MENU

Federalism & Separation of Powers

Subscribe in a reader

Subcommittees

  • Congressional-Executive Powers
  • Federalism
  • Role of the Courts
  • Scholarship and Academic Affairs

2017 National Lawyers Convention

November 16, 2017

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.

Courthouse Steps: D.C. Circuit En Banc Argument

Federalism & Separation of Powers Practice Group Teleforum
Thaya Brook Knight, Christopher G. Michel May 31, 2017

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

Legal Challenge to the President's Executive Order on Reducing Regulation and Controlling Regulatory Costs

Administrative Law & Regulation Practice Group Teleforum
Thomas M. Johnson, Jr. May 19, 2017

On January 30, 2017, President Trump issued an Executive Order entitled Reducing Regulation and Controlling Regulatory Costs. The Executive Order instructs federal agencies to identify two existing regulations for repeal for each new regulation proposed. The Order further instructs the Director of the Office of Management and Budget to set an incremental cost target for each agency for each future fiscal year. Subject to certain exceptions, each agency must meet its target by offsetting the costs of new regulations by cost savings from repealed rules.

A lawsuit has been filed challenging the legality of the Executive Order in federal district court in Washington, D.C. The complaint argues, among other things, that the Order violates the separation of powers, the President's obligations under the Take Care Clause, and the Administrative Procedures Act. Thomas M. Johnson, Jr., is the Deputy Solicitor General of West Virginia and counsel of record on an amicus brief co-filed with the State of Wisconsin on behalf of a 14-state coalition supporting the legality of the Executive Order. Mr. Johnson will join us to discuss the Order and the pending litigation. This teleforum is the fourth in our Executive Order Teleforum Series.

Featuring:

  • Thomas M. Johnson, Jr., Deputy Solicitor General of West Virginia

Fifth Annual Executive Branch Review Conference

The Relationship between Congress and the Executive Branch
May 17, 2017

The Fifth Annual Executive Branch Review Conference will examine the changing and often convoluted relationship between the legislative and the executive branches in the United States government. This daylong conference will feature plenary panels, addresses, and breakout panels on topics such as “The Unitary Executive,” “Chevron Deference,” and “Congressional Oversight of Voting Rights.”

The Conference will begin with an opening address by Senator Mike Lee and end with a closing address by OMB Director Mick Mulvaney and a reception.

Interpreting State Constitutions - Event Audio/Video

Inaugural Ohio Chapters Conference
Judith L. French, Jeffrey S. Sutton, Steve Yarbrough, Matthew T. Kemp April 25, 2017

State courts are often faced with cases raising arguments under state and federal law. If there are similar provisions in both the United States Constitution and the Ohio Constitution, how should judges interpret these provisions? Must they be interpreted in the same way? If not, then what is needed to justify a court's decision to interpret text in the Ohio Constitution differently than similar (or even identical) text in the United States Constitution?

This panel was held during the Inaugural Ohio Chapters Conference at the Athletic Club of Columbus on Friday, March 31, 2017.

Featuring:

  • Hon. Judith French, Ohio Supreme Court 
  • Hon. Jeffrey S. Sutton, U.S. Court of Appeals, 6th Circuit
  • Moderator: Hon. Steve Yarbrough, Ohio Sixth District Court of Appeals
  • Introduction: Matt Kemp, President, Toledo Lawyers Chapter

Athletic Club of Columbus
Columbus, OH

Fighting Federal Encroachment - Event Audio/Video

Inaugural Ohio Chapters Conference
Mike DeWine, David P. Fornshell, Wesley Goodman, Dave Yost, Eric Murphy, Benjamin M. Flowers April 25, 2017

In our nation's federalist system, the federal government's powers are limited to those that have been prescribed by the U.S Constitution, with additional powers reserved to the states. In recent years, state attorneys general have served as a robust check on executive branch overreach, increasingly using litigation to challenge federal encroachment with respect to environmental and land use issues, immigration, labor policy, and health care (among other examples). This panel will discuss what Ohio can and should do to fight federal encroachment into state affairs. How will federalism be protected during the Trump Administration?

This panel was held during the Inaugural Ohio Chapters Conference at the Athletic Club of Columbus on Friday, March 31, 2017.

Featuring:

  • Hon. Mike DeWine, Ohio Attorney General 
  • David Fornshell, Warren County Prosecutor 
  • Hon. Wes Goodman, Ohio House of Representatives, District 87 
  • Hon. Dave Yost, Ohio Auditor of State
  • Moderator: Eric Murphy, Ohio State Solicitor

Athletic Club of Columbus
Columbus, OH

Inaugural Ohio Chapters Conference Keynote Address by J.D. Vance - Event Audio/Video

Inaugural Ohio Chapters Conference
J.D. Vance, Jedidiah Bressman April 25, 2017

The keynote address at the Inaugural Ohio Chapters Conference was delivered at the Athletic Club of Columbus on Friday, March 31, 2017, by J.D. Vance, Author of Hillbilly Elegy: A Memoir of a Family and Culture in Crisis. He was introduced by Jedidiah Bressman, President of the Ohio State University Student Chapter.

Keynote Speaker:

  • J.D. Vance, Author, Hillbilly Elegy: A Memoir of a Family and Culture in Crisis
  • Introduction: Jedidiah Bressman, President, Ohio State University Student Chapter

Athletic Club of Columbus
Columbus, OH

Convention of the States - Event Audio/Video

Inaugural Ohio Chapters Conference
Thomas Brinkman, Jennifer Brunner, David F. Forte, Matt Huffman, Larry J. Obhof, Matthew R. Byrne April 25, 2017

Article V of the United States Constitution permits state legislatures to call a constitutional convention to consider amendments to the Constitution. State legislatures have never utilized this procedure. Calls for an Article V Convention have increased in recent years in response to the growth of the federal government. This panel will discuss whether the States should hold an Article V Convention to amend the Constitution, with a focus on whether Ohio would benefit from such amendments.

This panel opened the Inaugural Ohio Chapters Conference at the Athletic Club of Columbus on Friday, March 31, 2017.

Featuring:

  • Hon. Tom Brinkman, Ohio House of Representatives, District 27
  • Hon. Jennifer Brunner, Ohio 10th District Court of Appeals
  • Professor David Forte, Professor of Law, Cleveland-Marshall College of Law, Cleveland State University
  • Hon. Matt Huffman, Ohio State Senate, District 12
  • Moderator: Hon. Larry Obhof, Ohio Senate President
  • Introduction: Matthew Byrne, President, Cincinnati Lawyers Chapter

Athletic Club of Colubmus
Columbus, OH

Federal Oversight of Local Police Departments

Criminal Law & Procedure Practice Group Teleforum
Chuck Canterbury, Vanita Gupta, Brian M. Fish April 24, 2017

Under Attorney Generals Eric Holder and Loretta Lynch, the Department of Justice entered into a number of consent decrees with local police departments to change certain police practices.  Given the ongoing review of these decrees, how will the federal government’s approach to police practices change during Jeff Sessions’ tenure as Attorney General?  What alternative methods might the DOJ employ or encourage states and municipalities to employ to help remedy problematic police practices?

Featuring:

  • Chuck Canterbury, President, Fraternal Order of Police
  • Vanita Gupta, President, The Leadership Conference on Civil and Human Rights
  • Moderator: Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland

Courthouse Steps: Trinity Lutheran Church of Columbia v. Comer - Podcast

Religious Liberties Practice Group Podcast
Ilya Shapiro, Hannah C. Smith April 21, 2017

The Missouri Department of Natural Resources (DNR) denied a Learning Center run by Trinity Lutheran Church of Columbia, Inc. (Trinity) federal funding to refurbish children’s playgrounds on the grounds of religious affiliation. The DNR offers Playground Scrap Tire Surface Material Grants to organizations that qualify for resurfacing of playgrounds. Though the licensed pre- school Learning Center incorporates religious instruction into is curriculum, the school is open to all children. Trinity’s Learning Center was denied funding based on Article I, Section 7 of the Missouri Constitution; the section reads: “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.”

Trinity claimed that the DNR infringed upon their rights under the Equal Protection Clause of the Fourteenth Amendment and the First Amendment’s protections of freedom of religion and speech. The district court dismissed Trinity’s allegations, claiming that Trinity failed to file a specific claim. Trinity responded by amending its complaint to an allegation that other religious institutions had previously received the DNR funding; nevertheless, the district court denied the motions. The Eighth Circuit Court of Appeals upheld the lower court decision, agreeing with both the dismissal and denial of motions.

The question at the heart of the case is whether or not the First Amendment’s free exercise of religion and the Fourteenth Amendment's Equal Protection Clause protect religious institutions from discrimination regarding the distribution of public funds. Ilya Shapiro of the CATO Institute and Hannah C. Smith of The Becket Fund for Religious Liberty joined us after oral arguments to discuss the case and the potential weight of the precedent set by decision. 

Featuring:

  • Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute
  • Hannah C. Smith, Senior Counsel, The Becket Fund for Religious Liberty