New Federal Initiatives Project

New Federal Initiatives ProjectThrough the New Federal Initiatives Project (NFIP) of the Practice Groups, the Federalist Society is monitoring and analyzing some significant proposals of the new Congress and administration, with an eye toward their constitutional and legal implications.  The Federalist Society hopes this project will continue to foster debate on these and other important issues. For briefing papers on such proposals, choose any of the recently posted papers below or select from any of the categories or the index on the left hand side of this page.

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The Regulations from the Executive In Need of Scrutiny (REINS) Act

The Regulations from the Executive In Need of Scrutiny (REINS) ActLast year, the REINS Act was introduced in the U.S. Senate and House of Representatives (as H.R. 3765 and S. 3826, respectively) to prevent federal agencies from implementing major regulatory initiatives without Congressional approval.  Equivalent legislation is virtually certain to be considered in the 112th Congress.  As part of their "plan to rein in the red tape factory in Washington, DC" in the "Pledge to America," Republican congressional candidates promised to "require congressional approval of any new federal regulation that has an annual cost to our economy of $100 million or more."   The purpose of this requirement is to ensure that significant regulatory initiatives are approved by both Congress and the Executive Branch.  As explained in the "Pledge": "If a regulation is so ‘significant' and costly that it may harm job creation, Congress should vote on it first."

The Use of Drones and Targeted Killing in Counterterrorism

The Use of Drones and Targeted Killing in CounterterrorismShortly after September 11, 2001, President George W. Bush, as Commander in Chief, authorized unmanned aerial vehicles (UAVs), or drones, to target and kill enemy leaders pursuant to Congress' Authorization for Use of Military Force (AUMF) against al Qaeda.  The President designated "Afghanistan and the airspace above" a combat zone, but the United States also launched drone strikes against al Qaeda targets in other countries.  The drone program received widespread attention in November 2002, when the C.I.A. launched a Predator drone strike in Yemen, killing the mastermind of the October 2000 attack on the U.S.S. Cole and six other men.  Following the Yemen attack, the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions asserted that the attack was "a clear case of extrajudicial killing."  In response, the U.S. defended the drone strike as permissible under international law of armed conflict, broadly asserting that al Qaeda terrorists who continue to plot attacks may, in appropriate circumstances, be lawful subjects of armed attack without regard to their location.

Criminal Provisions in the Dodd-Frank Wall Street Reform & Consumer Protection Act

Criminal Provisions in the Dodd-Frank Wall Street Reform & Consumer Protection ActThe Dodd-Frank Wall Street Reform & Consumer Protection Act of 2009 is 848 single-spaced pages in length and contains over two dozen criminal offenses.  While some of these offenses are based on existing federal criminal law and simply extend criminal liability to additional types of financial instruments or actors dealing in those instruments, many of these offenses expand the breadth and reach of federal criminal law to criminalize conduct for the first time.  Despite the criminal provisions, neither the base text for the final legislation, nor the Act itself, was referred to either chamber's Judiciary Committee. What follows below is a good-faith attempt to identify the criminal offenses and provide basic explanation of the conduct criminalized by each offense.

The Federal Government Responds to Arizona’s Enforcement of Federal Immigration Law

The Federal Government Responds to Arizona’s Enforcement of Federal Immigration LawIn recent years, as immigration has become a seemingly intractable political issue in the United States Congress, state and local legislatures have shown increasing interest in passing immigration legislation of their own. State and local enforcement of American immigration laws is thought to be helpful to federal authorities that lack the resources to enforce U.S. immigration laws fully by themselves. The Federal Government has traditionally sought assistance from states in enforcing immigration laws where states do so voluntarily and subject to federal direction and control, but some believe that federal programs that allow state participation in immigration enforcement do not go far enough. In 2010, Arizona's Senate Bill 1070 became the most widely publicized attempt by a State to expand its involvement in enforcement of federal immigration laws. SB 1070 makes certain violations of federal law into Arizona state crimes, thereby allowing unauthorized immigrants who enter Arizona to be charged with state crimes and prosecuted by the State of Arizona as well as the Federal Government. At the urging of the U.S. Department of Justice, however, a United States District Court judge partially enjoined enforcement of SB 1070 in July 2010, and the preliminary injunction remains in place at this writing. Arizona has appealed the court's decision, but the issue of how far States may go in regulating immigration is expected to remain unresolved for several more years.

Abortion and Military Facilities: The Effect of the Burris Amendment in the Department of Defense Authorization Bill

Abortion and Military Facilities: The Effect of the Burris Amendment in the Department of Defense Authorization BillThe U.S. Senate version of the Department of Defense (DOD) authorization bill for FY2011 contains a provision that would change the law regarding abortion in military facilities.

Under current law, abortions may not be performed by DOD medical personnel or in Department of Defense medical facilities except when the life of the mother is at risk, or when the pregnancy is the result of rape or incest.  A woman is permitted to leave the base and make her own private arrangement for an elective abortion.

The "Burris Amendment," added to the DOD authorization bill by the Senate Armed Services Committee, would strike from the law the prohibition on use of military facilities for elective abortions.  The amendment does not change a separate provision of the law that prohibits the use of DOD funds for abortion.

Federal Cybersecurity Programs

Federal Cybersecurity ProgramsOn March 2, 2010, the White House declassified a summary of the Comprehensive National Cybersecurity Initiative (CNCI).  Initially promulgated by President Bush in January 2008 in National Security Presidential Directive-54/Homeland Security Presidential Directive-23 (NSPD-54/HSPD-23), CNCI lays the groundwork for overhauling, uniting, and coordinating efforts to protect our nation's cyber infrastructure.

The declassified summary briefly lays out a series of twelve initiatives that bring together the resources of federal law enforcement, intelligence, and defense communities, as well as state and local authorities and private-sector players, to fulfill three goals that serve to protect national security and economic interests.  These goals include: enhancing government-wide situational awareness of present network vulnerabilities; improving counterintelligence capabilities to defend against cyber threats; and coordinating future research and development efforts to deter the constantly-evolving hostile and malicious activities of some cyberspace actors.

Title IX

Title IX"Making Title IX as strong as possible is a no-brainer," Vice President Joe Biden told a cheering crowd at George Washington University this past April. Biden appeared at GWU to announce that schools could no longer demonstrate compliance with Title IX by using the Model Survey, an instrument designed by the Bush Department of Education to help universities assess relative male and female interest in college athletics participation. Like Biden, many critics of the Model Survey see increasing female participation as much as possible as an important moral goal, worth significant costs. But unlike Biden, proponents of the Model Survey hardly see the issue as a "no-brainer." Instead, they are more inclined to emphasize the costs associated with creating new teams for women. Others have also noted that, in order to ensure proportional representation of men and women in athletics, some universities have chosen to eliminate men's teams rather than add more women's teams. This conflict over costs and benefits has animated much of the debate surrounding Title IX, including the sparring over the Model Survey that led to its rescission.

Financial Services Reform

Financial Services ReformAs the debate over reforming the financial services sector continues, we offer links to the following articles, white papers, briefing papers and podcasts that provide analysis on pending proposals. Also available below are links to the current legislation, text of committee hearings, and other documents on financial services reform.

Race, Sex, and the Dodd-Frank Financial Regulation Bill

Race, Sex, and the Dodd-Frank Financial Regulation BillThis paper should be read in conjunction with "Financial Reform - The Senate Version," by John Shu, which can be found at:  An additional issue raised by the bill is its use of racial, ethnic, and gender classifications and preferences in Section 342, "Office of Minority and Women Inclusion."

American Power Act: Senators Kerry and Lieberman Release “Discussion Draft” of New Climate Change Bill

American Power Act: Senators Kerry and Lieberman Release “Discussion Draft” of New Climate Change Bill

On May 12th, 2010, Senators John Kerry and Joe Lieberman released a long awaited draft of their American Power Act (APA).   The legislation was originally planned to be issued as a bi-partisan measure, but those hopes disappeared when Senator Lindsey Graham withdrew his support to protest the decision by Senate leaders to give priority to immigration legislation over climate change legislation.   Observers assert that the lack of Republican support means that the measure stands little chance of enactment this year.  Nevertheless, the purportedly bi-partisan approach taken in the bill may offer insights into any ultimately successful legislation.