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Courthouse Steps: D.C. Circuit En Banc Argument

Federalism & Separation of Powers Practice Group Teleforum Wednesday, May 31, 02:00 PMFederalist Society Teleforum Conference Call

The D.C. Circuit heard a rare doubleheader of en banc arguments on major structural separation of powers questions on May 24. 

First up was Raymond J. Lucia Companies, Inc. v. SEC, which presented the question whether Administrative Law Judges at the SEC are “Officers of the United States” who must be selected in compliance with the Appointments Clause. The SEC contends that its ALJs are employees, not officers, because the ALJs do not exercise “significant authority pursuant to the laws of the United States,” which the Supreme Court has described as the hallmark of officer status. Last August, a three-judge panel of the D.C. Circuit agreed with the SEC, relying almost exclusively on an earlier (divided) D.C. Circuit precedent, Landry v. FDIC, 204 F.3d 1125 (D.C. Cir. 2000), which held the ALJs at the FDIC are not officers because they do not issue final agency decisions. Three months later, the Tenth Circuit issued a 2-1 decision finding that SEC ALJs are officers who must be selected pursuant to the Appointments Clause. The Tenth Circuit panel expressly disagreed with Lucia and Landry that authority to issue final agency decisions is a prerequisite for officer status.The D.C. Circuit subsequently vacated its panel decision and granted en banc review.The status of ALJs under the Appointments Clause has important implications not only for the SEC’s enforcement of the securities laws but also for the system of administrative agency adjudication as a whole.

The second case, PHH Corp. v. CFPB, presented the question whether an “independent” administrative agency may be led by a single person.  In a 100-page opinion by Judge Kavanaugh (joined by Judge Randolph) drawing on historical practice and first principles of separation of powers, the panel concluded that the statutory provision vesting the CFPB’s broad enforcement authority in a single director removable by the President only “for cause” violated Article II of the Constitution.  The panel emphasized the absence of any historical precedent for an independent agency with a single director—a structure that created, in the panel’s description, an administrative official with more power than anyone in the federal government other than the President. The panel explained that this concentration of authority in a single person unaccountable to the President except for cause posed a “threat to individual liberty.” The panel remedied the constitutional defect by severing the statute’s “for cause” removal provision, thus making the CFPB director removable by the President at will. Judge Henderson dissented in part, arguing that the panel could have resolved the case on the basis of PHH’s statutory rather than constitutional challenges. The D.C. Circuit granted en banc review on both the constitutional  and statutory questions. The Justice Department (under the Trump Administration) filed an amicus brief in support of the challengers, while the CFPB continues to defend the constitutionality of its structure through its independent litigation authority.

Featuring:

  • Thaya Brook Knight, Associate Director of Financial Regulation Studies, Cato Institute
  • Christopher G. Michel, Associate, Bancroft PLLC

Hively v. Ivy Tech Community College

Religious Liberties Practice Group Teleforum Thursday, June 01, 02:00 PMFederalist Society Teleforum Conference Call

On April 4, 2017, the Seventh Circuit handed down a divided en banc opinion in Hively v. Ivy Tech Community College, opening a circuit split on how to interpret Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on "race, color, religion, sex, or national origin[.]" In Hively, the Seventh Circuit became the first Court of Appeals to hold that sex discrimination encompasses discrimination based on sexual orientation. It held that plaintiff Kimberly Hively could pursue a claim against her former employer, Ivy Tech Community College, for her firing, which she claimed was motivated by her sexual orientation. In doing so, the court opened a split with the Eleventh Circuit, which had held just a few months earlier that employer decisions based on sexual orientation were not discrimination prohibited by Title VII. In addition to paving the way for a potential Supreme Court case to resolve the issue, the Seventh Circuit's decision includes an array of opinions demonstrating different methods of statutory interpretation.

Featuring:

  • Kenneth A. Klukowski, Senior Counsel, Liberty Institute
  • Prof. Anthony Michael Kreis, Visiting Assistant Professor of Law, Chicago-Kent College of Law

Litigation Update: United States Telecom Association v. Federal Communications Commission

Telecommunications & Electronic Media Practice Group Teleforum Friday, June 02, 02:00 PMFederalist Society Teleforum Conference Call

On May 1, the D.C. Circuit denied petitions for en banc review of United States Telecom Association v. Federal Communications Commission. The petitioners challenge the FCC’s Open Internet Order, in which the FCC established Internet access as a telecommunications service subject to Title II of the Communications Act and adopted net neutrality rules.  At the same time, the new Chairman of the FCC, Ajit Pai, has announced that he plans to reclassify Internet access as a Title I information service and roll back some of the net neutrality rules.

Daniel Berninger, one of the petitioners in the case, and Adam White, who has been counsel for the intervenors, will join us to discuss the status of the case. In particular, they will discuss the D.C. Circuit’s order denying rehearing, the concurring opinion by Judges Srinivasan and Tatel, the dissenting opinions from Judges Brown and Kavanaugh, the pending FCC rulemaking, and the potential for Supreme Court review of the D.C. Circuit’s decision affirming the FCC’s Open Internet Order. Brett Shumate, counsel to petitioners Alamo Broadband and Daniel Berninger, will moderate the discussion.

Featuring:

  • Daniel Berninger, Founder, VCXC - Voice Communication Exchange Committee 
  • Adam J. White, Research Fellow, The Hoover Institution and Adjunct Professor, Antonin Scalia Law School, George Mason University
  • Moderator: Brett A. Shumate, Partner, Wiley Rein LLP

2017 James Kent Summer Academy

2017 Faculty Division Summer Conference for Students Interested in Academia Wednesday, August 02, 12:00 AMAnnapolis, MD
Annapolis Maryland Main Street

The Federalist Society’s James Kent Summer Academy is a program for law students and recent graduates who demonstrate strong potential for being leaders among a future generation of legal scholars. Participants will have an opportunity to engage in academic discourse, to learn about an academic career track, to deepen their understanding of key ideas about the law, the founding period, originalism, religious liberty, and markets and the law, and to receive personalized career planning and publishing guidance.

The Academy will take place in early August in Annapolis, MD. This all-expenses-paid conference will include seminar-style sessions guided by a group of leading faculty, informational sessions and workshops for professional development, and the opportunity to connect to a community of talented students and scholars. Confirmed speakers include Randy Barnett (Georgetown Law Center), Robin Fretwell Wilson (University of Illinois College of Law), Dan Kelly (Notre Dame Law School), Julia Mahoney (University of Virginia School of Law), and G. Marcus Cole (Stanford Law School). Participants will also receive invitations to ongoing events and academic and professional development resources throughout the year.  

The program is intended for students and recent graduates (three years or less out of law school), including prospective or current clerks, with a serious interest in an academic career, who would contribute to the intellectual diversity of the legal academy, and who are beginning to develop their legal scholarship. Applicants should possess strong academic qualifications.

Applications are due no later than March 31, 2017.

Applications should be submitted online here. If you have any questions about this event, please email anthony.deardurff@fed-soc.org.

2017 Annual Texas Chapters Conference

Houston, Texas Friday, September 22, 05:00 PMThe Houstonian
111 North Post Oak Lane
Houston, TX 77024

Save the Date!

2017 Annual Texas Chapters Conference
September 22-23, 2017

The Houstonian
111 North Post Oak Lane
Houston, TX 77024
 

2017 National Lawyers Convention

Thursday, November 16, 12:00 AMThe Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

The 2017 National Lawyers Convention is scheduled for Thursday, November 16 through Saturday, November 18 at the Mayflower Hotel in Washington, D.C. More information will be posted later this summer.

2018 National Lawyers Convention

Thursday, November 15, 12:00 AMThe Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

The 2018 National Lawyers Convention is scheduled for Thursday, November 15 through Saturday, November 17 at the Mayflower Hotel in Washington, D.C. More information will be posted in summer 2018.

2019 National Lawyers Convention

Thursday, November 14, 12:00 AMThe Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

The 2019 National Lawyers Convention is scheduled for Thursday, November 14 through Saturday, November 16 at the Mayflower Hotel in Washington, D.C. More information will be posted in summer 2019.

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