Life on the Bench - Event Audio/Video

2015 National Lawyers Convention
Brett M. Kavanaugh, Alex Kozinski, Diarmuid F. O'Scannlain, Jerry E. Smith, David Stras, David B. Sentelle, Dean A. Reuter November 19, 2015

Many attorneys see a judgeship as the pinnacle of professional achievement in the legal world. It could be the visibility of judges, their unquestioned decision-making authority, the absence of clients, life tenure, or some other aspect of being a judge. Our panel of judges will discuss the realities of a career on the bench. The panelists will share their thoughts on topics as diverse as the role of the judiciary, judicial philosophy, stare decisis and precedent, opinions and dissents, the judicial appointment process, the state of the legal profession, and much more.

This panel was presented at the 2015 National Lawyers Convention on Saturday, November 14, 2015, at the Mayflower Hotel in Washington, DC.

Special Session: Life on the Bench
2:30 p.m. – 4:00 p.m.
State Room

  • Hon. Brett Kavanaugh, U.S. Court of Appeals, D.C. Circuit
  • Hon. Alex Kozinski, U.S. Court of Appeals, Ninth Circuit
  • Hon. Diarmuid F. O'Scannlain, U.S. Court of Appeals, Ninth Circuit
  • Hon. Jerry Smith, U.S. Court of Appeals, Fifth Circuit
  • Hon. David Stras, Associate Justice, Supreme Court of Minnesota
  • Moderator: Hon. David B. Sentelle, U.S. Court of Appeals, D.C. Circuit
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

The Mayflower Hotel
Washington, DC

Deference Meets Delegation: Which is the Most Dangerous Branch? - Event Audio/Video

2015 National Lawyers Convention
John C. Eastman, C. Boyden Gray, Neal K. Katyal, David B. Rivkin, Jr., Brett M. Kavanaugh November 18, 2015

Article I, Section 1 of the Constitution provides that “All legislative Powers herein granted shall be vested in a Congress of the United States." Critics argue that, given this mandate, too much of the lawmaking power is exercised by unelected people in unaccountable agencies. These bureaucracies make “law" by both formal and informal regulation, and oftentimes both enforce their own laws and adjudicate their own enforcement actions. Some have even been given self-funding mechanisms, which removes them from even the check of Congress's appropriation power. Proponents of such delegation argue that administrative agency staff have expertise in myriad substantive areas that legislators could never obtain, and that what critics describe as a lack of accountability is actually insulation from political pressure and influence. They assert that delegations of lawmaking power are permissible if Congress provides an “intelligible principle" setting the boundaries within which the agencies are permitted to operate. The Supreme Court has, under this standard, upheld such broad grants of power to the agencies as legislative direction to regulate “in the public interest," for the “public convenience, interest, or necessity," to do what is “just and reasonable," or to prevent “unfair methods of competition." In other words, critics assert, the “intelligible principle" limitation on delegations of lawmaking power is no limitation at all. The last time the Court struck down an act of Congress because it delegated lawmaking power was in the 1935 case of Schechter Poultry Corp. v. United States, and that case involved a double delegation, first to the executive and then to a committee of private businesses.

The phenomenon of agency officials making most of the nation's laws expanded when the Court decided, in Chevron v. Natural Resources Defense Council, (1984) to start deferring to agency interpretation of ambiguous statutes. Several members of the Court have started to question this state of affairs, and this past term, in three separate opinions, Justice Thomas called on the Court to revisit both Chevron deference and the demise of the non-delegation doctrine. Others fear an over-empowered, unelected judiciary. One response to reliance on Chevron deference was offered by Chief Justice Roberts in the King v. Burwell case. There, the Chief (writing for a 5-4 majority) declined to defer to the agency's interpretation of the statute, and instead applied Chevron deference to the Court's own interpretation. This panel will address the present state of affairs and the possible roads forward.

Federalism: Deference Meets Delegation: Which is the Most Dangerous Branch?
3:45 p.m. – 5:15 p.m.
Grand Ballroom

  • Prof. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law
  • Hon. C. Boyden Gray, Boyden Gray & Associates and former U.S. Ambassador to the European Union
  • Mr. Neal K. Katyal, Hogan Lovells and former Acting U.S. Solicitor General
  • Mr. David B. Rivkin, Jr., Partner, BakerHostetler
  • Moderator: Hon. Brett Kavanaugh, U.S. Court of Appeals, D.C. Circuit

The Mayflower Hotel
Washington, DC

Judicial Review in an Objective Legal System - Podcast

Federalism & Separation of Powers Practice Group Podcast
Tara A Smith, Gary S. Lawson November 03, 2015

At a time when some argue that the Rule of Law seems to be deteriorating and with a Presidential election heating up, the question of judicial review has perhaps never been more vital. Yet debate over the best methods of conducting judicial review typically present the law's meaning as either rigid or elastic, inherently given, or subjectively projected.

By examining proper modes of judicial review within the framework of a proper legal system as a whole—and more specifically, by identifying law’s function and authority—philosopher Tara Smith’s new book, Judicial Review in an Objective Legal System, seeks to break past this false alternative and chart a distinctive course for genuinely objective review that upholds the Rule of Law.


  • Prof. Tara A Smith, University of Texas
  • Prof. Gary S. Lawson, Philip S. Beck Professor of Law, Boston University School of Law

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

Third Annual Executive Branch Review Conference
David M. McIntosh, Clark Neily, M. Edward Whelan, 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