New Federal Initiatives Project
Through 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.
A review of the latest "discussion draft" of the American Power Act better known as "cap and trade" legislation, reveals no direct specific criminal provisions. The discussion draft, however, creates a "greenhouse gas instrument" market - a market for trading emissions credits that is described in detail in another Federalist Society New Federal Initiatives Project Paper. The discussion draft places the greenhouse gas instrument market squarely in the Commodity Exchange Act. The Commodity Exchange Act itself is a comprehensive statutory scheme that includes numerous criminal penalties. More generally, the Commodity Exchange Act makes the willful commission of all acts designated as “unlawful" by the Act felonies.
In December, the House of Representatives passed H.R. 4173, the Wall Street Reform and Consumer Protection Act of 2009 (the "House Bill"). The Senate is currently debating a version of the legislation, S. 3217, the Restoring American Financial Stability Act of 2010 (the "Senate Bill"). Both measures modify and expand Federal Trade Commission ("FTC") power in terms of (1) the agency's rulemaking authority and (2) enforcement capabilities.
The House and Senate bills are best known for their establishment of a new financial regulatory body, the Consumer Financial Protection Agency (the "CFPA"). While banks, savings and loans, and federal credit unions are already exempt from FTC regulation, the House and Senate bills similarly exempt "consumer financial products or services" from FTC oversight and shift this responsibility to the new CFPA.
During his presidential campaign, Barack Obama promised to reform the Faith-Based Initiative as conceived by President Bush, while at the same time expressing his support for the general concept. In a keynote address on the subject, Mr. Obama asserted that "[s]ecularists are wrong when they ask believers to leave their religion at the door before entering the public square." Upon taking office, President Obama established an Advisory Council on Faith-Based and Neighborhood Partnerships, which in turn created a Reform of the Office Taskforce to evaluate the Initiative and recommend reforms. The recommendations that have now been approved by the Taskforce and the Advisory Council include some widely supported measures, but several of the recommendations also have been interpreted by critics as going further than necessary in extricating religion from the public square.
Pluripotent cells ("stem cells") are unique and valuable because they are undifferentiated (meaning that they have the capacity to become any kind of tissue in the body) and, in principle, self-renewing (that is, they can reproduce themselves indefinitely without losing their pluripotency). They can be derived from the inner-cell mass of the early human embryo (embryonic stem cells), the gonadal ridge of the early human fetus (embryonic germ cells), and perhaps from a variety of other sources, including amniotic fluid, bone marrow, adipose cells, etc. Recent developments suggest that adult cells can be reprogrammed to pluripotency through the introduction of certain genetic factors.
On January 21, 2010, the Supreme Court handed down its opinion in Citizens United v. FEC. Since then, congressional critics of the Court's broad holding have promised a legislative "fix." These Members believe that the decision to recognize constitutional protection for corporate (and labor) independent expenditures in federal elections will have a pernicious effect on American politics. Accordingly, on April 29, 2010, Senator Charles Schumer and Representative Chris Van Hollen introduced the DISCLOSE Act.
President Barack Obama has announced the remaining members of the 25-person President's Advisory Council on Faith-Based and Neighborhood Partnerships. The Council, composed of religious and secular leaders and scholars from various backgrounds, is part of the White House Office of Faith Based and Neighborhood Partnerships.
On March 23, 2010, President Obama signed H.R. 3590, entitled the "Patient Protection and Affordable Care Act" ("PPACA"), into law as P.L. 111-148. That bill passed the Senate on December 24, 2009, by a vote of 60-39 and the House on March 21, 2010 by a vote of 219-212. A week later, on March 30, 2010, the President signed into law H.R. 4872, entitled the "Health Care and Education Reconciliation Act of 2010" and passed by Congress through the filibuster-proof "reconciliation" process, as P.L. 111-152. The ten titles of PPACA, along with amendments in H.R. 4872, regulate multiple industries, each of which depend heavily on science, technology, and innovation, that make up approximately one-sixth of the national economy.
On May 22, 2009, President Obama signed the Credit CARD Act of 2009. This legislation imposed notice requirements and moratorium periods on the ability of credit card companies to increase rates and fees. During the interim period between May 2009 and the statute's effective date in February 2010, credit card companies have responded with many policy changes which increase the costs of credit, including direct increases on consumer credit card interest rates. Interest rates on credit cards have steadily climbed a few percentage points since passage of the law, and the rates charged to consumers with poor credit have in some cases surpassed 20%.
On December 7, 2010, the U.S. Environmental Protection Agency ("EPA") promulgated a final rule commonly known as the "Endangerment Rule." In that finding, EPA determined that greenhouse gas ("GHG") emissions endanger the public health and welfare, and that motor vehicle emissions in particular are contributing to such harmful effects. The Endangerment Rule was issued pursuant to EPA's authority under Clean Air Act Section 202(a), which itself deals exclusively with the regulation of emissions from new motor vehicles and new motor vehicle engines (often known collectively in Clean Air Act parlance as "mobile sources").
On March 15, 2010, Senator Christopher J. Dodd (Chairman, Senate Committee on Banking, Housing & Urban Affairs) unveiled his "Restoring American Financial Stability Act of 2010" ("Dodd Bill"). The Committee approved the 1,336 page bill and a 114-page manager's amendment package on a 13 - 10 party-line vote. In addition to Senator Dodd, the other primary negotiators have been Senators Mark Warner, Richard Shelby (Ranking Member), Judd Gregg, and Bob Corker.