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Third Annual Executive Branch Review Conference

The Role of Congress in Policing the Administrative State

June 18, 2015

The theme of the Third Annual Executive Branch Review Conference, what role does and should Congress play vis-a-vis the administrative state, will be developed in a series of addresses, debates and panel discussions. Experts will discuss incentives for Congressional action and inaction, reducing delegation from Congress to the agencies through more precise statutory language, the tools of Congressional oversight, and more. The conference will also include breakout sessions by selected practice groups to provide detailed discussion about executive branch activities in particular areas of the law.

Keynote Address:


Hon. Mitch McConnell
Senate Majority Leader

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9:00 a.m. - 9:30 a.m.
Welcome & Opening Address by Mitch McConnell

Third Annual Executive Branch Review Conference

Topics: Administrative Law & Regulation • Separation of Powers • Federalism & Separation of Powers
East Room
The Mayflower Hotel
1127 Connecticut Ave N.W.
Washington, DC 20036

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The theme of the Third Annual Executive Branch Review Conference, what role does and should Congress play vis-a-vis the administrative state, will be developed in a series of addresses, debates and panel discussions. Experts will discuss incentives for Congressional action and inaction, reducing delegation from Congress to the agencies through more precise statutory language, the tools of Congressional oversight, and more. The conference will also include breakout sessions by selected practice groups to provide detailed discussion about executive branch activities in particular areas of the law.

Senate Majority Leader Mitch McConnell delivered the opening address on June 18, 2015, at the Mayflower Hotel in Washington, DC.

  • Hon. Mitch McConnell, U.S. Senate, Majority Leader
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Speakers

9:40 a.m. - 11:10 a.m.
The Telecommunications Act: Can it Rein in the FCC?

Third Annual Executive Branch Review Conference

Topics: Administrative Law & Regulation • Telecommunications & Electronic Media
Senate Room
The Mayflower Hotel
1127 Connecticut Ave N.W.
Washington, DC 20036

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The communications and technology sectors have seen an explosion of growth and innovation over the last decade, and yet the primary body of law governing these areas, The Communications Act, has not been updated since the days of dial-up internet. In 2013, House Energy and Commerce Committee Chairman Fred Upton (Mich.) and Communications and Technology Subcommittee Chairman Greg Walden (Oreg.) announced that they would commence efforts to “update the law to better meet the dynamic needs of the 21st century.” In January, Senate Commerce Committee Chairman John Thune (S. Dak.) announced similar plans.

Our panel will discuss recent efforts to update the Communications Act for the modern internet age. What should a new framework look like? With the convergence of technologies, should the current platform-specific regulation be replaced with a more flexible, service-based regulatory scheme? Should special considerations still apply in certain services? How could such regulations impact developing business models and evolving technologies? Should the scope of the FCC’s jurisdiction remain the same? These and other issues will be explored.

  • Mr. Jonathan Adelstein, President & CEO, PCIA - The Wireless Infrastructure Association
  • Ms. Kelly Cole, National Association of Broadcasters
  • Ms. Grace Koh, U.S. House of Representatives Committee on Energy and Commerce
  • Mr. David B. Quinalty, U.S. Senate Committee on Commerce, Science, and Transportation
  • Moderator: Mr. Scott Belcher, Telecommunications Industry Association

Speakers

9:40 a.m. - 11:10 a.m.
The Clean Power Plan: A Bridge too Far?

Third Annual Executive Branch Review Conference

Topics: Environmental & Energy Law • Environmental Law & Property Rights
Promenade Room
The Mayflower Hotel
1127 Connecticut Ave N.W.
Washington, DC 20036

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The Environmental Protection Agency has proposed new regulations for CO2 emission reductions from existing power plants. The proposal requires states to implement the Agency’s Clean Power Plan. Proponents argue that it is an essential measure to protect vital natural resources; opponents argue that it will be massively costly and logistically difficult to implement (particularly given the timeframes required in the proposed regulations), and that it robs the states of their sovereign power. Our panel of experts will discuss the underlying legal authority for EPA’s proposal, the appropriate federalism model for regulation of CO2 emissions under the Clean Air Act, and the policy implications.

  • Mr. David Doniger, Natural Resources Defense Council
  • Mr. Mark W. DeLaquil, Baker & Hostetler LLP 
  • Mr. Robert M. Sussman, Sussman & Associates 
  • Mr. Misha Tseytlin, West Virginia Attorney General's Office
  • Moderator: Ms. Elana Schor, Politico

Speakers

9:40 a.m. - 11:10 a.m.
Costs and Benefits vs. Smoke and Mirrors

Third Annual Executive Branch Review Conference

Topics: Administrative Law & Regulation • Law & Economics • Separation of Powers • Federalism & Separation of Powers
East Room
The Mayflower Hotel
1127 Connecticut Ave N.W.
Washington, DC 20036

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The economics profession has long proffered Benefit-Cost Analysis (BCA) as the best tool for making balanced and efficient governmental decisions on spending and regulation.  Though some critics object to the tool, presidents from both parties for over four decades have endorsed the BCA paradigm as the preferred way to make sound regulatory decisions, and Congress is considering legislation that would require agencies to support major regulatory initiatives with BCA.

But is BCA a silver bullet for improving policy decisions?  If not, what procedural and analytical changes might improve its usefulness as a policy development tool? This diverse panel of legal and policy experts will explore these questions and examine the appropriate role for congressional and judicial oversight, the proper scope of BCA, and when analysis should be conducted and by whom.

  • Hon. C. Boyden Gray, Boyden Gray & Associates
  • Mr. Michael A. Livermore, University of Virginia School of Law
  • Mr. Richard D. Morgenstern, Resources for the Future
  • Hon. Eugene Scalia, Gibson Dunn and Crutcher
  • Moderator: Hon. Susan E. Dudley, The George Washington University

Speakers

11:20 a.m. - 12:20 p.m.
Plenary Panel: Should Federal Law Enjoy a Presumption of Constitutionality?

Third Annual Executive Branch Review Conference

Topics: Administrative Law & Regulation • Constitution • Federalism • Separation of Powers • Federalism & Separation of Powers
East Room
The Mayflower Hotel
1127 Connecticut Ave N.W.
Washington, DC 20036

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Does the judiciary owe Congress presumptive deference in reviewing and considering challenges to federal statutes?  If so, what standards should courts impose on those making such challenges?

The historical practice of such presumptive deference, the canon of constitutional avoidance, has been reflected in decades of judicial decisions upholding much Congressional legislation.  However, some believe that, in light of courts' observance of the canon of constitutional avoidance, Congress correspondingly enacts legislation without taking care that such legislation is actually constitutional.

In recent years, Congress is increasingly likely to pass acts that run to hundreds or even thousands of pages.  The bills are typically drafted by staffers, sometimes hastily written and amended at the last moment, and often not read by legislators before votes are cast.  Some bills are passed at the midnight hour, sometimes with provisions for expedited judicial review of the bill's constitutionality, as if Congress is leaving wholly to the judiciary the assessment of a law's constitutionality

Some now assert that, given how Congress enacts legislation, courts should rethink the canon of constitutional avoidance.

Our panel will consider this question and the proper applicability of the canon of constitutional avoidance.

  • Hon. David M. McIntosh, Club for Growth
  • Mr. Clark Neily, Institute for Justice 
  • Mr. M. Edward Whelan III, Ethics and Public Policy Center
  • Moderator: Hon. Thomas B. Griffith, United States Court of Appeals for the District of Columbia Circuit

Speakers

12:30 p.m. - 2:00 p.m.
Luncheon Panel: The Incentives behind Congressional Delegation

Third Annual Executive Branch Review Conference

Topics: Administrative Law & Regulation • Separation of Powers • Federalism & Separation of Powers
State Room
The Mayflower Hotel
1127 Connecticut Ave N.W.
Washington, DC 20036

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In administrative law the focus has primarily been on how to constrain executive discretion. It may, however, be equally important to consider how to constrain the delegations that create that discretion—not just by telling Congress to “do its job,” but by thinking about how to shift the incentives that members have for delegation. This panel will consider what Congress gains by delegating policymaking authority to the executive. The conventional view holds that delegations only expand the power of the executive, ignoring the myriad reasons that Congress chooses to delegate its power. Members of Congress may realize a variety of benefits from delegation, including control over how agencies exercise their discretion. Panelists will discuss the reasons why Congress delegates so broadly and consider what legal and political solutions might curb such delegations.

  • Prof. Jack M. Beermann, Boston University School of Law
  • Prof. Gillian E. Metzger, Columbia Law School
  • Prof. Neomi J. Rao, George Mason University School of Law
  • Moderator: Mr. Dean A. Reuter, The Federalist Society

Speakers

2:00 p.m. - 3:30 p.m.
Plenary Panel: Congressional Oversight

Third Annual Executive Branch Review Conference

Topics: Administrative Law & Regulation • Separation of Powers • Federalism & Separation of Powers
Promenade Room
The Mayflower Hotel
1127 Connecticut Ave N.W.
Washington, DC 20036

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After delegating significant power to the administrative state, is Congress properly discharging its oversight role? Are there tools available to Congress that are underutilized? Would a proper annual budget process help? Are Congress’ oversight hearings meaningful, well-run, and properly focused? Should Congress be requesting more information from agencies through other avenues?

  • Prof. Jonathan H. Adler, Case Western Reserve University School of Law
  • Mr. Michael D. Bopp, Gibson Dunn and Crutcher
  • Prof. Sally Katzen, New York University School of Law
  • Mr. Adam J. White, Boyden Gray & Associates
  • Moderator: Hon. Todd F. Gaziano, Pacific Legal Foundation

Speakers

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