An increase in Federal executive branch regulatory activity – whether through executive order, formal or informal administrative agency action – has been noted by many across the country. In launching the Executive Branch Review Project, the Practice Groups of the Federalist Society seek to prompt a national debate about whether there has been an uptick in such regulatory activity, and, if so, with what consequence. The project will provide objective resources that identify major government activity, and will provide a forum for debate and discussion about whether such regulation constitutes a form of legal and regulatory overreach. The first component of this project is a new blog dedicated to highlighting action or inaction by the executive branch, http://www.executivebranchproject.com/.

To kickoff this new endeavor, U.S. Senator Michael S. Lee (Utah) and Federalist Society founder and Vice Chairman David M. McIntosh discussed the project and provided their perspectives on the use of executive power.

Featuring:

• Hon. Michael S. Lee, United States Senate, Utah
• Hon. David M. McIntosh, Partner, Mayer Brown LLP and Vice Chairman, The Federalist Society
• Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

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In Noel Canning v. NLRB, the U.S. Court of Appeals for the D.C. Circuit held that the President's 2012 recess appointments to the National Labor Relations Board were unconstitutional, which means the Board lacks a quorum to conduct business.  The President made these appointments during an intra-session recess shorter than three days, a move no previous President had tried. But the court's reasoning in Noel Canning extended beyond these unusual circumstances. Taking an orginalist approach to the Recess Appointments Clause, the court held that the President cannot make recess appointments during intra-session recesses at all, but only during the recess that occurs between the end of one session of Congress and the beginning of the next. The court held further that the President cannot fill a vacancy with a recess appointment unless the vacancy arises during that same recess. This reasoning calls into question the validity of virtually every recess appointment in modern history. The government has not yet decided whether to appeal the D.C. Circuit's decision, and the NLRB has stated that it will continue to conduct business as usual. Meanwhile, the Noel Canning decision is being invoked to challenge NLRB decisions in dozens of other cases around the country. On this previously recorded conference call held in February, the speakers discuss the Noel Canning case itself, whether the Board can continue to function without Supreme Court resolution of the validity of the recess appointments, and what the decision means for current and past recess appointments to other agencies.

Featuring:

• John P. Elwood, Partner, Vinson & Elkins LLP
• Hon. Howard M. Radzely, Boeing, Inc.
• Moderator: Mrs. Rachel L. Brand, Chief Counsel for Regulatory Litigation, National Chamber Litigation Center, U.S. Chamber of Commerce
• Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

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On March 27, the Supreme Court heard oral arguments in Windsor v. U.S., the challenge to the constitutionality of the federal Defense of Marriage Act (DOMA), signed into law by President Bill Clinton in 1996, and which bars the federal government from recognizing the validity of, or extending attendant benefits to, any marriage conferred by any of the states other than those consisting of only one man and one woman. The Court considered whether DOMA violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are recognized to be married under the laws of their state, whether the Executive Branch’s assertion that DOMA is unconstitutional deprives the Court of jurisdiction to decide this case, whether the Bipartisan Legal Advisory Group of the United States House of Representatives has standing in this case to defend DOMA. Carrie Severino of Judicial Crisis Network attended the oral arguments and then offered her analysis of the arguments, the merits, and the likely outcome of the case.

Featuring:

• Ms. Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network
• Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

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The future of the free enterprise system has become a central issue in our national debate, and in The Road to Freedom, Arthur Brooks offers a  practical manual for defending it in the coming years. Both a moral manifesto and a prescription for concrete policy changes, The Road to Freedom will help translate the philosophy of free enterprise into action, to restore both our nation's greatness and America's well-being in the process.

Featuring:

• Dr. Arthur C. Brooks, President, American Enterprise Institute

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