Federalism & Separation of Powers

Are the Recent Recess Appointments Constitutional?

Thu, 17 May 2012 00:00:00 EST

Charles J. Cooper, Michael B. Rappaport, Peter M. Shane, William R. Yeomans, Dean A. Reuter

Mr. Reuter: Welcome to the Federalist Society’s practice group podcast. The following podcast, hosted by the Federalist Society’s Federalism and Separation of Powers Practice Group, was recorded on February 24, 2012, during a live telephone conference call held exclusively for Federalist Society members. My name is Dean Reuter, Vice President and Director of Practice Groups at the Federalist Society... [Read more!]

The Upside-Down Constitution by Michael S. Greve

Thu, 17 May 2012 00:00:00 EST

Robert R. Gasaway

O’ toiling lawyer, for God’s sake put down the brief. Set aside that contract. Review those documents later. And pick up or click into Michael Greve’s The Upside-Down Constitution—a logically rigorous, practically relevant exploration of America’s constitutional foundations, development, and discontents... [Read more!]

James Madison by Richard Brookhiser - Podcast

Tue, 01 May 2012 00:00:00 EST

Richard Brookhiser, James A. Haynes

Richard Brookhiser's book examines the life of America's fourth President, James Madison, including his role in advising Thomas Jefferson, his relationships with various Founding Fathers, including George Washington, John Adams, Thomas Jefferson, and Alexander Hamilton. Featuring Mr. Richard Brookhiser, Author of James Madison and Columnist for American History and National Review Magazines, and Mr. James A. Haynes of the Federalist Society's Professional Responsibility & Legal Education Practice Group Executive Committee and Baltimore Lawyers Chapter. [Listen now!]

The Constitutionality of the Affordable Care Act - Event Audio/Video

Mon, 30 Apr 2012 00:00:00 EST

Randy E. Barnett, Pamela S. Karlan, Sandra Segal Ikuta, Michael Reynolds

This debate will focus on the constitutionality of the Affordable Care Act. While specific attention will be given to administrative law issues, including the constitutionality of giving out compliance waivers and of medical expert boards, the discussion will be free-ranging and address all constitutional questions of interest. The Federalist Society's Student Division presented this debate at the 2012 Annual Student Symposium on March 3, 2012. Featuring Prof. Randy Barnett of Georgetown University School of Law; Prof. Pamela Karlan of Stanford Law School; and Judge Sandra Ikuta of the U.S. Court of Appeals for the Ninth Circuit as the moderator. Introduction by Mr. Michael Reynolds, Co-Chair of the 2012 Annual Student Symposium. [Watch or listen now!]

The National Popular Vote Plan - Podcast

Fri, 20 Apr 2012 00:00:00 EST

George C. Edwards, Trent England, John R. Koza, Tara Ross, Dean A. Reuter

When Alexander Hamilton spoke of the Electoral College, he said: “[If] the manner of it be not perfect, it is at least excellent.” Today, some are more doubtful, to say the least. The New York Times editorial board calls the system a “quadrennial ritual born in the economics and politics of slavery and the quill-pen era.” Some Americans want to move to a direct national election so badly that they have created an effort to do exactly that, but without a constitutional amendment. The National Popular Vote effort asks state legislatures to award their electors to the winner of the national popular vote. If states holding a majority of electors comply, then the presidential election will operate as a national direct election. This panel will discuss presidential election from several perspectives: Is the Electoral College an antiquated institution or is it an essential element of America’s republican democracy? If the Electoral College needs to be replaced with a direct election system, is NPV an appropriate route to change? Or does its interstate compact constitute an end-run around the constitutional amendment process? Featuring Prof. George C. Edwards III of Texas A&M University; Mr. Trent England of The Freedom Foundation; Dr. John R. Koza, author of Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote; and Ms. Tara Ross, author of Enlightened Democracy: The Case for the Electoral College. [Listen now!]

Obamacare Daily Oral Argument Briefing - Wednesday - Podcast

Wed, 28 Mar 2012 00:00:00 EST

Randy E. Barnett, Dean A. Reuter

On Wednesday, March 28, the U.S. Supreme Court concluded oral arguments in Florida v. HHS, better known as the Obamacare case. The federal courts below split on the constitutionality of the health care reform act. Wednesday's arguments focused on severability and the Medicaid coercion argument. Professor Randy Barnett reported from the Courthouse steps on exactly what transpired. Assuming, arguendo, that the Court finds some part of the Act unconstitutional, will it sever that part and preserve the balance of the statute, or will the entire statute fall? Will Wednesday's severability argument reveal anything about how the Court, or any individual justice, might rule on constitutionality? Does the design of the Act unconstitutionally coerce states by adding to the Medicaid rolls? Professor Barnett discussed these and other questions in this special Teleforum call.

Obamacare Daily Oral Argument Briefing - Tuesday - Podcast

Tue, 27 Mar 2012 00:00:00 EST

Randy E. Barnett, Dean A. Reuter

On Tuesday, March 27, the U.S. Supreme Court continued hearing oral arguments in Florida v. HHS, better known as the Obamacare case. The federal courts below split on the constitutionality of the health care reform act. Tuesday's arguments focused on the constitutionality of the individual mandate. Professor Randy Barnett, who attended Tuesday's oral arguments, reported from the Courthouse steps on exactly what transpired. Which justices seemed most dubious about the individual mandate, and which seemed most inclined to support Congress’ assertion of power? What were the major points of contention? Did the advocates for the government propound a judicially-administrable limiting principle on Congress’ power? Professor Barnett discussed these and other questions in this special Teleforum call.

Obamacare Daily Oral Argument Briefing - Monday - Podcast

Mon, 26 Mar 2012 00:00:00 EST

Randy E. Barnett, Dean A. Reuter

On Monday, March 26, the U.S. Supreme Court heard oral arguments in Florida v. HHS, perhaps better known as the Affordable Care Act case or the Obamacare case. The federal courts below split on the constitutionality of the health care reform act. Monday's arguments focused on the Anti-Injunction Act, and whether and to what extent it might control the outcome of the case. Professor Randy Barnett attended Monday's oral arguments and reported from the Courthouse steps on exactly what transpired. What was the focus of the inquiry of the various justices? Who asked the most pointed questions? What is expected in Tuesday's oral argument focusing on the constitutionality of the individual mandate? Professor Barnett discussed these and other questions in this special Teleforum call.

Bounty Hunters and the Public Interest - A Study of California Proposition 65

Thu, 22 Mar 2012 00:00:00 EST

Anthony T. (Tom) Caso

Adopted by California voters in 1986, Proposition 65 was a revolutionary measure in a number of respects. Although titled “Safe Drinking Water and Toxic Enforcement Act,” the scope of the law was much broader than water pollution. The goal of the law was to protect Californians from exposure to cancer-causing substances and reproductive toxins. In addition to prohibiting introduction of such chemicals into the water, the law also required warnings so people could choose to avoid areas where they might come in contact with chemicals known to cause cancer or reproductive harm. Immediately after passage, the new law required the state to compile a list of substances known to cause cancer and reproductive toxins. This list has now grown to nearly 900 different substances. Because the law mandates warnings that allow consumers to avoid exposure to these chemicals, backers of the measure argued that it would reduce the incidence of cancer and other health problems in California. [Read more!]

Obamacare in the Supreme Court - Event Audio/Video

Tue, 20 Mar 2012 00:00:00 EST

Randy E. Barnett, Walter E. Dellinger III, Neal K. Katyal, C. Kevin Marshall, Stuart S. Taylor

The U.S. Supreme Court is now ready to hear oral argument in one of the most highly anticipated cases in the modern era, Florida v. U.S. Department of Health and Human Services, a consolidated series of challenges to the Patient Protection and Affordable Care Act. Our panel of experts analyzed the case and all issues before the Court, including discussion of the constitutionality of the individual mandate provision, severability, coercion and the Medicaid provision, and the implications of the Anti-Injunction Act. Featuring Prof. Randy E. Barnett of Georgetown University Law Center; The Honorable Walter Dellinger of O'Melveny & Myers; Prof. Neal K. Katyal of Georgetown University Law Center; Mr. C. Kevin Marshall of Jones Day; and Mr. Stuart Taylor, Jr., of the National Journal and the Brookings Institution, as the moderator. [Watch or listen now!]

Are the Recent Recess Appointments Constitutional? - Podcast

Mon, 05 Mar 2012 00:00:00 EST

Charles J. Cooper, Michael B. Rappaport, Peter M. Shane, William R. Yeomans, Dean A. Reuter

Recently, President Obama recess-appointed three new members to the National Labor Relations Board, and a new chief of the Consumer Financial Protection Bureau created by the Dodd-Frank bill. In making the appointments, the President bypassed the usual approval process for the nominations in the Senate, claiming authority to make recess appointments. Commentators and academics differ in their opinions about the constitutionality of the President's appointments during the Senate's pro forma sessions. After describing just what transpired, our expert panelists offered their views and took questions from the audience. Featuring: The Honorable Charles J. Cooper of Cooper & Kirk, PLLC; Prof. Michael B. Rappaport of the University of San Diego School of Law; Prof. Peter M. Shane of The Ohio State University Moritz College of Law; and Prof. William R. Yeomans of American University Washington College of Law.

Perspectives on Executive Power: Czars, Libya, and Recent Developments - Event Audio/Video

Sat, 03 Mar 2012 00:00:00 EST

Mariano-Florentino (Tino) Cu�llar, John C. Harrison, Sanford Levinson, John C. Yoo, Thomas B. Griffith, Ilan Wurman

This panel will address the role of Executive branch officials in making high-level policy decisions, and their relationship to Congress. This is particularly relevant in the context of two recent debates: can the President ignore congressional attempts to strip funding from high-level officials who are not confirmed by the Senate? Is the Obama administration’s use of “czars” constitutional? Moreover, what is the power of the Executive branch to start a war without any authorization from Congress? The Federalist Society's Student Division presented this panel at the 2012 Annual Student Symposium on March 3, 2012. Featuring Prof. Mariano-Florentino Cuéllar of Stanford Law School; Prof. John Harrison of the University of Virginia Law School; Prof. Sandy Levinson of the University of Texas Law School; Prof. John Yoo of Berkeley Law School; and Judge Thomas Griffith of the U.S. Court of Appeals for the District of Columbia Circuit as the moderator. Introduction by Mr. Ilan Wurman, Co-Chair of the 2012 Annual Student Symposium. [Watch or listen now!]

The Compact Clause and Interstate Compacts - Podcast

Tue, 21 Feb 2012 00:00:00 EST

Michael S. Greve, Nick Dranias, Dean A. Reuter

The Compact Clause of the Constitution provides that "[n]o State shall, without the Consent of Congress... enter into any Agreement or Compact with another State, or with a foreign Power." The Supreme Court requires congressional consent only for interstate compacts that attempt to enhance "states power quoad [relative to] the federal government" opening the door to approximately 200 interstate compacts. On this previously recorded conference call, the speakers discuss states’ rights, the issues that arise from interstate compacts, and their impact on federal programs. Featuring Dr. Michael Greve of the American Enterprise Institute and Mr. Nick Dranias of the Center for Constitutional Government at the Goldwater Institute. [Listen now!]

Federalism and State Immigration Policy - Event Audio

Sat, 28 Jan 2012 00:00:00 EST

Gabriel J. (Jack) Chin, John C. Eastman, Joe Sciarrotta, Margaret D. Stock, Edwin Meese III, Eugene B. Meyer

Arizona v. United Statesraises several cutting edge questions about federal preemption of state laws. These questions derive from Arizona’s “mirror image theory” of the case. That is, Arizona argues that its statutes are a mirror image of federal statutes, and therefore that no preemption problem exists. In arguing against that theory, the federal government has voiced what has been unflatteringly called “preemption by executive whim.” That is, that preemption can be created by federal executive branch enforcement (or, non-enforcement) priorities that essentially ignore enforcement of the statutes being mirrored. What do those competing claims mean in preemption analysis where, traditionally, courts have looked to the law as written/established, rather than as enforced? This panel was featured at the Sixth Annual Western Conference on January 28, 2012. Featuring Prof. Gabriel “Jack” Chin of UC Davis School of Law; Prof. John Eastman of Chapman University School of Law; Mr. Joe Sciarrotta, General Counsel to Governor Jan Brewer of Arizona; Prof. Margaret Stock of Lane owell LLC; and The Honorable Edwin Meese of The Heritage Foundation as the moderator. Introduction by Mr. Eugene B. Meyer, President of The Federalist Society.

A Return to "the Heady Days"? The Supreme Court Addresses Whether the Bivens Doctrine Should Extend to Employees of Government Contractors in Minneci v. Pollard

Fri, 09 Dec 2011 00:00:00 EST

Robert T. Numbers, Lisa L. Dixon

On November 1, 2011, the Supreme Court heard oral arguments in Minneci v. Pollard, a case that will determine whether employees of government contractors can be held liable for damages for alleged constitutional violations under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics and its progeny. Minneci should resolve a circuit split between the Ninth Circuit, which held that employees of government contractors can be held liable under Bivens, and the Fourth, Tenth, and Eleventh Circuits, which held that they could not. In resolving this circuit split, the Supreme Court will need to address a number of questions that have divided lower courts for many years, such as whether employees of governmental contractors are considered federal actors; whether recognition of a Bivens claim is precluded if a plaintiff has alternative remedies, even if those remedies are not congressionally crafted; and how the imposition of asymmetrical liability costs on government contractors impacts availability of a Bivens remedy. [Read more!]

Meet the New Boss: Continuity in Presidential War Powers - Event Audio/Video

Thu, 10 Nov 2011 00:00:00 EST

Martin Flaherty, Andrew C. McCarthy, Michael D. Ramsey, John C. Yoo, John C. Eastman

The Federalism & Separation of Powers Practice Group hosted this panel on "Meet the New Boss: Continuity in Presidential War Powers" on Thursday, November 10, 2011, during the 2011 National Lawyers Convention. The panel featured Prof. Martin S. Flaherty of the Leitner Center for International Law and Justice at Fordham Law School; Mr. Andrew C. McCarthy of the National Review Institute; Prof. Michael D. Ramsey of the University of San Diego School of Law; Prof. John C. Yoo of the University of California Berkeley School of Law; and Dr. John C. Eastman of the Center for Constitutional Jurisprudence at Chapman University School of Law as the moderator.

Engage Volume 12, Issue 2, September 2011

Mon, 12 Sep 2011 00:00:00 EST

The September 2011 issue of Engage is now online (exclusively a digital issue). Engage provides original scholarship on current, important legal and policy issues. Through its publication, we aim to contribute to the marketplace of ideas in a way that is collegial, measured, and insightful—and hope to spark a higher level of debate and discussion than we often see in today’s legal community. [Read now!]

The Constitutionality of the Patient Protection and Affordable Care Act

Mon, 12 Sep 2011 00:00:00 EST

Richard A. Epstein, Jesse H. Choper

The topic of the discussion between Professor Jesse Choper and myself is the Commerce Clause and how it relates to the constitutionality of ObamaCare, or, more dispassionately, the Patient Protection and Affordable Care Act. I approach this topic with much ambivalence. As a matter of first principle, I do not have much faith in all the individual mandate arguments that have been raised with great effectiveness and imagination by Professor Randy Barnett of Georgetown University Law Center. Randy is one of the few people who can mesmerize you with his low-key approach. What he says in measured tones may seem at first to be outrageous, only to become more persuasive to audiences as he continues to talk...

Do We Trust Judges Too Much? Did the Framers?

Mon, 12 Sep 2011 00:00:00 EST

David F. Forte, Bruce K. Miller

We have just had another Justice confirmed to the Supreme Court. The vetting process for possible nominees to the Court is now familiar to all of us. At the center of the process is the President. You will notice, and it is now become part of our political environment, that one of the reasons why we elect Presidents is because of whom he or she may appoint to the Supreme Court. It is a strange development in our constitutional structure. Our Presidents have themselves become electors, electors of the kinds of people who will actually make policy over us. If that sounds like a strange constitutional development, it was in fact the sort of thing that was predicted by the Anti-Federalists who opposed the Constitution...

The Impact of Judicial Activism on the Moral Character of Citizens

Mon, 12 Sep 2011 00:00:00 EST

Ilya Shapiro, Fred Smith

One thing often mentioned about the Federalist Society is that it’s for judicial restraint. I’m not sure that’s the official policy of the Federalist Society, but in any event, these terms like “restraint,” “activism,” “minimalism,” “neutrality”—you certainly don’t want judges to have political bias—what do they mean? Quite often, “activist” is synonymous with any decision the speaker doesn’t like, and “restraint” means the judge is being wise and “I agreed with that decision” (coincidentally)...

Executing the Treaty Power: A Closer Look at U.S. v. Bond

Wed, 23 May 2012 00:00:00 EST

Nicholas Quinn Rosenkranz

A few weeks ago, in U.S. v. Bond, the Third Circuit held that a treaty can and did increase the legislative power of Congress, to reach an otherwise purely local crime. But the court seemed distinctly uneasy about this result, and the judges positively urged the Supreme Court to take the case. Judge Ambro, concurring, wrote: "I hope that the Supreme Court will soon flesh out '[t]he most important sentence in the most important case about the constitutional law of foreign affairs,' Nicholas Quinn Rosenkranz, Executing The Treaty Power, 118 Harv. L. Rev. 1867, 1868 (2005), and, doing so, clarify (indeed curtail) the contours of federal power to enact laws that intrude on matters so local that no drafter of the Convention contemplated their inclusion in it." In this teleforum, Prof. Nicholas Quinn Rosenkranz of Georgetown University Law Center will discuss U.S. v. Bond, Executing The Treaty Power, the scope of Congress's power to legislate pursuant to treaty, and the prospects for this issue at the Supreme Court.

Obamacare Daily Oral Argument Briefing - Wednesday

Fri, 23 Mar 2012 00:00:00 EST

Randy E. Barnett

On Wednesday, March 28, the U.S. Supreme Court will conclud oral arguments in Florida v. HHS, better known as the Obamacare case. The federal courts below split on the constitutionality of the health care reform act. Wednesday's arguments will focus on severability and the Medicaid coercion argument. Join us as Professor Randy Barnett reports from the Courthouse steps on exactly what transpired. Assuming, arguendo, that the Court finds some part of the Act unconstitutional, will it sever that part and preserve the balance of the statute, or will the entire statute fall? Will Wednesday's severability argument reveal anything about how the Court, or any individual justice, might rule on constitutionality? Does the design of the Act unconstitutionally coerce states by adding to the Medicaid rolls? Professor Barnett will discuss these and other questions in this special Teleforum call.

Obamacare Daily Oral Argument Briefing - Tuesday

Thu, 22 Mar 2012 00:00:00 EST

Randy E. Barnett

On Tuesday, March 27, the U.S. Supreme Court will continue hearing oral arguments in Florida v. HHS, better known as the Obamacare case. The federal courts below split on the constitutionality of the health care reform act. Tuesday's arguments will focus on the constitutionality of the individual mandate. Join us as Professor Randy Barnett, who will attend Tuesday's oral arguments, reports from the Courthouse steps on exactly what transpired. Which justices seemed most dubious about the individual mandate, and which seemed most inclined to support Congress’ assertion of power? What were the major points of contention? Did the advocates for the government propound a judicially-administrable limiting principle on Congress’ power? Professor Barnett will discuss these and other questions in this special Teleforum call.

Obamacare Daily Oral Argument Briefing - Monday

Thu, 22 Mar 2012 00:00:00 EST

Randy E. Barnett

On Monday, March 26, the U.S. Supreme Court will hear oral arguments in Florida v. HHS, perhaps better known as the Affordable Care Act case or the Obamacare case. The federal courts below split on the constitutionality of the health care reform act. Monday's arguments will focus on the Anti-Injunction Act, and whether and to what extent it might control the outcome of the case. Join us as Professor Randy Barnett, who will attend Monday's oral arguments, reports from the Courthouse steps on exactly what transpired. What was the focus of the inquiry of the various justices? Who asked the most pointed questions? What is expected in Tuesday's oral argument focusing on the constitutionality of the individual mandate? Professor Barnett will discuss these and other questions in this special Teleforum call.

The National Popular Vote Plan

Fri, 16 Mar 2012 00:00:00 EST

George C. Edwards, Trent England, John R. Koza, Tara Ross

Obamacare in the Supreme Court

Mon, 12 Mar 2012 00:00:00 EST

Randy E. Barnett, Walter E. Dellinger III, Neal K. Katyal, C. Kevin Marshall, Stuart S. Taylor

Are the Recent Recess Appointments Constitutional?

Wed, 15 Feb 2012 00:00:00 EST

Charles J. Cooper, Michael B. Rappaport, Peter M. Shane, William R. Yeomans

Recently, President Obama recess-appointed three new members to the National Labor Relations Board, and a new chief of the Consumer Financial Protection Bureau created by the Dodd-Frank bill. In making the appointments, the Presiden bypassed the usual approval process for the nominations in the Senate, claiming authority to make recess appointments. Commentators and academics differ in their opinions about the constitutionality of the President’s appointments during the Senate’s pro forma sessions. After describing just what transpired, our expert panelists will offer their views and take questions from the audience. Featuring The Honorable Charles J. Cooper of Cooper & Kirk, PLLC; Prof. Michael B. Rappaport of the University of San Diego School of Law; Prof. Peter M. Shane of The Ohio State University Moritz College of Law; and Prof. William R. Yeomans of American University Washington College of Law.

2011 Separation of Powers CLE Course

Thu, 21 Apr 2011 00:00:00 EST

Antonin Scalia, John S. Baker, Jr.

U.S. Supreme Court Associate Justice Antonin Scalia and Professor John Baker of Catholic University School of Law will teach a ten-hour CLE course on the courts, standing, the non-delegation doctrine, and appointments and removal, as they relate to the separation of powers. This course is offered exclusively to Federalist Society members. This event is now sold out. Registration is closed.[More]

2010 National Lawyers Convention

Wed, 24 Mar 2010 00:00:00 EST

Barry E. Carter, Maureen K. Ohlhausen, Patrick McSweeney, Antonin Scalia, Dennis G. Jacobs, Marvin Ammori, Paul S. Atkins, John S. Baker, Jr., Randy E. Barnett, Sara Sun Beale, Bradford A. Berenson, Lillian R. BeVier, Carl T. Bogus, James Bopp Jr., Steven G. Calabresi, Michael A. Carvin, Ronald A. Cass, Michael Chertoff, Roger Clegg, Robert D. Cooter, R. Ted Cruz, Frank H. Easterbrook, John C. Eastman, Richard A. Epstein, William N. Eskridge, Jr., David French, Charles Fried, Richard W. Garnett, Michael Gerhardt, C. Boyden Gray, Thomas W. Hazlett, Christine Jolls, Douglas T. Kendall, Lloyd Hitoshi Mayer, Edwin Meese III, Thomas W. Merrill, Paul R. Michel, John O. McGinnis, Barrington D. Parker, Jr., Michael S. Paulsen, Thomas R. Phillips, A. Raymond Randolph, David B. Rivkin, Jr., Mark F. Schultz, Bradley A. Smith, Paul M. Smith, Margaret D. Stock, Thomas J. Tauke, Clifford W. Taylor, Mark Tushnet, Eugene Volokh, Howard Waltzman, Ruth J. Wedgwood, J. Harvie Wilkinson III, Mitch McConnell, Noah D. Bookbinder, Lawrence A. Hamermesh, Brett M. Frischmann, Gigi B. Sohn, Kris W. Kobach, James C. Ho, William H. Pryor Jr., Joel R. Reidenberg, Diane S. Sykes, Jeffrey Bossert Clark, Kenneth T. Cuccinelli, Edith H. Jones, Ronald M. Levin, Victoria A. Lipnic, Roger Martella Jr., Diarmuid F. O'Scannlain, Roger Pilon, Rena I. Steinzor, Sarah B. Teslik, Peter J. Wallison, Arthur E. Wilmarth, John C. Yoo, Michael Barone, Michael S. Lee, Michael J. Madigan, Lanny J. Davis, Brett M. Kavanaugh, Jan Crawford, Carlos T. Bea, Kim Bobo, Shawn H. Chang, Thomas M. Hardiman, Jordan Lorence, Jeffrey P. Mahoney, Robert M. McDowell, Margaret E. McGuinness, Brandon Rees, David B. Sentelle, Jerry E. Smith, David Stras, Jeffrey S. Sutton, C. Gibson Vance, Pete Williams, Michael R. Pence, Daniel E. Lungren, Jeffrey Rosen

The Federalist Society's National Lawyers Convention is scheduled for Thursday, November 18 through Saturday, November 20 at the Mayflower Hotel. The theme for this year's convention is "Controlling Government: The Framers, the Tea Parties and the Constitution." The Annual Dinner will take place the evening of Thursday, November 18 at the Omni Shoreham Hotel. [Register now!]

Is the Electoral College Obsolete?

Thu, 01 Jul 2010 00:00:00 EST

John R. Koza, Tara Ross, Roger Pilon

The Electoral College has been a staple of American presidential elections since the nation's founding, but it may not be for long: a new legislative effort has been gaining momentum in state legislatures and could soon fundamentally change presidential elections as we know them. A California-based group, National Popular Vote, hopes to convince a critical mass of state legislatures to sign an interstate compact that will dictate a new method of allocating presidential electors: rather than states allocating electors as they do now, NPV wants states to give their electors to the winner of the national popular vote. The compact has been approved in five states (61 electoral votes) and is currently being considered in three other states (46 electoral votes). Three additional state legislatures approved the compact but did not receive gubernatorial approval (62 electoral votes). The compact goes into effect when states holding 270 electoral votes have signed the agreement. At this critical moment in the progress of NPV's legislation, Ms. Ross and Dr. Koza will debate the benefits and detriments of both NPV and the Electoral College. Should the Electoral College be retained? If not, is NPV's solution a good one, or might there be unintended logistical ramifications? Should Electoral College opponents instead go through the formal constitutional amendment process?

Public Company Accounting Oversight Board: A Preview

Mon, 30 Nov 2009 00:00:00 EST

Tom Price, Paul S. Atkins, Hans Bader, Jeffrey P. Mahoney, Gillian E. Metzger, Michael S. Greve

On Monday, December 7, the Supreme Court will hear oral arguments in Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB). PCAOB, a private corporation created by the 2002 Sarbanes-Oxley Act, has authority to investigate public accounting firms, to develop auditing and ethics standards for such firms, and to impose sanctions on firms that fail to comply with PCAOB's rules. PCAOB's members are appointed by the Securities and Exchange Commission. The Court will consider whether the Sarbanes-Oxley Act violates the Constitution by vesting members of the PCAOB with significant powers without allowing the President appointment or removal powers.

U.S. Representative Tom Price (Ga.) will provide introductory remarks, followed by a panel discussion on the legal and regulatory implications of the PCAOB case.

2009 National Lawyers Convention

Thu, 30 Apr 2009 00:00:00 EST

Samuel A. Alito, Douglas H. Ginsburg, Guido Calabresi, Frank H. Easterbrook, Jefferson B. Sessions III, Paul S. Atkins, Randy E. Barnett, Janice Rogers Brown, Linda Chavez, Mariano-Florentino (Tino) Cu�llar, Susan E. Dudley, Miguel Estrada, Richard A. Epstein, Steve Forbes, Maurice R. Greenberg, Michael S. Greve, Oona Hathaway, Peter N. Kirsanow, David G. Leitch, Michael W. McConnell, Burt Neuborne, Jeremy A. Rabkin, A. Raymond Randolph, Theodore M. Shaw, Stephen Bainbridge, Carlos T. Bea, Stephanie R. Breslow, Fran�ois-Henri Briard, Alan E. Brownstein, Ronald A. Cass, John C. Eastman, C. Boyden Gray, Lisa Heinzerling, Edith H. Jones, David A. Katz, Brett M. Kavanaugh, F. Scott Kieff, Michael Livermore, Ira C. "Chip" Lupu, Paul G. Mahoney, Robert D. McTeer, Michael J. Meurer, Geoffrey P. Miller, Alan B. Morrison, Diarmuid F. O'Scannlain, Michael Paese, Harvey L. Pitt, William H. Pryor Jr., Lucas "Scot" A. Powe Jr., Jamin Ben Raskin, Daniel B. Ravicher, Andrew J. Redleaf, Roberta Romano, David B. Sentelle, Catherine M. Sharkey, Amity Shlaes, Damon A. Silvers, Jerry E. Smith, Gigi B. Sohn, Ilya Somin, Bret Stephens, Jeffrey S. Sutton, Diane S. Sykes, Daniel E. Troy, J.W. Verret, Steven M.H. Wallman, John P. Walters, W. Bradley Wendel, Shirley J. Wilcher, J. Harvie Wilkinson III, Stephen F. Williams, Todd J. Zywicki, John A. Allison, John S. Baker, Jr., Jennifer Walker Elrod, Malcolm M. Feeley, Thomas W. Hazlett, Roderick M. Hills Jr., Brian H. Hook, Daryl Joseffer, Annette L. Nazareth, Aryeh Neier, Jed Rubenfeld, Robert P. Young, Jr., David Zaring, Mark R. Levin, Thomas M. Hardiman, John F. Manning, William Black, Cornish F. Hitchcock, Steven J. Law, Harold Meyerson, Alex J. Pollock, Andrew L. Stern, Michael B. Mukasey, David Berenbaum, Robert M. McDowell, Mark F. Schultz, David M. McIntosh, Kyle E. McSlarrow, Seton Motley, Laura M. Olson, Marvin Ammori

The Federalist Society's National Lawyers Convention is scheduled for Thursday, November 12 through Saturday, November 14 at the Mayflower Hotel. The theme for this year's convention is "The Federal Government's Economic Role in our Constitutional System." The Annual Dinner will take place the evening of Thursday, November 12 at the Omni Shoreham Hotel. [Register now!]

The Financial Services Bailout: Cause, Effect and the Limits of Government Action

Tue, 10 Mar 2009 00:00:00 EST

James Carr, Timothy Canova, John C. Eastman, Bert Ely, Ronald A. Cass, Jeb Hensarling, Alex J. Pollock, John Weicher, David Berenbaum, Wayne A. Abernathy, Louis Michael Seidman

The government bailout raises a multitude of thorny questions that remain unanswered: What caused the crisis? What is the best way to fix the problems? Is there a clear path to return to a free market? What are the limits of federal government authority in this area and, do those limits expand in the time of a "crisis"? Our panel of legal experts will discuss these and other issues. [Register now!]

The Future of Federalism

Tue, 19 Aug 2008 00:00:00 EST

Malcolm Feely, Michael S. Greve, Roderick M. Hills Jr., Ilya Somin, John C. Eastman, Randy E. Barnett, Jesse H. Choper, William H. Pryor Jr., Jonathan H. Adler, James Blumstein, Thomas P. Miller, Theodore H. Frank The American system of federalism is at the heart of many disagreements over important constitutional and public policy issues. Changes in all three branches of government and recent Supreme Court decisions raise questions about the future scope of federal-state relationships. Join us on September 12th at AEI for a conference on The Future of Federalism. [Register now!]

Hate Crimes: What is the Proper Federal Role?

Tue, 29 Apr 2008 00:00:00 EST

John S. Baker, Jr., Gail Heriot, Mark Agrast, Steven Freeman, Edwin Meese III In recent years, several bills have sought to greatly broaden the definition of federal hate crimes. Is new legislation necessary to protect individuals from acts that already violate state law? Or is it feel-good legislation that is counterproductive to deterring and prosecuting such crimes? Please join our panel of experts to discuss these important issues. [Register now!]

2007 National Lawyers Convention

Fri, 16 Mar 2007 00:00:00 EST

Samuel A. Alito, Randy E. Barnett, Robert H. Bork, Frank H. Easterbrook, Richard A. Epstein, Charles Fried, Jamie Gorelick, Gail Heriot, Neal K. Katyal, Alex Kozinski, Andrew C. McCarthy, Michael W. McConnell, Edwin Meese III, Theodore B. Olson, Walter K. Olson, Stephen Reinhardt, John G. Roberts Jr., Antonin Scalia, Phyllis Schlafly, Jay Alan Sekulow, Nadine Strossen, George J. Terwilliger III, David C. Vladeck, Eugene Volokh, Akhil Reed Amar, Robert Audi, John S. Baker, Jr., Michael Barone, Bob Barr, Carlos T. Bea, Fran�ois-Henri Briard, Janice Rogers Brown, James S. Burling, Steven G. Calabresi, Lawrence W. Casey, Ronald A. Cass, Brett M. Kavanaugh This year marks the 25th Anniversary of the Federalist Society and on November 15-17 we will be celebrating this milestone during our Annual National Lawyers Convention. The theme for this year's convention is "Shining City Upon a Hill: American Exceptionalism." In addition to the numerous panels containing noted legal experts and scholars from across the political spectrum, The convention will also feature the Seventh Annual Barbara K. Olson Memorial Lecture, to be delivered by Chief Justice John Roberts. The highlight of the convention will be the 25th Anniversary Gala, attended by many more special guests, which will be held in the Main Hall of Washington, DC's Union Station.
[Register now!]

2007 Separation of Powers CLE Course

Thu, 19 Jul 2007 00:00:00 EST

Antonin Scalia, John S. Baker, Jr. U.S. Supreme Court Associate Justice Antonin Scalia and Professor John Baker of Louisiana State University School of Law will teach a ten-hour CLE course on the courts, standing, the non- delegation doctrine, and appointments and removal, as they relate to the separation of powers. This course is offered exclusively to Federalist Society members and is a rare opportunity to spend time, both socially and intellectually, with one of the most significant leading jurists in the modern age. [Click here to register]

How Should the Courts Interpret Split Decisions?

Tue, 19 Jun 2007 00:00:00 EST

The Supreme Court occasionally renders plurality opinions, which may involve 4-1-4 decisions or any number of other formulations of justices where no clear majority on particular issues emerges. These plurality opinions often address significant issues yet, due to the lack of a clear majority, are difficult for the lower courts, the regulated community, and practitioners to interpret and apply. On June 21, the Federalist Society presented a live audiocast of a panel of experts who discussed these issues and more. [Click here to listen to a replay of this event]

The U.S. Attorney Controversy

Mon, 26 Mar 2007 00:00:00 EST

Panelists include:

Mr. Mark Agrast, Center for American Progress
Mr. Andrew McCarthy, National Review Online and former Chief Assistant U.S. Attorney
Prof. Jonathan Turley, George Washington School of Law
Mr. M. Edward Whelan III, President, Ethics and Public Policy Center
Mr. Leonard A. Leo, The Federalist Society (Moderator)