Law School
  • Moderator: Hon. Edith Jones, U.S. Court of Appeals, Fifth Circuit
  • Introduction: Ms. Karen Lugo, Director, Center for Tenth Amendment Action, Texas Public Policy Foundation

AT&T Executive Education and Conference Center
University of Texas at Austin
Austin, TX

A Look Back, and a Look Forward: A Discussion with Three Former SEC Commissioners - Event Audio/Video

Sponsored by the Federalist Society's Corporations, Securities & Antitrust Practice Group
Paul S. Atkins, Annette L. Nazareth, Troy A. Paredes, Jeffrey T. Dinwoodie, Dean A. Reuter June 14, 2016

Three former SEC Commissioners reflect on their tenures at the SEC and also provide their perspectives on several of today’s most important financial regulatory issues and questions.

This panel was sponsored by the Federalist Society's Corporations, Securities & Antitrust Practice Group on June 1, 2016, at the National Press Club in Washington, DC.

Featuring:

  • Hon. Paul S. Atkins, Chief Executive, Patomak Global Partners, LLC (SEC Commissioner 2002-2008)
  • Hon. Annette L. Nazareth, Partner, Davis Polk & Wardwell LLP (SEC Commissioner 2005-2008)
  • Hon. Troy A. Paredes, Founder, Paredes Strategies LLC (SEC Commissioner 2008-2013)
  • Moderator: Jeffrey T. Dinwoodie, Associate, Davis Polk & Wardwell LLP
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

National Press Club
Washington, DC

Address by Senator Dan Sullivan - Event Audio/Video

Fourth Annual Executive Branch Review Conference
Dan Sullivan, Dean A. Reuter May 20, 2016

United States Senator Dan Sullivan of Alaska delivered this address during the Fourth Annual Executive Branch Review Conference on May 17, 2016.

Featuring:

  • Hon. Dan Sullivan, United States Senate, Alaska
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

The Mayflower Hotel
Washington, DC

Who Wins at Administrative Hopscotch? - Event Audio/Video

Fourth Annual Executive Branch Review Conference
Paul S. Atkins, Ronald A. Cass, Bradley A. Smith, Laurence H. Silberman May 20, 2016

Overlapping jurisdiction of federal regulatory agencies can lead to confusion and sometimes even contradictory requirements for private actors, and turf battles among agencies.  Further, questions arise about the legitimacy of regulations promulgated by an agency that does not appear to have primary responsibility for an area, when the agency that has that primary responsibility has failed or declined to act.  

Among the myriad items in the 2016 omnibus appropriations bill were two curious provisions: a prohibition on the Internal Revenue Service from spending funds to write new regulations governing 501(c)(4) social welfare organizations, and a prohibition on the Securities and Exchange Commission from spending funds to write regulations that would require companies to report political contributions and donations to tax exempt organizations. Both edicts are responses to intense advocacy for these agencies to undertake the respective rulemakings, following refusal by the Federal Election Commission to expand disclosure.  Moreover, advocates of campaign finance regulation continue to seek new political regulations at the Federal Communications Commission and for the Department of Justice to undertake broader inquiries. As a whole, one might call these efforts “administrative hopscotch”—seeking regulation or enforcement from an agency when another with unequivocal jurisdiction refuses to act.  Is expanding the jurisdictions of federal agencies to such extent that they may regulate the same activity a constitutional problem? Practically speaking, what does this mean for innovators when they must comply with repetitive or diverse red tape? Furthermore, what happens when the regulations conflict, as already seen between certain IRS and FEC provisions?

Ideally, this panel would feature former commissioners from executive agencies who have faced these efforts. They could briefly discuss what they considered the appropriate regulatory purview of their agency, their thoughts on administrative overlap, and whether or not administrative hopscotch is a real problem. The FEC circumvention is ongoing and intense, with media scrutiny and support of hopscotch by its more active commissioners. However, it is likely there are many examples that would make for good discussion and an important panel.

This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC.

Featuring:

  • Hon. Paul S. Atkins, Patomak Global Partners and former Commissioner, Securities and Exchange Commission
  • Hon. Ronald A. Cass, Cass & Associates and former Commissioner and Vice-Chairman, US International Trade Commission
  • Hon. Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law, Capital University Law School and former Commissioner, Federal Election Commission
  • Moderator: Hon. Laurence H. Silberman, U.S. Court of Appeals, D.C. Circuit

The Mayflower Hotel
Washington, DC