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Separation of Powers

16th Annual Barbara K. Olson Memorial Lecture - Event Audio/Video

2016 National Lawyers Convention
Ben Sasse, Eugene B. Meyer November 23, 2016

On September 11, 2001, at the age of 45 and at the height of her professional and personal life, Barbara K. Olson was murdered in the terrorist attacks against the United States as a passenger on the hijacked American Airlines flight that was flown into the Pentagon. The Federalist Society believes that it is most fitting to dedicate an annual lecture on limited government and the spirit of freedom to the memory of Barbara Olson. She had a deep commitment to the rule of law and understood well the relationship between respecting limits on government power and the preservation of freedom. And, significantly, Barbara Olson was an individual who never took freedom for granted in her own life, even in her final terrifying moments-her inspiring and energetic human spirit is a testament to what one can achieve in a world that places a premium on human freedom. Solicitor General Theodore B. Olson delivered the first lecture in November 2001. The lecture series continued in following years with other notable individuals. In 2016, Senator Ben Sasse of Nebraska delivered the lecture.

This lecture was delivered on November 18, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Barbara K. Olson Memorial Lecture
5:30 p.m. – 6:00 p.m.
Grand Ballroom

  • Lecture: Hon. Ben Sasse, U.S. Senate, Nebraska
  • Introduction: Mr. Eugene B. Meyer, President, The Federalist Society

The Mayflower Hotel
Washington, DC

Address by Senator Ted Cruz - Audio/Video

2016 National Lawyers Convention
R. Ted Cruz, Dean A. Reuter November 23, 2016

Senator Ted Cruz delivered this address at the 2016 National Lawyers Convention on Friday, November 18, 2016. He was introduced by Dean Reuter, Vice President & Director of Practice Groups at The Federalist Society.

Address
12:00 noon – 12:30 p.m.
Grand Ballroom

  • Hon. Ted Cruz, U.S. Senate, Texas
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Address by Governor Nikki Haley - Event Audio/Video

2016 National Lawyers Convention
Nikki Haley November 23, 2016

Governor Nikki Haley delivered this address at the 2016 National Lawyers Convention on Friday, November 18, 2016. She was introduced by Alan Gocha of ETC Capital. Mr. Leonard A. Leo, Executive Vice President of The Federalist Society, introduced Mr. Gocha.

Address
11:15 a.m. – 12:00 noon
Grand Ballroom

  • Hon. Nikki Haley, Governor, South Carolina
  • Introduction: Mr. Alan Gocha, Principal, ETC Capital
  • Introduction: Mr. Leonard A. Leo, Executive Vice President, The Federalist Society

The Mayflower Hotel
Washington, DC

Justice Scalia on Federalism and Separation of Powers - Audio/Video

2016 National Lawyers Convention
John S. Baker, Jr., Ron DeSantis, Roger Pilon, Luther Strange, Jonathan R. Turley, William H. Pryor Jr. November 23, 2016

Justice Scalia often said that, while he always tried to get the Bill of Rights cases correct, he cared most about the structural constitutional cases. Once or twice each summer, he even taught a course called Separation of Powers. His opinions on the structural issues of separation of powers and federalism often cited The Federalist Papers. He routinely urged law students and lawyers to read the whole of The Federalist. The authors of the Federalist Papers placed primordial importance on separated powers, both among branches of the federal government and between federal and state governments. With the separation of powers both horizontal and vertical increasingly in doubt, it is particularly important to understand the Federalist's treatment of constitutional structure. This panel, therefore, looks at Justice Scalia's Federalist focus on the importance of separation of powers and federalism as structural protections of liberty.

This panel was held on November 17, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Federalism & Separation of Powers: Justice Scalia on Federalism and Separation of Powers
3:30 p.m. – 5:00 p.m.
Grand Ballroom

  • Prof. John S. Baker, Jr., Visiting Professor, Georgetown University Law Center
  • Hon. Ron DeSantis, U.S. House of Representatives, Florida 6th District
  • Mr. Roger Pilon, Vice President, Legal Affairs, Cato Institute
  • Hon. Luther Strange III, Attorney General, Alabama
  • Prof. Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law; Director of the Environmental Law Advocacy Center; Executive Director, Project for Older Prisoners, The George Washington University Law School
  • Moderator: Hon. William H. Pryor Jr., U.S. Court of Appeals, Eleventh Circuit

The Mayflower Hotel
Washington, DC

National Labor Relations Board v. SW General, Inc. - Post-Argument SCOTUScast

SCOTUScast 11-15-16 featuring Kristin Hickman
Kristin Hickman November 15, 2016

On November 7, 2016, the Supreme Court heard oral argument in National Labor Relations Board v. SW General, Inc. SW General, Inc. provides ambulance services to hospitals in Arizona. A union had negotiated “longevity pay” for SW General’s emergency medical technicians, nurses, and firefighters. In December 2012, between the expiration of one collective bargaining agreement and the negotiation of a new one, SW General stopped paying the longevity pay. The union filed an unfair labor practices claim with the National Labor Relations Board (NLRB), which issued a formal complaint. An administrative law judge determined that SW General had committed unfair labor practices, but SW General contended that the NLRB complaint was invalid because the Acting General Counsel of the NLRB at the time, Lafe Solomon, had been serving in violation of the Federal Vacancies Reform Act (FVRA). President Barack Obama had nominated Solomon--who had then been serving as Acting General Counsel after the General Counsel had resigned--to serve as General Counsel, but the Senate had not acted on the nomination. The president had ultimately withdrawn the nomination and replaced it with that of Richard Griffin, who was confirmed. In the intervening period--including when the NLRB complaint had issued against SW General--Solomon had continued to serve as Acting General Counsel. SW General argued that under the FVRA, Solomon became ineligible to hold the Acting position once nominated by the president to the General Counsel position. The U.S. Court of Appeals for the D.C. Circuit agreed, and vacated the NLRB’s enforcement order. The NLRB then obtained a writ of certiorari from the Supreme Court.

The question now before the Supreme Court is whether the FVRA precondition in 5 U.S.C. 3345(b)(1), on service in an acting capacity by a person nominated by the President to fill the office on a permanent basis, which requires that a person who is nominated to fill a vacant office subject to the FVRA may not perform the office’s functions and duties in an acting capacity unless the person served as first assistant to the vacant office for at least 90 days in the year preceding the vacancy, applies only to first assistants who take office under subsection (a)(1) of 5 U.S.C. 3345, or whether it also limits acting service by officials like Solomon, who assume acting responsibilities under subsections (a)(2) and (a)(3).

To discuss the case, we have Kristin Hickman, who is the Distinguished McKnight University Professor, Harlan Albert Rogers Professor of Law, and Associate Director, Corporate Institute at the University of Minnesota Law School.