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Separation of Powers

Department of Transportation v. Association of American Railroads - Post-Decision SCOTUScast

SCOTUScast 3-30-15 featuring Sasha Volokh
Alexander Volokh March 30, 2015

On March 9, 2015, the Supreme Court decided Department of Transportation v. Association of American Railroads. The question in this case is whether the Passenger Rail Investment and Improvement Act of 2008 unconstitutionally delegates legislative power to a putatively private entity--Amtrak--by involving it in the creation of standards used to determine whether freight railroads are according the preference to Amtrak’s passenger trains that is required by federal law regarding the use of rail lines.

In an opinion delivered by Justice Kennedy, the Court held unanimously that for purposes of determining the validity of the metrics and standards issued by Amtrak, Amtrak is a governmental entity.  Justices Kennedy's opinion for the Court was joined by the Chief Justice and Justices Scalia, Ginsburg, Breyer, Alito, Sotomayor, and Kagan.  Justice Alito also filed a concurring opinion. Justice Thomas filed an opinion concurring in the judgment. The judgment of the D.C. Circuit was vacated and remanded for further proceedings. 

To discuss the case, we have Prof. Alexander “Sasha” Volokh, who is an Associate Professor of Law at the Emory University School of Law. Professor Volokh received his JD and PhD in economics from Harvard University. He regularly teaches a course on law and economics of anti-trust and has participated as an expert witness in cases involving anti-trust or before the FTC.

The Texas Immigration Case: What Does it Mean, What Happens Next? - Podcast

Litigation and International & National Security Law Practice Groups Podcast
John C. Eastman, Brianne Gorod March 25, 2015

In February of 2015, federal District Court Judge Andrew Hanen (Southern District of Texas) temporarily blocked President Obama’s executive actions on immigration, which would have shielded as many as five million people from deportation proceedings. Judge Hanen subsequently refused the federal government’s request to reconsider, and last week the government filed an emergency motion in the Fifth Circuit Court of Appeals asking that court to overturn the injunction. This week, Judge Hanen and federal government lawyers reportedly sparred over representations made in court by government attorneys on details of waivers already granted under the executive actions. What is the basis of Judge Hanen’s injunction? Is it likely to be overturned or upheld by the Fifth Circuit? What are the next steps in the proceedings?

  • Prof. John C. Eastman, Director, Center for Constitutional Jurisprudence, Henry Salvatori Professor of Law and Community Service, Chapman University Dale E. Fowler School of Law
  • Brianne Gorod, Appellate Counsel, Constitutional Accountability Center

King v. Burwell - Post-Argument SCOTUScast

SCOTUScast 3-6-15 featuring Jonathan Adler
Jonathan H. Adler March 06, 2015

On March 4, 2015, the Supreme Court heard oral argument in King v. Burwell. The question in this highly anticipated case is whether the Affordable Care Act authorizes the Internal Revenue Service to offer tax credit subsidies for individuals purchasing health insurance through federal exchanges.

To discuss the case, we have Prof. Jonathan Adler who is the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law.

Executive Action on Immigration - Event Audio/Video

Sponsored by the Federalist Society's Practice Groups
Kamal Essaheb, David B. Rivkin, Jr., Ilya Shapiro, Peter Bisbee February 20, 2015

On November 20, 2014, President Obama, with much attention from the media and the public, announced executive action on immigration. Our discussion will address the specifics of the President’s actions, and the legality of those actions. What exactly was said and done by the President, and how do his actions differ from acts he previously asserted were beyond his unilateral power? Has the President exceeded his constitutional authority to act? What happens next? Please join us over the lunch hour for a discussion with three experts in the field.

Featuring:

  • Mr. Kamal Essaheb, Immigration Policy Attorney, National Immigration Law Center
  • Mr. David Rivkin, Partner, Baker & Hostetler LLP
  • Mr. Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute
  • Moderator: Mr. Peter Bisbee, Membership Director and Associate Director of External Relations, The Federalist Society

National Press Club
Washington, DC

“Sue-and-Settle” and the Endangered Species Act - Podcast

Environmental Law & Property Rights and Federalism & Separation of Powers Practice Groups Podcast
Susan Combs, Justin Pidot, William Yeatman February 18, 2015

Endangered Species Act listing settlements between the Environmental Protection Agency and private parties have not always allowed state participation or input. Truncated legal proceedings may not sufficiently recognize private partnerships with states to remedy habitat conservation concerns. State actors, energy industries, ranchers, and private property owners have asked how the process may better serve all interests. As some states face settlement decrees that represent potentially dozens – to over a hundred – new listings, is there a way to ensure equity and full process for all concerned parties?

  • Hon. Susan Combs, Former Comptroller of Public Accounts, State of Texas
  • Prof. Justin Pidot, University of Denver Sturm College of Law
  • William Yeatman, Senior Fellow, Competitive Enterprise Institute