FedSoc Blog

Yesterday the Federalist Society and AEI co-hosted a panel discussion on Liberty’s Refuge, The Forgotten Freedom of Assembly by Washington University School of Law’s John Inazu.  As AEI summarized the event:

Inazu began the conversation with an overview of his objectives in writing "Liberty’s Refuge"-- he aimed to offer diagnostic, historical and normative arguments by which to explore freedom of assembly and its relevance in American courts. Through this framework, Inazu examined the distinction between government toleration and government support of a practice as well as the role of assembly in emerging social movements (like the Tea Party Movement). Douglas Laycock of the University of Virginia School of Law praised Inazu's historic overview but criticized the book's normative arguments -- shifting between freedom of association and assembly, Laycock argued, would have little substantive impact on major court decisions.

David Bernstein of the George Mason University School of Law touted Inazu's work for highlighting the historical origins and relevance of freedom of assembly. Like Laycock, Bernstein used the decision in Roberts vs. United States Jaycees -- which dealt with organizational antidiscrimination law in Minnesota -- to make his case, ultimately concluding that moving towards assembly would not change case outcomes. Inazu concluded the discussion by alleging that a shift in frameworks is indeed consequential, contrary to what Laycock and Bernstein suggested.

You can watch a video of the full event here.

The Federalist Society and AEI today hosted a panel discussion of John Yoo and Julian Ku's new book, Taming Globalization: International Law, the U.S. Constitution, and the New World Order.  The two authors--from Berkeley and Hofstra Law, respectively--were joined by Martin Flaherty of the Fordham University School of Law and Jeremy Rabkin of the George Mason University School of Law. Jennifer Rubin moderated.

Ku began by laying out three concepts they authors see as affecting the constitutional environment: 1) globalization, 2) global governance, and 3) sovereignty.  Globalization is exogenous, a neither good nor bad force.  It is leading to a change in global governance, including a deepening of legal and non-legal international cooperation, the rise of new and important international organization, and the expansion of international law, which formerly used to deal with diplomatic issues, to areas that used to be considered solely in the domestic sphere.  As for sovereignty, Ku claimed that our conception of it should depend on the U.S. Constitution’s understanding of sovereignty, not the conception of Westphalian sovereignty.

Yoo explained that globalization poses the same kind of stresses for the country as did the economic nationalization that occurred during the New Deal, which unfortunately lead to the creation of independent agencies given sweeping authority.  The solution he sees is to turn to the Constitution as the only means by which the government can exercise the power delegated to it by the people.  Laws implementing international law should largely be the domain of Congress, not the courts.  This would preserve popular sovereignty while still allowing the U.S. to engage in the kind of international cooperation the Framers envisioned.  Yoo proposed three doctrines: 1) Most treaties should be considered to be non-self-executing (meaning they require implementing legislation), 2) The political branches, especially the president, should take the lead role in interpreting international law, 3) the 50 states should play a larger role in international law given show it is becoming more difficult for the federal government to regulate international issue that impact state laws, such as the nature of marriage. 

Flaherty said he enjoyed the book, which he found stimulated, comprehensive, and lucid.  However, he said he found something to disagree with on virtually every page.  He claimed that the book’s ideas are so original as to be idiosyncratic.  He agreed with the authors the Constitution is the body of law that mediates how the U.S. engages with the rest of the world.  He also said he accepts Justice Scalia’s method of constitutional interpretations: start with the text, then move to original understanding, structure, custom, precedent, and maybe policy as a tie-breaker.  But using this method, he argued, poses problems for the book’s positions.  For example, the plain meaning of the text of the Constitution’s Supremacy Clause appears to strongly suggest that treaties are self-executing.  And if there is any doubt there, the original understanding of the Clause was that it was intended to solve the problem that America could not enforce its treaties—in particular, the states were not enforcing the Treaty of Paris that ended the Revolutionary War.

Rabkin followed by saying that much of the book is very attractive.  Above all, it sidesteps angry debates about what should or should not be America’s stance toward the world.  He said he was sympathetic to the authors’ underlying project, but he did not agree that globalization is an unstoppable force that we cannot change.  The implication of the authors’ view is that we will have more and more treaties going forward so let us just focus on process.  But can we make a treaty on just about anything?  He said “no.”  If we assume the opposite, then we can make treaties about international human rights.  Such treaties address not the relations between states, as treaties solely used to do, but what all states must do, including what states may do to their citizens.  International law thus becomes something like Natural Law, a brooding omnipresence in the sky that has moral urgency.

At the Volokh Conspiracy, George Mason University Law Professor David Bernstein tell an anecdote about a FedSoc Student Symposium:

The discussion of why liberal and even some conservative (see this hissy fit by Charles Fried) academics were unable to see the plausibility of the constitutional challenge to the individual mandate reminds me of an anecdote from my law school days.

I was at a Federalist Society student conference chatting with a prominent professor.  We got into a discussion of the Takings Clause, and he told me about the various theories of Takings he goes through when he teaches the clause.  Conspicuously absent was any mention of Richard Epstein’s theories, even though Epstein was one of the most cited law professors in the country, and had published just a few years earlier a widely-discussed book on the subject.

So I asked this professor whether he covered Epstein’s theories at all.  He said, “no, I don’t even mention them.”  I asked why.  He said, “I don’t think anyone takes Epstein’s book seriously.”  This, mind you, from a professor who was something of a libertarian fellow traveler himself.

Flash forward a year, to my clerkship interviews.  I applied to both Democratic and Republican appointees, but only Republicans gave me interviews.  With one exception, every one of the judges seven or eight judges I interviewed with, including some of the most prominent judges in the country, asked me what I thought of Epstein’s book.

Now I’m sure that they asked me this in part because it was pretty obvious that I was libertarian-minded, and this was the most prominent libertarian law book of the day. Still, it was clear from the questions that this book that “no one” was taking seriously in liberal-dominated academia was being taken very seriously among elite conservative jurists.

On March 21, 2012, the Federalist Society's Faculty Division and the American Enterprise Institute held a panel discussion on Jack Goldsmith's new book Power and Constraint: The Accountable Presidency After 9/11. As AEI summarized the event:

Jack Goldsmith argued that American presidents are more accountable for their national security decisions than ever before. After introducing his book, Goldsmith  set up the discussion by highlighting the significant disparities between President George W. Bush’s early  and later policies —  disparities that were not acknowledged by then-Senator Barack Obama on his campaign trail. Jeremy Rabkin, professor at George Mason University School of Law, responded to Goldsmith by pointing out the difference in rhetoric used throughout Obama’s campaign — whereas the Left was vigilant about opposing the wars, the Right was less vocal. From there, Neal Katyal, professor at the Georgetown University Law Center, spoke to the issue of leaks in government, when people feel as though they are not being heard, and the normal, accepted processes within government are not being employed. Bush’s later policies would not have been such a big issue, says Katal, if normal process had been used. Finally, Washington Post investigative reporter Dana Priest argued that the leaks in government were not a risk to national security, and were overblown. Priest concluded that these leaks are actually positive in the long run because they provide accountability for the presidency.

Click here for the video of the entire event.

On March 20, 2012, the Federalist Society's Federalism & Separation of Powers Practice Group sponsored a panel discussion on "Obamacare in the Supreme Court." The panelists were: Prof. Randy E. Barnett, Georgetown University Law Center; Hon. Walter Dellinger, O'Melveny & Myers; Prof. Neal K. Katyal, Georgetown University Law Center; and Mr. C. Kevin Marshall, Jones Day. Stuart Taylor, Jr. served as the moderator.

Here is the video of the entire event.

On March 21, 2012, the Federalist Society and the American Enterprise Institute hosted a panel discussion on Jack Goldsmith's new book, Power and Constraint: The Accountable Presidency After 9/11.  The panelists were:

• Prof. Jack Goldsmith, Harvard Law School
• Prof. Neal Katyal, Georgetown University Law Center
• Ms. Dana Priest, The Washington Post
• Prof. Jeremy Rabkin, George Mason University School of Law

In this video, Goldsmith describes his book in brief.

In contrast to C. Kevin Marshall's comments at the FedSoc panel today on ObamaCare, in this video, former solicitor general Walter Dellinger explains what he sees as conservative case for the individual mandate.

Today the Federalist Society's Federalism & Separation of Powers Practice Group sponsored a panel discussion on "Obamacare in the Supreme Court." The panelists were: Prof. Randy E. Barnett, Georgetown University Law Center; Hon. Walter Dellinger, O'Melveny & Myers; Prof. Neal K. Katyal, Georgetown University Law Center; and Mr. C. Kevin Marshall, Jones Day. Stuart Taylor, Jr. served as the moderator.

In this video, Marshall sums up what he sees as the most powerful argument against the individual mandate in The Patient Protection and Affordable Care Act.

Continuting a national debate on voting rights, the Justice Department has blocked a Texas law requiring voters to show identification, The Washington Post reports:

For a video of the event, click here.

See also George Mason University Law professor Allison R. Hayward's 2008 FedSoc white paper, "State Voter ID Requirements and the Constitution."

Writing for The Atlantic, Senator Jim Cooper calls on Congress to repeal outdated laws and subsidies:

Would you be surprised to hear that our government is just like a middle-aged American who, having eaten fast food for decades, now faces heart trouble in his golden years? Aging nations have arteries clogged with obsolete laws, slowing blood flow and preventing oxygen from reaching all parts of the body politic. Physicians call this arteriosclerosis; historians see decline of empire.

It happens so slowly and naturally that no one notices. Legislators want to prove that they care about children, seniors, veterans, etc. by creating programs to benefit them. Elected officials are so busy campaigning that they (and their staffs) don't review the statute books to see which programs already exist. They certainly don't check to see which ones are working, and which are not. As a result, each new generation of politicians simply adds another layer of spending and bureaucracy.

Immortality awaits the legislator fortunate enough to have a significant law named after him. Think of Pell grants or Stafford loans for students, Sarbanes-Oxley to regulate Wall Street, or the Hyde Amendment on abortions.

Conversely, there's little or no reward in repealing laws, only the risk of offending people who benefit from the existing programs. Any politician who's ever been re-elected knows that friends come and go; enemies accumulate.

This is why there are dozens, sometimes hundreds of overlapping and duplicative programs for favored constituencies, as opposed to one or two programs that really deliver. This also explains why our laws are so complex that they are becoming almost impossible to understand.

A small but classic example from my jurisdiction on the House Armed Services Committee is the mohair subsidy, which originated post WWII out of concern about the future availability of wool for military uniforms. Today, more than a half century later -- when military uniforms are largely composed of synthetic material -- the program still benefits goat herders in Texas, now under the friendly jurisdiction of the Agriculture Committee.

At the 2011 FedSoc National Lawyers Convention, Judge Frank H. Easterbrook, Prof. William N. Eskridge, Jr., Phillip K. Howard, Prof. Thomas W. Merrill, and Judge Jeffrey S. Sutton participated in a panel discussion on a related issue, "A Federal Sunset Law."  Video of the event can be found here.

The Federalist Society presented its annual Paul M. Bator Award on Saturday, March 3rd, to Eugene Kontorovich, Professor at Northwestern University School of Law. The award was presented at the group's annual Student Symposium by Denny Ng, a University of Chicago Law School student who served on the selection committee. The Bator Award recognizes a young academic (under the age of forty) who has demonstrated excellence in legal scholarship, a commitment to teaching, a concern for students, and who has made a significant public impact.

Professor Kontorovich "epitomizes everything that this award is about," said Ng on behalf of the Federalist Society.  A prolific scholar, Kontorovich has published on wide-ranging topics including federal jurisdiction, constitutional law, law and economics, and international law.  His work has appeared not only in scholarly journals such as the Stanford Law Review and the American Journal of International Law, but also in the popular press in newspapers such as the New York Post and the Jerusalem Post.  His scholarship is also cited in important cases, especially in the fields of foreign relations and federal courts.  He is currently a member of the Institute for Advanced Study in Princeton, New Jersey, where he is writing a book, Justice at Sea: What Piracy Teaches About the State of International Law, under contract with Harvard University Press.

Ng noted that Professor Kontorovich is not only a prodigious scholar but also a dedicated teacher and mentor. "Current and former students describe him as engaging, brilliant, always accessible, shockingly honest, and the best teacher they've ever had."  Kontorovich, Ng emphasized, "has a passion not just for rigorous scholarship, but for crafting rigorous scholars.  He imbues that craft with a positive zeal."

Professor Kontorovich accepted the Bator Award with characteristic humility and good humor, downplaying his accomplishments and joking that he was merely being "pre-warded" for accomplishments yet to be achieved, a challenge that he would, however, aspire to meet.

Click here to view this article on the source site »

In a panel discussion at FedSoc’s 2012 annual Student Symposium, PayPal founder Peter Thiel and Facebook general counsel Ted Ullyot, among others, discussed the regulation of technology.

Thiel argued that due to increasing regulation, we are no longer living in a civilization of fast technological innovation.  He pointed to the slowing of innovation since the 1960s in virtually all areas, including transportation, energy, biotech, agro-tech, and pharma.  The two main exceptions to this decline are the fields of computers and finance.  His explanation for these exception is that they area areas that are or were lightly regulated.

Ullyot spoke about how difficult it would be to regulate computer technology that is rapidly evolving and being deployed.  He said, for instance, that there are “code pushes” at Facebook every day.  It is hard even for Facebook employees to understand everything that is going on, and it is harder still for would-be regulators.

As an example of obsolete technological regulation, he referred to the Video Privacy Protection Act (VPPA), which was passed in 1988 to prohibit "wrongful disclosure of video tape rental or sale records [or similar audio visual materials, to cover items such as video games and the future DVD format]."  The VPPA requires persons to give permission for the sharing of such at information at the time of each use of the information.  However, that becomes essentially impossible if such information is shared constantly on websites such as Facebook.  Under the wording of the law, a Facebook user’s general consent could never be sufficient.

Professor Michael McConnell of Stanford Law School spoke on the panel "Congress vs. Agencies: Balancing Checks and Efficiency: Gridlock, Organized Interests, and Regulatory Capture" on March 3rd at the Federalist Society's 2012 Annual Student Symposium at Stanford Law School. In this video, Professor McConnell was asked to describe what he thinks are the main problems with regulation today.

Today at the 2012 annual FedSoc Student Symposium, Professor Randy Barnett of Georgetown debated Professor Pamela Karlan of Stanford on the topic “The Constitutionality of the Affordable Care Act,” specifically the individual mandate.  Judge Sandra Ikuta moderated the debate, which was sponsored by the Templeton Foundation.

Before the official debate began, Barnett disclosed that but for the FedSoc Student Symposium he attended 25 years ago (which was at Stanford like the current conference), he might never have become a constitutional law professor.  At the time, he was a contracts professor and had zero interest in constitutional law; he had also never previously attended a FedSoc event.  However, he ended up speaking on the Ninth Amendment.  The positive response he received inspired to study other amendments, and eventually he became a full-fledged constitutional law professor.

In the debate itself, Barnett began by noting that since the Supreme Court has allotted six hours for oral argument—the most in 50 years—it strongly suggests that the objections to ObamaCare are not “frivolous.”  The Act, he claimed, is “literally unprecedented”; it has no equivalent in Commerce Clause jurisprudence.  He described the individual mandate as Congress claiming “the novel power to commandeer people to enter into contracts with private companies.”  He said that this claim of power is “uncabined”; the government has failed to identify any limiting principle on economic mandates.  He suggested that the widespread unpopularity of the mandate might encourage the Court to look more closely at the constitutional arguments against it.

Karlan responded by referring to a similar health care mandate that was proposed by a scholar at the Heritage Foundation in the 1990s.  She suggested that conservatives seem to have had a change of heart.  She claimed that the individual mandate was neither a radical redefinition of the government’s role nor of freedom generally.  As constitutional grounds for the mandate, she pointed to Article I, Sec. 8, which gives Congress the power to regulate commerce.  Referring to Samuel Johnson’s 1773 dictionary definition of “regulate,” she said that the term can mean prescription in addition to proscription.  The relevant constitutional question, she continued, is whether the Act is necessary and proper to the end of that regulation.  That’s a test of whether Congress had rational—not necessarily correct—grounds for the mandate.  To the often-made claim that Congress can’t force us to buy anything, including buying a car, she sardonically responded that Congress did in fact force us to buy a car via the bailout of General Motors—but we didn’t get the car.

The second day of FedSoc’s 2012 Annual Student Symposium began with a panel on "Congress vs. Agencies: Balancing Checks and Efficiency: Gridlock, Organized Interests, and Regulatory Capture."  Judge Lois Haight served as the moderator.

The general thesis of C. Boyden Gray’s presentation was that there has been too much delegation to agencies with not enough detail and oversight.  As a consequence of the unpredictability this has created, there has been reduced investment in the business world.  The Dodd-Frank bill is almost 2,000 long yet provides little guidance to regulators, he claimed.  Courts have been cut off from any review of agency decisions under Dodd-Frank, and even Congress has been effectively cut off since the regulators are funded internally.  “There are a lot of financial institutions that are terrified by Dodd-Frank,” he said, but finding private plaintiffs to challenge it has not been easy because they are intimidated by the government. 

Professor Lisa Heinzerling of Georgetown Law spoke next, questioning the very title of the Symposium, “Bureaucracy Unbound: Can Limited Government and the Administrative State Co-Exist?”  She suggested that a more accurate title would be “Bureaucracy Bound.”  Agencies are not free to roam at will, she claimed, but are constrained on all sides: by Congress, who pass highly prescriptive bills and hold numerous influential hearings with agency officials; by the White House, which uses the Office of Management and Budget to effectively kill agency rules it does not like; and courts, with their oversight authority as outlined in the Chevron Supreme Court case.

Professor Michael McConnell spoke on what he termed the “pathologies of the modern regulatory state” as predicted by James Madison.   The problem according to McConnell is not so much the amount of regulation as the mode of regulation—the vast number of perplexing incomprehensible laws coupled with broad administrative discretion as to individual cases.  He quoted Madison in Federalist 62: “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”  McConnell pointed to the number of pages in recent bills: Patriot Act (131 pages), Cap & Trade (1,428); Dodd-Frank (House version 1,616; Senate version 1,705); and the Affordable Care Act (House 2,012; Senate 906).  By contrast, the Banking Act of 1864 was just 29 pages, and the Federal Reserve Act of 1931 was 32 pages.

Not only is it impossible for the American people to monitor the content of the massive bills, even Congress cannot do so, said McConnell.  He quoted Senator Max Baucus:  “I don’t think you want me to waste my time to read every page of the health care bill. You know why? It’s statutory language. . . .We hire experts.”  The people who benefit from such lengthy and complex bills, McConnell argued, are lobbyists and lawyers, particularly the big law firms.  Furthermore, such regulation of business works to the advantage to the larger players, who can better absorb the deadweight costs than small upstart competitors.  This is why big business sometimes acquiesces to such regulation under the cover of being good public servants.