State/Federal Relations

Saving Congress from Itself: Emancipating the states & Empowering Their People - Event Video

2014 National Lawyers Convention
James L. Buckley, John C. Eastman, Michael S. Greve, Robert R. Gasaway November 17, 2014

Saving Congress from Itself proposes a single reform: eliminate all federal grants-in-aid to state and local governments. This action would reduce federal spending by over $600 billion a year and have a profound effect on how we govern ourselves. The proliferation of federal grants-in-aid programs is of recent vintage: only about 100 such grants existed before Lyndon Johnson took office, and now they number more than 1,100. Eliminating grants to the states will result in enormous savings in federal and state administrative costs; free states to set their own priorities; and improve the design and implementation of programs now subsidized by Washington by eliminating federal regulations that attend the grants. In short, it will free states and their subdivisions to resume full responsibility for all activities that fall within their competence, such as education, welfare, and highway construction and maintenance. And because members of Congress spend major portions of their time creating grants and allocating funds assigned to them (think earmarks), eliminating grants will enable Congress to devote its time to responsibilities that are uniquely national in character.

The Federalist Society's Practice Groups presented this closing discussion on "Saving Congress from Itself: Emancipating the States & Empowering Their People" on Saturday, November 15, during the 2014 National Lawyers Convention.


  • Hon. James L. Buckley, U.S. Court of Appeals for the D.C. Circuit (ret.) and former U.S. Senator
  • Dr. John C. Eastman, Henry Salvatori Professor of Law and Community Service; Former Dean (2007 – 2010); and Director, Center for Constitutional Jurisprudence, Dale E Fowler School of Law, Chapman University
  • Prof. Michael S. Greve, Professor of Law, George Mason University School of Law
  • Moderator: Mr. Robert R. Gasaway, Partner, Kirkland & Ellis LLP

Mayflower Hotel
Washington, DC

Regulating the Regulators: North Carolina Board of Dental Examiners v. Federal Trade Commission - Podcast

Litigation Practice Group Podcast
Rebecca Haw Allensworth, Misha Tseytlin October 20, 2014

The North Carolina State Board of Dental Examiners is the state agency responsible for regulating the practice of dentistry in North Carolina. Under state law, six of the Board's eight members are practicing dentists elected by the state’s licensed dentists. In response to the Board's enforcement actions against non-dentist teeth-whitening providers, the FTC issued an administrative complaint charging that the Board had engaged in concerted action to exclude competition from those non-dentist providers.

The Board moved to dismiss under the state-action antitrust doctrine, which exempts a State’s anticompetitive actions from federal antitrust scrutiny. The doctrine also exempts the activities of private actors if their conduct is (1) authorized by a clearly articulated state policy to displace competition, and (2) “actively supervised” by state officials. Municipal actors are exempt so long as they act pursuant to a clearly articulated state policy.

The FTC determined that the state-action doctrine did not exempt the Board’s conduct. According to the FTC, a state regulatory body that is controlled by participants in the market that it regulates must be actively supervised by the State—it is treated as a private actor rather than a municipality. Thus, the FTC concluded, even assuming that the Board’s actions were authorized by a clearly articulated state policy, because no state official had “actively supervised” the Board’s enforcement activities, the state-action doctrine did not apply. The Board petitioned for review, which the Fourth Circuit denied. The Fourth Circuit agreed with the FTC that a state agency operated by market participants elected by other market participants is a private actor for purposes of the state-action exemption. And for such agencies, the court reasoned, the State must "exercise sufficient independent judgment and control" to address the “danger” that they are acting “to benefit [their] own membership,” even where their conduct is authorized by a clearly articulated state policy.

The Supreme Court heard oral arguments on October 14. The Court will consider whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants.

  • Prof. Rebecca Haw Allensworth, Vanderbilt University Law School
  • Misha Tseytlin, Deputy Attorney General, Office of West Virginia Attorney General

Federal Monitoring of Local Policing - Podcast

Criminal Law & Procedure Practice Group Podcast
William G. Otis, Samuel Walker September 26, 2014

Is it within a federal court's authority to order local police officers to wear video cameras in an effort to create an "objective record" of police activity, as occurred last summer in New York City? What is the basis and is it advisable for the Department of Justice to impose reforms on local police activity via consent decrees or other means (see here and here)? What should we make of lawsuits, such as the one filed by police officers rejecting such oversight in Seattle? Are they attempts to vindicate the sovereignty of their own policing, or do they gloss over the serious problems in law enforcement that would go otherwise unchecked without federal involvement? Our experts answered these and other questions.

  • Prof. William G. Otis, Adjunct Professor of Law, Georgetown University Law Center
  • Prof. Samuel Walker, Emeritus Professor of Criminal Justice, University of Nebraska at Omaha

Getting it Right on Crime - Podcast

Criminal Law & Procedure Practice Group Podcast
Marc A. Levin, Pat Nolan September 26, 2014

Until recently prisons have been the sacred cows in state budgets. They are the second fastest growing item in state budgets, second only to Medicaid. Conservative leaders in several states have enacted reforms that have saved billions by reserving costly prison beds for violent offenders, while punishing non-violent offenders in community programs, without increasing their crime rates. Do these reforms provide a roadmap for other states and the federal government?

Marc Levin, of the Texas Public Policy Foundation and Pat Nolan of the American Conservative Union Foundation, are leaders of Right on Crime, a movement of conservatives working with the states to provide conservative and fiscally responsible solutions to their criminal justice problems. They described the specific reforms that have been utilized in states such as Texas, Georgia, Pennsylvania, South Carolina, and Ohio to cut their prison costs while also driving the crime rates down.

  • Marc A. Levin, Director, Center for Effective Justice, Texas Public Policy Foundation
  • Pat Nolan, Director, Center for Criminal Justice Reform, The American Conservative Union