The Texas Chapter of the Federalist Society held its second annual chapter conference on September 17 in Austin, Texas. The theme of the weekend was “The Separation of Powers in the Administrative State.”
The Texas Attorney General Ken Paxton opened the event with vigor. He led with a well-received quip, stating that he “doesn’t mind living here in Austin, because it’s not that far from Texas.” He then went on to speak regretfully on the number of laws that continue to proliferate, and the incoherency of those laws. In conclusion, he said, “I’ll call agency deference what it is: unconstitutional.”
Afterward, the morning panel focused on Justice Scalia and the Evolution of Chevron Deference. To being, Judge Edith Jones, U.S. Court of Appeals, Fifth Circuit served as Moderator. The panel consisted of several notable speakers from Texas and elsewhere. Professor Aditya Bamzai, Associate Professor of Law at University of Virginia School of Law joined the panel; his contributions were especially upbeat and scholarly. In particular, he highlighted the significance of de novo review and interpretation with customary contemporaneous review. Professor Ron Beal from Baylor University Law School spoke in defense Chevron, stating that it brought consistency and clarity to the law. In addition, Hon. Charles J. Cooper, founding member at Cooper & Kirk, PLLC and former Assistant U.S. Attorney General for the Office of Legal Counsel was both funny and charming in his comments on Chevron, which he described as his “friend” during his time at the Department of Justice. Mr. Cooper did however address the fact that Article III of the Constitution does create a bit of separation of powers problem. Professor Aaron Nielson of Brigham Young University Law School was another pro-Chevron contributor, but Mr. Neilson limited that applicability to agencies alone. Overall, the panel was spirited and informative, examining varied perspectives on Chevron deference. Not surprisingly, the anti-Chevron audience seemed to outweigh the pro-Chevron members by substantial number.
Just before lunch, Senator Ted Cruz, the day’s keynote speaker, spoke briefly to the conference. Senator Cruz’s spoke on the passing of Justice Scalia, and the impact that the Justice had on Supreme Court Jurisprudence. Cruz’s address also highlighted the importance of Second Amendment rights, noting that, given the passing of Justice Scalia, and depending on the next Justice named to the court, Americans could be in very real danger of losing their gun rights.
Following the lunch break, panel two focused on Local Control or Abdication of Individual Rights. The participants in this panel included Rep. Phil King, District 61, Texas House of Representatives, Andrew P. Morriss, Dean and Anthony G. Buzbee Dean’s Endowed Chair, Texas A&M University School of Law, and Don Zimmerman, Council Member, District 6, Austin. In addition, Hon. Michael Massengale, First Court of Appeals, Texas served as moderator. Justice Massengale laid the framework for the panel, beginning with an overview of the structure and purpose of federalism, noting the similarities in that structure and the focus of the panel, city restrictions versus personal liberty. The question that the panel addressed was whether certain city-enacted restrictions are appropriate, or if preventing those restrictions would be an interference with local control. Dean Morris noted that one positive aspect of local control is the ability to change, relatively quickly, government that the people might like. Representative King brought a bit of both policy and political perspectives; he spoke about the economic significance of local control. In particular, King addressed fracking in Texas, where there has been no groundwater contamination that might necessitate regulation; regardless of this lack of need for regulation, certain cities have attempted to ban fracking locally, which has a demonstrably negative economic impact. While Texas cities have traditionally been able to regulate fracking through zoning laws, allowing those cities to continue such regulation could dramatically stymie economic development. Don Zimmerman led his segment with comments on a program through which the city of Austin will now be giving taxpayer drainage fees to the University of Texas to study salamander DNA. Given the tone of Mr. Zimmerman’s comments, it was clear from the outset that he is definitely not a fan of such kinds of local control. He referenced his time at city hall as his “time at the death star,” and was generally wry, funny, and clearly committed to his ideals, particularly his opposition to “home rule.”
Panel three, which concluded the afternoon session, focused on Texas and Regulation. The panel for this discussion consisted of Arif Panju of the Institute for Justice, Tim Sandefur, of the Goldwater Institute and author of The Right to Earn a Living, Prerak Shah from the Office of Texas Attorney General, and Russell Withers, General Counsel for the Texas Conservative Coalition Research Institute. Much loved Justice Don Willett, Texas Supreme Court acted as moderator. As noted in his introduction, Justice Willett’s eyebrow threading concurrence, from a case where the Texas Supreme Court struck down a state regulation which required eyebrow threaders to obtain a cosmetology license to practice their trade, made him an excellent choice for moderator. Justice Willett led with a hilariously Trump-esque comment to the audience, stating that he was sure that the final panel would be the “most classy, luxurious, and high-energy panel you’ve heard today, believe me.” Justice Willett then highlighted the importance of determining the appropriate level of judicial involvement in determining the legality of economic regulation. Tim Sandefur spoke strongly in favor government protection of the right to work, reaching back as far as Shakespeare and early American history to eloquently justify his position. He then moved to a rousing criticism of rational basis review. Russell Withers, too, decried excessive government regulation in the province of economic liberty, specifically occupational licensing. Texas filed about 360 bills last year relating to occupational licensing, which Mr. Withers emphasized as absolutely ridiculous. Following Mr. Withers, Arif Panju spoke about the Institute for Justice’s work in decreasing occupational licensing requirements. Mr. Panju referenced the 500 occupations in Texas that now require licensing, requirements that affect one in three Texans. Wrapping up the panel was Prerak Shah, laughingly self-deprecating, noting that he was “the bad guy” on the panel. Bad guy or not, his comment that Substantive Due Process is “not a thing,” met with a fair amount of applause from the audience. Mr. Shah argued for legislative supremacy, rather than allowing the judiciary to strike down laws, position at least supported by his audience, even if not supported by the rest of his panel.
Overall, the panels generated exceptionally positive responses; there was substantial audience participation. Between speakers, attendants milled about the halls, joking with their peers and discussing the opinions espoused during the panels. In sum, the event was a solid success, enjoyed by lawyers and speakers alike.