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Following the Supreme Court’s decision in Dobbs v. Jackson Women's Health Organization, the Biden administration filed a lawsuit in a federal district court in Idaho, arguing that the Emergency Medical Treatment and Labor Act (EMTALA) preempts a state law that restricts abortion in all but limited circumstances. The district court sided with the Biden administration and issued a preliminary injunction on Idaho’s law. On June 27th, 2024, the Supreme Court (6-3) dismissed the writ of certiorari as improvidently granted instead of determining the statutory interpretation question. It vacated its earlier stay of the district court’s preliminary injunction against Idaho’s abortion law.
Join Erin Hawley, Senior Counsel and Vice President of the Center for Life & Regulatory Practice at Alliance Defending Freedom, for a breakdown of this decision and its implications on the legal issues surrounding abortion in the post-Roe era.
Featuring:
Erin M. Hawley, Senior Counsel, Vice President of Center for Life & Regulatory Practice, Alliance Defending Freedom -
On June 27, 2024, the U.S. Supreme Court issued their opinion in SEC v. Jarkesy. The following three questions were presented in this case – (1) Whether statutory provisions that empower the Securities and Exchange Commission (SEC) to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment; (2) Whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine; (3) Whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection.
The Court held, in a 6-3 decision, that when the Securities and Exchange Commission seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial.
Please join us in discussing the decision and its future implications.
Featuring:
Devin Watkins, Attorney, Competitive Enterprise Institute
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The marked inflation of food pricing is apparent upon any trip to the grocery store. Can new regulations aimed at governing the relationship between farmers and the corporations to which they sell their livestock help bring food prices down while allowing farmers to earn more for their labor? The Biden Administration has issued four regulations that aim to (1) prohibit certain previously common contractual terms between farmers and the purchasers of their livestock, (2) allow farmers to use an antitrust statute to assert claims of racial and other types of discrimination, and (3) allow farmers in general to more easily sue meat processors with claims of unfair competition. Are these new regulations legally sound, and will they work to bring down food prices? Join Minnesota Congressman Brad Finstad, Farm Action's Joe Maxwell, and the North American Meat Institute's Mark Dopp in a panel moderated by Judge Stephen Alexander Vaden as they debate these questions.
Featuring:
Mark Dopp, Chief Operating Officer and General Counsel, North American Meat Institute
U.S. Congressman Brad Finstad, (MN-01)
Joe Maxwell, President, Board of Directors, Farm Action
(Moderator) Hon. Stephen Alexander Vaden, Judge, United States Court of International Trade -
Two cases involving NetChoice, a company that represents social media giants like Facebook, Twitter, Google, and TikTok, were heard and decided by the Supreme Court this term. Both cases concern issues of free speech and social media platforms.
In Moody v. NetChoice, LLC, NetChoice challenged Florida law S.B. 7072, arguing it violates the social media companies’ right to free speech and that the law was preempted by federal law. In NetChoice, LLC v. Paxton, NetChoice challenged the constitutionality of two sections of Texas law HB 20 (sections 7 and 2) that aims to regulate the content restrictions of large social media platforms. While the U.S. Court of Appeals for the Eleventh Circuit ruled against Florida, the Fifth Circuit ruled in favor of Texas, creating a Circuit split. In light of that split the Supreme Court granted cert and heard oral argument in both cases on February 26, 2024. On July 1, 2024, a 9-0 court released its decision vacating both judgments based on a lack of "proper analysis of the facial First Amendment challenges" and remanding them for reconsideration.
Join us for a Courthouse Steps Decision program, where we will analyze this decision and its possible ramifications.
Featuring:
Allison R. Hayward, Independent Analyst -
On July 1, 2024, the U.S. Supreme Court issued their opinion in Corner Post, Inc. v. Board of Governors of the Federal Reserve System. The case asked whether a plaintiff’s Administrative Procedure Act (APA) claim “first accrues” under 28 U.S.C. § 2401(a)—the six-year default federal statute of limitations—when an agency issues a rule or when the rule first causes a plaintiff to “suffer legal wrong” or “be adversely affected or aggrieved,” 5 U.S.C. § 702.
Petitioner Corner Post is a North Dakota convenience store and truck stop that sought to challenge a 2011 Federal Reserve rule governing certain fees for debit card transactions. Corner Post didn’t open its doors until 2018 but the lower courts in this case held that its challenge is time barred because the statute of limitations ran in 2017—before Corner Post accepted its first debit card payment.
This 6-3 decision held that a claim under the APA does not accrue for purposes of the six-year statute of limitations until the plaintiff is injured by final agency action.
Please join us as we discuss the case and decision recently released by the Court.
Featuring:
Molly Nixon, Attorney, Pacific Legal Foundation
Moderator: Prof. John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law
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Fischer v. United States concerned whether to prove a violation of 18 U.S.C. § 1512(c)(2) — a provision of the Sarbanes-Oxley Act — the government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so.
Petitioners in the case were Joseph Fischer, Edward Lang, and Garret Miller, who were involved with the events of January 6, 2021, at the U.S. Capitol. Based on their actions that day they were charged with a variety of charges including one count of Obstruction of an Official Proceeding under 18 U.S.C. §1512(c)(2). Appellees did not contest the other charges but moved to dismiss the charge mentioned above, arguing §1512 (c) is ambiguous concerning (c)(2) and (c)(1). The district court agreed. Upon appeal, the D.C. Court of Appeals reversed the lower court’s decision. The Supreme Court granted cert and heard oral arguments on April 16, 2024. A 6-3 Court, with Chief Justice Roberts writing for the majority, released its opinion on June 28, 2024. Justice Jackson filed a concurring opinion and Justice Barrett filed a dissenting opinion, in which Justices Sotomayor and Kagan joined.
Join us for a Courthouse Steps Decision program, where we will analyze this decision and its possible ramifications.
Featuring:
Theodore Cooperstein, Appellate Counsel, Theodore Cooperstein PLLC -
City of Grants Pass, Oregon v. Johnson raised the question of whether the sections of the Grants Pass Municipal Code which prohibit sleeping/camping on public property like parks and streets constitute "cruel and unusual punishment" as prohibited by the Eighth Amendment. The codes in question only impose civil penalties, which can, in certain circumstances develop into criminal penalties. After the Ninth Circuit's 2022 decision holding that the codes violated the Eighth Amendment, the Supreme Court granted cert, and oral argument was heard on April 22, 2024.
On June 28, 2024 a 6-3 Court issued its decision, reversing the Ninth Circuit. Join us for a Courthouse Steps program where we break down and analyze the decision of this interesting case at the intersection of Criminal Law, Federalism and Separation of Powers, and Property rights.
Featuring:
Vikrant P. Reddy, Senior Fellow, Stand Together Trust -
Chevron v. NRDC (1984) and subsequent precedents held that courts should defer to agency interpretations of ambiguous statutes. This “Chevron Deference” has been a topic of great debate, with many calling for it to be overturned, while others argue it is a vital part of how Courts address the complexity of law and agency actions.
In two cases this term (Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce) the Court considered challenges to that precedent. Oral argument was heard in both cases on January 17th, 2024.
On June 28, 2024, a 6-3 Court issued its decision overturning Chevron, in a decision that may notably change the nature of the administrative state and the role of judges in reviewing agency actions moving forward.
Join us for a courthouse steps program where we will discuss and break down the decision and the potential future impacts of this sea change in administrative law.
Featuring:
Prof. Ronald M. Levin, William R. Orthwein Distinguished Professor of Law, Washington University in St. Louis School of Law
John J. Vecchione, Senior Litigation Counsel, New Civil Liberties Alliance
(Moderator) Prof. Kristin E. Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School -
Congress’s impeachment power has been used dozens of times since the republic’s founding, mostly for relatively low- and mid-level executive and judicial officers involving clear instances of bribery or other felonies. Its attempted use to remove Supreme Court justices, presidents, and now cabinet secretaries is more controversial, and since the 1990s, in arguably partisan or overtly political ways. The impeachment inquiry into President Biden and the House vote to impeach Homeland Security Department Secretary Mayorkas (which recently failed a snap Senate vote) may be seen as tit-for-tat for the two impeachment trials of President Trump. Is that a false equivalence? Regardless of who threw the first partisan stone, are recent uses of the Impeachment power a good development or arguable abuses? What does it portend for the future? Our distinguished panel of scholars will discuss the power itself, recent impeachment proceedings, and the potential implications for the future.
Featuring:
Prof. Michael J. Gerhardt, Burton Craige Distinguished Professor of Jurisprudence, UNC School of Law
Prof. Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University
(Moderator) Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University -
In November 2022, the Alliance Defending Freedom (ADF) filed a federal lawsuit in the U.S. District Court for the Northern District of Texas, Amarillo Division, against the United States Food and Drug Administration (FDA) on behalf of the Alliance of Hippocratic Medicine (AHM) and others.
The suit challenged the FDA’s 2000 decision to legalize mifepristone and misoprostol, two drugs often used in conjunction as chemical abortifacients, and regulation of the drugs thereafter. The case rose through the Fifth Circuit, which ruled in favor of AHM. The Supreme Court granted cert, heard Oral Argument on March 26, 2024, and on June 13, 2024, issued a 9-0 decision holding the plaintiffs lacked standing to challenge the FDA.
Join us for a Courthouse Steps Decision program, where we will analyze this decision and its possible ramifications.
Featuring:
Adam Unikowsky, Partner, Jenner & Block LLP
Megan M. Wold, Partner, Cooper & Kirk
(Moderator) Prof. Teresa Stanton Collett, Professor and Director, Prolife Center, University of St. Thomas School of Law -
United States v. Rahimi raised the question of whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic violence restraining orders, violates the Second Amendment on its face.
Zackey Rahimi was found in possession of a rifle and pistol while subject to a domestic violence restraining order after the alleged assault of his former girlfriend, a protective order that specifically barred him from possessing a firearm. He was indicted under 18 U.S.C. § 922(g)(8) (a federal statute that makes it illegal for those who are subject to domestic violence restraining orders to possess a firearm).
Rahimi challenged that indictment, arguing the law is facially unconstitutional and violates the Second Amendment. Initially, both the federal district court and the U.S. Court of Appeals for the Fifth Circuit upheld the law, but, following the Supreme Court's decision in NYSRPA v. Bruen, the Fifth Circuit reversed and vacated Rahimi's conviction. The decision was appealed and the Court heard oral argument in the case on November 7, 2023.
On June 21, 2024, the Court issued its decision, reversing the Fifth Circuit in an 8-1 decision.
Join us for a Courthouse Steps Decision program, where we will analyze this decision and its possible ramifications.
Featuring:
Mark W. Smith, Senior Fellow, Ave Maria School of Law, and Host of the Four Boxes Diner Second Amendment Channel -
The Fearless Fund ran the “Strivers Grant Contest,” which awards $20,000 and other benefits “only to black females.” Last year, the American Alliance for Equal Rights sued Fearless, claiming its racially discriminatory contest violated 42 U.S.C. §1981, which prohibits private parties from discriminating on the basis of race when making or enforcing contracts. Fearless raised several arguments in reply—claiming, for instance, that the Alliance didn’t have standing and that the contest was a valid “affirmative action” program—but it also raised a First Amendment defense. According to Fearless, its discriminatory contest was really an act of “expressive association.” Although the Supreme Court rejected that argument when segregationists made it, Runyon v. McCrary (1976), Fearless won on it in the district court in Georgia.
The Alliance sought an injunction pending appeal, which a split panel of the Eleventh Circuit granted. The court concluded that the Alliance had “clearly shown the existence of a contractual regime,” which brought the case “within the realm of §1981.” The Court then rejected Fearless’ First Amendment argument, emphasizing that the Constitution “does not give [Fearless] the right to exclude persons from a contractual regime based on their race.” On the merits, the Eleventh Circuit reversed the district court, with instructions to enter a preliminary injunction against the Fearless Fund, holding that (1) the Alliance has standing and (2) that preliminary injunctive relief is appropriate because Fearless’s contest is substantially likely to violate § 1981, is substantially unlikely to enjoy First Amendment protection, and inflicts irreparable injury.
Joining us to discuss this litigation and ruling is the Manhattan Institute’s Ilya Shapiro, who filed an amicus brief alongside the American Civil Rights Project and Buckeye Institute in support of the Alliance.
Featuring:
Ilya Shapiro, Senior Fellow and Director of Constitutional Studies, Manhattan Institute -
In 1992, Danny Lee Jones was convicted of two first-degree murder charges and one attempted premeditated murder charge by a trial court in Arizona and was sentenced to death. Mr. Jones appealed, and the Arizona Supreme Court upheld his sentence. Later, Mr. Jones sought post-conviction review on multiple grounds, including a federal habeas petition. The District Court deemed the new evidence to be insignificant, but the Ninth Circuit reversed this decision.
The Supreme Court heard argument in Thornell v. Jones on April 17, 2024, and issued a decision on May 30, 2024, overturning the Ninth Circuit’s decision on the grounds that it incorrectly interpreted and applied the relevant precedent of Strickland v. Washington.
Join us for a Courthouse Steps Decision program where we break down and analyze this decision and what its ramifications may be.
Featuring:
Robert K. McBride, Partner, Taft Stettinius & Hollister -
In recent years, the Supreme Court has decided two cases in which it held that certain restrictions against registering certain kinds of marks violate the Free Speech Clause of the First Amendment. In Matal v. Tam (2017), it invalidated the Lanham Act proscription against registering marks containing terms disparaging toward a person or institution. In Icanu v. Brunetti (2019), it invalidated the Lanham Act proscription against registering marks containing scandalous or immoral terms.
The Supreme Court has now decided Vidal v. Elster, in which it adopted this question presented: “Whether the refusal to register a mark under Section 1052(c) [Lanham Act section 2(c)] violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.” At issue was an application to register the mark TRUMP TOO SMALL on various clothing items. Lanham Act section 2(c) prohibits registration of a mark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow.” The Federal Circuit held that this proscription violates the Free Speech Clause as applied in this mark-registration application.
This Courthouse Steps presentation will discuss the background leading to Vidal v. Elster, review the Court's decision, and discuss its implications for trademark law and free speech.
Featuring:
Michael K. Friedland, Founding Partner, Friedland Cianfrani LLP
Moderator: John B. Farmer, Attorney, Leading-Edge Law Group, PLC -
The Indian Self-Determination and Education Assistance Act (ISDA), which allows Native tribes to administer their healthcare programs instead of the Indian Health Service (IHS), also requires IHS to pay “contract support costs” (CSCs) to tribes to offset overhead costs incurred by the tribes while administering their healthcare programs. Becerra v. San Carlos Apache Tribe (consolidated with Becerra v. Northern Arapaho Tribe) asks whether the IHS must pay CSCs not only to support IHS-funded activities but also to support tribes’ expenditure of income collected directly from third-party insurers.
The San Carlos Apache Tribe, exercising its sovereignty in Arizona, managed its healthcare programs and billed outside insurers directly. However, the Tribe encountered difficulties funding the additional healthcare services from third-party revenue because IHS would not pay CSCs for these transactions. The Tribe sued the U.S. Department of Health & Human Services, IHS, and the United States for the CSC for the years 2011–2013. The district court dismissed the Tribe’s claim for the third-party-revenue-funded portions of the Tribe’s healthcare program from CSC reimbursement, and the Tribe appealed. The U.S. Court of Appeals for the Ninth Circuit concluded that the statutory text of 25 U.S.C. § 5325(a) warranted a reversal of the dismissal and remanded further proceedings.
The Court heard oral arguments on March 25, 2024, and ruled in the case on June 6, 2024, affirming the Ninth Circuit's holding in a 5-4 decision.
Join us for a Courthouse Steps Decision program, where we will analyze this decision and its possible ramifications.
Featuring:
Jennifer H. Weddle, Shareholder, Greenberg Traurig -
The Biden Administration recently proposed new regulatory guidelines that would permit agencies to impose price controls on products based on inventions derived from upstream federally funded research. The new regulations would affect such price controls by expanding the “march-in” power of the Bayh-Dole Act.
In addition to its core function allowing universities and other contractors to retain ownership of inventions created with federal funds, this law authorizes, under very specific circumstances, the funding agency (e.g., the National Institutes of Health (NIH) or the Department of Energy) to grant licenses, without authorization of the patent owner, to any inventions made with funding provided by the agency. The proposed new guidelines would add the price of the end-product derived from those early-stage inventions to the list of specific circumstances.
Since its enactment in 1980, the march-in power of the Bayh-Dole Act has never been used. When asked about using the price of the end product as one of the circumstances, the law’s namesake Senators, Birch Bayh and Bob Dole, stated the text of their law did not authorize price-based march-in. Importantly, the NIH has rejected numerous petitions over the past several decades to use the march-in power to lower the prices of patented drugs or medical devices. Proponents of the new regulatory guidelines, however, argue that the statute does authorize an agency to consider price as a march-in trigger and the Biden Administration argues that march-in is a key tool to lower drug prices.
This panel discussed the regulatory proposal for price controls under the Bayh-Dole Act and other vehicles (e.g., the IRA and reasonable/reference pricing clauses in licenses or collaborative research agreements), whether they represent regulatory overreach by the Executive Branch, and whether it is wise policy to implement price controls on drugs and other products or services in the U.S. innovation economy. -
For several weeks, much media attention has focused on reports of flags flown outside the primary residence and vacation home of Supreme Court Justice Samuel Alito. Several publications assert that the flags are associated with support for the “Stop the Steal” movement, Christian nationalism, and/or the January 6 attack on the U.S. Capitol. These reports have led some reporters and lawmakers to question the impartiality of Justice Alito in cases involving former President Trump, and/or January 6 defendants. Justice Alito has issued statements directly addressing these reports and has not recused himself from any cases. On this topic, the Chief Justice declined a request for a meeting from two Democratic U.S. Senators, stating, in part, that "the format proposed - a meeting with leaders of only one party who have expressed an interest in matters currently pending before the Court - simply underscores that participating in such a meeting would be inadvisable." Is this latest media coverage and Congressional interest part of a growing trend to target certain members of the Court? Is the legitimacy of the Court itself being called into question? This program addresses the contentions made against Justice Alito and the broader implications for journalism, professional ethics, separation of powers, and future respect for the Supreme Court as an essential American institution.
Featuring:
Dan Mclaughlin, Senior Writer, National Review Online
Allyson Newton Ho, Partner & Co-Chair, Constitutional and Apellate Law Practice Group, Gibson, Dunn & Crutcher LLP -
On October 30, 2023, President Biden signed the most far-reaching presidential action in AI, Executive Order 14,110, Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. The EO directs dozens of federal agencies to take over 100 discrete actions to implement it over eight distinct policy areas. The EO received significant attention and a broad range of responses from the regulated public and congressional policymakers. Moreover, the States have grown highly active in regulating AI. This panel will discuss the consequences of the EO on the federal executive branch, the federal legislative process, States, and the tech industry as well as independent federal agency AI regulatory action with an eye toward the opportunities and challenges to come.
Featuring:
Johnathan Smith, Vice President and Legal Director, MacArthur Justice Center
Hon. Keith Sonderling, Commissioner, Equal Employment Opportunity Commissioner
Adam Thierer, Senior Fellow, R Street Institute
(Moderator) Prof. Aram A. Gavoor, Associate Dean for Academic Affairs and Professorial Lecturer in Law, The George Washington University Law School -
Since Dobbs v. Jackson Women’s Health Organization, state courts and legislatures have grappled with its legal and policy implications, especially as they pertain to abortion and IVF. In LePage v. Center for Reproductive Medicine, for example, the Alabama Supreme Court held that frozen embryos should be regarded as “children” for the purposes of Alabama’s Wrongful Death of a Minor Act. And in Planned Parenthood v. Mayes, the Arizona Supreme Court upheld an 1864 law that bans all abortions in the state except those deemed necessary to save the life of the mother.
These recent rulings have been highly criticized by commentators on both sides of the aisle, and they raise important questions about the legal status of IVF and abortion in the wake of Dobbs v. Jackson Women’s Health Organization. For example, in both cases, the courts interpreted the law in accordance with textualist principles, and the state legislatures swiftly enacted measures to address the state supreme court decisions afterward. Are these cases therefore examples of the proper allocation of powers, where the judiciary says what the law is, and the legislature is tasked with implementing policy? With the question of abortion being returned to the legislative process post-Dobbs, do these cases invite more thoughtful dialogue about abortion and IVF policy, or do they sow further acrimony? Were these cases rightly decided? Can we articulate a legal standard vis-à-vis abortion and IVF that is both thoughtful and conceptually consistent? In what ways do abortion and IVF interact, both philosophically and legally? Please join us as we discuss these issues and others with some of the leading scholars in this space.
Featuring:
Prof. I. Glenn Cohen, James A. Attwood and Leslie Williams Professor of Law & Deputy Dean; Faculty Director, Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics; Harvard University Law School
Prof. O. Carter Snead, Director, de Nicola Center for Ethics and Culture and Professor of Law, University of Notre Dame Law School
(Moderator) Jennie Bradley Lichter, Deputy General Counsel, The Catholic University of America -
A New York City jury recently convicted former President Donald Trump of 34 criminal counts of falsifying business documents. In New York, it is a misdemeanor to falsify business records with “the intent to defraud,” a crime with a two year statute of limitations. If the falsification is carried out for the purpose of concealing another crime, it is a felony, with an extended statute of limitations.
Following the verdict, Bragg pointed to the prosecution’s methodical presentation of “extensive hard evidence” in support of the outcome. Some legal experts agree. Others, however, have criticized the DA’s case and predict it will be overturned on appeal for any of several reasons. These include questions about Judge Merchan's impartiality, the prosecution’s legal theory, the evidence allowed and not allowed at trial, and the jury instructions. One much-discussed question, for example, is that Manhattan District Attorney Bragg’s case charged Trump with a felony records violation, but he did not specify until his closing argument what other crime(s) the records violations were designed to conceal. Moreover Judge Merchan's jury instructions told the jury that they need not agree on that question, but instead that they only had to agree that the violations were designed to conceal a crime. Was this correct as a matter of statutory and constitutional law? In addition, there are questions about whether some of the conduct alleged actually constituted a crime, for either statutory or constitutional reasons. There are also important questions about the propriety and prudence of bringing charges of this type against a former President of the opposite party from that of the other actors in the system. Finally, there are many important questions about what happens next.
Join us for an expert discussion of this historic case and its wide-ranging legal and prudential implications.
Featuring:
Sarah Isgur, Senior Editor, The Dispatch
Prof. William G. Otis, Adjunct Professor of Law, Georgetown Law - Visa fler
