Federalism & Separation of Powers

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The Role of White House Counsel - Podcast

Administrative Law and Federalism & Separation of Powers Practice Groups Podcast
Timothy E. Flanigan, C. Boyden Gray March 17, 2017

In recent weeks, there has been a flurry of editorials on the proper role of the White House Counsel, driven by criticism of White House Counsel Donald McGahn. After the rollout of President Trump’s Immigration Executive Order, some, like Jack Goldsmith, have written that McGahn should have worked with other agencies before the Order was released to prevent the chaos that ensued.

But what is the proper role of the White House Counsel? Is it to coordinate inter-agency reaction? Should he or she provide legal support to the President first? Or is his or her real client the office of the presidency? Former White House Counsel C. Boyden Gray and former Deputy White House Counsel Timothy Flanigan joined us to help answer these questions and many others.


  • Hon. Timothy E. Flanigan, Chief Legal & Compliance Officer, Corporate Secretary, Cancer Treatment Centers of America; Former Deputy White House Counsel to President George W. Bush
  • Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates; Former White House Counsel to President George H.W. Bush

Medical Marijuana & the Second Amendment

Short video featuring Joseph Greenlee
Joseph Greenlee March 10, 2017

Should medical marijuana use limit Second Amendment rights? Joseph Greenlee, Second Amendment attorney, explains the contradiction in state and federal law when it comes to medical marijuana use and gun rights. 

Unwarranted: Policing Without Permission by Barry Friedman

Criminal Law & Procedure Practice Group Teleforum
Barry Friedman, Orin S. Kerr, John G. Malcolm March 03, 2017

In June 2013, documents leaked by Edward Snowden sparked widespread debate about secret government surveillance of Americans. Just over a year later, the shooting of Michael Brown, a black teenager in Ferguson, Missouri, set off protests and triggered concern about militarization of law enforcement and discriminatory policing. In Unwarranted, Barry Friedman argues that these two seemingly disparate events are connected―and that the problem is not so much the policing agencies as it is the rest of us. We allow these agencies to operate in secret and to decide how to police us, rather than calling the shots ourselves. And the courts, which we depended upon to supervise policing, have let us down entirely.

The book's author, Professor Barry Friedman, the Jacob D. Fuchsberg Professor of Law at New York University School of Law, Professor Orin Kerr the Fred C. Stevenson Research Professor of Law at The George Washington University Law School, and John Malcolm, Director and Senior Legal Fellow at the Edwin Meese III Center for Legal and Judicial Studies for the Heritage Foundation, will join us to discuss this new book. 


  • Prof. Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law
  • Prof. Orin Kerr, Fred C. Stevenson Research Professor of Law, The George Washington University Law School
  • ModeratorJohn G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation

The Congressional Review Act’s “Rediscovery” and Hidden Uses

Administrative Law & Regulation Practice Group Teleforum
David M. McIntosh, Todd F. Gaziano February 24, 2017

In 1996, Congress passed the Congressional Review Act (CRA). Before an executive agency rule—broadly defined to include agency guidance documents—can take effect, the CRA requires the agency to submit it to Congress and the Government Accountability Office. The CRA provides fast-track procedures for Congress to overrule any rule with a joint resolution of disapproval if the President signs it into law (or Congress overrides any veto). The expedited procedures may be used during the first 60 session days after the rule is submitted and during the first 60 session days of the next session if the rule was submitted near the end of the previous session. The only successful invalidation of a regulation prior to this year was in 2001, when the Department of Labor ergonomics rule issued at the end of the Clinton Administration was voided.

In the last few months, there has been renewed attention to the CRA, with Congress’ action to overrule many more rules. And some have asserted that the law may have much broader implications for rules passed over the past 8 years and not previously sent to Congress as the CRA requires.   

Former Congressman David McIntosh, who sponsored the CRA, and former congressional counsel to Mr. McIntosh, Todd Gaziano, will join us to discuss the ins and outs of the CRA and its potential applications in the coming months. This Teleforum is the second installment in our Legal Options for the New Administration series. 


  • Hon. David M. McIntosh, President of the Club for Growth and Vice Chairman of The Federalist Society 
  • Todd F. Gaziano, Senior Fellow in Constitutional Law and Executive Director of Pacific Legal Foundation’s DC Center

Combating Federal Overreach - Event Audio/Video

2017 Annual Florida Chapters Conference
Amit Agarwal, Andrew Brasher, Scott Keller, Elbert Lin, Allen Winsor, Rachel Nordby February 10, 2017

This panel, Combating Federal Overreach, was held on February 4, 2017, at the 2017 Florida Chapters Conference at Disney's BoardWalk Inn at the Walt Disney World® Resort in Lake Buena Vista, Florida.

Combating Federal Overreach
2:15 p.m. – 3:45 p.m.

  • Amit Agarwal, Solicitor General, Florida
  • Andrew Brasher, Solicitor General, Alabama
  • Scott Keller, Solicitor General, Texas
  • Elbert Lin, Solicitor General, West Virginia
  • Moderator: Hon. Allen Winsor, Florida 1st District Court of Appeals and Former Solicitor General, Florida
  • Introduction: Rachel Nordby, Deputy Solicitor General, Florida Office of the Attorney General

Disney's Boardwalk Inn
Lake Buena Vista, FL

President Trump's "One-In-Two-Out" Executive Order

Administrative Law & Regulation Practice Group Teleforum
Susan E. Dudley, Jitinder Kohli February 09, 2017

President Trump took a step toward fulfilling his campaign promise to cut regulations last week when he signed an executive order calling for two regulations to be eliminated for every new one issued. The president has indicated that the order will yield “the largest ever cut by far in terms of regulations.” But some are worried that it is a Sophie’s choice for regulatory agencies, and the order will change how regulators do business in the U.S.

Professor Susan Dudley, director of the George Washington University Regulatory Studies Center will talk about what the order does and does not do.  Jitinder Kohli, former head of the UK Better Regulation Executive, will talk about lessons learned from the UK’s “one-in-three-out” policy. This Teleforum is the first episode in the Executive Order Teleforum Series.


  • Professor Susan Dudley, Director, George Washington University Regulatory Studies Center
  • Jitinder Kohli, Director in Public Sector Practice, Deloitte Consulting

What Are We Learning About For-Profit Education?

Administrative Law & Regulation Practice Group Teleforum
Lucas Townsend February 07, 2017

During the Obama administration, the Department of Education promulgated a host of rules aimed specifically at for-profit educational institutions, which enroll over a million students.   For instance, the Obama Department of Education has required for-profit schools to show that graduates are spending less than 20% of their postgraduate discretionary incomes on student loan repayment as a condition of for-profit schools’ continued eligibility for federal financial aid dollars.   Another rule threatens to make it substantially easier for graduates of for-profit schools to demand student loan forgiveness.  Now that President Trump has taken office, will his administration change course on these regulations?  What are the options if his administration wishes to do so, and how feasible are they for the sector?

Lucas Townsend, a partner at Gibson Dunn with substantial experience litigating agency challenges, will survey some of the most significant regulations.  He will also discuss options for the Trump administration or Congress to withdraw or alter these actions.


  • Lucas Townsend, Partner, Gibson Dunn

Debate—State Blaine Amendments - Event Audio/Video

2017 Annual Western Chapters Conference
David Cortman, Steven Green, Carlos T. Bea, Lisa Ezell February 06, 2017

The Supreme Court has agreed to hear oral arguments in Trinity Lutheran Church of Columbia, Inc. v. Pauley. The case questions whether the exclusion of churches from an otherwise neutral and secular aid program violates the First Amendment’s guarantee of Free Exercise of Religion and the Fourteenth Amendment’s Equal Protection Clause. Debaters will address this case along with the Blaine Amendment implications.

This panel was part of the 2017 Annual Western Chapters Conference at The Ronald Reagan Presidential Library in Simi Valley, CA on January 28, 2017.

Debate—State Blaine Amendments
2:00 pm - 3:00 pm

  • David A. Cortman, Senior Counsel and Vice President of U.S. Litigation, Alliance Defending Freedom
  • Prof. Steven Green, Fred H. Paulus Professor of Law and Director of the Center for Religion, Law & Democracy, Willamette University College of Law
  • Moderator: Hon. Carlos Bea, U.S. Court of Appeals, 9th Circuit
  • Introduction: Lisa Ezell, Vice President & Director of Lawyers Chapters, The Federalist Society

The Ronald Reagan Presidential Library
Simi Valley, CA

Views and opinions expressed by the Federalist Society are not necessarily shared by the Ronald Reagan Presidential Library.