Podcasts about harlan albert rogers professor

Under the Family Smoking Prevention and Tobacco Control Act, the FDA must approve new tobacco products. Wages and White Lion Investments (dba Trion Distribution) and Vapetasia manufacture and sell flavored nicotine-containing liquids for use in refillable e-cigarette systems. They applied for FDA approval in 2020; about ten months later, the FDA announced new requirements for approval and, based on those requirements, denied the applications citing the deficiency. The manufacturers challenged the denial and the Fifth Circuit, sitting en banc, found the FDA's actions were arbitrary and capricious. SCOTUS heard oral argument on Monday, December 2, 2024. On April 2, 2025, the Court issued a decision vacating the Fifth Circuit in a 9-0 opinion written by Justice Alito. Justice Sotomayor wrote a concurring opinion. Join us for a Courthouse Steps Decision panel discussion, where a group of experts will discuss this important case and its potential effects not just for regulated parties but in the broader administrative law space. Featuring: Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law and Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law Prof. Kristin E. Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School Prof. Richard J. Pierce, Jr., Lyle T. Alverson Professor of Law, George Washington University Law School (Moderator) Eli Nachmany, Associate, Covington & Burling LLP

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 LawJohn 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

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 LawJohn 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

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. Experts on both sides argue it has implications on the role of judges, judicial independence, separation of powers, stare decisis, governmental accountability, and the rule of law.In two cases this term (Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce) the Court will be asked whether that precedent should be overturned. Join us as a panel of experts give a preview of these two important cases in a discussion of what the Chevron doctrine has done, how these cases may affect it and the body of precedent surrounding it, and what they may mean moving forward. Featuring:Prof. John Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of LawProf. Philip Hamburger, Maurice and Hilda Friedman Professor of Law, Columbia Law School; CEO, New Civil Liberties AllianceProf. Kristin Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School(Moderator) Hon. Stephen Alexander Vaden, Judge, United States Court of International Trade

Since the 1980s, Chevron deference has set the standard for when courts should defer to reasonable agency interpretations of ambiguous statutes. That may all change, however, as the US Supreme Court will reconsider the Chevron deference in Loper Bright Enterprises v. Raimondo. In this episode of the Bracewell Environmental Law Monitor, host Daniel Pope talks with administrative law scholar Kristin Hickman, McKnight Presidential Professor in Law, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law at the University of Minnesota Law School, about the history and influence of Chevron deference, its significance in the current legal landscape, the separation of powers arguments and the role of stare decisis in the context of Chevron deference. They also discuss Loper Bright Enterprises v. Raimondo and its potential implications. Tune in to hear them unpack the issues surrounding Chevron and what post-Chevron administrative law might look like.

The continuous stream of regulations and other guidance the Internal Revenue Service (IRS) must publish to inform the public how it is going to implement, administer, and enforce the frequent, numerous, and complicated changes to the tax laws, along with the high dollar stakes involved, create constant opportunities and incentives to challenge the IRS. Some contend that the IRS’s ability to defend itself against these challenges seems to be vanishing as one after another the IRS has lost a string of recent challenges to its guidance. A recent blog post summarizes some of these defeats. Our speakers will discuss them in more detail, along with what they might portend for how the Internal Revenue Service and the Treasury Department issue future guidance. Another direction to watch is at the other end of Pennsylvania Avenue: will Congress begin to do a better job drafting laws and providing instructions and guidance about how they are to be implemented, administered, and enforced? Featuring:Kristin Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law SchoolGilbert Rothenberg, Adjunct Professor of Law, American University's Washington College of Law and the University of Pennsylvania's Carey Law SchoolInterlocutor: Robert Carney, Senior Counsel, Caplin & Drysdale; Adjunct Professor of Law, Georgetown LawModerator: Eileen O'Connor, Founder, Law Office of Eileen J. O'Connor PLLC---To register, click the link above

On May 17, 2021, the Supreme Court issued its unanimous decision in CIC Services, LLC v. Internal Revenue Services, a case involving the Anti-Injunction Act and tax penalties. Justice Kagan delivered the opinion for the Court and Justices Sotomayor and Kavanaugh filed concurring opinions.Joining us to discuss the decision and its implications are several experts in the field. Featuring: -- Susan C. Morse, Angus G. Wynne, Sr. Professor in Civil Jurisprudence, University of Texas at Austin School of Law -- Kristin E. Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School -- Moderator: Robert T. Carney, Senior Counsel, Caplin & Drysdale; Adjunct Professor, Georgetown University Law Center

On December 1st, the Supreme Court heard oral arguments in the case CIC Services, LLC v. Internal Revenue Service. The case involves whether courts have jurisdiction over challenges to the validity of Internal Revenue Service rules or regulations under the Administrative Procedure Act before the taxpayer pays a tax and seeks a refund. The specific issue presented was whether the prohibition in the Anti-Injunction Act (26 U.S.C., sec. 7421, “AIA”) on lawsuits “for the purpose of restraining the assessment or collection of any tax” bars challenges to regulatory mandates issued by Treasury/IRS in the form of information reporting requirements that could lead to the assessment of tax penalties. In CIC Services, the Government asserted that the AIA barred pre-enforcement litigation challenging reporting requirements that could have significant civil and criminal penalties attached for non-compliance, where the civil penalties are denominated by the Internal Revenue Code as a “tax” but where no violation had yet occurred. The case came to the Supreme Court on a writ of certiorari to the U.S. Court of Appeals for the Sixth Circuit, which had affirmed a district court opinion dismissing the case under the AIA for lack of jurisdiction.We are joined by a panel of experts to discuss the oral arguments, and the various policy implications of the potential rulings. Featuring: -- Prof. Robert Carney, Senior Counsel, Caplin & Drysdale, and Adjunct Professor, Tax Practice and Procedure (Administrative), Georgetown University Law Center-- Prof. Kristin Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School-- Prof. Gregory Dolin, Co-director of the Center for Medicine and Law, University of Baltimore School of Law, and Adjunct Scholar at the Cato Institute

The Eighth Annual Executive Branch Review Conference was held on April 28, 2020 via an online webinar. The second panel was titled "Restoring Judicial Power: Righting the Ship of Judicial Review and Deference Doctrines."One aspect of almost all constitutional systems is judicial deference, which could be loosely defined as the concept that certain matters are best decided by entities other than the judiciary. While nearly all agree that some level of judicial deference is necessary in our current constitutional system, the extent to which the Judiciary should practice deference remains a highly complex and controversial area of constitutional law. During the past several decades, the rise of the administrative state in the federal government has only added fuel to this ongoing legal debate. On one side, many believe that the administrative state is better equipped to deal with particular matters, because members of the administrative state will have more expertise in specific subject matter areas than federal judges. Many of these proponents of deference support Supreme Court cases that carved out the well-known deference doctrines of Chevron and Auer. On the other hand, skeptics of excessive judicial deference criticize much of the Supreme Court’s related jurisprudence. They instead argue that the increasing number of "cases and controversies" decided by regulators, enforcers, and adjudicative bodies within the administrative state, that are neither elected nor directly subject to the political process, has led to a less democratic form of government in America. Proponents of judicial power taking a less deferential approach believe that a strong doctrine of judicial review is a vital way to ensure that we truly have a government of the people, by the people, and for the people. That said, is there a way to prevent a less-deferential judiciary from becoming overly ambitious?This distinguished panel of experts will be discussing and debating this controversial and engaging issue. The panel will provide helpful information to attorneys practicing many fields of law, in particular, attorneys working in administrative, constitutional, and regulatory law. Featuring:Hon. Ronald A. Cass, Dean Emeritus, Boston University School of Law and President, Cass & Associates, PCProf. Kristin E. Hickman, Distinguished McKnight University Professor, Harlan Albert Rogers Professor in Law, University of Minnesota Law SchoolProf. Sally Katzen, Professor of Practice and Distinguished Scholar in Residence; Co-Director of the Legislative and Regulatory Process Clinic, New York University School of LawDean Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law; Professorial Lecturer in Law, George Washington University Law SchoolHon. Beth A. Williams, Assistant Attorney General, Office of Legal Policy, U.S. Department of JusticeModerator: Dean Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society * * * * * As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

The Eighth Annual Executive Branch Review Conference was held on April 28, 2020 via an online webinar. The second panel was titled "Restoring Judicial Power: Righting the Ship of Judicial Review and Deference Doctrines."One aspect of almost all constitutional systems is judicial deference, which could be loosely defined as the concept that certain matters are best decided by entities other than the judiciary. While nearly all agree that some level of judicial deference is necessary in our current constitutional system, the extent to which the Judiciary should practice deference remains a highly complex and controversial area of constitutional law. During the past several decades, the rise of the administrative state in the federal government has only added fuel to this ongoing legal debate. On one side, many believe that the administrative state is better equipped to deal with particular matters, because members of the administrative state will have more expertise in specific subject matter areas than federal judges. Many of these proponents of deference support Supreme Court cases that carved out the well-known deference doctrines of Chevron and Auer. On the other hand, skeptics of excessive judicial deference criticize much of the Supreme Court’s related jurisprudence. They instead argue that the increasing number of "cases and controversies" decided by regulators, enforcers, and adjudicative bodies within the administrative state, that are neither elected nor directly subject to the political process, has led to a less democratic form of government in America. Proponents of judicial power taking a less deferential approach believe that a strong doctrine of judicial review is a vital way to ensure that we truly have a government of the people, by the people, and for the people. That said, is there a way to prevent a less-deferential judiciary from becoming overly ambitious?This distinguished panel of experts will be discussing and debating this controversial and engaging issue. The panel will provide helpful information to attorneys practicing many fields of law, in particular, attorneys working in administrative, constitutional, and regulatory law. Featuring:Hon. Ronald A. Cass, Dean Emeritus, Boston University School of Law and President, Cass & Associates, PCProf. Kristin E. Hickman, Distinguished McKnight University Professor, Harlan Albert Rogers Professor in Law, University of Minnesota Law SchoolProf. Sally Katzen, Professor of Practice and Distinguished Scholar in Residence; Co-Director of the Legislative and Regulatory Process Clinic, New York University School of LawDean Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law; Professorial Lecturer in Law, George Washington University Law SchoolHon. Beth A. Williams, Assistant Attorney General, Office of Legal Policy, U.S. Department of JusticeModerator: Dean Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society * * * * * As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Until recently, the Internal Revenue Service and Treasury Department typically issued regulations involving the tax law with scant compliance with the familiar procedural requirements of administrative law for primarily three reasons. First, because tax law was considered “exceptional;” second, the agencies believed that their rules and regulations were exempt from the requirements of the APA and related statutes; and third, the “Anti-Injunction Act,” 26 U.S.C. § 7421(a), was thought to drastically limit judicial jurisdiction over taxpayer challenges to the validity of tax regulatory actions. Over the past decade, tax agency practices have been under attack and taxpayers have been pursuing their challenges to the procedural validity of tax regulations in the courts, notwithstanding the consistent opposition of the Government. Our speakers have been at the center of those challenges and will discuss several very recent cases highlighting the changing environment for APA challenges to tax regulations. Featuring: -- Kristin Hickman is a Distinguished McKnight University Professor and the Harlan Albert Rogers Professor in Law at the University of Minnesota Law School, who has published several of the seminal law review articles on this topic. -- Stuart Bassin is a veteran litigator of tax cases and serves as the taxpayers’ counsel in one of the most prominent pending cases in this area. He was previously a trial attorney with the Tax Division of the U.S. Department of Justice. -- Moderator: Robert Carney is a Senior Counsel at Caplin & Drysdale, Chartered, in Washington, D.C., specializing in tax controversy and tax litigation. He also was previously a trial attorney with the Tax Division of the U.S. Department of Justice.

Until recently, the Internal Revenue Service and Treasury Department typically issued regulations involving the tax law with scant compliance with the familiar procedural requirements of administrative law for primarily three reasons. First, because tax law was considered “exceptional;” second, the agencies believed that their rules and regulations were exempt from the requirements of the APA and related statutes; and third, the “Anti-Injunction Act,” 26 U.S.C. § 7421(a), was thought to drastically limit judicial jurisdiction over taxpayer challenges to the validity of tax regulatory actions. Over the past decade, tax agency practices have been under attack and taxpayers have been pursuing their challenges to the procedural validity of tax regulations in the courts, notwithstanding the consistent opposition of the Government. Our speakers have been at the center of those challenges and will discuss several very recent cases highlighting the changing environment for APA challenges to tax regulations. Featuring: -- Kristin Hickman is a Distinguished McKnight University Professor and the Harlan Albert Rogers Professor in Law at the University of Minnesota Law School, who has published several of the seminal law review articles on this topic. -- Stuart Bassin is a veteran litigator of tax cases and serves as the taxpayers’ counsel in one of the most prominent pending cases in this area. He was previously a trial attorney with the Tax Division of the U.S. Department of Justice. -- Moderator: Robert Carney is a Senior Counsel at Caplin & Drysdale, Chartered, in Washington, D.C., specializing in tax controversy and tax litigation. He also was previously a trial attorney with the Tax Division of the U.S. Department of Justice.

On November 14, 2019, the Federalist Society's Administrative Law & Regulation Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The title of the panel was "Nondelegation after Gundy: Are We Waiting for Godot?".Contrary to the expectations of some, the U.S. Supreme Court’s June decision in Gundy v. United States did not reinvigorate the nondelegation doctrine. Instead, the Court upheld a delegation contained in the Sex Offender Registration and Notification Act (SORNA), a 2006 law which appeared to leave it up to the Attorney General of the U.S. to decide how to apply that statute to prior offenders already in custody. However, because Justice Alito’s concurrence in the judgment expressed willingness to reconsider the Court’s approach to the doctrine and Justice Kavanaugh did not sit on this case, the Gundy decision whetted appetites for what may come in the next nondelegation case to reach the Court.This panel will examine the Court’s decision in Gundy, dissect the various viewpoints that the justices presented, and—especially—explore what those perspectives (and Justice Kavanaugh’s subsequent participation) could mean for the future of the nondelegation doctrine. The panel will address questions such as: Will the Court alter the doctrine? What would a strengthened nondelegation doctrine look like? Is there a judicially administrable way to redefine what counts as an “intelligible principle”? What would an ideal case for the Court’s consideration look like? What will happen to delegations approved under the current version of the doctrine? Will the modern Administrative State look much different under a reinvigorated nondelegation doctrine?*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.Featuring:Hon. Ronald A. Cass, President, Cass & Associates, PC; Dean Emeritus, Boston University School of LawProf. David Schoenbrod, Trustee Professor of Law, New York Law SchoolProf. Kristin E. Hickman, Distinguished McKnight University Professor; Harlan Albert Rogers Professor in Law; Associate Director, Corporate Institute, University of Minnesota Law SchoolProf. Alan Morrison, Lerner Family Associate Dean, Public Interest and Public Service Law and Professorial Lecturer in Law, George Washington University Law SchoolModerator: Hon. Ryan D. Nelson, Judge, United States Court of Appeals, Ninth CircuitIntroduction: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC

On November 14, 2019, the Federalist Society's Administrative Law & Regulation Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The title of the panel was "Nondelegation after Gundy: Are We Waiting for Godot?".Contrary to the expectations of some, the U.S. Supreme Court’s June decision in Gundy v. United States did not reinvigorate the nondelegation doctrine. Instead, the Court upheld a delegation contained in the Sex Offender Registration and Notification Act (SORNA), a 2006 law which appeared to leave it up to the Attorney General of the U.S. to decide how to apply that statute to prior offenders already in custody. However, because Justice Alito’s concurrence in the judgment expressed willingness to reconsider the Court’s approach to the doctrine and Justice Kavanaugh did not sit on this case, the Gundy decision whetted appetites for what may come in the next nondelegation case to reach the Court.This panel will examine the Court’s decision in Gundy, dissect the various viewpoints that the justices presented, and—especially—explore what those perspectives (and Justice Kavanaugh’s subsequent participation) could mean for the future of the nondelegation doctrine. The panel will address questions such as: Will the Court alter the doctrine? What would a strengthened nondelegation doctrine look like? Is there a judicially administrable way to redefine what counts as an “intelligible principle”? What would an ideal case for the Court’s consideration look like? What will happen to delegations approved under the current version of the doctrine? Will the modern Administrative State look much different under a reinvigorated nondelegation doctrine?*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.Featuring:Hon. Ronald A. Cass, President, Cass & Associates, PC; Dean Emeritus, Boston University School of LawProf. David Schoenbrod, Trustee Professor of Law, New York Law SchoolProf. Kristin E. Hickman, Distinguished McKnight University Professor; Harlan Albert Rogers Professor in Law; Associate Director, Corporate Institute, University of Minnesota Law SchoolProf. Alan Morrison, Lerner Family Associate Dean, Public Interest and Public Service Law and Professorial Lecturer in Law, George Washington University Law SchoolModerator: Hon. Ryan D. Nelson, Judge, United States Court of Appeals, Ninth CircuitIntroduction: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC

The strictures of the Appointments Clause are receiving renewed attention in the courts, including the Supreme Court. A year ago, the High Court ruled that the SEC’s administrative law judges must be appointed in conformity with this clause, and it has placed another Appointments Clause case on the docket for its next term. In Buckley v. Valeo (1976), the Court held that rulemaking was a significant government power such that rulemakers must be appointed in conformity with the Clause, but it had no reason to address whether rules must be issued by principal officers or could also be issued by inferior officers.On behalf of nine vaping retailers, Pacific Legal Foundation is challenging the FDA’s "Deeming Rule" issued by a career employee, Leslie Kux. A new research study of HHS rules over a 17-year period, also by PLF, found that nearly two-thirds of HHS regulations were issued by non-Senate-confirmed staff. Within FDA, 98% of its rules (1,860 of them) were issued by civil service employees in career positions like that held by Ms. Kux. In the pending litigation, FDA argues that Ms. Kux was also an inferior officer when she issued rules, and that inferior officers may lawfully issue such binding rules, even if no supervisor may subsequently change them without a new rulemaking process.The speakers examine a variety of topics related to the subdelegation of rulemaking power, including the creation of offices by department heads and who within those offices can lawfully exercise rulemaking power.Featuring:Todd F. Gaziano, Chief of Legal Policy and Strategic Research and Director, Center for the Separation of Powers, Pacific Legal FoundationProf. Anne Joseph O'Connell, Adelbert H. Sweet Professor of Law, Stanford Law School[Moderator] Prof. Kristin E. Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law SchoolVisit our website – articleiinitiative.org – to learn more, view all of our content, and connect with us on social media.

The strictures of the Appointments Clause are receiving renewed attention in the courts, including the Supreme Court. A year ago, the High Court ruled that the SEC’s administrative law judges must be appointed in conformity with this clause, and it has placed another Appointments Clause case on the docket for its next term. In Buckley v. Valeo (1976), the Court held that rulemaking was a significant government power such that rulemakers must be appointed in conformity with the Clause, but it had no reason to address whether rules must be issued by principal officers or could also be issued by inferior officers.On behalf of nine vaping retailers, Pacific Legal Foundation is challenging the FDA’s "Deeming Rule" issued by a career employee, Leslie Kux. A new research study of HHS rules over a 17-year period, also by PLF, found that nearly two-thirds of HHS regulations were issued by non-Senate-confirmed staff. Within FDA, 98% of its rules (1,860 of them) were issued by civil service employees in career positions like that held by Ms. Kux. In the pending litigation, FDA argues that Ms. Kux was also an inferior officer when she issued rules, and that inferior officers may lawfully issue such binding rules, even if no supervisor may subsequently change them without a new rulemaking process.The speakers examine a variety of topics related to the subdelegation of rulemaking power, including the creation of offices by department heads and who within those offices can lawfully exercise rulemaking power.Featuring:Todd F. Gaziano, Chief of Legal Policy and Strategic Research and Director, Center for the Separation of Powers, Pacific Legal FoundationProf. Anne Joseph O'Connell, Adelbert H. Sweet Professor of Law, Stanford Law School[Moderator] Prof. Kristin E. Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law SchoolVisit our website – articleiinitiative.org – to learn more, view all of our content, and connect with us on social media.

The strictures of the Appointments Clause are receiving renewed attention in the courts, including the Supreme Court. A year ago, the High Court ruled that the SEC’s administrative law judges must be appointed in conformity with this clause, and it has placed another Appointments Clause case on the docket for its next term. In Buckley v. Valeo (1976), the Court held that rulemaking was a significant government power such that rulemakers must be appointed in conformity with the Clause, but it had no reason to address whether rules must be issued by principal officers or could also be issued by inferior officers.On behalf of nine vaping retailers, Pacific Legal Foundation is challenging the FDA’s "Deeming Rule" issued by a career employee, Leslie Kux. A new research study of HHS rules over a 17-year period, also by PLF, found that nearly two-thirds of HHS regulations were issued by non-Senate-confirmed staff. Within FDA, 98% of its rules (1,860 of them) were issued by civil service employees in career positions like that held by Ms. Kux. In the pending litigation, FDA argues that Ms. Kux was also an inferior officer when she issued rules, and that inferior officers may lawfully issue such binding rules, even if no supervisor may subsequently change them without a new rulemaking process.The speakers examine a variety of topics related to the subdelegation of rulemaking power, including the creation of offices by department heads and who within those offices can lawfully exercise rulemaking power.Featuring:- Todd F. Gaziano, Chief of Legal Policy and Strategic Research and Director, Center for the Separation of Powers, Pacific Legal Foundation- Prof. Anne Joseph O'Connell, Adelbert H. Sweet Professor of Law, Stanford Law School- [Moderator] Prof. Kristin E. Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law SchoolVisit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

The strictures of the Appointments Clause are receiving renewed attention in the courts, including the Supreme Court. A year ago, the High Court ruled that the SEC’s administrative law judges must be appointed in conformity with this clause, and it has placed another Appointments Clause case on the docket for its next term. In Buckley v. Valeo (1976), the Court held that rulemaking was a significant government power such that rulemakers must be appointed in conformity with the Clause, but it had no reason to address whether rules must be issued by principal officers or could also be issued by inferior officers.On behalf of nine vaping retailers, Pacific Legal Foundation is challenging the FDA’s "Deeming Rule" issued by a career employee, Leslie Kux. A new research study of HHS rules over a 17-year period, also by PLF, found that nearly two-thirds of HHS regulations were issued by non-Senate-confirmed staff. Within FDA, 98% of its rules (1,860 of them) were issued by civil service employees in career positions like that held by Ms. Kux. In the pending litigation, FDA argues that Ms. Kux was also an inferior officer when she issued rules, and that inferior officers may lawfully issue such binding rules, even if no supervisor may subsequently change them without a new rulemaking process.The speakers examine a variety of topics related to the subdelegation of rulemaking power, including the creation of offices by department heads and who within those offices can lawfully exercise rulemaking power.Featuring:- Todd F. Gaziano, Chief of Legal Policy and Strategic Research and Director, Center for the Separation of Powers, Pacific Legal Foundation- Prof. Anne Joseph O'Connell, Adelbert H. Sweet Professor of Law, Stanford Law School- [Moderator] Prof. Kristin E. Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law SchoolVisit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

On April 5, 2019, the Federalist Society's Ohio lawyers chapters hosted the 2019 Ohio Chapters Conference in Columbus, OH. The second panel covered "The Future of Administrative Deference".More and more judges, advocates, and scholars are calling on the courts to reexamine the deference paid to administrative agencies’ legal interpretations. This debate has attracted the most attention at the federal level. But the same is now occurring in state courts—including in Ohio, where just last year four justices on the Supreme Court of Ohio questioned the appropriateness of deference to agency interpretations. This distinguished panel will address these developments, make some predictions about future developments, and discuss whether those likely developments are good, bad, or neither. Featuring:Prof. Aditya Bamzai, Associate Professor of Law, University of Virginia School of LawProf. Kristin Hickman, Distinguished McKnight University Professor & Harlan Albert Rogers Professor in Law, University of Minnesota Law School & Associate Director, Corporate InstituteProf. Christopher J. Walker, Associate Professor of Law, The Ohio State University Moritz College of Law & Director of the Moritz Washington, D.C., Summer ProgramModerator: Hon. R. Patrick DeWine, Associate Justice, Ohio Supreme Court* * * * *As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

On April 5, 2019, the Federalist Society's Ohio lawyers chapters hosted the 2019 Ohio Chapters Conference in Columbus, OH. The second panel covered "The Future of Administrative Deference".More and more judges, advocates, and scholars are calling on the courts to reexamine the deference paid to administrative agencies’ legal interpretations. This debate has attracted the most attention at the federal level. But the same is now occurring in state courts—including in Ohio, where just last year four justices on the Supreme Court of Ohio questioned the appropriateness of deference to agency interpretations. This distinguished panel will address these developments, make some predictions about future developments, and discuss whether those likely developments are good, bad, or neither. Featuring:Prof. Aditya Bamzai, Associate Professor of Law, University of Virginia School of LawProf. Kristin Hickman, Distinguished McKnight University Professor & Harlan Albert Rogers Professor in Law, University of Minnesota Law School & Associate Director, Corporate InstituteProf. Christopher J. Walker, Associate Professor of Law, The Ohio State University Moritz College of Law & Director of the Moritz Washington, D.C., Summer ProgramModerator: Hon. R. Patrick DeWine, Associate Justice, Ohio Supreme Court* * * * *As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Welcome again to Necessary & Proper. Today we bring you the great discussion we had from the afternoon panel of the 2019 Legislative Branch Review Conference, held on the Hill in February in partnership with the Federalist Society's Georgetown Student Chapter. The panel speculated on what a world without Chevron deference doctrine could look like, and if it would be desirable. We hope you find this podcast interesting and enjoyable. Featuring:Mr. Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties AllianceMr. David D. Doniger, Director, Climate & Clean Air Program, Natural Resources Defense CouncilProf. Kristin Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law SchoolProf. David S. Schoenbrod, Trustee Professor of Law, New York Law SchoolModerator: Prof. Jennifer L. Mascott, Assistant Professor of Law, Antonin Scalia Law SchoolIntroduction: Joel Nolette, Litigation Associate, Mintz Levin

Welcome again to Necessary & Proper. Today we bring you the great discussion we had from the afternoon panel of the 2019 Legislative Branch Review Conference, held on the Hill in February in partnership with the Federalist Society's Georgetown Student Chapter. The panel speculated on what a world without Chevron deference doctrine could look like, and if it would be desirable. We hope you find this podcast interesting and enjoyable. Featuring:Mr. Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties AllianceMr. David D. Doniger, Director, Climate & Clean Air Program, Natural Resources Defense CouncilProf. Kristin Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law SchoolProf. David S. Schoenbrod, Trustee Professor of Law, New York Law SchoolModerator: Prof. Jennifer L. Mascott, Assistant Professor of Law, Antonin Scalia Law SchoolIntroduction: Joel Nolette, Litigation Associate, Mintz Levin

On February 6, 2019, the Federalist Society's Article I Initiative and the Georgetown Student Chapter co-sponsored the first Legislative Branch Review Conference. The second panel speculated on "A World Without Chevron?"Chevron has come under fire as of late, and the confirmation of Justice Kavanaugh has tipped off a new round of speculation as to how the Court might narrow, or even eliminate, the doctrine. But is a world without Chevron desirable? If courts do not defer to agency interpretations of truly ambiguous statutes, should courts decide de novo what they think such ambiguous laws mean? Are there viable alternatives?Featuring:Mr. Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties AllianceMr. David D. Doniger, Director, Climate & Clean Air Program, Natural Resources Defense CouncilProf. Kristin Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law SchoolProf. David S. Schoenbrod, Trustee Professor of Law, New York Law SchoolModerator: Prof. Jennifer L. Mascott, Assistant Professor of Law, Antonin Scalia Law SchoolIntroduction: Joel Nolette, Litigation Associate, Mintz LevinAs always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On February 6, 2019, the Federalist Society's Article I Initiative and the Georgetown Student Chapter co-sponsored the first Legislative Branch Review Conference. The second panel speculated on "A World Without Chevron?"Chevron has come under fire as of late, and the confirmation of Justice Kavanaugh has tipped off a new round of speculation as to how the Court might narrow, or even eliminate, the doctrine. But is a world without Chevron desirable? If courts do not defer to agency interpretations of truly ambiguous statutes, should courts decide de novo what they think such ambiguous laws mean? Are there viable alternatives?Featuring:Mr. Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties AllianceMr. David D. Doniger, Director, Climate & Clean Air Program, Natural Resources Defense CouncilProf. Kristin Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law SchoolProf. David S. Schoenbrod, Trustee Professor of Law, New York Law SchoolModerator: Prof. Jennifer L. Mascott, Assistant Professor of Law, Antonin Scalia Law SchoolIntroduction: Joel Nolette, Litigation Associate, Mintz LevinAs always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

The Federalist Society’s Regulatory Transparency Project working group on agency enforcement and coercion released a report on July 5, 2017, which detailed numerous instances of potential coercive behavior by agencies. Additionally, the Administrative Conference of the United States (ACUS) sponsored a study in 2017 of agency guidance—advisories, interpretive letters, enforcement manuals, fact sheets, FAQs, etc. The ACUS study drew on interviews with 135 individuals across agencies, industries, and NGOs, finding that regulated parties often (though not always) have no practical choice but to follow informal agency guidance even when it is not mandatory. The ACUS report concluded that certain structural features of modern regulation—while not dismissing the concern of intentional or deliberate abuse—impose a strong incentive on regulated parties to figure out what an agency wants, even beyond the limits of its legal authority, and to do just that, regardless of the format in which agency wants are expressed. Can agency coercion be reduced or eliminated without reducing needed discretion in the agency?Hon. C. Boyden Gray, Founding Partner, Boyden Gray & AssociatesProf. Kristin Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law SchoolProf. Sally Katzen, Professor of Practice and Distinguished Scholar in Residence; Co-Director of the Legislative and Regulatory Process Clinic, New York University School of LawProf. Nicholas Parrillo, Professor of Law, Yale Law SchoolModerator: Hon. David Stras, United States Court of Appeals, Eighth Circuit

On March 21, 2017, the Supreme Court decided National Labor Relations Board v. SW General, Inc. SW General, Inc. provides ambulance services to hospitals in Arizona. A union had negotiated longevity pay for SW General’s emergency medical technicians, nurses, and firefighters. In December 2012, between the expiration of one collective bargaining agreement and the negotiation of a new one, SW General stopped paying the longevity pay. The union filed an unfair labor practices claim with the National Labor Relations Board (NLRB), which issued a formal complaint. An administrative law judge determined that SW General had committed unfair labor practices, but SW General contended that the NLRB complaint was invalid because the Acting General Counsel of the NLRB at the time, Lafe Solomon, had been serving in violation of the Federal Vacancies Reform Act (FVRA). President Barack Obama had nominated Solomon--who had then been serving as Acting General Counsel after the General Counsel had resigned--to serve as General Counsel, but the Senate had not acted on the nomination. The president had ultimately withdrawn the nomination and replaced it with that of Richard Griffin, who was confirmed. In the intervening period--including when the NLRB complaint had issued against SW General--Solomon had continued to serve as Acting General Counsel. SW General argued that under the FVRA, Solomon became ineligible to hold the Acting position once nominated by the president to the General Counsel position. The U.S. Court of Appeals for the D.C. Circuit agreed and vacated the NLRB’s enforcement order. The NLRB then obtained a writ of certiorari from the Supreme Court. -- By a vote of 6-2, the Supreme Court affirmed the judgment of the D.C. Circuit. In an opinion by Chief Justice Roberts, the Court held that (1) subsection (b)(1) of the Federal Vacancies Reform Act of 1998, which prevents a person who has been nominated to fill a vacant office requiring presidential appointment and Senate confirmation from performing the duties of that office in an acting capacity, applies to anyone performing acting service under the FVRA and is not limited to first assistants performing acting service under Subsection (a)(1); and (2) Subsection (b)(1) prohibited Lafe Solomon from continuing his service as acting general counsel of the National Labor Relations Board once the president nominated him to fill the position permanently. The Chief Justice’s majority opinion was joined by Justices Kennedy, Thomas, Breyer, Alito, and Kagan. Justice Thomas filed a concurring opinion. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined. -- To discuss the case, we have Kristin Hickman, who is the Distinguished McKnight University Professor, Harlan Albert Rogers Professor of Law, and Associate Director, Corporate Institute at the University of Minnesota Law School.

On November 7, 2016, the Supreme Court heard oral argument in National Labor Relations Board v. SW General, Inc. SW General, Inc. provides ambulance services to hospitals in Arizona. A union had negotiated “longevity pay” for SW General’s emergency medical technicians, nurses, and firefighters. In December 2012, between the expiration of one collective bargaining agreement and the negotiation of a new one, SW General stopped paying the longevity pay. The union filed an unfair labor practices claim with the National Labor Relations Board (NLRB), which issued a formal complaint. An administrative law judge determined that SW General had committed unfair labor practices, but SW General contended that the NLRB complaint was invalid because the Acting General Counsel of the NLRB at the time, Lafe Solomon, had been serving in violation of the Federal Vacancies Reform Act (FVRA). President Barack Obama had nominated Solomon--who had then been serving as Acting General Counsel after the General Counsel had resigned--to serve as General Counsel, but the Senate had not acted on the nomination. The president had ultimately withdrawn the nomination and replaced it with that of Richard Griffin, who was confirmed. In the intervening period--including when the NLRB complaint had issued against SW General--Solomon had continued to serve as Acting General Counsel. SW General argued that under the FVRA, Solomon became ineligible to hold the Acting position once nominated by the president to the General Counsel position. The U.S. Court of Appeals for the D.C. Circuit agreed, and vacated the NLRB’s enforcement order. The NLRB then obtained a writ of certiorari from the Supreme Court. -- The question now before the Supreme Court is whether the FVRA precondition in 5 U.S.C. 3345(b)(1), on service in an acting capacity by a person nominated by the President to fill the office on a permanent basis, which requires that a person who is nominated to fill a vacant office subject to the FVRA may not perform the office’s functions and duties in an acting capacity unless the person served as first assistant to the vacant office for at least 90 days in the year preceding the vacancy, applies only to first assistants who take office under subsection (a)(1) of 5 U.S.C. 3345, or whether it also limits acting service by officials like Solomon, who assume acting responsibilities under subsections (a)(2) and (a)(3). -- To discuss the case, we have Kristin Hickman, who is the Distinguished McKnight University Professor, Harlan Albert Rogers Professor of Law, and Associate Director, Corporate Institute at the University of Minnesota Law School.

The growing role of the administrative agencies in American government is mirrored by a growing role of administrative law in legal education. The trend is exemplified by many law schools' introduction of "Legislation and Regulation" (or "Leg-Reg") as a first-year course. -- But as the administrative stats and administrative law grow and change, how should the curriculum change? -- To discuss this, the Administrative Law Section is pleased to host a teleforum with three leading administrative law scholars: Prof. Dan Farber of the University of California-Berkeley Law, Prof. Kristin Hickman of the University of Minnesota Law School, and Jim Tozzi, former regulatory official of the United States Office of Management and Budget and Director of Multinational Business Services at the Center for Regulatory Effectiveness. -- The discussion will be moderated by Adam White, a Research Fellow at Stanford's Hoover Institution and an adjunct professor at George Mason University's Antonin Scalia Law School. -- Featuring: Prof. Dan Farber, Sho Sato Professor of Law, Co-Director and Center for Law, Energy & Environment, California-Berkeley Law; Prof. Kristin Hickman, Distinguished McKnight University Professor, Harlan Albert Rogers Professor in Law, University of Minnesota Law School and Associate Director, Corporate Institute; and Jim Tozzi, Former Regulatory Official of the United States Office of Management and Budget and Director of Multinational Business Services at the Center for Regulatory Effectiveness. Moderator: Adam White, Research Fellow, The Hoover Institution.