FedSoc Blog

Opening Remarks for the Federalist Society’s Teleforum on the Contraceptive Mandate

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by Publius
Posted March 20, 2014, 3:09 PM

Stephen Bainbridge, William D. Warren Professor at UCLA Law School, published the opening remarks he delivered yesterday in a FedSoc teleforum on The Contraceptive Mandate in the Supreme Court: Sebelius v. Hobby Lobby Stores, Inc.:

My interest in the Hobby Lobby case was piqued by a telling colloquy between U.S. District Court Judge Reggie Walton and U.S. Department of Justice lawyer Benjamin Berwick in the Tyndale House Publishers, Inc. v. Sebelius case, which raised essentially the same issues as Hobby Lobby.

Berwick argued that employers who chose to incorporate their business are precluded from raising First Amendment free exercise of religion-based objections to regulations affecting their business. In response, Judge Walton posed the following hypothetical:

[M]y wife has a medical practice. She has a corporation, but she’s the sole owner and sole stock owner. If she had strongly-held religious belief and she made that known that she operated her medical practice from that perspective, could she be required to pay for these types of items if she felt that that was causing her to violate her religious beliefs?

Berwick replied that the corporation and its shareholders are separate legal persons. The judge thereupon summarized his understanding of the government’s position as being that his wife would “have to go as an individual proprietor with no corporation protection in order to assert her religious right.” Berwick did not contest that characterization.

In effect, Berwick wanted the judge to elevate form over substance. The problem is that he failed to explain why form ought to prevail over substance in this case, where allowing it do so would defeat basic rights to freely exercise one's religious beliefs.

In my article, Using Reverse Veil Piercing to Vindicate the Free Exercise Rights of Incorporated Employers, which appeared in The Green Bag journal and is available on line, I proposed that the Supreme Court use reverse veil piercing to avoid putting form over substance.

Reverse veil piercing is a corporate law doctrine pursuant to which a court disregards the corporation’s separate legal personality, allowing the shareholder to claim benefits otherwise available only to individuals.

Invoking reverse veil piercing in the mandate cases would not be outcome determinative. Instead, it would simply provide a coherent doctrinal framework for determining whether the corporation is so intertwined with the religious beliefs of its shareholders that the corporation should be allowed standing to bring the case.

Specifically, I propose that the Supreme Court adopt a three-pronged test for deciding whether the shareholders of Hobby Lobby and Conestoga Wood be allowed to bring their claims:

1. Is there such substantial identity of the shareholder(s)’s religious beliefs and the manner in which the corporation is operated and the purposes to which it is devoted that the corporation is effectively the shareholder’s alter ego?

2. How strong is the government’s interest in ensuring that the corporation’s employees get the mandated insurance coverage?

3. Would reverse piercing this corporation’s veil advance significant public policies?

In my view, all three prongs are satisfied here. . . .

Obama’s Recess Appointments: Supreme Court to Hear Landmark Case Today

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by Publius
Posted January 13, 2014, 10:13 AM

The Christian Science Monity reports:

The US Supreme Court on Monday takes up a potential landmark case examining whether President Obama overstepped his authority when he unilaterally declared that the Senate was in recess and appointed three new members to the National Labor Relations Board.

The Constitution assigns to the president the power to appoint judges and officers of the United States, but it requires him to act with the “advice and consent” of the Senate.

There is an exception. The Constitution also provides that the president “shall have power to fill up all vacancies that may happen during the recess of the Senate.” Such “recess appointments” can take place without obtaining the advice and consent of the Senate.

It is this recess appointment power that lies at the center of the historic showdown on Monday at the high court.

RECOMMENDED: How much do you know about the US Constitution? A quiz.

On one side of the issue, the Obama administration argues it has the power to decide for itself when the Senate is in recess for purposes of making recess appointments.

On the other side, administration critics argue that President Obama’s expansive view of his own authority would “yield a virtually unlimited unilateral appointments power.”

The case arises at a time of extreme partisan differences in Congress that have made it increasingly difficult for President Obama to fill vacant posts in his administration. Obstructionist tactics by Republicans are not new. The same tactics were used by Democrats – including then-Senator Obama – to block or delay appointments by President Bush.

But President Bush never sought to make recess appointments during pro forma Senate sessions. That action by President Obama marks a new level of executive defiance of the Senate.

To some extent the urgency of the case has dissipated following the recent decision by Senate Democrats to invoke the so-called nuclear option – changing the Senate rules to permit approval of presidential appointments by majority vote rather than 60. The action undercut the ability of the Republican minority to block Obama appointments.

But it does nothing to resolve the more fundamental questions involving the balance of power among the executive, legislative, and judicial branches of government.

The high court case will require the justices not just to examine the contemporary practice of recess appointments, but to also weigh why the procedure was written into the Constitution and how the founding generation wielded that authority.

“None of the first four presidents of the United States – founders and framers all – adopted the Executive’s interpretation, even though it would have expanded their power,” wrote Noel Francisco, a Washington appellate lawyer, in his brief challenging President Obama’s recess appointments.

“That is far more persuasive evidence than decades-later, self-serving executive opinions,” he said. . . .

Today the Federalist Society's Labor & Employment Law Practice Group will be hosting a Courthouse Steps Teleforum on the case. Speaking will be of John Elwood Vinson & Elkins. FedSoc members can join the call here.

Teleforum Tomorrow: A Conversation with Federal Trade Commissioner Maureen Ohlhausen

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by Publius
Posted December 16, 2013, 11:24 AM

Maureen K. Ohlhausen was nominated to the Federal Trade Commission by President Barack Obama and, on March 29, 2012, was confirmed unanimously by the United States Senate. She will be participate in a Teleforum on the FTC’s activities in the area of consumer privacy, including recent revisions to the Children’s Online Privacy Protection Act (COPPA) Rule.

The rise of sophisticated technologies over the last few years has allowed websites and other online entities to gather and distill large amounts of data about particular internet users. Although there are many efficiency gains from this activity, such as the development of new services and better-targeted advertising, people have also become concerned about possible invasions of privacy from monitoring an individual’s internet activity. Recognizing that children’s online privacy is an especially sensitive area, COPPA prohibits an operator of a website or online service that is directed to children, or who has actual knowledge that it is gathering personal information from a child, from collecting such information without providing notice of its data collection and obtaining verifiable parental consent for it. The FTC recently expanded the COPPA Rule’s coverage to include more types of personal information, such as IP addresses, and to expand the definition of an operator to reach entities that do not collect or use children’s information. Commissioner Ohlhausen will address how she seeks to balance the FTC’s mandate under Section 5 of the FTC Act to protect consumers against unfair or deceptive acts with the legitimate rights of business to gather and use information for commercial purposes and why she dissented from the FTC’s revision to the COPPA Rule.

Featuring:

  • Maureen Ohlhausen, Commissioner, Federal Trade Commission


Agenda:

Call begins at 1:00 p.m. ET on December 17, 2013.

Registration details:

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Obama Pollution Rules Face Showdowns Tomorrow in Supreme Court, D.C. Circuit

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by Publius
Posted December 09, 2013, 4:52 PM

According to Greenwire:

The Obama administration's efforts to clean up air pollution go on trial tomorrow, as the Supreme Court and a federal appeals court review two landmark rules from President Obama's first term.

In one of the most high-profile environmental cases of the Supreme Court term, the justices will consider U.S. EPA's 2011 rule for air pollution that drifts across states lines. The agency asked the court to take the case after the U.S. Court of Appeals for the District of Columbia Circuit struck the rule down in August 2012.

The D.C. Circuit, meanwhile, will hear a broad challenge from industry groups and several states to EPA's December 2011 mercury and air toxics standards for power plants.

"It's a very important day for EPA and also for the energy sector," said Jacob Hollinger of McDermott Will & Emery, a former EPA air attorney. "Both rules have important implications for power generation. It matters for everyone."

The Supreme Court case centers on EPA's implementation of the Clean Air Act's "good neighbor" provision, which allows the agency to regulate pollutants from one state that "contribute significantly" to violations of air standards in adjacent states for ozone-forming pollutants -- such as sulfur dioxide and nitrogen oxide -- and fine particles, or soot.

Many Eastern states -- including New York, Maryland and Connecticut -- suffer dirty air that drifts in from the Midwest. With the Supreme Court case highlighting the issue this week, eight Northeastern governors today also petitioned EPA to do more to crack down on pollution coming from Appalachia (see related story).

In July 2011, EPA issued the Cross-State Air Pollution Rule, or CSAPR, a regulatory regime that applies to 28 Eastern states. The regulations called for upwind states to cut emissions of ozone-forming gases by installing pollution controls or shutting down power plants.

However, determining where pollution comes from is a murky issue, and industry and several upwind states quickly challenged the regulations and the economic burden they would create.

EPA described in court documents its struggle to curb cross-state pollution.

"In short, at least in the eastern half of the United States," the agency wrote, "the interstate pollution problem is best understood as a dense, spaghetti-like matrix of overlapping upwind/downwind 'linkages' among many states, rather than a neater and more limited set of linkages among just a few." . . .

Tomorrow at 1 pm, the Federalist Society will be hosting a courthouse steps teleforum on the Supreme Court case. Speaking will be Mark DeLaquil, a partner at Baker & Hostetler LLP. FedSoc members can join the call here.

During FedSoc Teleforum, Sen. Mike Lee Says Failure to Raise Debt Ceiling Need Not Cause Default

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by Publius
Posted October 15, 2013, 10:20 AM

The Washington Examiner reports on a Federalist Society Teleforum, a recording to which you can listen to here:

Sen. Mike Lee, R-Utah, claimed that failing to raise the debt ceiling would not automatically lead to the U.S. defaulting on its obligations -- at least not in the short term.

But it would require the government to "prioritize" its debt payments, he said, during a conference call hosted by the conservative Federalist Society.

It ... is important to recognize -- at least, as I see it -- that failing to raise the debt limit does not in and f of itself amount to, or inevitably result in, a default. A default literally means that the federal government is not paying what it owes on its debt as sums become owing and due.

It is important to remember that we bring in a little bit over $3 trillion in revenue a year. That is about what we bring into the federal government from taxes and other revenues sources. Our interest on our national debt right now is about $237 billion a year. So, we have far more than enough revenue coming in the door to make sure we pay the interest of our debt as it becomes due.

So the question is not whether we would immediately stumble into a default the minute we fail to raise the debt limit as soon as borrowing authority and extraordinary measures are exhausted. The question is, what kind of prioritization technique would be in place? What would the president do to prioritize payment of interest as it becomes due on our national debt?

Lee said the 14th amendment to the Constitution prevents the U.S. from going to default. He pointed to Section 4, which states: "The validity of the public debt of the United States ... shall not be questioned."

He suggested that Congress should pass legislation to clarify that, in the event of a debt limit-induced revenue shortfall, the president be required to pay for the interest on the debt first before funding anything else.

The legislation "could lay out additional prioritization beyond that," he added. "I think that is something we should do right away."

Teleforum Tomorrow 12/11: Cybersecurity and “Hacking Back”

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by Publius
Posted December 10, 2012, 1:27 PM

Tomorrow, December 12, 2012, FedSoc's Criminal Law and Procedure Practice Group is hosting a Teleforum on cybersecurity. Here are the details:

Start : Tuesday, December 11, 2012 2:00 PM

End   : Tuesday, December 11, 2012 3:00 PM

 

Computer hacking is a large and growing problem, with no signs of abating as the world continues to modernize.  Static defenses like firewalls and encryption are helpful but not foolproof.  Experts seem to disagree as to whether the Computer Fraud and Abuse Act of 1996 permits a hacked individual or entity to “hack back,” that is, go on the offense and attack the attacking computer.  The Department of Justice has taken the position that hacking back itself violates the law, while some notable experts assert that hacking back in self defense is permissible.  Join our experts as they discuss the legal limits.

Featuring:

  • Hon. Stewart A. Baker, Steptoe & Johnson LLP and former Assistant U.S. Secretary for Policy, U.S. Department of Homeland Security
  • Mr. Prof. Orin S. Kerr, The George Washington University Law School

Agenda:

Call begins at 2:00 p.m. Eastern Time.

Registration details:

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

 

Categories: Teleforum, Upcoming Events

Teleforum Tomorrow 9/25: Free Speech, International Law, & Violence Against U.S. Diplomatic Missions

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by Publius
Posted September 24, 2012, 4:15 PM

UPDATE: This teleforum has been postponed.

Tomorrow September 2th, FedSoc's International & National Security Law Practice Group and the Free Speech & Election Law Practice Group is sponsoring a teleforum on "Free Speech, International Law, and the Impact of Violence Against U.S. Diplomatic Missions Abroad."

Since a recent series of riots and violent attacks, the U.S. has shut down some of its embassies and consulates in the Middle East.  The worst of these attacks resulted in the death of U.S. Ambassador to Libya Christopher Stevens and three other Americans.  Many, including members of the U.S. government, have blamed the attacks on a film made by a U.S. filmmaker, for which a trailer was posted on YouTube.  Should the violent reaction to a U.S. film cause us to rethink the nature of free speech protections for hate speech in the U.S.?  Should the U.S. government more aggressively defend the free speech protections under the U.S. Constitution in the global community?

Here are the details for the call:

Start : Tuesday, September 25, 2012 12:00 PM

End   : Tuesday, September 25, 2012 1:00 PM

Featuring:

    Prof. Julian Ku, Professor of Law and Faculty Director of International Programs, Hofstra University School of Law
    Prof. Peter J. Spiro, Charles R. Weiner Professor of Law, Temple University Beasley School of Law

Agenda: Call begins at 12:00 noon Eastern Time.

Registration details: Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Categories: Teleforum, Upcoming Events

FedSoc Teleforum 9/6 on Bickel’s “The Least Dangerous Branch”: Still Relevant 50 Years Later?

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by Publius
Posted September 05, 2012, 10:12 AM

In a recent SCOTUSblog symposium marking the 50th anniversary of the publication of Alexander Bickel's The Least Dangerous BranchRoger Pilon argued that the twin themes that emerged from that important volume -- the "countermajoritarian difficulty" and the "passive virtues" -- were especially influential in shaping the constitutional thought of Bickel's colleague, Robert Bork. Whatever their differences, Bork subsequently became seminal figure in shaping the modern conservative legal movement, especially through the Federalist Society. But those ideas led also to a response within that movement from libertarians concerned as much about the "majoritarian difficulty," all of which has led to a spirited debate on the Right over the nation's "First Principles." Contributing also to the SCOTUSblog symposium, Adam J. White noted the Madisonian and Burkean elements in Bickel's writings. Drawing on what he sees as Bickel's "principled prudence," he cautioned "not to press the Court to recognize rights divorced from principles rooted in national experience," thus affording us a good contrast for the discussion at hand.

FedSoc's Federalism & Separation of Powers Practice Group invites you to join a teleforum on the subject "The Least Dangerous Branch: Still Relevant, 50 Years Later?"  Here are the details: 

Start : Thursday, September 6, 2012 2:00 PM

End   : Thursday, September 6, 2012 3:00 PM

Featuring:

Agenda: Call begins at 2:00 p.m. Eastern Time.

Registration details: Teleforum calls are open only dues paying members of the Federalist Society. To become a member, sign up here.

Categories: Teleforum, Upcoming Events

FedSoc Teleforum Tomorrow 8/24 on Natural Law

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by Publius
Posted August 23, 2012, 9:33 AM

Professor Hadley P. Arkes' book, Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law, stands against the current of judgments long settled in the legal academy in regard to classic cases such as Lochner v. New York, Near v. Minnesota, New York Times Co. v. United States (the Pentagon Papers case), and Bob Jones University v. United States.  Arkes takes concepts long regarded as settled principles in our law--"prior restraints," ex post facto laws--and he shows that there is actually a mystery about them, that their meaning is not as settled or clear as we have long supposed. Those mysteries have often given rise to illusions or at least a series of puzzles in our law.  They have at times acted as a lens through which we view the landscape of the law.  We often see what the lens has accustomed us to seeing, instead of seeing what is actually there.  Arkes tries to show that the logic of the natural law provides the key to this chain of puzzles, after which he will answer questions from our audience.

Tomorrow August 24, 2012, FedSoc's Religious Liberties Practice Group is hosting a teleforum with Arkes about his book.

Agenda: Call begins at 2:00 p.m. Eastern Time.

Registration details:  Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Categories: Teleforum

FedSoc Teleforum Tomorrow 7/17 - Randy Barnett on Obamacare

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by Publius
Posted July 16, 2012, 3:50 PM

With several weeks time to reflect on the U.S. Supreme Court's health care case, Professor Randy Barnett will discuss the commerce clause, tax power and Medicaid decisions, and their implications. 

Featuring:

Agenda:

Call begins at 2:00 p.m. Eastern Time.

Registration details:

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Categories: Teleforum, Upcoming Events

David Rivkin on the Health Care Decision NFIB v. Sebelius – Podcast

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by Publius
Posted June 28, 2012, 5:58 PM

Listen to the audio here.

In the health care case NFIB v. Sebelius, the Supreme Court determined that the individual mandate exceeds the Commerce Clause power of Congress, but can be upheld under the taxing power. The Medicaid expansion provision was upheld, but the Court ruled that Congress could not take back Medicaid funds from states that decide to not participate in the expansion. In this recorded Teleforum, David Rivkin, the litigator who began this important case by filing the lawsuit in federal district court on behalf of numerous states and the NFIB, explains the decision and the dissents.

Featuring:

You can listen to the Teleforum here.

Categories: Teleforum

FedSoc Teleforum on Health Care Decision with David Rivkin Today 6/28

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by Publius
Posted June 28, 2012, 12:28 PM

Today at 4 pm ET the Federalist Society's Federalism & Separation of Powers Practice Group will be hosting a Teleforum on the Obamacare decision.

NFIB v Sebelius, the health care case, has been decided by the U.S. Supreme Court.  The Court has determined that the individual mandate exceeds the Commerce Clause power of Congress, but can be upheld under the taxing power.  The Medicaid expansion provision was upheld, but the Court ruled that Congress could not take back Medicaid funds from states that decide to not participate in the expansion.  Join us as David Rivkin, the litigator who began this important case by filing the lawsuit in federal district court on behalf of numerous states and the NFIB, explains the decision and the dissents.

Registration details:

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Categories: Teleforum, Upcoming Events

Teleforum Tomorrow 6/25 on “Arizona v. United States: Enforcing Immigration Laws”

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by Publius
Posted June 25, 2012, 4:32 PM

This week, the U.S. Supreme Court handed down its decision in the highly anticipated immigration case, Arizona v. U.S. The Court’s decision was split, striking down some sections of Arizona’s law, but upholding others. Our experts will provide information the future of immigration law enforcement and the division of authority between the Federal and state governments.

Tomorrow June 25, FedSoc's Civil Rights Practice Group will be hosting a teleforum on the case. 

Featuring:


Agenda:

Call begins at 1:00 p.m. Eastern Time.

Registration details:

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Categories: Teleforum, Upcoming Events

Teleforum Tomorrow 6/22 on “The New Rule on Union Dues: Knox v. SEIU”

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by Publius
Posted June 21, 2012, 5:20 PM

Tomorrow June 22 at 1 pm ET, FedSoc's Labor & Employment Law Practice Group is hosting a teleforum on "The New Rule on Union Dues: Knox v. SEIU."  Speaking will be Dominic F. Parella and W. James Young.

This week the United States Supreme Court announced its decision in Knox v. Service Employees International Union, reversing the Ninth Circuit 7-2. The case concerns a union special assessment for a "Political Fight Back Fund" that nonmember California state employees were required to pay as a condition of employment. The Court held 5-4, in a majority opinion written by Justice Alito, that "when a public sector union imposes a special assessment or dues increase, the union must provide [a notice of the purpose of the assessment or increase] and may not exact any funds from nonmembers without their affirmative consent." The Court also held that the union could not constitutionally charge the nonmembers for its expenses opposing ballot questions even if they "may be said to have an effect on present and future contracts between public-sector workers and their employers." Justice Sotomayor, joined by Justice Ginsburg, concurred in the judgment, but agreed only that "[w]hen a public-sector union imposes a special assessment intended to fund solely political lobbying efforts, the First Amendment requires that the union provide nonmembers an opportunity to opt out of the contribution of funds." Justices Breyer and Kagan dissented. Our experts will discuss the ramifications of the case.

Registration details:

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Categories: Teleforum

Catholic University Files Suit to Block HHS Mandate

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by Justin Shubow
Posted May 21, 2012, 12:55 PM

According to the university's press release:

Today The Catholic University of America joined a lawsuit to block implementation of the mandate by the Department of Health and Human Services that would require it to provide health insurance coverage for surgical sterilization, prescription contraceptives, and drugs that cause early stage abortions.

The Jones Day law firm has filed the suit in the United States District Court for the District of Columbia on behalf of The Catholic University of America, the Archdiocese of Washington, the Consortium of Catholic Academies, Archbishop Carroll High School, and Catholic Charities of D.C. (For a complete list of the plaintiffs, click here.)

President John Garvey issued the following statement:

On August 1, 2011, the Department of Health and Human Services (HHS) proposed a rule requiring most health insurance plans to cover, at no added cost to subscribers, sterilization procedures and prescription contraceptives, including pills that act after fertilization to induce abortions. The rule included an exemption for “religious employers,” but that term is defined so narrowly that it excludes Catholic universities and most other Catholic institutions.

Tomorrow, the Federalist Society's Religious Liberties Practice Group will be holding a teleforum on the very same issue.

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