Federalist Society’s second annual Executive Branch Review Conference

Jonathan blogged about this conference last week, but I wanted to mention it in a bit more detail, since the conference looks superb — and free (or $50, if you want the up to 4 Continuing Legal Education credits that are available). It’s May 7 from to 9 a.m. to 3 p.m. at the Mayflower Hotel, and has panels on:

  1. Suspension of Laws: What are the Limits of Executive Authority?
    From enforcing and defending the Defense of Marriage Act, implementing the Affordable Care Act, enforcing federal marijuana laws, to making changes to sentencing guidelines, the Executive Branch has chosen less than vigorous action. What are the limits on the Executive’s authority to defer? When may, and may not, the Executive choose not to act, or to act less vigorously, and still meet the requirements of the Take Care Clause?
  2. Policy without Process?
    The Administrative Procedure Act (APA) defines the process by which federal regulatory agencies are to adopt and enforce federal regulations. Many commentators, however, argue that the federal government has for years engaged in the practice of implementing and enforcing policy while evading the notice and comment requirements of the APA. Critics site informal agency guidance, opinion letters, regional office actions, and other agency actions that purport to bind at least some stakeholders. What are the limits? How real are other commentators complaints about the “sue and settle” phenomenon, described as a less-than-adversarial suit brought against, for example, the Environmental Protection Agency (EPA). Such a suit, it is claimed, argues for an expansion or broader reading of the EPA’s regulatory authority which, after resolution of the suit via settlement, is agreed to by all parties. Finally, what are the limits of unilateral action by a President via executive order?
  3. Disparate Impact Analysis.
    Under disparate impact analysis, certain practices might be considered discriminatory if they have a disproportionate adverse impact on a protected class of persons, even without discriminatory intent. A number of commentators have noted an expansion of the use of disparate impact analysis in the federal government to areas other than employment, now including education, housing, government contracting, and auto financing, to name a few. Our panel of experts will discuss whether or not there has been such an increase, and, if so, what the ramifications might be.
  4. The Internal Revenue Service.
    The Internal Revenue Service (IRS) is in the headlines almost daily. This panel will discuss the IRS’s proposed revision to 501(c)(4) rules, the targeting of certain organizations in IRS review and approval processes, as well as the IRS’s determination, currently the subject of litigation, that individuals who participate in federally-run as well as state-run health care exchanges established under the Affordable Care Act are entitled to subsidies.
  5. The Contraceptive Mandate.
    Religion has long had a special place in our society and in the Constitution. Has that place been evolving? If so, how? What does the Constitution say about the role of the federal government, and the Executive Branch in particular, in the realm of religious liberties? This panel will take up such issues as the HHS contraceptive mandate, the U.S. Solicitor General’s positions in religious freedom cases, and other statutory and regulatory matters that have come to the forefront in recent years.
  6. Executive Power and the Role of the Coordinate Branches. What are the duties and responsibilities of the Legislative and Judicial Branch in policing Executive Branch activities? Has the administrative state grown to an extent that the very balance of power between the three branches has changed, and have the coordinate branches taken a step back? When it comes to the separation of powers, and ensuring one branch does not encroach on the proper authority of another, Federalist 51 advises that, “Ambition must be made to counteract ambition.” Should Congress provide more robust oversight, or use its power of the purse more readily to rein in the Executive? Has the judiciary, through the non-delegation doctrine, Chevron deference, and its recent City of Arlington decision, struck the right balance? These and other questions will be addressed by our panelists.

As is the norm with Federalist Society conferences, there will be both conservative/libertarian panelists and liberal panelists on each panel (for instance, Georgetown Prof. Marty Lederman and Yale Prof. Bill Eskridge). Our own Jonathan Adler and Nick Rosenkranz will be among the panelists, Sen. Ted Cruz will give the closing keynote address, and Rep. Tom Cotton and former Rep. David McIntosh will introduce the program. Sounds like an excellent event.

Disclosure: I’ve been a member of the Federalist Society for over 25 years (since before I even went to law school), I’m involved with the Federalist Society’s Free Speech & Election Law Practice Group, and I often give talks (which generally come with honoraria) at Federalist Society local chapters. I don’t think this level of disclosure is strictly necessary in these circumstances, but I thought that I’d mention it just for the sake of maximum information.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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