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

Overruled: The Long War for Control of the U.S. Supreme Court - Event Video

Co-sponsored by the Charles Koch Institute and Reason
Damon Root, Neomi Rao November 19, 2014

Damon Root discusses his new book, Overruled: The Long War for Control of the U.S. Supreme Court, in which the Reason senior editor asks the question: can the federal government make you eat your fruits and vegetables? 

Does the Constitution empower the Supreme Court to actively protect individual rights from the whimsy and overreach of lawmakers? The debate over judicial restraint vs. judicial activism is at the heart of Overruled, which makes a bold case for libertarian judicial activism—the notion that the courts should swat away unwarranted and indefensible incursions on our rights to life, liberty, and the pursuit of happiness.

The Federalist Society, the Charles Koch Institute, and Reason co-sponsored this event on November 18, 2014.


  • Mr. Damon Root, Author of Overruled and senior editor of Reason magazine and
  • Prof. Neomi Rao, Associate Professor, George Mason University School of Law

The Mayflower Hotel
Washington, DC

Without Standing, Are We All Sitting Ducks? - Event Video

2014 National Lawyers Convention
Jonathan H. Adler, Amanda Cohen Leiter, Robert N. Weiner, Patrick Wyrick, A. Raymond Randolph, Eileen J. O'Connor November 17, 2014

For a federal court to consider an issue, there must be a case or controversy, and the parties before the court must have standing, i.e., a stake in the outcome of the decision.  While standing is important in our system of justice, the courts are not the only avenue for relief (the ballot box, theoretically, being another).  This panel will explore the history, development and current status of standing doctrine in regulatory litigation, with particular focus on the extent to which standing and related justiciability requirements have come to serve as a shield against meaningful judicial review of agency actions.

The Federalist Society's Administrative Law & Regulation Practice Group presented this panel on "Without Standing, Are We All Sitting Ducks?" on Saturday, November 15, during the 2014 National Lawyers Convention.


  • Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law
  • Prof. Amanda Cohen Leiter, Associate Professor of Law, American University Washington College of Law   
  • Mr. Robert N. Weiner, Partner, Arnold & Porter LLP
  • Mr. Patrick Wyrick, Solicitor General, State of Oklahoma
  • Moderator: Hon. A Raymond Randolph, U.S. Court of Appeals for the D.C. Circuit
  • Introduction: Hon. Eileen O'Connor, Partner, Pillsbury Winthrop Shaw Pittman LLP; and Chairman, Administrative Law & Regulation Practice Group

Mayflower Hotel
Washington, DC