The Federalist Society

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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Reauthorization of the USA PATRIOT Act

Reauthorization of the USA PATRIOT Act

Updated March 2010
Two significant provisions of the USA Patriot Act (“Patriot Act”)1 and a related counterterrorism authority will expire on December 31 of this year unless Congress reauthorizes them.  Despite the impending expirations, legislative action to address the subject has just begun.  The House and Senate Judiciary Committees each recently held their first hearings on this subject, on September 22 and 23, respectively.  On September 17, Senators Durbin and Feingold introduced a bill to amend two of the expiring provisions and numerous other counterterrorism authorities.  Senate Judiciary Committee Chairman Leahy also recently announced legislation to reauthorize the expiring provisions, with amendments and another sunset.  On September 14, the Department of Justice weighed in on behalf of the Administration, recommending to Congress that all three expiring provisions be reauthorized. 


Fair Elections Now Act

Fair Elections Now ActCongress is considering a novel way to regulate campaigns.  The bill at issue, the Fair Elections Now Act1 (FENA), combines federal campaign funds with subsidized advertising for candidates who participate in the program.  Modeled, to some extent, on existing programs at the state and local level, FENA presents interesting constitutional and policy questions.


What are Americans Getting from the GIVE Act?

What are Americans Getting from the GIVE Act?Many provisions of the “Edward M. Kennedy Serve America Act” (H.R. 1388) or “Generations Invigorating Volunteerism and Education Act” (“GIVE Act”) (the Act’s previous moniker) took effect on October 1, 2009.1  The Act was passed by the House by a vote of 321-105 on March 18, 2009,2 ratified by the Senate on March 26, 2009 by a vote of 79-19,3 and signed into law by President Obama on April 21, 2009.4  The final legislation measures 142 pages.5  Sponsored by Rep. Carolyn McCarthy (D-NY),6 the Act reauthorizes and expands federally funded national service programs by amending the National and Community Service Act of 1990 (“NCSA”) and the Domestic Volunteer Service Act of 1973 (“DVSA”)7 and authorizes between $5.7 billion8 and $6 billion9 to support various community service-oriented initiatives, including AmeriCorps (and others),10 over the course of the next six years through its scheduled conclusion in 2014.11


The Paperwork Reduction Act

OMB OIRA SealThe Paperwork Reduction Act of 19951 (PRA) seeks to “minimize the paperwork burden … resulting from the collection of information by or for the Federal Government,” and “ensure the greatest possible public benefit from and maximize the utility of information created, collected, maintained, used, shared and disseminated by or for the Federal Government.”2 Other purposes of the act include coordinating government information resources, improving the “quality and use of Federal information to strengthen decision-making, accountability, and openness in Government and society,” minimizing costs to government of gathering, maintaining and using information, and ensuring that information is handled in ways consistent with federal laws related to privacy, security and access.


Proposed Reinstatement of the “Uptick Rule”

Proposed Reinstatement of the “Uptick Rule”On April 10, 2009, the Securities and Exchange Commission (the “SEC”) proposed two approaches to restrictions on short selling1 and, on August 17, 2009, re-opened the comment period until September 21, 2009 and solicited additional feedback on an aspect of the original proposal.

In July, 2007, the SEC eliminated all short sale price restrictions, one of which was its Rule 10a-1, the so-called “uptick rule”, which, for almost 70 years, prohibited short sales of publicly traded securities except on a price increase.  The repeal of the uptick rule followed seven years of studies and public comment as to the rule’s effectiveness.


Resolution Authority over Systemically Important Financial Companies

Resolution Authority over Systemically Important Financial CompaniesOne of the key elements of the Obama administration’s financial reform efforts is to address the supervision of systemically important financial institutions.  As a result of perceived weaknesses in the regulatory framework, the administration proposes to enhance supervision of entities such as AIG, Bear Stearns and Lehman Brothers under the belief that such supervision could have potentially avoided the present crisis or, at a minimum, mitigated the consequences.


Executive Compensation

Executive CompensationThe Corporate and Financial Institution Compensation Fairness Act of 2009 ("The Act"), H.R. 3629, passed the House of Representatives on July 31, 2009.  That Act included substantial components from the Treasury Department's compensation proposals released on July 16, 2009.  The Act includes four provisions.  It mandates publicly traded companies give their shareholders an opportunity to conduct a non-binding, advisory vote on annual executive compensation (known colloquially as "Say-on-pay").  It also mandates that the Compensation Committees of the Boards of Directors of publicly traded companies consist of independent directors.  The act further requires financial institutions with over $1 billion in assets provide enhanced disclosure about their incentive-based compensation and requires the banking regulators to set minimum standards for incentive-based compensation at those financial institutions.  Senator Schumer's Shareholder Bill of Rights, currently under consideration by the Senate Committee on Banking, Housing, and Urban Development, also includes a provision requiring an annual advisory vote on executive compensation.  


Cap and Trade: Implications for the Housing Industry

Cap and Trade: Implications for the Housing IndustryOne June 26, 2009 the U.S. House of Representatives passed the American Clean Energy and Security Act1 by a narrow vote of 219-212. The House passed the over 1,200 page piece of legislation which contains provisions intended to lower Greenhouse Gas (GHG) emissions from large segments of the United States economy. It also sets benchmarks for increased efficiency in the buildings and consumer products, and mandates that certain percentages of power generation come from non-fossil fuels and renewable resources. Possibly the most famous part of the ACESA legislation is its cap and trade system for GHG emissions.


FERA – 2009 – Brings U.S. Broad New Government Enforcement Powers

Fraud Enforcement and Recovery Act of 2009 FERAAs the economic meltdown of 2008 wound down, 2009 brought a rapid legislative response in the enforcement arena.  Rocketing its way through Congress, the Fraud Enforcement and Recovery Act of 20091 (dubbed "FERA") authorizes substantial new funding to the Department of Justice and other federal enforcement agencies for investigating and prosecuting offenses.  In so doing, FERA makes significant substantive and procedural changes to existing federal fraud laws.  As discussed below, these changes broaden the scope of various enforcement statutes, while attempting to ease the Government's investigative and prosecution burdens in the litigation of such cases.


Mountaintop Coal Mining: A Permitting Process In Flux

Mountaintop Coal Mining: A Permitting Process In FluxMountaintop coal mining is a subspecies of surface coal mining.  It “involves the blasting of soil and rock atop a mountain to expose coal deposits below.”  Ohio Valley Envtl Coalition v. Aramoca Coal Co., 556 F.3d 177, 186 (4th Cir. 2009).  According to the National Mining Association, Mountaintop coal mining is a highly efficient method of coal mining, accounts for a significant percentage of the nation’s coal production, and represents a significant (if not vital) portion of the economic activity in many parts of rural Appalachia (including sections of West Virginia, Kentucky, Virginia, and Tennessee.).



Total Records: 77


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