As a new year fast approaches, let's take a moment to look back at some of the best FedSoc content from 2015. Engage, the journal of the Federalist Society's Practice Groups, was more popular than ever this year. Article topics ranged from issues regarding the administrative state to net neutrality to Interpol and much more.
Here are the most popular Engage articles from 2015:
In June 2015, the Supreme Court issued its decision in Texas Department of Housing v. Inclusive Communities Project, Inc., ruling that disparate impact claims are cognizable under the Fair Housing Act. The Court’s decision in Texas Department of Housing gives a limited blessing to the use of disparate impact in housing, where it has spread from its original home in employment law. It remains to be seen whether this limited approval extends beyond the housing realm. However, even before the Court’s decision, disparate impact was being used to regulate the use of criminal background checks in hiring, school discipline, housing patterns, and now, availability of school resources.
9. "Net Neutrality and the Rule of Law" by Richard E. Wiley & Brett Shumate
The Federal Communications Commission (FCC) was created for “the purpose of regulating interstate and foreign commerce in communication by wire and radio.” While Congress has expanded the FCC’s regulatory mandate over time to embrace new communications technologies, it has never granted the FCC open-ended regulatory authority over communications. Instead, the Commission has been given express regulatory power with respect to specific types of communications. In the Communications Act of 1934, as amended by the Telecommunications Act of 1996, Congress charged the FCC with regulating telecommunications services in Title II of the Act; broadcast television, radio, and commercial mobile radio service in Title III; and cable television in Title VI. The degree to which the FCC can stretch the bounds of its statutory mandate has critical implications for federal power to control communications.
A centerpiece of the Dodd-Frank financial reform legislation was the establishment of the Consumer Financial Protection Bureau (CFPB), a new consumer protection super-regulator with the power to control the terms and offerings of every consumer financial product in America, from expensive complex mortgages offered by trillion-dollar international banks to short-term small-dollar loans by local payday lenders and routine debt collection. Moreover, because many small and start-up businesses are funded by the entrepreneur’s personal credit, the CFPB has effectively become the regulator of much of the economy’s small business credit as well. The White House press release issued contemporaneously with the CFPB’s March 2015 announcement of plans for new stringent regulations on payday lending summed up: “One of the most critical components of the Wall Street Reform bill passed by Congress in 2010 and signed by the President was the creation of the Consumer Financial Protection Bureau (CFPB), a dedicated, independent cop on the beat with the single goal of protecting consumers from threats like abusive practices of unscrupulous lenders or the fraudulent practices of debt collectors.”
7. "Book Review: The Conservatarian Manifesto by Charles C.W. Cooke" by Jeremy Rabkin
Charles C.W. Cooke grew up in England, attended Oxford, then came to America and began writing for National Review. Fans of his magazine articles – and I count myself among them – will recognize Cooke’s style: cool, witty, firmly judgmental. Each of the ten short chapters in this book could make for a provocative essay if published separately in an opinion magazine. Taken together, however, they don’t add up to a very compelling book.
6. "Interpol’s Transnational Policing By 'Red Notice' and 'Diffusions'" by Peter M. Thomson
Rasoul Mazrae, a citizen of Iran, was an outspoken critic of his government. Although his political speech would have been protected in the United States as a constitutional right, in Iran his conduct was considered a crime against the state. Fleeing his persecutors, Mazrae was taken into custody in Syria based on a wanted alert published by the International Criminal Police Organization—Interpol. He was extradited to Iran, jailed, tortured, and then sentenced to death. The wanted alert disseminated by Interpol for Mazrae’s capture was a Red Notice, which under Interpol’s constitution should not have been issued because Mazrae’s crime was of a “political character.” His case is just one example of numerous instances where Interpol’s Red Notice system has been exploited by its members to locate, detain, and extradite persons for political, racial, or religious reasons. In these and even legitimate cases warranting Interpol’s engagement, Red Notices come with considerable human impact. Those targeted often suffer serious financial, personal and professional harm; ultimately, they face arrest, detention, and extradition.
5. "Horne v. United States Department of Agriculture: The Takings Clause and the Administrative State" by Brian T. Hodges & Christopher M. Kieser
The U.S. Supreme Court’s recent decision in Horne v. United States Department of Agriculture (Horne II) was a significant victory for property rights advocates, and an even more significant victory for opponents of the administrative state. In an 8-1 decision, the Court held that a government program that seeks to control market prices by seizing a portion of a farmer’s crop violates the Takings Clause of the Fifth Amendment. In broad terms, the Court reaffirmed that personal property and real property enjoy the same protected status under the Fifth Amendment. It clarified that when the government adopts a regulation that authorizes it to physically appropriate personal property, the regulation effects a taking—the fact that the owner might derive some ancillary benefit from the regulation is irrelevant to the question of whether a taking occurred. Importantly, the Court also allowed property owners to challenge the imposition of such a regulation before the government takes their property, instead of having to seek compensation for it later. The decision is particularly notable in that it continued the Roberts Court’s trend toward a pragmatic and limited-government interpretation of the Takings Clause.
4. "Does EPA’s Clean Power Plan Proposal Violate the States’ Sovereign Rights?" by David B. Rivkin, Jr., Mark DeLaquil, & Andrew Grossman
Congress’s statement of policy in the Clean Air Act that “air pollution control at its source is the primary responsibility of States and local governments” is not merely hortatory. It reflects both the practical reality of and constitutional limitations on federal regulation of air quality. The practical reality is that the federal government relies on the states both for the detailed policymaking necessary to achieve national goals on a state-by-state basis and for the implementation and enforcement of pollution-control programs with respect to particular sources. But, no matter its reliance, the federal government is forbidden from commandeering the states or their officials to carry out federal law, from coercing them to do so, and from invading the states’ own powers. The Clean Air Act resolves this tension through a system of “cooperative federalism” that gives states the opportunity to regulate in accordance with federal goals and provides for direct federal regulation as a backstop should they fail to do so. This accommodation allows the federal government to enlist the states’ assistance in achieving federal goals without exceeding its authority under the Constitution.
3. "The Circuit Splits Are Out There—and the Court Should Resolve Them" by Evan Bernick
Under the circumstances, Chief Justice John Roberts appeared to be in excellent spirits. On June 29, 2012, the morning after he announced a badly fractured decision upholding the Affordable Care Act’s individual mandate, the Chief Justice gave a talk at the District of Columbia Circuit judicial conference in which he covered various Court-related topics and took questions from the audience. When asked about the fact that the number of cases argued before the Supreme Court has continued to decline even as the number of petitions for writs of certiorari has increased, Roberts responded that the Court could hear “100 cases without any stress or strain, but the cases just aren’t there.” He also emphasized that circuit splits are far and away the most important consideration in deciding whether to grant cert petitions.
2. "Justice Alito Reviews The Constitution: An Introduction by Michael Stokes Paulsen & Luke Paulsen" by Justice Samuel Alito
The Constitution belongs to the American people. It is based on the proposition that all legitimate political power comes from “We the People,” and two centuries after its adoption, it is respected and cherished by ordinary Americans. When controversies arise about the exercise of power by the Congress, the President, or the courts, citizens turn to the Constitution for guidance.
Many Americans interested in understanding the Constitution naturally—and quite correctly—look first to the document itself, which is relatively brief and still quite readable. But where should interested citizens look if they want to know more?
A new book by Michael Stokes Paulsen, a distinguished constitutional scholar, and his son, Luke, a recent college graduate, fits the bill. It provides a solid, intelligent, reliable, and interesting look at the origins of the Constitution, its basic structure, and its interpretation over the course of our country’s history.
1. "The Legality of Executive Action After King v. Burwell" by Josh Blackman
Section 36B of the Affordable Care Act (ACA) authorizes subsidies in the form of refundable tax credits for health insurance purchased through a state-established exchange. The “credit” “shall be allowed” based on the number of months “the taxpayer . . . is covered by a qualified health plan . . . enrolled in through an Exchange established by the State under § 1311.” After recognizing that this statute on its face limited subsidies to exchange established by states—meaning no subsidies would be paid in states relying on the federal exchanges—the Treasury Department issued a rule, providing that subsidies would be available in all states “regardless of whether the Exchange is established and operated by a State . . . or by HHS.”