In April, the mortgage lender PHH Corporation challenged the constitutionality of the Consumer Financial Protection Bureau (CFPB) after being ordered by the CFPB to disgorge $109 million. PHH challenged the bureau’s legitimacy under Article II, and cited Free Enterprise Fund v. Public Company Accounting Oversight Board as relevant precedent, because PCA officers could be removed for cause, and then, only by officers of the SEC. Meanwhile, the CFPB cited Humphrey’s Executor v. United States, in which the Supreme Court upheld the constitutionality of the Federal Trade Commission Act, which allowed the president to remove an FTC commissioner only for cause. Professor Peter Conti-Brown of The Wharton School and Gregory Jacob, partner at O'Melveny & Myers LLP joined us to discuss the CFPB and the constitutionality of other independent agencies like it.
Mr. Gregory S. Baylor of Alliance Defending Freedom discussed current and future challenges to the religious freedom of faith-based institutions of higher education, with a special focus on the ongoing debate over California Senate Bill 1146. Earlier versions of SB1146 would have significantly curtailed longstanding religious freedom protections in state anti-discrimination law, thereby exposing faith-based schools to liability for discrimination on the basis of religion, sexual orientation, and gender identity in student and employee relations. The bill's prime sponsor recently removed its most controversial provisions, but he indicated that a similar bill may be proposed in the next legislative session.
General Michael V. Hayden, former Director of the National Security Agency and the Central Intelligence Agency, and retired United States Air Force four-star general, joined us to discuss his new book, Playing to the Edge: American Intelligence in the Age of Terror, his memoir as a career intelligence officer and leader. Though the book covers the arc of his entire professional life, our Teleforum focuses primarily on the cyber world, which General Hayden describes as “a domain of conflict and cooperation whose importance seems to grow by the hour” couched “in an era of shrinking trust in government and expanding global threats."
On April 20, 2016, the Supreme Court decided Harris v. Arizona Independent Redistricting Commission. In 2012, the Arizona Independent Redistricting Commission redrew the map for the state legislative districts based on the results of the 2010 census. Wesley Harris and other individual voters sued the Commission and alleged that the newly redrawn districts were underpopulated in Democratic-leaning districts and over-populated in Republican-leaning ones and that the Commission had, therefore, violated the Equal Protection Clause of the Fourteenth Amendment. The Commission countered that the population deviations were the result of attempts to comply with the Voting Rights Act. A three-judge district court ruled in favor of the Commission.
On appeal, the Supreme Court affirmed the judgment of the district court by a vote of 8-0. Justice Breyer delivered the opinion for a unanimous Court, which held that the federal district court did not err in upholding Arizona's redistricting plan. The challengers failed to demonstrate, the Court explained, that illegitimate considerations more likely than not were the predominant motivation for the plan's population deviations.
To discuss the case, we have Mark F. “Thor” Hearne, II, who is Partner at Arent Fox LLP.
Recent North Carolina, North Dakota, Texas, and Wisconsin court decisions have invalidated voter ID laws under constitutional and Voting Rights Act challenges. How do these recent decisions square with Crawford v. Marion County Election Board, where the United States Supreme Court upheld the Indiana voter ID law in 2008? In this podcast, Maya M. Noronha, an election attorney at BakerHostetler, and Dan Tokaji, a law professor at The Ohio State University, Moritz College of Law, addressed these recent decisions and debated the legality of voter ID laws.
The Federalist Society's Faculty Division will host a roundtable discussion, titled "Congress, Delegation, and the Administrative State," at the 2016 American Political Science Association's Annual Meeting in Philadelphia on September 2nd. We invite anyone planning to attend the conference to join us for what promises to be an excellent discussion featuring:
If you plan to attend, please email firstname.lastname@example.org to let us know.
Abstract: In Federalist 51, Madison explained that the Constitution’s division of powers was designed not only to assign different powers to different branches, but also to design the branches so that each would have the necessary tools to protect its own authority. Doing this would enable ambition to counteract ambition and thus protect against “a gradual concentration of the several powers in the same department.” Madison also believed that the branch most likely to try to encroach on the other branches was the legislature, because “In republican government, the legislative authority necessarily predominates.”
It therefore might come as something of a surprise that over the course of the past century, Congress has voluntarily ceded (in function if not also in form) considerable control over national governance to a variety of executive branch and/or independent agencies, to the point that it has arguably not only ceded much of its natural primacy in domestic affairs but has also found it difficult to reassert itself on many major questions – including even through its clearest trump card, the power of the purse. Why has Congress passed on much of its authority to the executive branch and to administrative agencies? Was Madison simply wrong about the inherent powers of the legislative branch? Has the institution of Congress developed practices that are not compatible with the text of the Constitution? Does this account for its weakness? What does it mean to serve productively as a member of the House or Senate? Can Congress reassert its authority over the administrative state? To what extent are these issues unique to the United States or simply part of the speed at which decisions must get made in the 21st century, given the velocity of modern transportation and communications? Is legislative leadership in domestic affairs still possible under these conditions? Is it desirable? This roundtable will explore these and related questions.