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2020 National Lawyers Convention

The Rule of Law and the Current Crisis

November 9 — 13, 2020

The 2020 National Lawyers Convention has concluded. All sessions were live streamed to the public for free and are now available to watch anytime here on our website, YouTube, and other social media platforms. Videos have been converted into audio podcasts and uploaded to our FedSoc Events podcast, available on your podcast platform of choice.

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The Federalist Society is pleased to announce that its annual National Lawyers Convention will be held virtually during the week of November 9-13, 2020. Distinguished guests and experts will deliver addresses, participate in debates, and contribute to panel discussions focusing on the theme of “The Rule of Law and the Current Crisis.”

These virtual events will be broadcast each weekday from Monday, November 9 to Friday, November 13, with Practice Group Breakout Sessions on Monday, Tuesday, Wednesday and Friday and a mixture of showcase panels, debates, and addresses on Thursday. The entire event will be live streamed to the public for free, but if you wish to participate in Q&A, you must register for each Zoom webinar separately. Registration is free (except for those wishing to register for CLE credit). You do not need to be a member or have an online account in order to register for any of the sessions or to obtain CLE.

Click here for CLE Instructions

As always, in keeping with the Federalist Society's long-standing tradition of balanced and spirited debate, we have invited speakers with a wide variety of perspectives to participate in each panel discussion. We aim to make thoughtful, diverse discussions of today's most pressing legal and policy issues accessible and engaging to all.

We hope you will make plans to join us in November. We are excited for this year's virtual Convention, we encourage you to tune in, and we invite you to learn more about the work we do at the Federalist Society.

All sessions will be available as live streams on our web site and other platforms for free. There is no need to register unless you wish to participate in Q&A.

FEATURED ADDRESSES


Hon. Samuel A. Alito, Jr.
Associate Justice,
United States Supreme Court

8:00 p.m.
Thursday, November 12

 


Hon. Eugene Scalia
Secretary of Labor,
United States Department of Labor

2:45 p.m.
Thursday, November 12

        


Hon. Janice Rogers Brown
Former Judge,
United States Court of Appeals,
District of Columbia Circuit

6:00 p.m.
Thursday, November 12

 

2020 NATIONAL LAWYERS CONVENTION SCHEDULE

MONDAY, NOVEMBER 9

Religious Liberties: Religious Liberty and the New Court
11:00 a.m. – 12:15 p.m.

Environmental Law & Property Rights: EPA Turns 50: A Debate on Environmental Progress and Regulatory Overreach
12:30 p.m. – 1:45 p.m.

Criminal Law: Prosecutorial Discretion, Partisanship, and the Rule of Law
2:00 p.m. – 3:30 p.m.

Administrative Law & Regulation: Regulatory Practice and Oversight in 2021 and Beyond
3:45 p.m. – 5:00 p.m.

TUESDAY, NOVEMBER 10

Free Speech & Election Law: Rule of Law, or Just Making it Up? First Amendment Tiered Scrutiny
11:00 a.m. – 12:15 p.m.

Professional Responsibility & Legal Education: Freedom of Association in the Legal Profession
12:30 p.m. – 1:45 p.m.

Corporations, Securities & Antitrust and Telecommunications & Electronic Media: Regulating Social Media
2:00 p.m. – 3:30 p.m.

Litigation: Are MDL Judges Too Powerful?
3:45 p.m. – 5:00 p.m.

WEDNESDAY, NOVEMBER 11

International & National Security Law: The Law, China, and the Possible New Cold War
11:00 a.m. – 12:15 p.m.

Labor & Employment Law: Agency Leaders on Labor Policy
12:30 p.m. – 1:45 p.m.

Intellectual Property: Intellectual Property Rights and the Rule of Law
2:00 p.m. – 3:30 p.m.

Civil Rights: Modern Quandaries of Law Enforcement
3:45 p.m. – 5:00 p.m.

THURSDAY, NOVEMBER 12

Showcase Discussion: A Discussion with Professors Robert George and Cornel West on Freedom of Speech, Freedom of Thought, the Black Lives Matter Movement, and the Cancel Culture
11:00 a.m. – 12:15 p.m.

Showcase Panel I: Law, Social Justice, Wokeness and the Protests: Where Do We Go From Here?
12:45 p.m. – 2:15 p.m.

Address by Secretary of Labor Eugene Scalia
2:45 p.m. – 3:45 p.m.

Showcase Panel II: The Presidency and the Rule of Law
4:15 p.m. – 5:45 p.m.

Address by Judge Janice Rogers Brown
6:00 p.m. – 7:00 p.m.

Address by Justice Samuel Alito
8:00 p.m. – 9:00 p.m. 

FRIDAY, NOVEMBER 13

Special Session: The Future of the Second Amendment's Right to Keep and Bear Arms: From the Supreme Court to Social Unrest
11:00 a.m. – 12:15 p.m.

Financial Services & E-Commerce: Agency Leaders on Cryptocurrency, Blockchain, and the Evolution of a Central Bank Digital Currency
12:30 p.m. – 1:45 p.m.

Federalism & Separation of Powers: Emergency Powers and the Rule of Law
2:00 p.m. – 3:30 p.m.

 

Confirmed Speakers:

  • Hon. Samuel A. Alito, Jr., Associate Justice, United States Supreme Court
  • Hon. Paul S. Atkins, Chief Executive Officer, Patomak Global Partners, LLC; Former Commissioner, United States Securities and Exchange Commission
  • Prof. Stephanie Barclay, Associate Professor of Law, University of Notre Dame Law School
  • Prof. Randy E. Barnett, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center
  • Hon. Duane Benton, United States Court of Appeals, Eighth Circuit
  • Prof. Ashutosh Bhagwat, Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality; Martin Luther King Jr. Professor of Law, University of California, Davis School of Law
  • Ms. Susan Bodine, Assistant Administrator, Office of Enforcement and Compliance Assurance, United States Environmental Protection Agency
  • Mrs. Jennifer C. Braceras, Director, Independent Woman's Law Center
  • Prof. Gerard V. Bradley, Professor of Law, University of Notre Dame Law School
  • Hon. Elizabeth "Lisa" Branch, United States Court of Appeals, Eleventh Circuit
  • Mr. Brian P. Brooks, Acting Comptroller of the Currency, Office of the Comptroller of the Currency, United States Department of the Treasury
  • Hon. Janice Rogers Brown, United States Court of Appeals, District of Columbia Circuit (ret.); Former Associate Judge, California Supreme Court
  • Hon. Patrick J. Bumatay, United States Court of Appeals, Ninth Circuit
  • Prof. Elizabeth Chamblee Burch, Fuller E. Callaway Chair of Law, University of Georgia School of Law
  • Hon. Brendan Carr, Commissioner, Federal Communications Commission
  • Hon. Ronald A. Cass, Dean Emeritus, Boston University School Law; President, Cass & Associates 
  • Prof. Jorge Contreras, Professor of Law, University of Utah School of Law 
  • Dr. John Eastman, Professor of Law, Dave E. Fowler Law School, Chapman University
  • Mr. W. Neil Eggleston, Partner, Kirkland & Ellis, LLP, Former White House Counsel
  • Prof. Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law; Peter and Kirsten Bedford Senior Fellow, Hoover Institution
  • Mr. Harold Feld, Senior Vice President, Public Knowledge
  • Prof. Brian T. Fitzpatrick, Milton R. Underwood Chair in Free Enterprise, Vanderbilt University Law School
  • Mr. Scott Fulton, President, Environmental Law Institute; Former General Counsel, United States Environmental Protection Agency
  • Prof. Robert P. George, McCormick Professor of Jurisprudence and Director, James Madison Program in American Ideals and Institutions, Princeton University 
  • Hon. Jack L. Goldsmith, Professor of Law, Harvard University; Former Assistant Attorney General, United States Department of Justice
  • Hon. Britt C. Grant, United States Court of Appeals, Eleventh Circuit
  • Amb. C. Boyden Gray, Founding Partner, Boyden Gray & Associates; Former White House Counsel; Former Ambassador to the European Union
  • Hon. Thomas B. Griffith, United States Court of Appeals, District of Columbia Circuit (ret.)
  • Mr. Gary G. Grindler, Retired Partner, King & Spalding; Former, Acting Deputy Attorney General, United States Department of Justice
  • Mr. Deepak Gupta, Founding Principal, Gupta Wessler PLLC
  • Hon. Sharon Fast Gustafson, General Counsel, United States Equal Employment Opportunity Commission
  • Amb. Richard Haass, President, Council of Foreign Relations; Former Director of Policy Planning, United States Department of State
  • Hon. F. Henry “Hank” Habicht, Principal, Global Water 2020; Managing Director, United States Water Partnership; Managing Partner, SAIL Capital Partners
  • Ms. Kathleen Ham, Senior Vice President, Government Affairs, T-Mobile
  • Hon. Thomas M. Hardiman, United States Court of Appeals, Third Circuit
  • Prof. Lisa Heinzerling, Justice William J. Brennan Jr., Professor of Law, Georgetown University Law Center
  • Hon. James C. Ho, United States Court of Appeals, Fifth Circuit
  • Mr. W. William Hodes, Owner and President, The William Hodes Law Firm
  • Hon. Ryan T. Holte, United States Court of Federal Claims
  • Mr. Larry H. James, Managing Partner, Crabbe Brown & James LLP
  • Mr. Phil Johnson, Founder and Principal, Johnson-IP Strategy and Policy Consulting; Former Senior Vice President and Chief Intellectual Property Counsel, Johnson & Johnson
  • Hon. Edith H. Jones, Chief Judge, United States Court of Appeals, Fifth Circuit
  • Hon. Gregory G. Katsas, United States Court of Appeals, District of Columbia Circuit
  • Hon. Sally Katzen, Professor of Practice and Distinguished Scholar in Resident; Co-Director, Legislative and Regulatory Process Clinic, New York University School of Law
  • Prof. Randall Kennedy, Michael R. Klein Professor of Law, Harvard Law School
  • Prof. Julian Ku, Senior Associate Dean for Academic Affairs, Faculty Director, International Programs, Maurice A. Deane School of Law, Hofstra University
  • Prof. Genevieve Lakier, Assistant Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School
  • Hon. Barbara Lagoa, United States Court of Appeals, Eleventh Circuit
  • Hon. Kenneth K. Lee, United States Court of Appeals, Ninth Circuit
  • Ms. Heather Mac Donald, Contributing Editor, City Journal, Manhattan Institute
  • Mr. Andrew C. McCarthy, Contributing Editor, National Review; Senior Fellow, National Review Institute: Contributor, Fox News; Former Chief Assistant United States Attorney, Southern District of New York
  • Mr. Robert McNamara, Senior Attorney, Institute for Justice
  • Hon. Brent J. McIntosh, Undersecretary for International Affairs, United States Department of the Treasury
  • Prof. John O. McGinnis, George C. Dix Professor of Constitutional Law, Northwestern Pritzker School of Law
  • Hon. Michael B. Mukasey, Of Counsel, Debevoise & Plimpton; Former United States Attorney General; Former Chief Judge, United States District Court, Southern District of New York
  • Hon. Ryan D. Nelson, United States Court of Appeals, Ninth Circuit
  • Mr. John Ohlendorf, Associate, Cooper & Kirk, PLLC
  • Hon. Theodore B. Olson, Partner, Gibson Dunn; Former United States Solicitor General
  • Hon. Hester M. Peirce, Commissioner, United States Securities and Exchange Commission 
  • Hon. William H. Pryor Jr., United States Court of Appeals, Eleventh Circuit
  • Hon. Neomi Rao, United States Court of Appeals, District of Columbia Circuit
  • Hon. Mike Rogers, Board of Trustees, Center for the Study of the Presidency and Congress; Former United States Representative; Former Chairman, House Permanent Select Committee on Intelligence
  • Hon. Peter B. Robb, General Counsel, United States National Labor Relations Board
  • Prof. Nicholas Quinn Rosenkranz, Professor of Law, Georgetown University Law Center
  • Hon. Eugene Scalia, Secretary of Labor, United States Department of Labor 
  • Mr. Christopher A. Seeger, Partner, Seeger Weiss LLP
  • Mr. Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute 
  • Prof. Mark W. Smith, Senior Fellow in Law and Public Policy: Presidential Scholar, The King's College
  • Hon. Cheryl Stanton, Administrator, Wage and Hour Division, United States Department of Labor
  • Mr. Charles “Cully” Stimson, Senior Legal Fellow and Manager, National Security Law Program, The Heritage Foundation
  • Hon. David R. Stras, United States Court of Appeals, Eighth Circuit
  • Prof. Nadine Strossen, John Marshall Harlan II Professor of Law Emerita, New York Law School; Former President, American Civil Liberties Union
  • Hon. Karyn A. Temple, Senior Executive Vice President and Global General Counsel, Motion Picture Association; Former Register of Copyrights, United States Copyright Office
  • Hon. Amul R. Thapar, United States Court of Appeals, Sixth Circuit
  • Hon. Lawrence Van Dyke, United States Court of Appeals, Ninth Circuit
  • Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, University of California, Los Angeles School of Law
  • Hon. Kenneth L. Wainstein, Partner, Davis Polk & Wardwell LLP; Former, United States Homeland Security Advisor; Former Assistant Attorney General, National Security, United States Department of Justice; Former United States Attorney, Washington D.C. 
  • Prof. Cornel R. West, Professor of Public Philosophy, Harvard University; Professor Emeritus, Princeton University 
  • Prof. Adam J. White, Assistant Professor of Law, Director, C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School, George Mason University; Resident Scholar, American Enterprise Institute
  • Hon. Christine Wilson, Commissioner, Federal Trade Commission 
  • Ms. Lori Windham, Senior Counsel, The Becket Fund for Religious Liberty
  • Ms. Elizabeth B. Wydra, President, Constitutional Accountability Center
  • Prof. John C. Yoo, Emanuel S. Heller Professor of Law; Co-Faculty Director, Korea Law Center; Director, Public Law & Policy Program, University of California, Berkeley School of Law
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11:00 a.m. - 12:15 p.m.
Religious Liberties: Religious Liberty and the New Court

2020 National Lawyers Convention

Topics: Constitution • Culture • First Amendment • Religious Liberty • Religious Liberties • Supreme Court
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On November 9, 2020, The Federalist Society's Religious Liberties Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The topic of the panel was "Religious Liberty and the New Court."

Religious liberty and religious free exercise in the modern era often involve the question of when religious exemptions are appropriate or required. A well-trodden debate asks whether the Free Exercise Clause provides relief only from laws that target religion, or whether it also requires courts to grant exemptions from generally applicable laws that happen to burden religion.  But much less has been said about how courts should implement either of these two readings.  First, how can courts tell if a law is truly general in application?  If religious entities must be treated as well as secular analogues, what makes a secular entity "analogous"?  Second, if the Free Exercise Clause requires something more than even-handed treatment of religious entities, what more is needed?  What sort of test should be used to determine when to grant exemptions from a general law?  The first question came up repeatedly in cases challenging the shutdown orders prompted by COVID-19, and is also at issue in Fulton v. City of Philadelphia, now pending before the U.S. Supreme Court. Depending on how the Court decides that case, it may address the second question as well. This panel explores both questions, and features opposing perspectives on religious exemptions as a matter of history, doctrine, and constitutional law.

Featuring:

  • Prof. Stephanie Barclay, Associate Professor of Law, University of Notre Dame Law School
  • Prof. Gerard V. Bradley, Professor of Law, University of Notre Dame Law School
  • Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, University of California, Los Angeles School of Law 
  • Ms. Lori Windham, Senior Counsel, The Becket Fund for Religious Liberty
  • Moderator: Hon. Neomi Rao, United States Court of Appeals, District of Columbia Circuit
  • Introduction: Hon. Dean A. Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society 

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

Event Transcript

Hon. Dean A. Reuter:  —President, General Counsel, and Director of Practice Groups at The Federalist Society. And I’m so pleased to welcome you to our first ever all-virtual convention. Over the next five days, we’ll host over 20 panel discussions, debates, and addresses. As is typical of The Federalist Society, we’ll hear a variety of views on a seemingly endless array of topics. Some might say an intellectual feast.

 

I’m very pleased to welcome you this morning not only to the Convention but to our first panel discussion, sponsored by our Religious Liberties Practice Group and its chairman Bill Saunders. I’m honored also to introduce our first moderator, Judge Neomi Rao, who sits on the U.S. Court of Appeals for the D.C. Circuit.

 

Just one quick word about her confirmation process, and something I might call the typical Washington rush to judgement. In the days after her nomination was announced, I was driving to work and listening to news radio as various experts held forth about her jurisprudence, her qualifications, her background, her shortcomings—her perceived shortcomings, I should say—etc.

 

I was surprised that so many experts could know her work so well, so quickly, but they were firm in their analysis. They were so filled with insight and immersed in knowledge about their subject, the nominee, that they managed to mispronounce both her first and last name throughout their breathless reports. In reality, she has what seems like an impossibly long career before becoming judge.

 

She steeped in administrative law expertise, clerked for J. Harvie Wilkinson and Justice Clarence Thomas, also served in the White House Counsel’s office and the Senate Judiciary Committee. And she has experience in big law and academia as well. She’s perfectly suited to the court to which she was appointed in March 2019. I’m proud to know her and happy to welcome her today. Judge Rao.

 

Hon. Neomi Rao:  Thank you, Dean, for that really kind introduction. It’s such a pleasure here to be moderating the first panel of The Federalist Society’s National Convention. This is certainly one of my favorite events of the year, and I’m glad The Federalist Society is going ahead with a virtual convention. I don’t think even Dean Reuter has quite figured out how to have virtual hallway conversations, so I guess for that, we’ll all have to wait until next year. But in any event, that means we have a week where we can focus on the substance of these panels, so let’s get started.

 

Today, this panel, we’re going to be discussing religious liberty and, in particular, the constitutional protections for religious free exercise. Just last week, the Supreme Court heard arguments in Fulton v. the City of Philadelphia, an important case about whether Philadelphia could exclude Catholic Social Services from its foster care system because the catholic charities would not endorse same-sex couples as foster parents.

 

The plaintiffs in the case have asked the Supreme Court to revisit its 1990 decision in Employment Division v. Smith, which held that the right of free exercise does not permit exemptions from valid and neutral laws of general applicability. Our panelists today will discuss the ongoing validity of Smith, both on historical vote and doctrinal grounds, as well as focus on the debate on the requirements of the Free Exercise Clause for religious practice in a pluralistic society.

 

We have a very distinguished and experienced panel of experts with us to discuss these issues. The speakers’ bios may all be found on The Federalist Society website, so I will just briefly introduce them in the order in which they will be speaking.

 

      We’re going to be starting with Professor Gerard Bradley from Notre Dame Law School, followed by Professor Stephanie Barclay, also Notre Dame Law School. And then we’ll have Professor Eugene Volokh of UCLA Law School, and then, finally, Lori Windham, who is Senior Counsel of the Becket Fund and who last week argued the Fulton case before the Supreme Court.

 

      The way we’re going to work things, we’re going to have five minutes of opening remarks from each of our panelists, and that will be followed by a moderated discussion and questions from our Zoom audience. So with that, Professor Bradley.

 

Prof. Gerard V. Bradley:  Thank you, Judge Rao. In Fulton, the Supreme Court won’t overrule Smith. I say so not because having been her colleague for 18 years, I know more about Justice Barrett’s views of Smith than any of you do. In fact, I don’t. It’s that there are other pathways to holding in favor of Sharonell Fulton and Catholic Social Services so that a majority inclined to overturn Smith won’t have to do it in a case featuring the Catholic Church and its oppositions of same-sex marriage. The majority, if there is one, could wait for a case with less provocative optics.

 

      Now, I hope I’m wrong. That is I hope that Smith is not overruled in Fulton or in any other case because Smith is rightly decided. Smith is right, even though it is one of Justice Scalia’s least convincing opinions. The arguments he made there weren’t cogent, and he didn’t make the arguments that were.

 

Oddly, those missing arguments were Scalia’s usual go-to’s in constitutional cases. One is originalism. Not a trace of it Oregon v. Smith. I would say that Smith is there for a welcomed break from the usual hash of Madison and Jefferson that the justices serve up in these cases, except that Smith was a case where it was needed—not hash, mind you. Scalia needed a critical account of free exercise as original public meaning. One which sidestepped the Court’s habit of imagining the past and remembering the future.

 

In other words, Scalia needed in Smith to make the argument he made seven years later in City of Boerne v. Flores, only longer. That faux historical essay would show dispositively that Smith expresses the original public meaning of free exercise, a reading confirmed by 170 years of Supreme Court precedent up to Sherbert.

 

I think if originalism means anything, it means that Smith is sound notwithstanding one’s regrets about the results it produces in some cases. Now, the other go-to for Scalia is of course judicial activism. One meaning of it is where courts invent constitutional rights as the justices did in Roe and Obergefell. Now, that’s not Smith.

 

The second meaning of judicial activism is that there is something distinctly legislative about a particular instance of judicial law making. In Smith, Scalia does not make this argument, though I think he gestures at it in a two or three points in the opinion, and he should’ve made more of it. This inchoate claim could be flushed out more powerfully now than it could’ve been in 1990 because the center of gravity, in free exercise, has shifted so much since then.

 

The Sherbert test was built to explode wooden conformity to arbitrary rules which disadvantaged religious minorities. I doubt that it performed that task well, and the collateral clause were enormous. The warrant for its main strategy to protect the religious fringe was to suppress the religious center. In any event, the language structure and content of the Sherbert test do not illumine the values at stake in the key pre-exercise cases today.

 

These key cases involve what are often called third-party dignitarian or dignitarian harms. Think of Jack Philips and many other cases like his. These cases are not about government efficiency or budgets compared to the religious wellbeing of, say, a Native American prisoner. Today’s key cases are about fairness to everyone foreseeably affected by a proposed exemption.

 

That fairness is the relevant government interest. Call it compelling or not, as you wish, the truth is it answers the questions about fairness are reason guided but are never logically required free choices. There are no algorithms that collect the relevant interests for the judge, values them, and thereafter computes the correct answer. The judge has to do all of that.

 

These free choices are not applications of rules. It is not like finding that facts fall under a certain pre-established norm. When a judge makes these choices for a whole political community, by making law, it defines that community in an important respect, at least, where one of the central factors in this calculus, this consideration, is religion.

 

Now, all of that sounds, to me, like a legislative and not a judicial task. Now, I’m pleased to hand off the discussion to another Notre Dame Law School colleague, a most accomplished young scholar and litigator, Stephanie Barclay.

 

Prof. Stephanie Barclay:  Thank you, Professor Bradley. It’s a privilege to get to be here and to get to speak about this topic that is so important right now, and I’m grateful to The Federalist Society for inviting me to be alongside these great panelists. What I’m going to talk about today is why I think at some point the Supreme Court should overrule Smith, whether or not in Fulton or in a future case.

 

Professor Michael McConnell has argued that some the most influential founding era theory, religious liberty, flowed from the idea that religious duty trumps claims of civil society. This notion draws from a theory that was relied on in the very influential Memorial and Remonstrance and also the deep tradition of providing religious exemptions at our Founding period, including to Quakers from being drafted into the military.

 

So the argument is that religious exercise, this core protection, was understood to include the right to engage in religious conduct, even when that conduct incidentally conflicted with general legal requirements so long as those sorts of conflicts didn’t endanger public health or safety. So the arguments that have been made against this sort of view from a historical originalist perspective have been made by Professor Bradley and by Professor Hamburger.

 

Professor Hamburger has claimed that it would’ve been improbable, at the Founding generation, that they would’ve contemplated a judiciary with the power to graft exemptions. And Scalia cited to Hamburger’s work in his City of Boerne’s concurrence, where he later defended Smith. And Professor Bradley has some very thoughtful scholarship where he has disagreed with the idea that the judiciary was empowered to create exemptions from laws arguing that this was something that is a judicial creation, an aspect of the post-World-War-II takeover of our civil liberties.

 

One thing that I have challenged with this idea, in a recent Notre Dame Law Review article, is this conventional wisdom that a judicial practice of exempting conduct from statutes is either new or extraordinary. Just the opposite. It turns out that leading up to and during the Founding period, the process of judges creating exemptions from statutes was widely employed and was likely expected.

 

Exemptions have been noted by scholars, such as Professor Eskridge and Manning who have surveyed Founding era cases, and Professor Eskridge has noted that courts had “no problem announcing exceptions to old broadly phrased laws where application” contradicted other forms of fundamental law. Blackstone explained that courts would rely on equity principles to accept those circumstances from legislation and avoid results that infringe on a host of personal liberties when they swept too broadly.

 

And English common law, Theodore Plucknett, observed how regularly judges created equitable exemptions to the application of broad statutory language, and historians such as Professor Wood and Rakoff have emphasized how judges in the early republic had attitudes that were emphatically favorable towards a willingness to bend or except statutory language to avoid clashes with constitutional principles.

 

The mischief rule was one particular form of interpretation that focused on the problem the legislature was trying to solve when it crafted a law, and it looked at whether or not the government was actually advancing that interest when it applied the law. In early Antebellum court, such as People v. Philips and Commonwealth v. Cronin, courts are engaging in this sort of analysis when they are determining that exempting religious objectors would not actually undercut government interests in peace and safety.

 

Indeed, it’s plausible that this sort of mischief rule would have frequently justified lower court decisions, declining to apply laws to religious objectors. Note that this mischief analysis resembles modern strict scrutiny analysis in certain respects, particularly, with the aspect of the test that is looking at whether application of a law to a specific scenario would actually advance the government interests.

 

When you combine that sort of historical principle with also the principles that Professor McConnell and Laycock have written about, the early state constitutions protecting pre-exercise with certain qualifications generally focused on things like public health and safety, that suggests that only certain sorts of government interests were sufficient or would qualify to interfere with religious exercise.

 

So if you have a limited set of government interest, and then courts are regularly analyzing whether or not everyone is actually advancing those interests, that starts to look similar in some important respects to the type of analysis courts engage in under modern strict scrutiny under, say, a RFRA regime.

 

So one other thing that I want to talk about that’s relevant, I think, for the history, with respect to Fulton, is that in this case, we’re dealing with unique circumstance where the government has in effect expanded to control an activity that was previously within the realm of private religious parties. Two hundred years ago, the Catholic Church created adoption agencies and foster care programs to deal with a yellow fever endemic that was going on in Philadelphia. You might say that they invented foster care in Philadelphia.

 

And later, the government has taken increasing roles in this space, and I’m not saying that that’s necessarily a bad thing, but what it means now is that the government has said that Catholic Social Services can’t participate in foster care, unless they do so on the government’s terms, and now the government is forcing Catholic Social Services to choose between their religious beliefs or continuing this ministry.

 

So one question I have asked is, given that the baseline of a large welfare estate didn’t exist during the Founding, is there any historic evidence that can shed light on the original meaning of the Constitution with this type of conflict where government has expanded into a new faith? One that I would point to is the Founding era and historical example involving the Ursuline nuns.

 

Beginning in 1727, Catholic nuns in New Orleans operated a convent that included a school for poor children. When the United States completed the Louisiana Purchase, the convent fell within the boundaries of this newly acquired territory. As a result, it could have easily been assumed that this property now fell to the ownership and control of the United States government. And the nuns wrote a letter in 1804 seeking clarification about the future of their ministry, and the nuns stated, “It is not therefore our own cause, but that of the public which they plead. It is the cause of the orphan, of the helpless child of want.”

 

Jefferson responded and assured the nuns that the principles of the Constitution provided a sure guarantee that the property would be preserved to you in sacred and in violet, and that the covenant will be permitted to govern itself according to its own voluntary rules without interference from civil authority.

 

I think it’s interesting that Jefferson wasn’t just making this commitment benevolently. He wrote that the principles of the Constitution required preserving this religious ministry, and he didn’t think that preserving the ministry meant you get to continue your ministry only if you did it the government’s way. He noted that this ministry had a sure guarantee that they would operate according to their own rules without interference from the civil authority.

 

My friend Mark Storslee has written about, examples like this illustrate that the Establishment Clause doesn’t prohibit government ministries, even in the context of government funding or property. I recommend taking a look at his article coming out in Penn. And I agree, I think that these historical examples also show that there are certain spheres of liberty that the Founders understood religious groups and institutions would be able to operate within, free from government interference, notwithstanding government expansion, or at the very least, that within these spheres, religious ministries would receive thick constitutional protection.

 

One way to operationalize that understanding would be a rule that overrules Smith altogether and allowed for a default rule of heightened scrutiny in religious exemption conflicts. This background norm will be consistent with the idea that government should justify its ability to burden religious exercise when it’s expanding into spheres of liberty that the government had largely left uninhibited during the Founding period. And where government can point to use of its power, that actually advances an interest that was originally understood as being sufficient to limit religious exercise, such government regulation would likely satisfy strict scrutiny.

 

On the other hand, if the Court does not adopt some sort of rule that will protect ministries, even in the face of government expansion, the risk is that government could simply obliterate the promise of free exercise of religion that it emphasized recently in Bostock, simply through its reality of never-ending expansion. All the government would need to do is license or exert control over a new activity and then condition religious groups continued participation on their willingness to forfeit their religious beliefs and practices. Whatever the Free Exercise Clause meant, surely it could not have been that. Thank you, and I’ll turn the time over to Professor Volokh.

 

Prof. Eugene Volokh:  Thanks very much for having me. I very much appreciate the opportunity to be on this panel. Is it possible for me to share my screen? All right. So I want to talk about some practical questions here. And perhaps one way of thinking about it, just imagine that Smith is reversed, and imagine we’re back in the old Sherbert/Yoder regime. What kinds of issues is the Court going to have deal with, at this point, that Smith helped it avoid?

 

Now, I don’t want to suggest that this is the most important question, that consequential expression is the most important part. One can certainly make great arguments that the Court should just focus on the original meaning. But that’s been amply handled by others both in the panel and elsewhere, so I just want to talk about concrete practicalities, and I want to start with assisted suicide.

 

Now, of course, there’s been a claim that there’s a constitutional right to assisted suicide. It was raised in Glucksberg in 1997, a companion case on equal protection grounds called Vacco v. Quill. And Glucksberg dismissed that as a substantive due process claim. It said there is no constitutional right to assisted suicide, which is to say constitutional right for doctors to be exempted from laws banning assisted suicide.

 

And the reason it gave wasn’t that there was some compelling interest in preserving life, even in situations where the person living the life wants to die and perhaps has understandable reasons to want to die. No, no, the Court avoided all that because, of course, there’s a high controversy, both moral and pragmatic, about that sort of claim. It simply said, “We need not weigh exactingly the relative strength of various interests. The interest in preserving life; on the other hand, the interest of autonomy in the others.” Because this is a matter that the law leaves to the democratic process that, in fact, as I understand it in a few states, democratic process has resulted in favor of some amount of assisted suicide. So that was a 1997 decision—as it happens, a topic that Justice Gorsuch wrote a book on when he was actually -- well, he published when he was a lawyer.

 

And I think it’s fair to say that the Glucksberg opinion is, at the very least, a plausible judgment, but I think probably a correct judgment, that this is the sort of thing that judges ought not be deciding. Judges ought not be the ones who decide whether there’s a compelling interest in preserving life, even when somebody is dying and wants to be helped die, that the judges ought not decide whether there’s a less restrictive alternative that’s still effective, like, for example, requiring some doctors, and perhaps a psychiatrist, to interview the patient first—something, I think, that’s going to be effective in weeding out claims where somebody’s being basically pressured to choose assisted suicide. Others might say otherwise. That kind of practical question, like the underlying moral question, should not be weighed by the justices.

 

And, of course, under Employment Division v. Smith, you’d get the same result. Of course, you’d need to, to even to get into the pre-exercise zone, raise somebody who feels they have a religious objection to balance assisted suicide. That’s not hard to do. There was actually a brief articulating that argument in Glucksberg itself. There is a Colorado case, in which somebody raised this argument, was rejected on Employment Division v. Smith grounds. Imagine a doctor who says, “I read the parable of the Good Samaritan as requiring me to help people who ask to die as well as people who want to live. But as that too is part of God’s plan.”

 

So imagine somebody like that under Smith. It’s very easy to see how the Court would resolve that question. The Court in Smith specifically rejected a ruling in which judges weigh the social importance of all laws against the centrality of all religious beliefs, much like in Glucksberg. So if you recast a substantive due process claim as a free exercise claim—honestly, sincerely, not just as making stuff up—there really is a religious objection there as there is to many people about the most important things in their lives that have religious views. You get the same result under Smith.

 

But what happens under Sherbert/Yoder? Or the Sherbert/Yoder rule, which is to say the rule of strict scrutiny of religious exemption requests. First question is whether there’s substantial burden on religious beliefs. But, again, in our hypothetical—which I think is a quite a plausible hypothetical—the doctor says, “You are making me violate my sense of my religious duty to my fellow man by stopping me from helping him in doing something that is obviously very important to him.” So there is substantial burden.

 

Now, you must determine if the ban is narrowly tailored to compelling government interest, which means you’re back in exactly the same territory that the Court avoided in Washington v. Glucksberg. So, to the extent that there is wisdom to the Court’s judgment that it’s bad to have to weigh in these kinds of cases the roads of strengths of various interests, that’s something that is lost if you return to the Sherbert/Yoder regime.

 

And, of course, assisted suicide is just one of many examples. One example that people have talked about for quite a while is imagine abortion rights, imagine the Court says, “We don’t see right to abortion in the Constitution. We return it to state-by-state judgment.” But somebody says, “I feel a religious obligation to get a doctor, let’s say, who is barred from performing abortions. In many states, the woman is not criminally punished, but the doctor would be.

 

If the doctor says, “I feel a religious obligation to try to help a patient who has perhaps prayed and gotten an answer that this is not the right time for her to be pregnant. I feel a religious obligation to help her. I too have prayed, and that is what I feel God tells me,” then in that case, they would be back to the same strict scrutiny analysis, that the Court, by hypothesis, might have rejected in rejecting Roe and in rejecting Casey if again that’s the way the Court ends up deciding things.

 

Now, of course, I don’t know which way the Court will go in abortion rights. But, again, the point is that under the Sherbert/Yoder regime, a judgment about whether something is protected under a substantive due process only affects that claim for secular people because after all, for religious people, if they really have a religious obligation to do something, then they’re back in under the Free Exercise Clause, even if they don’t get the claim under substantive due process.

 

And the same thing applies to a wide range of other context as well. Bans on prostitution. Bans on various kinds of discrimination, not just in cases like Fulton where that’s not completely clear that the discrimination is even banned by general and applicable law but in situations where the antidiscrimination rule is really quite explicit. Bans on payment of sub-minimum wages.

 

There was already a case on the Tony and Susan Alamo Foundation in the Sherbert/Yoder era. That case was dismissed on technical grounds, really, or having to do with a particular limitations of those religious claims, but it might be back under revival of Sherbert/Yoder. So that’s the downside.

 

Now, maybe, you might say, “Well, that’s what the Free Exercise Clause demands,” and, yes, that means that there may well be a constitutional right for assisted suicide, at least, for religious people. And there may be a constitutional right to abortion even entirely apart from the Roe and Casey situation, and then, maybe, a constitutional right to exemption from various kinds of economic regulations, but that would be the consequence. It would be sort of a revival – a revival of Sherbert/Yoder would be a revival of aggressive substantive due process protection in a vast range of areas, again, at least so long as the claim is religious.

 

Now, I want to finish up by briefly talking about a second twist that sometimes arises. Certainly, it has arisen in the briefing of the Fulton case having to do with laws having secular exemptions. So the short version of the argument is people say “Well, we’ll stick with Employment Division v. Smith for laws that are really generally applicable in this instance. They apply to everyone without any secular exemptions.”

 

Now, once the government makes a value judgment in favor of secular motivations, by carving out an exemption, then any claim for religious motivations must satisfy heightened scrutiny. And that’s a plausible argument, in part, because it was made by then Judge Alito on the Third Circuit. So, at least, one justice seems to believe in that and maybe others as well—or, at least, believed in it at the time they made those changes. So the argument would be “Look, if you have a really blanket law, then no exemption. But if there are secular exemptions, like in that case, for medical exemptions for a no-beards policy, there should be religious exemptions too.

 

I think the better view is the one the Court articulated in Lukumi Babalu, that all laws are selective to some extent, and legislatures are barred only from judgements that governmental interests they seek to advance are worthy of being pursued only against conduct with a religious motivation. So if the government really does target only religious conduct, or it’s clear that it’s attempting to go after religious conduct. Well, that’s unconstitutional, but not just because there are secular exemptions.

 

For instance, consider the Copyright Act. Operative Section 106, followed by 16 sections from 107, I believe, to 122 of exemptions, and that’s just the tip of the iceberg. Each one has many sub-exemptions. What about the duty to testify? Look at all the exemptions of the various kinds of privileges. What about breach of contract law? What about Title VII?

Now, of course, some of them actually had some religious exemptions like the clergy-penitent privilege. But those are pretty narrow. If indeed the presence of secular exemptions requires strict scrutiny for any religious exemption claim, then that’d have to be applied to all these laws and a vast range of others because very few laws totally lack all exemptions.

 

So those are the practical consequences of adopting either Sherbert/Yoder generally or as to secular exemptions. Maybe, they’re worthwhile. Maybe, they’re net positive, but that’s what I wanted to flag as the issue that the Court is going to have to face.

 

Hon. Neomi Rao:  Thanks, Eugene. Now, we’ll hear from Lori Windham.

 

Lori Windham:  Good morning and thank you so much for hosting this panel and for inviting me to join. I’m going to start by doing something which is pretty risky which is to disagree with two men I greatly respect, Professor Bradley and Professor Volokh. I think Smith has failed as a standard, and I think that an exemption standard is the better rule. I also want to speak from a practical litigator’s perspective here, observing what we have seen over the last few years developing in the courts.

 

And I want to highlight two things. The first is an unintended consequence of Smith, and the second is an experiment. So the unintended consequence is shown pretty clearly in the Fulton case. This is a case where Philadelphia has really struggled to identify a neutral generally applicable law that actually applied to Catholic Social Services. And it has used that to exclude the Catholic Church for foster care in Philadelphia because of its religious beliefs about marriage.

 

I cannot imagine that the Court that decided Smith thought that this was going to be the result. But the lower courts in Fulton have said, again and again, that they think these policies, six of them, are neutral and generally applicable and that Sharonell Fulton, a foster mom, and Catholic Social Services lose under Smith. I think what this shows us is that Smith has really put a heavy thumb on the scale in favor of government officials. I don’t think that the way that Smith has been applied in the courts below is really in keeping with the way the Supreme Court has envisioned it and treated it.

 

And I think the best analogue here is probably Lemon v. Kurtzman. You look at Lemon and you see in the lower courts that that case held a lot of sway for a long time. I think now they’re finally starting to back away from it a bit. But here you go, it’s a three-part test. We know how to do this. We’re going to apply it, and lower courts continue to do that even as the Supreme Court had steadily moved away from Lemon and its jurisprudence.

 

And I think we’ve seen something similar with Smith. If you look at the free exercise cases since Smith, the Supreme Court has consistently declined to apply Smith or to find that its standard was satisfied. And even though the Supreme Court has really, I would say, limited and restricted where Smith applies, we’ve seen in the lower courts, and Fulton here as exhibit A, that lower courts tend to say, “Oh, Smith is the rule. We have to apply Smith. We have to look at this analysis because it creates a familiar test.”

 

And so the appeal of Smith was you have this bright-line rule. You have this test. We know how to apply it, and this is what’s going to happen. And, unfortunately, what has happened in practice is that it has not been a bright-line rule. It has been a complex and confusing standard that the courts haven’t really known what to do with.

 

And so, as Professor Volokh alluded to, you have this confusion over, when is a law generally applicable? Is it enough to show that you have system of individualized exemptions like you had in Sherbert, or do you need to also show there’s some kind of discrimination and how that system is applied? Or is it enough to show that there are some secular exemptions to the law, or do you need to show that it’s really targeted at one particular religious belief or religious claimant? Is it enough to show that the law was crafted and created in response to religious exercise, like some of Philadelphia’s policies had been here, or do you need to show more than that? Do you actually need to go beyond that and show proof of animus?

 

And now we have a circuit split over exactly those issues, and that, to me, really sums up the unintended consequence of Smith. Instead of clarity, you have confusion. And what has happened is that a lot of courts—especially, if you look at the Lukumi decision and the really egregious discrimination there—have treated Smith as purely a discrimination standard. It’s not about whether a law is neutral and generally applicable. It’s about whether it is targeted at you. And I think the daylight between those two things is actually pretty significant.

 

And so the direction that these free exercise cases have gone—which I don’t think the Smith Court could’ve foreseen—is that it has created an incentive to look at the lawmakers hard of hards and whether they’re trying to target religious people. And so you have this rummaging through the legislative history and the rules that -- the justifications for the rules that are being applied instead of actually looking at the law on its face and making an objective determination about whether it fits within the Smith rubric. I don’t think that’s something the Court foresaw in Smith, and yet it has been how a lot of these cases have ended up turning out below.

 

And so what promised to be simple has proven to be complex, and I think that that is a key point here. As Professor Bradley acknowledged, Smith wasn’t premised on originalist evidence. There have been attempts since then to close that gap. But, really, Smith was premised on a prediction about what was going to happen with free exercise law, that it would be courting anarchy if you had these exemptions, and that was the central premise of Smith, which is what brings me to the experiment.

 

We’ve had 30 years now, since Smith, to run that experiment, and it turns out that Smith was wrong. Our states are the laboratories of democracy, and they’ve been running this experiment for us. About half the states have either Religious Freedom Restoration acts that impose an exemption standard rather than a Smith standard or they have interpreted their own state constitutions in a way that is more friendly toward religious exemptions, more protective of religious exercise than what you had in Smith.

 

And what we found is that if you look at some of the scholarly research on this—like what Professor Lund has done—that, actually, it’s a relatively small number of cases that have been decided, and the states have generally been pretty happy with their ability to legislate and regulate even under these symptoms, even under these circumstances. And we actually had a number of states come in the Fulton case and support our side, and say, “Yeah, get rid of Smith. We want a better standard. This standard has actually worked for us.”

 

And we’ve seen a similar dynamic at the federal level. Of course, the federal government came in and passed RFRA with an overwhelming bipartisan majority—if anyone can remember the days when we did such things—and it originally applied everywhere. And, of course, in Boerne, we all know the Supreme Court cut that back. But, since, it has applied to all federal law and applications of that law.

 

And, yet, tests and research on this, like that done by my colleague Luke Goodridge, who’s shown that still RFRA cases are a pretty small part of the federal case load, and the same is true for cases under RLUIPA, which applies at both the federal and state levels to land-use issues and to prisoner cases. And so what we have seen, over 30 years of history, is that this exemption model actually works very well and has proven to be a manageable system.

 

And I think that’s true for a couple of reasons. One is that you do have, in many cases, a burden standard, so it’s not just “I’m a religious person, and I have this policy preference.” It is “You are actually burdening me. You’re actually forcing me to do something that my religion forbids or prohibiting me from doing something that my religion requires.” And so I think that that really narrows the class of cases that you see. And when it comes to the compelling interest analysis, what we have seen is that courts have been able to apply that test very well and to figure out when it is that an exemption is really compelled.

 

And I think one final note on this. I said the word exemptions a lot. We are talking about exemptions. You can still have a policy. You can still have a rule. You can still have a law, and you can still apply it in the vast majority of circumstances. We’re talking about that much narrower class of circumstances where it really does restrict or prohibit someone’s religious exercise. And, in those cases, courts have been able to strike sensible balances and determine where that is warranted. And so my thesis here is that Smith is an experiment. We have now run that experiment for 30 years, and Smith has failed. And so I’m happy to turn it back over to Judge Rao and look forward to some more discussion.

 

Hon. Neomi Rao:  All right. Thank you. Thanks to all of our panelists. For those of you who are watching, feel free to raise your hand if you’d like to ask a question, but, otherwise, I’m going to kick it off with a question to our panelists.

 

So Professor Barclay mentioned that there wasn’t really any original understanding of what religious exemptions might look like in a large welfare state, and, in the Becket Funds brief, they talked about the fact that Smith didn’t really contemplate a world in which we had a significant amount of government by regulation. And, certainly, in my previous experience working in the administration, I’ve learned it’s much easier to impose religious burdens through regulation than it is through legislation, and we live in a world which has an ever-expanding administrative state and much less lawmaking.

 

So I guess I’m wondering—and, maybe, this is, in particular, a question for Professors Bradley and Volokh, but I’d be interested in what all of you think. Does Smith have less purchase in a world in which so many of these rules are really regulatory rules as opposed to laws enacted by the legislature, and what can we take from that?

 

Prof. Gerard V. Bradley:  Well, I’ll go first and give Eugene a little bit more time to think. Now, Judge Rao, I think I appreciate the force of your question. I’m not sure what it means quite to say that Smith doesn’t have as much purchase as it should or as one might wish it did. And I say that especially because Smith really stands for a very limited, or much more limited, judicial intervention in an emerging religious culture, in an administrative state, than a compelling state interest test does.

 

So what I mean to say is that Smith leaves wide open the capacity of legislatures, administrators, and others to confront conditions that the Founders couldn’t have contemplated. I agree with that. But I haven’t so much heard arguments today that persuade me that handing over, in a wholesale way, the problem of contending with a modern administrative state to judges, which judges have already saddled themselves with a set of value judgments having to do with what are called dignitarian harms and judges who, by and large—and all due respect to you, Judge Rao—have a poor, to very poor, understanding of what religion is.

 

My judgement is that, on the whole, it’s not a promising prospect to decide to transfer jurisdiction, or conflicts, if you want to call them conflicts, between religious conscience and the administrative state to one of the elected judges. And even many of the cogent are certainly reasonable arguments that both Stephanie Barkley and Lori Windham make about Smith, even if Smith is, in some respects, a failed experiment. It doesn’t follow that the alternative, or the only alternative, is Sherbert. In other words, there’s a non-sequitur there.

 

I teach Smith every semester, and its meaning at times deludes both me and my students, so I wouldn’t follow with, at least, some of what Lori and Stephanie say. It doesn’t seem to me that that changes the meaning of free exercise, nor does it follow that somehow if Smith does not work well, Sherbert is the alternative. There are many other alternatives.

 

Prof. Eugene Volokh:  I’d like to yield my time, such as it is, just to get to more questions, but I think that Mr. Bradley’s analysis seems quite sensible.

 

Prof. Stephanie Barclay:  Can I add one short thing to what you pointed out, Judge Rao?

 

 Hon. Neomi Rao:  Sure.

 

Prof. Stephanie Barclay:  Professor Philip Hamburger filed a brief in Fulton and has written a law review article about this issue, and I think what he thinks is important, given that Justice Scalia was relying on Professor Hamburger and his City of Boerne concurrence. But what Professor Hamburger has said is that Smith rests on the political logic that religious Americans can protect themselves from oppression under equal laws by engaging in politics.

 

And this is a Notre Dame Law Review article he’s quoting from in his brief. And he says, “That this expectation that religious Americans can engage with their lawmakers does not reflect the current realities of American lawmaking,” and then he goes on to describe how, as you said, so many of these burdens on religion are coming from unelected bureaucrats, and this profusion of administrative policy creates a profound inequality.

 

So just to underscore the point that you were raising that whatever Smiths merits, it seems a particularly poor fit for the reality at the administrative state now, and when it relied on the idea that exemptions would be provided legislatively through democratic engagement, that often doesn’t exist at that administrative level.

 

Hon. Neomi Rao:  Lori, did you have any thoughts about that question?

 

Lori Windham:  No. I’m happy to yield and to move onto the next question.

 

Hon. Neomi Rao:  Sure. I’ll just remind the audience if you have a question, just raise your hand using the chat feature in Zoom. So I guess something that was implicated in some of these remarks is whether it’s possible to understand Smith in a more tightly constrained or narrow way, right, as really focusing to see whether a law is genuinely neutral and genuinely generally applicable.

 

I think Justice Alito suggested such an approach in his dissenting opinion from the denial of cert in the Stormans’ pharmacy case. He noted that a law that discriminates against religiously motivated conduct is not neutral. And he also argued that if a regulation appears neutral but in fact is—he used the word—gerrymandered, in a way that it discriminates against religiously motivated conduct, then that should receive strict scrutiny.

 

I guess I’m wondering what your thoughts are, if the Court were to, I guess, read Smith more narrowly, would that satisfy some of these concerns, and I guess would that be a faithful reading of Smith itself?

 

Prof. Eugene Volokh:  So I think the answer is no, and I think, in some respects, it would be worse if the Court goes beyond what it said in Lukumi. So, in Lukumi, basically, you had a law that banned animal sacrifice, but all sorts of killing of animals was allowed for food, for hunting. It was generally allowed, and it looked like all it was going after—and there was evidence from both the legislative history and the practical effect of the law—all it was going after was religious conduct, religiously motivated animal sacrifice that I think is quite clearly this sort of gerrymandered attack on religious practice alone.

 

But let’s look at the case that Justice Alito wrote about this at the Third Circuit level—the one that I quoted the line from—that had to do with a no-beards policy, which I think applied to a lot of men who like to wear beards—I’m not one, but I’m told that many do—but had an exception for medically required beards. Because as I understand it, some men, mostly black, have a condition. I want to say it’s pseudofolliculitis barbae, which means that if you shave, you end up getting skin infections and ingrown hairs.

 

So there is an exemption for that, and the Court said, “Aha, because of that exemption, there also needs to be an exemption for people who have a religious application to wear beards.” Well, that certainly wasn’t a rule that was targeted at orthodox Jews, and Sikhs, and, say, Muslims—the groups that most commonly require beards, maybe, some eastern orthodox. I’m not sure.

 

But, in any event, that clearly wasn’t so. There wasn’t gerrymandering in the sense of deliberate target. Now, it’s true that a secular reason for action, medical concerns, was -- or, essentially, the reason was avoiding medical problems was treated more favorably than religious reasons and all sorts of other reasons. But, again, that’s true in a wide range of other laws.

 

So the problem is either that’s going to be a way of essentially saying, “Oh, we’re preserving Smith,” but not really—we’re not at all preserving Smith—or given that almost all laws have some sort of exemptions, even homicide law has exemptions, right, for self defense and a few other situations.

 

So then there’d have to be judges deciding “Well, this law is general enough, but this law isn’t general enough,” not just that it’s the question of whether it is targeted only at religion but whether it’s targeted mostly, partly, enough in religion, that will end up being this mushy standard that will allow judges to essentially trigger strict scrutiny as to laws that they don’t much care for and not do that just to laws that they like by using this very indefinite standard of whether there are enough exemptions.

 

So given the choice between that and Sherbert and Yoder, I would prefer Sherbert and Yoder because, at the very least, there would be a pretty clear strict scrutiny standard. But, again, if we do that, then there really would be calls for exemptions from all these laws. And here’s one extra twist: one defense of the Sherbert/Yoder regime, as well, the government can still win under strict scrutiny and often does win under strict scrutiny.

 

But if you really are attentive to the exemptions, then a common argument—and which, of course, is commonly raised when strict scrutiny claims are litigated here—is the law is underinclusive. Look at all these exemptions. The very fact of these secular exemptions shows that the law is not narrowly tailored because it’s underinclusive. It’s a very familiar argument from equal protection context, from speech restrictions cases, like Florida Star v. B.J.F, and the like.

 

So the consequence may be that we would have really aggressive strict scrutiny standard with a lot of teeth to it, and the result will be all of these exemptions, again, for religious objectors, not for their secular, conscientious objector analogues. And I think that the Court ought to resist that, and I think if confronted with some of these examples, like the assisted suicide context, and such, I think the justices probably would resist it.

 

Hon. Neomi Rao:  Thank you. Does anyone else have any thoughts?

 

Lori Windham:  Sure. I’m happy to jump in there. I think this is a great argument for something that looks more like a RFRA standard than a Smith standard, but I would say that I think what’s important here is when you’re looking at what these exemptions are, that you’re looking to “Is the government now getting in the business of making value judgments?” And this is the language that Smith uses.

 

When it’s talking about individual law as exemptions, it’s talking about whether a law is directed at religious exercise or whether there’s a system of individualized assessments. And I think those are two separate flaws that might lead you to strict scrutiny, but I think they both get to the same issue, which is the government has decided, “Okay, we don’t actually have to apply this law across the board. We’re going to apply it sometimes, and we’re not going to apply it other times, and we are in the business of making these value judgements about when the law is important enough to enforce, and when it isn’t, and when the government does that and decides that other things are more important than a fundamentally protected First Amendment right.”

 

And I think the right answer is to put the government to its proofs, and to say, “Okay. you did make a distinction here. Is that distinction justified?” I do agree that in Lukumi—in a case like that, where Hialeah’s laws were just completely a mess, and it was okay to have hunting, and fishing, and euthanasia, and all these other exemptions but not an exemption for a century of sacrifice—that there was no way they passed the compelling interests test.

 

But there are other cases where the government may have a very good reason for saying, “No, this is why we have to allow this exemption but not this one.” The question is can you put them to the test? And I think the right answer is to go ahead and do that and to make sure that when you do have a fundamental right at stake, that that is going to be protected.

 

And I do think the question in those kinds of exemption cases is: is it actually an exemption? We’ve heard criminal law and other hypotheticals. I think it’s a different question when somebody’s just missing an element of the offense as opposed to when you’re really saying, “Okay, we have an individualized exemption system set up for murders. If you want to commit a murder, come to us and we’ll tell you if you get an exemption or not.”

It’s a laughable construct, and yet that’s exactly the kind of exemption system that we see with regard in many cases to administrative law and other kinds of systems where the government really is making subjective determinations.

 

Prof. Eugene Volokh:  Can I just chime in for just a moment—

 

Hon. Neomi Rao:  Yeah. Okay. And then we’re going to move to audience.

 

Prof. Eugene Volokh:  —because I think that’s such an excellent example. There is an individualized exemption system with regard to murder, and that’s the law of manslaughter, that some kinds of provocations downgrade murder to manslaughter. They don’t make it a non-crime, but they do dramatically affect both the level of punishment and the name, the label, that’s used for the crime. It makes a different crime—manslaughter.

 

Now, a few states have basically very hard and fast rules that certain kinds of provocations count and certain don’t. Although, those are the results of value judgement by judges, but some of them just generally ask, as a matter of law, whether something counts as a reasonable provocation and allows judges to come up with new categories.

 

So my question, then, would be, does it follow that the Free Exercise Clause requires judges to treat religious reasons for killing as positively as the favored secular reasons? So a classic example is somebody is entitled—not entitled to kill, obviously, but somebody’s entitled to a diminution from murder to manslaughter if the person is enraged by seeing their spouse having sex with another person. Does it follow that there needs to be equal treatment for somebody who’s enraged by seeing somebody blaspheme against God?

 

Another example is necessity. Now, in many states, perhaps in most states, necessity is not a defense to the charge of homicide, but it is a defense to various other charges, like you could -- there’s a necessity defense to trespass, that if somebody trespasses on my property, but there’s a reason, like, for example, they’re trying to rescue an animal that has wandered over onto my property.

 

Then, in that case, there’s case-by-case decision making. Does it follow that when somebody is trespassing on my property, because they believe there is some visitation say of the Virgin Mary on my property and they feel an obligation—assume they sincerely say they feel an obligation to go and make pilgrimage there—that they are entitled to the same treatment under this case-by-case decision making through the necessity defense.

 

I’m inclined to say that they shouldn’t deny their situation and that the law can quite reasonably say, “Judges will develop limited set of secular exemptions, essentially, under this general rule of provocation of necessity, and we need not treat religious reasons for violating the law, whether it’s against homicide or against trespassing.”

 

Hon. Neomi Rao:  And I think Stephanie has a brief response to this question as well, and then we’ll go to the audience questions. Thanks.

 

Prof. Stephanie Barclay:  Just one brief response to what you’re talking about, Eugene, this question of “How do we compare the different types of exemptions and should the religious one be treated the same as the secular one?” I think you’re highlighting why that type of analysis is ill-suited to a preliminary stat of just deciding whether a law is generally applicable or not.

 

Because, in order to really understand the answer to that question, we have to have criteria by which we’re measuring the similarity of those types of exemptions, which is what the government interest is, and, frankly, often, we’ll need some sort of an evidentiary showing of the extent to which a secular versus a religious exemption is undermining the government interest.

 

Strict scrutiny is suited quite well to that question where you force the government to identify its criteria, its government interest, and then the burden is on the government in an evidentiary way to demonstrate whether or not a religious exemption might undermine its interests more than a secular exemption.

 

But there’s nothing comparable to that in any sort of predictable evidentiary way at the preliminary general applicability stat. There’s nothing facially obvious from a statute that would answer that question, which is why I think that the problem Justice Scalia, I think, was understandably trying to avoid has just been made more confusing by trying to truncate that analysis into a space where we don’t actually have the tools to get at the right answers.

 

I think RFRA, on the other hand, which does provide a way of getting at those answers, avoids some of the concerns that Justice Scalia had about balancing the centrality of religion to the importance of the government interest. We don’t do that sort of balancing under RFRA. We just ask, “Has the religion, at least, been burdened, and then we ask if the government has identified an interest, that it’s actually advancing.”

 

Hon. Neomi Rao:  Thanks. Okay. I’m going to move now to the audience questions. We have about 15 minutes left of the panel, so I’d appreciate if the speakers could keep their questions brief. So I’d like to recognize Michael Rosman. If you could just unmute yourself, and identify your affiliation, and ask your question. Thank you.

 

Michael Rosman:  Michael Rosman. I’m with the Center for Individual Rights. I have a question for Eugene. Miss Windham, Eugene, pointed out that we’re living in a country that has many Sherbert Verner jurisdictions. I assume some of them prohibit assisted suicide, and some of them prohibit, say, late term abortions. Have there been any challenges of the kind you identified in your presentation? And if there haven’t been any such challenges, could you take a guess as to why not?

 

Prof. Eugene Volokh:  Sure. So I’m very glad you asked this question. Because for a long time, I was pretty much the only academic who on one hand thought Employment Division v. Smith was largely right, but, on the other hand, thought that RFRAs, state-by-state RFRAs, and the federal one as to federal laws, were also a good idea.

 

So one thing that I like about religious exemption regimes that are done on a state-by-state level is that the courts don’t get the final say there. They get a say, which is actually quite sensible. If you look at this balancing of interests, that’s something the courts have historically done in developing the common law of tort, of property, even of crimes, but that’s always been subject to legislative modification.

 

So a legislature could, if it finds it doesn’t like a court’s decision as to carving out an exemption, it could say, “Well, we’re going to revise that. Not in that particular judgment, but going forward, we’re going to exempt this law from RFRA.”

 

So to turn to your question, that as to assisted suicide, such a claim was made. It was made in Colorado, which is a state that doesn’t have a state RFRA, and its state Constitution has not been interpreted to follow Sherbert and Yoder. So the claim was made and was rejected under Smith.

 

I do not know whether it’s been made under RFRAs in other states. I think part of the reason is that with a lot of these things, I think, these are creative arguments that a lot of lawyers don’t really raise. A typical lawyer in a state like Texas—let’s say, to give an example of a state that has a RFRA—may not really be thinking in those terms, and especially they’ve seen a decision called Sanderson from Colorado.

 

The one-line summary is “no, religious exemptions from assisted suicide laws may not really think about how the Texas RFRA might play out.” What I think often what happens is there something of a snowball effect, that you start out with relatively few claims under some rule because people don’t really know about it. It takes lawyers to know this. And then, as people learn about it and as religious rights litigation groups become more common—like Becket, which I very much admire, but also the various state levels—then you get more and more of these kinds of claims.

 

So, for example, for a while, one might’ve thought that there wouldn’t be much by way of religious exemption claims from antidiscrimination laws, especially, when they were roundly rejected with regard to employment discrimination in the 1970s. But then around the late 1990s, you began to see a lot of them as to housing discrimination laws and marital status discrimination, even though marital status discrimination bans had been around for some time then.

 

As to abortion, there’s no need for a religious exemption claim because Roe, as modified by Casey, is still the law of the land. I was raising a hypothetical example about what would happen if Roe and Casey were reversed on the grounds that the Constitution says nothing about abortion, would somebody then say, “Well, the Constitution does say religious exemptions” in assuming you’re back to the Sherbert/Yoder regime. And there I’m quite positive there would be these kinds of claims because that was an argument that was already made around the time that the original RFRA was enacted in early of 1990s, that it’s well known in the abortion-rights space, that this is a possible potential argument. It’s just there’s no occasion for raising it yet. So that would be my reaction.

 

Hon. Neomi Rao:  Thank you. Okay. Next, we will go to James Odom (sp). If you could just unmute yourself, please. James Odom. Okay. How about Sean Ross, if you could unmute yourself?

 

Sean Kellhan (sp):  Hi. This is Sean Kellhan. Yeah, so is there a way to bring back religious accommodations under the Free Exercise Clause without overruling any currently worse case, which might be a prospect Chief Justice Roberts would warm to. Something Professor Barkley mentioned. She used the term actually advance -- I use the term directly advance.

 

And so the nub of the question is, Yoder, doesn’t Yoder survive Smith through Lukumi for this reason. And when you look on Lukumi, we talk about it as a targeting case. When you look under the hood of Lukumi, as you’ve discussed, it really gets to the targeting conclusion through various means ends looks at the law and the statements, the legislative statements, in Lukumi were kind of ancillary.

 

So if you do that, and you look for accommodations that you can provide that do not interrupt a challenged law from directly meaning -- if taking away the accommodation does not directly advance the state interest, doesn’t that draw a line through? And then granting the accommodation in that case, doesn’t that draw a line from Yoder through Lukumi without overruling Smith?

 

Hon. Neomi Rao:  Lori, do you want to take this one?

 

Prof. Stephanie Barclay:  I can take this one if no one else wants.

 

Hon. Neomi Rao:  Yeah. Sure.

 

Prof. Stephanie Barclay:  Okay. I think that there are ways to interpret Smith that would really narrow its application. You mentioned an interesting one, if we expanded the notion of Lukumi as focusing on whether or not the government’s actually advancing its interest or not.

 

Another one that I think is interesting, which is relevant to the Fulton case, is that Smith itself relies on the idea that there are going to be laws that are incidentally burdening religious exercise. And, for a law to knowingly burden religious exercise, that’s not the same as targeting, or discriminating, or having animus against religious people. That’s just being on notice that you’re burdening religious exercise and doing it anyway, which the City of Philadelphia definitely is every year when they renew this contract now. They have an opportunity to accommodate religious exercise at the Catholic foster agency, and they choose not to.

 

And one reason that knowingly burdening religious exercise or knowingly excluding them from government programs is concerning, potentially, as it raises the same sorts of concerns that we have about things like standard licensing in the speech context. When the government has all of the discretion, this is a constitutionally suspect system because it could so easily be abused.

 

And this goes to a point Judge Rao made earlier, most of the religious exemption and conflicts aren’t coming up with a law that was passed 10 years ago, and the legislatures just weren’t thinking about religion, and now we have this burden coming up there. These conflicts are coming up in context, like this one in Philadelphia with government bureaucrats working on the government contracts.

 

But also in other administrative context, where the officials are on notice, and through the administrative process could easily, sometimes with the flick of a pen, accommodate religious exercise. And so it’s also plausible that you could imagine a world in which Smith, just by its own logic, doesn’t apply to those sorts of context, and that would be a way of not overruling Smith but cabining Smith to the reasoning that underlied its holding.

 

Prof. Eugene Volokh:  Can I ask a very quick question as a follow up? So, in Smith itself, the state of Oregon was well aware by the time the case reached the Supreme Court, obviously, that the law, the ban on peyote, affected a certain American Indian religious groups.

 

Now, it may be that at the time that the legislature enacted it, they were unaware of that. Although perhaps they were aware of it. The use of peyote, I think, had been around for quite a while. And American drug laws don’t date back to, say, the Framing or the time that Oregon joined the union. But let’s assume they didn’t know it, but now they know. Now, they know, and, maybe, they’ve amended the law since then, so they’ve touched it since they’ve known this. So how would that affect things under your reasoning?

 

Prof. Stephanie Barclay:  So let’s bracket, for a moment, that Smith itself had this system of individualized exemptions when we’re dealing with employment law, which I think made Smith a poor vehicle to try and distinguish from a case like Sherbert. Let’s bracket that for a moment and just look at the criminal law.

 

I think that it is a fair point to think about laws that have been passed legislatively. It is more difficult and cumbersome for those to be amended, and so the reasoning, as far as government needs to be able to pass legislative laws and move forward and do its work, has more weight there.

 

I don’t think it’s fully persuasive, but it certainly has more weight in that context than where through the administrative process, policies can be amended much more easily, especially, if we’re not even talking about a notice-and-comment regulation—something like a contract requires no burdensome process to add an amendment to.  

 

So I just think the ease with which government officials can either accommodate—or the negative flipside of that coin is exclude religious groups from public society and from different programs—makes it more suspect if we’re giving those government officials a lot of discretion and the ability under the flimsiest of excuses to burden religious exercise.

 

Hon. Neomi Rao:  Yeah. It is an interesting feature of the administrative process that it is easier to grant exemptions just as it is, as you said, easier to burden religious exercise. And the Supreme Court has upheld those exemptions, right? —the religious and moral exemption regulation that was upheld in the Little Sisters of the Poor just this past term, which was upheld by seven votes on the Supreme Court. So that could’ve been an option as well. Okay. next, we will go to a question from Christopher Mellie if you could unmute yourself and ask your question, please.

 

Christopher Mellie (sp):  Yes. Thank you. I don’t know if Professor Bradley dropped off. I was going to ask him to expand on his comment that if the Court wanted to overrule Smith, it would want to wait for a less provocative case, but if he did in fact drop off -- I just wanted to expand at it. I know not everybody here would like the Court to overrule Smith, but could you envision a better vehicle in which the Court might have a stronger argument or tend to overrule Smith. Is there a current case percolating right now or something that you envision causing that? Thank you.

 

Hon. Neomi Rao:  So, yes, Professor Bradley did drop off, so do any of the other panelists want to respond to that question? No?

 

Prof. Stephanie Barclay:  Eugene, do you want to go?

 

Prof. Eugene Volokh:  No. No, I don’t know what cases are in the pipeline, but I can certainly see that this case has all sorts of other -- among other things, arguments for why this particular law should be not so much struck down, but an exemption should be granted that don’t require overruling of Smith, and my guess is that the justices would rather go with that than with full on overruling.

 

Yeah. I think we got an email from Professor Bradley. He was having technicalities, and he couldn’t reconnect.

 

Hon. Neomi Rao:  Yeah. Go ahead.

 

Prof. Stephanie Barclay:  You could imagine that the Court might want to take up the Smith question in a vehicle where they’re not having to deal with some of the contracting issues. That might be one reason why. There are cases in the pipeline right now where secular exemptions or some of the targeting might be less part of the facts. And I think Becket has a petition, the Ricks case, for the Supreme Court as maybe -- directly queued up before it whether or not to overrule Smith. It doesn’t have as many easy-outs, sort of speak. But there are other options that might be on the Court’s radar. Whether or not they prefer those to this one, I can’t really speak to that.

 

Hon. Neomi Rao:  And I think we have time for probably one more question. We’ll go to Maritza Bolano, if you could unmute yourself. I think you’re still muted. Yes, please go ahead with your question. Okay. We’ll go to Walter Webber, if you could unmute yourself. Okay. We will go to Nick Venable (sp), if you could please unmute yourself.

 

Nick Venable:  Yes. Can you hear me?

 

Hon. Neomi Rao:  Yes. Thank you.

 

Nick Venable:  Great. I was just wondering, in the oral arguments for Fulton, it seemed like several of the justices were interested in recognizing a compelling state interest in eradicating discrimination against same-sex marriage. I’m wondering what -- would religious accommodation would be possible at all if they did that, for religious liberty, in that scenario?

 

Lori Windham:  So I’m happy to speak to that. We’ve seen, now, three instances where the Court has recognized the sensitivities inherent in the marriage context. They noted that in Obergefell saying there were decent and honorable religious and philosophical beliefs on the other side.

 

We saw it again in Masterpiece where they acknowledged that if, say, a member of the clergy weren’t able to solemnize a same-sex marriage, that was a kind of religious exercise that gay persons could accept without diminishment to their own dignity and worth, and we saw the language in Bostock just last term about the free exercise being at the heart of our pluralistic society.

 

And so I think that that shows the Court has been very much aware of the need here to not extinguish a particular side of religious beliefs or not exclude those from the public square who have those beliefs. And I’d also point back to cases like Hurley. Hurley was a nondiscrimination ordinance public accommodations ordinance, and yet the Court recognized in that case that the existence of that did not overcome freedom of expression and association.

 

So I think that that shows that courts have been able to strike these balances and to look to how the test is applied to the person and to the particular religious exercise at issue in that case rather than just saying, “No, this is all the time and forever excluded.”

 

Prof. Eugene Volokh:  So this is—

 

Prof. Stephanie Barclay:  Just [CROSSTALK]—go ahead, Eugene, you go first. I’ll go after.

 

Prof. Eugene Volokh:  Sorry. I just wanted to say this issue has come up in the free speech context in Hurley and in Dale, the Boy Scouts’ case which involved expressive association. And the Court basically fudged the strict scrutiny and analysis. I’d say it applied maybe more than strict scrutiny. But, basically, it said, “Look, we understand the state claims a compelling interest in preventing sexual orientation discrimination. It’s not enough to overcome the free speech rights here.” But note the importance of Hurley, of the free speech context in Hurley and Dale, is it narrowed the range in which there would be an exemption from antidiscrimination laws to basically expressive association or parade—organizing your own speech product.

 

Likewise, one possible argument, that I actually endorse, in front of the wedding service provider cases—although not in Masterpiece, which involved bakers, as to say photographers, and such, should be a right to freedom from compelled speech, and that there should be an exemption from generally applicable laws indeed there.

 

But, again, note the narrowness of that that’s limited to the free speech context. It seems to me, if you accept this kind of exemption in Fulton, I think that would apply to a wide range of public accommodations to be sure—it’s not exactly a public accommodation in Fulton, but it’s close enough, I think, in many ways—wide range of government contractors because I don’t think there is as easy a way of cabining that as there is when you’re talking about specific targeted individual rights like free speech.

 

You’re talking about a claim of exemption from generally applicable laws you could apply to a vast range, or in this case of antidiscrimination laws, and it becomes quite difficult for the courts then to say, “Well, foster parent placement agencies are on one side of the line versus, let’s say, providers of limos or of hotel space for weddings are on the other side.”

 

Hon. Neomi Rao:  Yeah. We are a little over time, but, Stephanie, if you want 30 seconds, and then we’ll just wrap up.

 

Prof. Stephanie Barclay:  Okay. The 30-second wrap-up is: first, in response to this concern, we often hear about religion not be cabined and speech being cabined. In an article that my friend Mark Ramsey and I wrote in the Boston College Law Review, we surveyed speech versus religious claims, and speech claims are actually a much higher percentage of the federal case load than religious exemption cases are. So I don’t think that that concern about cabining religion is empirically founded.

 

I guess number two is, I would say, even in the context of race, the very important context for the government might be operating at its zenith when it’s prohibiting race discrimination. In the speech context, sometimes, we have said that First Amendment rights overcome that interest in Virginia v. Black, in Skokie.

 

And so I think it’s important to remember that when the government has a compelling interest that doesn’t give it a trump card to run roughshod over First Amendment rights, we still have to look at, is the government’s application of that interest, in this particular case, being advanced in an even-handed way, are there less restrictive ways that the government could accomplish its interests? That’s certainly true with religious exercise of that other sort of interest, not touching on race as well.

 

Hon. Neomi Rao:  Okay. Thank you. I want to thank all of our panelists. Professor Bradley joined us back by phone. Thank you all for your great comments and to our audience for their questions and for joining us. I just want to let everyone know that the next convention panel will start at 12:30, and it’s a discussion of the EPA Turns 50: A Debate on Environmental Progress and Regulatory Overreach. So if you could join me in thanking our panelists. Thank you.

 

Prof. Stephanie Barclay:  Thank you, Judge Rao.

 

Hon. Neomi Rao:  Yeah. Thank you.

 

Prof. Eugene Volokh:  Thank you very much.

12:30 p.m. - 1:45 p.m.
Environmental Law & Property Rights: EPA Turns 50: A Debate on Environmental Progress and Regulatory Overreach

2020 National Lawyers Convention

Topics: Administrative Law & Regulation • Environmental & Energy Law • Separation of Powers • Federalism & Separation of Powers • Environmental Law & Property Rights
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On November 9, 2020, The Federalist Society's Environmental Law & Property Rights Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The panel was titled "EPA Turns 50: A Debate on Environmental Progress and Regulatory Overreach."

Since 1970, the United States has made significant progress in protecting the nation’s water, cleaning up our air and land, and safeguarding human health.  Harmful air emissions have declined almost 80%, while the U.S. economy has grown by 275% over the same timeframe.  Drinking water in America is safer and better than ever in most communities. And through EPA programs like Superfund, contaminated lands are being remediated. Though some challenges persist, the U.S. Environmental Protection Agency (EPA) is credited by many as being the primary driver of dramatic environmental progress in the United States over the last half-century.  The current EPA Administrator, Andrew Wheeler, recently remarked: “ America is – and will remain— the gold standard for environmental protection.” Nevertheless, EPA has remained at the forefront of public controversy since it was created by executive order by President Nixon in 1970, and it is more true now than ever before. Environmental activists continue to press the agency to regulate further afield of EPA’s statutory mandates while regulated industries perceive systematic regulatory overreach.  States, too, have raised concerns about EPA’s adherence to cooperative federalism principles. Some claim EPA has fallen behind on environmental enforcement, while others contend that enforcement declines reflect greater environmental compliance and progress.  Marking EPA’s Golden Anniversary, this convention panel will reflect on EPA’s past and present, while also looking ahead to EPA’s future.  What can we expect from the EPA over the next 50 years?  What role should the agency continue to play in environmental protection and what should be its focus?  Are reforms necessary to increase accountability and transparency at EPA?  Is EPA ignoring the true costs and benefits of its regulations? Will EPA ever reach an enduring regulatory approach to topics like “Waters of the United States” and climate change? What steps should Congress take to ensure that EPA is right-sized with the resources needed to tackle the environmental challenges of the next 50 years? Should some of EPA’s powers and programs be returned to the States? Moderated by one of the newest judges on the Ninth Circuit, our panel of experts – with current and former EPA leaders from both sides of the aisle – will provide crucial insights into these and other questions.

Featuring:

  • Ms. Susan Bodine, Assistant Administrator, Office of Enforcement and Compliance Assurance, United States Environmental Protection Agency
  • Mr. Scott Fulton, President, Environmental Law Institute; Former General Counsel, United States 
  • Environmental Protection Agency
  • Hon. F. Henry “Hank” Habicht, Principal, Global Water 2020; Managing Director, United States Water Partnership; Managing Partner, SAIL Capital Partners
  • Prof. Lisa Heinzerling, Justice William J. Brennan Jr., Professor of Law, Georgetown University Law Center
  • Moderator: Hon. Lawrence VanDyke, United States Court of Appeals, Ninth Circuit

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

Event Transcript

Hon. Lawrence VanDyke:  Good afternoon, or good morning depending upon what part of the country you’re in. I’m Lawrence VanDyke. I’m privileged to get to moderate today’s panel presented by the Environment and Property Rights Practice Group. Our panel this morning, or this afternoon, is the “EPA Turns 50: A Debate on Environmental Progress and Regulatory Overreach.” I’ve got a fantastic group of panelists that are going to talk to you and talk to each other. We’ll see if we can get some debates, since that’s in the name of our title here.

 

I’m going to talk a little bit about our four panelists. The first one to speak this morning is Susan Bodine. Susan is the Assistant Administrator at the EPA’s Office of Enforcement and Compliance Assurance. This is her second time that she’s been at the EPA. Before that she was the Assistant Administrator for the Office of Solid Waste and Emergency Response, which is now the Office of Land and Emergency Management. Prior to her current position, she served as the Chief Counsel for the Senate Committee on Environment and Public Works. She previously worked for the House Committee on Transportation and Infrastructure.

 

Susan’s going to talk to us today about the accomplishments of the EPA and its history and it’s change over time, which I think given the number that she’s been back and forth there, she’s well positioned to talk about. A fun fact about Susan is that she has basically done everything twice in her career. She was in private practice twice, she worked on the Hill twice, and she’s at the EPA twice. She asked us to give her double the time given that for this morning, but we said no. She’s still gotta stick with her time. Susan’s going to go first. Before she starts, I’m going to introduce the rest of the panelists.

 

Our second panelist this morning, or this afternoon, will be Lisa Heinzerling. Professor Heinzerling is a professor at Georgetown University Law Center, where she specializes in administrative and environmental law. She’s authored several books including Priceless: On Knowing the Price of Everything and the Value of Nothing, which is a critique of the cost benefit analysis in environmental policy. Lisa previously served as Senior Climate Policy Counselor to the Administrator of the EPA and Associate Administrator of EPA’s Office of Policy. She’s going to talk today primarily about climate change, but given that we just had an election, she’s going to talk about how she thinks the new administration could influence EPA’s policy. A fun fact about Lisa is that she loves heist movies, so she asked if she could steal Susan’s time. I told her no; she can’t steal Susan’s time. You see, hopefully, we’ll get a nice debate here going given all the tension we already have.

 

Our next presenter will be Scott Fulton. Scott is currently the president of the Environmental Law Institute. He’s the former General Counsel at the EPA. Mr. Fulton has served a number of other key leadership roles in both Republican and Democrat administrations including as the acting EPA Deputy Administrator, the head of the EPA’s Office of International Affairs, a judge on the Environmental Fuels Board, and head of the Agency’s Enforcement Program. He also served as Assistant Chief of the Environmental Enforcement Section at U.S. Department of Justice in the Environment and Natural Resources Division.

 

Scott’s going to talk about—today he’s going to talk about, during his time, the Macbeth Report: Cooperative Federalism and having a more robust federal role in environmental protection. Fun fact about Scott is that he a singer/songwriter and he’s made many albums. He told me that and I thought, “Oh, yeah. Sure.” I looked him up, and it’s actually true. He has. My clerks were forced to listen to me playing Scott’s songs for a while very loud. He’s best known for his acoustic folk compositions. Look up Scott Fulton and his music, but after this panel do that.

 

Then our last but not least speaker is Henry, who goes by Hank, Habicht. He’s currently the principal at Global Water 2020. His career in the environmental policy world has included leadership positions at the U.S. EPA as the COO. He’s held numerous board seats over the years, including serving as Managing Director of the U.S. Water Partnership, Chairman of the Board of Water Health International, Co-founder of the American Council on Renewal Energy, and a member of the board on the Global Water Challenge. He served as the Commissioner of the National Commission on Energy Policy, and he’s advised several cabinet secretaries.

 

He’s going to talk about separation of powers at DOJ, EPA, and on congressional issues. And a fun fact, which won’t be too surprising given as much water stuff as he’s worked on is, he’s helping to launch a platform that will help smaller communities fund their water infrastructure.

 

With that, we’re going to start with Susan. She’s going to speak—each of the panelists are going to speak for seven minutes. Then once they’re done, we’ll have a little bit of back and forth, hopefully get some debate or at least some dialogue. Then we’ll open this up for questions, which I’ll have more on later. Susan, why don’t you kick us off?

 

Susan Bodine:  Thank you, Judge. America’s a much different place and a much cleaner place now than it was in 1970. That’s because of EPA. Our air is breathable. Our water’s drinkable. Waste is managed and cleaned up. As a country, we have accomplished this without stopping economic growth because Congress designed our environmental statutes to allow EPA to set national standards, and then to authorize EPA or authorized states to issue permits that ensure that those standards are met. This approach is market and technology neutral. Our statutes address protection of human health and the environment, not market design or social engineering. When EPA ignores its statutory limitations and its statutory responsibilities, American communities can suffer.

 

On September 7th of this year Politico reported that Lois Gibbs, who was the original Superfund community activist, said the following about the former EPA administrator, Gina McCarthy, and I quote, “All she cared about was climate. Everything else went to blank in a handbasket, whether it was water or environmental justice.” close quote. In the same article, Lois credited the Trump EPA with decisive action to advance Superfund cleanups that had been languishing and to hold responsible parties accountable.

 

That’s just one example of how in the past four years EPA has made it a priority to get results for American communities. To do that, we actually had to overcome an enormous backlog of unfinished business. For example, the Superfund process does create a stigma that suppresses property values and investment, but in four years, EPA will have partially or fully delisted at least 82 Superfund sites freeing communities from that stigma.

 

Four years ago, there was a backlog of 700 Clean Air Act state implementation plans waiting for EPA approval, stalling the environmental work to reduce air pollution, hurting communities. We’ve reduced that backlog to just SIP’s. We’ve nearly eliminated the backlog of EPA inaction on to date lists of impaired waters and acted on more than 7,000 TMDL’s, which are Total Maximum Data Loads, that are plans that are needed to restore polluted waters. In the past four years EPA has helped finance $40 billion in investments for water infrastructure, in large part because in 2017 we stood up the Water Infrastructure Finance and Innovation Act program, which is fantastic tool that Congress authorized in 2014, but had not been used previously.

 

Last week’s election did not indicate a mandate to radically change the direction of EPA. For example, after former Vice President Biden said during the debates that he wants to transition away from oil, the Pittsburg Gazette endorsed President Trump, the first Republican endorsement since 1972. After the current head of the California Air Resources Board, Mary Nichols, told Inside EPA that she thought a Biden administration should use California fuel policy as a template and Democrat members of Congress introduced legislation to, like California, ban all gasoline vehicles by 2035, the Renewable Fuels Association hit back, Iowa went for President Trump, and Senator Ernst won the election. You can be sure that environmental practitioners here in DC, as well as congressional staff on the oversight committees all kept copies of those remarks because, in terms of authority, only the Renewable Fuels Standard Program, which would become irrelevant, of course, if there’s a switch to no fuel cars, authorizes EPA to give a market share to a particular fuel.

 

I don’t think the courts are going to allow the next administration to exceed their statutory ability to regulate. I think we can all remember back in 2015 when the former EPA administrator, Gina McCarthy, appeared on the Bill Maher show on the Friday before the Supreme Court ruled on the mercury and air toxics case. She told the public it didn’t matter if the rule was legally valid. Because it was issued three years ago, investments had been made, most facilities were already in compliance, quote, “So we’re still going to get at the toxic pollution from those facilities.” close quote, even if the rule was illegal. A copy of an EPA blog repeating those remarks was in the filings seeking a stay of the Clean Power Plan and for the first time ever, the Supreme Court stayed a rule before the Circuit Court had acted.

 

EPA can stay within the law and still obtain greenhouse gas reduction. We just announced today, that greenhouse gas emissions from large stationary sources declined by nearly five percent from 2018 to 2019. Under the Affordable Clean Energy rule, by 2030 carbon emissions from the power sector will go down by 34 percent. Since 2017 air pollution in the U.S. has fallen by seven percent. I also don’t think there’s a mandate to weaponize enforcement, to create new laws, and force actions that are not required by regulation. EPA and state enforcement of actual regulatory requirement is critical to protect air, land, and water and to maintain our environmental progress. At the same time enforcement is not a numbers game. The goal is compliance with the law to protect public health and the environment, not a target number of actions or onsite inspections.

 

I have to say, here in 2020, we have a lot more tools to ensure compliance than ten or even four years ago. EPA can advance compliance while holding violators accountable. In 2018, we reversed the downward trend in new criminal cases that had begun in 2011. By September of this year, the Trump administration had collected more in civil and criminal penalties than in the first term of the last administration, and that’s without including the 2017 Volkswagen cases. In fact, we’re on track to collect more than double by the end of this year.

 

I hope that the next administration continues to focus on carrying out its statutory responsibilities to protect the land, air, and water where Americans live, work, and play and that that is the vision for EPA in the next 50 years. Now, I would like to turn it over to Professor Heinzerling.

 

Prof. Lisa Heinzerling:  Thanks so much. The title of this panel suggests the possibility that EPA’s first 50 years have been a time of regulatory overreach. The implicit suggestion is that the agency has regularly gone past the limit of its legal authority and has provided too much environmental protection at too great a cost. I disagree with this premise. In fact, as I see it, EPA’s first 50 years have been more marred by the agency’s consistent tendency to underreach than by any tendency to overreach. The agency has underreached both in comparison to its broad statutory powers and in comparison to the scale of our environmental problem. Nowhere is EPA’s undershooting these marks more pronounced and dangerous than in the agency’s response posed by climate change.

 

Next month we’ll celebrate EPA’s 50th birthday. The Clean Air Act was passed in that same year. For most or all of these years, as the Supreme Court confirmed in Massachusetts v. EPA, EPA has had authority to regulate greenhouse gases as air pollutants under the statute. And as the Court held in Massachusetts v. EPA, EPA’s regulatory authority was so plain on the face of the statute that EPA had no power to claim that it had no power to regulate greenhouse gases.

 

Moreover, for all of EPA’s 50 years, we’ve had reason to believe, or to suspect, that greenhouse gases emitted through human activity will contribute to global warming. For well over half of those 50 years we’ve had strong scientific evidence and consensus that the process of global warming is underway and that its affects will be dire. One famous and important moment came all the way back in 1988. EPA was only a teenager then when the esteemed NASA scientist, James Hansen, testified in Congress that the greenhouse gas effect has been detected and is changing our climate now. Yet it was another quarter of a century before EPA formally found that greenhouse gases are endangering public health and welfare and before it committed to doing something about it.

 

Then over several years EPA managed to issue regulations for several categories of greenhouse gas emitting sources. Even in those years EPA did not act on the scale commensurate with the statutory powers and even in those years, EPA did not regulate on a scale commensurate with the environmental threat. Yet even that relatively modest beginning was undone by the current administration which unregulated as fast as humanly possible and went so far as to shun the very phrase “climate change” at some agencies.

 

The sitting administration has now completed some 125 environmental roll backs with about 40 still in the works. Many of these decisions specifically relate to climate change. Many have gotten into legal trouble. In fact, this administration has had a notably poor record of defending its administrative decisions in the courts. A recent tally reports that in environmental cases, the administration has, despite the leeway given to agencies on legal and factual judgements, lost 37 times and prevailed 17.

 

We’ve lately seen, in other words, an EPA that has overreached by underreaching. It is even now attempting to make underreaching official agency policy. Two examples; the White House is now reviewing a final EPA rule that would limit the scientific studies the agency may rely upon in making regulatory decisions and significant scientific determinations. Second, the White House is also reviewing a final EPA rule that would require the agency to conduct cost-benefit analyses for significant Clean Air Act rules and then presenting the results of those analyses to highlight the health and welfare benefits that pertain to the specific objective or the provision under which the rule is promulgated. Thus, perhaps, occluding the full range of salutary consequences that come from measures to control pollution.

 

Thus, with a new presidential transition almost upon us, we face the possibility of a presidential term in which EPA’s chief occupation maybe simply undoing the destructive work done by the outgoing administration. Even merely returning to where we were four years ago, let alone advancing to the level of regulatory ambition we need, could take years. And those are years we don’t have to lose given the short timeframe we have for effective action to guard against the most extreme effects of climate change.

 

The example of climate change shows the environmental peril we face when we task EPA with doing too much with too few resources and excoriated endlessly for doing what it so plainly is not doing, that is overreaching by overprotecting us from environmental threats.

 

I fear that in the coming years, in a new administration, we’ll see legal developments that will even more strongly encourage underreaching by this important agency. Even before the arrival of Justice Barrett, five justices on the Supreme Court had already signaled there were ready to begin enforcing the non-delegation principle, or the idea that Congress may not delegate its legislative powers to other entities. These justices signaled that they would revive the non-delegation doctrine where Congress delegates major regulatory choices to executive agencies. In the context of statutory interpretation, most of these justices have already joined decisions indicating that regulatory choices about climate change are major policy choices. Thus, perhaps signaling that they may regard them as major policy decisions subject to the new principles for non-delegation. In his decent in the recent non-delegation case of Gundy v. United States, Justice Gorsuch conspicuously omitted a major Clean Air Act decision, American Trucking Association v. Whitman, from his catalog of prior cases that would easily pass muster under his new test for non-delegation.

 

For me, then, the major worry isn’t that EPA will do too much when it comes to climate change or environmental problems generally. Doing too much isn’t generally what EPA has done. The worry instead is that it will do too little, or that the courts will force it into that position. I’ll now turn to Mr. Fulton for his remarks.

 

Scott Fulton:  Thank you, Lisa. And good greetings, everyone. It’s really nice for me to be with my fellow panelists. All these folks are folks I’ve had a chance to work with along the way; great minds and thinkers. Just a brief introduction to the Environmental Law Institute for those of you who are unfamiliar with it. This is a 50-year-old organization, by design non-partisan and non-advocacy in nature, focused on building effective governance and rule of law in the environmental space. We’re, among other things, a membership organization with a broad private/public constituency. A couple of years ago we undertook a project on cooperative federalism in memory of a departed colleague, Angus Macbeth. Many of you know him. We did this with the support of the American College of Environmental Lawyers and in cooperation with the Environmental Council of States.

 

I thought I would use my opening time to talk a bit about the Macbeth project as it may help us in our thinking about options in the divided leadership scenario in Washington that we are anticipating. We began this project by bringing together a group of current and former state and federal environmental officials for a series of Chatham House Rules discussions about the federal/state relationship. A good number of these folks had worn both state and federal hats. This was followed by dialogues with a broader array of stakeholders and some rather extensive surveying. This all culminated in the Macbeth Report, right about two years old now, but in my view still one of the more thoughtful pieces on cooperative environmental federalism that has been rendered. You can find it for free on the ELI website.

 

The report naturally does a download on the discussion series and the surveying work, but also points in the direction of some possible reframing opportunities. As the report reflects, there was considerable support in the surveyed community, for giving states greater flexibility in running delegated environmental programs. Over 70 percent of those surveyed felt that the federal government should defer where states are in a position to do a better or as good a job. Over 50 percent of respondents felt that EPA intervention in delegated states should be limited to circumstances of clear failure or when a state has devoted inadequate resources to the endeavor. But even enthusiasts for greater state primacy consistently agreed that EPA must continue its leading role in developing national standards and conducting scientific research as states often lack the needed expertise and sometimes the breadth of interest to play these roles.

 

There was also a strong consensus around a relatively greater federal role in the context of interstate issues and unique federal interests. The report pointed to some places to look for options for adjustment or realignment. Let me just mention a few. First, it recommends rather strongly a return to first principles. If federal presence is premised on the Commerce Clause, let’s look at any additional reframing on this basis. For issues that are inherently interstate in nature, such as the federal interest is particularly robust, it should also, perhaps, be the place for a greater federal role. Conversely, where issues do not have interstate dimensions, perhaps state primacy should be strongest there.

 

This notion of a diminished federal presence relative to programs that are inherently intrastate in nature, it’s not a small reorientation, as EPA has remained substantially involved in some programs that, at this point in history, are primarily intrastate in character. Examples of these include the Leaking Underground Storage Tank program, waste management regulation under RCRA, or at least the treatment disposal and storage facility regulation, Safe Drinking Water Act implementation and, yes, even Superfund.

 

Some of this tendency to remain involved in intrastate matters is the function of the once-you-build-it, it-lives-forever phenomenon, but I think perhaps another reason EPA has remained invested in these programs is that they can provide a sense of connection with communities, which the agency has seen as helpful in terms of engendering public support. But the report suggests that federal primacy in the context of intrastate matters is very difficult to square with the principled approach to federalism just as it observes that with respect to interstate matters the imperative for federal involvement is more pronounced.

 

A key caveat on this interstate/intrastate divide is the lesson from the Flint, Michigan, Lead in Drinking Water Crisis. The issue there, provision of drinking water, can be seen as intrastate in nature. EPA attempted to be deferential, but ultimately was unable to defer in the face of state failure leading to a public health crisis. I think the teaching there is as long as residual federal authority exists, there will likely also be a need for a reserved, meaningful intervention capacity for dealing with such failures. Recognizing the importance of the interstate dimension in defining the federal role, the report recommends that a formal structure be created to give downwind, downstream states a more meaningful voice in regulatory decision making so that self-protective states can serve as a more important check on underperforming states perhaps decreasing the need for federal oversight.

 

The report also considered the role that evolving monitoring technology and environmental big data will play going forward both as a driver of environmental behaviors and also as part of the accountability system. So for example, the advent of sophisticated fence line monitoring systems would seem to allow for considerably more within the plant flexibility. The more operational flexibility for regulated entities, arguably the fewer friction points between levels of government. Similarly, enhancements in ambient environmental monitoring from space to ground level, promise to shine a much brighter light on problematic environmental conditions and on government failures. Might this allow for some redesign of the checks and balances that have defined cooperative federalism thus far? This gives you a bit of a flavor. There’s considerably more there in the report. Please give it a read. I’ll wrap up my remarks so that we can hear from Hank and move on to the discussion. With that I’m going to pass it on to Hank Habicht.

 

Hon. F. Henry “Hank” Habicht:  Thank you very much, Scott. One of the best decisions I made as a wet-behind-the-ears appointee many years ago was to hire Scott into the Justice Department. That helped us a great deal as we started with this crazy Superfund program.

 

I’m honored to be on this panel. I had a chance to look at a recent FedSoc analysis of a Federalist Paper No. 1, on the importance of civil discourse, and this is an important time for that. So far, this panel has had some disagreements already, but it’s civil, and I hope to keep it that pattern up.

 

Just to give you a little context, I’m, I guess the grey beard here, so I’m going to give a little bit of historical context. I’ve been involved in the environmental debate since Ronald Regan was elected president and was involved in that transition. I had the honor to work for both William French Smith and Ed Meese at the Justice Department. I stole a line from Bill Smith that he used to describe the Attorney General, but I said, “Being an environmental appointee in a Republican administration was like being the captain of the javelin team who elected to receive.” One of my early responsibilities was to go to John Dingell and explain to him why one federal executive agency couldn’t go into federal court and sue another federal executive agency citing the Unitary Executive which is now a popular concept. That was a fun hearing.

 

Anyway, but it was a great experience. In fact, I realized that it’s been 27 years since I ended my tenure at EPA, ended my tenure and it seems much fresher than that. There’s two reasons for that. One is the EPA is populated, as Susan indicated, overall by very highly qualified, competent professionals and we’re dealing then and deal now with issues of important first impression for the country. Second, it’s fresh because some of the biggest issues we dealt with back then are the same issues that exist today. Back in 1990, even then there was a discussion about the imperative for EPA to figure out how to move beyond purely a role of command and control regulation and enforcement because of the complexity of the emerging environmental issues. Well, here we are today and we’re still working on that. What I want to do is just make a few broad observations of some of the threads that have been woven through the last 50 years and still exist today. Then talk about, throw out some ideas about a path forward and then open it up for discussion.

 

      First observation, EPA is the story of an effort by democratic institutions and ultimately we the people, to figure out how to reconcile the risk that emerge from economic and technological growth with other important social values ranging from, obviously, present and future generations’ health, equal justice for all, and property rights — a challenge. Congress’ role had been mixed, but obviously critically important. I think EPA has been given a patchwork, of unconnected environmental laws over the years, multiple oversight committees and limited resources to implement those laws. That’s been a challenge, but in the early days, the gross categories of pollution and the major media were agreed to be significant priorities and EPA and the states, as Susan said, did a brilliant job of really reducing those risks.

 

I think the question now is, If the laws are not updated -- it’s very hard for Congress, and Congress, I’m sure one of the least like to do, probably to some of them it’s like gettin a root canal, is to actually go back and revisit some of these environmental laws and update them. Assuming the laws are not updated, we do run the risk of inertia taking over a bit at EPA, where a lot of resources are devoted to risks that used to be significant, but are not as significant as they used to be and maybe not have enough resources focused on emerging risks that are important. That’s something that we’ve all dealt with for 25-plus years.

 

A fourth observation is that science is the centerpiece of decisions to intervene in the marketplace with regard to this reconciliation of progress and protecting other important social values. Science has to be the centerpiece. I’ve always said scientists have to be involved early in the policy development process and defining the issues all the way through the policy development process through the decisions.

 

Science is not the final decision maker. The decision makers are the Article I and Article II branches of government that have to balance all these social needs and we’ve seen that debate in spades with regard to COVID, but it’s very important. Science is essential, but not the last word. I think Congress has been less than clear in the way they’ve written these laws. They’ve been results of legislative compromise. There’s often vague language. There’s often unrealistic deadlines. That’s something we just have to recognize.

 

What does this all mean going forward? I think, as I said, science is essential, but science has to be described and communicated in a way that’s accurate and candid because, as we know, with certain environmental risks, we have lots of data and important information. In other areas, we use complex models that have many default assumptions because we don’t have a lot of data. That doesn’t mean we don’t make decisions, but we have to be as candid as possible about how that works, about how that’s communicated.

 

We tried with the guidance in 1992 on risk characterization to achieve that goal. Two examples, one is lead. Lead was an example of an environmental contaminant where there was amazing agreement. There was a lot of epidemiological data, amazing agreement on the importance of lead as an environmental risk and we aggressively in EPA and society supported going after lead aggressively. I spent a lot of time on the lead and copper drinking water rule which has been in place for a while. It should be updated, but it in fact worked very well until there were people who didn’t implement it properly.

 

Another example from that time was electromagnetic fields. There was also a lot of interest in regulating electromagnetic fields for example, from this new device, the cell phone back then and was an important issue, but in that case, there was a very early emerging and unclear scientific data and not a legislative authorization to deal with it. Those are two examples of important issues that EPA needed to address, but had, for various reasons, to address in different ways. I think that’s an important part of how we go forward. Now, I think the bottom line is we don’t have the resources or the ability to rewrite all the environmental laws right now, but I do think we have an opportunity when we deal with really important emerging issues, to take fresh approaches with regard to how we deal with that.

 

Let me just say, the issues of the 21st century, there’s some very major issues. Let me mention two that I think are really important. First is the impact of development on resources which are primarily felt at the local level. As the judge said, my passion is water, so I focus a lot on the impact of development as well as climate change and other things on water resources which is quintessentially a local kind of issue.

 

There’s a great opportunity for the cooperative federalism Scott talked about. I’ve seen communities and states do amazing work in really mapping out sometimes for the next 100 years or the next 50 years in mapping out water resources and what they see as risks and how they need to deal with it and reconcile that with the economic development priorities they all have. That’s exciting and important. There is a critical role for EPA to play, not only through SRF and other water related programs, but also to design innovative ways to collaborate among all the levels of government.

 

      A second major issue that Lisa talked about is climate change. I happily will not delve into the details of climate change other than to say it’s an issue that we have to address. It’s an issue where the EPA should not shoulder on its own or feel that it needs to shoulder on its own. At EPA, you can talk about legislative authority, but this is an issue that quintessentially Congress has to address. As I was thinking about that it’s not the role of science in all of this, the example of the physician came to mind. If a physician sees hard evidence that someone has stage four cancer, there’s no question that immediate and radical action needs to be taken in the case. If there are evidence of disturbing trends whether it’s with cardiovascular health or cancer, lifestyle changes are indicated. There’s a lot of things that need to be done and monitoring needs to occur, but not necessarily radical action.

 

I think with environmental issues, hopefully, EPA and the Congress and the democratically elected branches of government can begin to focus on strategies so that it’s not all or nothing, that we have to be able to use science, have dialogue and have all the levels of government really work together on figuring out, “Okay. This is an urgent problem that requires immediate action and let’s get together and get that done.” EPA’s very good at that. Or here’s something that is a significant risk that we need to address through incremental and forward progress, and monitor it and use our enormous abilities to map and track progress and focus on monitoring and then making changes and ramping up strategies as that’s indicated. Easier said than done, but I think EPA’s equipped to do it.

 

I think this public is a lot more sophisticated on these issues and these issues go fundamentally to how we grow going forward. So going forward, again, I would just say the importance is the focus on science. As I’ve discussed, like the good physician. I would say number two, really focus regionally, much more than we ever have before because the region, the clusters of communities in regional parts of the world and in watersheds and things like that are really going to be the theater in which so much action needs to be taken and where we need to do better.

 

Third, Congress just needs to step up, needs to step up and address these issues and not complain if they don’t update the laws and they don’t like what EPA does. They need to step up. I think by not taking action, EPA is variously viewed as either being weak or being a rogue fourth branch of government that’s bent on world domination. Obviously, neither is the case. The private and technology sectors finally need to be woven into this strategy, as we all know, because the economic and technological progress that required the formation EPA also has a seat of the solutions to the problems that we have. I’ll stop there. It’s a piece of cake. I really appreciate just being part of this, and I’ll send it back to our moderator, Judge VanDyke.

 

Hon. Lawrence VanDyke:  Thank you, Hank. I really thank you to all of the panelists. What a great group of panelists here. We have so much experience in this area represented. What we’re going to do now is we’re going to go back to the panelists in the same order and, hopefully, as Hank said, it’s been a very civil group and that’s good, but we don’t want to be too civil. We have to have some disagreement. Hopefully, we’ve got a few things we disagree on. We’ll go back through in the order that we’ve already presented. I’ll add one thing that you can discuss. If you can’t find anything to disagree on, feel free to opine on something I care about now, in this role is, what is one specific thing that the courts have done right in this area and what’s one specific thing that the courts have done wrong? I guess if you find plenty to disagree with your colleagues, you don’t have to address that, but if you don’t find something then you have to address that. So Susan, why don’t you kick that off.

 

Susan Bodine:  Thank you, Judge. The courts are right when they hold EPA or any federal agency to its statutory authority. You mentioned from my bio, I’ve worked for both house and senate. I spent nearly 14 years of my career working for Congress drafting legislation. It is, I think, tremendously important to stay within the authorizations because, as Hank pointed out, these are compromises. Every piece of legislation is a compromise and that compromise reflects the balance that has been discussed here today; balance of competing interests. It is important for courts to hold agencies accountable to stay within their authority. I’ll turn it over or turn it back to you, Judge.

 

Prof. Lisa Heinzerling:  -- plain themselves, really making them speak in recent terms, having their reasons make sense and having the reasons they give be the real reasons. I think that that principle of administrative law is fundamental to environmental protection. I think it keeps agencies in line with the evidence in front of them. I think it gives the public a sense about why this agency is working. I think it actually also leads to much greater accountability on the part of the administrative agency. I think the thing the courts get right time and again, is making agencies explain themselves.

 

I’ll note, I will like this principle in the new administration as well, which will have to take time in order to undo any of the policies they disagree with. That will be a result of having to explain themselves. I actually embrace this principle across administrations. Can I just say a couple of things about the remarks on the panel?

 

Hon. Lawrence VanDyke:  Absolutely. Absolutely.

 

Prof. Lisa Heinzerling:  I actually agreed with a ton of what was said here. I saw one common theme among the other speakers that may not be obvious, but this is what I saw. There’s kind of the idea that in order to do its work, especially everybody agreed that EPA doesn’t have the resources it needs to do all the jobs it’s been assigned. One of the things I think EPA needs to be able to do and do reasonably and consistent with scientific evidence and so forth, is take things off its agenda as well as putting things on the agenda. I took that to be part of your point, Susan, with respect to climate versus other issues and Scott’s point with respect to local versus federal issues and Hank’s point as well about inertia in a way, not just keeping programs because we’ve always had them. I think this is critical. I thought this was when I was at EPA. The way you make room for the really important stuff is not to do some things. I thought that was a great theme in all of this.

 

The last thing I would simply say is that Hank rightly says that Congress needs to step up. I do agree. I also happen to think that Congress has stepped up time and again. We have very broad statutes, that give a great deal of authority to the agency. Those statutes are still in existence and I would say a common theme with those statutes is, Hank, exactly as you say, which is to pay attention to science, really rely on science as a backbone of the agency, and then to respond to that as new and emerging science indicates that there are threats where we did not see them before. To me, we need to both think what would be good action from Congress at this time on new problems, but also not minimize the extent to which Congress has already made a series of judgement in existing law that can be acted upon right now.

 

Hon. Lawrence VanDyke:  Thank you, Lisa. So Scott, do you have any thoughts?

 

Scott Fulton:  Maybe just a few. On the question of what the courts have gotten right and gotten wrong, I think, actually, I have a fair amount of faith in the judiciary. I think on the whole, more right decisions have been made than wrong decisions. But I will observe, as sort of a stark outlier in that, the Supreme Court’s work in Rapanos decision and the complete confusion that has pervaded around federal jurisdiction under the Clean Water Act and the years since, which has, of course, led to this progression of efforts to deal with that. The Obama administration’s WOTUS rule, which has now been superseded by the Navigable Waters Protection Rule. This is a messy area, and I think it’s been made more messy by the Court’s work on it, unfortunately. I would guess that they would agree with that. If they had another pass at this, they would try to be a little bit clearer about that.

 

I’ll just say, this maybe a contrarian point on this in terms of the Trump administration’s work, my disappointment with the Navajo Waters Protection rule centers around principally the question of federal leadership and pointing to the problems that we need to be trying to address or not pointing to the problems. We have a big issue in this country with the graded freshwater systems, part of what Hank is working on now. A lot of that degradation now associates not so much with industrial discharges but storm water runoff. A lot of that contribution is from agriculture. We don’t have the regulatory tools to really wrap our arms around that.

 

We also have this interesting political dynamic that is set up where half of the states in the union—this really needs to be understood—half the states in the union have defined their own jurisdictional reach as co-extensive with federal jurisdiction. If you narrow federal jurisdiction, half the states are not in a position to pick up the slack, so this notion that the states are going to be the backup on all this and that they’re going to be the answer dealing with our freshwater issues in this country is just not sound. My disappointment with that rule kind of connects with that point of departure, if you will.

 

I am not fatalistic about the role of the Congress in taking on some of the things that we’ve been talking about, although I do think, given the constellation of actors that we’re expecting, that environmental legislation will have to be centrist in nature in order to be able to be workable. There are some things that might be workable. Perhaps there’s something on the climate front, especially if we think about a carbon tax or a simple approach that relies heavily on the market to drive the desired behaviors. Maybe that particularly with some members of Congress who were more favorably disposed towards climate legislation, before they attached their wagon decisively to the White House, might be able to see these issues in a slightly different light. Maybe that’s a place.

 

RCRA -- I wonder about RCRA and the fact that we have a statute that hasn’t been updated in a long time that it is arguably at tension with circular economy notions and modern notions about sustainability. We need to be moving much more secondary material in the direction of reuse and recycling, and RCRA, just because of its dynamics, commits a large amount of material to a destruction fate. We’re not in the right place on that. It maybe that that a bipartisan solution could be derived in that space. Some other thoughts, but I’ll stop there.

 

Hon. Lawrence VanDyke:  Thank you, Scott. And, Hank, we’re going to turn to you. Scott talked a lot about water which is an area that’s near and dear to your heart. Did he say anything that you disagree with? Do you regret hiring him all those years ago? Or anybody else, do you have any thoughts on what anybody else said?

 

Scott Fulton:  No. I still like to bask in Scott’s reflective glow, so I don’t regret hiring him even though we don’t always necessarily agree. I had two categories of only maybe marginally connected thoughts. One thing that, as I was thinking about these remarks, bringing up an oldie but goodie which is the National Environmental Policy Act. I had thought for some time that even though the National Environmental Policy Act has been the subject of all kinds of crazy litigation regarding federal projects and things like that, that there are fundamental principles in the National Environmental Policy Act that are really valuable in terms of looking at how EPA functions and how we as a society deal with these environmental challenges because it’s fundamentally focused on the record, on disclosure of the facts, on really engaging stakeholders and the public in an effective way. A lot of this is in the EPA bailiwick as well, but there’s some principles there.

 

Here’s how I will connect it to Scott’s comments because certainly the Waters of the United States issue, whether Prairie Potables or the Waters of the United States was an issue way back when we were at both Justice and EPA, it’s a very tough set of issues. This is one of those issues in which I think the courts need to hold Congress’ feet to the fire, if you will, because when you get beyond Navigable Waters I think there are very important policy decisions and allocations of authority from the federal, state, and local levels that are really important here. I don’t have a specific critique of the current rule or the Obama rule other than to say that it shows how consequential that rule is and how much it not only affects economics, but it affects everybody’s perception of the role and the freedom, the ability of local jurisdictions to manage growth and manage their economic affairs going forward.

 

That is a kind of issue that the scientists and the members of Congress and the policy experts need to get together and figure out; a true bipartisan challenge. It is important because it comes back to this issue that I mentioned briefly earlier, which is I really see the region, whether you call it a watershed, so not just the community, but a region of the country, as being a critical theater for figuring out where we go from here. That’s especially true with water resources. I do think this endeavor that—and actually Brent Fewell, who many of you know, and I and some other experts are involved in this Water Finance Exchange. It's really designed to work with communities in regions and figure out what works and what’s keeping them from getting their water infrastructure funded.

 

As we do this, we see that at the regional level several activities—power, water, and broadband—are essential to the economic health and vitality of those regions. And so EPA as well as other agencies have a really critical role to play. I think it’ll be a good balancing act, but really an important one, for us to figure out how the federal government not only tells the regions what to do, but supports the regions as they try to answer these questions and make some decisions for themselves and not intervene unless there’s a compelling reason to intervene. Back to you.

 

Hon. Lawrence VanDyke:  Thank you, Hank. Thank you again to all my panelists. For the audience, we’re now going to go to a question and answer period.

 

What we’re going to do is to open it up for questions. We’re going to ask you to -- first of all we’re only taking questions over the Zoom platform, and so the way to ask questions is through Zoom. The way you do that is I ask you to raise your hand using the “Raise Hand” function on Zoom which should be in your lower middle screen. That will let us know that you’ve got a question for either the whole panel or one of the panelists.

 

If you’re on telephone, I guess you can dial *9 and that will also allow you to ask a question, let us know that you want to ask a question. I’ll say when you do ask a question, please, if it’s to one of the panelists let us know which panelist you’re asking question to and, of course, we’ll let any of the panelists address it, but that panelist first. Then also ask that any questions be questions and not just some long discussion, but that they’ll have a question mark at the end of them, and, hopefully, not too terrible long. We’ll turn it over for questions from the audience. Go ahead and press the “Raise Hand” button, and I’ll call on you.

 

      All right. We’ve got one here. Our first question is from Roscoe Stovall. Roscoe, I’m going to go ahead and open it up for you to ask a question. Make sure you unmute. If you’re mute when you start, you have to push the “Unmute” button so that we can hear you. Go ahead and unmute Roscoe. Looks like you’re still muted. There you go. Oh. Now you’re muted again.

 

Roscoe Stovall:  It appears that I’m still muted.

 

Hon. Lawrence VanDyke:  Nope. You’re unmuted now. Fire away.

 

Roscoe Stovall:  Still muted.

 

Hon. Lawrence VanDyke:  Nope. You’re good, Roscoe. We can hear you. We can hear you.

 

Roscoe Stovall:  Mm.

 

Hon. Lawrence VanDyke:  Roscoe, we can hear you now.

 

Roscoe Stovall:  Let’s try this. Does this work?

 

Hon. Lawrence VanDyke:  Yep. That’s workin’ great. Go ahead and ask your question.

 

Roscoe Stovall:  Okay. Great. I’ll take my headset off. Sorry about that. Sorry to delay everybody. Okay. Thanks, Dean VanDyke. Judge Habicht, I guess I would ask you this. You are actually last on the screen, and I think I’d really love to hear from you. Then I’d also like to hear from Ms. Bodine. I think the two of you would really—I’d like to hear both of you talk about what affect the Paris Accords will have should Vice President Biden actually be inaugurated and carry out his statement that he will sign, early on in his administration, the Paris Accords. What affect will that have and what do you see as follow on effects, potentially?

 

Hon. Lawrence VanDyke:  Why don’t start. Hank, why don’t you—thank you, Roscoe, very much. Great question.

 

Roscoe Stovall:  Thank you. Thank you so much.

 

Hon. Lawrence VanDyke: Why won’t we let you start, Hank, and then Susan, and then we’ll open it up to the other panelists if they’ve got any thoughts on that.

 

Hon. F. Henry “Hank” Habicht:  I’ll be happy to lateral this to Susan pretty quickly but let me start by saying that I’ve cared a lot about climate change, about the debate. I’ve been particularly focused especially over the last I don't know maybe ten or twenty years on the solutions, on the technologies and the solutions that mitigate greenhouse gases and increasingly recently on the adaptation side of things. Obviously, we can’t get out of this by mitigation alone, as we all know, and adaptation is a key part of this. It implicates so many things which is why this is bigger than just the EPA issue.

 

As far as the Paris Accord goes, we were involved with Bush 41 and the signing of the framework convention, the original framework convention on climate change. This is an issue that fundamentally the U.S. needs to participate in in the international community on. The question is what kind of commitments are made, what kind of enforcement mechanisms exist, and that sort of thing.

 

I’m not an expert on the Paris Climate Accord. I do believe that the United States just has to be more of an active player, first of all because we have a lot of solutions that have global application and can have great economic impact. But also, just like with another issue I work on, which is water and sanitation in emerging markets, the U.S. has so much to bring to bear I think it’s a great way for us to build our stature and our friendships around the world, but I also think that what happens in other countries, you know, we can’t solve climate by ourselves. What happens in other countries is critical and we need to have some influence in that process. Not knowing the nuances of Paris, I’ll stop there and turn it over to Susan.

 

Susan Bodine:  Thank you, Hank.

 

Hon. F. Henry “Hank” Habicht:  All yours.

 

Susan Bodine:  The Paris Accord was never submitted to the Senate as a treaty for ratification. As a legal matter, it was a statement of policy. It doesn’t have an enforcement mechanism, in fact. And so the next administration could rejoin the Paris Accord, again, as a policy statement. They can propose legislation to Congress. Again, that’s any administration’s prerogative, but it is not self-implementing. Again, it doesn’t even have the status of treaty.

 

I know that when the issue had been debated in Congress, I believe it was Janet McCabe testified saying when asked, “Wait a minute. What’s the purpose here? Why are we joining this, especially if we’re going to bear such—the cost of it might be borne in the United States?” Their response was that, “We need to send a message.” Then the question, of course, came back to Ms. McCabe was, “Well, aren’t there less expensive ways of sending a message?” Again, it’ll be hotly debated, I’m sure, once again. But again, it’s important to remember that it’s not even a treaty. Does rejoining the Paris Accord do anything more than send a message? I don’t believe so.

 

Hon. Lawrence VanDyke:  Lisa, I’ve got to hope that you’ve got a view on this, so I’ll want to turn it over to Lisa and then we’ll see if Scott has some thoughts on it.

 

Prof. Lisa Heinzerling:  Just interesting if one takes your view, Susan, then I’m interested in the Trump administration’s very deep desire to depart from something. If you think it’s simply a statement and it’s symbolic and so forth, I also wonder if it is symbolic, what is the message leaving that agreement sent to the world. Here I’d be with Hank about it, the importance of our joining these global partnerships on a global problem. I agree that this is fundamentally a global problem. I think that rejoining makes a great deal of difference with respect to our standing in the world, our ability to influence the process. I will say that when I was a climate advisor to Lisa Jackson, I was just so struck by the amount of expertise and experience EPA brought to bear on those international climate meetings. What a shame it is if the world’s deprived of EPA’s amazing expertise and experience.

 

Susan Bodine:  So, as I said, it is a policy statement and the concern with the Paris Accords as drafted was that it was not fair to the United States and so, yes, climate change is a global issue, yes, it’s an issue that must be addressed, but that was not, in terms of treating the issue with respect to Americans and then across the world, that was not a policy statement that the administration embraced and, yes, withdrew from the Paris Accords.

 

Hon. Lawrence VanDyke:  Anything else, Lisa? All righty, Scott?

 

Scott Fulton:  I guess, I would agree with various parts of what the different factions have said. On one hand, it is certainly true that the Paris agreement would not have immediate domestic effect if the United States were to resign or is going to resign, as the president-elect has said he’s going to. It’s no accident that the assurances that are provided under the Paris agreement are described as contributions rather than commitments. They were by design intended not to be enforceable.

 

Despite its character, it’s important to remember that the Paris agreement would not have happened but for the U.S./China Accord on greenhouse gases. The Paris agreement represents the best statement that could be hammered out between the United States and China, which then served as the predicate for what could be asked of other countries. The United States’ absence from the Paris agreement is significant in terms of the pull and sense of imperative that is projected to other countries. I don’t think the fact that it’s not enforceable agreement does not, in my view, mean that it’s an unimportant agreement. I actually think it’s an extremely important agreement and the United States’ leadership and interests will be advanced by signing back up for that agreement.

 

Hon. Lawrence VanDyke:  Well, thank you, Scott. Does anybody else have any follow up comments, or should we go to the next question? I see no hands. We’ll go to Mr. Freeman, Brian Freeman. We’re going to open it up for you to ask your question here. Again, remember to unmute, and I’ll try to help you with that if you don’t get it unmuted. Go ahead and ask your question, Brian. Let us know if it’s still one particular panelist or we can just have any of the panel.

 

Brian Freeman:  - I’m sure. Can you hear—

 

Hon. Lawrence VanDyke:  We can hear you.

 

Brian Freeman:  Great. Thank you. Professor Heinzerling, I guess this question is mainly for you. I mean, a practitioner with private practice for 30-odd years, doing a lot of air work in particular. I didn’t necessarily read the panel’s presentation this morning—or the set up for the panel’s presentation as implying that there was EPA overreach for 50 years, systemically, etc. If that were the hypothesis, I wouldn’t agree with it. I have seen in practice instances where there seem to be clear instances of overreach and this is not unique to EPA. It’s an administrative phenomenon generally.

 

I would be interested in your thought on one specific instance concerning the Once In/Always In policy, so called, for instance air pollutants. That one seems to revolve off a specific parameter in the Clean Air Act where the use of the present tense implies that a source is a major source, or is not a major source, and couldn’t change from that on the hazardous air pollutant side as well as it could do on the new source review side for non-hazardous air pollutants without controversy. Again, just for the overreach issue, though, I’m just curious, would you see that as an instance of overreach? Again, not to condemn 50 years of progress certainly, but I’m just curious on your thoughts in that particular instance where it seems like a very discreet instance of overreach.

 

Prof. Lisa Heinzerling:  Well, first of all on what I said about the premise, I do take it that the title of this panel, actually, was a debate, but it struck me that imbedded in that debate was a suggestions of the possibility of a pervasive overreach by the agency, and that’s the idea I was responding to even though I fully recognize that The Federalist Society framed this, and I think it has been, as a debate among us, about whether that fact was true.

 

As for the Once In and Always In policy under Section 112 of the Clean Air Act, you’ll have to remind me about the exact specifics of that, or I can say something generally, which is that it strikes me in the many cases environmental law does make changes from the regulatory baseline or default position difficult to do. I think there’s a good reason for that. It’s really hard to make any environmental progress at all given the resources arrayed against the agency, the paucity of the agency’s resources, and so forth. To the extent that the statutes make regression from a regulatory baseline difficult, I wouldn’t regard that as necessarily overreach.

 

Hon. Lawrence VanDyke:  Thank you, Lisa. Now, does anybody else have any thoughts on the question?

 

Hon. F. Henry “Hank” Habicht:  I—

 

Susan Bodine:  May I speak more generally?

 

Hon. Lawrence VanDyke:  Yeah. Why don’t we—Hank why don’t you go first, and then Susan.

 

Hon. F. Henry “Hank” Habicht:  Okay. I’ll just be brief. It came to mind in the—first, I appreciate Brian’s question. In having been at both Justice and EPA, there are sometimes when laws are implemented that presumptions are built into rules and things like that to make enforcement less difficult. Sometimes those are overreaching and sometimes they’re entirely reasonable.

 

The comment I wanted to make, though, was talking about the Clean Air Act, the 1990 Clean Air Act amendments, which I was present for, but I can’t claim much credit for, was really an amazing—I just wanted to comment that it’s an amazing legislative accomplishment because I was also involved with immigration reform back in 1981. In both cases, there are party divides as much as there are regional divides. If you look at the range of clean air issues, they’re very regional issues. In some cases, a region might be liberal on one issue and conservative on another because of their demographics and economic base and all that, so it’s an amazing accomplishment to do a comprehensive law and all the compromises that occurred to have all those titles come together when there was not a logical constituency for any one of those provisions. That was a great accomplishment, but it did leave room for interpretation and some challenges in implementation. Susan’s the expert on that.

 

Susan Bodine:  I wasn’t going to speak directly to Once In/Always In. Although, again, in my opening remarks I did say that I’m concerned about law being made through specific enforcement actions. But more broadly, the argument that I think I maybe heard Professor Heinzerling say, maybe not, that we need to let our laws, without amending them, we need to let them evolve to address new challenges. Again, I have to go back to what I said earlier about how each of these statutes, and Hank said the same thing, is a carefully crafted compromise. If you then amend that, you actually are doing a disservice to the democratic process. I’ve had this debate. When I was on the Hill, I had this debate with EPA staff. I remember once being briefed on a proposal and said, “You have no authority to do that.” And the response was, “But it’s the right thing to do.” Like, “Wait a minute. That’s not your lane.” And so I do think it’s important for agencies to stay in their lane and for democratic processes to work to change authority.

 

Prof. Lisa Heinzerling:  May I just say, I agree. I agree. We just have different views about what the environmental statutes did and what the political resolutions were. I view them as broadly applicable statutes that support action in the face of newly emerging scientific evidence of environmental threats. Not to say I prefer them over a new legislation that’s a bespoke fit for the problem, but I do believe that those statutes still exert power, still are on the books. They reflect a compromise that a lot of the -- the Congress to pass a statute that gave the agency this kind of broad authority that endures over time. I see it as completely consistent with the democratic process and indeed, I view the idea that statutes somehow lapse after a period of time, we don’t actually -- the agency can’t exercise its authority after a period of time, I view that as not consistent with the democratic process.

 

Susan Bodine:  I’ve not heard of anyone taking that position. Clearly the authorities don’t lapse. The appropriations lapse, but the authorities don’t lapse. Let me just quickly respond. If you go back to the discussion earlier, I think it was Scott talking about a definition of WOTUS of United States, that evolved over time without any changes in terms of its interpretation by the courts without changes in statute. If you go back to the original debate, it is fascinating. There’s an article, I think it was Lester Edleman, but an article of an interview in E&E News. I think it was June 29, 2017, where he talked about how the staff for Senator Muskie and the Republican staff director, how they punted. What does waters of the United States -- navigable waters means waters of the United States. Then later in the speech, I think it was, Leon Billings said that the courts took it far farther than they ever imagined. I don’t know if that’s democratic process or not, leaving something deliberately vague and then having it changed.

 

Hon. Lawrence VanDyke:  Thank you, Susan. With that, I think we’re going to have to wrap it up. We are out of time. I first of all, apologize to the folks that have questions that are queued up, but we only have so much time. We thank you for the great panelists, the audience questions we got. Again, thank you. I think this was a wonderful panel with great panelists and audience participation.

 

Reminder for the next convention event which will be a discussion of Prosecutorial Discretion, Partisanship, and the Rule of Law. That will begin, I think, in about 15 minutes, at 2:00 P.M. Eastern Time. Thank you all, again. Thank you to my panelists and everybody have a wonderful day.

 

Hon. F. Henry “Hank” Habicht: Thank you.

 

 

     

 

2:00 p.m. - 3:30 p.m.
Criminal Law: Prosecutorial Discretion, Partisanship, and the Rule of Law

2020 National Lawyers Convention

Topics: Criminal Law & Procedure • Politics
Zoom Webinar

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On November 9, 2020, The Federalist Society's Criminal Law Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The panel covered "Prosecutorial Discretion, Partisanship, and the Rule of Law."

In recent years, politically controversial criminal investigations have occupied an enormous part of our national discussion.  The Special Counsel investigation into Russian influence in the 2016 presidential election, the investigation into Hillary Clinton’s email practices, and other high-profile investigation have caused many elected officials and other commentators to raise concerns about the influence political partisanship and institutional hubris may be playing in prosecutorial decision-making and the potential effects on the rule of law.  Leaders in both the major political parties have accused the other side of abrogating or undermining the rule of law for polar-opposite reasons in the same investigations and cases.  This panel will assess this debate and attempt to shed light on the dynamics at play and examine what the rule of law at the federal level means today, including:

  • the roles and responsibilities of political and career officials in federal law enforcement and the implications for inappropriate partisan influence;
  • the legal and prudential limits of influence on the Department of Justice by the President and other actors in the Executive Branch;
  • the lawful and appropriate scope of prosecutorial discretion;
  • the role that the growth in the breadth and coverage of federal criminal statutes has played in the present circumstances; and
  • the implications these actions are having on the confidence in and reputation of the Department of Justice and the rule of law.

Featuring:

  • Mr. Gary G. Grindler, Retired Partner, King & Spalding; Former Acting Deputy Attorney General, United States Department of Justice 
  • Mr. Andrew C. McCarthy, Contributing Editor, National Review; Senior Fellow, National Review Institute: Contributor, Fox News; Former Chief Assistant United States Attorney, Southern District of New York
  • Hon. Michael B. Mukasey, Of Counsel, Debevoise & Plimpton; Former United States Attorney General; Former Chief Judge, United States District Court, Southern District of New York
  • Hon. Kenneth L. Wainstein, Partner, Davis Polk & Wardwell LLP; Former United States Homeland Security Advisor; Former Assistant Attorney General, National Security, United States Department of Justice; Former United States Attorney, Washington D.C.
  • Moderator: Hon. John C. Richter, Partner King & Spalding LLP

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

Event Transcript

Hon. John C. Richter:  -- and the implications for inappropriate partisan influence; the legal and prudential limits of influence on the Department of Justice by the President and other actors in the Executive Branch as well as in Congress; the lawful and appropriate scope of prosecutorial discretion; and, finally, the role that growth in the breadth and coverage of federal criminal statutes may be playing in the present circumstances.

 

      We are fortunate to have—and honored, frankly—to have four extraordinary panelists to cover this topic. They're all well known, I would assume, to this audience. Judge Michael Mukasey, former Attorney General of the United States; Gary Grindler, former Acting Deputy Attorney General of the United States; Ken Wainstein, former Assistant Attorney General in charge of the National Security Division and U.S. attorney; and Andrew McCarthy, former Chief Assistant United States Attorney in the Southern District of New York, as well as a noted writer and commentator. So I welcome each of them, and we look forward to a dialogue, today, on these hot topics and conversations.

 

      To get started and to set the stage, if you don’t mind, Judge Mukasey, I'll turn to you in the first instance and ask you whether and to what degree you believe that these conversations about these politically sensitive criminal investigations and prosecutions in recent years raise concerns about partisanship and institutional hubris and whether these concerns and criticisms and observations are well founded.

 

Hon. Michael B. Mukasey:  Well, I can't speak to, obviously, all of the criticisms that have been made and all the conversations that have been held. I can say that, certainly, it's appropriate to have the conversations. I'm more concerned, frankly, with institutional hubris, given what's gone on recently, than I am with the question of the limits of what a prosecutor can and should do with respect to investigating people who are perceived to be political adversaries of the administration that's then in control.

 

      Obviously, the fact that somebody is an adversary of an administration does not confer immunity on that person. In addition, one has to be very careful, in conducting an investigation, not simply in the result, but rather in announcing the existence of the investigation at all. Generally, the Bureau and the Department do not disclose the existence of investigations until it's time to bring a charge or not.

 

      I think that we've had problems with that in recent years largely, but not entirely, because of leaks. Sometimes it's impossible to proceed with an investigation without taking a step that finds its way into the press. But, generally, one should avoid that. If one avoids it, I don't see that anyone is limited in conducting investigations simply because the person being investigated is a political adversary. Ultimately, the political appointees bear political responsibility for the existence of the outcome of an investigation. And so far as -- I mean, I'm happy to talk about White House Justice Department context because we had some perception of impropriety before I took office. And we worked out procedures for controlling that when I was there and, as far as I know, they’ve held up pretty well since.

 

Hon. John C. Richter:  Thank you, Judge. Andy McCarthy, you’ve written a book—a best seller, seemingly—entitled Ball of Collusion:  The Plot to Rig an Election and Destroy a Presidency. That's a rather provocative title. I hope that's part of the reason your book has sold and you chose it. What are your thoughts on this?  Is the criticisms and concerns about politicization and decision making beyond just institutional hubris? What concerns do you have as an observer these days?

 

Andrew C. McCarthy:  A large part of the reason I wrote the book is because I hate being wrong. And, for a long time, I maintained that a lot of the central allegation—particularly about abuse of the FISA process—was wrong.

 

      You know, I had people who I had commonly worked with over the years on national security issues who were insistent that the basically political opposition research screed had been taken virtually in toto to the FISA court, and basically they slapped a caption on it and got FISA warrants. And I tried to patiently explain, as I observed the tinfoil hats on their heads, that that's not how the FBI works, and that what we'd ultimately find at the end of the rainbow was that they will have gone through the information that they took in -- because we take information from everyone, right?  We take information from some of the worst people. It's necessary to do that in some of the investigations of the worst criminal conduct. And what I told them was what would end up happening is that you will have gotten five or six or seven facts that they needed, and the FBI would do what the FBI always does and go to school on it. And, by the time they got to the FISA court, it would be an FBI investigation, not political opposition research. And, of course, I turned out to be wrong about that. A lot of what was used in the FISA court was uncorroborated, multiple-hearsay, political-opposition research. And it bothered me to be that wrong about something I thought I knew pretty well.

 

      And, here, I need to go back for a moment to the 1990s, where we had a very robust argument—it's so long ago and far away, now, that a lot of people have remembered it, but it was quite a thing at the time—and that was about the so-called wall which impeded the cooperation between the criminal investigation side of the FBI's house and the foreign counterintelligence side.

 

      And there was a lot of concern back then that the foreign counterintelligence powers would be used, or could be abused, to basically steer criminal investigations under circumstances where there wasn’t adequate evidence to have a criminal investigation, and you would just basically pretextually use these powers until you finally came up with some criminal evidence, at which point you could then pounce.

 

      There was a lot of concern back then that that could happen and, at the time, it was really only conjectural. We didn’t have any real evidence of its happening. And I maintained—and this is what I'm sort of annoyed at myself about—I maintained very vigorously that that just simply could never happen because there was so many rungs of approval at the FBI and the Justice Department that you would have to go through that, assuming that you had a rogue agent, it would be much easier to fabricate the fundaments of a criminal investigation and go the criminal route than try to fabricate a national security angle. And that turns out to have been wrong. I think I owe an apology to the people who I made that argument to in the 1990s, even though we sadly felt pretty vindicated about it after 9/11.

 

      So the only thing I can conclude from all of this is that we're not effectively -- I don’t know if we don’t have the guardrails in place or if we have them but they're only nominally understood and they're not effectively applied, but I do think the FBI and the Justice Department had a lot of bad luck in the last four or five years because some of these investigations, the Clinton e‑mails investigation in particular, fell into their lap. It was unavoidable that they were enmeshed in the politics of the 2016 election.

 

      But, as far as the second investigation is concerned, it seems to me that the safeguards that are supposed to be in place to make sure that abuses like that don’t happen failed. And the most important thing going forward is not to keep using them against each other or continue this cycle, it's to try to figure what went wrong and fix it.

 

Hon. John C. Richter:  Gary Grindler, you've served in two different administrations, Democratic administrations, as a political appointee after many years as a career AUSA. How do you see politics and institutional hubris in the present Justice Department and the present atmosphere around it? And what do you see as the dividing line, I guess, between legitimate investigation and prosecution of politically sensitive matters and inappropriate partisan motives driving investigations or prosecutions?

 

Gary G. Grindler:  Well, one of the most significant decisions that the Department of Justice makes, I think, is to initiate the investigation. And the comment made about keeping those investigations confidential is of great significance because it's very easy for someone who wants to embrace one political adversary versus the other can effectuate considerable damage by leaking information about an existing investigation. So I think one of the focuses that has to take place here is making the decision to initiate an investigation is critically important. It doesn’t have with it the requirements even of probable cause at the outset of the investigation. And you see that the public release has damage. The investigation of the Clinton e-mails that was announced, many people have criticized that by suggesting that that announcement was not appropriate and it had impact and it was easy to do.

 

      So you have to think about that and the processes you need in place to try to go ahead and investigate those people that deserve to be investigated, regardless of their party, and protect it from public disclosure. The timing of that particular matter was significant, of course, because you were in the midst of a presidential election. But those are -- and on a smaller scale, we faced decisions about initiation of investigation during the political season where one candidate was trying to convince the FBI to initiate an investigation of the adversary—in one case, even to wear a wire and have a meeting with the other candidate—and those decisions had to be made. Once made, though, someone was going to leak it. And so the processes for that are very important.

 

Hon. John C. Richter:  Ken, you served as the Assistant Attorney General in charge of the National Security Division. And, obviously, a number of these investigations have involved intelligence equities and use of the FISA process in addition to other criminal investigative techniques. From your perspective and that vantage point, how do you see the Department putting in, I guess, and to what degree do you believe that the political and institutional hubris risks play a part in decision making to open investigations particularly where there are intelligence equities in the mix?

 

Hon. Kenneth L. Wainstein:  Yeah. I think, actually, you put your finger on an important characteristic of some of the matters that have come to the fore over the last four or five years, which is that there is an intelligence dimension to them. And that complicates things in a number of ways because you now have, in deciding what to disclose or not to disclose, what to act on, what not to act on -- which is always something that's heavily scrutinized either at the time or later on for the possibility of political influence. You then throw in the further consideration that you're dealing with very sensitive sources and methods that need to be protected in their own right.

 

      Oftentimes, then, you will have the relevant institution, whether it's the intelligence community agency or the Justice Department, either refusing to use or refusing to disclose information that the American people might expect to hear in a criminal process because it's classified or it relates to sensitive sources and methods. So that's a different dimension that we've seen play out, especially in the Russia investigation.

 

      And I think a different complication that arises from the fact that there are sort of intelligence dimensions to some of these cases is that we're all accustomed -- whether we're criminal lawyers or just laypeople, we sort of have an understanding of the predication that's used in the criminal process:  probable cause; a preponderance of the evidence beyond a reasonable doubt. That's just something that we've internalized as a people. And we use different standards when it comes to using intelligence tools. And it'd sort of be a gross generalization to say lesser standards, but we use different standards.

 

      I think Andy was sort of referencing that when he talked about FISA. It's a different process to get a FISA when it's under Surveillance Act order than it is to get a Title III wiretap. Judge Mukasey reviewed countless wiretap applications as a judge—I probably brought one to him myself—and it's intuitive to him as to what is required for that. It's different when it comes to FISA.

 

      And so one of the challenges has been, as the FISA process has been publicly disclosed—the process that Andy has written about in the Russia investigation—people, I think, have been ill equipped to sort of judge whether there was sufficient predication. And I actually think the Department has done not a very good job of explaining what that predication is and what it should have been. So these are just things to keep in mind.

 

      I think it was sort of a perfect storm, this Russia investigation, in the sense that it was obviously highly political, highly antagonistic on all sides. It then -- because of that antagonism, you then saw the institution acting as an institution. You talked about institutional hubris. There's the human reaction of institutions and their people. But then, in addition, you had what is sort of foreign territory for a lot of people, and I think there was somewhat of a lack of understanding. And so I'm glad -- Andy, I've not read your book yet; I'm going to. So I'm glad you teased this out because that would be a real service to the American people who are trying to make, you know, trying to really get a clear understanding of what did and didn’t happen once, hopefully, the political smoke clears.

 

Hon. Michael B. Mukasey:  I'll also tell you that I reviewed countless FISA applications as well when I was AG, and there was no problem with most of them. I say "most" because one or two did get marked return to sender, and one or two did get marked return to sender by the court. It wasn’t a question of denial; it was a question of "what about this and what about that?"  So it was an iterative process.

 

Andrew C. McCarthy:  I guess I would also, though, go back to the point on predication. Here, I think, is what the difficulty is. And this is really more of a judgment thing than anything that you could capture in the most perfect regulation that you can write, which is we necessarily need to have predication at a low level so that we can act in circumstances—especially as Ken is talking about—in the intelligence sphere where we're dealing with national security threats to the United States. We can't wait until things ripen before we act. So it necessarily has to be a low level of predication. But that creates a much bigger danger that you could abuse these powers in the criminal context without what would be the normal predication that you would have in a criminal investigation.

 

      And the other thing with criminal investigations all of us who pursued them know is that they're fairly finite in the sense that, at a certain point, you either have it or you don’t. And every case in a U.S. Attorney's office—or the Justice Department broadly, but certainly in the U.S. Attorney's office—is competing with every other case for resources. You don’t have time to string things out forever. You either pursue the case or you move on.

 

      And the thing they were concerned about in the mid-'90s, which seems to have been the problem here, is that you would use not only the low-level predication, but the black box of everything being classified on the national security side to string out a criminal investigation under circumstances where it didn’t really merit being strung out. And the thing that’s supposed to prevent that from happening is, I think, adult supervision. I mean, we can write as many regulations as you'd like to write.

 

      But unless you have people with good judgment who say, you know, "This is not the kind of thing that we do," you know, "We don’t take unverified information to the FISA court; we run it down before we go there," I just don’t -- I don’t know what's to be done about the problem of pretextual use of the national security powers in the absence of having -- I think the lessons learned here have to be that there has to be some kind of a presumption against using those powers in our political context, especially our electoral context. And there has to be higher guardrails or multiple levels of supervision where we stop that from happening at an early time and make sure that we're not using these powers in a way that affects politics. Because it's not good -- it's terrible for the politics, but it's also awful for the Justice Department and the FBI to be enmeshed in it.

 

Hon. John C. Richter:  Let's deal with, I guess, the constitutional dimension and the sort of true legal dimension of all this. I think what I hear from the four of you—who sort of range across the political spectrum a bit, but are all, obviously, DOJ alum—is that you all believe that politics should not play -- and partisan politics should not play a role in decision making, and that good judgment is critical in terms of discerning what's a good investigation to begin and what's not as a theoretical matter.

 

      Obviously, Article II of the Constitution vests all executive power in the president of the United States. And presumably that means that, ultimately, as a constitutional matter, all prosecutorial power emanates from the president and resides with the president.

 

      Judge Mukasey, you talked a little bit about some of the limits that you observed when you came aboard as Attorney General. There's obviously a history stemming from the lessons post-Watergate. But let me just start:  Is there a distinction between the legal limits of presidential influence on the Department of Justice and prudential limits on the power of the president?  And, if so, where do we draw that line as a legal matter versus a prudential matter, and why?

 

Hon. Michael B. Mukasey:  I don’t know that it's possible to draw a legal line. As you said, Article II puts the executive power in the hands of the president. And, when the attorney general exercises authority, he's exercising the president's authority, not his own. The only way to assure that the decisions that are made are made with reasonable safeguards in place is to assure that when, as, and if there's any attempt by a president to get into a particular case, that that goes to the people within the Department who are politically responsive and that they deal with the president on that basis. They will either pursue something or not pursue it depending on their inclination and their ability to withstand the pressure. In an extreme case, obviously, they can either resign or be fired.

 

      Just to put a bit of a point on it, I did get one such request to show up at the White House to answer for something in a particular case. And I did, and we had a conversation. It was not with the president. It was with a member of the staff, and it was clear that that person was talking for the president. And I went back to the Department, and we proceeded as we had before. I didn’t get fired. So that, I think, is the way it's supposed to work.

 

Hon. John C. Richter:  Gary Grindler, you served as the Principal Associate Deputy Attorney General. At least my memory is that, in many instances, the deputy attorney general, and particularly the principal associate—the so-called PADAG—serves at least under some of the prudential norms in the Department as the go-between, if you will, between the White House and the political powers at the White House and the Department. How has that worked and not worked in your observation over the years, and to what degree is that enough of a governor, if you will, on ensuring the right balance between political accountability to the American people and the exercise of prosecutorial discretion free from partisan influence?

 

Gary G. Grindler:  Well, as you know, there is a memoranda that has addressed the communications between the White House and the Department of Justice. And, in my experience, it was pretty much adhered to. I mean, we would have discussions about public indictments and prosecutions in terms of what is public. But, in terms of investigations, we were pretty scrupulous to avoid discussions, with exceptions. And one of the big exceptions is national security issues:  an espionage investigation that's going to have a direct impact on the relations with another nation, or even circumstances in which a prisoner exchange might be something that's important to consider, or an indictment that's going to come down that will have some profound impact on the financial markets.

 

      There were exceptions where some disclosures were made of pending matters, but it was rare. And there seemed to be a respect for that. So I was, for the most part, satisfied with—at least in my experience—the adherence to getting involved with the White House when the case really implicated serious interests of the United States that the president should be involved with. But in the overwhelming majority of cases, we would not talk about them.

 

Hon. John C. Richter:  Ken, in terms of from an NSD perspective, with an exception that essentially allows national security implications to potentially, I guess, sort of reduce the threshold for communications with the White House and the presidency, and given the recent investigations that seemed to arise in that context, should that, I guess, exception to the general rule be examined?  And if so, what do you do about it given the importance of national security, but given the importance of, I guess normatively speaking, of keeping some distance between political actors and prosecutors who are exercising judgments in particular criminal investigations and cases?

 

Hon. Kenneth L. Wainstein:  Yeah, look, it's a good question. And the traditional rule—the memo that has been sort of put in place that Gary referenced—it's primarily designed to prevent the White House from calling over—any White House—from calling over and saying, "Hey, I understand you're investigating Congressman Jones, a congressman of our party out in state X. Why don’t you just not pursue that investigation?  We really think it's not good."  Obviously, that's the kind of communication you don’t want, and that's usually in the criminal context.

 

      Especially after 9/11, it became very clear that that kind of barrier to communications -- and its very structured, it goes through a particular -- whether it's the PADAG, it used to be the iconic David [inaudible 00:30:46] who was the person designated to sort of receive input about ongoing matters from the White House. There's a process that's to be followed. That just doesn’t work in the national security context. In post-9/11 we really saw why.

 

      So Andy talked about the lowering of the wall after 9/11 that had separated—culturally in many ways, regulatorily, but also by practice—the intelligence assets of our government from the law enforcement assets of our government. And that was really crippling and helped to lead to 9/11 happening without us detecting it first because there were criminal agents from the FBI who couldn’t share what they knew about terrorists who are criminal suspects, you know, criminal targets. They couldn’t share information with the intelligence agents of the FBI who were investigating the same people as intelligence targets as opposed to criminal targets.

 

      So that wall came down. There can now be sharing across -- within the FBI, but also between the intelligence community and law enforcement about these targets they’ve all in common, like spies. You know, spies are an intelligence threat, but they're also criminal suspects. Terrorists, foreign terrorists, the same thing. Foreign cyber bad actors, the same thing. And that needs to be coordinated at the interagency level, which is run out of the White House.

 

      And the classic scenario is, if you have a hot threat investigation -- let's say we detected a cell here in the United States. The intelligence community might not want to take it down immediately because the longer you -- once you detect a cell, the longer you can monitor it, the more you’ve learned not only about those bad actors but the people that they're related to, right?  So the longer you leave it out there, the more intelligence you get.

 

      Law enforcement might be looking at it differently, thinking, "Hey, we need to take these guys down. We have a case that we can perfect. We can put them away for 20 years each."  That’s a decision that has to be made at the interagency level. So that's communication with the White House—oftentimes in the White House, in the Situation Room—about possible criminal charges where the political folks in the White House are fully engaged and need to be fully engaged.

 

      So I don’t -- to the extent that your question goes to, "Isn't this a predicament? Isn't this a dilemma that we're trying to prevent White House influence on what could become criminal cases?" And now we're seeing that happen in the national security context. So shouldn’t we have some sort of prohibition on that kind of communication in the national security context?

 

      I just don’t think that's doable. I think it's just so critical that we have that coordination. And I think one of the greatest things that's happened since 9/11 is that coordination, is the ability for the general counsel of the CIA to call up the head of the National Security Division, John Demers, and say, "Hey, let's talk through how we're going to manage this matter. We've got our agents -- we've got folks looking at this terrorist cell; you've got FBI agents doing the same. How do we coordinate?"  So I think, in short, it just isn't going to be feasible to do.

 

Andrew C. McCarthy:  Can I just say I was glad about two things about what Ken just said.

 

      First of all, the bit about no prohibition. I emphatically agree with that. I think my concerns are more along the lines of what can we do internally to raise questions at a high enough level and go slow when there are competing concerns, especially with the law enforcement concerns. But I'm not talking about any kind of a regulatory prohibition at all.

 

      And the second thing:  Ken mentioned culture, which is a great word to use in this context, because I can speak personally, not from the main justice angle of this, but from the criminal prosecution angle of it. I experienced culture shock in 1993 when we ended up having an internal debate in the Justice Department about whether to indict the Blind Sheikh or not. And it was the first time -- I mean, maybe it had come up in a sliver in other cases I had been involved in, but this was the first time I had ever had a case where the ethos of the Justice Department is, "We're entitled to everybody's evidence, and nothing is more important than our cases, and nobody is above the law." And we love to say all that stuff, and I think 99.9 percent of the time it's true, but you suddenly find that there actually are other considerations, and they are not only legitimate considerations, they're serious national security considerations that are more important than prosecutions in some contexts.

 

      So when we had to have this debate about whether to bring charges or not, it wasn’t just a matter of whether we had enough evidence to charge. It turned out that we had to look at—especially on the State Department end and the intelligence end—what was the benefit versus the downside to the United States of bringing these charges under these circumstances, and what interests of ours—particularly security interests overseas—were going to be affected if we went ahead with the case?

 

      And the only reason I raise this is I think -- and it seems to me that this is evident in a lot of, certainly, the coverage and the commentary about the investigations over the last few years. There is an ethos in the Justice Department that nothing is more important than our prosecutions. And again, most of the time that's true. But I don’t think that we're sensitive enough to, number one, how much these investigations compromise an administration's capacity to govern when they are corruption investigations that are aimed at the administration. And secondly, it simply is a fact that, even if you're not talking about executive corruption, there are a lot of interests that are at stake that we have to deal with that are more important, occasionally, than our prosecutions. And I just don’t think that we necessarily do a good job of communicating that.

 

Hon. John C. Richter:  So let's talk about some remarks recently that Attorney General Barr made in September at Hillsdale College. In his remarks, he made really two points that I want to highlight here.

 

      He first said that the most basic check on prosecutorial power is politics, and he said it's counterintuitive to say that as we spritely strive to maintain an apolitical system of criminal justice. But political accountability politics is what ultimately ensures our system does its work fairly and with proper recognition of the many interests and values at stake. And he spoke -- and then said, "The men and women who have the ultimate authority in the Justice Department are thus the ones on whom our elected officials have conferred that responsibility—by presidential appointment and senate confirmation. That blessing by the two political branches of government gives these officials democratic legitimacy that career officials simply do not possess." 

 

      One of the seeming themes of a lot of the commentary that I've read in recent years would suggest just the polar opposite—that it's the career officials that are the apolitical players and whose judgment should be relied upon in these highly sensitive political investigations, particularly if the Justice Department is looking at political actors and particularly looking at personnel in the White House. And yet Attorney General Barr certainly seems to be arguing that in fact it is the political appointees themselves of the Department that are, frankly, the truest expression, I guess, of the American electoral process and therefore the will of the American people. How do we square that circle, Judge Mukasey?

 

Hon. Michael B. Mukasey:  Well, I think I come out entirely on the side of the Attorney General on this one. It is possible for career people, however well intentioned, to become married to their cases and to their positions in those cases. Regardless of whether that happens or not, I think that ultimately, as I said before, the authority that's wielded here is an executive authority. And the people who are politically responsive and will pay the price politically if power is wielded improvidently are the people who have to have ultimate authority. To say that we're going to delegate this to or prefer the word of career people simply because they are career people, I think, is a grave mistake.

 

Hon. John C. Richter:  Gary Grindler, obviously two can tango here. Depending on where you sit politically, you may be very happy knowing that political appointees are making the decisions on a case. Then again, if you're on the -- if you believe you're on the opposite end of the political spectrum from those political -- appointed officials, you may fear the worst. In your experience, how, as a political appointee, do you manage for that? And what can the Department do—the political actors, the political appointees in the Department—do to try to avoid not only the substantive influence of politics, but the appearance of partisan motive in the situation in which they're being asked to make decisions in highly sensitive investigations that involve political players or political equities in some fashion?

 

Gary G. Grindler:  Well, I don’t know that I would have worded it the way the Attorney General worded it. But I believe in the notion that the leadership of the Department, even in the context of making decisions in criminal matters, should be -- the ultimate decision making for sensitive matters should be with the politically appointed leadership. But I also -- and then, for the reason already stated—that career prosecutors are not immune from having viewpoints on things, getting highly invested in a case or attracted by the potential notoriety of the case—that could make them approach it more aggressively than is appropriate.

 

      But I think it's political leadership. And I think it is a process that, at the Department, that has worked, that you need to seek the input from the career line attorneys who have devoted their time and attention to the case, but to their supervisors, their career supervisors, and up the line, because you want to show and demonstrate that you can frame all of the factual and legal merits issues when you come to a decision.

 

      But at the end of the day—I think it was referred to as adult leadership—someone's got to make a decision on these sensitive cases, and some of the issues are incredibly complex and difficult. But I think that the process by which those decisions are teed up -- those cases are teed up for decision is the way you get credibility, hopefully, with the career people and with the public.

 

Hon. John C. Richter:  Ken, let me pose what I think is kind of a hard question. Surveys that I read about career DOJ personnel suggest that the majority of DOJ personnel who make political contributions tend to do so to one political party over the other. Obviously, such political activity is protected, and the right of these individuals to have political views is protected like any other American. To what degree does that kind of freewill behavior by career personnel -‑ to what degree is that a factor that may be rightly considered by a supervisor in staffing politically sensitive investigations or cases? To what degree should that be ignored?  How do we address that as we think about politics and the Department of Justice?

 

Hon. Kenneth L. Wainstein:  Well, look, that's a good question. So you get a -- sort of the fundamental issue here is you've got people who have decided political views, and they are career people whose job it is to exercise prosecutorial discretion completely regardless of politics. And I think there is a sense in this country -- and I think one of the unfortunate effects of the last couple of years has been a sense on the part of many that people cannot actually put their politics aside and do their job apolitically.

 

      Now, those of us -- many of us on this call are longtime AUSAs who grew up in a culture which didn’t consider politics. And, especially in the big-city offices, it's just -- if you start talking -- if you start acting and speaking in too partisan a way, it actually is sort of atonal. It doesn’t work in the U.S. Attorney's office because people who are career folks pride themselves on not being political because they know how devastating it can be to the reputation of the Justice Department, the reputation of the office and the individual if you are seen as driven by things other than the facts and law that relate to that particular case.

 

      And I often say -- now I was the U.S. Attorney in the DC office. And that's probably the least political office in the country because it has the DA side. It does a lot of street crimes, and there's no political dimension to those cases. But, you know, we had 330 prosecutors. I literally think I—and I was there for whatever, 12 years—I might know the political affiliation of about three of my friends. It just wasn’t an issue that we discussed. I mean, we talked politics, but we didn’t talk about our personal loyalties. And so that culture still exists in DOJ, and people still, I think, are proud to believe in it. And I think, actually, it's one of the underpinnings of morale in DOJ that prosecutors and all staff sort of feel like they're doing things that are God -- it's God's work. It's based on justice and not based on the whim of one person or one person's political predilections.

 

      That being said, to your question, you can't ignore the fact that somebody might have political leanings and make sure -- for a couple of reasons. One, you have to make sure that person is not going to allow his or her decision making to be influenced. And there are some people that, try as they might, they cannot put their politics aside.

 

      But even more importantly, it's the perception. And sort of foundational to the Department's ability to have credibility and be effective is the public perception that it's doing things based on the facts and law, and it's equal and blind in the way it dispenses justice. And if there's a perception that one U.S. Attorney hires only Democrats or hires only Republicans, or declines cases against Democrats, goes after cases that involve Republicans, that's going to catch up to them.

 

      And I think that a number of the questions that have been asked over the last 20 years since I've been really tracking all these political issues, from campaign finance through the Hillary e-mails through the more recent ones -- the unfortunate thing is the belief on the part of some that prosecutors really cannot put their politics aside. I might be Pollyannish, but I actually believe that they can and that they largely do, actually.

 

      And so I would hate to see any kind of litmus test be applied to the hiring or staffing practices at the Department of Justice. We want people who are passionate about politics one way or the other. We just want to make sure they don’t let that -- because that shows that they care, right? It shows that they care about our country, they care about the future of our country, they're therefore going to care about the mission of the Department. That's fine. We just need to make sure that we are conducting very careful supervision and that the leadership—both career leadership and, even more importantly, the political leadership—are very attuned to the perception of politicization. And I'm worried that that perception has become ingrained and is being used sort of as a weapon in both directions. And I really worry about the future of the Department given that state of the play.

 

Hon. John C. Richter:  Andy, you’ve been covering—through your regular appearances on The John Batchelor show—and have been discussing a lot of the decision making by prosecutors in a number of the highly sensitive investigations that have generated such national discussion and debate. To what do degree could some of the criticisms of the decisions and the decision making in terms of the perception of bias been avoided based on your observations of the way some of these investigations were staffed and managed?

 

Andrew C. McCarthy:  Well, my experience, not surprisingly, is the same as Ken's, which is that, in the vast, vast majority of our cases, what we do is a professional, clinical exercise, you know. We figure out what the law is; we see what facts we can prove; and that's the job. And having been a conservative lawyer in Manhattan where, you know, virtually all my friends -- many, many of my friends in the office were liberal Democrats. As Ken just said, politics might be an issue when you're sitting around having a couple of beers after work on a Friday, but it doesn’t have any bearing on the job day to day. And I had no problem, in 20 years as a prosecutor, working with people who had very different political views than I did because that stuff got checked at the door, and you do your job in the courtroom.

 

      But I think, you know, politics is part of a bag of stuff that occasionally has a bearing because of the nature of particular cases. And it's not the only thing. I mean, a lot of times we have to do -- because the appearance of impropriety is our standard for maintaining the integrity of the system, there's a lot of things that come up that can give you a conflict. It's not just your political attitudes. And we have to go through that in every single case where there could be a perception problem. So it just seems to me that the rule of reason should apply—that no one wants to say your constitutionally protected ability or right to participate actively and vigorously in politics should at all be tamped down on, but you don’t belong in a big political investigation, then.

 

      I mean, if you have a situation where, you know, there's a fraught political nature to the investigation -- I can talk about this personally. Every now and then, because I'm out publicly doing, you know, the gas bag important work that I do, my name gets bandied about when somebody needs a special counsel, or it at least comes up in public discussion that there should be a special counsel. And it's come up on Democratic investigations; it's come up in Republican investigations.

 

      And I always say the same thing, which is, first of all, I'm fortunate enough to be able to make a living without having to work, so what do I want to get involved in that for? But, more to the point, the public does not want a prosecutor in one of these fraught investigations who has been out in the peanut gallery telling everybody what they think of the case and what they, you know, where it's going, even if you're trying to do that—and I do try to do this—in as fair minded a way that you can do it and try to be neutral about it. You don’t want a prosecutor who's been involved in that process. That's just -- to me, that's just common sense.

 

      So I think that, you know, your political attitudes ought to be part of the baggage that you bring to any case that, if it turns out to be a case where that's relevant, you even need to factor that in. And if you can't -- if you don’t perceive the need to recuse yourself, then somebody has to be in a position to disqualify you. But I don’t think there should ever be a bright-line rule that, just because what we're talking about is constitutionally protected activity, that means we have to put it in a black box and we can't consider the prosecutor's attitudes about that, because we have a higher obligation to the integrity of the judicial process and to make sure that the public perception of these investigations—which are the most wrought investigations that we're -- that we -- are among the most wrought investigations that we have to deal with—we have to make sure that that is on the up and up and that the public perceives it as on the up and up.

 

Hon. John C. Richter:  Judge Mukasey, you headed up the official corruption unit back in your day at the line level. And, obviously, as Attorney General, you oversaw a lot of politically sensitive investigations that were briefed up to you. To what degree, then, do career prosecutors and officials who have a public record of a partisan leaning differ, and should they be treated differently in any way in terms of staffing and decision making as compared to the political appointees in such sensitive investigations?

 

Hon. Michael B. Mukasey:  Well, obviously, I think it depends on the profile of the particular prosecutor. Although I should tell you that the corruption cases that I handled principally—apart from one congressional prosecution—involved principally dishonest law enforcement agents. That was official corruption in those days. It's gone -- obviously, it's matured to a certain degree, since.

 

      So far as assigning people, it -- again, I think the tone comes from the top. And if the norm, as Ken described it and as Andy described it, is that you check that stuff at the door, then you should have no hesitation about assigning just about anybody. But obviously, people who have a high profile politically who come to a prosecutor's office simply can't participate in politically sensitive cases, particularly those that engage the activities that they’ve been involved in. That's just common sense.

 

      Also, we've been talking about guardrails and principles and regulations as if they were self-enforcing; they're not. You can draft the most exquisite regulation, and it won't enforce itself. You can speak of something as a guardrail. A guardrail—it's a nice image, but it's a passive control that does enforce itself. What we're talking about here are not guardrails because there are no processes that are going to enforce themselves. Ultimately, it's going to take people with good judgment who subscribe to the kinds of norms that Ken and Andy have been talking about. And if they're not there, then all the regulations and guardrails in the world aren’t going to do you any good.

 

Hon. John C. Richter:  Attorney General Barr also argued in his Hillsdale remarks -- made the point that individual prosecutors can become "headhunters, consumed with taking down their target." How does the Department manage for the perception that that could be the case? And when is a zealous advocate on behalf of the Department in a criminal investigation or, frankly, in looking at things from a counterintelligence standpoint, cross over from simply a good-faith desire to ensure that people are held accountable for unlawful behavior and a sort of inexhaustible investigation of an individual in search of a crime?

 

      I'll turn to you, Andy. I think you’ve obviously, in some of your writings and commentaries, have spoken a bit on this.

 

Andrew C. McCarthy:  I think this goes back to what we've been discussing. And, to me, it's more of a matter of common sense. If you have somebody who's handling a prosecution, who's appropriately handling a prosecution—meaning you don’t have any reason to doubt or suspect that there's any political taint, there's no conflict of interest—then I think you -- if I'm understanding your question correctly, I think you just, you know, you do your job zealously, and you do it measured by whatever the demands of the investigation are.

 

Hon. John C. Richter:  Ken, you made the point a moment ago that you thought -- you expressed great concern that there's perception in the United States today that the Department has not been exercising its authority free from political bias, and you're concerned about that institutionally for the Department and, frankly, per the rule of law in the United States. How do you address that given that both the, I guess, the partisans on each side of the political equation these days accuse the other side in engaging in basically the kind of -- the mirror opposite of behavior. To what degree, if we move into a -- if there's a new attorney general, should -- how does that new attorney general right that in a way that doesn’t just simply come across as saying, "Well, we won; so, therefore, now we get to exercise our authority consistent with the way we like," and ratify, essentially, only one side of the partisan perceptions?

 

Hon. Kenneth L. Wainstein:  Yeah. But that's a good question. And just to go back to my earlier comments, they were that I was concerned -- am concerned that the perception that DOJ is politicized is and can be very damaging to the future of the Department and its effectiveness and its credibility. I'm not buying into the idea that it is politicized under any type of administration. I actually think the culture is very strong.

 

      Are there places along the way where there -- questions should be asked and maybe there were missteps?  Sure. But I think, largely—as we all, I think, have agreed—99.99 percent of what we do -- what the Department does is done apolitically. But it is a very damaging perception. And the next administration—and every administration—needs to be very sensitive to that because that's sort of the first order of business is to protect the reputation of the Department.

 

      And to give Judge Mukasey some credit, he had to deal with a perception that was -- that had been created, fairly or unfairly, of politicization of certain aspects of the Department before he came in. And one of the things that I most admired about how he handled his entry into the Department was he made very clear -- regardless of what did or didn’t happen before, or whether it really was politicized or not, he went to great pains, at least as I saw it, to make it clear that he was about just doing the J-O-B, working with the career people. He was going to be politically responsive to the president, but he was going to make sure that everything was done, sort of, according to regular order. And that message got sent very quickly. And part of that was just character; part of that was understanding the Department. So the next person who comes in will have to do the same thing. And it's very important.

 

      But look, I guess I'm just sort of an eternally optimistic person, but I look at the Department and I see -- look, the career folks in the Department get it that they -- most of them get it that there's a political rank. And the political rank has the authority—in fact the responsibility, the duty—to supervise them. And so, if the career people, you know -- I decide I think this is the charge that should be brought in this case, and the political person pushes back and says, "No, I see it differently," at the end of the day, the political person, you know, the higher-ranking supervisor, gets to make the call. The attorney general gets to make the call. And so long as that call is made on sound political reasoning, then so be it. That's the way it works.

 

      And, to go back to your earlier question, I think it is important to mention that, you know, some people have talked about how prosecutors get tunnel vision. They sort of get focused on their target. Which means that they tend to see only the incriminating information and maybe not pay as much attention to the exculpatory information in an investigation. No question that happens. That’s called human nature, right?  You get set as a prosecutor. We're all Type A people on building a case. And the basic human instinct is to look at the information that helps you build the case more closely than the information doesn’t help you build the case.

 

      That's why we have gobs of training in the Department to make sure that we turn over exculpatory information under Brady, why we're constantly harping on the supervisors in their role at second guessing -- not second guessing, but supervising the prosecutorial decisions of their line people. Because we all fall victim to that. And so that's why we need supervision, and that's why I don't really worry when I hear about a decision maybe at the higher levels of the Department countermanding a judgment at the lower levels so long as it's clear there was a rational basis for it. That's allowable.

 

      What is really damaging the Department, though, is when a decision is made at the top levels—at the political levels—it overturns or takes issue with a career -- a decision of career folks, and the explanation is not made as to why that was. Because that, then, undercuts the belief within the Department that at the end of the day we're operating on facts and law and not on politics. And that get back to the perception. And so messaging, not only externally but within the Department, is so critical to maintaining morale and to maintaining the belief by everybody that we're about the facts and the law and not about politics.

 

Hon. John C. Richter:  Gary Grindler --

 

Hon. Michael B. Mukasey:  Let's go back for a second --

 

Hon. John C. Richter:  Yeah, go ahead, Judge.

 

Hon. Michael B. Mukasey:  Let's go back for a second to the headhunter problem and some of what Ken was talking about. One way that we guard against that in the Southern District of New York—and I don’t know whether this is done elsewhere—is to be very careful about not taking people right out of law school as prosecutors and to be very careful of the people that we took right off clerkships because, if somebody has grown up for her or his entire life being told how smart they are, and graduating magna-cum-this and summa-cum-that, and never having to say "please" and "thank you," and never having made mistakes, those people can be dangerous when they become prosecutors. And I think a little bit of maturity, a little bit of kicking around in the outside world is useful.

 

Hon. John C. Richter:  I second that.

 

      Gary Grindler, welcome back. I think we got you back on. I wanted to -- as we look to -- dare I say, it would appear at this point, based on reporting, that Joe Biden has prevailed in the election. That's obviously subject to some continuing debate. But, assuming we're going to have, sometime in January, a new attorney general, and given the fact that the partisans certainly perceive certain investigations as having been politically motivated for mirror opposite reasons, how should the next attorney general address that, recognizing that merely affirming his own, I guess, political party's world view would have the effect of perpetuating this perception problem that Ken Wainstein mentioned earlier, I think, before you had some connection problems?

 

Gary G. Grindler:  Well, I think we go back to the fundamentals that we've been talking about this afternoon. You need to take care with existing investigations and with new investigations—the kind of care that everyone has been talking about here—and make careful decisions. Explain to the career people why you're making the decisions, and adhere to the principle that you are only going to prosecute someone if you have admissible evidence that will have the likelihood of establishing a conviction.

 

      I do want to add something else with respect to what I think I heard the tail end of, and that's the career people. I think we need to also think about the investigators, the people of the FBI and the Marshals Service, the DEA, the Secret Service, etc. Those investigators have a lot of power themselves. And we get back to the kinds of adult supervision you need in connection with initiating an investigation or deciding to go forward with it or deciding neither to prosecute or to decline. So this training and this preparation for the kinds of decisions that have to be made needs to be extended to the investigators. They're very important here because they get invested in these cases, too. And if the case is going to be declined, they need to understand why it's being declined.

 

Hon. John C. Richter:  I'm going to open --

 

Andrew C. McCarthy:  John, may I just make --

 

Hon. John C. Richter:  Yes, sir.

 

Andrew C. McCarthy:  May I just make one point? 

 

Hon. John C. Richter:  Go ahead.

 

Andrew C. McCarthy:  I think one of the things that is hovering over all this that is worth noting is that the main checks on executive abuse are political, not legal. And a big part of the problem that we're dealing with here is Congress doesn’t really do its job any more as well as it should in terms of oversight. And, as a result, it's kind of coopted the Department into doing not just the kind of criminal investigations that we would always do in a corruption context, but also, more broadly speaking, abuse-of-power investigations.

 

      And I think it's come up in a number of -- it certainly came up in the Nixon impeachment; it came up in the Trump impeachment, for sure. A lot of what's in the nature of abuse of power is not violations of the criminal code. And, ordinarily, we investigate to see if there's a Title 18 or some other penal offense. If there's not—we can't prove it, we don’t have probable cause at whatever stage and then we don’t have enough to make a case—we're done, you know. We dismiss the case and we move on to the next thing.

 

      I think the Department's gotten a lot of pressure from Congress to get enmeshed in politics because Congress does not do the kind of oversight that it needs to do. And as a result, we're getting -- the Justice Department is getting pulled into a lot of investigations where, in ordinary criminal-law contexts, it wouldn’t proceed with those investigations. And I don’t know exactly what you do about that. But some of this stuff -- I think Attorney General Barr has said from the beginning of this current go-around in the job that the way to get politics out of the Department and the Department out of politics is, if we get brought into something, we look. If there's a criminal violation, you know, you pursue it in good faith. If there's not, then we're done. And there's got to be some better way to investigate abuse of power.

 

Hon. John C. Richter:  So I'm going to open the panel up to questions from the audience. I have a number that have shown up here and see someone identifying themselves as Christopher Green with their hand raised.

 

      If you're taking -- if you want to ask a question, obviously, you need to use the Raise Hand button in the lower middle screen. And then, when I call on you, you'll need to dial star-nine to ask your question.

 

      So, Mr. Green, if you're on, what's your question for the panel?

 

Christopher Green:  So, I'm not on the phone, but I think you can hear me.

 

Hon. John C. Richter:  Yes, we can.

 

Christopher Green:  Okay. It seems to me that prosecutors' offices have a pretty good fit --. Okay. I seem to have been muted. So it seems like prosecutors are a lot like out-of-control administrative agencies. And I wonder what all of you think about the idea of applying something like Overton Park or State Farm or just, you know, the requirement that prosecutors explain themselves—it might not be to a court, but to somebody—something like that kind of review, applying that to prosecutorial discretion in general?

 

Hon. John C. Richter:  Well, Mr. Green, when you ask the question about explaining yourself, give me a for-instance that you're thinking of that maybe the panel can address more directly.

 

Christopher Green:  So it seems like you always have a question. You're pursuing these goals, but at what cost? So at what point do these investigations become just absurd, going after people for technical violations that aren’t -- couldn't possibly be worthwhile? And that seems similar to the question, "Do you want I-40 to go through Overton Park?" in 1971. And they ultimately decided, "No, the Memphis Zoo is important enough; we're going to make I-40 go around," and they just had to explain themselves. But prosecutors don’t generally have to explain themselves. They can just decide to prosecute or decide not to prosecute. And they seem erratic in ways that the EPA and the other administrative agencies often seem erratic. So I'm just wondering if one of the measures -- one of the ways that we use to control administrative agencies might be useful as applied to prosecutors, too. So I hope that helps.

 

Hon. John C. Richter:  Okay. Fair enough. [Inaudible - no sound 01:16:18] a volunteer from the panel want to take this?

 

Andrew C. McCarthy:  I'll just say, I think what prosecutors do is different because we're protecting the presumption of innocence. So you can't really explain yourself very often without getting into what became the big problem in the Hillary Clinton case, which is going public with evidence against people who are presumed to be innocent. And, as far as checking what the Justice Department does, that's what the internal rungs of supervision and congressional oversight are for.

 

Gary G. Grindler:  And then, internally, in most U.S. Attorney's offices, there's an ongoing review process—or there should be—during the investigation so that the prosecutor has to check in on a regular basis to give status updates and to talk about the facts and how things are being developed. And then you get back to the need for adult leadership. If it's a case that isn't a crime, then it needs to be stopped immediately. But I agree. And there are strong policy reasons for not walking out and announcing an investigation and talking about it—"This is why we decline"—because then you're implicating people that aren’t being charged, and that needs to be kept confidential.

 

Hon. Kenneth L. Wainstein:  If I could just add here, John, that's a really good question. I think one way of answering it is to say that prosecutors do have to explain by having to secure a grand jury indictment, you know, from a grand jury. That's explaining that they have sufficient evidence to meet the necessary standard:  probable cause and the belief that they’ll be able to secure conviction at trial.

 

      But your question goes to the very valid point of, okay, what about explaining which cases you decide to bring and which cases you don’t decide to bring. I think we've just identified some structural obstacles to doing that in the criminal process because the Department doesn’t and shouldn’t say anything about anybody who is investigated and against whom a case was not brought. And so that makes it hard to then compare the facts of that case against the case -- or person against whom a case was brought. So it's just structurally sort of difficult.

 

      But that goes back to some of the oversight mechanisms that I think John was alluding to. I mean, you have congressional oversight; you have the inspector general. And, as you know, the inspector general at DOJ in particular is very strong and very, you know -- they don’t balk at looking at any decision the Department makes no matter what level. You’ve got the Office of Professional Responsibility that reviews what lawyers do within the Justice Department. So there's a good bit of supervision looking at all aspects of practice, but in particular looking at whether politics intrudes in the decision making.

 

Hon. John C. Richter:  Next question. I'd like to ask Kelly Shackelford, who's raised their hand here, to pose their question to the panel.

 

Kelly Shackelford:  Thank you. My question is, I thought one of the worst perception-of-justice issues over the past few years was sending 25 to 30 heavily armed officers to arrest Roger Stone, who's 80 and lives alone with his elderly wife. Who makes that kind of a decision, and are there any consequences for that kind of abuse? And contacting CNN ahead of time to have them film it—that seemed way over the top, and I was just curious.

 

Hon. John C. Richter:  Well, who wants to take that one on? 

 

      Let me ask the question a little bit less pejoratively and case-specifically. In terms of how a warrant gets served and executed—and, obviously, we've seen, historically, situations of criticism of perp walks and other types of behaviors that put the accused, I guess, in a difficult spot—how do we weigh that against, obviously, the need for law enforcement safety in the execution of a search warrant? Who makes those decisions? And to what degree is the question posed and the assumption fair, which is that, in a white-collar case with an individual who has no known prior criminal history, to what degree does -- can the means used be, I guess, too much and undermine, actually, the perception that the person is being treated fairly in the way in which the execution of the warrant is being done?

 

      Anyone?

 

Andrew C. McCarthy:  I would just say, in my experience, the FBI is—and whatever agency it is your dealing with; here, it was the FBI, but it's sometimes other agencies—they're obviously very significantly involved, I would say, in my experience, more significantly involved than the U.S. attorney is in assessing the risk of whatever operation you're talking about, whether it's serving a search warrant, I guess, is what we're -- or an arrest warrant.

 

      And my inclination, for what it's worth, was always to defer to the Agency because they're the ones who are -- number one, they're better at assessing these risks than the lawyers are, generally speaking. And also, you know, they're the ones who have to go out and do the operation. Again, mistakes are going to be made because they're always made. And I am always a little bit hesitant to comment on investigations. I always felt, in my own investigations, that I generally knew something that the public didn’t know and that I couldn’t say, and that, if I was able to reveal that, people would have understood it a little better.

 

      It's true that sometimes there are things that are done that are over the top. But a lot of times, when there's a show of force, it's done actually to prevent bad things from happening and accidents from happening, rather than to maximize the embarrassment or the danger.

 

Hon. John C. Richter:  Let me call on Carla Westjohn, who had a question. Ms. Westjohn, I think you may be muted.

 

      All right. I'll move on to Mark Lamb. Mr. Lamb, are you able to pose your question?

 

Mark Lamb:  I am. Can you all hear me?

 

Hon. John C. Richter:  We can. Yes, sir.

 

Mark Lamb:  So my question was specifically about the application of switching prosecutors' protection from absolute to a qualified immunity. And a lot of the conversation is going around the internal protections that are listed within DOJ and the Office of the Inspector General's for misconduct, but there have been instances of prosecutorial misconduct that I think would -- and we grant qualified immunity to police officers who have to make sort of life-and-death, by-the-second decisions. What would be the argument against qualified immunity for prosecutors who make a deliberate and intentional act of misconduct?

 

Hon. John C. Richter:  All right. Well, who wants to volunteer for the question of prosecutorial immunity? 

 

      I'll start for one second, and just say this:  I think that, when it comes to intentional misconduct which would fall within the question of potential relaxation -- first of all, very high bar—right—to prove that a prosecutor was not -- was acting in complete bad faith. And, frankly, those are the cases that are the most egregious. They are probably the most infrequent. I think—in my experience, at least—far more often are the cases where the prosecutor did not act in complete bad faith, but may have been very misguided.

 

      And there certainly have been some noted investigations of prosecutorial decision making. I can think of one during my tenure in the Department in which a federal prosecutor was ultimately indicted for decisions that he made in conjunction with a terrorism investigation. He was acquitted at trial, notably. Obviously, the consequence of reducing immunity means it's usually a boon for malpractice insurers. And it certainly means a greater level of potential collateral actions against prosecutors. And, obviously, as a policy matter, what you would have is presumably greater risk and slightly more risk-adverse behavior amongst prosecutors. At least that's my observations on it as a technical matter -- or as a general matter, rather than as a pure legal matter. But I think it would take, obviously, an act of Congress to change that standard as it presently exists.

 

Hon. Michael B. Mukasey:  I think, also -- it's Michael Mukasey. I think also that fear of either a civil judgment or a criminal prosecution is not the principal deterrent to prosecutorial misbehavior, loss of professional stature and loss of a professional license is. And there's no immunity from that. So I think that that usually operates as it should.

 

Hon. John C. Richter:  Okay. We've got time for one more question, and then we're going to close. Mr. Gilmore, James Gilmore. If you could pose your question quickly, please.

 

James Gilmore:  Sure. Can I be heard?  I think I can.

 

Hon. John C. Richter:  Yes, sir.

 

James Gilmore:  Yeah, I'm Jim Gilmore. I'm an ambassador over here in Vienna, Austria. So I'm a lot later than you are right now. But I was also a defense lawyer, a prosecutor, and an attorney general. And I thought I might point out there are checks and balances on this system.

 

      First of all, my experience is the judges are watching you all the time to make sure that you're not guilty of misconduct or impropriety. And second, the press is always looking to see if there's some abuse of authority because they love to break that stuff, so they'll be looking for you. And then third, and most importantly, is the Bar and the ethics because you're still an officer of the court. And, if you are guilty of misconduct, there's nothing scarier than the Bar coming and looking over it.

 

      I'm not sure about whether 1983 would apply as a check and balance on impropriety, abuse of discretion. And I just don’t know whether that would apply in a case like this—which I guess is my question, as to whether that's a fourth check and balance.

 

Hon. John C. Richter:  I think it is, theoretically. But again, in my experience, when asked by clients to ‑- about what can be done about -- to vindicate what they perceive as the injustices of the investigation itself, either with a declined investigation or acquittal, the bars to pursuing the prosecutors individually are extraordinarily high. I think Judge Mukasey is right, though. These are all high achievers. They don’t like to lose, and there does tend to be professional consequences for losing.

 

      I regret that we don’t have more time. We're at the bottom of the hour. And I want to thank each of our panelists here. I want to thank the audience for their attention. And a reminder that the next convention event, which is a discussion of "Regulatory Practice and Oversight in 2021 and Beyond," will begin at 3:45 p.m.

 

      Thank you very much for your attention today. Have a great week.

 

 

3:45 p.m. - 5:00 p.m.
Administrative Law & Regulation: Regulatory Practice and Oversight in 2021 and Beyond

2020 National Lawyers Convention

Topics: Administrative Law & Regulation • Separation of Powers • Federalism & Separation of Powers
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On November 9, 2020, The Federalist Society's Administration Law & Regulation Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The topic of the panel was "Regulatory Practice and Oversight in 2021 and Beyond." 

While we think of “The Administrative State” as the relatively permanent apparatus of government, it has no lawful powers beyond those vested in officials the voters have chosen.  “[T]he Constitution presumes that lesser executive officers will assist the President in discharging his duties.”  (Seila Law)  Those duties are, for the most part, implementing, administering, and enforcing the provisions of the laws Congress has enacted.  What, then, are the implications of the 2020 elections for regulatory policy?

From the earliest days of his Administration, President Trump made it a priority to cut back on the regulations he believed were impeding American economic success.  Among other things, he instructed agencies to drop two regulations for each one added, and to comply with all procedural requirements in issuing guidance, and the Department of Justice announced it would not defend “subregulatory guidance.”  In response to the arrival and spread of the contagious and deadly novel coronavirus, additional regulatory streamlining accelerated the approval of vaccines and other medical technologies, and of federally funded or permitted projects. Where do these initiatives stand?  What will a second term/new administration bring? What will the 117th Congress do?  Will it give early attention to administrative rules under the Congressional Review Act?  

Recent Supreme Court decisions on delegation (Gundy), on deference (Kisor), and on presidential authority (Seila Law) mean that Congressional oversight, and the President’s management, of the administrative state will play out on an evolving landscape of administrative law.

This panel will discuss the likely consequences of the post-election prevailing winds.

Featuring:

  • Hon. Ronald A. Cass, Dean Emeritus, Boston University School Law; President, Cass & Associates 
  • Hon. Sally Katzen, Professor of Practice and Distinguished Scholar in Resident; Co-Director, Legislative and Regulatory Process Clinic, New York University School of Law
  • Prof. Adam J. White, Assistant Professor of Law, Director, C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School, George Mason University; Resident Scholar, American Enterprise Institute
  • Moderator: Hon. Ryan D. Nelson, United States Court of Appeals, Ninth Circuit

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

Event Transcript

Dean Reuter:   Hello. Welcome, or welcome back as the case may be. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups here at The Federalist Society. I am not Judge Ryan Nelson of the Ninth Circuit, but we're having some technical difficulties, trouble getting him linked into our Zoom call. So I am going to, at least at the outset, act as the moderator for this, our final panel of the day.

 

      I'm very pleased to welcome our three panelists. We're going to be talking about "Administrative Law & Regulation: Regulatory Practice and Oversight in 2021 and Beyond." And I'm very happy to welcome three guests who, in this audience, probably don't need much introduction, so I am going to be very brief. We're going to get opening remarks from each of about five to eight minutes.

 

      And we're going to hear first from Ron Cass. Ron is Dean Emeritus at Boston University School of Law. He's also President of Cass & Associates.

 

      He'll be followed by Adam White. Adam is the Assistant Professor of Law and the Director of the C. Boyden Gray Center for the Study of Administrative Law at the Antonin Scalia Law School, George Mason University, right here in the Washington area. And he's a resident scholar of the American Enterprise Institute.

 

      Finally, our good friend, Sally Katzen will speak third. She's a Professor of Practice and Distinguished Scholar in Residence, and Co-Director of the Legislative and Regulatory Process Clinic at the New York University School of Law.

 

      With that, Ron Cass, the floor is yours.

 

Hon. Ronald A. Cass:  Well, thank you. I'm going to start with a story that's obviously true. It involves talking animals, the sure sign of a true story. This story may only make sense to those of you who are old enough to remember telegrams. So a pig walks into a telegraph office and says he'd like to send a telegram. The fellow behind the counter says, "That'll be $10 for 10 words." So the pig, at that point, says, "I'd like to say, 'Oink, oink, oink. Oink, oink. Oink, oink, oink.'" The fellow who was working the telegraph office says, "That's only eight. You can have two more oinks, if you'd like to add them," at which point the pig says, "Then it wouldn't make any sense at all."

 

      Obviously, there are settings where you have to know who you're talking to and what that person thinks like. When we talk about what might happen in 2021, beyond, in a new administration, whether the administration turns out to be a Biden administration or a Trump administration at the end of the day, I think there are a few things that are pretty clear.

 

      One is that while the sort of orders that come from the President, sort of executive orders about regulation, can make a difference, and some of the orders that came down in President Trump's last four years obviously did make a difference, what makes a lot more difference in how the Executive Branch operates and how the regulatory structures operate is who is in the offices, who is making the decisions, and what the policy instincts are of the administration.

 

      So if you look at the FCC's regulation of the internet under the Obama administration, the Trump administration, or you look at the EPA and the regulation of power generation, or the Labor Department's attitude toward overtime pay rules, or Homeland Security's approach to immigration, obviously, you have enormous differences in the substance of policies, in the details of policies, that are made by the people in charge and the priorities of the administration.

 

      In addition to the people in the Executive Branch making a huge difference, who is in Congress also makes a difference. You have oversight of the regulatory and the executive agencies. The oversight that you get depends not just on the structures in Congress but on who's in charge, who the people are, who actually has control of the oversight levers, whether those are people who are essentially sympathetic to what the administration is doing or people who are opposed to that. At the same time, the judiciary and the rules for judicial review matter. There, the people obviously can make a difference in some cases. But people make a lot less difference there than the precedents do.

 

      You have an enormous level of unanimity in the way that courts decide cases on judicial review. If you look at circuits like the D.C. Circuit, which are reported by academics to be circuits that only make decisions on the basis of the politics or the personal inclinations of the judges, the D.C. Circuit is unanimous something like 98 percent of the time. And yes, while there are some important cases where there is disagreement, there's some important cases where there's divergence among the judges, as there is in the Supreme Court among the justices. The precedents have a lot more to do than the personal inclinations of the judges with the decisions you get.

 

      Over the last couple of terms, we've had decisions in some important cases from the Supreme Court in the Kisor case, in the Department of Commerce case, the census case, in the Homeland Security case dealing with the repeal of DACA. You have decisions from the Court that not only have purchase in the individual decision, but then also open doors to different ways of making decisions over the coming years.

 

      So the Kisor case, which refuses to overturn the Auer decision, overturn the decision that gives special deference to agencies’ readings of their own rules, while it refuses to overturn the decision, Kisor essentially rewrites Auer. It does bring in some of the decisions of the Supreme Court that made some exceptions to Auer. But very largely, it rewrites it, and rewrites it in ways that also suggest potential changes to Chevron because it shows you that the Court is looking at exactly what it was that Congress gave to the agency to do exactly what the boundaries are of discretionary authority.

 

      In the Department of Commerce case, which dealt with the addition of a question to the census on citizenship, the Court goes through the case and has a fairly generous way of looking at judicial review of agency decisions that are discretionary decisions, and then at the end of the case says that we're going to look at whether this decision was a pretext, which means that you have to look at the motivations of the decision maker, something that courts have been quite resistant to, going back to the Morgan cases of the late 1930's and earlier 1940's.

 

      In the case that deals with Homeland Security, you also have a change in how the Court is looking at these cases that really does open up possibilities for the courts to be much more intrusive in their review of the executive decision. So I think that while the first eight oinks are fairly clear, what the last two will be and whether they'll be added over the coming years depends a lot more in the executive arena on who's there and, in the judicial arena, on how the courts interpret the recent decision.

 

      Now with that, let me turn it over to Adam White.

 

Prof. Adam J. White:  Thanks, Ron. Let me begin by saying a few words about administrative law, and then I'll finish with some broader themes on the administrative state. On administrative law, we're obviously in a very interesting period of flux. And I think to understand where we're going in the years ahead, we need to think clearly about where we've been.

 

      For about four decades, the animating force and energy in administrative law was largely conservative, exemplified by Justice Scalia, Chief Justice Rehnquist, and the reforms that they made to administrative law, beginning with cases like Vermont Yankee and then heading through into Chevron and Justice Scalia's long-time defense of Chevron. They were reacting to a few errors that they saw preceding them, judicial micromanagement of federal agencies in the Nixon and Ford and then Regan administration, not enough room for presidential-led policymaking in administration under these practically open-ended statutes. In that sense, not enough room for elections to have consequences.

 

      So their reforms, which we inherited -- Ron didn't inherit them. He was present for the creation, but I inherited them. Those reforms were aimed at specific evils that Scalia and others saw in the law -- or not evils, but excess. And it was the same excess that the conservative legal movement, in general, was pushing against, in terms of judicial micromanagement of policymaking through legislatures, and so on. It was part and parcel of the basic movement of judicial restraint, and Chevron exemplified it.

 

      In Chevron, the Court tried to strike a new balance between political accountability and expertise and the rule of law. And by striking a balance, of course, it meant that we weren't getting perfect versions of any of those three things. And so there were drawbacks, and they became evident over time. Scalia's famous defense of Chevron in his Duke Law Journal article conceded all of this, the challenge that Chevron would pose to the rule of law if Chevron were applied correctly, as he saw it, the danger of just chaotic flip-flops from one administration to the next.

 

      And so the Chevron balance always had its critics, first from the left and now, more recently, from the right, especially on the issue of the rule of law. And that's where we are today. Obviously, Justice Thomas, Justice Gorsuch, and Professor Philip Hamburger and others have pointed out that modern administrative law, though largely created by conservative reformers, opens real questions about whether we have a real rule of law in administration and the administrative state.

 

      And so we've seen reforms pushed from conservatives and libertarians on Chevron, on Auer deference, on the nondelegation doctrine, which, of course, Scalia was wary of because he thought it could be standardless judicial lawmaking. But those who wanted to see a more energetic, assertive judiciary on these issues are calling for a stronger judicial hand on these matters.

 

      That's where most of our attention has been paid the last few years, is the reforms that Justice Thomas and Gorsuch most have called attention to, and they're important. But I think it's also important to pay attention to the other conservative reform effort that's kind of happening in plain sight, and I don't think it gets as much attention, in large part because it's being led by Chief Justice Roberts.

 

      In some of his opinions, he's been the Court's most full-throated critic of the administrative state. Just go read his dissent in City of Arlington, one of the Chevron cases. But more often than not, he's been in the majority in some cases, some which Ron mentioned, which have had a significant impact on the shape of administrative law going forward. He didn't write the majority in Kisor, but he was clearly at the heart of it, along with Justice Kagan, in trying to recalibrate judicial deference. Not get rid of it, but give more weight to some factors, like expertise and steadiness of interpretation over time rather than others.

 

      We saw Chief Justice Roberts write the single biggest limit on Chevron that we've seen in a generation. And that was in his King v. Burwell case. And then we've seen him at the forefront of cases on, as Ron pointed out, the DACA rollback case and the Commerce census case, the Homeland Security DACA rollback case, where Chief Justice Roberts has led the Court in saying that the agency might be free to change its mind on issues, but trying to push the agency to be steadier and more transparent and more explanatory in the way that it makes those changes.

 

      I'm actually much more amenable to those reforms in the law than I think Ron is. For me, I look at them and I see the Court almost operating with a gravitational pull towards what the framers did sometimes refer to as steady administration. We need energy in the executive, not for its own sake, but for the sake of steady administration. And the old consensus of Chevron and other deference allowing for much more agency back and forth over time or flip-flops, there's some value in that, but you can have too much of a good thing. And I think Chief Justice Roberts has pointed out that administrative law, or administration, seems less and less lawlike as we have these wild swings in policy from one administration to the next.

 

      And so the question is, how can administrative law smooth that out? We've seen some of that in the Trump administration, and now as we move into the Biden administration, it will be interesting to see how the DACA case, the census case, Kisor, and reforms to Chevron, how that might affect the Biden administration's attempt to quickly or significantly change policy.

 

      Just a quick word on the administrative state, and then I'll close. Administrative law is part of this issue of the administrative state, but it's only one part of it. And I think we need to pan back from time to time to the bigger picture about how our government actually is administered and how it administers laws.

 

      I think it's a little unfortunate that the Trump administration began on this point with Steve Bannon's famous, or infamous, line about deconstructing the administrative state. Of course, there are policies that the Obama administration left behind that needed to be deconstructed individually. I was in favor of many of those deconstructions. But overall, as far as the administrative state goes, the challenge is really reconstruction. It's one of how do you build institutions that actually embody the values that better comport with the Constitution, and have those institutions, and not just scatter-shot judicial opinions, actually preserve the values that ought to be preserved.

 

      There's been some interesting writing outside of the law on this, which I'd encourage people to read. Tyler Cowen, the economist at George Mason, wrote a fascinating article a few months ago about what he called state capacity libertarianism, sort of a strong state that can comport better with libertarian principles. There's a new book out by the journalists John Micklethwait and Adrian Wooldridge of Bloomberg and The Economist, a book called The Wake-Up Call, calling for a conservative but more expert administrative state. I think it's worth reading those things, even if we don't agree with them.

 

      I think we ought to, at all times, be thinking about how to build institutions that can better take on the constitutional task of governance. And we need to remember at all times, Hamilton's line, so important he said it twice in Federalist 68 and 76, that the true test of a government is its tendency and aptitude to produce a good administration. That's the test of government, as Hamilton saw it. And I think we ought to focus more and more on that test.

 

      And so what are the issues that that thinking presents? There's a few that I think conservatives and libertarians, especially, need to think through in the years ahead. What's the role of expertise in administration and how do you best balance it with political accountability? What's the role of civil service in administration? How do you ensure to have an expert civil service, but one that is kept -- where that expertise is kept within its proper role? What's the role of Congress's power of the purse in administration? This is a place where there needs to be much more scholarship. It's a total blind spot or lacuna in administrative law, Congress's power of the purse. But of course, in many ways, it's the most important part of all, most important part of the issue.

 

      In all these things, again, I think the key question going forward is not deconstruction but reconstruction; not how to tear down policies or doctrines that we don't like, but what we want to build in its place.

 

      And so on that note, let me turn it over to Sally Katzen.

 

Hon. Sally Katzen:  Thank you, Adam. I am delighted to be here and to join my good friends on this panel to talk about a subject we all love and have spent a lot of time thinking about, administrative law and regulatory practice. We probably all need to get a life instead of spending time on this subject.

 

      I do agree with Ron, that people is policy. And I sure hope that Adam is right, that the Chief Justice values will promote steadiness on the Court. But we have our differences that will surely emerge in the question and answer part of this panel. For now, I want to spend my few minutes and opening comments sketching out what I expect in 2021 and the next few years in this field. And I've organized my thoughts, as Ron did, along with three branches, Congress, the administration, and the Courts.

 

      Congress. I believe there will be likely little activity or accomplishments in our field on Capitol Hill. Not only are there far more pressing issues, from the pandemic, the economy, race relations, climate change, senate confirmation of Biden's senior administration officials, just to name a few, but in addition, with Republicans controlling the Senate, the Democrats controlling the House, there will be little, if any, new authorizing legislation. There'll be no reg reform legislation. And there'll be no use of the Congressional Review Act to set aside any Trump regulations.

 

      There will likely be more oversight of the agencies by the Senate, which can now move from inquiries about Benghazi or Hunter Biden. And there'll probably be less oversight in the House, although Democrats are not so solicitous of their leaders in the White House as Republicans usually are.

 

      Now, with respect to the administration, I think we can expect an immediate uptick in regulatory activity. There's several buckets. Biden will immediately rescind the Trump regulatory executive orders, especially the two-for-one and regulatory budget experiments, and the creation of Schedule F that would strip civil service protections for many career civil servants. I think that's a given.

 

      Agencies will likely reverse the Trump regulations that rolled back the Obama regulations, especially those relating to climate change, healthcare, and worker protections, updating the Obama version where appropriate. Agencies will also likely expedite new regulations in those areas of particular and compelling concern to this administration, such as race relations, the pandemic, and criminal and environmental justice.

 

      I believe they will end the suspension of enforcement of the rules on the books. That is, rules have the force and effect of law, and this administration has gone to great lengths to end reporting and inspections, waived penalties, etc., for noncompliance with those rules that I suspect will change.

 

      And lastly, I think there'll be a serious reexamination of the rulemaking process, starting with Executive Order 12866 and focusing on everything from increasing access of marginalized communities in the rulemaking process to such technical issues as giving weight to non-quantifiable benefits and distributional equities.

 

      I'm uncertain about two other issues, whether the Biden administration would follow Trump's lead in asking the courts to hold in abeyance or suspend rules that have become effective but not yet taken effect because of judicial intervention, and whether they will use the interim final rules, which got an unexpected boost by Justice Thomas in the Little Sisters case, to put in place their regulatory preferences before notice and comment.

 

      Now, with the Supreme Court, I think we will see changes in administrative law coming from the Court. Some sooner rather than later, because it will take some time, at least a couple of years, for most of the Biden administration rulemakings to reach the High Court. But over the last decade, I'm going to look back further, or so, there's been increased skepticism, if not hostility to the administrative state by the Supreme Court justices. And the recent addition of three new justices will, in my mind, likely accelerate that trend.

 

      I don't know how it will manifest itself, whether it will take the form of greater receptiveness for the nondelegation doctrine that was discussed, fewer protections for civil servants who staff the administrative state. We saw hints in Freytag, PCAOB, and Lucia, further restricting access to the courts itself by continuing to tighten the standards for standing, finality, exhaustion, rightness. We've seen cases in all these areas that have limited judicial review, whether there be greater scrutiny of the justifications for administrative actions, as Ron indicated in the Department of Commerce case, imposing additional limits on deference to an agency's reading of its own authorizing statute or its own regulations.

 

      I don't see anything seismic. Most of the recent trends in these areas have been modest, dare I say, timid steps. But I suspect that the march goes on, and on, and on. So I will stop. And I thank you very much.

 

Hon. Ryan D. Nelson:  Well, I want to thank all the panelists for their opening remarks. I guess before we jump into questions, I'd ask if Professor Cass or Professor White would like to respond or should we just jump into questions?

 

Hon. Ronald A. Cass:  Well, I'm happy to just add a couple of thoughts here. First, I have to say with respect to Adam's comment that too much of a good thing is something we want to avoid. I'd be happy to have too much of a good thing.

 

      And on the comment that we have to find a place for expertise, I think expertise has often been something that has been leaned on to cover an unwillingness to engage with the fact that a lot of decisions that are made by experts -- different experts will make very different ways. I think that a lot of the discretion that has devolved onto administrators is discretion that we articulate being there because of their expertise. But while there is expertise in a lot of things, that doesn't dominate a lot of what the administrative state does.

 

      But Sally, I think that, certainly, there are changes at the Supreme Court level. I see the changes at the Supreme Court level, though, very largely being in two camps. One is the camp that says we ought to divide sharply what is given to each branch. We ought to let Congress make the big decisions, write the laws, and then give to the agencies discretion to implement them and be clear about what discretion's being given. 

 

      I see in the Supreme Court, often, an instinct to say -- and I think this is true with different justices. I think it was true in Kisor with the opinion written by Justice Kagan. I think it's true in a lot of other decisions that have a more conservative tilt that the justices are saying we ought to let agencies exercise their discretion. That's what Chevron was saying. We ought to let agencies exercise their discretion.

 

      But the courts want to put the boundaries around that. The courts want to interpret the law and say how far that discretion goes. And I think that the division in Brand X was a division between two different versions of how you express those limits, how you put borders around the exercise of discretion but let the administrators exercise the discretion they have.

 

Prof. Adam J. White:  Can I nudge Sally on one of the points that she made? Sally, you said in describing what might come next in the Biden administration, recission of the executive orders on regulatory budgeting, and so on, I kind of wonder why that's necessarily the case? Maybe that's just politics, but those orders were very interesting experiment in rethinking how to do White House oversight of cost-benefit analysis.

 

      If anything, I think it would be nice if the new administration were to sit down and try to analyze what was the impact of those orders; maybe it was terrible, maybe it was great,  probably somewhere in the middle. But hopefully things like that, and this administration’s move on transparency in terms of guidance documents, whatever, I just hope that from the new Justice Department to the new OIRA, to the new everything, I hope the Biden administration, the agencies will stop and try to analyze what just happened before they just -- if they just tear it all down because Trump's agencies did it, I mean that's -- I just think that's not a very smart way to do regulation.

 

Hon. Sally Katzen:  Well, I agree with you that the operating principle should not be tear it down because my predecessor did it. That was the guiding principle for the Trump administration, which if it had an O next to it, it was gone, and systematically reversing as much as they could whatever Obama had done.

 

      No, I think that there are some things, take for example, I'll give you one. When I talked about lack of enforcement of existing regs, there were a number of areas in which there was a relaxation in the healthcare area to enable telehealth processes during this pandemic. It had been against the rules to use telehealth. That was relaxed. That has been good.

 

      I am not saying that just because Trump did it, it will be gone. But the two-for-one in the regulatory budget I think has been studied a lot. And Adam, all of these studies have shown that you got zero new regulations from the two-for-one in the regulatory budget in the areas of health, in the areas of environment, in the areas of protection of employees, in the areas of civil rights. I think we have a lot of data, and I think getting rid of those two executive orders is the product of study rather than knee-jerk.

 

      With respect to the creation, which is the other one I mentioned, of Schedule F, which deprives civil servants, thousands, potentially tens of thousands of civil servants of the protections they have had is a step far too far for almost anyone to want to take. And if you want people to implement anything, you need to have people who have something more of job security than the Secretary of Defense, who found out by Twitter that he's no longer the Secretary of Defense. So I think the ones I'm referring to are established by experience.

 

      Speaking of civil servants -- and Ron, I hear what you're saying about expertise. It is not a blank check. It is not something which you can invoke to defend against any and all things. It does need to be cabined. I agree completely with that.

 

      But if you think that the Congress, today or in the last half-century, would be able to provide the specificity -- you can say you want clear air, but should the level necessary requisite to protect public health be at 7.0, 7.5, 8.0? There isn't a person in the Congress that has a background in those fields. We have a handful of doctors, we have a lot of businessmen and women, and we have a lot of lawyers and a lot of economists, maybe. But we don't have plasma physicists, and we don't have any of the scientific expertise in the Congress to make those decisions.

 

      So I think there is a place for expertise. And yes, you can disagree as to whether it's 7.0, 7.5, or 8.0. But the beauty for me of the administrative process is that the agency has to spell out why it picked the number it did based on which studies, why it ignored other studies, what the comments were, and how they treated them. And therefore, the expertise is not uncabined or unrestrained. And it needs to be explained. And if it is, we can still disagree. We're disagreeing right now, apparently, on the outcome of the election. But at least we have some common data that we can work with. And I think that's the role of expertise in the administrative state.

 

Hon. Ryan D. Nelson:  Okay. Well, let me open it up with a question. Professor Cass and Professor Katzen, you both mentioned that people tend to drive the policies. This transition is unusual, it seems. In potential President Biden's camp, he has a transition team, but they don't exactly know what they're dealing with. They don't have -- they don't know who's going to control the Senate, at this stage.

 

      And Professor Katzen, having been on the transition team for President Obama and Vice President Biden, I'd be interested in any thoughts you could share on are they are setting up -- do you think they're setting up two slates for if they win the two Georgia seats or if they lose one of those seats, so they know whether they have to -- what they're dealing with in Congress to get their cabinet picks through? Or are they, at this point, just taking the assumption that they're going to have to clear anything through a Republican Senate and proceeding on that route as they choose those initial picks?

 

Hon. Sally Katzen:  Well, I think that's a very good question, and I do not have an answer. I'm not in the transition and therefore can't speak for what they are thinking or what they would be doing. But I can speak to where President-elect Biden is coming from, and that's working with other people. And I do not see him coming up with two different slates, depending on whether they have the majority or not of the Senate.

 

      I see him thinking who is the best person for this job, who will bring to it the expertise, the experience, the gravitas, the sensibility, and the skills necessary to navigate in Washington, and that will be his choice. He will then, obviously, have to sell some rather than others.

 

      But he has run this campaign, and I thought his speech Saturday night was very powerful in saying there's one America. And I think based on that, there'll be one slate of his cabinet that he will put together that will reflect the diversity of opinion in this country, that will reflect the different views that people hold. I don't think he will shut his ears to any group or constituency. I think he's a listener, and he's very good at it, I think.

 

Hon. Ryan D. Nelson:  Professor Cass, did you want to weigh in?

 

Hon. Ronald A. Cass:  Yeah, I wanted to disagree with one thing that Sally had said and agree with another. Neither one of those will surprise Sally.

 

      First, the side comment that the Trump administration just rejected anything that President Obama's administration done, I think that is not correct. And I think it is much less correct with respect to what happened the last four years than what's being teed up on the other side right now. Certainly, there were reasons to be concerned about the immigration initiatives that seemed not to have gone through Congress the way a lot of people thought they should.

 

      There were reasons to be concerned about initiatives in the EPA's domain that seemed to have enormous impacts on the nation, probably not within what was contemplated by those writing the underlying laws. Certainly, the EPA, when it looked at some of the fruits of its actions at other times said, "Well, we're going to have to rewrite the law to get where we want to go because we think this simply pushes things too far in that direction." So I would disagree with that characterization.

 

      I think that your comment about the good thing about the current process, the current administrative process, is both that there's a lot of expertise on technical things in the agencies and that the courts forced agencies to justify what they've done. I agree that there is a lot of expertise in the agencies, although frequently, the agencies claim a scope of authority that goes beyond real expertise. It goes into personal judgments and political judgments, and there's a scope for that, as well. There's a scope for that when Congress says, "You have discretion over things. We're going to let you make up your mind. We're going to let different administrations come up with different solutions."

 

      Right now, I think some of the recent decisions from the Supreme Court give courts more options for picking and choosing when and how they want to conduct their oversight of what the agencies are doing. And I would like to see more clarity from the courts, more narrowing of the judicial discretion on that side, as well as more clarity on what the scope is of administrative discretion.

 

Hon. Ryan D. Nelson:  Okay, one more question. Professor Katzen also mentioned the Congressional Review Act and I think aptly noted that it's unlikely to be used, given that it looks like the Senate will be in Republican hands, or at least evenly divided and might make it difficult.

 

      Interestingly, though, President Trump -- the Congressional Review Act's been used 17 times in its history since it's been adopted; 16 of those 17 times, it was used in the Trump administration to disapprove a rule. And when those rules are disapproved, the agency can no longer act on any rule that is substantially related to a disapproved rule without subsequent congressional action, which also seems unlikely.

 

      Are there rules that were disapproved at the beginning of the Trump administration through the Congressional Review Act that will put subject matter restrictions on any of the agencies for a Biden administration to act upon, if you're aware of any? Or are we going to see some litigation on the definition of substantially related?

 

Hon. Sally Katzen:  Are you asking me? Having been one of the people who worked on CRA as the point person for President Clinton, at the time, the substantially similar has never been defined, or at least not defined authoritatively. Does it mean virtually the same with modest changes that would hardly be noticed by a passerby, or does it mean in the same ballpark?

 

      If it's closer to the latter, there are a few things that were disapproved early in the Trump administration that they may attempt to think about. For example, I'm thinking of the Social Security Administration rule that would refer those who have disability because of mental health issues and cannot work because they are having mental issues, sending those names to the people who clear for permission to have guns registered in their names. That was a hot ticket item at the time. I don't think they're going to try to relitigate that one, with or without further clarification.

 

      On the other hand, I think the first one that was passed was talking about, in effect, bribes to foreign countries. And that was something that took almost everyone, including Republicans and the Hill, some surprise. So of the 16, they're all different grades.

 

      In a way, I think it's almost too ancient to consider. There are really pressing problems now. And I suspect the agencies want to focus not on the past but on going forward with the economy, with the pandemic, with climate change, with race relations, with criminal justice, generally, that will take their attention, and not try to revisit, and some might say rectify, others might say just do over things that had happened in the past.

 

Hon. Ryan D. Nelson:  Professor Cass, I don't know if you had anything, or Professor White, if you had anything to add to that.

 

Prof. Adam J. White:  You can go ahead. Go head, Ron.

 

Hon. Ronald A. Cass:  I think Sally correctly says that most of these things are not likely to be brought back up.  And if they are, they're likely to be in a substantially different form. I think that people will -- in any new administration comes in and looks at things with different people and different priorities, and that almost inevitably will give a different shape to things. I think it is unlikely that we’ll see a lot of litigation over what substantially similar means.

 

Prof. Adam J. White:  I was just going to note the irony. Nobody really knows what substantially similar means. I remember four years ago when the CRA was being used writing an essay with Sam Batkins trying to figure out what this means, and we just finally gave up on it. We really couldn't find the meaning, either.

 

      Agencies are now going to be grappling with that sort of totally open-ended restriction on the agency's own freedom of movement, which is probably how a lot of the public feels when they face open-ended delegations of power to agencies to regulate them. And so I just note the delicious irony of this. But I think it's sort of telling that Congress decided -- rather than actually tuning up actual delegations of power to agencies, they sort of used the delegation to beat a delegation. And now we're all going to have to sit around in limbo and try to figure out what it means.

 

      I think it's inevitable. At some point, an agency's going to touch on a subject matter that was struck down in a previous CRA rulemaking, and we're all going to have to sit around and figure out what the statute means. I guess it's a nice way to deter individual rulemakings that go overboard, but it hardly seems a way to run a country.

 

Hon. Ryan D. Nelson:  All right. Well, we'll turn it over to some audience questions. And with that, we will go ahead and look at -- see if there's any questions from the audience. If not, I can throw out another while we're waiting.

 

      Sally talked a little bit about what President-elect Biden, his priorities may be on day one. Other than the two executive orders that were mentioned, Professor Katzen -- and maybe it would be good to have Professor White and Professor Cass weigh in as well. Are there other policies or other executive orders that President-elect Biden may look to adopt in his first 10 days in the White House?

 

Hon. Sally Katzen:  Thank you very much for that question. I think there are many, or at least several. I was focusing on those having to do with the administrative state. When I was choosing my examples, a third I did not -- there are two other areas. There's an executive order on enforcement and an executive order on guidance, both of which I believe would warrant careful scrutiny. I'm not saying throw them out in their entirety, but I'm not saying embrace them. There were a whole group of those.

 

      But that bundle goes to process issues, and that's what I was addressing. I believe that you will see some executive orders in substantive areas. And he will resurrect, if you will, some of the general principles, whether it be for contractors, or for enforcement of immigration, or for in the climate area generally, in healthcare. A number of steps were taken by President Trump to limit or undermine, or whatever verb you choose to use, Obamacare. I think a lot of those will be reversed. Those were done by executive order, and I think you'll see changes there. So while I was addressing the process side, I think there's also the substantive side that they will pay a lot of attention to.

 

      There's been a lot of pent up enthusiasm or dread, depending on what we're talking about. I don't have the answers, and I'm not sure anyone does. There's 70-some days before the Oath of Office is administered. And I know that during the transition that I worked on, the Obama-Biden transition, we got a lot jammed into those several months before turning it over with the enormous help and cooperation of the outgoing administration.

 

      George W. Bush had said, in words of one syllable, "I want this to be the best transition ever. You open those doors. You welcome the people." And meetings with Josh Bolten and others where they said, "You tell us what you want. You tell us what you need. You will get it," and he was true to his word. It was absolutely beyond impressive how George W. Bush handled that transition.

 

      So we had a lot of help. We were able to talk to civil servants and Bush appointees who -- I was doing, among other things, OMB. We were all over the budget, which has to go up within a very short period of time after the taking of the Oath of Office. And they gave us not only the bottom line but also all of the backup material—here's how we got to these numbers—so we could understand every single line item. They were magnificent and we got a lot done. Will that happen this time? I leave that for you all to decide.

 

Prof. Adam J. White:  Sally, I liked your approach to the process orders. I think we're going to call it distrust but verify. But I think that’s a step in the right direction.

 

      One thing I did like that the Trump administration did, which would be interesting to see the Biden administration repeat, because I think they will, is the Trump administration's use of substantive executive orders announcing certain policies that they wanted their agencies on issues of financial regulation, labor regulation, energy and the environment, just charting out general principles they want the agencies to pursue to the maximum extent allowed by statute.

 

      I think that's really great, and I've written about this for the Notre Dame Law Review. I think it's really great to see a President announce his policies, put his name on the line so that accountability for those policies can go all the way up and not stop at just an EPA administrator, or the CFPB director, whoever. But it really shows that the President has put his capital into this. I think that's important to signal to the public where the policy's coming from, and I think it's important to signal down to the people administering, not just the Cabinet Secretaries but the whole agency, that this is a core priority. And I really hope that President-elect Biden repeats that, and I hope it becomes institutionalized.

 

Hon. Ronald A. Cass:  Well, the other thing that does, Adam, and I agree with you on that, is it also gives people more information about what's going to be happening with the laws. It gives more lead time for people to adjust and more clarity about how laws will be administered and interpreted. And on the same plane, I think paying attention to the nature of guidance documents that come out of the agencies, how they're prepared, which ones are done just by issuing a document without going through a rulemaking, what the nature of the rulemakings will be, how those are -- I think all of that is very important going forward.

 

      I should say, Sally, that when you said these are things that need careful scrutiny, I never have heard anyone take the other side of that and say they need careless scrutiny. But when we get to that debate, I want to make sure I jump in with you.

 

Hon. Ryan D. Nelson:  Okay we'll move -- we've got a couple of hands raised. Just to remind everyone, you won't be able to ask questions directly. You have to raise your hand and get called on. We had somebody who was on, but I'll move on to Jeffrey Wood, if you want to go ahead and ask your question. You'll have to unmute yourself.

 

Jeffrey Wood:  Okay. Can you hear me now?

 

Hon. Sally Katzen:  Yes.

 

Jeffrey Wood:  Great. Thanks very much. Intrigued by some of Professor Katzen's remarks, particularly about the Schedule F regulations. I'm not sure exactly what the perceived harm associated with it is. I suppose I could speculate that if it's viewed as a mechanism for removing federal employees who -- for malign political reasons and motives. I can understand that might be a perceived harm. If it's conversely viewed as a mechanism for efficiency and making the federal workforce more responsive, more similar to the private sector, I would think that would be a good thing.

 

      In part, I'm intrigued because if I were, say theoretically, a federal employee myself, otherwise protected by civil service protections, and imagine that I might be a, let’s say, a supporter of President Trump—I know that's unlikely on a Federalists call—but I wonder if it might actually work to the disadvantage of the Biden administration to remove such a provision, depending upon the exact perceived evil or purpose of it.

 

Hon. Sally Katzen:  I appreciate your question. And let me try to answer it in a couple of different ways. First of all, it's directed at anyone having any policy input. It's not the clerks; it's the people who have contributed to policy discussions.

 

      And we saw during -- when the landing teams—I could not believe they called them landing teams—of the Trump transition, as though they were entering a foreign country with armed forces waiting on water's edge. But when the landing teams got to a number of different departments and agencies, they wanted names. "I want the name of every single person who worked on climate change at the Department of Energy. I want the name of every single person who worked on healthcare at HHS." Many of those were civil servants who were doing their job, their job being to serve the administration that is in authority at the time.

 

      Now, I was at OMB during the Clinton administration. And I saw first-hand that until 11:59 on January 20th, every single person was working their hearts out and doing the best they could to satisfy the office of the President. And at 12:01, they were working their hearts out and could do everything they could to serve the office of the President. And in those two minutes, the person who occupied the office of the President changed. It changed from Bill Clinton to George Bush. And they fulfilled their commitment. That's what you want in a civil service. You don't want the days of Andrew Jackson. You don't want where there's wholesale elimination.

 

      Now, you raised a very legitimate concern that I would never dismiss, and that is, is there sufficient efficiency in the civil service? Is there a way of disciplining or firing people who are not doing their job, not in terms of their political outlook, but in terms of their showing up on time, producing work within expected due dates, etc.? And that is something which does produce some bad apples. But the system -- and we're talking about millions of people in the civil service who are good apples, and they are doing what they've been asked to do and told to do.

 

      And for them to be held up by fear of retribution -- and I will tell you, having lots of friends in the administration -- I'm not going to call it deep state, but they are in the agencies. They have been in the agencies, in some instances, for 5 years, 15 years, 25 years, 35 years. They're scared. They reacted to that executive order more forcefully, more angrily, but more terrified than anything that has happened in the last four years. So they perceive it as a terrible, terrible threat. And I don't think anyone in the private sector or in the public sector works well with the threat of a guillotine hanging over their neck.

 

      And so there may well be a loss of efficiency, and I hear you on that. And I struggled with that in my own time in government. But if you do a cost-benefit analysis, and I struggled with a lot of that, as well, the benefits of civil service protection so far, in my mind, outweigh the costs. And I'd go with it in a nanosecond.

 

Hon. Ronald A. Cass:  I have a somewhat different perspective on this. And I speak as someone whose father was a civil servant for 30 years, despite occupying the position that throughout government is a politically appointed position.

 

      I know that civil servants -- that there are plenty of civil servants who are dedicated to whatever people they are serving, whoever it is in office at the time, and there are plenty of civil servants who also work tirelessly and efficiently. But I don't want to overstate. And I don't think we do anyone any good overselling the reaction people have based on rumor and press reports.

 

      And I also think that in many agencies -- agencies differ. In some agencies, you have a real diversity of people within the civil service. In other agencies, you have people who got to the agency because of a deep-seated belief about what they wanted the mission of the agency to be. Maybe it was the mission at the time, but certainly, it was a mission those people embraced. And if somebody came in with a different view, with a different policy set of preferences and priorities, there was not uniformity in how people would respond to that and how many civil servants would embrace that.

 

      Certainly, when you look at the arguments that rise to the surface in the census case, you see a real divide between people who are in agencies long-term and have their own policy preferences and people who come in with a change in administration and want to implement new policy preferences. It's not always something that happens without any sand in or grinding of the gears.

 

      So I'm sympathetic to the notion that some changes need to be made and that more opportunities to get responses to whoever in office is running the policy position, who is exercising the delegated discretion, to get them to be able to accomplish what they see as the mission for the agency while they're there.

 

Hon. Ryan D. Nelson:  All right, we'll move on to the next question. And now we will move on to Randolph J. Go ahead. And remember to unmute your mic and they will let you speak.

 

Randolph May:  Thank you, Judge. This is Randy May. My middle initial is J., Randolph J. Thanks very much, and hello all of my friends there. So I want to -- the video's not on, is it? Because I would have gotten dressed up, but I don't think it's on.

 

      I want to go back to the nondelegation doctrine for just a second. And I've been an advocate for some type of revivification of the nondelegation doctrine, if that's the word, or breathing new life into it.

 

      So my question is this. Of course, we now have the intelligible principle standard that was enunciated in 1928. And I understand it hasn’t -- the two cases in 1935 were the last ones where the nondelegation doctrine, as it's properly understood, has been invoked. And I know what Justice Gorsuch said in Gundy, familiar with all of that. But I've always thought -- I think he basically said it ought to be jettisoned.

 

      But here's my question to -- I guess it's maybe more to Ron and Adam, but Sally can chime in. I want you guys to help me out. If you wanted to breathe more life into it, I've always thought there would be a way to just reformulate the intelligible principle standard and have intelligible principle plus that would say, perhaps, something like the statute must have an intelligible principle that may be measured by reasonably objective criteria that relate to a legitimate legislative purpose, or something that would add.

 

      So to help me out. Can you envision something that's just a little more than what was said in J.W. Hampton that would be workable, or is it like Scalia thought, just not workable to do anything else?

 

Hon. Ronald A. Cass:  Well, Randy, I'm happy to take a first crack at this. First of all, there's a picture of you on my screen wearing a coat and tie, so you look terrific.

 

Randolph May:  Gosh, I was afraid you were going to say something else, so thanks for that.

 

Hon. Ronald A. Cass:  As to the intelligible principle assessment, when Chief Justice Taft wrote that opinion, he took a different tack from the other Chief Justice who wrote a notable opinion on the delegation doctrine, and that's John Marshall. John Marshall thought all the important decisions should be made by Congress, and then things that were less important, you could let somebody else make. And part of what Chief Justice Taft said is that there are decisions simply too important to be left to anyone but the Chief Executive, or people working for him. So it was a completely different way of looking at things.

 

      The intelligible principle doctrine, I think, is just the wrong doctrine. I think the question is of whether you have an intelligible principle, but what the actual decision is that's being left to somebody in the Executive Branch or in the courts. If it's something that -- back in the first or second Congress, I think it was, they passed the Residence Act, which set up the District of Columbia. And the tough political decision was exactly where the capital of the nation would be. It was a hotly contested issue. It was one that divided people around the country.

 

      Congress made that call. They said pretty much exactly where it was going to be, and then they left in the very fine details of buying, or getting, or having states cede the land to a commission. They left to the commission setting up all of the government buildings. And they didn't give any prints for how many buildings, of what type, or where they'd be. I think that's the sort of thing you don't need any sort of intelligible principle. It's just not important enough to be worried about the commission exercising that authority.

 

      I think John Marshall had it right when he said it's the nature of the authority you're giving out rather than the detail with which you assign it to people that we ought to be looking at. And I think it's hard to get a really clear judicial test for that. That's why Justice Scalia was an opponent of a vigorous nondelegation doctrine. It's the one thing he and I argued about for decades without coming to agreement on. I'm not going to tell you who capitulated on most of the other things. But I do think that we would be better off trying to find a better way of cabining delegations than the intelligible principle.

 

Prof. Adam J. White:  I could just say a word. The last big nondelegation opinions obviously were in the Gundy case. And they came out right within a couple of weeks, if I remember correctly, of the political gerrymandering case where the Supreme Court said there's just no standard here that's capable -- a judicially enforceable standard capable of dividing unconstitutionally political gerrymanders from constitutionally political gerrymanders.

 

       And when that happened, I wrote a short note on one of the law blogs saying conservative reformers of the nondelegation doctrine ought to focus more on the gerrymandering opinions than the Gundy opinions to really see the challenge of constructing a judicially manageable nondelegation standard. And so I'm hopeful that we'll find a new standard. And these recent opinions, Gundy and Justice Kavanaugh's opinion in Paul, they're the opinions that have launched a thousand law review articles. But we'll see.

 

      Ron, I wonder if maybe, ultimately, the energy be channeled into sort of auxiliary precautions, so to speak. Maybe we just do need judges to use canons of construction to narrow fields of discretion in order to avoid the constitutional problem. Maybe we need courts to do more work of what James Madison called liquidation. Over time, help fix the meaning of a statute in one place so that then the political energy isn't channeled into a new administration flip-flopping from one to the next—which, by the way, exacerbates all the civil services issues that we're talking about—but channels the power into the legislative process.

 

      Maybe Sally's going to say, "What legislative process? It's all broken. Congress doesn't do anything." And that's true. I think that's as much a symptom of the delegation issue as a cause. I think that it's because the agencies can more or less venture whatever gambit they want to. But you don't see as much political pressure on Congress to really compromise. They know that the pressure release valve is the agency process anyway. And so I would like to see more effort focused on the major questions doctrine and on this issue of liquidation.

 

Hon. Sally Katzen:  The only thing I would throw in to this discussion is the -- for those of you who want to read about it, is Nick Bagley and Mortenson's article where they look back at the very first several Congresses to see if there was any delegation and what kind of delegations exist. And Ron talked about one. Patents is another area. Tariffs and trades is another area where they found an enormous amount of delegation by the Founding Fathers, which casts in doubt some of the theses upon which those who want to change the nondelegation doctrine have pursued.

 

      I actually like Adam's suggestion about where energy should be spent, so I don't want to detract from that.  Thank you, Adam.

 

Prof. Adam J. White:  I feel so bad because I was going to kind of dump on what you just said.

 

Hon. Sally Katzen:  No, don't do that.

 

Prof. Adam J. White:  After they read Bagley and Mortenson, be sure to read the new article that's out by Philip Hamburger. He has the latest piece on what he calls the issue of divestment. And it really is a direct response to Bagley and Mortenson. Our cup runneth over on things to read on nondelegation.

 

Hon. Sally Katzen:  I was going to say we could spend a lot of time doing a lot of reading. And if the pandemic continues, we may do just that.

 

Hon. Ronald A. Cass:  I think Ilan Wurman has another piece responding to that as well. There are several more pieces coming out from other people. I would say, Adam, I agree that looking at particular canons of construction is helpful. We just have to make sure it's with two n's and not three.

 

Hon. Ryan D. Nelson:  All right. I think we've got time for one more question. And I'll go ahead and take the prerogative. Regarding the Appointments Clause last term, the Supreme Court weighed in and said that the CFPB had to go through advice and consent. They've taken another case with the Federal Financial Housing Authority, and then they just granted certiorari in yet another case addressing the Appointments Clause. Why has the Appointments Clause become such a hot topic? And is this something that is temporary for the Supreme Court to get some guidance, or is this a longer-term structural concern that is being addressed?

 

Hon. Ronald A. Cass:  Well, if no one else wants to address it, I think that there are two things that drive this. First of all, there's been a lot more concern across the board with structural issues that have to do with the delegation of large amounts of authority to administrative entities. And that's why there's a lot of writing about nondelegation. That's why there's a lot of writing about the degree of deference given under Chevron or under other doctrines.

 

      But also, there have been more statutes that have been passed that really do cabin any sort of oversight, whether it's executive or legislative. Now, if you have an agency -- I think that Sally may have mentioned the power of the purse. But certainly, if you have an agency that's insulated against congressional oversight in terms of regulating its budget, you have an agency that's insulated against executive oversight in terms of how it adopts policy, the more you pull back the agency from the usual controls, the more concerns over doctrines that they cabin agencies, authority, and regulate agencies use of their discretion have become important and become talked about.

 

Hon. Ryan D. Nelson:  Okay. Well, thank you all. And I think we're kind of hitting at the end here, so we'll go ahead. And I really want to just thank the panelists for a robust discussion, and kind of a bit of a crossroads for administrative law and probably for many areas, generally. And thank the audience for joining us today.

 

      I want to remind everyone that the next convention event and discussion of "Rule of Law or Just Making It Up? First Amendment Tiered Scrutiny" will begin at 11:00 a.m. tomorrow morning. And with that, we'll go ahead and let everyone have a good evening. Thanks again.

 

Hon. Sally Katzen:  Thank you.

 

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11:00 a.m. - 12:15 p.m.
Free Speech & Election Law: Rule of Law, or Just Making it Up? First Amendment Tiered Scrutiny

2020 National Lawyers Convention

Topics: Constitution • First Amendment • Free Speech & Election Law
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On November 10, 2020, The Federalist Society's Free Speech & Election Law Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The panel explored "Rule of Law, or Just Making it Up? First Amendment Tiered Scrutiny."

Different levels of Scrutiny are a staple of First Amendment Jurisprudence.  Strict scrutiny for viewpoint-based restrictions, intermediate scrutiny for restrictions on commercial speech, and, over the years, amorphously defined other types of “heightened” scrutiny for restrictions on association, campaign-related speech, public vs. private figure defamation, and purportedly incidental speech restrictions.  In recent years, however, various judges and justices have called for revisiting ahistorical or a-textual approaches constitutional analysis, in both the First Amendment and other contexts.  And many scholars have long questioned whether tiered scrutiny is just a smoke-screen for ad hoc balancing, allowing judges to impose their own preferred outcomes in any given case. 

This panel will explore both the theory and practice of tiered scrutiny in First Amendment analysis.  Is there a textual or historical basis for creating such differential levels of scrutiny?  Is a more historical or absolutist approach more faithful to the constitutional text?  Is it even possible to avoid creating such judicial doctrines at the margins where the application of First Amendment principles to moderns circumstances can be challenging at best?  As for the practical application of tiered scrutiny, how does one distinguish between important or compelling interests versus valid but otherwise ordinary interests?  How does one determine a less restrictive means of accomplishing a governmental goal, and how much loss of efficiency is too much to ask to preserve some additional amount of speech?  Are courts even remotely capable of providing consistent answers to such questions across a range of cases, or is it inevitable that the answer to any such questions will be entirely a function of the judge’s policy preferences?

If our judicial system is meant to be based on the rule of law rather than the rule of judges, does tiered scrutiny advance or hinder that ideal?  Does the “rule of law” allow any degree of judicial discretion or judgment and, if so, is there any textual basis for deciding how much judgment is allowed and how much effectively eliminates any “rule” at all.

Featuring:

  • Prof. Ashutosh Bhagwat, Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality; Martin Luther King Jr. Professor of Law, University of California, Davis School of Law
  • Prof. Genevieve Lakier, Assistant Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School 
  • Prof. Nicholas Quinn Rosenkranz, Professor of Law, Georgetown University Law Center
  • Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, University of California, Los Angeles School of Law
  • Moderator: Hon. David R. Stras, United States Court of Appeals, Eighth Circuit
  • Introduction: Hon. Dean A. 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.

Speakers

Event Transcript

Dean Reuter:  Good morning and welcome to this, the second day of The Federalist Society National Lawyers Convention. I’m Dean Reuter, Vice President, General Counsel and Director of Practice Groups at The Federalist Society. In store for you later today, we have a panel discussion on judicial association, with whom and under what condition judges can join or affiliate with what sorts of people or organizations and why knowing the details is important to practicing lawyers.

 

We’ll also learn more about the latest developments in regulating social media. We’ll close today with an examination of a special form of litigation, multidistrict litigation, which sometimes involves millions of people dispersed throughout the country and billions of dollars all under the control of a single judge. But first, our free speech panel moderated by Judge Davis Stras.

 

I’ve asked all the convention moderators to be very brief in their introductions, so I will do the same with Judge Stras. He’s been on the Eighth Circuit Court of Appeals since January 2019, before which he was a Minnesota Supreme Court justice for eight years, before which he was a professor at the University of Minnesota Law School, before which he clerked for Supreme Court Justice Clarence Thomas, during all of which he’s been a good friend. Judge David Stras.

 

Hon. David R. Stras:  Thank you, Dean, and thanks to everyone online who’s participating in the panel -- or online that are viewing the panel. We have a wonderful group of scholars today to talk about the tiers of scrutiny in free speech. I will, as Dean alluded to, briefly give the bio of each of our individual panelists in the order in which they will talk just so you know who’s with us today and why you want to listen to them.

 

Our first speaker will be Genevieve Lakier, who’s an Assistant Professor of Law and a Teaching Scholar at the University of Chicago Law School. She is both a lawyer and an anthropologist having earned a PhD in anthropology.  Her current research focuses on, among other things, the cultural history of the First Amendment.

 

Our second speaker will be Nick Rosenkranz, who’s a Professor of Law at Georgetown University Law Center where he teaches con law and federal jurisdictions. He’s a graduate of Yale Law School and a former clerk to Justice Kennedy. His research focuses primarily on constitutional interpretation and judicial review.

 

Our third speaker will be Ash Bhagwat, who is a professor at the University of California Davis School of Law. He’s a graduate of the University of Chicago Law School and a former clerk also to Justice Kennedy. He is a constitutional law scholar with an emphasis, which helps our panel today, on First Amendment law.

 

And our final speaker will be Eugene Volokh, who’s a distinguished professor of law at the UCLA School of Law. He’s a graduate of UCLA and a former law clerk to Justice O’Connor. He’s a member of the American Law Institute, a First Amendment scholar, and the founder and co-author of the popular blog, The Volokh Conspiracy.

 

So without further ado, I will turn it over to Genevieve, who is our first speaker of the day.

 

Prof. Genevieve Lakier:  All right. Well, thank you so much for having me. I’m thrilled to be on this panel. You know, the tiers of scrutiny are part of the bread and butter of constitutional law. They’re doctrinal frameworks that courts use every day when deciding constitutional cases, but they typically don’t get their own spotlight. We don’t think about them sort of in and of themselves. So thanks to Professor Volokh for organizing the panel. This is going to be really fun.

 

So the tiers of scrutiny are a modern invention. The idea that to determine whether a government action is constitutional, courts, or really anyone else for that matter, must look at the strength of the government’s interest as well as the means it chooses to promote that interest -- this idea would have been wholly foreign to 18th century thinkers. And certainly when we look at the 18th century discussion of a First Amendment and the various state constitutional guarantees of free expression, the assumption throughout these conversations about these guarantees was that the rights they provided, they were absolute.

 

So it was widely assumed, for example, that what the First Amendment meant was that the government could impose no prior restraint on speech, no matter how good its justifications. And many thinkers, including perhaps most famously Alexander Hamilton, argued that no liability could be imposed on libelous speech that was true and could be shown to have been published with good motives, even if, or especially if, the result was to cast the government into a highly negative light. So these are views of the First Amendment that did not require or imagine the necessity of imposing anything like the tiers of scrutiny we know today.

 

Now, while there may have been less absolutist discourses about some of the other federal constitutional rights — the history of which I know less about — there is no question that the tiers of scrutiny the courts employ today, and employ not only in First Amendment cases but in many areas of constitutional law, these emerged only in the 1930s and 1940s around the time of the New Deal constitutional revolution. And for that reason, those who embrace an originalist conception of constitutional meaning might want to reject the tiers of scrutiny as illegitimate exercises of judicial power. One might think, as Justice Douglas sometimes argued, that the tiers of scrutiny unnecessarily dilute the strength of the First Amendment’s command by allowing courts to balance away our freedoms of speech and press and association.

 

But that would be a mistake, I think. And to understand why, it is necessary to understand why the New Deal Court essentially invented the tiers of scrutiny when it did. And it was not to limit the strength of First Amendment protection. Instead, it was a consequence of the Court’s embrace of a much more robust, much more counter majoritarian, and much more constraining view of the First Amendment and the parallel state constitutional guarantees of free expression than courts had held previously.

 

So the reason why the First Amendment protection could be construed in absolutist terms in the 18th and 19th centuries was because those protections were so limited. The government could be absolutely precluded from imposing prior restraints on speech because it had wide power to restrict speech after the fact, and also because, I think, given the much more rural and less urbanized social conditions of the 18th and 19th centuries, the government had much less reason to engage in extensive licensing of public speech that municipalities all across the country engage in today where they are constantly prior restraining speech in practice.

 

And the First Amendment could similarly be interpreted to absolutely protect true defamatory speech that was published with good motives because that construal of the law of libel in practice took off the table protection for true speech that undermined national security or that posed serious harm to government interest. That was considered speech that was published with bad motives. And in general, jurors were able to rest on a relatively simple, doctrinally undeveloped but absolutist view of freedom of speech and press because the restrictions of those rights were understood to impose on the government were so weak -- they were so limited that no one really had to wrestle with the difficult question of how to reconcile the constitutional commitment to these freedoms with other important and perhaps constitutionally protected values like national security or public order or equality.

 

In practice, those other values always trump freedom of speech, if not in theory. So it was only when Justice Holmes first announced a view of the First Amendment as imposing very significant constraints on the government that view of the First Amendment that prevented the government from being able to punish not only harmless speech, as had previously been the case, but also even harmful or offensive speech. It was only at this point that the tiers of scrutiny emerged in Holmes’ insistency that exhortations and opinions, sort of political speech, core political speech, could be subject to criminal punishment because of its message only when it posed a clear and present danger of serious harm.

 

And in this context, it becomes obvious that the idea of a non-absolutist First Amendment — which is essentially what Holmes was proposing — it emerged as a means of justifying the much more stringent protection of speech that Holmes and Brandeis wanted courts to read into it. It reflected the recognition that a robust theory of freedom of speech will inevitably create conflict, in some cases very serious conflict, with other very serious state and constitutional interests and that a mechanism had to be found to reconcile those conflicts if this new, robust counter majoritarian regime of free speech protection was to prove sustainable. And this is the role that the tiers of scrutiny would continue to play more or less in First Amendment jurisprudence throughout the rest of the 20th century and that they continue to play today.

 

At least in theory, the tiers of scrutiny provide robust protection for expressive and associational autonomy without preventing the government from ever being able to regulate the harmful, disruptive, dirty, ugly, whatever it may be, effects of speech. By requiring there to be a connection between the ends the government announces for its actions and the means it adopts to achieve them, the tiers of scrutiny also, in theory at least, allow courts to smoke out hidden but invidious government purposes, although I’m not sure always terribly effectively.

 

And finally, but very importantly, by forcing courts to engage in the context sensitive analysis of the effects of government action in the particular circumstances in which it acts, to ask not only as 19th century courts did — Is this the kind of action that the government may undertake? Does this fall into the category of permitted or prohibited government actions? — but to ask in these circumstances, does the government have a sufficiently compelling justification to engage in this action, given the consequences and the effects on the speakers it’s going to be regulating?

 

The tiers of scrutiny allow courts to embed into their constitutional analysis consideration of the differing economic, social, and political circumstances of different kinds of speakers to recognize that the same kinds of governmental actions may have more or less harmful effects on the expressive freedom or the democratic values that the First Amendment protects. So they produce, I think, on the whole a more realist, more sociologically sensitive view of freedom of speech than would otherwise be true. And this is certainly how Holmes viewed the clear and present danger standard.

 

These are all very important virtues of the tiers of scrutiny, virtues that would be lost were we to embrace a more absolutist model of the First Amendment. And in general, it is for me almost impossible to imagine an absolutist view of the First Amendment that was also not much narrower in its scope and much weaker in its force. This is because courts are going to be unwilling to allow speech interest to trump all other interests.

 

Now, again, to go back to the sort of question about originalism, a much weaker First Amendment would be more in keeping with original understandings of the meaning of freedom of speech and press. But in a world in which we understand the tremendous power that the government has to muzzle speech by the threat of ex post sanctions, it is not an attractive vision or one I think we and the courts are likely to return to any time soon. None of this is to say that the tiers of scrutiny in the form they currently take are perfect.

 

I don’t want to take up too much time so I’m not going to say much about this, although I hope we talk more about this in the conversation. But in their current form, the form of means and balancing, the tier of scrutiny the courts employ in their content-neutral cases — so for example, in their incidental regulations of speech cases or the time, place, and manner cases — they’re much too deferential, I think, to government interests. And an argument could be made conversely that strict scrutiny in its current form is just too strict.

 

But these are details. The point is that the tiers of scrutiny provide an important mechanism by which courts reconcile on the one hand strong protection for freedom of speech and press with other values, and therefore preserve judicial commitment to a strong and counter majoritarian First Amendment. Were we to reject the tiers, it’s not at all obvious what other mechanism would be available to perform that important and I think even, perhaps, foundational task.

 

Okay. So that’s all I’ll say for now. I hand it over to Professor Rosenkranz.

 

Prof. Nicholas Quinn Rosenkranz:  Thank you. So I’m delighted to be with you all, if only virtually. And thank you, Genevieve, for getting that status quo on the table. I think my role here is to be a bit skeptical of tiers of scrutiny and to at least sketch an alternative approach, or at least hint at one.

 

For many in this audience the reasons for skepticism are obvious, and Genevieve actually hinted at several of them. First, obviously, they’re entirely atextual, so there’s no hint of them in the text of the Constitution. And that’s obviously true of many or most lines of doctrine, but at least many lines of doctrine plausibly actualize the constitutional text. Tiers of scrutiny seem to be a particularly poor fit for the absolute sounding language of the First Amendment.

 

Second, the tiers of scrutiny are essentially elaborate balancing tests. And the nature of this balance, particularly the assessment of the importance of the government interest, seems paradigmatically legislative. And while it’s true that there are, for better or worse, many such balancing tests in constitutional law, again, this seems a poor fit for the absolutist sounding text.

 

Third, the tiers of scrutiny don’t seem to resolve some of the hardest doctrinal puzzles. Strains of doctrine like overbreadth and maybe the O’Brien test and things pose some riddles that are kind of orthogonal to tiers of scrutiny. They don’t necessarily solve a lot of -- there are at least several problems that they don’t seem to solve.

 

And fourth, it is perhaps tempting to say that they’re simply essential for structuring this judicial inquiry, impossible to craft doctrine without them. But as Genevieve says, they are a relatively recent invention. So I think that alone should make us a bit skeptical of the sort of concern that we couldn’t possibly survive without them.

 

So with the balance of my time, I just want to begin to sketch what a First Amendment world might look like if the doctrine were reoriented toward constitutional text. I want to suggest first that the results aren’t as radical as they might appear; second, that it actually solves some doctrinal riddles that tiers of scrutiny don’t; and third, I want to suggest some surprising doctrinal harmonies that emerge when we take the text seriously, both within the First Amendment and more broadly throughout the Constitution.

 

So just a general point first. We’re in the habit of saying, “This statute violates the Constitution.” I insist that that’s not quite right. That’s a sort of pathetic fallacy along the lines of, “This gun committed murder.” Statutes don’t violate the Constitution; government actors do.

 

The Constitution forbids government actors from doing certain things. And so I claim that before we get to the how question — how was the Constitution allegedly violated? — we have to answer the logically prior who question, so who allegedly violated it? And I claim that just asking these questions and taking the answer seriously will properly structure First Amendment judicial reviews.

 

So I begin with what is really a pretty obvious point. Take for example the Sedition Act. So in 1798, Congress makes it a crime to write, print, utter, or publish any false, scandalous, malicious writing, writings against the government of the United States, etc. My simple point here is, okay, so we’re accustomed to say that the Sedition Act -- that there’s a First Amendment violation here.

 

My simple point here is, who has violated the Constitution in this case? I insist the answer must be Congress. This is the sort of insight that is considered radical in the academy but utterly commonsensical out in the world. They’re shocked that you can get tenure for an insight like this. The language says, “Congress shall make no law.” I claim, therefore, that the amendment is about Congress, so Congress shall make no law. I claim the answer to the who question has to be Congress in the First Amendment context, and that the when question follows.

 

So when was the Constitution violated? If the answer to the who question is Congress, the answer to the when question has to be when Congress made the law. So in this case, the Sedition Act, Congress made on July 14, 1798, that is the day of the constitutional violation.

 

But consider what follows if you take that seriously. That implies that the facts of the violation can’t quite matter. A challenge has to be facial in the sense that it has to be about the face of the statute for the simple reason that any enforcement facts happen after the violation of the Constitution is already complete, after Congress has already done the bad thing.

 

So if you were prosecuted pursuant to the Sedition Act, what exactly you said would matter to the prosecution trying to prove its case. It wouldn’t matter at all to your constitutional defense. Your constitutional defense would just require putting the text of the statue next to the text of the First Amendment. And Thomas Jefferson understands this, which is why his Kentucky Resolution declares this act of Congress to be, quote, “all together void and of no force,” and why he later pardons everyone convicted under the Sedition Act, regardless of what they had written.

 

So even though some of the speech perhaps could have been punished under some other law, it can’t be punished under this law. And that’s the important thing. It orients our attention toward the law rather than toward the speech. It’s a bit confusing to talk about protected and unprotected speech. We should really talk about problematic and nonproblematic laws. So that’s the Sedition Act.

 

Consider, for example, the O’Brien test and the question of laws which are, on their face, neutral as to speech but which might sweep up some speech-related conduct. It’s a bit of a puzzle for the tiers of scrutiny, but once you take the who and the when seriously, this becomes an easy case. Because the violation of the Constitution is the enacting of the statute, the doctrinal test has to be one that a congressman could conceivably apply ex ante in looking at the text of the statute.

 

And a statute that is speech neutral has to be constitutional or else every statute would fail because every action could be taken with a speech purpose in theory. And that answers our O’Brien question and actually shows us the relationship between a case like O’Brien and a case like Employment Division v. Smith. So just as a religion-neutral law is okay under the free exercise clause, perhaps a speech-neutral law is permissible under the free speech clause.

 

I have tons more to say, but I’m required to stop there. Sorry. I’m going to turn it over now to Ash Bhagwat.

 

Prof. Ashutosh Bhagwat:  Thank you very much. I am going to speak briefly about a couple of aspects of the tiers of scrutiny that I think suggest that the modern absolutism is less true than it’s portrayed. The Supreme Court today, it seems to me — especially Justice Thomas in a case like NIFLA — seems to be on a campaign, sort of half the tiers of scrutiny approach. Content-neutral laws get intermediate scrutiny. Content-based laws get strict scrutiny. Spread it across the terrain of First Amendment law.

 

And for two separate reasons, I think that is very unlikely to be successful. One is it doesn’t really work. There are still quarters of First Amendment law, important quarters, where tiers of scrutiny really don’t make a whole lot of sense. And the most obvious example is situations where free speech law intersects with tort law, most famously libel in New York Times v. Sullivan but also the IIED tort in Snyder v. Phelps — this is the Westboro Baptist Church case — and the privacy cases from the ‘70s and ‘80s.

 

In all of those cases, the difficulty becomes what the Court actually focuses on is not the strength of the governmental interest at all. It focuses purely on whether or not the speech is on a matter of public concern or newsworthy. And that suggests something important, which is there’s situations when we are not willing to balance away First Amendment rights, frankly, in contexts such as privacy where the claim, the government interest in protecting victims, is actually quite strong.

 

So the idea that we’re going to be able to resolve all difficult issues by balancing the interest in speech with the government interest strikes me as being problematic. And I think other things that the Court has been trying to not focus on, such as how important is the speech from the point of view of maintaining democratic self-governance, are going to become important because it seems to me, for example, in a privacy case that that’s a very important factor.

 

The second problem and more fundamental problem I had with tiers of scrutiny — and it really reflects something that Nick said earlier, but I want to focus on it — is that the tiers of scrutiny approach requires the government to decide -- sorry, it requires the courts to decide how important a governmental interest is. Is it compelling? Is it substantial or important? Is it legitimate?

 

I don’t think the courts have any mechanism for making these judgements, and I don’t think they ever have. The idea really stems from Korematsu in 1944 where the Court upheld the Japanese internment, at least in part because of the very strong American interest in winning the war. That should immediately give pause because Korematsu is, of course, a terrible decision. And afterwards, you look especially at the First Amendment area, and the Court does not tend to really have -- it’s never really articulated to my mind any good theory for how to assess whether or not a government interest is compelling. And I’m not sure how they could because it strikes me as being a quintessentially legislative judgement.

 

So typically, the way the Court -- to give a sort of prime example, the Court has regularly, over the years, said that the government has a compelling interest in protecting children from being exposed to sexually explicit materials. It then almost always goes ahead and strikes down the law on narrow tailoring grounds. But that, frankly, strikes me as being problematic for reasons that I think Professor Volokh is going to talk about.

 

But I start with the question, well, why? Why is that a compelling interest? There’s no empirical evidence that children are harmed by exposure to sexually explicit materials. Frankly, if anything, there’s more empirical evidence that children are harmed by exposure to violent materials. Yet, in Brown v. Entertainment Merchants Association, the Court did not accept that as a sufficient interest to justify upholding the law.

 

And the answer seems to be some sort of historical understanding, but that’s very odd because the word “compelling interest” suggests some sort of an objective understanding. So my basic contention is that the tiers of scrutiny approach is not going to work in the area of strict scrutiny. I think in the area of intermediate scrutiny, where effectively we’re doing freeform balancing, it does work, though, perhaps, as Genevieve said, it’s too deferential to the government. But I don’t see a long term approach where strict scrutiny becomes a plausible form of analysis simply because the decision of what is a strong enough governmental interest to be able to overturn what we recognize as a fundamental right is not something that I think the courts are ever going to be able to come up with a coherent theory on.

 

And so I think we are left with how else do we decide when the government should be able to overturn a fundamental right. And I think that’s a question we haven’t really started to answer. The reality is if you look at the actual strict scrutiny cases in the area of the First Amendment during the modern era, there are only two cases in which a fairly unequivocal majority of the Court has found that the law survives strict scrutiny. One is Holder v. Humanitarian Law Project. That is upholding the Material Support to Foreign Terrorists Act. The Court deferred to the government on the existence of a compelling interest. That’s not real strict scrutiny. That’s national security, and that’s different.

 

The other case, the Williams-Yulee case, involves a bar on candidates for judicial office personally requesting campaign donations. That is perhaps the most bizarre strict scrutiny case ever because the Court never -- as the dissent correctly points out, the Court struggled to even identify what exactly the compelling interest was. So I think my own view is that, if we think that content-based laws should sometimes survive scrutiny, the compelling interest test is never going to give us a good way of determining when that should be so. And I think we need to come up with other ways of figuring that out.

 

I have thoughts in that regard, but I’m going to stop here and leave that for the Q&A session. I’m going to pass it on to Eugene Volokh.

 

Prof. Eugene Volokh:  Thank you very much. So I agree with much that everybody has said, almost everything that everybody has said. I agree that some kind of escape hatch for the government is necessary, especially once you start striking down content-neutral speech restrictions that it’s hard to imagine an absolute rule that says you can’t have volume restrictions in residential neighborhoods at night, let’s say. If you’re going to have parades on city streets, well, people use city streets usually for other things. You’re going to need to have some kind of content-neutral speech restrictions. Something needs to be done.

 

      At the same time, I entirely agree with Professor Bhagwat that what has been done is -- actually, I’m sorry. Maybe we should, if I might suggest, use first names. I think we all know each other. If not, we’ll know each other afterwards. I certainly know all of you. So I entirely agree with Ash that this is -- the existing scheme doesn’t really work very well. And let’s look at little bit at why. But before we figure out why it doesn’t work, well, we need to figure out what it means.

 

So heightened scrutiny, strict scrutiny, intermediate scrutiny, how does the Court define that? Well, it says that content-based speech restrictions must be narrowly tailored to serve a compelling interest. Content-neutral restrictions, so long as they leave open ample alternative channels, must be narrowly tailored to serve a significant governmental interest. And the inclusion or omission of governmental doesn’t greatly matter. It just varies from case to case.

 

So it sounds like the real difference is in the magnitude of the interest. It turns out not to be so. And in fact, there are very few cases where the Court has even suggested that’s something -- that what’s doing the work is sometimes just significant, but not compelling. There’s no doubt that strict scrutiny is very demanding. There’s no doubt that intermediate scrutiny is quite forgiving. But the language of the test doesn’t really tell us much.

 

How about restrictions on commercial speech, non-misleading commercial speech? I oversimplify here, but basically that. Well, the Court has said that those restrictions must directly advance a substantial government interest that could not be served as well by a more limited restriction. And in various cases, the Court has suggested that that’s just an elaboration on intermediate scrutiny. It’s pretty similar to content-neutral restrictions, although it turns out that, at least in recent years, this test has been extremely demanding. Not quite as demanding as strict scrutiny but close to it, even though earlier the Court had said, well, in many ways it’s pretty similar to intermediate scrutiny for content-neutral restrictions. And, indeed, it’s not like there’s any daylight between substantial and significant.

 

What about restrictions on disclosure -- excuse me, restrictions on mandates that one discloses certain campaign spending? Those, the Court has said, are subject to exacting scrutiny. They must bear a substantial relation to a sufficiently important governmental interest.

 

Well, all right. That sounds like it’s less demanding than intermediate scrutiny for content-neutral restrictions because, note, important and significant sound pretty similar, but substantial relation seems less demanding than narrowly tailored. Yet, many people say — and I think this in some measure reflects the way the Court has approached this — that it’s actually in between intermediate and strict scrutiny. But where, exactly, we don’t know.

 

So the language of those tests is, I think, singularly unhelpful, kind of in the way the Lemon test back in the day was unhelpful. Now, of course, some cases can elaborate on that. Well, what do they say? What does narrowly tailored mean, for example? Well, it means the restriction must substantially advance the interest. So sometimes the Court says, “You know, it’s really very speculative that this law would even advance the interest, so it means it sacrifices speech for no really good reason.”

 

It must not be overinclusive. So at the very least, that means that you can’t draw a law that just covers less speech but still serves the interest just as well. So an example that the Court has given, for example, in McCullen v. Coakley, which struck down 36-foot buffer zones around abortion clinics, it said, look, if you want to restrict, let’s say, trespassing or blocking entrances, you can do that through a law that’s focused on that. But the speech outside those entrances doesn’t advance the interest. The law as a whole advances it because, in the process of creating the bubble zone, it also prevents trespassing and blocking. But it could be written to cover less activity and not include this kind of speech.

 

A related thing is the restriction must be the least restrictive means, so there can’t be any alternative that does the job as well. So a classic example of that was a case called Sable Communications where the Court struck down a total ban on dial-a-porn. Remember that when people thought that the way people would get pornography is through the telephone? I guess in a sense they still do under certain definitions of telephone. In any event, there were restrictions in dial-a-porn -- there was a ban on dial-a-porn aimed at shielding children.

 

The Court said — and as Ash points out, maybe it was right; maybe it was wrong — but the Court said that it served a compelling government interest. But through less restrictive means, you could have credit card screening, or you could have subscriber level blocking through which parents could shield their children from this kind of dialogue.

 

So the first three are closely related because, in a sense, you could fold both one and two into three. Anything that doesn’t substantially advance the interest isn’t the least restrictive means, likewise with overinclusiveness. So sometimes, this is articulated as got to be necessary to serve a compelling interest. And it must not be underinclusive. So that says that if a law fails to restrict certain kinds of speech that affects the interest pretty much as much, that’s a sign that there’s impermissible content discrimination. That’s a sign the government itself might not be viewing the interest as compelling.

 

Classic example, Erznoznik  v. City of Jacksonville in 1975, there is a ban on the display of nudity on drive-in theater screens that are visible from the street. And the Court said there isn’t really a substantial enough interest in shielding people from offensive material. The law is overinclusive with regard to the interest in shielding children from sexually explicit material because it doesn’t cover just sexual explicit nudity.

 

What about traffic? There you are driving along, and there’s this giant naked person moving in vivid color on the screen. Wasn’t that something that might distract people? Ah, the Court says, but this is underinclusive. What about car chases? What about explosions? What about various other things?

 

It’s an interesting question whether the law should be struck down on those grounds. After all, you might say better a lesser restriction than a greater one. In fact, maybe the underinclusiveness made the law more narrowly tailored because it didn’t affect as much. Also, you might say — hard to prove this — but maybe nudity is more distracting than a car chase. In any event, that’s a very important element.

 

Now, what’s the real difference between intermediate scrutiny of content-neutral restrictions and strict scrutiny of content-based restrictions? It turns out that elements three and four are replaced for intermediate scrutiny with a reasonable fit requirement. Formally, the distinction between the tests is in the substantiality of the interest. Both tests are articulated as being about narrow tailoring. But the narrow tailoring for content-neutral restrictions is actually defined differently than for content-based restrictions. At the very least, I think poor judicial craftsmanship, although, it sort of evolved this way over the years, the end result is pretty confusing for litigators and for courts.

 

So let me suggest that there are some key questions that remain besides the ones that Ash identified, or in addition to them. One is how demanding is the underinclusiveness inquiry? So you mentioned two cases, Holder v. Humanitarian Law Project and Williams-Yulee v. Florida Bar. And they upheld speech restrictions under strict scrutiny by essentially ignoring the underinclusiveness inquiry as a practical matter, whereas some cases like Erznoznik -- and there are several others I could point to that are really all about underinclusiveness. So it looks like whether a law’s going to be struck down or not isn’t entirely defined, but it’s often defined by whether courts apply a version of strict scrutiny which underinclusiveness has a lot of teeth versus one in which it’s a lot more gummy.

 

Second set of questions has to do with question whether there’s some categorical prohibitions, whether there are some situations in which the Court essentially would say, “It doesn’t matter how necessary the law is to compelling government interest. It’s just impermissible.” You might say necessary and proper is a loose analogy. But you might say, well, some laws may be necessary even in a strict, super strict non-McCullen sense of necessary, that striking down the law would interfere with the serving of the compelling government interest. But it’s just not proper. It’s just not permissible.

 

So for example, there’s some situations, for instance, in Holder v. Humanitarian Law Project, where the Court seems to suggest that if a restriction is too substantial, it’s forbidden even when necessary to serve a compelling interest. It’s not that it’s overinclusive. It’s not that it covers speech that fails to serve the interest. It just covers speech in a way that too much interferes with democracy.

 

So Holder said it’s okay to impose a content-based restriction on speech essentially to foreign terrorist organizations, speech that’s coordinated with foreign terrorist organizations, because that’s necessary to help prevent terrorism. But what about an op-ed in  The New York Times saying, “This organization that we call terrorists are actually freedom fighters. We should all support them.”? That may help that organization, which may be genuinely terrorist, much, much more than some coordinated communication. But the Court suggested in Holder, well, that would not be permissible.

 

What about viewpoint-based restrictions? There are two cases in recent years where the Court said, essentially, that viewpoint-based restrictions are categorically unconstitutional. It doesn’t matter if they pass strict scrutiny. That’s a perfectly plausible test, and I like that kind of approach, setting up just the rule, say viewpoint-based, unconstitutional. There’s some vagueness as to what’s viewpoint-based, but you can imagine that without then going into this quite underdetermined analysis. But the Court has in the past, I think, evaluated some viewpoint-based restrictions under strict scrutiny, although it struck them down. And those cases didn’t have real occasion to grapple with each.

 

What about restrictions that aim to achieve effects by preventing people from being persuaded? Which is to say, let’s take a commercial speech restriction. Let’s say that the law would ban advertising of gasoline burning cars because that would encourage people to buy those cars, which would increase consumption of gasoline, increase greenhouse gases, let’s say. Would that be constitutional?

 

Recent cases, recent commercial speech cases — and some old ones, too, unlike some that were kind of in between — seem to say that’s just not permissible. It doesn’t matter how practically effective a means that is of achieving the government interest. It’s just an impermissible form of tailoring.

 

Again, I think that’s a good kind of rule, and there are some other cases which we can talk about during Q&A that support that. But it’s not something that’s at all visible on the text of the test. And another question that arises — and it arose in Holder, the foreign terrorist organization case and in Brown, which Ash mentioned, Brown v. Entertainment Merchants, which is the violent video game case — is how much should judges defer to government empirical judgements? And those cases reached quite different results, answers to that question. And again, that’s not something that’s clearly visible on the surface of the scrutiny tests but ends up being really important.

 

So to summarize, I think there needs to be some means of figuring out when restrictions are constitutional. I’d prefer trying to use a more categorical approach like the Court historically has set as to libel, incitement, and such. But I don’t know if that would work, for instance, for intermediate scrutiny or for other kinds of things, let us say, for content-neutral restrictions.

 

But if we are going to stick with this, I think that it would be better to go back over it if the Court is willing to do that, which the Court so rarely does, and ask what is really going on there because the current formulations of the tests don’t really explain what’s really going on. They are poor guidance for lower courts. They are poor guidance for litigators, and they’re poor guidance for the regulated government officials, let us say, the government officials whose government action, as Nick points out, the First Amendment is trying to restrain.

 

So with that, I turn things back over to Judge Stras, who’ll start a conversation.

 

Hon. David R. Stras:  Thank you very much. Thanks to everybody. This is fascinating. I’ll sort of end where Eugene -- or start where Eugene ended, which is to say that he’s absolutely right when he says this is a really tough area of law for judges to navigate. I mean, the fact of the matter is there’s so many -- even beyond the tiers of scrutiny, there’s so many subcategories of issues within those cases that, suffice it to say, I learned a little bit about how everything fits together. So I thank each of you for your remarks. They were excellent.

 

      Before we turn it over to audience questions, I want to give folks on the panel a chance to respond to each other. And Genevieve, I know you had a couple of comments you wanted to make, and I’ll give each of you a chance to either ask a question of someone else or give a couple of remarks in response to your co-panelists. So Genevieve, you first.

 

Prof. Genevieve Lakier:  Okay. Great. Thank you. So, yeah. These questions, I think, are primarily for Ash and Eugene, but, Nick, feel free to chime in, too, because just listening to the comments made me think that there are actually two different questions on the table here, and I don’t want to mix them up. They’re both very useful and interesting questions.

 

One is, is the current application of the tiers of scrutiny faulty in some way? Eugene suggested it’s very nonobvious what these tests mean. And I know this because when I teach free speech -- I’m teaching the First Amendment speech clause right now. Whenever I go over the O’Brien test and the intermediate scrutiny test, there has to be like a debriefing for the students so that they actually know what these mean because it’s absolutely -- Eugene’s right. It’s not obvious from the text. So there is a good question about transparency and also what is going on there.

 

So my view about why there is this poor fit between what the words on the page say and how courts apply them is that the tiers of scrutiny emerged -- have a sort of deep history in First Amendment law but have been distorted, transformed, reshaped, by a much more recent addition to the jurisprudence, which is the distinction between content-based and content-neutral speech regulation, which is overpowering everything. So tiers of scrutiny tests for what the Court thinks are content-neutral regulations have become more deferential over time and less restrictive of the government. And tiers of scrutiny tests like in the commercial speech cases that are dealing with content-based regulations have been more like strict scrutiny.

 

So there’s a way in which we might be seeing the transformation, the evolution of the tiers of scrutiny. But in the early and mid-20th century, I think the Court was very sensitive to the problem that the government might overregulate or might significantly limit the expressive opportunities of groups, even when it had a content-neutral purpose. Even when it wasn’t trying to actually go after speech because of a specific part of its content, the effect might nevertheless be very pernicious on these expressive activities of certain groups. Or just in the context in which it applied, it might be bad.

 

So it was relatively rigorous when it applied a content-neutral, intermediate standard of scrutiny. And in recent decades, I think the Court has turned away from that. Really, I think what the Court thinks it’s doing in most of these cases is looking at the legitimacy of the government’s purposes. And I think that’s a mistake because I think that we really should -- it’s very easy and cheap to regulate speech. The government internalizes all the costs of speech, but it doesn’t internalize the tremendous social benefits.

 

So I think that there is a -- I agree with Eugene that there’s all kinds of problems with the current tests in part that are evident by but maybe not caused by the non-transparency of the language. But that seems to me just qualitatively different kind of question from do we need the tiers of scrutiny at all? The fact that right now they’re not operating in the same way they did maybe 50 years ago and therefore they’re quite difficult for courts to apply and they’re achieving that maybe we may not like in every instance, that’s a reformist project.

 

We might say, well, we’re just getting it wrong. We should bite the bullet and say it’s strict scrutiny in commercial speech cases. We should think again about how we deal with content-neutral cases. But that’s all within the realm of the tiers of scrutiny, unless there’s some reason to think that this is a sort of inevitable feature of the approach.

 

And then the second question that we’ve been talking about is, are there reasonable alternatives? And Ash, actually, you suggested two, I thought, which was really interesting. I mean, we could have a -- the primary distinction could be high-value/low-value speech. Because in all the cases that you were talking about in which we don’t really apply the tiers of scrutiny, those are all cases involving low-value speech, really, in which courts feel free to apply different kinds of rules. But for those who are worried about judges making it up, I don’t think we should feel great about jurisprudence organized around high-value/low-value speech because what you see in low-value speech cases is just really free judicial balancing.

 

I mean, think about the libel cases. The Court’s just doing a first order -- it’s just balancing privacy interests and reputational interests against government interests. And it’s creating this complex typology of public officials and public figures and limited public figures and private figures and then speech that doesn’t touch on matters of public concern. It’s just freely balancing, but the only reason it feels empowered to freely balance is because we’re in low-value speech land.

 

And the turn to that alternative triggers all the concerns I talked about at the beginning about how if we move away from the tiers of scrutiny, we’re going to, in some ways, have a narrower First Amendment. There’s going to be more pressure to find more categories of speech that are low value. And therefore, the First Amendment applies with full force in a narrower bunch of cases.

 

And then, of course, we could have just a simple distinction between content-based and content-neutral regulations of speech, which I think is actually where the Court is heading. But that worries me tremendously because I think the government can do a tremendous amount of damage when it’s regulating speech in a content-neutral fashion. And I wouldn’t want to just say content-neutral regulations trigger no First Amendment scrutiny.

 

At the same time, I think there are all kinds of content-based regulations that can be justified for when they serve important privacy interests. I’m thinking about, say, for example, the professional speech cases, which are often -- involve content-based restrictions on what professional doctors and lawyers can say. Those seem to me very important. And so a much more absolutist approach which says government may never engage in content-based regulation speech, but it may always engage in content-neutral regulation speech -- Judge Stras, it’d be much easier for you to apply. But I think it would be both overly restrictive of the government in some cases and underly restrictive in others.

 

Hon. David R. Stras:  Responses?

 

Prof. Ashutosh Bhagwat:  Sure, let me take a shot. Genevieve, I don’t think you and I disagree all that much, surprisingly. When I think of tiers of scrutiny in the First Amendment area, I think of it is intimately tied to the content-based/content-neutral distinction simply because it has been for 50 years. Mosley v. Chicago Police Department is early 1970s. That’s a half a century now.

 

So when I talked about tiers of scrutiny, I was also just associating that with content-based/content-neutral. And I completely agree with you. I think that is not an adequate tool around which to organize First Amendment law because, as I was saying, there are many areas where content discrimination makes perfect sense; for example, in the area of professional speech, as you said, where it’s utterly insane to say we can’t punish doctors for malpractice because that’s a content-based restriction on speech. Or let’s be better lawyers. That’s just funny. That doesn’t make any sense. And yet, that seems to be where Justice Thomas was heading in the NIFLA case, which is crazy.

 

And we’re not going to go there. We’re not going to overturn 200 years of common law because the Supreme Court has adopted an abstract idea that doesn’t really fit. I am just suggesting — and I know you disagree with me on this — that the tiers of scrutiny approach doesn’t really tell us when content-based discrimination is or is not a good idea. And I think there, you may agree with me.

 

And for example, I think there are several Supreme Court cases which say that laws which prefer political speech to commercial speech are unconstitutional. The Reed v. Town of Gilbert case and the Discovery Network case, I think that’s crazy. I think that if we actually think about why we have a First Amendment, it’s not that I would not protect commercial speech — I probably would — but the idea that political speech and commercial speech are equally important to the social values underlying the First Amendment simply makes no sense to me. I think that was the point I was trying to make. So I’ll leave it there.

 

Hon. David R. Stras:  Other responses? Go ahead.

 

Prof. Eugene Volokh:  Judge, could I chime in before Nick just because my question is in large measure for Nick, and then he could respond?

 

Hon. David R. Stras:  Sure. No problem. Absolutely.

 

Prof. Eugene Volokh:  So first let me say one thing that I like in the First Amendment area is the relatively categorical tests. So for example, the libel law rules. One can question whether they’re sound, but they do set up guidelines that I think lower courts routinely enforce. There are thousands of such cases every year, probably, at the various levels of American courts.

 

So they routinely enforce them. They have a pretty decent sense, usually, of how they apply. There are sometimes questions about who’s a public figure and who’s not, but usually there emerges a good deal of case law in the jurisdiction on the subject, for example. So there’re certainly flaws with it, but I like that approach a lot better than having libel law cases turn each one on how you apply strict scrutiny, let’s say, or intermediate scrutiny, for that matter. So I think that there are real pluses to that kind of approach.

 

But then the question, as Nick points out, is what do you apply that to? You imagine a categorical approach that’s applied entirely on the face of the statute. So I’m not sure Nick would say that, but he might say the original meaning of the freedom of the press seemed to exclude libel even in state constitutions. Maybe the federal constitution was only meant as to Congress, but state constitutions talked about liberty of the press as well. Everybody understood that some sort of libel litigation is permissible. So maybe we’d have categorical rules as to that, but only on the face of the statute.

 

So what I want to ask Nick about, though, is what happens with regard to many statutes which are on their face speech neutral but can punish speech because of the persuasive or offensive or other such power of the speech? So one classic example were the World War I Era Espionage Act and cases where the -- Schenk and Debs, really, and Frohwerk, and some others as well, where the law on its face essentially said that it’s a crime to interfere with recruiting for the military.

 

And it had lots of permissible applications. If you chained yourself to the draft office, you’d be committing that crime. If you bombed the draft office, you’d be committing the crime. But also, if you said things that encouraged people not to show up for the draft, not to register for the draft, not to go fight, you’d also be committing the crime under the text of the statute.

 

So you might say, therefore, that it’s just constitutional because the law on its face doesn’t even mention speech. I think some such laws sometimes do mention it in passing as one of the things that’s restrictive. But you could certainly image a version of the law that doesn’t mention speech at all.

 

Or let’s say, for example, somebody is prosecuted for engaging in racist speech in a place where it might lead to violence. No, that doesn’t fit. Brandenburg does not solicit. It just might lead to violence. He’s prosecuted for disturbing the peace. And disturbing the peace statutes often are written in speech-neutral ways. They can certainly be written in speech-neutral ways.

 

They focus on effect. They may focus on intent, but they don’t focus on the means. They equally apply to disturbing the peace by throwing the rocks, disturbing the peace through fighting words, disturbing the peace through political advocacy and the like. Cohen v. California involved not the general prohibition on vulgarities or specifically prohibition on vulgarities; it involved a breach of the peace law. So there are lots of such laws out there.

 

Holder v. Humanitarian Project is actually another example, and it’s the case that most clearly talked about this and said that a law that is facially speech neutral is still treated as a speech restriction if it’s being applied to speech because of its content. I think that’s a wise approach, whether the consequence of that is to apply strict scrutiny or not, or perhaps to use some more categorial approach is a separate matter.

 

But it sounded to me like under Nick’s proposal, any such law would be constitutional. So the government could, for example, by banning conduct that leads to race discrimination also punish speech that supports race discrimination, pro-race discrimination speech. Would that be sound?

 

Prof. Nicholas Quinn Rosenkranz:  Thanks, Eugene. I have the luxury as a textualist academic of saying that if the results of the theory are bad, I don’t care. So Eugene, you can name lots of examples that will perhaps make me uncomfortable with their results, but I’m just not in that business. I’m trying to come up with the best reading of the Constitution. And if the results are unsatisfying, we should amend it. But if that’s what the text requires, it requires. I’m allowed to take that position as an academic espousing a theory; not so easy as a judge, obviously.

 

That said, though, I’m not sure that all the results are so crazy. So as you point out, viewpoint based is basically categorical as is. The Court says that it’s categorical. Content based is virtually categorical, right? There are very few cases that seem to come out the other way. And I think we could say the judicial candidate solicitation case just comes out wrong.

 

And Holder v. Humanitarian Law Project, as you point out, is maybe better analyzed as a speech-neutral law. And you’re right. It would be in the sort of Schenk/Debs kind of category. And it comes out the way it comes out, as do Schenk and Debs. They actually uphold the statutes.

 

And so, yeah, I think the key distinction that the Court should talk about more that we’re sort of dancing around is really speech neutral/non-speech neutral rather than content neutral/non-content neutral. You were worried, Eugene, about noise levels and things. But the noise level statute is really speech neutral, as long as the sort of car engine also can’t be that loud. Then it’s not a prohibition that is on its face about speech at all. So you’re still allowed to have rules like that.

 

And Ash, you say, “But surely we’re not going to overturn 200 years of common law?” But I say the exact point here is that that’s common law. That’s not actually legislative. It’s not actually Congress forbidding these things -- and that the First Amendment is expressly about what Congress can do, what legislatures can do. So maybe some of these results are crazy, but maybe actually not as crazy as they seem and actually surprisingly consistent with some of the doctrine.

 

Hon. David R. Stras:  All right. Thanks, Nick. Now, I’m going to take the moderator’s prerogative here, and even though I get to ask questions all day to litigants, I never get to ask the question that I’m about to ask which is, in the First Amendment context — and this is for anyone who wants to answer it — are we really doing law here?

 

And here’s the reason why I say that. So as Nick said, there is a disconnect between the tiers of scrutiny and the way the Court has interpreted the First Amendment. And then it seems to me — and many of you have brought this up — there’s two valuating steps in the First Amendment. One is what category are you in? Which tier are you in?

 

So for example, commercial speech is put in what we think is intermediate scrutiny category because it’s less valuable speech. So that’s sort of the valuating decision number one. How do we value the speech, and how do we view it?

 

And then number two — and I think Ash brought this up — which is when you get to compelling interest and you get to rational base, etc. -- there’s not a lot in rational basis in First Amendment, but when you get to that point, you’re making a valuating judgement about whether the interest that the government is trying to protect is really important enough to justify the restriction. And so are we really doing law? Is there some principled common law or textual basis for this? Or are we really, as judges and as courts, just making a series of value laden decisions along these steps? And I know that’s a very loaded question, but I throw it out to you.

 

Prof. Nicholas Quinn Rosenkranz:  Judge, I’ll just say of course I agree, and I think that’s an indictment of this rubric. And I’ll just suggest compare with the Fourth Amendment. So the First Amendment, I point out, restricts legislative action. The Fourth Amendment doesn’t. It restricts executive action, and it expressly invites judges to balance, in just that way, unreasonable searches and seizures.

 

So is a search at 3:00 p.m. more reasonable than a search at 3:00 a.m.? A judge gets to say yes. Is the government interest in searching for a single marijuana joint as great as the government interest in searching for nuclear bomb? Clearly not, but that’s just the sort of costs and benefits of whether a search is reasonable or unreasonable. The Fourth Amendment text invites you to do that balancing. And the First Amendment clearly doesn’t. The text of it is distinctly in contrast to that Fourth Amendment invitation of balance.

 

Hon. David R. Stras:  Others? Genevieve, I think you were anxious to give a response, too.

 

Prof. Genevieve Lakier:  Well, I did think it was interesting the opposition between value judgements and law. I think law inevitably involves value judgements.

 

Hon. David R. Stras:  It does.

 

Prof. Genevieve Lakier:  I presume that the question was why is it up to the judges to engage in these value judgement rather than the legislatures or the constitutional drafters. And I think you’re absolutely right that the modern First Amendment doctrine requires judges to be making value judgements all the time. And we could get away from that, but I think that means going back to the 18th and 19th century model, which is a majoritarian First Amendment rather than a counter-majoritarian First Amendment.

 

But that doesn’t just -- by the way, that doesn’t get out of the problem of value judging because what we see when we look at the 18th and 19th century experience is juries making those judgements in lieu of judges because, under the common law practices in speech cases, libel cases, blasphemy cases, what have you, it’s the jury that gets to decide whether the speech is actually causing harm to the order or not. And so we’re just moving it to a different agent. And also, by the way, we’re getting much less speech protected doctrine.

 

So I think we could have a much more coherent and consistent First Amendment doctrine. But as I said in my remarks, it would be a much, much, much, much, much, much, much weaker First Amendment. And so are we willing to go back to what Holmes and Brandeis rejected?

 

Hon. David R. Stras:  Anyone else? All right. If not, we will move on to questions from the audience, so please raise your hand if you have questions. And a warning ahead of time, please unmute your line if I call on you. I’m going to go ahead and call on Adam Griffin for the first question. And the one thing I will say is keep your questions short. We only have about 12 minutes left, so please keep your questions as short as possible. Go ahead.

 

Adam Griffin:  Thank you, Judge Stras, and thank you to the panelists for a great panel. My question is really for Professor Rosenkranz, but anybody can also answer. So I was wondering if Professor Rosenkranz -- if you’re saying that there could be no as-applied First Amendment violations, that everything would have to be facial, and that the executive cannot violate the First Amendment? So if the executive executes the law in a way that Congress could not facially legislate, that would not violate the First Amendment in your view? Thank you all again.

 

Prof. Nicholas Quinn Rosenkranz:  Thanks. Those are great questions. Yes, it does imply that there’s no such thing as an as-applied -- that there should be no such thing as an as-applied challenge under the First Amendment. And that’s really what follows from O’Brien, which is suggesting a balancing test for speech-neutral laws and a place in this tiers of scrutiny rubric.

 

But the truth is the statute always wins. The statute always wins under that kind of analysis. And it sort of always should for the same reason that religion-neutral laws survive in Employment Division v. Smith.

 

So yes, it does suggest that. And does it suggest that there’d be no challenges to executive action under the First Amendment? Yeah. It sure does suggest that, too. It says Congress shall make no law, so it doesn’t forbid what the Executive Branch does. And that may sound radical and alarming. But I want to suggest that it’s not as radical as it may seem.

 

Just as an example, we actually do put up with -- the President doesn’t have that much freestanding power to restrict speech. But to the extent he has freestanding power in, for example, the military context as Commander in Chief, we actually do put up with all kinds of speech restrictions that the President imposes on the troops, for example. And you ask in the final part of your question in quite a pointed way, what if the executive were to enforce it in a way that the legislature couldn’t have legislated it?

 

And there might well be a problem with that, but the problem wouldn’t be a First Amendment problem. It would be a Take Care Clause problem. So if the Congress passes a speech-neutral law and the executive, for example, enforces it only against people who criticize his policies or something, that sure might be a constitutional violation. But it would be a violation of the Take Care Clause, not a violation of the First Amendment.

 

Hon. David R. Stras:  All right. Unless anyone else wants to respond, we’ll move on to our next question, which is Maritza Bolano. And again, remember to please unmute your mic. Go ahead. Maritza? All right, we’ll have to move on.

 

      Our next question comes -- and I hope I can get this name right, Franciszek Longchamps. And again, please remember to unmute your mic. And do you have a question for the panelists?

 

Franciszek Longchamps:  Thank you very much. Thank you for the conference. I attend this from Poland where I teach in Krakow for freedom of speech and freedom of religion. And we use also American examples. There is a case mentioned today that is Reed v. Town of Gilbert. And I have problems with explaining this case to my students where you have 9-0 case that seems to be a very difficult because it seems obvious to the Supreme Court the result.

 

Even we have concurrence here, a very strong concurrence here. But reading an understanding of the statute of the Town of Gilbert in Arizona is completely different by the district court, the federal district court, and the Ninth Circuit, then obviously for Supreme Court as content based and not content neutral. We basically imagine that Supreme Court is rather more political than lower courts. But in this situation, it seems that more political in thinking about the local policy and signpost regulations is the court of appeals. Do you share this opinion?

 

Prof. Ashutosh Bhagwat:  I’m happy to take a shot at that. As I think you know, I find the Reed case incomprehensible. I think it’s important to recognize that the case, I think, was fairly poorly litigated by the counsel for the city. The lower court conclusion that the law was content neutral was not really convincing at all. It was stretching doctrine in all sorts of ways. There are reasons why they could have gone in that direction, but it did not make a whole lot of sense.

 

The Supreme Court’s conclusion that the law was content based, I think, was correct. My problem is with the conclusion that then therefore it is inevitably unconstitutional, which kind of reiterates what I’m saying. If the city lawyers had forthrightly argued, as I think they should have, that the reason we’re preferring political speech over nonpolitical speech is because it’s more important to democracy, it would have been interesting to see what the Court would have said in response to that. But they never made that argument.

 

Prof. Eugene Volokh:  So if I could just chime in because I think this is something I do disagree with Ash on, in part. I think that this is part of a, let’s say 1948 to 2018, so basically 70-year pattern of the Court declining to say that political speech is super protected above other kinds of speech. So I say 1948 because there’s a case called Winters v. New York in 1948 which involved a ban on certain -- I think they were like detective stories that depicted tawdry things in life, depicted sex and violence and all about crime, a lot about sex crimes.

 

And under state law, that was illegal. And the government’s defense is we’re not talking about political advocacy. We’re just talking about nasty entertainment. And the Court said entertainment is just as protected, in part because it’s very hard to draw the line between entertainment and political speech because we all know of entertainment that sends a political message.

 

So since then, while the Court has often said that political speech is on the highest rung of First Amendment protection, those are some wide rungs. The Court has made clear that other kinds of speech — not all, not false statements of fact, perhaps, not commercial speech — but scientific speech, religious speech — by the way, Reed involved religious speech — social commentary, artistic speech and the like are also fully protected.

 

And the rationale was that once you let the government draw the line, even if it says, “Oh, we’re making political speech super protected,” that will justify its making other kinds of speech less protected. And one of the strongest protections for various kinds of speech in the First Amendment context is the sense of required equal treatment, equal treatment of viewpoints especially strongly, but even equal treatment of subject matters, at least within this category of fully protected speech.

 

So maybe that’s a mistake when it comes to sign ordinances. Maybe you might say as to signs there’s just such a danger that if we allow it all there’s going to be all this clutter -- there’s going to be all this interference, clutter, all this interference with traffic. That’s bad, and you need to have -- at least allow the Court to distinguish political speech from, in this case, just describing events such as religious gatherings. But that’s something that the Court for a long time has been quite reluctant to do, and I think with good reason.

 

Prof. Genevieve Lakier:  Can I chime in and give my --

 

Hon. David R. Stras:  Anyone else?  Sure.

 

Prof. Genevieve Lakier:  Can I give my best account of why it was 9-0 in Reed? Because I think that the concurrence by Justice Kagan is the best account of what’s going on, and I don’t really like the majority opinion. Okay.

 

So I think the way to understand Reed is that there’s a fight going on about what counts as content neutral, what counts as content-based speech regulations. Is it going to be a facial test where any time there’s a content category on the face of the statute we’re going to treat it as content based and apply strict scrutiny? Or is it going to be, as the Supreme Court and lower courts had held in many cases for many years up until that point, that we’re going to look at whether the government is -- the purposes that the government is regulating the speech? Do the purposes have something to do with preventing -- with concerns about the harmful effect of the message, or are they completely irrelevant to that? And so that’s going to determine the tier of scrutiny.

 

What Justice Kagan says in her concurring opinion in Reed is that, “Look, we may think that this is a content-neutral regulation of speech.” There’s a big caveat here. But at least on its face, this looks like a content-neutral regulation of speech because, for all the reasons Eugene just mentioned, there’s lots of reasons to regulate signs that have nothing to do with the dislike of the content.

 

But even if we apply the relatively deferential intermediate scrutiny that we apply to content regulations of speech, the Town of Gilbert has really no justifications for the way its singling out religious messages or church messages by imposing really onerous restrictions on when they can put up signs and when they can put down signs that don’t apply to other kinds of speech. And that raises all kinds of concerns that actually what’s going on here is some kind of religious discrimination. And I will just say I think it’s interesting that this didn’t appear more in the opinion by the Supreme Court, but if you look at the history of the enactment of the ordinance, it looks very suspicious.

 

Originally, it just applied to churches. And then I think the Town of Gilbert recognizes that this is problematic, and so it broadens it and obscures what it’s doing. But I think there’s a lot of antireligious animus against this church behind the ordinance. So Kagan says, “Even if we treat this as content-neutral, this is still terrible,” because, as I noted earlier, there’s lots of reasons to think even when the government is regulating in a content-neutral fashion, its effects might be bad, or it might actually be using content neutrality as a pretext and be trying to target particular speakers.

 

And so on that basis, I think the holding in Reed is absolutely correct. A municipality should not be able to use content-neutral sign laws to hound particular churches and to prevent them from publicizing their messages. But the majority goes further than that, and it says because this sign law makes a subject matter distinction between religious and nonreligious speech, strict scrutiny automatically applies.

 

And although I agree completely that the viewpoint distinctions have for many decades now been treated as basically categorically forbidden except in particular categories like profession speech and other categories, but when we’re talking about public speech, viewpoint discrimination is very problematic. Subject matter distinctions had never had that same disfavored status. So the difficulty -- why Reed is a difficult case is the majority opinion seems to equate a law that makes subject matter distinctions to laws that make viewpoint distinctions when there is actually no necessity to do so to reach the correct holding in the case. I’ll stop there.

 

Hon. David R. Stras:  All right. Well, that’s going to have to be our last question because we’re butting up against -- in fact, it just turned 11:15. But I would really like to thank the panelists and all of you for joining us today.

 

      Just a reminder here that the next convention event, which is a discussion on “Freedom of Association in the Legal Profession,” will begin in 15 minutes, 12:30 Eastern Time. And again, thank you very much for joining us, and I hope you enjoy the rest of the convention. Thanks.

 

     

 

12:30 p.m. - 1:45 p.m.
Professional Responsibility & Legal Education: Freedom of Association in the Legal Profession

2020 National Lawyers Convention

Topics: Constitution • First Amendment • Professional Responsibility & Legal Education
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On November 10, 2020, The Federalist Society's Professional Responsibility & Legal Education Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The panel covered "Freedom of Association in the Legal Profession."

The Code of Judicial Conduct for federal judges and the Code of Judicial Conduct template for state judges, as modified by the States, both recognize the propriety of judges engaging in extrajudicial activities that are consistent with their role as judges, and counsel judges to avoid impropriety and the appearance of impropriety in those activities. The federal and state templates differ, at least in part, because federal and state judges are selected in different ways. Put simply, we do not want our judges to hide in an ivory tower, but we also want them to behave as judges when providing the benefit of their experience. And, while we want judges to interact with the bar and the public, lawyers must be aware on the limitations on such judicial contacts.  As a result, the notion of maintaining public confidence in the judiciary will be evaluated and enforced in different ways in each arena.

In January 2020, a draft advisory opinion from the Judicial Conference’s Committee on Codes of Conduct suggesting that federal judges ought not to be members of the Federalist Society or the American Constitution Society, but may be members of the American Bar Association, became public. That draft advisory opinion was based less on the actual activities of those organizations than on a belief that the public participation of judges in those organizations would further contribute to a public perception that judges are not non-partisan actors. The draft opinion was withdrawn, but its effects have lingered as lawyers, judges, law clerks, and law students have had to tiptoe around its implications.

This panel will consider some fundamental questions that swirl around the extrajudicial activities of judges, including those raised by the now withdrawn draft advisory opinion. For example, what are the core values that support the federal and state rules, and how do they differ? To the extent that we focus on public confidence in the judiciary, how should we evaluate it? Is public confidence in the judiciary capable of empirical evaluation or a matter of a priori judgment? Whose judgment matters: That of an average person? A reasonable person? A reasonable lawyer? A regulator applying one of those artificial constructs? What rules apply to a judge’s membership, holding office in, or participation in an organization, or writing and speaking?

Featuring:

  • Hon. Thomas B. Griffith, United States Court of Appeals, District of Columbia Circuit (ret.)
  • Mr. W. William Hodes, Owner and President, The William Hodes Law Firm
  • Hon. William H. Pryor Jr., United States Court of Appeals, Eleventh Circuit
  • Moderator: Hon. Gregory G. Katsas, United States Court of Appeals, District of Columbia Circuit

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

Event Transcript

Hon. Gregory Katsas:  Good afternoon, everyone. Thank you for joining us. I’m Greg Katsas. Our topic for this panel is the extent to which judges can or should participate in activities of legal organizations such as The Federalist Society. This question came to a head in January when the Committee on Codes of Conduct of the Judicial Conference circulated within the judiciary a draft advisory opinion concluding that the Code of Conduct prohibits federal judges from being members of The Federalist Society.

 

      As a long-time member of the Society, I became deeply concerned with the proposal, as did many other judges. Hundreds of judges wrote or joined letters opposing the proposed advisory opinion. Bill Pryor, Amul Thapar, Andy Oldham, and I drafted and organized one such letter. It was signed by over 200 judges. Many other judges submitted their own individual letters.

 

      The questions addressed by the draft opinion turn on three canons of the Code of Conduct for Federal Judges. Canon 4 generally permits judges to engage in law-related activities. And one of its subsections more specifically states that judges may become members or leaders of organizations devoted to law, the legal system, or the administration of justice.

 

      On the other hand, Canon 5 prohibits judges from becoming involved in the activities of political organizations, and Canon 1 requires judges to preserve the integrity and independence of the judiciary. The draft opinion addressed how these rules might apply to three prominent organizations, The Federalist Society, the American Constitution Society, and the American Bar Association. It implicates at least four different kinds of involvement: membership, leadership, financial support, and participating in the organization’s programs and activities.

     

      In past advisory opinions, the Committee had advised that judges could join the ABA and the ACS as members, that judges could not assume leadership positions in the ACS, and that judges could make financial contributions to The Federalist Society. The proposed opinion would have changed course, at least in part. It opined that judges could not join The Federalist Society or the ACS as members, that judges could join the ABA as members, and that judges still could participate in the programs of all of these groups.

 

      In July, the Committee withdrew its proposed opinion. The Committee reverted to its past guidance, and it urged judges to be vigilant in making individual judgements about what activities to engage in.

 

      We have a very distinguished panel to address all of these issues implicated by the draft, now withdrawn, opinion. Professor William Hodes is an Emeritus Professor at the Indiana University School of Law where he taught for more than two decades. His academic interests include administrative law, civil procedure, constitutional law, federal courts, and especially professional responsibility. He’s a co-author of a leading treatise on professional responsibility, The Law of Lawyering, which was first published in 1985. He was the co-reporter for the ABA Model Code of Judicial Conduct, which was adopted in 2007. Professor Hodes graduated from Harvard College and Rutgers Law School. Twenty-seven years after graduating from law school, he clerked on the Supreme Court for Justice Ruth Bader Ginsburg.

 

      Judge Tom Griffith served on the Court of Appeals for the D.C. Circuit from 2005 until September 2020. Judge Griffith graduated from Brigham Young University and the University of Virginia School of Law. He served as Legal Counsel to the United States Senate from 1995 to 1999 and as General Counsel of BYU from 2000 to 2005. As a judge, he taught courses at Brigham Young, Stanford, and Harvard Law Schools on subjects including presidential power, judicial process, and the role of Article III judges. Particularly relevant for this panel, Judge Griffith served as the D.C. Circuit’s representative on the Code of Conduct Committee until his retirement from the bench.

 

      Judge Bill Pryor is the Chief Judge of the Court of Appeals for the Eleventh Circuit. He graduated first in his class at Tulane where he served as Editor in Chief of the Tulane Law Review. He then served as a law clerk for Judge John Minor Wisdom of the Court of Appeals for the Fifth Circuit. He was Attorney General of Alabama from 1997 to 2004. From 2013 to 2018, he served on the U.S. Sentencing Commission and was its Acting Chairman from 2017 to 2018. He’s a member of the American Law Institute and an Adviser for the Restatement Third of Conflicts of Laws. He’s co-author of a leading treatise on judicial precedent. He’s published in leading law reviews, and he’s a visiting professor at the University of Alabama School of Law. And as I mentioned, he was involved with me and two others in drafting a letter opposing the draft advisory opinion.

 

      Without further ado, I will turn the floor over to Professor Hodes.

 

Prof. William Hodes:  Thank you very much, Judge. I’m going to provide somewhat of a backdrop to the further discussion about the opinion that was mentioned. The title of our panel is “Freedom of Association in the Legal Profession,” but you’ve already heard enough to know that our focus is really on judges, the freedom of association of judges. For example, I’m the only person on your screen who’s not a judge.

 

      The freedom of association of judges, in turn, is really shorthand for regulating or regulation of the extrajudicial activities of judges in their private and semiprivate, off-duty activities. And like so much in the law, this regulation is really a balancing act. On the one hand, it really is necessary to maintain the independence and impartiality of judges by removing them from direct participation in the hurly-burly of everyday politics, of everyday social strife of various kinds.

 

      But on the other hand, it’s important not only to avoid having judges completely isolated from the communities in which they work and live. That would be the essence of mystifying the law to make judges even more removed from the way they are sometimes perceived. And therefore, we not only don’t want to remove them completely from our communities, but it’s actually an important value that’s reflected in these codes to encourage judges to contribute to social discourse. But the caveat is always in ways that is doesn’t interfere with their judicial duties, which are, of course, their main event, one of the key being, of course, to avoid having judges involved in so many extrajudicial activities that they generate frequent and frequently successful motions to disqualify.

     

      Now, I should also add that this subject is important, I think, for the presumably large number of viewers and listeners who are lawyers rather than judges. And the reason for that is just as it is obvious that the restrictions, the very well known, well accepted restrictions on judges receiving ex parte communications instantly creates in lawyers a duty not to engage in those kinds of communications.

 

      All of the rules that we’re talking about here about restrictions on what judges can and cannot do in their extrajudicial activities create an obligation in lawyers to be aware of these and know how they’re interpreted so that lawyers won’t draw judges into inappropriate contact or dicey situations; for example, inviting judges to be the headline speaker at some kind of charitable fundraising event, inviting judges to be character witnesses, which is not allowed, and so on. The lawyers need to be aware of those as well.

 

      Now, as backdrop to the specific that you’ve heard is going to be discussed, I’ll note that just as almost all lawyers are subject to some version of the rules of lawyer ethics that are derived from the ABA Model Rules of Professional Responsibility, almost all state judges are governed, regulated by some version of the ABA Model Code of Judicial Conduct which was last fully revised in 2007, as Judge Katsas mentioned. And almost all federal judges are regulated by the Code of Conduct for United States Judges, which was not developed by the American Bar Association but was developed by the Judicial Conference of the United States.

     

      Now, the two judicial codes share most of their stated goals, most of their stated assumptions, and a lot but definitely not all of their language. The chief distinction between the two — and I think this may be important when you get into that detailed opinion later — the chief distinction between the two, aside from the fact that the federal code, for obvious reasons, has no regulations about judges campaigning for judicial office.

 

      And so the main difference is that when the code of the CJC, as it’s called, was revised, there was a deliberate move to mirror or mimic the lawyer codes in providing black-letter enforceable rules followed by comments, whereas the federal code maintains the stance of the old state code, which is it doesn’t have black-letter text as such. It has a series of canonical propositions, and they are typically stated almost exclusively in should, a judge should or a judge should not, whereas the ABA’s model code — the CJC for state judges — almost always in virtually every instance uses shall or shall not and, of course, has consequences for enforcement, for interpretation, and so on.

 

      Now, all of the codes, the lawyer codes and the two judicial codes, are all intended in the first instance for self-regulation, that lawyers and judges will talk to each other, will talk to themselves, and be guided by what is in there. But in addition, there are regulatory agencies that will enforce these when necessary. And in addition, there is a robust market for advisory opinions in all of those settings. They have more or less, as the case may be, bindingness or persuasive effect. They provide more or less, in some instances, of a safe harbor if an opinion says it’s permissible to do X or Y. Lawyers or judges can rely on that to greater or lesser extent.

 

      Now, I’m going to close and turn over to the specifics by flagging what I see are the two main land mines that arise in applying or interpreting or writing opinions about the two, these -- now focusing on the two judicial codes. First, I should say that it is really hard to fault the stated goals or the stated core assumptions underlying either the federal or the state judicial code with respect to judicial activities, at least as a general proposition.

 

      As I’ve already indicated, I think, the key to both is creating public confidence in what are referred to in the state code as the three Is — typically in the federal code, two of the Is — which is independence, integrity, and impartiality. And this, in turn, it is postulated, soon stated, creates -- if these are maintained, if the public maintains its confidence in the judiciary, this will create respect for and confidence in the rule of law generally.

 

      And that is why these provisions often form the backdrop for disqualification of judges. After all, what losing litigant, or his friends or his family in the community, could possibly have respect for a ruling from a judge who is a member of the board of trustees of the hospital or whoever it was who had just bested him in litigation?

 

      So those are all -- the necessity for these rules is clear, but there are these land mines, as I said. The first is how do we determine what it is, how the public will react? What does the public think about this or that activity? Are the rules drafters, the opinion writers, the regulators just projecting their own views about what is acceptable and what’s not acceptable and simply ascribing to that, “Well, if the public knew that, they would never have confidence in the legal system.” That’s a possibility.

 

      That cannot be an acceptable way to run a railroad. But neither can simply taking a poll of the public and say, well, what is it that most concerns you about judges, because I think -- and the same is true with lawyers. We might not find that the profession would be willing to countenance what it is that the public wants in that sense.

 

      Now, the test under the CJC, the state code, is usually stated as whether the three Is, quote, “might reasonably be questioned.” Now, that sounds like an objective standard. But who gets to set the reasonableness standard? By sharp contrast, the comparable test — and this is one of the main differences in language — the comparable test in the federal code is whether this or that would create in reasonable minds with knowledge of all of the relevant circumstances that a reasonable inquiry would disclose a perception of the judge’s ability to carry out judicial responsibilities with integrity and impartiality, and competence would be impaired. That is a huge difference, and I think you’ll see that reflected.

 

      The second one, just very quickly, is that both judicial codes permit more or less engagement with various organizations or extrajudicial activities, depending upon whether they are classified as purely political, chiefly in the electoral sense, at least in the CJC, or whether they are law related or not, including law related or non-law related charities, for example. The defining language was changed in the 2007 revision of the state code to these organizations or organizations that are concerned with the law, whereas in the federal code, it remains as it was in the state code, and that is that it deals with organizations who are concerned with improvements in the law. And to me, that is a huge difference, very, very loaded concepts.

     

      So I’ll conclude and just say that although, as I’ve said, there have to be, there must be rules in this area of putting some restrictions on judges, whether they’re elected or appointed, on their activities, the broad and necessarily somewhat vague ways in which they are stated and the resulting difficulties in interpretation and application create, unfortunately, opportunities for controversy, strife, and sometimes mischief.

 

      And that, of course, is my segue to the panel’s discussion of the exposure draft that was mentioned. And on that, as we said, Judge Tom Griffith is the lead-off here.

 

Hon. Thomas Griffith:  Thank you, Bill. And thanks for that very helpful background. I hope I’m not giving short shrift to your brilliant presentation to sum it up by saying it’s absolutely imperative -- and this is obvious, but it needs to be said. It’s absolutely imperative that the public have confidence in the impartiality of the judiciary. It just has to happen.

 

      Now, in some bad form, I’m going to quote myself as I begin this because I tried to make this point to the Senate Judiciary Committee in support of Justice Barrett’s confirmation hearings. I thought this is an audience that needs to be reminded of this. And so here’s what I said.

 

      “A recent survey found that over two-thirds of the American people believe that Supreme Court justices base their decisions primarily on the law and not on politics. In light of that, there is something deeply disturbing about much of the debate surrounding judicial nominations in our nation. Many political leaders and pundits assume that a judge will cast her vote based on partisan preference. Such explanations, typically made for short-term political gain, do much harm. They undermine public confidence in an independent judiciary, which is a cornerstone of the rule of law. The rule of law is a fragile possibility that should be more carefully safeguarded by our leaders.”

 

      Now, there weren’t many senators there that day. It was day four. I get it. But I felt that needed to be said. And now in even more poor form, I’m going to quote myself again in the final opinion I wrote serving as Judge Katsas’s colleague on the D.C. Circuit. And this was in the Flynn case. I wrote a concurring opinion. I’m just going to read one paragraph from it. Obviously, there was lots of attention paid to General Flynn’s circumstances, lots of commentary. And here’s what I was hoping was a contribution to the discussion.

 

      “In cases that attract public attention, it’s common for pundits and politicians to frame their commentary in a way that reduces the judicial process to little more than a skirmish in a partisan battle. The party affiliation of the President who appoints a judge becomes an explanation for the judge’s real reason for the disposition, and the legal reasoning employed is seen as a cover for the exercise of raw political power. No doubt, there will be some who will describe the court’s decision today in such terms, but they would be mistaken. There are two central issues in this case, both far removed from the partisan skirmishes of the day. The resolution of those questions involves nothing more and nothing less than the application of neutral principles about which reasonable jurists on the court disagree.”

 

      Okay, enough of quoting myself. I think the dispute over Advisory Opinion 117 of the Committee on Codes of Conduct is the result of two large forces at play in our nation’s political life that require constant evaluation and reevaluation of the proper scope of extrajudicial activities. I’m not a political scientist, but here’s my take on what’s changed. Why is it necessary to constantly reevaluate judge’s activities, in light of the principles that Bill Hodes explained so well to us?

 

      First of all, the expanding role of government regulation into every nook and cranny of American life has the effect of politicizing areas of activity never before thought to be partisan. So the first force at play, I believe, is the expanding role of politics because of the expanding role of government.

 

      Second, the judiciary has too frequently stepped outside its constitutional lane and played the role of policy maker. If judges are going to make political and not legal decisions, it’s only natural, it’s to be expected that they will face the type of scrutiny the electorate demands of its representatives. As Justice Breyer puts it, judges will then be seen as, quote, “the political junior varsity,” end of quote. We saw that troubling type of scrutiny in Justice Barrett’s confirmation hearings, which at times seemed like a referendum on the wisdom of the Affordable Care Act and not its constitutionality. Maybe in question and answer I’ll come back to another point that I think is particularly important for those of us in The Federalist Society.

 

      Now, about proposed Advisory Opinion 117, I was in the room where it happened. And I want to tell you from my perspective, it was not an effort by partisans to thwart the work of The Federalist Society. I was opposed to 117, and yet, in my view, 117 was a good faith wrestle with a new circumstance that’s brought about by those two forces that I referred to. It was a reaction by the Committee. It was not an initiative. It was a reaction to persistent questions over the years from various judges around the nation. The Committee put off those questions for a number of years, but then decided that those questions merited study and a recommendation.

     

      Now, a point of clarification. Judge Katsas mentioned this at the outset, but I want to double down on it because I think there’s, at least in the media reporting that I saw, I think there was some misunderstanding about this. The proposed recommendation was not a recommendation that judges not participate in events like we’re participating in right now. It recognized that that’s valid and important and was not a recommendation that judges not participate in those events. The recommendation involved membership and leadership alone.

 

      As the Committee undertook its study of The Federalist Society and the ACS, the American Constitution Society, it was apparent from my vantage point that many members of the Committee were unfamiliar with these organizations and their aims and their operations. So there was actually a long education process that took place over many months and with much discussion and input from all members of the Committee, some of us who had long been affiliated with The Federalist Society. So maybe you can say we didn’t do our part. Maybe we didn’t make it clear — I think we did — but maybe we didn’t make it clear how unique The Federalist Society was.

 

      From that discussion, it was understood that the ABA was, in fact, involved in political matters. That’s obvious. That was one of the reasons I resigned my membership from the ABA many, many, many years ago. But many members of the Committee were persuaded that a judge could insulate herself from those ABA matters by joining the judge’s section, which took no part in making those policy judgements and recommendations.

 

      It was also understood that The Federalist Society and the American Constitution Society have very different models. It was understood that the ACS is actually involved in political matters. Their website announces that. They support certain judicial nominations and legislation. And of course, The Federalist Society does neither. I think that was understood.

 

      From my perspective, it is just hard for some of us to convince many members of the Committee that The Federalist Society was not involved in partisan matters because of the media reports in two ways. First, the media reported that officers of The Federalist Society were deeply involved in the Trump administration’s strategy for judicial nominations. And the point was made that they were acting in their individual capacity, not as officers of The Federalist Society. That didn’t seem to be persuasive to my colleagues.

 

      The other media report that hurt was -- that undermined the argument that The Federalist Society was not partisan was the coverage of such events such as Justice Gorsuch’s speech at the National Convention a couple of years ago. And the media reporting of that portrayed it as partisan.

 

      So is a heckler’s veto at work here? Perhaps there’s some element of that. But from what I could tell from, again, being in the room, it was those media reports tying The Federalist Society to the Trump administration that led to the proposed advisory opinion that you saw that garnered so much controversy. It was withdrawn and defeated. And bravo, bravo. I think the world of my colleagues who had different views on the matter than I did.

 

      I think — this is my surmise — I think that when the proposed advisory opinion was issued that they underestimated how this advisory opinion, if it became binding, how it would be used by partisans on both sides, particularly in future confirmation battles, that it could be used as a cudgel against nominees, either from a Republican White House or a Democratic White House. And from what I could tell, when it became clear that that was the case, I think that had a lot to do with the Committee’s overwhelming decision to withdraw the opinion.

 

      So with that description, I will turn the time over to Judge Bill Pryor.

 

Hon. William Pryor:  Thanks, Tom. I’m pleased to talk about this topic and explain why Judge Katsas and I and hundreds of other judges successfully urged the Codes of Conduct Committee to withdraw Advisory Opinion No. 117 and to table further consideration of it. The exposure draft of that advisory opinion conflicted with the Code of Conduct for United States Judges, it reflected a misunderstanding of The Federalist Society, and it applied a double standard that raised serious constitutional concerns.

 

      Let’s start with the first principles. Federal judges are not hermits, and the Code of Conduct does not require them to be. And lawyers and the American people should not want them to be. The commentary to Canon 4 states that judges should not become isolated from the society in which they live. And Canon 4 allows judges to serve as members, even officers of non-profit organizations devoted to the law, the legal system, or the administration of justice. Judges are encouraged to teach and lecture and to publish scholarship. The commentary to Canon 4 also encourages judges to contribute to the law through membership in a bar association, judicial conference, or other organization dedicated to the law, including those focused on revising substantive and procedural law.

 

      The Committee previously recognized that federal judges may join and donate to both the American Constitution Society and The Federalist Society. What changed? The exposure draft alleged that The Federalist Society advocates for factional policy positions instead of general improvement of the law. And the draft asserted that the public would view judges holding membership in the Society to hold, advocate, and serve conservative interest. The draft also stated that membership in the Society implicated the broad prohibition of political activity in Canon 5.

 

      This was all nonsense. The most that the Committee could offer as proof that The Federalist Society promotes policy positions is that it describes itself as a group of conservative and libertarians dedicated to reforming the current legal order, and that it promotes appreciation for the role of separation of powers, federalism, limited constitutional government, and the rule of law in protecting individual freedom and traditional values.

 

      But these principles lie at the foundation of the American constitutional order that federal judges are sworn to support and defend. The draft could not identify a single policy position taken by The Federalist Society which has never lobbied a policy making body, filed an amicus brief, or otherwise advocated any policy change. Instead of taking specific legal or policy positions, The Federalist Society encourages open, informed, and robust debate about legal topics. Every current member of the Supreme Court, even before the three most recent appointees joined it, has participated in at least one Federalist Society event, as have hundreds of current and former federal judges and a wide range of legal scholars and attorneys.

 

      The Committee has approved, and rightly so, judicial membership in organizations that advocate far more specific legal positions. For example, it has approved membership in the American Law Institute, which seeks to clarify, modernize, and otherwise improve the law. The Institute, to which I proudly belong, publishes restatements of the law and model codes and advocates detailed changes to many areas of law. And federal judges are regularly involved in all aspects of its work.

 

      The exposure draft misunderstood some statements and activities by individual leaders of The Federalist Society, most notably, perhaps, by Professor Steven Calabresi or by now co-chairman Leonard Leo to represent official positions of the Society. But when, for example, Professor Calabresi speaks, he does so for himself. And sometimes, other members of The Federalist Society strongly disagree with him.

 

      I have some experience with this. For example, in 2017, Professor Calabresi advocated increasing the size of the inferior courts, and I published an op-ed in The New York Times that strongly disagreed with his proposal. The same is true for the statements of leaders of other law-related organizations that judges may join. For example, when the president of the American Law Institute speaks, he or she ordinarily does so for himself. I have challenged some of those statements in public lectures, and when I did so, I spoke for myself.

 

      The exposure draft also created a double standard. The draft would have continued to permit judges to belong to the American Bar Association, but the ABA, of course, takes positions on many policy questions. It has filed more than 100 amicus briefs in cases about political issues such as abortion, affirmative action, gay right, immigration, and gun control, and it routinely lobbies Congress. The same is true for many specialty bar associations.

 

      The exposure draft used a novel, evolving public perception standard to say that a reasonable and informed public would view judges holding membership in The Federalist Society and the American Constitution Society to hold, advocate, or serve liberal or conservative interests. But it then blessed membership in the ABA because that organization, as opposed to a reasonable and informed member of the public, considers itself to be non-partisan. So the exposure draft applied its novel standard to The Federalist Society but did not apply it to the ABA, even though its activities are far more political.

 

      The evolving public perception standard requires either a host of discriminatory applications or sweeping and untenable prohibitions. For example, federal judges regularly teach at law schools. But law schools frequently litigate to advance specific legal positions, either directly or through their clinics. If the public comes to perceive certain law schools as liberal or conservative, must judges resign their posts as law professors?

 

      Surely, judges too can be members of churches, temples, and mosques. To suggest otherwise would raise serious constitutional questions. But the evolving public perception standard would logically prohibit membership in any church, temple, or mosque that takes a policy position on topics like abortion, capital punishment, gay rights, and climate change.

 

      The exposure draft also committed a fundamental error when it conflated judicial philosophy with politics. Judges may properly, and long have, identified themselves as proponents of certain judicial philosophies such as judicial restraint, textualism, living constitutionalism, and pragmatism. Jurisprudential views are not the same as political views. The Code of Conduct uses the term political narrowly. Canon 5 makes clear that the political activities it prohibits involve the work of political parties and candidates for elected office. Judges may write and speak about jurisprudential views and join and participate in the activities of law-related organizations associated with those views.

 

      As troubling as the exposure draft was, I’m pleased that it was debated, denounced, and withdrawn. Judges appointed by every administration from President Nixon to the present signed our letter opposing the exposure draft. And many of those judges were not members of The Federalist Society. We owe a debt of gratitude to Judge Erickson, the Chair of the Codes of Conduct Committee, for seeking comments about the draft. And the Committee should be applauded for tabling the draft by, I’m told, a wide margin. The Committee was right to respect the hundreds of federal judges who have concluded that the Code does not prohibit membership in this organization with which I have been associated for more than 35 years.

 

      That’s all I have to say for now before I turn the panel back over to our moderator, Judge Katsas.

 

Hon. Gregory Katsas:  Thank you, Bill. Let me invite all of the panelists to take two or three minutes if they wish to respond to comments of their co-panelists. Professor Hodes?

 

Prof. William Hodes:  Yeah, just very quickly, I had one comment with respect to each of my colleagues that dovetail nicely with what I was saying. I agree very much with what Judge Griffith said that on the face of it, the opinion, although wrong-headed and caused mischief, as I said in conclusion, proceeded, as far as I can tell, from applying those quite proper principles and core assumptions. But the main thing is they just got the facts wrong. When they talked about taking positions and trying to make a distinction between the ABA and The Federalist Society, they got it exactly backwards, which is exactly Judge Pryor’s point as well. And so I think all of those comments go together.

 

      And then as a second follow up, I thought it was interesting when Judge Pryor also focused on exactly which kinds of groups it is we are going to either allow or even encourage people to join, judges to join. There was this distinction between political on the one hand and the other — that is fairly easy to see — but then this sub-gradation of organizations that are concerned with the improvement of the law.

 

      Now, there are both in the opinion and in various places in the comments sometimes that little tag phrase that I noted when I was talking about the land mines, sometimes included and sometimes it didn’t include the idea about improvements in the law as opposed to just concern with the law or concern with the administration of justice. And I’ve always thought that a good example of that is, as Judge Pryor mentioned, that the ABA has taken lots of positions on some things. And my recollection is that several years ago, the ABA lost a lot of members when it took a formal position, not just in an amicus brief, but in a formal position on opposing the death penalty.

 

      And my question always was, well, if we did away with the death penalty, would that be an improvement or not an improvement in the law? Some people say one thing, and some say the other. You can’t make that the subject of a rule of ethics if that’s your definition of what, quote, an “improvement” is. That’s the substantive law that lawyers and judges of goodwill and litigants are going to fight about.

 

Hon. Gregory Katsas:  Judge Griffith?

 

Hon. Thomas Griffith:  Yeah, so I want to associate myself with everything Judge Pryor said. Bill, that was brilliant. I think the process actually worked well because of the debate it spawned, because of the outpouring of commentary which was excellent commentary.

 

      Because I opposed 117, it’s going to sound a little bit strange to defend one aspect. And I’m not defending the aspect of it, but so much that the members of the Committee did seem to think that the judge’s section of the ABA was something of a safe harbor that would allow a judge to be a part of the ABA and remove herself from the overtly political activities of the ABA. Again, that wasn’t particularly persuasive to me, but I think that’s a reasonable argument.

 

      So to me, here’s the tough issue. And you spotted it. Because the public perception is so vital to maintain the role of the judiciary, what do we do when there’s this persistent narrative that’s coming from The New York Times and other places that has identified The Federalist Society as partisan? So to me, it’s not so much a legal issue. I think the legal analysis that you offered is perfect, and I agree with it. And I tried to make that point to my colleagues.

 

      But to me, it almost comes down to sort of a prudential issue. And I’m not certain exactly what to do about that except to realize that there is a burden that we have to carry to make certain that we don’t give our opponents cudgels to use against us easily. And I’m not suggesting that’s what happened here because, again, I’m not going to give into the heckler’s veto. I’m not going to give into that. But I just will report to you that it was those sorts of media reports that influenced a lot of the thinking of good, careful judges who were really concerned about this issue of how do we preserve public confidence in the impartiality of the judiciary.

 

      And so while this issue, 117, is dead and tabled and gone, the larger issue, I think, remains. In a time when everything has become politicized, what should a judge do to make certain that she does not create doubt in the minds of the public as to her impartiality? And so that’s the challenge. And I don’t have the answer to it, but I think it’s an ongoing challenge. And I think it’s an important one.

 

Hon. William Pryor:  I think the problem for the Committee, though, was that it allowed factional interests to define organizations instead of looking at it the way judges are supposed to look at it objectively. And if the concern is one about how a reasonable member of the public would perceive these organizations, a reasonable member of the public is one who knows all the facts and knows what is a partisan characterization, what is spin, what is fake news, if you want to call it that, and what is not. And that was one of the fundamental problems, I think, fundamental errors that the Committee committed in that draft.

 

      So what The New York Times says is one thing, perhaps, to be considered, but it’s not -- it can’t define what The Federalist Society is. And to a large degree, the Committee then saw its own error when it was evaluating membership in the ABA and the separate division for judges. It recognized what the ABA had set up and what all the actual facts were surrounding that. I’m not condemning membership in that part of the American Bar Association, and I think there are good arguments for judges being able to do that. But they weren’t applying the same standard to both organizations.

 

Hon. Thomas Griffith:  So one thought, and then we’ll get to questions and answers. I know we want to do that. But I don’t think I’m oversimplifying things to say there’s sort of two narratives that have developed about what was going on in the Code of Conduct Committee. And one of the narratives is that it was a partisan effort by forces outside the Committee to take on The Federalist Society. And if that was, in fact, the case, then it really wouldn’t matter what the members of the Committee thought about public perception.

 

      There’s another narrative, and what I’m trying to represent is the other narrative, from what I could see. And that is that that actually was not what was going on, that it was grappling with a novel issue created, again, by these new forces. And if I’m right about that — and I may not be right — if I’m right about that, I think it is instructive that a group of -- I don’t even remember how many members of the Committee we have, 14, 15 members of the Committee could look at this and in the first instance, despite arguments to the contrary, conclude that The Federalist Society was a little too cozy with the Trump administration. That’s something we ought to take into account.

 

      Now, if it was just partisans going after The Federalist Society, who cares what they think? But I don't think that’s what was going on. So I think if there’s anything we -- there’s a lot we can take away from this experience. One of them is I think there is a burden on us who are associated with The Federalist Society to bend over backwards to avoid creating those appearances. And only we can decide whether we do that. But I do think in the court of public opinion, in the court of public perception, we do have a burden that I think we ought to take on, and maybe we can do a little better there. I don't know.

 

Hon. Gregory Katsas:  Let me put one question on the table before we go to the audience, which is, Bill, we distinguished between organizations that take positions on very specific partisan or policy issues like the ABA — you name it, death penalty, affirmative action, gay rights, they’re in everything — versus organizations like The Federalist Society which take positions on things that seem either much more general or much more methodological, so supporting originalism, separation of powers, the American founding, whatever.

 

      Society’s pretty contentious right now, and there are a lot of things that might have seemed like once upon a time they were common ground among all of us. Are we ever going to get to a point with -- you have so many people tearing down statues of Thomas Jefferson that being pro-American founding starts to look more like taking a position on a contested issue. And what’s the right answer on that?

 

Hon. William Pryor:  You’re right. To a large degree, the polarization and increasing partisanship do make what were in previous generations perhaps common or consensus views seem more divisive. But at the end of the day, federal judges are still sworn to uphold the Constitution of the United States and the laws and treaties of the United States. And that reflects a particular legal tradition and constitutional order which are absolutely the stuff that The Federalist Society has promoted and continues to promote from day one.

 

      Let’s look at how the organization named itself. It named itself after the proponents of the United States Constitution. It chose as its logo a silhouette of the bust of James Madison, the founder who is often called the Father of the Constitution. If federal judges can’t do that, then at what point does everything about the oath itself, the judicial oath, become partisan and political?

 

      I take Tom’s point about the Society having an obligation to maintain its mission and to not become embroiled in politics. But by the same token, the Society has, from its earliest days, invited and heard speeches from presidents of the United States. I remember when President Reagan spoke at what I think was the very first Lawyers Convention at the Mayflower in Washington. I remember President George W. Bush speaking to the Society at Union Station.

 

      I’m sure that the Society would welcome speeches, really, by any American President. It’s had speeches by cabinet officers of at least virtually every administration I can remember since the founding of The Federalist Society, so long as those speeches and events are focused on the mission of the Society and the topics that it regularly debates and speaks about.

 

Hon. Gregory Katsas:  Okay. We have a little more than 15 minutes left, so let’s go to questions. If I’m doing this right, I will recognize Mr. Carl for a question.

 

Mr. Carl:  Can you hear me?

 

Hon. William Pryor:  Yes.

 

Mr. Carl:  Okay. Mr. Griffith mentioned that public perception might be an important thing to consider in determining what judges should do. And then he mentioned The New York Times. And all of a sudden, I thought we’ve got a problem here because if The New York Times and The Washington Post, for example, consistently write articles or suggest that The Federalist Society is an advocacy group or is unabashedly conservative, doesn’t that create the problem that the public has a perception, and therefore, judges need to get out? Are we going to leave that to the newspapers?

 

Hon. Gregory Katsas:  Great question, and that’s the heckler’s veto question. So who wants to handle it?

 

Hon. Thomas Griffith:  I raised the point. I think you’re right. That’s part of the challenge here. And that is a heckler’s veto, and we can’t let the editorial board of The New York Times decide the standards by which we live.

 

      All I’m offering is that’s part of the reality of it. It’s a prudential question. It is important that the public perceive the judiciary to be impartial and independent. And so we need to do all that we can to make that point. And I’m telling you, from my perspective as one who was in the room, what, at least in the first go around, what was persuasive to many of my colleagues was the consistent reporting that The Federalist Society was deeply involved in the selection and nomination and confirmation of Trump administration judges. That was the story that seemed to be persuasive.

 

Hon. William Pryor:  So individual members of the Society engaged in those kinds of activities, not on behalf of the Society, but on behalf of themselves. But it was okay for the Committee to bless membership in the ABA, which has the standing committee on the federal judiciary that has rated federal judges for half a century or more?

 

Hon. Thomas Griffith:  I’m not going to defend it. I voted against it and I worked against it. But I’m telling you, that was the, from what I could tell, that was the dynamic. And so now, what do we do with that? Maybe we just reject it. I think we can learn from it. I think maybe there are things that we can do to diminish that perception.

 

Hon. William Pryor:  You agree with the questioner, though. We can’t let the newspapers define it. Partisan newspapers are not a new phenomenon in American history. They were every bit as partisan if not more so at the time of the founding itself.

 

Hon. Thomas Griffith:  I hope I made myself clear. Maybe I didn’t. We can’t allow a heckler’s veto to work here, but neither can we disregard the views of many people that we are partisan. And so what do we do -- the question is, what do we do about that? Is there anything we can do about it? One thing we don’t do is compromise our principles. But are there things around the edges that we can do? Because I’ll tell you, I made the argument, though. These are individual officers acting. This is not The Federalist Society. And that seemed not to be believed.

 

Hon. Gregory Katsas:  I’ll just add one more comment from the perspective --

 

Hon. William Pryor:  -- I think Bill wanted to say something.

 

Hon. Gregory Katsas:  Oh, I’m sorry. Go ahead.

 

Prof. William Hodes:  Yeah, I just wanted to say that this concrete example, I think, brings back into focus that difference in language in the state versus the federal code that I mentioned before. And I want to give it again, and the federal code being much better in this aspect, does give some room to hold people’s feet to the fire.

 

      The standard in the state code -- and there was a huge argument, by the way, during the drafting of that as to whether we shouldn’t go to the federal language. But the state CJC language is, in testing out all of the public perception is, in disqualification of other areas, whether something or other might reasonably be questioned, impartiality, conflict of interest, disqualification, might reasonably be questioned. The federal standard is whether the same this or that would create in reasonable minds not only with knowledge of all the relevant circumstances a knowledge of the relevant circumstances that a reasonable inquiry would disclose.

 

      And so I think one way of pushing back on this, especially when you’re operating in the federal realm, is did you make -- where is your reasonable inquiry? Why are you accepting, whether it’s The New York Times or anybody else, this perception that such and such happened? Tell me the circumstances, tell me what you did to find out what the circumstances were, and use that to advantage.

 

Hon. Gregory Katsas:  Let’s take another question. Judge Readler? Chad?

 

Hon. William Pryor:  He may be muted.

 

Hon. Gregory Katsas:  Can we get Chad Readler unmuted?

 

Hon. Chad Readler:  Yeah. Judge Katsas, thank you very much. I wanted to say to Judge Griffith congratulations on your terrific service to the bench. Thank you for your many years of service and best of luck with your future endeavors.

 

Hon. Thomas Griffith:  Thank you.

 

Hon. Chad Readler:  I joined the letter that Judges Pryor and Katsas and others put together because I was really worried about the slippery slope problem here. Judge Griffith, you noted that the proposal was targeted only at membership in the organizations, and that may have been the case. But I did worry that once that marker was laid, that with the camel’s nose under the tent, that the next effort is to limit some kind of participation in certain types of Federalist Society events or ABA events or other events.

 

      And I thought it important to leave some room for judges to operate outside of their core legal work. You acknowledged that concern too. And so my main concern was ensuring that judges are able to participate in society as much as possible. I’m realizing that there are limitations, but I was concerned about the next step in the process. And I don't know if there were any discussions regarding that point. But thank you again for this great panel.

 

Hon. Thomas Griffith:  There was never any discussion that I recall that would have gone so far as to limit participation. That just wasn’t part of it.

 

Hon. William Pryor:  Well, tell me this. What about the notion that it’s okay for judges to participate in the activities of a law-related organization like The Federalist Society, but it’s somehow improper to belong to it? It’s hard for me to understand what the basis for that distinction would be.

 

Hon. Thomas Griffith:  Again, you’re putting me in a position where I have to defend something I disagree with.

 

Hon. William Pryor:  I understand. I’m just asking was there discussion on that.

 

Hon. Thomas Griffith:  I’ll try and represent the thinking as best I can. It was thinking that I disagreed with, but I think it was -- again, my primary objective today is to push back on the narrative that there was something nefarious and partisan going on because I’ll die on that hill. But I think there was something mistaken going on, but it wasn’t nefarious.

 

      I think the thinking was that membership is embracing a set of ideals that I think the Committee mistakenly misunderstood the difference between a judicial philosophy and a partisan point of view, whereas participation is -- I think everyone was aware that on Federalist Society panels, there are all sorts of views presented and that you’re not necessarily endorsing the ultimate aims of the Society. You’re just participating in a panel. I think that was the thinking there.

 

      And let me say, Bill Hodes made an excellent point that underscores something that Judge Pryor was saying. The law is on the side of the status quo that we have now. And that’s not -- my point is a different point.

 

      My point is, okay, the law is, I think, pretty clear on this. But there’s another battle -- I hate to use the warrior mentality, but there’s another battle going on here, and that’s for the public perception. And I think we need to wage that war. And I don't think we do it successfully just by patting ourselves on the back and saying we’re great guys, we’re doing wonderful things, great men and women. I think we need to wade into the public sphere and carry on that discussion there. And it’s almost entirely an educational matter because I think there’s a lot of misperception about what’s going on out there.

 

Hon. Gregory Katsas:  All right, next question. Michael Rossman?

 

Michael Rossman:  Can you hear me?

 

Hon. Gregory Katsas:  Yes. Go ahead.

 

Michael Rossman:  Great. Thank you, Judge. So I think it was mentioned earlier that unlike The Federalist Society, the ACS does take political positions. Is it possible that the draft opinion was wrong about The Federalist Society but right about the ACS? And in our rush to condemn the opinion, did we overlook that?

 

Hon. William Pryor:  Well, I think the problem with that is if it was right about ACS, then it was also wrong about the ABA. And I think -- I’m not an expert about the activities of ACS. I’m familiar with some of its activities and have looked at it and certainly considered it when we were working on our letter.

 

      But I think it’d be pretty hard to argue that it is anywhere near as political as the American Bar Association, which takes far more specific positions on just a host of policy positions than ACS. And so far as I know, what ACS really focuses on are perhaps more specific policy positions about contested issues than The Federalist Society, but it seems always to be about the law and the judiciary.

 

Hon. Thomas Griffith:  As I understand it, ACS takes positions on judicial nominations, supports or opposes.

 

      And so Bill, can I ask you -- so on the ABA, what do you do with the judge’s section argument? Because that was the prevailing argument, as I recall, on the Committee, that the ABA --

 

Hon. William Pryor:  -- I guess I’m in the position that you are in in that I resigned from the American Bar Association many years ago too. And I do think that it’s problematic, but I think there are pretty good arguments for why a reasonable observer would perceive the participation in the judicial division as insulated and different and would not raise questions for judges.

 

Hon. Gregory Katsas:  Tom, do you really think that all of your colleagues who put out this letter would have said everything is fine and dandy if the FedSoc just tells judges that they have a separate membership category?

 

Hon. Thomas Griffith:  Are you asking what I think the Committee would have done? Or maybe I didn’t understand the question.

 

Hon. Gregory Katsas:  Yeah. So FedSoc creates a separate membership category for judges. Problem solved, on their reasoning, or not?

 

Hon. Thomas Griffith:  Based on the reasoning of the draft opinion, you would think that.

 

Hon. Gregory Katsas:  You would. But based on the optics of it and the hand-wringing of it, as to FedSoc, I’m not sure.

 

Prof. William Hodes:  Yeah, I was going to say when this was just raised when I first read the opinion, I thought that caveat was the weakest part of the opinion because exactly as Judge Katsas says, any organization, you could just simply create this and say, “Never mind. Don’t look over here.” But you haven’t changed its form over substance in a big, big way. So I think that didn’t really do the opinion any favors by making it turn on something that is really just a matter of putting an extra star on your membership card.

 

Hon. William Pryor:  Well, and as I understand it, a member of the Committee just happened to be the Chair of the Judicial Division of the American Bar Association, if we’re talking about perceptions.

 

Hon. Thomas Griffith:  Yeah, I think there was more to it than that. Bill Hodes, as I recall — and whenever I say, “I recall,” that’s a red flag — but as I recall, the ABA forbade judges from being part of their House delegate assemblies or whatever the policymaking branch is. But a judge could not be part of the policymaking branch. So they tried to insulate judges in that way. They’re a separate section, and they also have no say in making the decisions about these highly political issues.

 

Prof. William Hodes:  That’s a fair comment. I didn’t recall that, but I’m sure you’re right.

 

Hon. Gregory Katsas:  All right. We probably have time for one more question, so Nathan N.?

 

Nathan N.:  Hello. Can you hear me?

 

Hon. Gregory Katsas:  Yes. Go ahead.

 

Nathan N.:  So it’s a great panel. I have a couple of questions or thoughts I’d be curious to get your reaction to. I’m not sure that a judge being a member of The Federalist Society or the ACS tells you very much that you wouldn’t know just by the party of the President who appointed them came from. It’s hardly a man-bites-dog situation for a Republican President to remember a judge who is a member of The Federalist Society or, broadly speaking, has those types of views. So I’m not certain why a judge’s membership in such organization tells you something that you wouldn’t kind of assume to be the case in most situations.

 

      And then, relatedly, to the extend that it does give you additional information, I’m wondering why that’s such a bad thing. Judges are obviously human. They obviously have a prior, so to speak. And why -- maybe I’m just fighting in the hypothetical, but why wouldn’t we want to know more about the judge’s philosophical leanings and so on and so forth?

 

Hon. William Pryor:  Who wants to respond?

 

Hon. Gregory Katsas:  Anyone?

 

Hon. William Pryor:  I don't know how much presidential appointment really tells you. I think that the media focuses on it. Judge Easterbrook and Judge Posner were both appointed by the same President, and they were both involved in the early development of The Federalist Society. Their jurisprudential views, though, are very, very different. And of course, The Federalist Society has always been a forum for the expression of very different ideas about the law. So I don't know that either one tells you that much.

 

Hon. Gregory Katsas:  Anybody else? Okay, we are out of time. I’m told we really have to finish on time to make sure the next panel can get started on time. The next panel will be “Regulating Social Media.” It will begin at 2:00. And with that, let me thank all of our panelists for a very interesting discussion. Thank you very much.

 

Prof. William Hodes:  Thank you.

 

     

2:00 p.m. - 3:30 p.m.
Corporations, Securities & Antitrust and Telecommunications & Electronic Media: Regulating Social Media

2020 National Lawyers Convention

Topics: Corporations, Securities & Antitrust • Culture • Telecommunications & Electronic Media
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On November 10, 2020, The Federalist Society's Corporations, Securities & Antitrust and Telecommunications & Electronic Media Practice Groups co-hosted a virtual panel for the 2020 National Lawyers Convention. The panel discussed "Regulating Social Media."

Federal statutes, like the Communications Decency Act (and its Section 230), as well as more federal common-law disciplines, like antitrust laws, have played a role in the development and evolution of modern technology and online platforms we use every day. What role will or should federal law play in protecting future innovation, growth, and competition in today’s fast-changing online era in which massive data sets are the most precious commodity, the next generation of innovators are often acquired before they turn their first profit, and online ecosystems often have the freedom to make their own rules? In light of recent public policy debates and investigations by federal and state antitrust enforcers, this panel takes stock of where communications and antitrust law stand and where they may go following the 2020 elections.

Featuring:

  • Hon. Brendan Carr, Commissioner, Federal Communications Commission
  • Mr. Harold Feld, Senior Vice President, Public Knowledge
  • Ms. Kathleen Ham, Senior Vice President, Government Affairs, T-Mobile 
  • Hon. Christine Wilson, Commissioner, Federal Trade Commission
  • Moderator: Hon. Duane Benton, United States Court of Appeals, Eighth Circuit

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

Event Transcript

Hon. Duane Benton:  Thank you for joining The Federalist Society panel, "Regulating Social Media." It's hosted by two practice groups: Corporations, Securities & Antitrust and Telecommunications & Electronic Media.

 

      I'm Duane Benton, a Judge on the Eighth Circuit. I'll be the Moderator. This panel will discuss regulating the biggest companies in the technology space, including the internet service providers that connect all of us and the near ubiquitous social media platforms.

     

      This is a pivotal point in communications and antitrust. American Edge companies, Amazon, Google, Facebook, Microsoft, are the world's most recognizable and profitable. They produce massive consumer benefits, one click, our favorite products appear on the porch. Another click or two, endless knowledge in comparable search engines. And with software, we can, like today, easily connect with old friends, family, colleagues, courts, no matter how far away we are.

     

      The issue: how to regulate these companies in the underlying physical networks to accommodate, protecting consumers, promoting innovation, encouraging competition. The Department of Justice recently sued Google for "unlawfully maintaining monopolies in the markets for general search services, search advertising, and general search text advertising."

 

      Platforms like Twitter and Facebook are the primary source of information for many, many Americans, enabling us to freely create and share contents with billions of people. With easy communication comes liability concerns. These platforms have a limited shield from liability under Section 230 of the Communications Decency Act of 1996. There's an increasingly political debate about Section 230, whether its protections should be maintained, and if so, at what cost?

 

      These debates occur against a backdrop of increasing pressure to invest in the networks of tomorrow, which require massive capital in order to lead the world in broadband and 5G. T-Mobile and Sprint recently merged to become a dynamic new wireless competitor. This sparks questions, of course, about the level of competition in the fixed and mobile broadband markets.

 

      What can be done to promote investment? Is net neutrality needed to prevent these networks from becoming too powerful? To make sense of all these issues, we have four distinguished panelists. Let me introduce them, and I'm going to do all the introductions now so they go smoothly speaker to speaker.

 

      I'm going to go ahead and introduce our first speaker is Kathleen O'Brien Ham. She is the Senior Vice President, Government Affairs for T-Mobile. The Chief Public Policy advocate for the Un-Carrier, she manages all public policy issues before federal and state governments. Before joining T-Mobile, she worked 14 years at the FCC, including as Deputy Chief of the Wireless Telecommunications Bureau. She was the First Chief of the FCC Spectrum Auctions Program, responsible for the early landmark PCS spectrum auctions.

 

She also served on the FCC's Spectrum Management Task Force in the Intergovernmental Advisory Committee that negotiated the reallocation from 3G wireless spectrum from government to commercial use. Most relevant today, she led the two-year campaign to all governments for T-Mobile's merger with Sprint, ending in April 2020. She's received several top lobbyists most influential and similar awards. A graduate of Catholic University's Columbus School of Law, she since taught there. She received her undergraduate degree from University of Colorado, Bachelor of Science - Journalism.

 

      We're blessed to have the Honorable Brendan Carr, nominated to be a Commissioner of the FCC by President Donald J. Trump. Confirmed unanimously by the United States Senate in 2017. 2019, nominated by the President, confirmed by the Senate for a new five-year term. Previously, General Counsel to the FCC, representing that agency in Court, Chief Legal Advisor to Commission. First joined the FCC as a staffer in 2012, working on spectrum policy and competition matters for a number of FCC offices.

 

Before joining the agency, Commissioner Carr was an attorney at Wiley Rein in the firm's appellate litigation and telecom practices. He litigated cases about the First Amendment Communications Act. He's a graduate of Georgetown University, clerked on the Fourth Circuit, Judge Dennis W. Shedd. Magna cum laude from law school at Catholic University and editor of the Law Review there. Commissioner Carr grew up in Virginia, now lives in Washington D.C. with his wife and three children.

 

      We also are honored to have the Honorable Christine Wilson, sworn in on September 26, 2018, as a Commissioner of the Federal Trade Commission. President Donald J. Trump nominated her to a term ending September 25, 2025. She previously served at the FTC as chief of staff to Chairman Tim Muris during the George W. Bush administration. And while in law school, she was a law clerk in the Bureau of Competition.

 

Between her time at the F[T]C, Commissioner Wilson practiced competition and consumer protection law, both at law firms and as in-house counsel. When nominated, she was Senior Vice President — Legal, Regulatory, and International for Delta Airlines. Previously a member of Washington D.C. antitrust practice groups at Kirkland & Ellis and O’Melveny & Myers. She graduated cum laude from the Georgetown University Law Center after being Phi Beta Kappa at the University of Florida. She lives in Virginia with her husband and two daughters.

 

      Our fourth panelist is Harold Feld, Senior Vice President of Public Knowledge, which is an organization that promotes an open internet and access to affordable communications. He is the author of, The Case for a Digital Platform Act, a guide to what government can do to preserve competition and empower individual users in the huge part of the economy now called big tech.

 

Former FCC Chairman Tom Wheeler described his book as a tour de force on the issues raised by the digital economy and internet capitalism. For more that 20 years, Harold Feld practiced law at the intersection of technology, broadband, and media policy, both in the private sector and public interest community. He has undergraduate degree from Princeton, a law degree from Boston University. He clerked on the D.C. Court of Appeals.

 

      Our speakers will now begin and follow each other without further introduction or interruption. Ms. Ham.

 

Kathleen Ham:  Thank you. Thank you, Judge Benton. Thank you, Dean Reuter and The Federalist Society, for the invitation to participate in today's panel. I'm delighted to be here today with Your Honor and to be among this esteemed group of panelists. I'd like to thank The Federalist Society for its support of the T-Mobile Sprint merger. Your support was very welcome and lent additional credibility to our efforts, and we're grateful to have had your important voices throughout the two-year approval process.

 

      I also very much appreciate the leadership provided by the FCC, especially Chairman Pai, Commissioner Carr, and Commissioner O'Rielly in approving the transaction. I plan to spend my time today highlighting the merger's two-year review timeline, providing some details about how we approach the anticipated review of our merger by both federal and state regulators in the courts and how our business plan, which was designed to deliver further innovation, economic growth, and competition in the U.S. via 5G mobile technology, is already delivering benefits to consumers.

 

      For those that followed the transaction closely, the approval process went longer than we had anticipated. Announced in April 2018, it was a two-year review process that was met with a few twists and turns along the way. The transaction required approvals from several federal regulators, CPUS, the FCC, the Department of Justice.

 

      It also required 19 state public utility approvals, UG Commission approvals, including California and New York. The standards for those reviews varied based on the scope of each agency's authority under the law. However, in general, regulators in the courts scrutinized the unique facts of our transaction and applied a consumer welfare standard.

 

      From the very beginning and throughout the review process, we felt strongly that our business case was sound, that the regulators and ultimately a federal court would come to understand the engineering and the economics of the business combination and as a result, that we would ultimately prevail on the merits and successfully close the transaction.

 

      The review process undertaken by regulators and the courts remained focused on our business plan to deliver a world-class nationwide 5G network in the U.S. In June of 2019, a coalition of largely democratic state attorney generals filed a federal legal action under the Clayton Act. They publicly stated that the transaction was bad for consumers, bad for competition, and would eliminate jobs and therefore, that the transaction should be permanently enjoined from closing by the court.

 

      I would note, the decision of the state AG coalition to file a suit occurred prior to the federal DOJ action or an FCC decision. This was unprecedented and ultimately required us to defend the transaction in the latter part of 2019, thereby delaying our original expectation that we would close the transaction in 2019.

 

      The federal DOJ did adopt a complaint and consent degree in September of 2019, requiring a divestiture of Sprint's prepaid operations and some nine million customers to Dish network. The DOJ also required T-Mobile to negotiate several agreements to facilitate Dish's emergence as a formidable fourth nationwide wireless provider. The federal DOJ consent decree was joined by several republican state attorney generals. On November 5, 2019, the FCC adopted an order approving the T-Mobile Sprint merger.

 

      In December 2019, our trial in the Southern District of New York began in front of the Honorable Judge Vincent Marrero. During the two-week trial, my business leaders from both T-Mobile and Sprint, including our CEOs, our chief technology officers provided testimony on our business plans.

 

      Prior to closing arguments in New York, we received an order in January of 2020 from the District Court of the District of Columbia approving our DOJ consent decree under the Tunney Act. On February 11, 2020, Judge Marrero of the Southern District of New York issued a 173-page opinion denying the State's request to enjoin the transaction and permitting the transaction to be consummated.

 

      The judge ruled that he was not persuaded by the opposing state's position that the combined company would increase prices or reduce quality. To the contrary, Judge Marrero held that he found that the party's assertions regarding the transaction's efficiencies were persuasive and likely to benefit consumers.

 

      Judge Marrero also opined that while the state's case may have been good enough to warrant an injunction in a more traditional market, the presumption of anti-competitive effects would be misleading in this particularly dynamic and rapidly changing industry.

 

      In March, the state AG coalition announced the decision not to seek an appeal of the Southern District of New York decision, clearing the way for the close of our merger on April 1, during a pandemic and nearly two years after the company's business combination agreement was announced.

 

      As previously noted, maintaining the credibility of our business plan, which was designed to further innovation, economic, growth, and competition in the U.S. via 5G mobile technology, was the focus throughout our regulatory review process. Through the process, the company also made 400 merger commitments, enabled by our business case, which is also heavily founded on the network that is being created.

 

      The engineering model and economics of our business plan also serves as a basis for these voluntary commitments, including a three-year pricing commitment offered to mitigate perceived issues by stakeholders. A merger leverages the massive scale and capacity unleashed by the combination of complimentary spectrum and network assets of the two companies and ensures that the combined company delivers consumer and competitive benefits as a result of the transaction.

 

      It has only been 223 days and counting since we closed the transaction, and we're already delivering on our promises and demonstrating the benefits of the combination of this business case to build America's best 5G network and offer unrivaled coverage and capacity to our customers.

 

      T-Mobile's 5G network now covers 270 million people and 8,300 cities and towns across 1.4 million square miles. That's more square miles of 5G coverage than Verizon and AT&T combined. T-Mobile's been able to deliver on its promise to provide lower costs at T-Mobile connect, which is a $15 offering with unlimited talk, text, and two gigabytes of high-speed data per month.

 

      This offer is half the price of the lowest cost offer now on the market. The company has also delivered on its promise to launch an initiative to address the homework gap known as Project 10Million. We're providing the country's most in-need, school-age children necessary broadband access at no cost and during a pandemic.

 

      In addition, T-Mobile has expanded its home internet pilot service to parts of 450 cities and towns, laying the groundwork for nationwide 5G commercial launch of fixed wireless broadband. And just two weeks ago, T-Mobile continued its past practice of innovation by launching its latest un-carrier mode with the introduction of the next generation streaming service, TVision Live, Vibe, and Channels and the TVision Hub, a new streaming device.

 

      We're committed to delivering further innovation, economic growth, and competition in the U.S. via our 5G network. And our efforts since our deal closed in April are already delivering benefits to consumers, thereby validating decisionmakers who approved our transaction earlier this year.

 

      I'm looking forward to hearing from the other panelists, including your observations regarding our transaction, particularly in relation to the current and future telecommunications and antitrust issues. Thanks again for this opportunity, and I now turn it over to FCC Commissioner Brendan Carr. Thank you.

 

Hon. Brendan Carr:  Thank you so much, Kathleen, for your opening remarks and thank you for your kind words at the beginning for all the different regulators that had the fun opportunity to touch your transaction. It was an interesting one. I'm happy to get into that a little bit.

 

      Stepping back more broadly, I think that we are at a really interesting time when it comes to big tech. And a lot of people watching this and, again, I really wish we were all together in person. I love The Federalist Society week when we can all see each other usually in D.C., but this will have to do virtually for now.

 

      Read this really interesting moment, I think a lot of people over the last six months, nine months have started to hear this term Section 230. Sometimes, you see it in all caps in a tweet. Sometimes, you see it in congressional testimony. And people sort of say what is Section 230? Why are we talking about Section 230? And really, I think it goes to a broader debate that we're having within the conservative movement about our approach to big tech.

 

      And what I mean by that is a lot of people on the left and democrats have a very clear agenda of what they want to get done when it comes to big tech, right. They want to break up a lot of these large companies. They want to block new mergers from going through. And frankly, they want to see less speech on the internet.

 

      There's all kinds of reasons and justifications that they want for less speech on the internet. They can label it hate speech, which is constitutionally protected speech. They can label it disinformation. They can label it misinformation, but the bottom line is there's a lot of pushback on the left to try to have less information out there on the internet.

 

      I take, obviously, a very different approach to that. I want more speech, more ideas, a greater diversity of viewpoints. And I think a lot of this centers on Section 230. So let me maybe step back and give some context about what that is. Section 230 of the Communications Act is a provision of law that Congress passed back in the mid-1990s. There were a series of cases back then that involved Prodigy and CompuServe messaging boards.

 

      People that are my age or older probably remember those. Younger folks might not know what those messaging boards are. But the type of content moderation that took place on those messaging boards is far different than the type of content moderation that takes place today.

 

So when you had those small startup messaging boards, websites, Congress passed Section 230. It does a couple things. One, there's a provision known as 230(c)(1) that in a nutshell says these websites aren't responsible for the speech that other people post on their websites. And frankly, I think that's the least controversial part of Section 230, but it's one that is an outsized part of the debate. And I think in a way that's a bit of a red herring.

 

The more interesting part of 230 is 230(c)(2), which, in my view at least, and this is not universally believed but I believe that it should be, (c)(2) provides that if you moderate, if you take down speech, you can do so with the 230 statutory protections if it falls within certain categories enumerated in the statute by Congress, including one where the big debate is about which is this language that says if you have a good faith belief that the content is otherwise objectionable.

 

So flash forward from those 1990 days when Congress passed that, the CompuServe and Prodigy messaging boards of that day are now Twitter, Facebook, and other large corporate behemoths. These entities now have more control over more speech than any institution we have ever known.

 

And so then, I think it comes to us as conservatives to decide what do we do. And this is where I think there's been a big fork in the road for conservatives, right. There is a strain of the movement that has influenced rightly in many cases by this libertarian view that the only threat to liberty comes from government action and that there either is not a problem for us to solve when it comes to big tech or the solution that the government is offering is going to do more harm than good.

 

I think there is a different way to look at this, which is if you go all the way back to Barry Goldwater, 1960s, The Conscience of a Conservative. There's a line in that book that says, "The enemy of freedom is unrestrained power and the champions of freedom will fight against the concentration of power wherever they find it."

 

I think there has been a bit of a -- I don’t know what the right word is, a slippage, a backpedaling within the conservative movement that we have been -- some have been myopically focused, singularly focused on the threat that comes from government action, rightly so, right. Only the government can jail you. Only the government can take away your property legally. That is a massive threat.

 

But I think in doing so, a lot of people are missing the threat that comes from the unrestrained concentration of corporate power. And that is where I think the big tech debate fits in. And frankly, I think this is a microcosm for a much broader debate that is taking place in the conservative movement which is are we going to meet these public policy threats with some form of limited, light touch regulation that does involve the exercise of public policy?

 

I think the conservative movement in a lot of ways has a strong element to it that has fallen into this rut of what I would call abject corporatism. If a big company wants it, it has to be in the public interest, and there's nothing for any government official to say about it. And obviously, I sort of reject that view. Again, government can absolutely tread on our liberty but so can the massive concentration of power that in my view is sort of now at an unprecedented level with big tech.

 

So there's two fights, I think, to take place in the conservative movement. One is do we do anything, or do we do nothing? And obviously, I think I've made my decision and voice on this pretty clear. I think it's time for all of us to step up and defend individual liberty, whether that threat comes from big government or big tech.

 

And I think we can do it without threatening free speech on the internet, and we can do it without going down a socialism path or a big government path. There is a light touch government solution here. Let me quickly say what I mean by that. One is I think we should reform Section 230. We should do it in this way. We should take a look at Section 230(c)(2) and we should read that as applying in far more cases than what courts have read it to apply to today.

 

Courts have focused on the 26 words in (c)(1). I think we need the courts to also focus on the other words in the statute in (c)(2). I think we should look at the words in (c)(2) and read them much more closely in line with what I think was Congress' intent as demonstrated by the text. The upshot of those reforms would be websites, big tech, would need to meet a higher burden to take speech down off the internet while also maintaining these special Section 230 protections.

 

And let me be clear, that does not mean that websites cannot take speech down. It is not an abrogation of their first Amendment rights. Every website always will have the First Amendment right not to carry speech. The only question is when they take that speech down, do they do so not only with their First Amendment right but also with the Section 230 rights? And my view is they should do so as long as they are doing it within the confines of the statute.

 

Second, I think we need to bring a lot more transparency. Right now, big tech is a black box. If you get kicked off a platform, a tweet gets taken down, there's almost no transparency as to why it happened. And sometimes there's legitimate reasons, but people come up with and add their own nefarious reasons for this conduct because they're not seeing transparent reasons for it.

 

And I think we have authority at the FCC to step in and adopt some rules that would bring some basic levels of transparency as to how big tech operates. And I think there's some reforms around use empowerment. I think we should give people more control to go into their settings and turn off these, what I call, bias filters that are applied.

 

If you want Fox News to fact check your Facebook feed before you see it, great, click that button. But if you don't, you should have the option to not have someone else filter your feed forward and make your own mind up. So the upshot of these reforms which would be transparency, user empowerment, more accountability, which is what I think my colleagues at the Federal Trade Commission could take a stronger position with respect to looking at a lot of this conduct by big tech through the competition lens and competition authorities they have. If we can adopt those reforms, I think we will be in a far better shape of standing up for and preserving really what we should all care about which is individual liberty. And, again, in my view, we'd end up with more speech.

 

I'm pleased to see the progress that's been made along these lines. Again, if you flashback a few months ago, there were a few loud but not many conservative voices calling for reigning in big tech and that's changing. A couple weeks ago, Justice Thomas wrote a separate statement saying that courts have read immunities into 230 that are simply not found anywhere in the statute.

 

The Wall Street Journal Editorial Board, an institution that is not known for reflexively embracing government regulation, said that they're open to some forms of reform on 230, while recognizing, because we all do it, some reforms could do more harm than good. But they're also looking for ideas for reform.

 

So I think we've seen this mainstreaming now of calls to reform Section 230. I think it's very healthy. I wish that we had moved faster. I've been chomping at the bit a little bit here to make some more progress on 230 reform, but I'm glad to see that the conversation now is where it is and happy to hear from my fellow panelists and get healthy and welcome pushback on many elements of my views.

 

So I'm going to turn it over to -- I believe it's Commissioner Wilson is next up.

 

Hon. Christine Wilson:  Thank you, Commissioner Carr. And thank you to The Federalist Society for inviting me to speak today.

 

      So let me start with two caveats. First, I speak only for myself and not for the FTC or any other commissioner. And second, the FTC deals with telecoms only when they're engaged in non-common carrier activity and when we are wearing our consumer protection hat due to the common carrier exemption under Section 5 of the FTC Act.

 

      But the FTC does have the ability to enforce against unfair and deceptive practices involving internet service providers. Last year, the commission issued orders to seven ISPs, seeking detailed information about how broadband companies collect, retain, use, and disclose data about consumers and their devices.

 

      The need for this information became especially important as ISPs have become vertically integrated platforms that also provide advertising supportive content. We also have plenty of work regarding social media and big tech. In addition to investigations of mergers and conduct, we are conducting studies in this sector.

 

      As an aside, one aspect of the FTC that I appreciate is its ever-present drive to stay abreast of market development. A government agency that make policy and enforcement decisions in a knowledge vacuum act irresponsibly. While we can't have perfect information, we can and do routinely seek industry, academic, legal, and economic input through workshops and hearings and panels. And we also obtain detailed information from market participants through a tool that's known as a 6(b) study, that gives us the opportunity to collect information from market participants.

 

On the competition side, we're conducting a 6(b) study focused on prior acquisitions by five large tech companies that were not previously reported to the agency. This analysis will help us understand whether potentially anti-competitive deals have been flying under the radar and will inform us whether we need to change our merger notification rule. But it's important to note that this would not be a tech-specific change. There have been industry rollups in a variety of different areas like kidney dialysis and hospitals where this phenomenon may also have occurred.

 

      On the consumer protection side, I've asked for 6(b) studies that explore issues arising from the privacy and data security practices of technology companies including social media platforms. I want us to know whether, and if so how, content curation and targeted advertising practices impact data collection used in sharing and how the monetization of data impacts the creation and refinement of algorithms that drive content curation and targeted advertising practices.

 

      The concern that social media platforms are too much of a black box, as Commissioner Carr mentioned, is bipartisan. When I issued a statement calling for a 6(b) study, I was joined by one of my democrat colleagues. The House of Representatives committee on the judiciary said it was also trying to understand online platforms when it held a series of hearings for more than a year.

 

      The Democrats on the antitrust subcommittee issued a report last month through their staff that included a set of recommendations for legal reform. I will not get into all of my disagreements with the report. They are legion. But I do want to highlight what's missing: recommendations for a comprehensive federal privacy law and for reform of Section 230.

 

      In a 450-page report, with 2,542 footnotes, there are zero mentions of Section 230. And yet, Section 230 has shaped the online platforms that the committee investigated. Amazon cites the law as a defense against litigation over defective products that third parties sell through its marketplace. Facebook and Google's YouTube avoid legal liability for what users say but can attract advertisers by promising to delete or monetize speech that the advertisers might not want to appear next to their ad.

 

      We know that when the government intervenes in a market, competitive dynamics change. This phenomenon is no less apparent when government intervention takes the form of an exemption from traditional liability. Similarly, the absence of a comprehensive federal privacy law has shaped companies' collection, use, and sharing of data which in turn shapes the business models that companies adopt.

 

      Significant information asymmetries exist between users and companies regarding how much and what kinds of data are being collected from some consumers and for what purposes. This is the lack of transparency that Commissioner Carr referred to. Perhaps if consumers better understood how their data is collected, used, and monetized, they would make different choices about which products and services to use and business models would need to respond accordingly.

 

      But rather than target what many Americans are complaining about in their dealings with online platforms, a loss of privacy and concerns about censorship of valued content, the House Antitrust Subcommittee's recommendations took aim at the whole economy. They said Congress should consider banning a company that's been successful in one market from operating in a different one through the kind of line of business restrictions that Congress once placed on railroads.

 

      Interestingly, even though they referenced these railroad regulations at least a dozen times in the report, not once did they mention that Congress ultimately repealed those restrictions because they imposed great harm on consumers. They stifled innovation, and they imposed significant costs on market participants. The report also recommended that Congress make companies that offered deep discounts to attract customers potentially liable for predatory pricing, even if those companies don't later hike up their prices.

 

      At what point did vigorous price competition become unattractive? And the report also recommended that Congress make it illegal for a company to change the design of a product, even if it's an improvement for consumers, in a way that makes it harder for rivals to compete. At what point did we decide to coddle competitors rather than encourage competition for the benefit of consumers? Very interesting questions.

 

      I look forward to responding to the points raised by the other panelists, especially this one, Harold Feld from Public Knowledge. Thank you.

 

Harold Feld:  Thank you. I have to say that it is a pleasure to be back here again at The Federalist Society. Although, to some degree, it feels a little bit like being the vegan invited to the BBQ. But I find myself in agreement with a number of important things with regard to the regulation of social media. As is required of anyone who's written a book, I'm required to plug it and note that it is available on Amazon, which as I like to say, it's not hypocrisy but simply proves my point that some of these services are indeed large to a measure of being virtually unavoidable.

 

      One of the articles that I cite in the book had to do with a reporter who spent a week for each of the major edge companies, Amazon, Google, Microsoft, Facebook, to see if what happened if she blocked all traffic, not just going to the website, but all traffic that flowed through those servers. And it turns out, it is virtually impossible to use the modern internet without touching these companies at some point in the management of the traffic, not just in the content layer.

 

      So certainly, I argued and I agreed with those who say that there is a problem of concentration of corporate power. That said, I think that the -- it is important, however, to distinguish between what the Federal Communication Commission does and its role over the networks that provide access and what the Federal Trade Commission does or what an independent agency might do with regard to businesses that do not exhibit the same essential qualities that are typically regulated by the FCC and why, in particular, I think Section 230 is not a good match with the Federal Communication Commission at all. Some of that is just the history.

 

If there was one thing that everybody agreed on in 1996 when they were putting the act together, it was that they really didn't want the FCC to regulate the content layer. How much this extended to questions of the pipes is one of those things which we spend a lot of time debating. I've spent since 1998 debating with people about this. This is the Title I information service versus Title II telecommunications service.

 

      But with regard to just the nature of Section 230, I feel it's important to point out a number of things. One is the definition of internet active services which is used in the statute is extremely broad. It would place under control of the Federal Communications Commission to a certain extent with regard to its interpretation of Section 230 virtually any service. I will just quote from the definition section, which is 230(f) sub 2 which defines interactive computer service, which is the subject of Section 230, as any information service system of access software provider that provides or enables computer access by multiple users or a computer server including specifically a service or system that provides access to the internet and such systems operated services offered by libraries or educational institutions.

 

      So if we were to read this broadly, it includes not only Google and Facebook, not only T-Mobile and Comcast but virtually any home that has a WIFI server that connects to five or six different devices that then access the internet through an intermediary. It's hard to believe that Congress intended to convey that broad authority to the Federal Communications Commission.

 

      I like to describe the FCC's authority as narrow but deep, which is to say it really focuses on the networks and not on any other associated content or service provider. And with very good reason because the mechanics of the networks are critically important. Most of the work of the FCC is terribly, terribly dull and terribly, terribly important in terms of things like spectrum management, emergency and resiliency requirement, things that go to the pipes in ensuring that these critical services are open.

 

      Now, does that also mean ensuring the greatest possible access to sources of information as the Supreme Court has said the conflict of which is the crucible from which truth emerges? Absolutely. That has been held to be a critical issue of the FCC as well. So to some extent, you could argue that well, a new kind of neutrality requirement around (c)(2) is not wholly out of place.

 

      I would argue that it really is in this context, both as a matter of the history but also as a matter of the question that there really isn't much there for the FCC to interpret. We can certainly argue about whether Justice Thomas is right that the early cases, notably Zeran, were overbroad when judges were perhaps too taken with the internet as a nascent service and what -- extending liability protection beyond what was intended.

 

      But courts have also been very cautious in pulling this back to ensure that it doesn't leak into things that we think of not so much as about speech or third-party speech but about things like product liability and business models. So I do think that these are all matters that the courts have dealt with and should continue to deal with and that we should not subject interpretation of 230 to consistent referrals to the FCC under the doctrine of expert agency referral when these issues come up. I think that would be quite disastrous.

 

But let me turn to the other area of importance that has been brought up which is the transparency. And absolutely, I agree. I spend a bunch of time. My colleague John Bergmayer has written a paper about the need for procedural fairness in the administration of these processes that social media and others use for take down, not just of speech but also of products like in Amazon.

 

      And one thing we've learned very clearly over the last several years is companies are very, very bad at making these judgments. Companies are under constant and conflicting pressure to make judgments about what to label, what to keep, what to promote, what to discourage. And that nobody seems to have figured out a good solution for this that is scalable so that the only real solution with regard to speech online is competition online.

 

      If you think that Facebook is stifling you while I can say that there are real competition problems, but at least there are other places you can go. With regard to the notice, this is an area where I think yeah, there should be greater transparency. I would say, though, that the transparency that is being used by these platforms is not significantly different from the network management transparency that the FCC imposes on ISPs.

 

      First of all, if you want to say I discriminate for the hell of it, you can do that. If you want to say we try to be a forum for free speech, but you know what, we also reserve the right to take down whatever the heck we feel would be bad for our bottom line, you can do that. If you want to say we have an appeals process and we're sorry that you find it confusing, but this is what it is, you can do that. Those are disclosures.

 

      We might want to say not just with regard to social media but with other businesses that the nature of disclosure is critically important. But I do think that the effort to try to leverage 230 here for it is a distraction at best and counter-productive at worse.

 

      Finally, because I know I'm getting -- using a lot of time here, I do just want to add with regard to the competition report that no surprise, I thought the competition report was actually a very good analysis of the problems. I think that in fact we need to make a decision if we agree on a premise that highly concentrated corporate power is as Senator Sherman put it, a kingly prerogative and if we would not count it as a king in our political world, we should not do so in our economic dealings.

 

      Then we need to recognize that yes, there are affirmative steps that need to be taken where you have strong network effects and economies of scale interplaying with each other that are not present in other lines of business. This is, again, I'll refer to my book for the case for that here, but I do think that the focus of the antitrust report on the lines of business restrictions, various other forms of restriction that prevent or would prevent from leveraging market power from one market into another market have been highly successful in other industries, including the telecommunications industry. The AT&T breakup being, perhaps, the archetypal example of where line of business restrictions was a positive means of promoting competition and that we really ought to be very aggressively considering rather than dismissing these recommendations.

 

      And back to you.

 

Hon. Duane Benton:  Well, thank you, panelists. Appreciate all that you've done and all the ground you've covered. Now, does any panelist wish to reply to something someone said or is -- revise and extend, they say in the U.S. House at least. Does anyone wish to do that in regard to the remarks? I don't see -- does anybody -- or something you forgot or --

 

Hon. Christine Wilson:  Yeah. So this is Christine. I am happy to pick up on the general topic that was introduced in the conversation of AT&T T-Mobile by Ms. Ham. Efficiencies is a significant and incredibly important topic. So without discussing T-Mobile specifically, I can say I am a long-standing proponent of taking merger benefits and efficiencies seriously in merger review.

 

      I spoke earlier at a conference this year and criticized the asymmetric treatment of efficiencies in the merger review process and let me tell you what I mean by that. Right now, the U.S. antitrust agencies and the courts condemn mergers based on vague suspicions of future coordination, suggestive business documents, or a structural presumption about market concentration and how competitive dynamics will play out.

 

      But they generally view efficiency claims skeptically. And the result is that parties in turn see little benefit from devoting significant time in resources to building an efficiencies case that is less likely to win approval for the merger and convincing the agency report about market definition or the ease of new entry.

 

      So they don't take the time to present good efficiencies evidence which gives agencies and courts more reason for skepticism about efficiencies arguments in the first place. And so we have a chicken and egg issue or a vicious cycle. And in order to break that vicious cycle, I called for the DOJ and the FTC to adjust their approach, first of all to treat evidence of efficiencies symmetrically with that of potential harm. I also called on both agencies to provide additional guidance both to the antitrust bar and the business community about what types of efficiencies analysis meet their standards.

 

      And efficiencies and benefits played a significant role in T-Mobile Sprint. I won't address that because it's a case brought by a sister agency. But I do think that that case raised very important issues about how the antitrust agencies address innovation and the evolution of business models and the introduction of new products and so wanted to put that out there for consideration.

 

Hon. Duane Benton:  Thank you, Commissioner. Go ahead, Mr. Feld.

 

Harold Feld:  Yeah. I just wanted to respond to that point specifically. It's a good one. And to quote Yogi Bear, "Predictions are hard, especially about the future." And I would say, perhaps unsurprisingly, that I feel potential efficiencies have been overweighted, particularly for something that is not actually present in the statute.

 

      But I agree that there is some significant work that needs to be done which I'll emphasize two things. One with relationship to the T-Mobile merger, we opposed it, so just so folks know. And part of our concern was that four-firm competition has been working. And the DOJ, FTC, HHI guidelines make this point with regard to market concentration.

 

      The approval was based in no small part on the bet that Dish could be forced grown into a fourth national competitor. We thought that was not a prudent bet, but we lost that so now I would certainly like to see them succeed. But I will also add that one of the things that is perhaps disturbing in the T-Mobile decision, and we saw this also in the AT&T Time Warner decision, is a tendency that we are seeing of judges in a discipline that is supposed to be grounded in economics to look at personalities.

 

And what you see in the AT&T -- excuse me, in the T-Mobile Sprint is a judge saying well, yeah, there's all this evidence, but I just believe these guys. I believe Charlie Ergen is a scrappy competitor. I believe that these guys are going to go ahead. And this is not supposed to be civil liability, and injunctions in antitrust should not be matters of intent. There's no mens rea here. I don't have a doubt that Dish would like to succeed as a fourth competitor but that my personal desire is no guarantee of their success.

 

      So if we are going to talk about antitrust, I think we need to not over-romanticize it as being or perhaps antitrust folks like to believe that they're Vulcan side just apply in economic logic but their human half peaks through an awful lot.

 

Hon. Duane Benton:  Thank you. Commissioner Carr, you look like you were about to talk.

 

Hon. Brendan Carr:  Yeah, I can jump in there too. I think, you know, I do think we need an updated approach to antitrust. And when I say that, I'm not going full David Cicilline in adopting a rejection of the consumer welfare standard. What I mean by that is more narrow which is tools.

 

      I think Sprint T-Mobile is a great example of that. When we reviewed this transaction at the FCC, we had, I don't know, a dozen, it felt like, models -- static models to tell you and identify all the ways that this is going to be harmful. And there were models that were developed years and years ago. And we've applied those same models to transactions over the years, and we know looking back that they all ended up being pro-consumer even though the models would tell you potentially something different.

 

      So the challenge, I think, is the conflict between a static snapshot in time model in the dynamic, either benefits or harms that are going on. And there has not been enough work, I think, on the antitrust side of models to look dynamically at what's taking place. It's particularly a problem in big tech, right.

 

      When you've got slow moving monopolies where antitrust law started, railroads, oil industry, that's one thing. But when you've got big tech -- so let's say you go back to Facebook, Instagram. I'm not saying unwind Facebook, Instagram, but do we have the tools to actually see in 2011-2012 how quickly Instagram was going to scale up.

 

      I don't know that our tools and models captured that. Similarly, with Sprint T-Mobile, a lot of people looked at the combination of the third and fourth nationwide provider in the country, and they said why do we want to get rid of the fourth? The fourth provider, Sprint, is going to continue to exist because our static model puts it in [inaudible 65:29] and tells you it's going to.

 

      The reality was for people that were paying attention, Sprint was dead man walking. We were not going to have a fourth nationwide provider, at least not one named Sprint in short order. So I think our tools aren't adept enough to identify how quickly things can get better or worse on the antitrust side.

 

      And then picking up as well on Harold's points on Section 230, he talked about the broad scope of the provision. And I agree with it, which is to say this, however broadly Section 230 applies because of the definition of ICS, information content provider or the statutory term, that's a decision that was made from Congress. The question, though, is what can the FCC do with respect to that broad range of entities that Harold talked about?

 

      I would submit that we don't have authority to be the speech police, as one of my colleagues would say. I don't believe we have authority to engage in thumbs up, thumbs down content moderation decisions for these websites. What I do think we have the authority to do though is when Congress passed the statute that has words in the statute, we can tell, with authority as an agency, where the statute is in the Communications Act, what those words mean.

 

      So I think when you say it's broad in terms of what it covers, okay, I can see that. But I don't think that that triggers, I think, the harm that Harold was talking about which is that can have knock on effects of extensive or over-regulation of. It's merely here's the playing field that's covered by 230, these terms apply to it under the statute. Here's what those statutes means. So I don't think it would lead to the parade of horribles that some might suggest.

 

Hon. Duane Benton:  I think I talked over Commissioner Wilson. Were you trying to get right back in when he started?

 

Hon. Christine Wilson:  So I was just -- I was going to observe that it's interesting that Mr. Feld acknowledged that economics is the appropriate basis for antitrust analysis because that is actually, in some dispute, I think people would like to incorporate other goals into antitrust analysis. There have been a number of different potential goals advanced.

 

      And the problem with all of those goals is that they are subjective, and they are susceptible to being politicized. And when we say consumer welfare is the goal that we are seeking to advance, it is objective. It is based on economic analysis. It is not subject to politicization. And it provides consistent guidance to the business community about whether deals and conduct are lawful. It provides guidance to all stakeholders about what the law is and how it will be applied. And so it gives -- it provides the transparency that we need to have faith in our institutions.

 

      And so I strongly believe that the consumer welfare standard is the appropriate standard, recognizing, of course, that consumers are employees are stockholders. And so to the extent people want to think about other rules that citizens have in our society and then incorporate those into antitrust analysis, I would submit to you that to some extent, we're already doing that because consumers is all-encompassing.

 

Hon. Duane Benton:  Mr. Feld?

 

Harold Feld:  Just quickly, I would say one of my biggest arguments in favor of a separate regulatory agency to address things like consumer harms that may flow from digital platforms and line of business restrictions is because I don't think antitrust should try to do too much. I do think that -- while I think there certainly plenty of room to look at the applicable antitrust standards, I can't claim that I'm sufficiently an antitrust scholar to touch that debate.

 

      I'm a telecom lawyer who's learned to pretend to do some antitrust because you have to. But again, I do think that it is a comforting allusion to believe that the current application of economic analysis is not subject to politicization and is not -- and is, again, this pure, logical function machine that is capable of these determinations.

 

      Just the simple question of do you believe in behavioral economics or not?  When is it -- what is the impact of network effects that we are finding difficult to understand in terms of consumer welfare and how we measure these things? Is the AMEX decision really correct or even a feasible mode of analysis? Or should we alternatively care about exertion of market power on either side of the platform rather than simply the net effect on both sides of the platforms in a two-sided market?

 

And what do we do in a multi-sided and more complicated market where market efficiencies struggle against what I refer to in the book as perfect information asymmetry because you can only see what the large platform which controls the traffic permits you to see.

 

      So I think that we need to be honest that the tools in the toolkit, when you think it's a -- it would be nice if it was always clear when you should use the hammer and when you should use a buzzsaw and when you want to use a drill. But the problem is even if we agree on what the tools in the toolkit ought to be, there's a lot of disagreement on when you're supposed to use which.

 

Hon. Duane Benton:  Thank you. Ms. Ham, do you want in on any of this?

 

Kathleen Ham:  Sure. Sure. Well, couple things. One is I spent two weeks in that courtroom up in New York and I wanted to address some of this. You know, I'm not an antitrust lawyer, but I have to say, Judge Marrero struck me as a very practical lawyer, practical judge, and he really was sort of weighing, and I saw this throughout our advocacy. There are these sort of very complex Rubik cube models that are performed in academia. And then there is sort of like real like businessmen who are building a network and deploying and trying to compete.

 

      And so I think what he -- frankly, we just had a better case. We had better witnesses than the state AGs had, and we're more convincing. These -- and we had a track record. T-Mobile had a track record of being disruptive in the marketplace, that that's our DNA, it's part of our brand. Why would we destroy that when it's been the heart of our success? And so I just think in terms of credibility, I think we just -- we're more convincing. It was a stronger case. And it was also based on millions of pages of material that was filed with the government, underlying that -- there was a lot of underlying substance.

 

      And we had meeting after meeting with our engineers and our technicians coming into explain. And at the heart of the case, it was about putting together very complimentary spectrum and network assets that would create an explosion of capacity at a time when the world was turning to 5G. And that increased capacity and the efficiencies that we grind out of it created huge capability and for us to put more -- $40 billion back into our network deployment and also just make us a stronger competitor of AT&T and Verizon.

 

      And I agree with Commissioner Carr, and we put a lot of this evidence into the record that Sprint was dead man walking and they weren't going to be able to succeed in the marketplace. And so I think our case was a strong one and I know the antitrust experts will evaluate it for years to come, but I think it was the right thing to do in a highly dynamic market.

 

      We have now cable in our space in an increasingly way. These are big companies with a lot of resources that we're competing against. T-Mobile just launched our streaming service last week to try to compete against cable. So these worlds are colliding. Things are changing, and I think Judge Marrero took into account all of that and came out with a very good and wise decision and a practical decision, understanding that dynamic.

 

Hon. Duane Benton:  Okay. I see the raised hands, but before we go to questions, let me ask you -- well, and of course, I'm very unsophisticated on this. But I bet on the mind of many of our 250-ish attendees is the question what does the election mean for regulating social media? I know the commissioners may or may not want to express it and that's up to them, but Commissioner Carr?

 

Hon. Brendan Carr:  Well, from my perspective, I hope it means the same thing that it meant before which is that we need to move forward with reforming Section 230. Again, I would've been happy to do it. I think my public position on this has been well-known for a while. I hope we continue to go forward.

 

      I think there are some people out there that are saying well, no, if democrats take over the FCC, why would you give them that authority? And my view is we're not giving them any authority. The statute says what it says. And, again, it's not investing the FCC with new authority it's never had before.

     

      So I would hope that we would continue to go forward. Again, there's a fundamental difference, I think, between republicans and democrats. We're pulling on 230 reform from two different ends. I want more speech, more information, let people make their own minds up. I think there's some on the left that want to either use 230 reform or other steps to have results in which there will be less speech on the internet. But I'm still ready, willing, and chomping at the bit to move froward with reform.

 

Hon. Duane Benton:  Mr. Feld, you look ready to address that.

 

Harold Feld:  Well, I mean, it's a couple of things. One is I can't help but note the irony that if you changed the words there from to ISP and Title II in what Commissioner Carr was saying and what it sounded an awful lot like me in 2017 over the net neutrality discussion in terms of what the statute says and whether it's investing the FCC with new authority.

 

      I do think, though, here that as a practical matter, the -- and I'm going to assume that Joe Biden has won the election even if that view is not universally shared by everybody on this call, but it is generally the custom not to move forward with the items that are highly controversial during the period of transition.

 

      So I would certainly hope that there isn't an effort to try to rush this out in the next month or two. But I also think that while 230 reform is going to continue to be debated, it will probably not be debated at the FCC going forward.

 

      I do think that it is ripe for the evolution of the courts which is where it should be and that, yes, 20 years after the initial decisions when the internet is and these services are much more an important piece in our lives, a careful examination of some of the precedents may be warranted. But I think that'll happen where it should, either by Congress rewriting the law or by courts refining the precedents.

 

Hon. Duane Benton:  Okay. Commissioner Wilson, you want to talk about what the election might mean for social media?

 

Hon. Christine Wilson:  So I hope that regardless of the election, Congress will continue moving forward with federal privacy legislation. We had some strong bills introduced in the 116th Congress, and I do hope that the 117th Congress will get that across the finish line. There is long-standing bipartisan support from the FTC for federal privacy and data security legislation.

 

      As I already mentioned, consumers need more transparency about how their data is collected and used and shared. On top of that, we have an emerging patchwork of both state and international laws that disparate data protection laws drive up compliance costs for companies, and that actually has an effect on consumers in the sense that if larger companies are the only ones who can afford those compliance costs, the venture capital start up stand and new entrance are not going to materialize.

 

      And so in an area where I think everyone would like to see more competition, we won't get it if we don't craft privacy laws carefully. And if the U.S. wants to join the global conversation about privacy and data protection, it needs to pass comprehensive privacy legislation.

 

      We also see, especially this year, emerging gaps in sector-specific approaches created by evolving technologies. HIPAA, which protects sensitive medical information stored in your house care practitioners' offices has obviously limited coverage. And so when we wear Fitbits and we have health apps on our phones, we are providing a great deal of sensitive health information that is not protected under HIPAA. And that's become increasingly apparent given the pandemic.

 

      And then finally, we have Fourth Amendment implications under the Fourth Amendment test. The question is whether there is a reasonable expectation of privacy. If nothing is private, there is no reasonable expectation of privacy, and the Fourth Amendment gets eviscerated. I believe federal privacy legislation is necessary to secure American's federal constitutional rights and to protect against risks of privacy and civil liberties.

 

      And so I do hope that post-election, regardless of the outcome, that the 117th Congress will get federal privacy legislation across the finish line.

 

Hon. Duane Benton:  Great. Ms. Ham, do you want to weigh in on what the election means for regulating or just pass? You can just pass. That's what I took the --

 

Hon. Brendan Carr:  I'm sorry. Let me just circle back real quick on --

 

Hon. Duane Benton:  Sure, Commissioner. Go ahead.

 

Hon. Brendan Carr:  -- an important point I think Harold made. Harold raised net neutrality, which is a term we've used to describe different things. I think it's an important discussion because a lot of people have, sort of -- at least at the Twitter level of discussion, which is often not the most sophisticated developments. Sometimes it's just because of the character constraints.

 

      But people sort of question and say how can you be against Title II utility style regulation of the internet, of ISPs, but be in favor of Section 230 reform? I think it's a fair question. I think the answer is pretty straight forward, which is to say, again, with 230 reform, we're talking about interpreting the words more narrowly, appropriately so in my view, that are in 230.

 

      And with net neutrality, we're talking about imposing a whole set of Tittle II regulations and imposing it, at least back then, for the first time on the internet. The other answer to that, though, is there's a gap in regulation right now when it comes to big tech that has no parallel when it comes to ISPs.

 

      Even today, even under our approach where we've "repealed net neutrality," there are rules in place through disclosures and otherwise that AT&T and Verizon aren't blocking, aren't throttling but put that to the side. There's transparency rules right now as well. We've adopted transparency rules that apply to ISPs.

 

      We don't have transparency rules at the FCC that apply to the ICS providers that I think we could apply through 257. So at the end of the day, my answer is one, I think net neutrality repeal is a good approach because it has more regulation through transparency than what we have for big tech. And two, I just think it's a different dynamic entirely, reading words of 230 versus reclassifying an entire service.

 

Hon. Duane Benton:  Okay. So thank you all for taking the bait on my question. Let me do some housekeeping at this point. And also, I make a parody of this panel, I was looking at what shows on my screen, on Zoom. In addition to Zoom, of course, we have people on YouTube, Facebook, Twitter, our own website, FedSoc's own website. So we estimate the audience 500-600. A better estimate, I was given that, so I'll clear the air on that. Very important point of counting noses.

 

      We can take questions only by Zoom, unfortunately, not those other platforms. You do the raise hand, and I know a couple of you have been up for a while. I see those hands have been up for a while. We'll get to you.

 

      If you're on the telephone, if you dial star nine, I understand that will have the same effect. And so let's take a question. Mr. Keiter, Mr. Kiter. You've been up for some time. Please unmute for sure, but you are recognized Mitchell Keiter, Mitchell Kiter.

 

Mitchell Keiter:  Hi, Keiter, yes. The question I have is whether a site can curate speech so much that it becomes its own, sort of on a twist on the Latin maxim of exclusio unius est expressio alterius. And the example I'm thinking of is in the Ninth Circuit, there were two cases, one where Google and YouTube were censoring Dennis Prager's conservative videos. And in court, they argued that Miami Herald protects editorial judgments of how or even whether to present particular content.

 

But they were also sued for allowing ISIS to post videos that facilitated terrorist attack. And there, they argued that Section 230 forbids treating Google as the publisher or speaker of content posted by others, which seemed to be entirely contradictory positions.

 

So my question is if the goal is to create a forum, which is what Section 230 said, in a Pruneyard or Southworth context, then why should we allow viewpoint discrimination? But on the other hand, if the goal is foster autonomy, then why should these sites have immunity that would be unavailable for newspapers?

 

Hon. Duane Benton:  Mr. Carr looks like he's ready to talk. Go ahead.

 

Hon. Brendan Carr:  Yeah, thanks for the question. I think part of this is there's been a bit of misperception of how 230 operates today. Some people say that 230 was a deal where you act like a neutral platform, you get 230 protections. You wouldn't engage in viewpoint discrimination. You don't. That's not the terms of the statute as it is today.

 

      It's basically you can engage in content moderation or you can not engage in content moderation. You have 230 protection. In my view, I think court cases have gone too far in terms of how they've interpreted the text of 230.

 

      You started with a question that I think is -- at least I thought you were going with a question that was interesting which is at what point do the websites become responsible for speech because 230 only applies to short circuited other people's speech. And there's an interesting case, Roommates.com, that basically says when a website gets so involved in controlling and determining the choices that people make, like Roommates.com was a case where you had that drop-down menu, and that confined peoples' choices. And some of the drop downs could be illegal housing criteria that they were the publisher, to use a shorthand, of the content in that circumstance.

 

      I think that's an interesting question. When you look at the scope and scale and degree of choices that, take Twitter, is making right now and how they present other peoples' speech. At what point does it start to blend and look more like Twitter's decisions about what speech to promote and less like other peoples' speech? I think that's an interesting question.

 

      When Twitter puts these factcheck label on tweets, whether it's the President's or otherwise, that is clearly Twitter's speech whether you want to call them a publisher or not. And Twitter does not have 230 protections with respect to those fact check labels that it puts on.

 

Hon. Duane Benton:  Mr. Feld, you look ready. Go ahead.

 

Harold Feld:  Yup. There's amusing coincidence. I happen to have been in the same courtroom where Prager was being argued in the Ninth Circuit because I was arguing a case against the FCC on an entirely different subject. So I actually saw the oral argument on that case. And I do have to say it's important to understand that the supposed censoring that was occurring was actually this sort of labeling where this subject matters that were being discussed in the Prager videos, YouTube decided parents are going to flip out about that so we're going to label these as adult mature whatever. And if you are a YouTube user that enabled parental controls, then you wouldn't see them.

 

      But if you're like 90-something percent of other YouTube users, you would see them. This illustrates one of the problems of what people tend to call censorship because, again, the statute is actually very clearly designed to encourage websites to make these decisions about well, do I think that this is insensitive? Am I going to empower parents to make these decisions? In fact, there's a separate provision, (c)(3), which arguably could've protected YouTube in this case because it says there's no liability for telling parents about tools for empowerment and for letting them be empowered.

 

      So I think that the expectation of how this encouraged free speech was to prevent services from being overly conservative in what they would allow, which if you go back to '96 was the argument that Prodigy was found liable because it said we're going to try to make this a family service. That didn't scale up.

 

      So the argument was well, we want folks like Prodigy to take that opportunity and not worry that if they are unsuccessful that they will be held liable. So really, the issue here is not as if we were back, you know, I hate to use this analogy, but folks here will find it amusing. You don't want the fairness doctrine which imagines that there are only three major networks and maybe eight full power broadcasters in your market where in order to deal with the editorial decisions of a platform, you really got to make sure that they're being neutral.

 

Where instead, what you want is to create a wealth of platforms so that if you want to do just liberal speech, you go here. If you want to do conservative speech, you go there. It's true that the largest platforms are those that are general purpose platforms, but to some degree, that is a function of the fact that they are general purpose rather than specialized.

 

Hon. Duane Benton:  Let me get some more questions in.          Mr. Stovall (sp), you've been up the next longest. You're recognized. Be sure to unmute. Not hearing you, Mr. Stovall. We'll give you another moment. I don't hear. Sorry about that. Okay. Then we'll go to -- I bet it's mister but pardon me. I only have that to guess by. Scoka, would be my guess. And you are recognized. Is that function -- looks like you're there. Unmic. You're on our screen, so please unmic -- unmute, unmic. Unmute yourself. Oh, that's Mr. Stovall who now appears. Mr. Stovall, would you try to unmute? Sorry, bouncing ball here. Oh, boy.

 

      There. Well, you did for a second.

 

Mr. Stovall:  I think this is unmuted now.

 

Hon. Duane Benton:  Yeah, you're fine. Go.

 

Mr. Stovall:  Okay, good. Great. Thank you. Sorry about the technical problems.

 

Hon. Duane Benton:  Not to worry. Go.

 

Mr. Stovall:  Yup. Okay. So if you look at the deregulation of the American railroad system, it was a mature business sector. It was affected by government subsidization for 50 years. Take a look at that as an analogous system. It may not match. Take a look at the United States government and when it established internet, billions of federal dollars from the Treasury were appropriated for decades through the Defense Advanced Research Projects Agency, DARPA.

 

      So can't DARPA be used as a foot hole to start allowing more free speech? It's a point that when you deal with the free speech issue at large as your primary issue, if you just take a clean cut of that way, do you see a means -- does anybody on the panel see a means of an effective regulation to allow a more robust speech component to social media?

 

Hon. Duane Benton:  Okay. Thank you. Good question. Who wants to tackle it? Unmute if you want to tackle it, panelists. That's why I'm --

 

Hon. Brendan Carr:  Anything --

 

Hon. Duane Benton:  Commissioner Carr, go ahead.

 

Hon. Brendan Carr:  Yeah. I mean, the reforms that I've put forth would produce the result of more speech on the internet. I mean, again, baseline First Amendment is out there. So these websites can make any decision they want consistent with their First Amendment rights. The question for us is can they also make those decisions with 230 rights?

 

      In a lot of ways, I think 230 has been a thumb on the scale, whether intended or not, the practical upshot is in favor of, and I'm speaking specifically (c)(2) here, not (c)(1), of taking down more speech.

 

      I think if we can return to the original meaning of (c)(2), which I think is a higher bar on content providers before taking down speech, the upshot of that is going to be result in which there's more speech on the internet.

 

Hon. Duane Benton:  Anybody else want to reply? In any regard? I don't see any. Well, and I think it's Mr. or Ms. Scoka, S-C-O-K-A, on Zoom. If you want to try -- there, you're there. Unmute. Go.

 

Mr. Scoka:  Thanks. It's Scoka. Well, I have to say I'm disappointed that The Federalist Society didn't include a Section 230 expert here to respond to some of the claims that Commissioner Carr has made today. He's misrepresented almost every aspect of the statute. But I'd just like to ask about a few things in particular.

 

Number one, he would have you believe that it was some sort of liberal plot to reinterpret Section 230 when in fact the decision he's referring to, the Zeran decision from 1997, interpreting (c)(1) as applying to protect the editorial discretion of websites generally, to remove content as well as to put it up, was written by none other than Harvie Wilkinson, a lion of conservative jurisprudence.

 

      That is the interpretation the courts have taken today. He's offered no reason for thinking otherwise. He simply presents (c)(2)(a) as an alternative for covering content moderation. In fact, they serve very different purposes. (c)(1) protects content moderation only if you don't produce the content. (c)(2)(a) protects it regardless. So I'd like to hear his response to Judge Wilkinson's analysis from their end.

 

      But two other quick questions. He also claims that the FCC ought to be able to issue disclosure rules just like it does for broadband, but of course, the FCC's broadband rules apply by definition only to broadband providers that do not edit the services they provide. They do not exercise editorial discretion. That's what the D.C. Circuit said in upholding those rules and why the D.C. Circuit said the First Amendment was not implicated.

 

      Here, we're talking about the very opposite. He wants to impose disclosure requirements upon services that engage in content moderation, and he wants to compel them to describe in detail how they exercise that content moderation in their editorial discretion.

 

      And then finally, he keeps saying he wants to see more speech online. The speech he's talking about removing from the protections of Section 230, the things that he doesn't want websites to be able to moderate, are racism, hate speech, misinformation, foreign election interference. This is the speech that he's taking about specifically. These are things that Section 230 protects today in content moderation.

 

And under the administration's proposal to rewrite Section 230, these things would no longer be protected. This makes the administration's proposal obviously not content neutral. It is obviously putting a thumb on the scales and implicating the First Amendment in ways that the administration has not explained.

 

Hon. Duane Benton:  Okay, thank you. Commissioner Carr, I think.

 

Hon. Brendan Carr:  Hey, I wasn't sure at first if that was a Zoom bomb or a real question, but I'll try to parse some of it there. I think one question was about the transparency rule that the FCC applies. There was a suggestion that the FCC's transparency rule only applies on the condition that the entity that it applies to is not editing or not neutral. That's not the case. The FCC's transparency rule came from 257 which was a different provision that was not necessarily tied to the common carrier neutral cared status. So I do think we have a path forward for reporting obligation that would apply to non-common carriers.

 

      And I would just suggest reading -- taking a look at Justice Thomas's decision that walks through some of the judicial interpretations of the Section 230 provisions. And his view being that courts have given expansive readings to it that are not found, in terms of the immunities there, present in the statutory text itself. And so I'm very comfortable going forward.

 

      And there's also suggestion that the upshot would be a prohibition on entities taking down what was classified by the caller as hate speech or misinformation. Again, I think there's a bit of a slight of hand happening there. The idea here is that websites can always take down any of this content. It is not an obligation to keep hate speech up. It is not an obligation in a fairness doctrine sense or what we have in cable must carry sense to carry this.

 

It is simply when you decide to take it down, if you choose to exercise your First Amendment rights to take it down, does that decision also fall within the statutory confines of Section 230? That's one that I think we're well-positioned at the FCC to shine some light on those statutory terms.

 

Harold Feld:  Well, if I may, I will take issue with the last statement. I'll also take issue with that was barren and it was not a Zoom bomber. He's very well-known and respected in these circles, even if I personally find that we have sharp disagreements on occasion.

 

      But the other thing, though, is that last statement, which I think it's important to illustrate the effect here which is technically, it's true. But that is to say it would still fall within the discretion of the company as to what to do. But to imagine that these companies will not be influenced by potential liability decisions, I think is simply not realistic.

 

      The companies are quite litigation averse, and when you change what has been -- whether you think 230 is correct or not, I think that we would have to agree that it has become a well-understood pillar of internet law as it exists today. And if we are going to start pulling bricks out of this and change the balance of things, and not in the deliberative common law way that courts do but subject to a new agency interpretation that would itself be subject to litigation, we have to imagine that companies will take the most conservative view which is to leave things up.

 

Hon. Duane Benton:  I must interrupt you and say that we've reached our time.

 

Harold Feld:  I'm sorry.

 

Hon. Duane Benton:  No, no, no. I want to thank you and the other panelists very much, our audience today. Special thanks to the chair of the telecommunications group, Bryan Tramont of Wilkinson Barker for helping me particularly in the whole process.

 

      The next convention event is a discussion of, "Are MDL Judges Too Powerful?" And that begins at 3:45 Eastern. And I know everyone's out there applauding for our panelists, and I'll give it this. I could clap and I could even be loud, but it still wouldn’t have the effect. But thank you very much and good day to everyone.

 

Kathleen Ham:  Thank you.

 

Harold Feld:  Thank you.

 

Hon. Christine Wilson:  Thank you, everyone.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

     

 

3:45 p.m. - 5:00 p.m.
Litigation: Are MDL Judges Too Powerful?

2020 National Lawyers Convention

Topics: Federal Courts • Litigation
Zoom Webinar

Event Video

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Description

On November 10, 2020, The Federalist Society's Litigation Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The topic of the panel was "Are MDL Judges Too Powerful?".

Nearly half of all federal civil cases are now consolidated in a few handfuls of so-called MDLs (multi-district litigations). Each MDL is overseen by a single federal district judge even though it can comprise tens of thousands of individual cases and involve dozens of different defendants. Some MDLs are so big they can threaten entire industries, including perhaps the biggest of them all, the Opioid MDL pending in the Northern District of Ohio.  In theory the individual cases in an MDL can return to their original courts once all pretrial proceedings are completed, but in reality the litigants almost always feel compelled to settle before that happens. In light of the bar on interlocutory appeals, this means that the single MDL judge has vast authority to decide what happens to all these cases, from how much discovery is exchanged, to whether motions to dismiss and summary judgment are granted, to whether experts should be disqualified, to whether a class action should be certified. When it comes to MDLs, have we placed too much power in the hands of one judge? Are more options needed? Even more dramatic structural reforms?

Featuring:

  • Prof. Elizabeth Chamblee Burch, Fuller E. Callaway Chair of Law, University of Georgia School of Law
  • Prof. Brian T. Fitzpatrick, Milton R. Underwood Chair in Free Enterprise, Vanderbilt University Law School
  • Mr. Christopher A. Seeger, Partner, Seeger Weiss LLP
  • Moderator: Hon. Britt C. Grant, United States Court of Appeals, Eleventh Circuit

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

Event Transcript

Hon. Britt C. Grant:  Hi, everyone. Welcome to the last panel of our day here at the Convention. This is the panel called, "Are MDL Judges Too Powerful?"

 

My name is Britt Grant. I sit on the Eleventh Circuit Court of Appeals. And I am pleased to be here virtually, moderating today. And I know we'll have a great discussion with these esteemed panelists.

 

Necessity is said to be the mother of an invention, and I think that probably applies to the development of the MDL system that we have today. In the late ‘60s, judges and litigants alike were staring down the barrel of a vast array of complex litigation cases that had arisen around the country. These days nearly half of all civil cases, it seems, are appearing in MDLs. They end up being consolidated. And a vigorous debate has emerged about the cost and also the benefits of this particular litigation structure.

 

So we've got the pleasure today of hearing from two of the top scholars in this area, as well as one of the leading practitioners. And I'll introduce each of the panelists much more briefly than their vast resumes and accolades should really allow for. But then I'll let them kick off the conversation with their own set of remarks. And after that, I'll pose a few questions and let them engage with one another. And then we'll open up to the audience to ask the questions that you have for these great panelists. So please be sure to jot down your thoughts as you're watching our panelists today offer their insights. Let's begin. I'll introduce the panelists first.

 

Professor Elizabeth Burch is the Fuller E. Callaway Chair of Law at the University of Georgia. Go Dogs. Her areas of research include complex litigation, mass torts, multi-district litigation, and civil procedure. Professor Burch earned her Bachelor's Degree cum laude from Vanderbilt University and her J.D. from Florida State University. She's an award-winning scholar, and she's won, among other honors, the American Law Institute's Early Career Scholar's Medal in 2015, as well as awards for teaching and student support at every university where she's been a law professor.

 

Next, we'll hear from Professor Brian Fitzpatrick. He's the Milton R. Underwood Chair in Free Enterprise at Vanderbilt Law School. His research at Vanderbilt focuses on class action litigation, federal courts, judicial selection, and constitutional law, as well as, of course, MDLs. He graduated first in his class from Harvard Law School, went on to clerk for Judge O'Scannlain on the Ninth Circuit, and then for Justice Scalia on the U.S. Supreme Court. Professor Fitzpatrick received his Undergraduate Degree summa cum laude from the University of Notre Dame -- a popular university amongst our Federalist Society friends in the last recent weeks. Among many other honors and awards, Professor Fitzpatrick has received the Hall-Hartman Outstanding Professor Award for excellence in classroom teaching.

 

Last but not least is Mr. Christopher Seeger. He is a Founding Partner of the Seeger Weiss Firm, as well as one of the Nation's leading attorneys in complex and mass tort actions. He's earned leadership appointments from state and federal courts throughout the United States. There are too many to mention them all specifically, but highlights include his 2012 appointment to lead the multi-district litigation against the NFL arising out of concussion-related injuries sustained by former NFL players, his 2016 appointment to the plaintiff's steering committee for the MDL concerning the Volkswagen diesel emissions scandal, and his role as co-lead counsel in the ongoing 3M combat arms earplugs products liability litigation where he represents thousands of U.S. military members who are suing over hearing loss and tinnitus. Mr. Seeger received his Undergraduate Degree summa cum laude from Hunter College of the City University of New York, and his Law Degree magna cum laude from The Benjamin N. Cardozo School of Law.

 

With that, let's get started with the panel. Professor Burch, would you like to kick things off?

 

Prof. Elizabeth Chamblee Burch:  Sure. Thank you, Judge Grant. I appreciate the warm introduction.

 

Hon. Britt C. Grant:  Remember to take yourself off mute, please.

 

Prof. Elizabeth Chamblee Burch:  Can everybody hear me okay? Okay, great. I appreciate the warm introduction from Judge Grant.

 

For those of us who are not embroiled in MDL every day, I thought that I would take just a minute and sort of talk a little bit about what MDL is. I expect that you have probably heard of it even if you don't realize that you've heard of it. MDL includes massive cases like the opioid lawsuits, the talc cases, and the Roundup litigation. And essentially, what MDL is is it's our system for efficiently handling federal claims that have a related factual question.

 

So MDL includes antitrust, it includes securities, it includes employment and IP suits. But as Judge Grant mentioned, the cases that you hear most about tend to be the products liability cases. So just to give you a sense as to some of the facts and figures here, products liability and sales practice proceedings make up a third of all of the MDL proceedings. But if you look at the number of actions within the proceedings, products liability cases make up 89 to 95 percent of all MDL actions. So of the products liability cases, at least in my dataset, only about 27 percent of those actually settled as class actions. Those tend to be the economic claims, at least setting aside the BP oil spill and the NFL concussion case. Whereas, the bigger personal injury cases that you hear a lot about tend to be settled through private aggregate settlements. So in my dataset, it was about 45 percent.

 

And that's going to be my focus today, is this private aggregate settlement. So for these massive personal injury cases, the moment of centralization alters the leverage in a case. Unlike the more demanding prerequisites for class certification, where you have to have common questions predominate over individual ones, for MDL, you just need a single common question of fact. So that means that MDL can host a variety of loosely related interests. The parties' aims and desires might coalesce on some issues, and they might diverge significantly on other issues. Plus, unlike class actions, there's no ability to opt-out. Both plaintiffs and the defendants can effectively be dragged across the United States to a jurisdiction that would ordinarily lack personal jurisdiction over them.

 

And then when judges appoint lead lawyers to spearhead those cases — typically the insiders that we see time and again — the plaintiffs may find themselves being represented by lawyers that they didn't hire, by lawyers that they've never met who were chosen for their expertise in practical administration and settlement, not according to the adequate representation requirements of Rule 23 in class actions. So as this suggests, there's a big dichotomy between class actions on the one hand and non-class and BLs on the other. And we tend to call the non-class and BLs just MDLs.

 

So when judges certify a class under Rule 23, of course, they have a great deal of power. Rule 23 gives them a lot of power, but it also builds in checks and balances, those for class counsel, and for the judge herself. So to address these longstanding principle agent concerns between class members and class counsel, Rule 23 asks the judge to appoint class counsel and award class counsel's fees, consider adequate representation and make sure that any settlement that results is fair, reasonable, and adequate. And then we have checks on the judges. So to check the judicial process, Rule 23(f) paves the way for appellate review of the class certification decision. Objectors can come in and object to the settlement's fairness or to the attorney's fees. And if the judges and the parties ignore those objections, then the objectors can appeal them.

 

But these formal checks and balances largely fall by the wayside when there's no class action that's actually certified. So with class actions off the table, closure becomes even more difficult for corporate defendants. So they end up striking deals with the lead plaintiff's attorneys, often that require those lawyers to recommend that all of their clients enter into the settlement and then some of which require that those attorneys take steps to withdraw from representing clients who refuse to settle.

 

So despite the thorny ethical issues that those deals raise, private settlements and the focus on pre-trial proceedings means that there are very few issues within an MDL that are ultimately appealable. And yet, we see parties implementing a number of procedural innovations that exist nowhere in the Federal Rules of Civil Procedure, each of which raise fundamental questions that can often go unchallenged. So, for example, to varying degrees in these private settlements that I've been talking about, 53 percent of the judges actually approved a private settlement, which, of course, blurs conventional wisdom suggesting that private settlements are just that.

 

But it also raises questions about judge's source of authority to do so. Of course, judges are in a really tough position here. Unless they've ruled on the merits through the adversarial process, they may know only what the lead plaintiff's lawyers and the defendants want them to know. And so looking more closely at those proceedings that I've been talking about, I found that nearly one-third of the judges who approved those private settlements hadn't ruled on any merits related motions or presided over bellwether trial before they ended up approving those private deals.

 

Then, of course, there are other types of orders that, if you're not an insider in the area, you probably never heard about before, like Lone Pine orders, which seem to short circuit the summary judgment process, direct filing orders, which raise questions about personal jurisdiction, and then mandatory participation agreements for lead plaintiff's counsel that require those lawyers who aren't in leadership positions to sign on and sign over a portion of their fees in order to get access to discovery.

 

So there are questions, of course, about whether those are contracts of adhesion. So I realize that I sound critical, and perhaps probably more critical than I mean to be, but the negotiation parties are often approaching the court in unison, which means that MDL judges don't have benefit of adversarial airing of a lot of these different issues. But my worry is that the drive to settlement may be overshadowing core procedural values. Values like the reviewability of judicial decisions and orders, whether there's adequate representation in appointing non-class MDL leaders, whether there's transparency, particularly in litigation that bears on public health and safety. And then I also worry about the development of state substantive law.

 

So there are tons of questions, for example, the public nuisance doctrine when it comes to the opioid lawsuits, that really haven't been fully fleshed out, and yet we tend to rely on those doctrines quite a bit. So as the Sixth Circuit recently reminded us in one of the successful mandamus actions in the opioid litigation, MDL is not some sort of border country -- judicial border country where the rules are few, and the law rarely makes an appearance. So MDL judges don't have nationwide jurisdiction over these cases. Instead, what makes the MDL courts exercise of power constitutional is this idea that the original court does have jurisdiction and the complete fiction that these cases are going to somehow be remanded back to the original court at some point. So data shows that fewer than three percent of those cases that are transferred to an MDL ever return home.

 

So what can be done? I'll conclude with just a couple of comments here. I have a lot to say on this topic, but I'll limit myself. I think that we can recognize the really important gaps that MDLs fill, but we can nevertheless reintroduce some guardrails that can help effectuate individual rights and state rights on which procedure is based.

 

So, first of all, I think judges should really focus on adequate representation when they're appointing lead lawyers in the same way that judges are focused on adequate representation in class actions. Currently, there's an MDL subcommittee that's considering something akin to this. And then second, I think that courts shouldn't be afraid to remand cases. So they can remand cases at key points in any sort of proceeding, perhaps at the beginning for cases that fall outside of the types of issues that the lead lawyers decide to work up, maybe again at the end when there's a global settlement and you have cases that don't want to settle. But the point is that remands can give plaintiffs control and voice opportunities. They can give defendants an opportunity to engage in case-specific motion practice, which, of course, can help develop state substantive law. Remands can help correct judicial error by building redundancy into the process.

 

As we've seen, there are very few appellate opportunities in an MDL. But when the state substantive law varies, and it lies at the heart of the dispute, you don't have to hold up the whole proceeding through an interlocutory appeal, particularly if those issues can be worked out on a remand. Remanding cases can relieve the substantive burden that's caused by aggregating state law claims with minimal commonality. So in this sense, we can ease some tension between the MDL on the one hand and federalism issues on the other. And finally, remands can allow for diverse communities to participate in fact-finding and democracy.

 

So I will turn it over to Brian at this point. I know he has more to say on this issue, and I look forward to hearing about it.

 

Prof. Brian T. Fitzpatrick:  Thank you, Professor Burch, for that great introduction to multi-district litigation. And I'm going to really pick up where you left off, which is your concern about all these other procedural values that might be getting short shrift in our current MDL process. And I think a fair summary of both your criticism of the MDL and a criticism from a lot of commentators and scholars is this: Our MDL process has focused on one procedural value, efficient case processing, to the exclusion of all of the other procedural values that we care about in our civil justice system.

 

And let me just say, I don't think this is particularly surprising that this is how the MDL has turned out -- to focus on that one value of efficiency above all others. Because the political constituency for the MDL statute in 1968 was federal judges. They were concerned that their dockets were going to be overwhelmed by mass torts. They went to Congress and asked for a solution. And it's not surprising the solution is very good at relieving docket pressure of federal judges, but it may not be so good on all of these other procedural values that Professor Burch has listed for us today.

 

I want to focus on one procedural value. I think it is the most important procedural value, and I think our MDL system is neglecting it. That value is accuracy. What is the point of having a court system if we're not reaching the right answers in the cases that are being litigated? There is no point in my view. Accuracy is the most important job of a court system. We want resolutions to match the actual merit of the cases, the claims, and the defenses.

 

I think our MDL system is a recipe for very inaccurate decision making. And I say that because the way that the statute works is it takes decisions that would be handled by many different judges and gives all of the decisions to one person, one single person gets to decide everything. It could be dozens or hundreds or even thousands of cases. One person decides everything that goes on in those cases.

 

Now, formally, the MDL system is only there for pre-trial proceedings. But we know, as Professor Burch just said, that 97 percent of the cases end in pre-trial proceedings in multi-district litigation. So that one MDL judge is controlling everything for 97 percent of half of the civil cases in the federal system, as Judge Grant reminded us at the outset. Even when the three percent of cases are remanded, they are tainted by the law of the case doctrine. It is hard for the judges on remand to reconsider things that have already been decided by the MDL judge. And all of this happens with almost no appellate opportunities.

 

Professor Burch mentioned a Sixth Circuit mandamus petition that was successful in the opioid litigation. That is an aberration. There are very few opportunities to appeal the decisions of MDL judges because they're all pre-trial proceedings, there's no final judgment. So all this power's in the hands of one person. This is not the way we usually think we get the best answers to questions is by letting one person decide everything. We usually think if we have more minds thinking about something, more diverse minds thinking about something, we're going to get better answers in the end. That's an intuition I think a lot of us have.

 

There's a field of mathematics that has formalized the intuition. It's called the mini minds literature. It flows from something called the Condorcet jury theorem. But it's basically just this idea that if you add more people to a group thinking about something, you're more likely to get good answers so long as you don't have any reason to think that the average competence of the group is going to fall as you add more people. And so long as you think that you're going to get more diverse perspectives as you add more people to the group. And so I think that the recipe of our MDL system is the opposite of the recipe that the mini minds literature, the Condorcet jury theorem, mathematicians would tell us is the way to get the best answers.

 

And I'll just give you one example. Professor Burch mentioned it earlier, this Roundup litigation. It's all been consolidated before a good friend of mine, Judge Chhabria. We clerked together. He clerked for Justice Breyer. He has all these Roundup cases -- thousands of cases alleging that the weed killer is causing cancer. And he decided not to grant summary judgment for Monsanto. This is a question that's been looked at for decades, does the active ingredient in Roundup cause cancer? It's been looked at for decades by scientists, by governments, by lots of different people.

 

And Monsanto moved for summary judgment and said that what the plaintiffs were relying on was not very good science -- their experts should be excluded. And Judge Chhabria said, "You know what? I think this evidence is pretty weak. Evidence that Roundup causes cancer is pretty weak. And if I were in most other circuits, I would actually exclude the expert and grant summary judgment. But because I'm in the Ninth Circuit, and our law on experts is so permissive, I have to let these cases go forward." And because of that, Monsanto has now already settled up to the tune of $10 billion. If this litigation had been somewhere else, it could have been zero.

 

This is not the way to get accurate outcomes is by putting all of our eggs in one basket and hope that that person does not drop the basket. Now, if we wanted to add more minds to our MDL system, what could we do? One proposal is the one that Professor Burch made, remand more cases earlier.

 

I want to focus on two other ideas. One is more appellate review. We could get three-judge panels on appeal more involved in what the MDL judge does. I think that would improve accuracy. We've quadrupled the number of minds we have on these problems. But it does lose a lot in efficiency because everything has to stop for a year or two every time you want to take an appeal. Not many things would end up being able to be appealed, so we wouldn't get many minds very often.

 

Something I like better than appellate review is sharing each MDL among multiple judges. Instead of just choosing one judge, we could either have a panel of three judges that presides over the MDL. We could also try something different than the three-judge panel district court that we use sometimes for election cases. We could try dividing MDLs into pieces and then giving each piece to a different judge.

 

I actually really like this dividing approach. Even though you're going to lose uniformity because some judges might be deciding different pieces differently, you gain a lot in accuracy because you have different people independently assessing the merits of these various questions over time. It's our common law system working. You also have some collateral benefits by breaking things up into pieces.

 

So one of the things that Professor Burch has been concerned about in her work is we get these repeat players appointed every time by the MDL judges to run the cases as lead counsel. Well, if you broke MDLs up into pieces, then you could have different judges choosing different leadership teams. You could get more lawyers involved in MDL leadership. One of the big concerns that a lot of people have is the lack of diversity of the leadership teams that are appointed in MDLs. If you had more judges with more pieces, you have more opportunities for lawyers to participate. So we get accuracy gains. We get diversity gains.

 

If we made one piece per dis, we wouldn't have that problem that Judge Chhabria had where you apply Ninth Circuit law to all the cases. If we had one judge presiding over all the cases filed in one circuit, we could have each circuit's law applying to the cases that were originally filed there. So we could match up federal law with the cases where federal law should be applied there.

 

So I think there's a lot of benefits to getting more minds involved in the MDL. Accuracy, as well as some of these collateral benefits. I think there's a way to do it without losing too much inefficiency. And I'm very much looking forward to hearing what our next panelist Christopher Seeger has to say about that.

 

Christopher A. Seeger:  Thank you, Brian. And thank you, Beth, for your comments too.

 

I'm living in the world here that's being somewhat criticized, and I have a very different perspective. It probably wouldn't surprise people. But I'd like to just back up just briefly to talk about perhaps some of the causes for the growth of the MDL and what's brought that about. I think we could look at probably three factors.

 

One is Supreme Court rulings in Amchem and Ortiz, which made it, for a long time, nearly impossible to certify class actions involving personal injuries. And that's one component of it, because I think as Beth mentioned — and I agree with her — that there has been a massive explosion in product liability MDLs, and those are cases that come from the fact, I believe, that you can't -- for a long time, you couldn't certify those. Now, I can circle back later to the NFL concussion litigation, where we did get a class certified. It was upheld through the Third Circuit, and we survived the cert processes in the Supreme Court. So I think Rule 23 is back in play for personal injuries but under very limited circumstances.

 

The second thing is that we — and we shouldn't overlook this — we live in a consumer society where products are sold to millions of people, and when there is something that goes wrong, it injures huge numbers of people. If that product happens to be a drug and it's sold to 20, 30 million people, and it has a side effect that even only affects 5 or 10 percent or less, you have potentially many thousands of cases. If it's a product -- in the Chinese drywall situation, where imported -- when drywall was imported after Katrina to rebuild homes in the Gulf Coast, it affected thousands of homes. So the mass -- the potential for mass harm is great. And when it goes wrong it's going to go wrong in a big way.

 

And these MDLs -- we have to really think about what they are. And look, this is my perspective. But these turn into big workouts. No matter who -- both sides, for the purpose of a conference, need to be honest about what we're dealing with. Defendants don't want to try tens of thousands of cases. I'm not going to say plaintiffs want to try tens of thousands of cases. So generally, what the MDL has become is a data-gathering tool to inform the parties to get them to the point where they can either resolve the case or move forward.

 

And I understand the criticism about there haven't been that many remands, but that's been a function of both sides not wanting case -- I have been in the room many times where judges have called lawyers in and said -- I'll use the example of the Vioxx litigation I was a co-lead in. We tried 18 plaintiff's cases throughout the country. At some point, judge panel just called the parties and said, "Look, I think you've gone as far as you can go using the MDL. So here's your -- so the option is I'm going to start remanding cases by the thousands." And in that one instance, it was the defendant that said, "Well, we're okay with remanding, but can you hold off a little bit. We want to think about that."

 

And I'm not trying to present a picture where the plaintiffs love the idea of trying cases throughout the country. That's a lot of work, and it's going to drive up transaction costs. So I think what ultimately happens is the parties get what they need from these MDLs. Both sides, I think, complain about the aspects of them — and I'll talk about that in a second — but I think ultimately they work very well, and they're doing exactly what they're designed to do. I think judges have done a -- by the way, I left out point three because it's a point that I need to be fair about.

 

Attorneys advertising for cases is a very simple thing. Obviously, the Supreme Court ruled that it's First Amendment speech. Anybody in today's technological world can slap up a website and get thousands of cases. I have my views on that as a plaintiff's lawyer, and I'm on both sides of that. That's got issues, and it's a good thing in some respects, and it's a bad thing in others. Because many of those law firms don't really want to litigate those cases, they want to park them until folks like me try them, create a settlement vehicle for them, and they put them in.

 

But I want to talk about some of the things that I think the — and quickly because I think I only have eight minutes — that MDLs have done very well. The system was not designed to take on 10, 20, 30, 100, 200,000 cases at one time. So when we talk about when the rules were created, I don't think that this was anticipated. And judges and lawyers have done a very good job dealing with a situation that was never anticipated. And sometimes, we are bending and stretching the process. And I understand that when you're on the losing end of -- or you're on the side of that where you're not happy with the outcome when that rule gets stretched, we complain about it. But ultimately, I think it's doing really well.

 

Perfect example is the Zyprexa litigation that was in front of Judge Jack Weinstein in the Eastern District of New York. It was a case that involved an antipsychotic medication. I had, personally, concerns — I was one of the leads — I had concerns about allowing the defendant to just go individually negotiate privately with law firms because people were on an antipsychotic medication. I felt like as a lead, I couldn't really adequately monitor how the settlement would be implemented. We went and discussed this with Judge Weinstein, and Judge Weinstein said, "I don't think you -- defendants should go do inventory settlements. You guys should try to negotiate a global. I'll bring in a Special Master to" — I'm cutting through all the steps — "I'll bring in a Special Master," who was Ken Feinberg at that point, "To come and administer it." And he asserted his authority to do that even though it was a non-class settlement under Rule 23, and coined the phrase, "quasi-class action."

 

Which I believe when Judge Weinstein did this, he thought it not only allowed him to reach out and touch the lawyers as to attorney's fees, which is the way I think it's developed where judges have used the term "quasi-class action" to control attorney's fees in non-class settlements -- in MDLs specifically. He had more in mind, I believe. And that was to actually look at the settlement and decide whether he was satisfied with it, and in some respects, approve it.

 

And in the opioid litigation -- another example of where we are seeking to stretch Rule 23 once again is in the negotiation class that we have certified before Judge Polster. But the problem that we were looking to deal with was that when we tried to negotiate settlements on behalf of political subdivisions against distributors and manufacturers of opioids, we kept being confronted with the question of, "Who do you represent?" There's only 2,500 political subdivisions in the MDL. There are 30,000 nationwide. We can't negotiate with you because we don't know if you can deliver peace.

 

So it was really the brainstorm of Francis McGovern, who was the Special Master. And working with Bill Rubenstein, who is a professor and a colleague of Beth and Brian's, to come up with this negotiating class, which was just designed to be a voluntary tool — you don't want it, you don't need it — to certify a class for negotiation purposes only. We didn't seek to certify litigation claims. We didn't seek to certify it as a settlement class. But we wanted to put together a voting mechanism so that if the political subdivisions throughout the country wanted a settlement, they could vote on it. And if it was approved, we would then move to submit the settlement pursuant to Rule 23(e).

 

So I just give those in my brief eight minutes -- I give those of examples of attorneys and judges struggling with the system that sometimes feels really like it's going to collapse under the weight of all this litigation. But I think ultimately doing an extremely good job in those circumstances. It's creative. I know it makes people uncomfortable because there are probably people listening to this that believe that there needs to be a rule that authorizes everything and that if there's a rule of procedure, it needs to be read strictly the way it's written. And it gets pushed all the time. That happens with Rule 16 -- gives judges a lot of power in a district court. They force trials. They force settlements. And have managed for many, many years to get a lot of great things done by doing that.

 

So I am a fan of the system. And the one criticism I will take on — and I'll say it briefly — and it's something I think Beth has touched on in a lot of her work -- is the lack of transparency sometimes. What's going on in non-class MDLs. What's going on with the money? Who's getting paid? Are people happy? Are lawyers doing a good job? I think that MDLs, and the judges and lawyers working together again, have done a very good job in the last several years of making that information more available.

 

I'm involved with a project at NYU where we're seeking to collect data on MDLs so we can make that available to judges and lawyers and folks looking at this stuff to show what I believe is true, which is that we've done a pretty good job of dealing with problems, working out solutions to big problems that sometimes could be company killers and don't often have to be, and distributing that money to people in a very efficient way.

 

So, Judge Grant, I'm sending it back to you. You've got lots of work.

 

Hon. Britt C. Grant:  Thank you. Very interesting comments from all three of you. I will start out, actually, posing a question to Mr. Seeger, and then perhaps Professors Burch and Fitzpatrick can jump in to defend their ideas if you see some disagreement. But you've obviously articulated a belief that the MDL system is working right now in dealing with these complicated cases. Do you have any specific reaction to, say, the proposal to do three-judge panels, similar to what we see in some types of election cases, or to remand cases more frequently, as our two friends from the scholarly world have suggested?

 

Christopher A. Seeger:  I do, Judge. The three-judge panel, I don't have an allergic reaction to it. I think Brian and I have even -- I've discussed this in the past, in passing when I see Brian. But it's always -- my concern is always that when you go from one thing to the next, are you really making an improvement? Or are you setting yourself up for more problems?

 

So Brian, respectfully -- to use the example of the Roundup situation where it might have been different in the Third Circuit or the Fifth Circuit or the Eleventh Circuit, practicing lawyers are confronted with those decisions all the time. So that's really no different. Do you know how many times I've said to myself, "Boy, I wish I had that class case in the Third Circuit or the Second Circuit, as opposed to the Eleventh or the Fifth?" And I don't mean anything disrespectful to any of those other circuits. I'm just using them as examples, Judge Grant [Laughter]. But my point is that there are differences that emerge in the circuits and until the Supreme Court takes those things up, we live with that.

 

On the remand issue, I find this a really fascinating point because, like I said, my experience has been I have not -- I lately have heard defendants say more and more to MDL judges, "Stop putting pressure on us to continue trying cases. We're not going to do it. We don't want to settle." Some of them have even said, "We're not going to waive Lexecon unless it's under certain circumstances." So my sense is somebody's going to test this very soon, this issue of remands. And we're going to find -- and we're going to get information from it, and we're going to find out if that's really the way the parties want to go.

 

The plaintiffs' bar, I can tell you, have been expecting this for a long time. We expect at some point a defendant will just simply say, "We really mean it this time, start remanding." And we'll start remanding cases, and we'll find out. Now, I do know — last point really quick — in the transvaginal mesh litigation, cases were remanded to many different districts. And I believe cases were tried, and they continued to settle. And I understand that process actually went very well. So maybe that is an option, Judge.

 

Prof. Brian T. Fitzpatrick:  Chris, I'd like to just ask you a little follow-up question there. I agree that the three-judge panel is not going to solve the Roundup problem where Ninth Circuit law is applied to everybody. Whatever three judges got it would have to choose which circuit's law they were going to apply to everybody. But the problem, from the Roundup example -- the problem it was supposed to exemplify is that why should one circuit's law be applied to everybody, to begin with?

 

If, let's say, 80 percent of the cases were filed in other circuits, but they're transferred to the Northern District because of the JPML, why does the Ninth Circuit law get to govern all of those cases? Do you have a problem with this idea of splitting up an MDL into pieces and maybe appointing one judge in each circuit to handle each piece? And those pieces would be all the cases filed in that circuit -- would go to that one judge in that circuit. We could obviously only do that for the biggest MDLs. But I think you're on the leadership team of the very biggest MDL in American history, that 3M earbud case. Would it really be so bad if there were 11 different MDLs going on, one in each circuit?

 

Christopher A. Seeger:  I don't know if it would -- if it's that it would be so bad. But why -- what's different about -- why should the case -- the mere fact that there are many cases be any different than if you drove your car across country and had an accident in California and you were from New York. And I'm oversimplifying this -- I know there are a lot of issues packed into that. But you may wind up in that -- having that state's and that circuit's law applied to your fact circumstances.

 

I think these are things that attorneys are just used to and comfortable. And when a case is MDLed, we know that it's going to be the law of the circuit in which the MDL court sits that we have to now look to. So that's part of the analysis we do. And I -- and Brian I'm not critical of it. I guess I'm just not sure if it would solve the problem that you're raising.

 

And the busting up into pieces part concerns me a little bit because then I think you'd begin to lose the efficiencies of the MDL. And it depends on what the pieces look like. And MDLs have been broken up into pieces. We've had -- in the Vioxx litigation, you had the personal injury cases. A third party payer economic loss litigation went to Judge Fallon in the Eastern District of Louisiana, and the securities case, I believe, went to District of New Jersey. So MDLs have been broken up. So I guess that question would be, what do you mean by pieces?

 

Prof. Brian T. Fitzpatrick:  Yeah, I don't like how the JPML breaks them up based on differences in the legal claims because I think the virtue of breaking into pieces is you get some redundancy in the decisions that different judges have to make. I think that's where you gain in the accuracy is having different people looking at the same question, and you hope that the average of, say, ten people looking at a question is going to be closer to right than just one person looking at that question.

 

Christopher A. Seeger:  I don't know if that's right.

 

Hon. Britt C. Grant:  Professor Burch, I think that Mr. Seeger mentioned the concept that some counsel may be waiting for the large MDL counsel to kind of take over the cases. Do you agree with that? And either way, please explain why, and let us know whether you think that prospect causes any problems for the idea of remanding more cases. How much of an appetite there really is there amongst a wide variety of counsel.

 

Prof. Elizabeth Chamblee Burch:  Sure. Yeah. So I mean -- I'm going to oversimplify things here. But I think in any MDL, you see kind of three groups of lawyers. So we'll just imagine that there's three buckets. You've got the sort of repeat players that I've talked about in the past, they're in a whole lot of these proceedings and that -- know how the system works and know kind of what the procedures and practices are. Then you've got the volume lawyers, for lack of a better word, the attorneys that represent a whole bunch of people but don't necessarily work up the cases and may not be in leadership positions. And then you've got kind of the traditional trial lawyers, the lawyers that we expect would only take cases that they're actually willing to take to trial, that screen cases very heavily.

 

So when we're talking about would lawyers be willing to take cases up on remand, I think it depends on which lawyers we're talking about. To the extent that we care about weeding out claims and we want to make sure that cases meet kind of specific requirements that might either ultimately qualify for settlement, or that might overcome kind of causation hurdles with summary judgment, then I think we care about the type of lawyer that those people have.

 

And so if I'm an attorney that represents 1,000 clients in a single MDL, and I'm faced with a prospect of a remand, then there may be a whole bunch of people who find themselves without effective representation. If I'm a volume lawyer -- sorry, if I'm a -- kind of a traditional trial lawyer, then I'm biting at the opportunity to take my case up on a trial, and I'm trying to kind of get out of the MDL so that I can ultimately advocate directly for my clients, rather than having to go through the MDL procedures.

 

Prof. Brian T. Fitzpatrick:  Professor Burch, I'm curious what you envision when you say you want to see more remands. Like, how many remands are we talking about? So let's take that 3M MDL. I gather there's 300,000 cases consolidated before one judge. In your ideal world, how many of those 300,000 get remanded?

 

Prof. Elizabeth Chamblee Burch:  Well, I don't want to put a number on it. I think it's going to depend on each case, and each case is going to be different. And there will be different benchmarks for different types of proceedings.

 

So I mentioned one at the very outset -- I'll just give you an example using the pelvic mesh litigation. So let's say that the lead lawyers in the pelvic mesh proceeding decide that they really only want to work out the cases that have had the revision surgery, that have had the mesh actually removed, and they don't want to deal with the cases that still have mesh in place. So at that point, remand the cases that still have mesh in place, allow those attorneys to advocate for their clients.

 

We have other benchmarks. So at the end of common discovery, if there are case-specific motions that really depend on state substantive law -- I think the MDL judges are happy enough to say, "Look, I'm not the foremost authority on what Georgia might say about this particular type of causation question, so let's remand it to the original district and y'all can work up case-specific discovery if you want to." Now, the odds are those cases are likely to settle. But they might settle on more specific merits related to that case as opposed to kind of the cases as a whole.

 

And then finally, I worry about the group at the end, the -- maybe it's a small percentage. I think Chris would have better figures on that than I would. But the clients that are sort of feeling forced into a global settlement or an inventory settlement. Some of the plaintiffs that I've talked to at a procedural justice study that their lawyers have told them that if they don't settle then they're not going to get a red cent, that they're not going to continue to represent them. And so I think they really feel coerced into that kind of a settlement. Whether the remand opportunity would open things up for them, or would it make things more difficult for them, I think, again, goes back to what kind of lawyer they retained.

 

Christopher A. Seeger:  It wouldn't surprise me that somebody -- oh, I'm sorry Judge Grant, were you about to…

 

Hon. Britt C. Grant:  No, go ahead.

 

Christopher A. Seeger:  I mean, it wouldn't -- on that point, it wouldn't surprise me that it would be easy to find a handful of clients that say, "I'm unhappy with my lawyer, my settlement amount, or I've been told I should drop my claim." Because when you have thousands of them, it's inevitable that you're going to have folks there. And I haven't spoken to these people. But I do know that there have been people that have been very vocal and quoted in your book, Beth, one of which was in the Vioxx settlement.

 

And I'm not going to get in -- I mean, you mention her by name and you -- I think you talk a lot. The only thing I don't remember seeing is that she was the single -- she received the single largest award in the Vioxx settlement, and she was still unhappy. And we were talking an award that was approaching $7 million in one single settlement. And that anybody would probably -- so it's easy -- the question is if you're going to be asking these questions, it's going to -- and I don't mean you, I'm saying generically -- if we want to study how this is going, it's going to have to be a little deeper than just a few disgruntled lawyers or their clients.

 

I think when you look at it -- we step back and look at it in a macro sense, it has gone very well. And I also think we -- if you're going to let perfection be the enemy of good here, we're going to destroy a system, I think, that is working very well. That doesn't mean it doesn't -- it can't use improvements.

 

And I'll tell you why I received a ton of criticism from the plaintiffs' bar in a panel I did with you, Brian, that you talked me into and got me in trouble about frivolous claim, or meritless claims [Laughter]. And I'm -- I see myself -- a clip gets played over and over amongst people who are upset with me. But I had to acknowledge as a leader in MDLs that there is some element of meritless claims.

 

So we -- what has happened since then, frankly, though is that judges are aware of it, lawyers are aware of it. Plaintiff's lawyers who lead these cases don't want them either. And I think we're getting closer to dealing with that as a problem. I mean, through new mechanisms that have come out, through innovation like taking a census, improving on plaintiff fact sheets. So those are things that I would acknowledge that maybe members of the audience here would look at and say, "Well, how do you deal with all the meritless claims?" Well, we're working on it. And first, you have to acknowledge it may be an issue and then try to find some solutions to it. But that's why I like the current system. The current system allows us to do that.

 

Hon. Britt C. Grant:  The one question…

 

Prof. Elizabeth Chamblee Burch:  Can I just jump in there?

 

Hon. Britt C. Grant:  No, go ahead.

 

Prof. Elizabeth Chamblee Burch:  Oh, sorry. Well, I was just going to say on the meritless claims point, yeah, I find this a little bit frustrating. People always talk about meritless claims, but we really don't have a definition of what meritless means. Meritless might mean that they worked up their case. They went to summary judgment. They had summary judgment granted against them. That doesn't mean it's meritless in the Rule 11 sense. We might mean meritless in the sense that they've lost their doctor's records and that they're no longer able to provide the kind of proof that we're talking about. Or we might be meritless, meaning frivolous, right, in the sort of specific sense of the word.

 

But without a sense as to what the data says on how many claims are meritless and for what reason, I worry that we are looking -- we're sort of -- we've got this solution in search of a problem. We're doing all these things like plaintiff's fact sheets and census, which are driving up costs for plaintiffs, and ultimately we don't really have a sense as to what the problem is that we're trying to combat.

 

Hon. Britt C. Grant:  I think that's a great place to start to transition to audience questions. So I've got one more question for the panelists that we can use while everyone is getting geared up for your audience questions.

 

Remember, we'll only be taking questions from Zoom. So you should use the raise hand button in the middle, lower part of your screen. If you're on Direct Zoom Telephone, you can dial star nine. Anyone who would like to ask a question will be moved to the top of my attendee list that I can see, and I'll answer -- I'll reach out to those questions in the order that they are received.

 

So while everyone is gearing up for their questions and raising their hands, I'll ask all three panelists for a hot-take response to the question, where's the plaintiffs -- where's the defense bar, and where are defendants right now on MDLs? We've talked a lot about plaintiffs. Is there an emerging consensus or approach amongst the defense bar about how MDLs are working or not working?

 

Christopher A. Seeger:  Do you want me to take that one first, Judge?

 

Hon. Britt C. Grant:  Sure. Go for it.

 

Christopher A. Seeger:  I think that -- well, there have been proposals made by the Chamber, and I know supported by some defense firms, of rule changes that I think those folks believe would improve the MDL process. One of which — and it was just recently rejected by the Advisory Committee to the Rules Committee, which is led by Judge Dow — one of those proposals was to allow for more interlocutory appeals.

 

And I think the view there — and I'm going to try to do my friends some service on the defense side, and then probably a few that can chime in — is that major rulings put a lot of pressure on defendants to settle, and there ought to be some mechanism for reviewing those, whether it be Daubert rulings or scientific rulings, evidentiary rulings about what could be seen at trial by a jury, and a number of things. I believe that was rejected, and rightfully so, because my view is that first of all, I think taking things up on an interlocutory appeal would cause unwarranted delay.

 

And remember, you've got thousands of cases going to trial individually, so even if a defendant loses the first trial, they can take that case up and appeal all of those issues, the scientific rulings, all the pre-trial rulings they want while the case continues to move forward. The other thing is, I think that the panel -- the Advisory Committee -- because the Rules Committee looked at instances in which district courts were granting 1292(b) appeals. And I think they felt comfortable that it was being done often enough, or at least in instances where it was warranted, where they agreed with those instances where it was. And that in the instances where those appeals were granted, district court judges were, not surprisingly, not being reversed. They were being, actually, affirmed in over 90 percent or something like that of the cases, which isn't a big surprise because I think generally they are affirmed, generally.

 

But I didn't think -- I think there was no there there for that particular proposal. But I mean, I'm sure you have a number of folks up from the defense bar ready to weigh in on this issue who are watching the Conference. So I don't know if Brian and Beth have a comment on that.

 

Prof. Brian T. Fitzpatrick:  Well, I mean, Chris is certainly in contact with the defense bar more frequently than I am, and I suspect Professor Burch is as well. But what I hear when I speak to corporate general counsels is they're very unhappy with the MDL system, and they've grown more and more and more unhappy over time. And I do think some of it is that they have just so much at risk by having everything in the hands of one person. If you get a bad ruling -- if you get a bad judge or a bad ruling, there's not a lot you can do besides pay $10 billion. And I think that that is concerning to people.

 

And it's one of the reasons why I think we ought to consider not putting all of our eggs in one basket. If you don't like appellate review — and I think there are legitimate reasons not to like it because every time you go up, it's going to prolong things a year or two — I think we need to find other ways to make this less of an all or nothing enterprise for both defendants and plaintiffs, for that matter. I mean, it's possible. You get an outlier judge, dismisses the entire MDL on summary judgment, and no one gets anything. That's happened on a handful of occasions. So there's great risk to both sides to putting all your -- all our eggs in one basket. And I just don't think it's necessary.

 

Prof. Elizabeth Chamblee Burch:  So I don't think I have anything to add to what Chris and Brian have talked about on the defense side. But I'd love to hear from some of our participants to see if they want to chime in on any of those fronts.

 

Prof. Brian T. Fitzpatrick:  Professor Burch, I'm curious, where did you come out on that proposal for more interlocutory appeals?

 

Prof. Elizabeth Chamblee Burch:  Well, so Professor Gluck and I have a new paper that will be coming out soon called "MDL Revolution," and I think we both recognize the need for greater appellate review, particularly on key decisions. I think that it can be effectively done through mandamus. I think we've seen a lot of that in the opiate litigation, particularly when you have kind of outsiders like the state attorney generals who are jostling for position. I worry that having kind of an additional break in terms of appellate review will slow proceedings down. That's why I tend to lean towards the remand possibility as opposed to providing greater appellate interlocutory view. Even for kind of major decisions, I think that there are ways to get those reviewed now if they're real decisions of consequence.

 

Hon. Britt C. Grant:  Thanks to all three of you. It looks like we've got a question from Eric Everett. Mr. Everett, please be sure to unmute your line before you start asking your question. Mr. Everett, I think you might be muted. Let's see. Well, it seems like we're having a problem hearing Mr. Everett. Everyone, please remember you can raise your hand and ask a question of our panelists if you wish to do so.

 

Otherwise, I will keep asking them -- it's been a fascinating discussion from my perspective. Do you -- what do all of you think about the prospect of MDLs becoming the new class actions of the future? Not in terms of substance, but I think the focus of a lot of litigation discussion has been on class actions in the past. Do you think there's any prospect of MDLs overtaking class actions as one of the main vehicles that people are using and talking about?

 

Christopher A. Seeger:  You guys want me to try to take that? I don't know. You know, there are a number of class actions that never make their way to MDLs, obviously. Because it could be that the lawyers just -- a particular jurisdiction makes sense, they wind up in one district, and ultimately in front of a judge. Or it could just be that one group of plaintiff's lawyers is so far out ahead of anybody else that nobody else is really jumping into the case, and it looks like it's on its way to being certified. So I don't personally see MDLs as a replacement for class actions because -- I mean, even though I do know that there are still class action MDLs, I think MDLs for the future are still going to be driven by product liability claims for the most part. That's the way I see it.

 

You know, there could be like in Volkswagen there were MDLs filed throughout -- I'm sorry, there were class actions filed throughout the country. It was basically a consumer case, and they were sent to Judge Breyer in the Northern District of California. But I don't see the one replacing the other. I think they're very different.

 

Can I make a quick point on the mandamus point that Beth made earlier, Judge? Just you -- she brought up something very interesting. I have been seeing more over the last couple years -- a lot -- and I'd love to hear a defense lawyer weigh in on this -- I've been seeing more mandamus petitions district court decisions. Recently I just saw one filed in the Third Circuit involving a venue decision in a securities class action made by a district court judge. I thought that was highly unusual for a venue issue to go up on mandamus. The Third Circuit hasn't ruled on it yet. It'll be interesting to see. But it seems like -- I think where Beth was going, it seems like I'm starting to see that tool used more whereas in the -- and I've been doing this now for a very long time -- mandamus was rarely used in the past. So curious if there's been a change in thinking on that.

 

Prof. Brian T. Fitzpatrick:  I just want to chime in here briefly, Judge. I know we have a few questions, so I'll be very, very quick. I'd be curious to see some data on how often these mandamus petitions are successful because they're supposed to be extraordinary, and my sense is they're very hard to actually get granted. But I do want to agree with Chris on your question about are class actions going to go away. I don't think they're going to go away. I think the world is going to be divided into two halves. If the class -- if plaintiffs have lost a small amount of money, small stakes losses, the class action device will be used for those people. If the plaintiffs have lost a large amount of money, 25, 100 grand, we're going to see those cases going to MDLs and not to class actions.

 

Hon. Britt C. Grant:  Mm-hm. Interesting. Thank you. It looks like we've got a question from Richard A. Please make sure to unmute your line.

 

Richard A. (sp):  Yes. I heard one of the comments earlier that oftentimes a judge will say, "Well, I," sort of that, "I don't remember that much about Georgia law, so I would just assume remand it to let the Georgia judges take care of it." My impression in my limited experience is that most judges try to find a way to always apply forum law because that's what they know best. And that they kind of make up choice of law rules as they go in order to come up with that result. Is that a problem in MDL? Do MDL judges tend to apply forum law more often than they should?

 

Prof. Elizabeth Chamblee Burch:  So I'll just say I haven't done any sort of formal study on what law applies in which cases, so I can't give you any kind of qualitative numbers. But my sense is that there is a bit of a mush going on -- I think that's a technical term [Laughter]. But you've got this -- you've got a judge who is faced with cases oftentimes from 50 different states, they're trying to encourage settlement, and whether it's a formal ruling on choice of law questions or not, as soon as cases go into a settlement, then the mush occurs. So there's much less differentiation between Georgia law or California law or any other state's law. I think it happens mostly in terms of settlement, perhaps at some point in terms of direct kind of choice of law questions. Chris, maybe you have a better sense as to that.

 

Christopher A. Seeger:  It was a little bit hard for me to hear the beginning of the question. And if it -- the end of it I thought where the questioner was going was, are judges more comfortable applying the law of their forum? And I don't think MDLs are an exception in any respect because the law you're going to look to is the circuit that you're in. And you'll apply whatever tests are there, given whatever the issue is that you're looking at. So I didn't -- in the settlement side, though, Beth is totally correct. You don't see the issue of different states' laws dragged into the settlement. Usually, that is all -- that all goes away at that point, and it's all harmonized in some kind of a compensation scheme.

 

Hon. Britt C. Grant:  Thank you. Great question, and good answers. We've got our next questioner, Mr. Scott Kupke. I apologize if I've mispronounced your name. Please make sure to take yourself off mute.

 

Scott Kupke (sp):  Yes. Can you hear me?

 

Hon. Britt C. Grant:  Yes, thank you.

 

Scott Kupke: Yes. This is addressed to Mr. Seeger in response to a point of Mr. Fitzpatrick's. Mr. Fitzpatrick has said a few times that there's a risk to the plaintiffs' bar to have a "bad judge" -- whatever, however you want to define that. And the question, Mr. Seeger, is why don't you have as much fear from the plaintiff's side from doing a whole bunch of work and coming up with the center of the doughnut on what you would consider meritorious cases in having that bad judge? Is it because that somehow the plaintiffs' bar is able to steer the litigation to a favorable forum, which if you want experts to survive in the so-called -- and go to the Ninth Circuit? And I'm curious -- the specific question is why Mr. Seeger, why aren't you fearful of the bad judge? And I appreciate your help.

 

Christopher A. Seeger:  Yeah, thanks for the question. So it's not that we don't, in the plaintiffs' bar, have a fear. Like any attorney -- we're all very competitive on both sides of the V. And the defense bar does the best they can to represent their clients, and I do the same, and so do the other plaintiff's lawyers. So we do -- we have a sense when a case is going to be MDLed, of the judges who are in play. And there may be some that have a different perception than others.

 

      But I -- and it could just be that I turned 60, but I've just stopped sweating those issues. I ultimately -- this is going to be a very unsatisfactory answer to you, but I ultimately have come to the conclusion that I don't care what a judge's ideological bend is. I've been treated fairly by judges across the spectrum -- judges are judges. I'm -- I just hope they're calling the balls and strikes as the law is in front of them. Sometimes I win -- sometimes I win in that scenario. And I guess I've just been through enough of those wars to not be so hung up on that.

 

Now, that doesn't mean that I wouldn't want to be in a particular circuit on a particular issue. And I'll give you an example. In the concussion litigation, one of the big issues we had was preemption. I -- there was -- there were a couple of cases out of the Third Circuit that looked better than other circuits. I was pretty happy in the NFL concussion litigation to be in the Third Circuit. I mean, I didn't forum shop. The MDL panel sent it to a judge in the Eastern District of Pennsylvania. Just so happened that on that particular issue, I thought we would do better than the NFL would on that.

 

And my adversary on the other side, Brad Karp, might have read that case totally differently, and if he were on here would say something else. So I think -- I'll just make this point really quickly, and I don't know if Beth and Brian have anything to add to it. Ultimately, what I value is cases that move in getting decisions. And sometimes the decisions go against us. Sometimes they go for us. But keeping cases moving has a real premium, I think, for both sides.

 

Prof. Brian T. Fitzpatrick:  I think it's such an interesting question. And that was a really interesting answer, Chris. I've often wondered if there is a psychological reason why an MDL judge would be more reluctant to grant summary judgment for the defendant than to deny summary judgment for the defendant. And a psychological reason is if you grant that summary judgment, you are dismissing thousands and thousands and thousands of cases in one fell swoop. And that may be hard psychologically for a judge to do. It's may be easier psychologically to just let the cases continue so you don't feel responsible for such a dramatic outcome. And so that's one thing that I've kind of wondered about is maybe the plaintiffs' bar isn't as afraid because there's a psychological bias against dismissing all the cases that the plaintiffs' bar can benefit from, the defense bar cannot. That's total speculation and armchair psychology here.

 

Christopher A. Seeger:  I'll make an observation on that in the fairness. I do feel like when you are handling a personal injury case, I think judges do feel somewhat the weight of that. And I don't care if it's a single incident, automobile accident, or it's a complicated case against a very sophisticated defendant like a pharmaceutical company with the best lawyers in the world. I do think there is some weight to that because something's been taken. If it's a death case, or a limb, or an organ. And I think they try -- I think there is an effort to really hear that case out.

 

      Having said that, I've had cases thrown out. They've gotten to the point where they've been thrown out. And that is my point -- look, both sides, let's be fair -- both sides can say -- if we were sitting around having a drink, somebody on the defense side would say, "Love that judge. Threw my -- threw out this lousy case these stinking plaintiff's lawyers brought." Plaintiff's lawyers sitting around go, "Love that judge. Judge gave me the best ruling in the world, kept all my expert testimony, and I'm going to win this trial." I just don’t think that's a fair way to evaluate the system or to make a blanket statement about judges. And I just -- in the world we live in, we are kind of -- I just don't like getting into the whole, I like this judge, don't like this judge, don't like who appointed that judge, don't like that. I've been treated fairly by judges all over the spectrum. And I've been -- and I believed I've been treated unfairly by judges all over the spectrum [Laughter].

 

Hon. Britt C. Grant:  On that note, we'll move to Margaret A. Margaret A., please make sure you're off mute. Margaret A., you're up.

 

Margaret A.:  Can you hear me?

 

Hon. Britt C. Grant:  Yes, thank you.

 

Margaret A. (sp):  Great. I want to make a quick observation, followed by a question, directed to the two academics on the panel. Although, anybody can chime in as well. The observation is that Professor Burch has detailed a situation where the plaintiffs are not happy with their representation. Brian chimed in with the fact that the general counsels, as opposed to the defense bar, are not happy with the MDL situation. And so what I see is an agency problem where the clients are not happy with this monolithic situation. And my question is, is anybody doing a study on this? Because two economists at Emory University did predict that law would develop over time to favor the interest of the lawyers as opposed to the clients. And that's what I'm observing here. Are you aware of any economic studies being done on this problem -- agency problem?

 

Prof. Elizabeth Chamblee Burch:  So I'll just chime in. I'm not aware of economic studies that have been done on this problem. I wrote a book that Chris absolutely loves — I'm joking here [Laughter] — called Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation. And I did look at the data that was available, but there's a very steep caveat there. And the caveat, of course, is that I can look at the procedural inputs. So I can sort of talk about Lone Pine Orders, and I can talk about Census Orders, and I can talk about how that plays out. But I don't have substantive data on how people actually fair under the system.

 

So one of the things that I'm trying to do right now is a procedural justice study where I'm actually talking to the participants, and it's focused on women's health MDLs. So things like Mirena, Yasmin, Yaz, NuvaRing, the pelvic mesh litigation. And I'm trying to get a sense as to not what the substantive outcomes are, but whether people are happy with the procedures that are being used to resolve these types of cases.

 

Prof. Brian T. Fitzpatrick:  For my sake, I'm not aware of any studies of the type that you described. But it makes perfect sense to say that lawyers are a special interest group like any other special interest group. They would like to engage in rent-seeking if they can and create favorable opportunities to enrich themselves. So I don't think lawyers are exempt from any of that public choice analysis that we normally apply.

 

I would just say the following, however. I understand how unsophisticated plaintiffs might be at risk of being taken advantage of rent-seeking by their lawyers like that. It's hard for me to understand how general counsels of major American corporations do not have control over the defense bar. Any rent-seeking the defense bar was engaged in, to the detriment of their corporate clients, it just strikes me as hard to believe could take place because these people know what they're doing in these general counsel's offices. And they can move around a lot of money to other law firms if their law firm is not behaving in the appropriate way. And so I understand the theory. I just don't see the mechanism on the defense side as plausible. But maybe my imagination is just not great enough.

 

Hon. Britt C. Grant:  Thank you, Professors. With that, I think we'll go to our last question from M. Patrick. Please make sure your line is unmuted. M. Patrick, are you with us? Please make sure to unmute your line.

 

M. Patrick (sp):  Yeah, I'm trying. Can you hear me? I'm talking on the phone.

 

Hon. Britt C. Grant:  There -- yes, you've got it.

 

M. Patrick:  Okay. Okay, great. I read an article shortly after Bristol-Myers Squibb was decided that predicted the result would be that you'd have more cases in MDLs because mass tort plans had to follow in all 50 states or the forum where the defendant was at home. But the prediction was this is necessarily can relate to more MDLs. And I'm curious as to whether that's been born out.

 

Christopher A. Seeger:  That's a good observation. I haven't really given it -- but it would make sense because basically would be -- what Bristol-Myers Squibb says is it's pretty much made it impossible, if not extremely difficult, to file out-of-state plaintiffs in jurisdictions like California and others. So it would make sense then that those cases would be driven into the federal system. So that would be no surprise to me. I don't know if Brian and Beth have a different view of that.

 

Hon. Britt C. Grant:  Any response from our two academics?

 

Prof. Elizabeth Chamblee Burch:  So I'll just say I don't think that there has been data that I've seen that's collected specific to Bristol-Myers Squibb. The Federal Judicial Center has collected a lot of data on MDLs over time. There's a great study that was published in the Georgia Law Review by Margaret Williams, who's at the Federal Judicial Center that looks at MDLs over the past 50 years. And you can really see kind of different fluctuations as you have an influx of, say, asbestos or pelvic mesh, and then a resolution of those cases. And so whether there's a trend upward over time, I think we'd need a little bit longer to tell post-Bristol-Myers.

 

Prof. Brian T. Fitzpatrick:  I can only understand Bristol-Myers leading to more MDLs in one type of case, and that is cases involving small stakes class actions. Because cases that were already big steaks, these were already being filed individually, and they were already being MDLed. The reason why Bristol-Myers could lead to more MDLs involving small stakes class actions because you may not be able to file a nationwide class action anymore, and so you may have to file class actions around the country in various states. And if you have 50 different class actions for the same thing, now the JPML is going to create an MDL for those 50 class actions, instead of before Bristol-Myers, you would have one nationwide class action, and you may not need any kind of MDL to adjudicate that. So that's the one instance where I could see it making some change. But I really think big stakes cases were really not used with class actions and were things that had to be filed individually after Amchem and were already leading to MDLs.

 

Christopher A. Seeger:  I might have -- I thought his question was, would there be more cases. I wasn't thinking in terms of MDLs. You're right about that, Brian. But if you can't file out-of-state plaintiffs in state court where they can't be removed, they would -- they're going to -- there will be more cases filed into an MDL as opposed to a state court, yeah.

 

Hon. Britt C. Grant:  Well, thank you all for those comments and your comments throughout the panel today. I really appreciate our panelists being here. And of course, everyone who joined us on the audience, thanks for your listening and participation. Does anyone -- would anyone like 30 more seconds to close out?

 

Christopher A. Seeger:  I would just say thank you for inviting me to this. And Judge, thank you so much for organizing this and asking the questions and keeping this conversation going.

 

Prof. Brian T. Fitzpatrick:  Yes, thank you to The Federalist Society. And thank you so very much, Judge Grant, for doing this.

 

Prof. Elizabeth Chamblee Burch:  Yeah, absolutely. I just want to echo those thanks, both to The Federalist Society and to Judge Grant, and also to my co-panelists -- to Chris and to Brian. It was great having this conversation with all of you.

 

Prof. Brian T. Fitzpatrick:  And read Beth's book. It's great, and she names names [Laughter].

 

Christopher A. Seeger:  Don't read it. I say don't read it. Alright, read it [Laughter].

 

Hon. Britt C. Grant:  Well, but with that, we'll close a wonderful, respectful debate of the sort that The Federalist Society is known for between all these wonderful panelists who can disagree, and do so in a very nice way. So a reminder that we're closing the Convention for today. And please join us for the next convention event tomorrow morning at 11:00 a.m., which is a discussion of the “Law, China, and the Possible New Cold War.” Thanks very much, everyone. Have a great evening.

 

 

 

 

 

 

 

     

 

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11:00 a.m. - 12:15 p.m.
International & National Security Law: The Law, China, and the Possible New Cold War

2020 National Lawyers Convention

Topics: Foreign Policy • International Law & Trade • International & National Security Law
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On November 11, 2020, The Federalist Society's International & National Security Law Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The panel covered "The Law, China, and the Possible New Cold War."

The rule of law is a cornerstone of American democracy as it is for many other democracies.  China has laws and courts, but there is little to no “rule of law” like that practiced in established democracies.  What does this mean for China as a powerful global actor?  What does it mean for the United States?  If the rule of law operated in China as it does in the United States, would there be less tension in the U.S.-China relationship?  Our panel of experts will address these themes during its discussion.

Featuring:

  • Amb. Richard Haass, President, Council on Foreign Relations; Former Director of Policy Planning, United States Department of State
  • Prof. Julian Ku, Senior Associate Dean for Academic Affairs, Faculty Director, International Programs, Maurice A. Deane School of Law, Hofstra University
  • Hon. Mike Rogers, Board of Trustees, Center for the Study of the Presidency and Congress; Former United States Representative; Former Chairman, House Permanent Select Committee on Intelligence
  • Moderator: Hon. Elizabeth “Lisa” Branch, United States Court of Appeals, Eleventh Circuit
  • Introduction: Hon. Dean A. Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

Event Transcript

Dean Reuter:  Good morning, and welcome to this, the third day of The Federalist Society's National Lawyers Convention. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. I'm very pleased to welcome you back today and wish you a happy Veterans Day. I express my personal heartfelt appreciation for all our veterans, and I ask you to join me now in a moment of silence.

 

      Thank you, and thank you to our veterans.

 

      In feedback on the convention thus far, the most frequently asked question concerns turnout. Just how many viewers do we have for each of our panels? The numbers are in for day one, and I'm pleased to report that attendance is robust. Day two numbers are still being counted. Frankly, it's taking a bit longer than I had hoped.

 

In terms of results so far, though, while we'd be limited to the Mayflower Hotel's big rooms of 300-400 people per panel, and in the ballroom perhaps 500 people for major addresses, we're averaging just over 1,000 attendees per panel on day one. There could be some recounting and refinement of those numbers, but I'm pretty sure they're firm. Of course, there's no charge to attend this year's convention online, so please continue to publicize it to colleagues and friends.

 

      On our agenda later today, as we approach the midway point of this year's convention, we'll get an update on labor and employment law from agency leaders. We'll also check in with thought leaders about the current state of intellectual property with some emphasis on uncertainty in the field and what that means for businesses and others. We'll close our discussion today with a look at law enforcement and some of the challenges faced in the perplexing modern area.

 

      But first, we host our opening panel on China brought to us by our National Security Law and International Law Practice Group, moderated by Judge Lisa Branch. Judge Branch sits on the Eleventh Circuit Court of Appeals after having served on the Georgia Court of Appeals. She’s spent time clerking and in private practice, but she's also got experience in the executive branch with an OMB at ORIRA and, perhaps more relevant for our purposes today, in the Department of Homeland Security. She's a regular at The Federalist Society National Lawyers Convention, and I'm so happy she agreed to participate again this year. Judge Branch?

 

Hon. Elizabeth "Lisa" Branch:  Dean, thank you. Hello to our virtual audience and to the panelists. As Dean noted, today is Veterans Day, and we honor all those who serve this country.

 

      I want to welcome you to the first panel of the third day, that Dean walked you through the agenda for the day, of The Federalist Society Annual Lawyers Convention which is entitled "The Law, China, and the Possible New Cold War."

 

      Our country's shifting relationship with China over the decades has always been the subject of much news coverage, and today we'll examine how the rule of law figures into those complex interactions. We all know that the United States has, at its foundation, the rule of law, and the same is true of some other western nations. But what about China? It has a legislature and courts, but with its institutions under political supervision and control, it has no rule of law as we define it.

 

      How does China's approach to the rule of law affect its relationships with other countries around the world? How should China's lack of a rule of law as we understand it influence the United States' approach to China? Our distinguished panel will address these themes during its discussion, and I will briefly introduce our three speakers in the order in which they will speak. But please note that they have much more detailed biographies that you'll find on The Federalist Society website. Each panelist will then deliver brief remarks. I will then engage the panel in discussion before we turn to the audience for Q&A. Let me start with the introduction of the speakers.

 

      First up, we have Professor Julian Ku. He's the Senior Associate Dean for Academic Affairs and is the Faculty Director of International Programs, and he is the Deane Distinguished Professor of Constitutional Law at Hofstra University School of Law. His primary research interest is the relationship of international law to constitutional law, and he's the co-author with John Yoo of Taming Globalization: International Law, the U.S. Constitution, and the New World Order. Professor Ku will focus on what China is doing in the United States.

 

      Our second speaker will be Congressman Mike Rogers. He is a former member of Congress representing Michigan's Eighth Congressional District, and he previously served as an officer in the U.S. Army and an FBI special agent. While he was in Congress, he chaired the House Permanent Select Committee on Intelligence, and he currently serves as the Vice Chairman of the Board at the MITRE Corporation and is a Senior Fellow at Harvard University as well as the Chair at the Center for the Study of the Presidency and Congress where he directs the Center's national security programs. Congressman Rogers will discuss China's efforts to gain influence around the world.

 

      Our third panelist will be Dr. Richard Haass. He is in his 18th year as President of the Council on Foreign Relations. From January 2001 to June 2003, he was the Director of Policy Planning for the Department of State and was a principal advisor to Secretary of State Colin Powell. He was confirmed by the Senate to hold the rank of Ambassador, and he has also served as the U.S. coordinator for policy toward the future of Afghanistan and as U.S. envoy to the Northern Ireland Peace Process. From 1989 to 1993, he was special assistant to President George H. W. Bush and Senior Director for Near East and South Asian Affairs on the staff of the National Security Council. He will focus on Chinese foreign policy.

 

      I will now pass the mic to the first speaker, to Professor Ku, and he will then pass the mic to the next speaker in order. Professor Ku.

 

Prof. Julian Ku:  Thank you so much, Judge Branch. I want to thank The Federalist Society for inviting me back to speak at the National Lawyers Convention. The last time I spoke on a panel at this convention, I believe, was in November 2012, just after another presidential election where the Republican candidate, let's just say, didn't do as well as most members of The Federalist Society had hoped. Given this track record, I may not be back here for another eight years, so I really do hope -- I'll try to make this opportunity count.

 

      A possible cold war with China is a huge topic. There are so many different angles to it. There's the possible armed conflicts that might occur in Taiwan or the South China Sea. There's competition for global dominance in the high-tech world. But I want to focus my comments, as Judge Branch mentioned, on one aspect of a potential cold war that I think deserves a lot more attention, especially from members of The Federalist Society.

 

      For decades, China has been engaged in sophisticated influence and espionage operations within the United States that are designed to advance China's economic and national security interests. This is a real problem that we need to counter in effective ways, and I think the Trump administration has really made a lot of progress on this front. But I want to urge us, as we enter a new administration, to rethink and improve this approach so we can push back in ways that don't undermine our overall efforts to compete with China.

 

      Let me start by describing what I mean by Chinese influence and espionage operations. Influence operations, I mean Chinese state-sponsored activities to influence U.S. public discourse and government policy in ways that benefits the Chinese government. I'll just note the Chinese government is not the only foreign government to play this game, but it is the only one that's a real possible cold war adversary.

 

      Now, there are two kinds of Chinese influence operations that are particularly troubling. The first kind involves buying influence in U.S. higher education through the establishment of institutes, research partnerships, or other sort of funding from the Chinese government or indirect funding from private China-based groups that are allied or directed by the Chinese Communist Party.

 

      One example of this effort is the establishment of Confucius Institutes for Chinese language training at around 67 to 75 universities across the U.S. and around the world. This is a good example of an influence operation because it's essentially a way to learn Chinese. It's an institute designed to help you learn Chinese, but these institutes have also been accused of imposing a Chinese-government censorship of controversial topics in the classroom.

 

      Here, I think, the institutes and the other academic partnerships are troubling because it's not so much the explicit censorship, which I think a lot of the universities have managed to push back on, but I think growing a partnership with Chinese government-affiliated entities really has the effect of muting criticism of China on campus that might otherwise have occurred, certainly from university administrators but also from faculty and students.

 

      One example, events with Chinese dissidents that might have been held or just not held because it's controversial. Academic conferences on subjects critical of China are going to be discouraged behind the scenes. Because this influence is subtle and largely unseen, I think this is one of the more pernicious ways in which we have seen Chinese government influence in U.S. society in ways that are not beneficial to us, I believe.

 

      The second kind of Chinese influence operation is much worse but less subtle. This involves buying influence via prominent U.S. political figures. It's the traditional type of influence operation. Sometimes this occurs through legal means, like hiring lobbyists in way that publically disclosed and registered. China doesn't really officially hire lobbyists, but entities influential or affiliated with the party do.

 

      Or it might be illegal, such as the recent revelations just in September that former GOP figure Elliott Broidy lobbied the U.S. government on behalf of the Chinese interests to, among other things, extradite a Chinese dissident in the U.S. back to China. He pleaded guilty recently to accepting money to lobby the administration on this issue without registering and disclosing that he's accepting that money.

 

      These are the types of influence operations. If they're not really noticed, you might see the political discourse or the political system even adjust in ways that are not transparent to benefit China because of these sorts of influence operations.

 

      At the same time the Chinese government has conducted these subtle influence operations, it's also succeeded in supporting both traditional and economic espionage operations. The past few years has revealed the Chinese government has successfully recruited at least three CIA agents to their cause as well as a State Department employee. Meanwhile, Chinese hackers, of course, penetrated the Office of Personnel Management for personnel data on U.S. government employees.

 

      But really what makes Chinese espionage efforts unique, though, is how China has sought to penetrate not just the U.S. government but also the U.S. private sector, seeking intellectual property and other valuable corporate trade secrets. I think they've done this not just -- over the past few years, dozens of cases have been filed against Chinese nationals who've been alleged of appropriated trade secrets in U.S. companies for their own personal benefits but also sometimes to benefit Chinese government entities.

 

      Just one example: they've also convinced prominent U.S. scientists, like the chair of Harvard's chemistry department, to share cutting edge research with the lure of generous research stipends, such as the professor at Harvard got a mere $50,000 a month plus $160,000 a year to help him do research on -- share his research with them. That's the type of thing that could buy a little bit of influence.

 

      The point is we don't know -- the reason we know about these activities is not because of journalism or investigative reporting but it's actually because of charges brought by the United States Justice Department. In particular, under the Trump administration, the DOJ has really wielded the Economic Espionage Act with great effect. Also, the administration started to use federal disclosure laws to push back against Chinese influence operations, really going after people for failing to register as a foreign lobbyist, failing to disclose that they've received Chinese money, such as the Harvard chemistry professor. It even charged an NYPD police officer here in Long Island with spying on local Tibetans for the Chinese government. These are novel and innovative uses of existing laws that I think have had an impact on deterring and pushing back against Chinese espionage and influence operations inside the United States.

 

      My main point here I want to focus on is while this has been good, and the Trump administration deserves credit for really focusing on China's activities in the U.S. and its use of existing laws to push back, I think there's a lot of room for improvement. Not so much on the actual policies, which I fully support, but it's the messaging around these efforts that have been disappointing and, in some cases, counterproductive.

 

      There's been some public messaging from top U.S. government officials about China's threat in general, but there's not really been much explaining of how the U.S. is fighting back by deploying its resources within existing laws and institutions that protect even suspected Chinese spies with the full gambit of U.S. constitutional rights and due process.

 

      Indeed, to give one example, this past July, Attorney General Barr gave a long, important speech on China. But in this speech on China, he barely mentioned his own department's efforts in this regard. He didn't point out that his department's efforts to counter Chinese operations fully respects the rule of law and uses the U.S. justice system. He did not point out that the department has to gather evidence and let defendants challenge the evidence in open court.

 

      He's not pushing back against China. He needs to explain that -- he didn't bother to contrast the U.S. procedures and processes with the abhorrent Chinese government practices that they've used in recent years which just, in many cases, completely ignore and disregard due process when they arrest both Chinese citizens but also foreign citizens, U.S. citizens by accusing them of subversion and threatening national security and then just throwing them in jail for six months without any chance to contest those charges.

 

      So why does such messaging matter? We need to keep in mind that the Chinese government is perfectly capable of flipping U.S. counter espionage influence operation efforts in a way to smear the U.S. government and the United States' image within China. Nearly all the targets of counter China initiatives are either Chinese nationals or nationalized Chinese-Americans. And the efforts have already led to accusations by Asian-American groups that the DOJ is conducting racially discriminatory operations, and the Chinese government has picked up on this and has been to paint the U.S. efforts as motivated by racial animus rather than any real concern for national security.

 

      Meanwhile, the Chinese government can point to U.S. politicians and leaders who regularly denounce our own institutions, including the Department of Justice and the FBI, as corrupt and political. In this regard, I think the battle we've had over the past four years about what the DOJ is, its so-called corruption, the deep state, the FBI, has made it really difficult, I think, for the U.S. government to promote the benefits and what's really great about the U.S. justice system abroad.

 

      It's easy for Chinese propagandists to take the words and tweets of our own leaders to paint all the U.S. efforts to counter Chinese operations in the United States as simply corrupt attempts to oppress and discriminate against Chinese people here and to really denigrate the image of the United States in the eyes of the Chinese people, including Chinese students living here in the United States.

 

      While the image of China in the United States has gone way downhill the last few years, it's also worth noting that the image of the United States in China has also noticeably died in recent years, especially among younger Chinese. We're going in the wrong direction. The older Chinese have a more favorable view of the United States than younger ones do.

 

      This is a terrible failure. Whatever the failings of our legal system, it's galling to me to read and listen to Chinese social media users dismiss the U.S. justice system as corrupt and racially biased simply by quoting our own political leaders and also activists in our society. That's too bad because I think one of the most important components of U.S. power in its competition with China is the fairness and reliability of our legal and political institutions, what Judge Branch mentioned, the rule of law.

 

      I hope the next administration will remember to deploy this power against China. It will require better messaging, but it will also require all of us to take a step back before we tear each other apart. The more we tear each other apart at home, both metaphorically and literally, I think the harder it is going to be for us to compete with China on the global stage and to win a future possible cold war.

 

      That's it for me. Thanks so much for listening to me. Now, I turn it over to Congressman Rogers.

 

Hon. Mike Rogers:  Great. Well, thank you, Professor. I appreciate that. Thankfully, I got to my mute button early. Normally, the best part of my speeches are on mute never to be recovered again, but I think I got it figured out this time.

 

      Thanks so much. Judge Branch, thank you very much. It's an honor to be here. Ambassador, thank you as well, and thank you for your service, all of you, in what is the greatest democracy on the face of the earth.

 

      I just thought I'd talk a little bit about what some call the Three Pillars—the Chinese refer to it as the Three Warfares—and why this is important because it has its components in the People's Liberation Army, but it's also really oriented from the Communist Party of China. They use all of the elements of government to try to pull this off.

 

      What they did in 2006, they did a comprehensive study—they being the PLA—[inaudible 00:34:04] ability to fight back was absolutely incompatible with winning informationalized high-tech wars. So they just weren't keeping up on that front. They decided, "Well, if we can't defend ourselves” [inaudible 00:34:18] off an old playbook, the actual original language of these Three Warfares, came in about 1963, and they decided that they were going to reengage in what they're, again, calling Three Pillars or Three Warfares.

 

      What they were going to do is preempt, in the minds of foreign policymakers—to the Professor's point, we call those information operations—and they were going to try to collapse organizations, meaning the trust in organizations. They were going to try to collapse them in the host countries of which they are concerned. They're going to blunt the determination of those countries to do beyond or what the Chinese might argue is aggressive behavior. And they did that by, again, dusting off these Three Warfares and then modernizing them.

 

      So it's now a module of what the PLA would perform in activities around the world. Those Three Warfares are public opinion, both domestically, by the way, and internationally. So they have operations to do both. Psychological is the second. Think of boycotts.

 

There was one specific that was interesting to me. When they came out with their first anti-ship missile, they were noticing in the Iraq and Afghan War that Americans' tolerance for loss was significantly reduced, so what they did is they deployed an anti-ship missile in the Guangdong Province. It had never been tested against a moving target. There had been tests to see that it actually functions and get where it's supposed to go but never against a moving target. So if you're in military circles, that would be a huge drawback to that missile system, and maybe you would plan accordingly.

 

      But the Chinese government promoted it and promoted its ability to take out carriers, and they reminded people -- I think this is really interesting. If you take the Reagan Nimitz-class aircraft carrier, about 5,000 people on board, sometimes as many as 6,000, cost $4.5 billion just to build it. That doesn't count any of the weapon systems that are on board. If they could take out just one of our aircraft carriers like the Reagan, that's more than 15 years of deaths of U.S. service members in Afghanistan and Iraq.

 

And so they started playing on the psychological aspect of "Hey, you're going to get into this mess, we've got bad news for you. You're going to lose 5,000 sailors in one swipe in one day with our new capability." There were still, at the time, military analysts saying, "I'm not sure the thing'll even work the way they say it's going to work." However, it had an impact. The Navy actually had to change the way it was maneuvering in the region.

 

They also use boycotts. They talked to the Scandinavian countries about not buying [inaudible 00:37:23] battlefield in different ways, try to get in the minds of their enemies. As Chairman Mao would say, "To rally true friends against true enemies is our purpose," and that's what he was developing this Three Warfare system.

 

That last one is legal. The great example of this is that not necessarily taking something to court and trying to prove it in a court of law, of which we would all know and respect, but they're trying to do the court of public opinion on legal opinion. They make the argument in their nation courts, in their international courts, at least the influence of those courts, in the laws of war. They use all of those old presciences and try to make a public case about why their policy is right and our policy would be wrong.

 

The great example of that, to me, was the U.S. Bowditch. China was arguing that the U.S. ship Bowditch, Navy ship Bowditch, was not able to go into certain navigable waters because it was against international law. It was against the laws of war. It was against their borders. So they were making a legal public case on why that was true. They focused primarily in the Pacific Rim, but they also used Europe and other places.

 

They have spent lots of money to promote this psychological [inaudible 00:39:02] effort, law effort, through Chinese global TV. So it's not a part of the PLA, but it is a part of the Chinese Communist Party effort. They have 100 different journalists at these stations broadcasting in five languages, and they are aggressive about it. Think about the U.S. VOA, Voice of America, which we have gotten away from, I think, sadly enough. But they have used that model and multiplied it, and now we're having these conversations to try to sway people with psychological efforts, with public opinion efforts. Again, they're trying to make this public law case on why the United States is wrong so China would be a victim of what countries like the United States are doing.

 

When you start taking all of that and then you look at the way the military looks at it, it's a force multiplier. And, then, apply it to what you see happening today. South China Sea, they're using all three of those, the Three Warfares. You look at information operations here in the United States. We saw it a little bit, and the FBI came out and said, "Hey, guess what? China is in on the game. It's not just Russia." China's getting into this business of information operations trying to convince Americans [inaudible 00:40:27] we should not like each other very much as Americans.

 

Those information operations, by the way, they learned from what the Russians were doing. And that's exactly what the Russians were trying to do is create chaos, and make us not believe in our institutions, and make us believe that our neighbor who thinks a little differently than we do is now somehow an enemy of the United States, and we should hate each other and do horrible things.

 

All of that was a Russian plan. We see the same kind of tactics with the Chinese, and they're getting better. Their cultural awareness of the United States is getting better. Their understanding of how you would craft messages to target Americans is getting better. Same in Europe; same in other places.

 

They are aggressively using those tactics to try to circumvent what we would understand would be a normal defensive buildup. If you recall, again, my other great example of this is they realized, once they decided that they weren't going to win these high-tech wars, at least in 2006, they were going to make the investment, they were going to use these Three Warfares, and then they were going to try to go after our Achilles' heel, which was space.

 

If you remember, in 2007, I happened to be the chairman. That's just a note you don't want to get when they walked in and said, "Guess what? They fired an anti-satellite missile and hit their target." Of course, a non-physicist, I was thinking, "Wow, as an FBI guy, that's one heck of a good shot." But as a physicist told me, "Nope, that's just a math problem. You just line it up and it's going to be in the right place and you fire." It kind of blew my steam a little bit about what a good shot that was to take out one of their own satellites.

 

But the reason they did that, again -- and then they broadcasted it. They wanted us to see it. They shot one of their own satellites out of the sky, by the way. It was the fact that they wanted to convince the United States that our military-grade GPS system wasn't as good and we shouldn't rely on this thing like we may have before. That's where they're going. You're going to see a lot more of it. And I look forward to the discussion today.

 

Judge Branch, thank you. Professor, thanks. And Ambassador, you, sir, are up next.

 

Amb. Richard Haas:  Well, thank you, Congressman, and it's a rare opportunity and a pleasure to be on such a distinguished panel speaking in front of this audience. I was asked to speak about U.S.-Chinese relations and, uncharacteristically, I will do what I was asked.

 

      Just to give some historical context, we are now living in what you might call the fourth phase of the modern U.S.-China relationship. The first phase, which began during the Civil War when the United States and the Communist Party were on opposite sides of the Chinese Civil War, going through the Korean War—here we are today marking Veterans Day—while American and Chinese troops were in direct contact with one another during the Korean War.

 

This phase of essential hostility did not come to an end until the end of the 1960s when the old adage "the enemy of your enemy can be your friend" kicked in, and when the United States and the People's Republic of China both concluded that the threat posed by the Soviet Union was more acute than any bilateral difference they had. What began, then, was a two decades-long strategic reconciliation, if you will, ushered in by President Nixon and Henry Kissinger, where the United States and China found ways to manage their differences, finesse their differences, and cooperate to a limited extent.

 

      This second phase of the relationship ended with the end of the Cold War when the Soviet Union disappeared, the Cold War ended and, essentially, the two countries had to come up with a new rationale for a third phase of the relationship. They did just that, and it was largely economic.

 

      The whole idea was the two countries would become ever more integrated economically. China, obviously, saw it as essential for its growth, its development, maintain political stability. Americans were interested in access to this enormous market, but also there was the hope that by integrating China into the global economy, we could perhaps affect its own trajectory economically, politically, and in terms of its foreign policy.

 

      I would say this third phase came to an end over recent years. I can't give you a precise date because it was gradual not a switch. But, essentially, the economic relationship became as much a source of friction as it was cooperation. There is disillusionment with its impact on China. Clearly, China was not becoming more open politically, was not playing the economic "game" by the rules. So, in this country, there was greater skepticism of China and this relationship. And that's the phase we're in now.

 

      I think it's too soon to give it a name, too soon to say exactly what its characteristics are, but that's where we are, and it's clearly one defined by considerably greater friction. I would say how this plays out has extraordinary consequences. This will be the defining relationship of this era of history. The U.S.-Soviet relationship was obviously the defining bilateral relationship for four decades of the Cold War. I would think for the next few decades of the twenty-first century, the U.S.-Chinese relationship will have enormous consequences not just for the two countries but really for the Asia-Pacific region and, indeed, for the world more broadly.

 

      What does China want in all of this? Obviously, I think the party and the leadership is most concerned with their continued role in the country. They want China's continued rise economically and the two are seen as connected. China needs to continue to grow economically at a healthy clip in order for the party to continue to derive legitimacy. China wants its internal stability. It wants control, also, over what it considers to be, if you will, greater China: Hong Kong, obviously, Taiwan, and contested border areas, islands, and so forth with many of its neighbors. I think that is the principal preoccupation of Chinese policy.

 

      But what about ourselves? What should we, the United States, want? I would say, more than anything else, our goal should be to influence how China uses its growing power. I think China will continue to grow economically, it will continue to get stronger militarily, but to me, the challenge for American foreign policy is to influence how China uses this greater capacity that they are developing.

 

      As an aside, I do not think it is realistic for us to stop China's rise. I also do not think, and here I disagree with the secretary of state as recently as his comments yesterday. I do not believe the United States can essentially take on the role of the Communist Party and try to bring about political transformation in China, a regime change. I think that is simply beyond the reach of the United States or traditional foreign policy, much as we essentially have come to the same conclusion with many other countries.

 

      Also, I would argue, if possible, we want to avoid direct conflict with China. And I'd say, overall, the challenge for the United States is how do we push back where Chinese behavior gives us real grounds for concern, whether its approach to human rights, whether it's its economic behavior, intellectual property theft, its assertiveness in the South China Sea, its threats to Taiwan, what it's doing vis-à-vis India, and so forth. How do we push back in all these areas?

 

      At the same time, we try to avoid direct confrontation or conflict. And at the same time, one other goal would be how do we try to still carve out or protect at least the possibility of limited cooperation where it is in our interest, for example, in curbing North Korean missile and nuclear capabilities. If there's any country in a position to do that it's China since the preponderance of North Korean trade transits China.

 

      How do we, for example, get China to cooperate on strengthening global health machinery as we're seeing, painfully, when China does not cooperate or meet its obligations under global health regulations, we all potentially pay a price. How do we get China to change its trajectory on energy use so climate change does not suffer even more of an effect from what China is doing?

 

      It's a complicated challenge for foreign policy to push back where we have to, yet to do so in a way that hopefully doesn't preclude limited cooperation. None of this is going to be easy, given that the contemporary China, Xi Jinping's China, is different. It is qualitatively different, say, than Deng Xiaoping's China. This is a much more repressive China. It is more statist economically. Hoped that the state role in the economy would be reduced. Those hopes have not been borne out. Obviously, this is a much more assertive China. It has greater military capability and is much more willing to be active in the South China Sea, vis-à-vis its neighbors, and in the world with the Belt and Road Initiative.

 

So how should we go about this foreign policy challenge? I would say, first and foremost, we should do it with allies. It's the great structural advantage of American foreign policy. It's Japan, South Korea, many of the countries in Europe, partners like India, countries like Vietnam. Unlike China, the United States has dozens of willing potential partners to push back against China in one or more domains, be they functional or geographic.

 

I think, also, there's ways we have to compete with China, for example, in the amount of funds and how we spend them on basic research. We have to internationally be more competitive with the Belt and Road Initiative. Again, it doesn't have to be symmetrical. We have all sorts of tools that are available to us besides aid, things like trade policy.

 

And then, I also think that we have to compete with China by the power of our example. We have to live up to our own rule of law. If we're going to be critical of China for what it's doing in Hong Kong, I would argue that American democracy has to be robust in every way. And I also think we need to be competent in everything we do. Our own approach, say, to COVID, I think, has clearly, from my point of view, been largely a failure. In some ways, the comparisons with China allowed Xi Jinping and the Chinese off the hook.

 

We need to show, I believe, that democracy and the American economy, the American political system are capable. And that will get people in China to raise questions about the performance of their own system and their own leadership. So there is a competition. And in some ways, we compete by what we do, but in some ways, we compete by what we are.

 

Why don't I leave it at that, and Judge, Your Honor, back to you.

 

Hon. Elizabeth "Lisa" Branch:  Thank you all. Those were thought-provoking remarks, and I am hoping that the audience is going to have a lot of questions. I would advise the audience, if you would, start thinking about what those questions might be. I do have a few questions for the panel. I'm going to ask those questions first, but then I'll be kicking it over to the audience shortly.

 

      Let me start with Congressman Rogers. In China, the Chinese Communist Party, the companies over there are state-owned or state-affiliated. So how has the Chinese Communist Party used or perhaps even abused the rule of law to support the efforts of these companies?

 

Hon. Mike Rogers:  Yeah, great question, Your Honor. Thank you. One of the things that has troubled many of us. Matter of fact, my partner at the Intelligence Committee, Dutch Ruppersberger from Maryland, we launched the first investigation into Huawei and ZTE in about 2011 just to try to get some sense. Could we pull all the intelligence together? Were they an arm of the Chinese Communist Party? Were they something different? Were they separate? Because we were getting all of this information that they, in fact, were an arm of the state.

 

      Absolutely what we found out in that report in 2011 is the Communist Party of China decided that these companies needed to win, and what we saw them do is encourage and reward intellectual property theft, meaning if you can't beat 'em, steal it and then repurpose it. We saw all of those activities.

 

      As a matter of fact, there's an FBI indictment out of New York that really details a lot of what Huawei was doing including rewarding [inaudible 00:54:03] points where Western companies or even trusted vendors of our agent partners couldn't compete. There was deals where they would lay on the table, "We'll come in, we'll build out your network, we'll supply all the engineers. Oh, and by the way, you don't have to pay for ten years."

 

No independent company can compete with that. There's no way. You wouldn't have any cash flow for ten years to do the deal. And why? Because the Chinese Communist Party decided that data dominance in 2025, which is their stated endgame, was more important than the profitability of these kinds of companies.

 

      So we have seen it across the board. They have different sectors of which the Chinese government will lay out and say, "We need to lead in these areas, and we will lead, so go out and do it." And then, they're getting better at innovation. I still don't believe they're where we are, but through the taking of all that information and collecting that information, and then from using government resources and applying it to companies, it makes a horrifically unfair advantage.

 

      I think it's (a) illegal, (b) it certainly doesn't meet [inaudible 00:55:19] to push back. I would love to be just a competitor economically with China because I think we could do well, but we're not even close to that.

 

Hon. Elizabeth "Lisa" Branch:  Before I move on to another question, I certainly did direct that at Congressman Rogers. Do any of the other panelists have any comments on that?

 

Prof. Julian Ku:  Just quickly on Huawei, I just want to point out that I think it's another example of the theme I was trying to make, which is that we've given Huawei -- the whole procedure against Huawei has gone through these rigorous legal processes. And to the extent Huawei has been prosecuted, it's hired the best lawyers and has really defended itself and has been able to push back. But I think it's a fair way to treat it in a way that U.S. companies in China don't get that kind of fair treatment.

 

      It's the type of thing we should be emphasizing that we treat Huawei -- for all the problems, we treat them much better, in many ways, and much more fair in the United States than U.S. companies would typically get within China, and that should be something we should emphasize.

 

Hon. Elizabeth "Lisa" Branch:  Professor, let me stay with you for a second, and certainly then open this question up to the rest of the panel, but we have U.S. businesses who are still doing business to a large extent in China. Will U.S. businesses be able to criticize the Chinese government? And how can we protect them from any punishment that they might face in the Chinese market?

 

Prof. Julian Ku:  Yeah, this is a tough one. I think that, look, it's in the U.S. interest for U.S. businesses to succeed, to make more money. This benefits the United States people as a whole. At the same time, I think the deeper you get within China and the more dependent you are on China, the harder it's going to be to push back against China. A great example of this would be how can you criticize the Chinese government's horrific treatment of its Uyghur Muslim minorities when you have, like the NBA, $100 million at stake? It's easy to say you should just condemn them, but you have $100 million at stake.

 

      One thing I think we can do is the U.S. government can be helpful in, first, in making sure that, one, that the U.S. company -- restrict U.S. companies from doing bad things. Give them excuse by saying, "The U.S. government won't allow us to do this." So you can't do business in Xijong. You can't do business with people who conduct forced labor. Then, if the Chinese government complains, the U.S. will say, "Look, what can we do? The U.S. government is making us do that." In other words, it gives them a shield to say, "Well, it's not us. It's the U.S. government." I think that can be helpful.

 

      We also have the anti-boycott laws that we have. For instance, you can't participate in a boycott of Israel without violating U.S. law. And I think those types of laws can be helpful in trying to pressure U.S. companies not to participate in any boycotts the Chinese government forces them into. In other words, if they ever want them to boycott Hong Kong or boycott certain people in order to benefit China, I think we can at least give a signal to U.S. companies in the United States that the U.S. government will push back against that.

 

      Having said that, in the big picture, it's going to be hard because when you have a lot of money at stake, it's hard to balance those concerns, and you don't want to offend a billion dollar, a hundred-billion-dollar market.

 

Hon. Elizabeth "Lisa" Branch:  Any of the other panelists have any comments on that?

 

      Let me ask one more question to open up to the panel, and then I'll start the Q&A. We've talked about China and the U.S. and its relationship. What about China exporting its version of authoritarian capitalism to other countries? What are the implications for the rule of law, and how should the United States deal with that export?

 

Amb. Richard Haass:  Why don't I start there? China is clearly trying to do that to some extent. If you look at its Belt and Road Initiative, it's doing a version of that in many countries, in some cases through some of the technology it is making available.

 

Look, I think the best thing we can do there is compete in two ways: one is we have got to be on the field. For a lot of countries in Africa in particular, but also in Latin America and the Middle East, we've got to give them—South Asia as well—we've got to give them a choice. We've got to give them alternatives. And we don't have to do it exactly the same way as China.

 

      I used the word before "asymmetrical." China's largely doing it with large state loans. We have lots of other tools at our disposal. It could be inviting certain students from around the world to come here. It could be various types of trade arrangements, investments, sharing of certain select technologies. We can do just fine in competing with China in the field.

 

      Second of all, it echoes something I alluded to. There is a degree of competition between China's authoritarian model and our democratic, more market-oriented model. It's interesting when things recently -- when we had violence in the streets here, and so forth, in recent months, China would show those images on state television, and it would basically use it as a defense or a rationale of their very controlled society.

 

      I think the best way to compete with that sort of a message is to show that our more open society is able to peacefully address its shortcomings, to show that we can be economically productive, to essentially live up to our principles and values. If we do that, that's the best way I know, in some ways, to pressure China. It's by the power and appeal of our performance, the power and appeal of our example.

 

Hon. Elizabeth "Lisa" Branch:  Thank you. Anyone else on the panel?

 

Hon. Mike Rogers:  I'll just jump in quick. I agree with the Ambassador. I will say one interesting thing on the data dominance piece because it relates to this and why the uproar over TikTok. It's because all of that data, from your geolocation to your purchase habits to your viewing habits to your friends, all of that data feeds in through Beijing.

 

Why is that important? If you want to know why they're winning the AI war -- you hear people come out and say the artificial intelligence algorithms in China are better. Well, they're not necessarily better, but imagine if I have a 900 million base data set, and I have maybe 1,000 points of data on each one of those 900 million, my algorithm gets smarter as it goes. That's what this whole argument about why we should not allow China to control this data.

 

And what do they do with it internally that they'd like to [inaudible 01:02:05] Communist Party of China assigns a score. What they did last year, they rejected millions of Chinese ability to buy a bus ticket or a plane ticket or a train ticket inside of China—not external, inside—because they didn't score well enough, according to the government of China. That's Orwellian, and it's happening now. It's not ten years from now. That ought to give the hair on the back of the neck of everybody watching this program, and we just don't talk about it enough.

 

They are trying to export that. Imagine Mike Rogers has a new business. I want to do business in China, which I agree with the Professor, we should try to encourage American-style business with American values [inaudible 01:02:52]. And they said, "Well, you were at The Federalist Society, the National Lawyers Convention, and you said some things that made us mad. Guess what? You don't get a contract in China, even if it's a private company." That is what they're trying to export. It is a soft authoritarian approach that I do think we're going to have to pay attention to.

 

I think there's lots of ways we can push back, and I agree with the Ambassador on that. There's a whole series of things we would need to do. But absolutely they're doing it, and they're not doing it directly, necessarily. They're doing it in this kind of soft way of pushing out their ideas and beliefs by controlling people's data and information.

 

Hon. Elizabeth "Lisa" Branch:  Thank you. All right, we are going to start the audience Q&A part. Just a reminder to the audience that we're only taking questions from those who are watching this panel from a Zoom platform, not any of the other platforms. At this point, if you have a question and you're here through Zoom video, please use the “Raise Hand” button on the lower-middle screen. If you're a phone participant, you should dial *9.

 

      We have a question from John Guze. Please make sure to unmute your line.

 

John Guze:  Sorry, I don't know how that happened. I don't have a question. I didn't think I pushed any buttons, either. Sorry.

 

Hon. Elizabeth "Lisa" Branch:  Okay. Moving on to Christopher Melling. Do you have a question?

 

Christopher Melling:  Yes. This is Christopher Melling, BYU Law. Maybe I'm being unfair, but we've talked about some of China's specific actions through the Confucius Institute, educational system, other activities.

 

Are we seeing a case where Americans are being complicit, willfully ignorant, maybe just not seeing China as a competitor? I would love to hear your perspective. What is the general conventional wisdom? Is it the fact that a lot of people just don't view China as a threat and see what they're doing and why they're doing these things? If you could just -- I would love to hear your comments on that. Thank you.

 

Prof. Julian Ku:  Can I start with that? I think that -- just quick thought on this one, which is that I think it's mixed. I think the last four years we have seen a really dramatic shift in U.S. public opinion about China. It's been really dramatic. But up until then, I think -- look, we are interrelated with China. We have 300,000 Chinese students in U.S. universities every year, or more. We have incredible trade and travel and cultural links and family, like my own family. There's a lot of links, and so I think we don't see China, historically, in the same way.

 

      But I think that's changing, and I think what's changing is really viewing China as a threat, and that's been a shift among the elites, and it's starting to trickle down to individuals. I think this has occurred, in part, because of the Trump administration policies which has really called out China and made it more public.

 

Hon. Elizabeth "Lisa" Branch:  Professor Ku, did you have a question for the co-panelists before I go back to the audience?

 

Prof. Julian Ku:  Yeah, Ambassador Haass, did you want to address what I just said?

 

Amb. Richard Haass:  No, go ahead.

 

Prof. Julian Ku:  I do have a question. I didn't want to -- this is actually for both Ambassador Haass and Congressman Rogers, which is here's a good example how we might go forward. There's a bill in Congress, a resolution seeking to declare China as committing genocide in its northwest province of Xinjiang because of its treatment of Uyghurs.

 

As a legal matter, this is a little tricky because cultural genocide is a little bit harder to find. Essentially, they're trying to make people give up their beliefs, give up their culture, give up their language, which is really, really bad, imprisoning them, unfortunately, to do so.

 

      Ambassador Haass, I was curious. Is that the type of thing where if a unilateral declaration by the United States would do more harm than good? What if the U.S. government started prosecuting Chinese people who were involved in the genocide, which we do have that possibility under our laws. In fact, we'd be required to do so if they came within U.S. jurisdiction.

 

Or is it something that we should try to build ally support for before making such a determination? The one-time turning a blind eye to it, doing the Olympics, doing all the good stuff with them is one thing, but then it's a possible serious genocide. How do we approach that going forward?

 

Amb. Richard Haass:  Look, you raise a good question there. There's two things of late. One is what you're talking about what they're doing vis-à-vis the Uyghur minority. The other is Hong Kong. China entered into international legal obligations in the handover agreement from the United Kingdom, and they've essentially violated them. One country, two systems is now one country, one system. So we've now seen two areas. I'm not a lawyer. Virtually everybody else in this Zoom meeting in a lawyer, but we've had two areas where China has contravened either its own obligations that it took on or international obligations.

 

      I think the question is genocide is a tactical one. One is the question of if we were to try to get multilateral support, how much could we get? We wouldn't want to turn it into a debate between ourselves and others. The second of all, if we were to do it, what things would go into gear? What would it require us to do? What would it preclude us from doing?

 

      To me, maybe I'm overly practical here, to me it's less a judgement that what China's doing. And by the way, we don't need a formal declaration of genocide to be strongly critical of what China is doing in all sorts of fora that deal with human rights and the rest. To me, it's really a pragmatic question. If we were to go in the direction of a formal declaration, would, on balance, it serve the ends of American foreign policy? Would, on balance, it do anything to change Chinese behavior vis-à-vis these people who are being treated so harshly and unfairly?

 

To be perfectly honest, I don't know enough about the actual consequences of going down that path, but I think you raise a big point. I'd only want to go down it if I were persuaded that it couldn't be packaged as a U.S.-China issue, but instead much more the world against China.

 

 

I just think one other thing. It's been a little bit disappointing about how much of the Muslim world has not been willing to push back against China. This shows, to me, how China has insulated itself through Belt and Road, through a lot of its economic initiatives. A lot of the world is, quite honestly -- it's not that it simply doesn't want to choose between us and China, but often it's quite reluctant to take China on.

 

Hon. Mike Rogers:  Professor Ku, I agree with the Ambassador. I would support a genocide -- once you start cheapening what genocide means, I think it causes more difficulties down the road to actually target real genocide.

 

      I do think this has to be an international coalition, and I would start with our Middle East partners, the Arab League specifically, to do this. What we have seen China do is that they will use economic extortion to get people not to talk about these things. I think that's what the Ambassador was referring to.

 

We've seen it. We've seen it with their 5G buildout. We've seen it with other matters. When Canada talked about some human rights problems in China, China threatened that they wouldn't buy any more lumber for so many months.

 

So they are really aggressive on this. I just think we have to be aggressive back. But genocide, to me, boy. Again, I just hope we don't cheapen the term. It is horrific what happens in a true genocide. I just don't think that rises to this standard. We ought to protect that for those issues.

 

Hon. Elizabeth "Lisa" Branch:  All right. Let me turn back to the audience. In the interest of full disclosure, this person in the audience is a friend of mine. Irene Munn, please mute your line. Unmute your line. Sorry. Irene? You're still muted. There you go.

 

Irene Munn:  Yeah. I think I've unmuted. Sorry, it took me a moment. Yes, my question is, is China's rise inevitable, as well as who are our best allies around the world as it relates to this conversation?

 

Amb. Richard Haass:  Why don't I maybe start, and then invite others. Is China's rise inevitable? It's a great question. In my experience, nothing is inevitable in the course of history. China has had an extraordinary three, four decades of economic growth, but that growth is already slowing. It's temporarily somewhat higher now coming out of the COVID recession, but that won't be sustainable. So I think you're seeing a slowing down. One question is as China slows down economically, what are the implications of that for political stability within China?

 

      China also faces all sorts of challenges. One is demographic. The delayed effects of the one-child policy will be quite extraordinary. China is going to get much older, its population will ultimately begin to shrink, and the ratio of working age to nonworking age will move in directions that will not be good for the society. China's had massive environmental degradation. One consequence of that is a massive public health problem.

 

      China has a very concentrated politics. The fact that Xi Jinping has abolished term limits and has done his anti-corruption drive. He has consolidated power in his hands tremendously, which is both a source of strength but also a weakness, particularly if things begin to go off the rails.

 

      I can't sit here -- again, I'm not going to say I'm a China expert. I'm a generalist who know something about China. But if you read the China experts, there's a wide range of views about what China's future is going to be.

 

      I don't assume a lot. I would just simply say it's hard to imagine, though, that its future unfolds without some major speed bumps. I think they nearly had one when COVID broke out, and I think they've managed their way through it, but that was potentially a real challenge to the stability of China. But I think they have largely worked their way through it.

 

      In terms of allies, I think it's different partners for different purposes, but obviously the Asian allies from Japan, South Korea are central. We've got partners like India, to some extent, Vietnam. Australia's an ally here. I think the European countries could be real allies in the technology realm. I think they could be real allies and partners in criticizing China on human rights. I think they could be real allies and partners in criticizing China for its growing dependence upon coal as a source of energy.

 

      So I actually think, if we go about it -- and among other things, I would love for the United States to reconsider its decision not to join what was the Trans Pacific Partnership. This is a group that represents, if we were to join it, 40, 45 percent of the world economy. If we were to be in it, this would be a great way to confront China. Basically, if you want to export to half the world, here are the standards you have to meet. Here's what you have to do in terms of respecting intellectual property. Here's, maybe, what you have to do about human rights. Here's what you have to do about climate.

 

      What we ought to be doing is looking for ways where we can pool our leverage against China, and that ought to be one of the things we look at really closely.

 

Hon. Elizabeth "Lisa Branch:  Anyone else on the panel want to respond?

 

Hon. Mike Rogers:  I like the Ambassador's optimism. [Inaudible 01:15:18] what is not is are they going to be [inaudible 01:15:25]. To give you a great example, the Department of Defense yesterday was saying that by 2035, 90 percent of all communications telecom equipment—they're talking chips and boards and motherboard and FPJs—90 percent by 2035, on its current trajectory, will be built in China.

 

      Remember when I talked about controlling data? If I can control what's in your phone and your computer, I'm like to have a better understanding how I access it and get the things I need. So my argument is, yep, they're going to be on the rise. They're going to be a major manufacturing player for at least the foreseeable future. How do we build back the ability? I was a TPP supporter for that reason. I thought it was the one, quickest, best way we could start to leverage up against China.

 

      So yep, they're going to rise. Listen to their white papers on their military dominance. They'll tell you exactly what they want to do when they want to do it, and they've met every deadline. From 2020 to 2040, they want to start pushing the U.S. out of the dominant player in the navy in the Pacific. That's a pretty tall order. Well, they're on their way to do that with the technology they invested in. So they're moving out that way.

 

      My argument is we better just step up our game. Yep, they're going to be big players. I would love to be selling American products in China in ten years on an equal competitive environment. That's not going to happen by itself, and so we've got a lot of work to do to get there. But we also need to understand we're going to be dealing with them as near peers both in nuclear and [inaudible 01:17:06].

 

Amb. Richard Haass:  Can I just piggyback on one thing the Congressman said, which is, this, to me, isn't an argument for close relations between the United States and Taiwan, given how important Taiwan is in the global ship production market.

 

Also, we have got to think—and by we I mean the United States, our European economic partners. Together, we represent nearly half the world's economy. Some of our partners in Asia, like Japan—we've got to think about supply chain resiliency. And we have got to have a very focused conversation about what items, what technologies, are we not prepared to share with China, what items, what technologies, do we not want to be dependent on China, and where we decide not to be dependent on China for certain technologies. And so if the question is how do we build reliable arrangements among ourselves, what kind of stockpiles do we create here at home? What kind of national production do we mandate? That is the sort of conversation we need to have.

 

And, by the way, I am optimistic on that. I actually think—Congressman, maybe you know much better than I do, Mike—but I would think that might be an area of potentially bipartisan support. I could see on the Hill people in both parties coming together to think really strategically about just this question, about what does our resilience require in a way so that we reduce our dependence on China in a way that also, though, makes not just strategic but also economic sense.

 

Hon. Elizabeth "Lisa" Branch:  Before we go to another audience question, Professor, do you have any comment you want to give on this topic?

 

      Let's turn back to the audience. Seth Cohen, please unmute your line.

 

Seth Cohen:  Hi. My name's Seth Cohen. Next year, I'm going to be clerking for Judge Branch. My question is about the extent to which this stuff can be accomplished, or at least furthered, through market reforms?

 

One of the big stories of the Cold War was propping up liberalization efforts throughout the world through economic policy. Today, one of the things that we're seeing really emerge in American financial markets, putting aside the difficulties with this sort of movement, is ESG.

 

      I'm wondering to what extent you all think that increased calls on American companies doing business in China or with Chinese companies can help sort of exert some of the pressures that you're talking about already, like establishing alternative supply chain?

 

Hon. Mike Rogers:  I'll take a stab at this. Seth, the Judge said if the question didn't go well…I've got news for you. Just kidding. Just kidding. C'mon. Got to have some fun on this thing.

 

      I'll take [inaudible 01:20:09] at this because we ran into this a little bit because of some of the pushing back on privacy proposals across Europe. What they found is some of those privacy proposals were so completely 180 degrees inconsistent with the way the Chinese companies were expected to act.

 

As a matter of fact, there's a national security law in China that says any company that's a Chinese company operating anywhere in the world, all of its data -- they don't have to have a court order. They don't have to have a subpoena. If the intelligence services show up and say, "Give us the data on all of those people," they have to do it.

 

      So I do think that the ESG conversation is going to become more relevant in companies doing business there as people understand where China is on their ESG level. I would argue, listen, this is no more a developing country. This is a sophisticated country that has lifted out, by the way, 650 million people out of poverty using some kind of their modified view of capitalism, authoritarian capitalism. That part's probably good. Now people are exposed to that.

 

      Now it's our opportunity as consumers to start understanding hey, if we're living by ESG standards, so should they. So I think you're going to see more of that. It's just going to take a little bit. But remember, they carry a big stick, and economically they do not like people telling them what they're [inaudible 01:21:37] extortion, I think, is the one challenge we have. We've seen it in every policy issue, actually, we've talked about today where you bump into that economic extortion and say, "Whoop, the Uyghurs? Nope, you can't talk about that. That's a Chinese problem. We'll handle it."

 

      I think we're going to run into more of that and more consumer awareness. And then, I think, we actually start making a dent on that ESG question in China.

 

Hon. Elizabeth "Lisa" Branch:  Do any of the other panelists want to respond?

 

Amb. Richard Haass:  I would just say that besides human rights, I would think the other area where ESG could come to target China a bit would be the environment and climate issues. China's climate trajectory, if one looks at the plans that have recently been released, are really worrisome. It's not the scale or the growth so much as the approach to energy and a really large coal component.

 

      I would just think that, no pun intended, that climate concerns are one of the powerful fuels of ESG. I would think that would be a potential concern in addition to what's going on in Hong Kong and the Uyghurs. I would not be surprised -- actually, I'd put it the other way. I would be surprised if we did not begin to see these concerns pop up a little bit more into shareholder or stakeholder conversations.

 

Hon. Elizabeth "Lisa" Branch:  Professor? Let me turn back to the audience. Carl Helmar, if you would unmute your line, please.

 

Carl Peterson:  Can you hear me, Judge?

 

Hon. Elizabeth "Lisa" Branch:  Yes.

 

Carl Peterson:  My name is Carl Peterson. I'm a brand-new attorney and I'm a returned Peace Corps volunteer. I served in China from 2014 to 2017. My question is regarding the Belt and Road Initiative. It's China's premiere international relations program and to largely building infrastructure across Africa and Central Asia. Do the panelists think that the United States and other nations can counter the BRI through creating and bolstering good governance in Africa and Central Asia through innovative solutions like charter cities?

 

Amb. Richard Haass:  Well, this gives me 30 seconds to talk about something we're doing at the Council on Foreign Relations. Our next taskforce report—it's a commission—is on how we should understand the Belt and Road Initiative and how the United States ought to counter it.

 

      I take it seriously in terms of what China's doing with its economic reach, but using it both to promote its political system and to gain influence, to gain access. So I take it seriously, and I think we have to be -- again, we don't have to do what they are doing in order to compete with them. We have all sorts of, I think, structural advantages in the United States, but I think we need to make it more of a priority to compete with Belt and Road and also put more pressure on China for those aspects of Belt and Road which are really making situations worse for many countries, which is putting them in real difficult loan repayment situations.

 

      Again, we have all sorts of assets in terms of technology, trade, exchange programs, and so forth. But what we need is a comprehensive approach, in some cases country by country, some cases globally, to compete with Belt and Road. Peace Corps, by the way, is a perfect example of one of the tools we have. This is a sensational program, and that's one of the things we can and should deploy.

 

Prof. Julian Ku:  I'll just quickly jump in on this. One thing always to keep in mind when you talk about these gigantic Chinese projects is that the Chinese government is not infallible. They make mistakes all the time, and they could very well have overreached themselves and let the BRI have gotten out of control.

 

They themselves could find themselves in deep trouble in giving out loans that they are not going to get paid back on, which will put them -- so it’s a little bit with the psychological warfare thing. Sometimes we build up China as this incredibly effective government apparatus, which it is in some ways, but they are not infallible. They do make mistakes, and I think this could very well be one of them.

 

Hon. Mike Rogers:  I'll jump in here. We have, I think -- America has just done a terrible job on crafting and embracing and maintaining good policy in Africa, to our peril. I could tell you story after story of my trips there in Africa and ambassadors here coming to us saying, "Please, would America get involved?"

 

      So I would pick off one or two countries in Africa that we think we can make a big impact and show -- sometimes we want to fix all of it all at the same time. China just goes in candidly with suitcases full of cash and gets their way. They underbid. Bribery is a part of their culture in getting that business across Africa and the Middle East. And so we can combat that, but I don't think we fix it all at once. I think we find a few places in Africa where we can go in, train their law enforcement community, which is a big State Department project, reengage XM Bank and its ability to provide funds for American businesses to operate there competitively.

 

Amb. Richard Haass:  I don't know if we've lost Mike again for a second. Can I say one thing that I think we can also do, and it's going to be available in the next six months or eight months, which is as vaccines gets developed in the United States to deal with COVID-19, if we were to make them available, join these various international initiatives and make some of the vaccines available in Africa and other parts of the world, I think that would do extraordinary good in terms of banking goodwill, in terms of helping these societies recover economically, helping the global public health challenge because, again, it would help them recover there.

 

      We are going to have a massive opportunity in 2021 to use, I believe, vaccine technology, take advantage of it. If we share it and make it available on terms that people can afford, I think that is a made-to-order opportunity for the United States in much of the world.

 

Hon. Elizabeth "Lisa" Branch:  This has been such a great discussion. I hate to end it, but we're coming up on a hard stop in about a minute. Somehow, it does seem appropriate to end a 2020 conference with a discussion about COVID-19. So perhaps that is the ideal stopping point.

 

      I do want to thank the panelists. Gentlemen, it was a pleasure serving on this panel with you today. And certainly want to thank the audience for joining us. Also, a reminder, the next convention event is a discussion of agency leaders on labor policy and it will begin at 12:30. Thank you all again.

 

Amb. Richard Haass:  Thanks, Judge.

 

Prof. Julian Ku:  Thank you. Thanks so much. Enjoyed it.

 

Hon. Mike Rogers:  Thanks, Professor. Thanks, Ambassador.

 

Prof. Julian Ku:  Nice to meet you guys.

12:30 p.m. - 1:45 p.m.
Labor & Employment Law: Agency Leaders on Labor Policy

2020 National Lawyers Convention

Topics: Labor & Employment Law
Zoom Webinar

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On November 11, 2020, The Federalist Society's Professional Labor & Employment Law Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The panel covered "Agency Leaders on Labor Policy."

The Equal Employment Opportunity Commission, National Labor Relations Board and U.S. Department of Labor can have a significant negative or positive impact on the American economy and on Americans’ liberties.  With almost four years behind them, how have these agencies done? Slowed down perhaps by delayed Senate confirmations and personnel changes, they certainly have been active with new regulations, new guidance, and responding to Pandemic challenges.  What did they barrel-up and what did they whiff? We will ask senior leaders from the EEOC, NLRB, and DOL for their assessments.

Featuring:

  • Hon. Sharon Fast Gustafson, General Counsel, United States Equal Employment Opportunity Commission
  • Hon. Peter B. Robb, General Counsel, United States National Labor Relations Board
  • Hon. Cheryl Stanton, Administrator, Wage and Hour Division, United States Department of Labor
  • Moderator: Hon. Amul R. Thapar, United States Court of Appeals, Sixth Circuit

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

Event Transcript

Hon. Amul R. Thapar:  Good afternoon and welcome to our afternoon panel of the Zoom Federalists Society convention. I want to welcome our wonderful speakers. As anyone attending probably knows, this is on labor and employment law, and we have some agency leaders that are going to discuss labor policy. The first thing I’m going to do is introduce our speakers, and then I’m going to turn it over to them.

 

Our first speaker is Cheryl Marie Stanton. Miss Stanton was nominated by President Donald J. Trump to serve as the administrator of the department’s Wage and Hour Division, and the U.S. Senate confirmed Miss Stanton’s nomination on April 10, 2019. She was sworn in as WHD’s administrator by the U.S. Secretary of Labor, Alex Acosta, on April 29, 2019. She brings a wealth of experience to My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society, most recently having served as Executive Director of the South Carolina Department of Employment and Workforce.

 

Under her leadership, South Carolina’s jobless rate dropped to its lowest point in the last 50 years. During that time period, South Carolina’s workforce system helped place over 500,000 South Carolinians into jobs. Stanton also partnered with her colleague at the Department of Corrections to create a job-entry program for sex offenders, receiving national accolades.

 

She also oversaw two major information technology modernization projects that improved customer service and increased efficiencies for employees. She served as the White House’s principle liaison to the DOL under President George W. Bush. She’s a graduate of Williams College and earned her law degree from the University of Chicago Law School.

 

Our second speaker will be Mr. Peter B. Robb. He’s the general counsel of the NLRB. Mr. Robb was sworn in as general counsel of the National Labor Relations Board on November 17, 2017 for a four-year term. Mr. Robb was nominated by President Donald J. Trump in September 2017 and was confirmed by the U.S. Senate on November 8, 2017. Mr. Robb was previously a director at the Northern New England Law Firm, Downs Rachlin & Martin. He joined DRM as a director in 1995.

 

He chaired the firm’s labor and employment practice group from 2000 to 2009 and served as deputy managing partner from 2009 to 2012. He has also served on the American Bar Association’s practice and procedures committee for the National Labor Relations Board. He reserved as JD from the University of Maryland Law School and as Bachelor of Arts from Georgetown University.

 

And, last, but definitely not least, is Cheryl Gustafson, who’s the General Counsel of the Equal Employment Opportunity Commission. After practicing employment law for 28 years, she was nominated to serve as general counsel in 2018 and was confirmed by the United States Senate on August 1, 2019. She is the first woman to serve as general counsel at the EEOC.

 

Before joining the EEOC, Miss Gustafson advised and represented both employees and employers in employment related legal matters as a solo practitioner in Virginia, Maryland and the District of Columbia. She represented Peggy Young in the famous pregnancy discrimination complaint against the United Parcel Service that ultimately ended up in the United States’ Supreme Court seminal 6-3 holding under the Pregnancy Discrimination Act, that an employer must provide to pregnant employees the same accommodations it provides to other employees with similar restrictions.

 

She began her legal career in labor and employment law with the Labor and Employment Law Group at Jones Day in Washington D.C. where she practiced for four years. She earned her JD from Georgetown University Law Center in 1991. And now I turn it over, first, to Miss Stanton, and she will turn it over thereafter. Miss Stanton.

 

Hon. Cheryl Stanton:  Thank you, Judge, and thank you to The Federalist Society for having us today to talk about labor policy. As many of you know, this is an area near and dear to my heart. Not only did I practice as an employment lawyer, but many of you have heard me talk about my dad who was an employment lawyer before me, and so we had a lot of conversations about employment law at the dinner table. While I was growing up, I thought that’s what dinner conversation always was.

 

      And so coming into this role, it was with a lot of excitement, but I knew there was a lot of work to do. And when we arrived in April of 2019, there was a little bit of a regulatory agenda already in place that we needed to follow through on. As many of you know, there is the overtime story for the Wage and Hour Division, which is a tortured one in terms of the regulation.

 

As you know, under the Fair Labor Standards Act, there’s something called the standard salary level, and if an individual is making less than the salary level, that is established by regulation, the assumption is that that individual is doing duties such that they’re entitled to overtime or time and a half of their wages for hours worked over 40 in a workweek. That standard’s wage rate was started in the ‘40s, and, in 2004, a new level was set of $455 a week, and it was done in a very methodical way.

 

The Wage and Hour Division looked at the 20th percentile of salaried retail as well as southern census salaried workers and set the standard at that level, but then that level sat for 15 years. In 2016, there was an attempt to raise that, but the raise was done in a very jarring way going to the 40th percentile, and that resulted in a lawsuit that many people on this webinar know about.

 

Ultimately, when we came in, we reissued an NPRM that went ahead and reverted to the methodology of 2004, that had stood the test of time for 15 years. And, last September, we did finalize that rule to go into effect January 1 of this past year, resetting it to the 20th percentile for salaried retail and south census, and that has not been challenged, so we’ve established now a methodology that stands the test of time.

 

Multiple other regulations that we have done in the last year is regular rate. I mentioned you get time and a half over hours worked over 40, but time and a half of what? Sometimes, it is just the hourly rate you are paid, but other payments can get put into that. We updated that regulation from the mid-20th century. Mid-century architecture is beautiful, but mid-century regulations probably need some work. And that regulation had not been done by notice and comment, so we did it by notice and comment and identified modern perks in the workplace and whether they needed to go into regular rate or not.

 

Similarly, the joint employment rule had not been promulgated through notice and comment and was decades old. We issued a new joint employment rule in January, which as you know the State of New York has challenged, and we have appealed the ruling, criticizing that rule.

 

      In addition, though, last year we had a couple of curve balls. 2020 is nothing if not the year of adapting and dealing with the unexpected. And, for the first time, there was a federal law put into place to impose a paid leave requirement widespread on the private industry, and that is for companies with less than 500. Many of you know what it takes to write a rule.

 

We had to write a rule in 12 days to stand up that law and that new payment program that President Trump signed into law, which we did, and then implemented a program that we’ve seen over 3000 cases close since April 1. We’ve done over 2,500 outreach events and taking over 350,000 calls, and, by that, I mean, answered the call, not returned a voicemail.

 

We also had USMCA, and you may say, “Why is the labor department dealing with a trade agreement?” Well, the United States–Mexico–Canada Agreement for the first time implement certain wage requirements, particularly for those in the automotive industry, and we can get into more detail on that later.

 

But it is the Wage and Hour Division, for the first time in history, that we’ll have responsibility for enforcing part of a trade agreement. And this was really crucial to ensure that certain payments were made to American workers vis-à-vis Mexican, level the playing field vis-à-vis Mexican and Canadian workers in this space.

 

We finalized the fluctuating workweek rule, as many of you know, in the spring and are in the midst of finalizing the tips and independent contractor rule. But another very important thing that we have done in policy space is we reinstituted the opinion letter process.

 

As many of you know, the 1947 Portal to Portal Act gave the Wage and Hour Division unique authority to issue sub-regulatory guidance in the form of opinion letters, which the previous administration had shut off. We turned that back on and have issued nearly 70 opinion letters in this administration alone.

 

But I think that needs to be viewed in the backdrop as something very important, and that is the two—and I hope we talk more about this in a bit—the two major executive orders that President Trump issued last October. One was regarding permitting the rule of law for improved guidance documents, and the other one was promoting the rule of law through transparency and fairness, and so administrative enforcement and adjudication.

 

Those of you who heard Secretary Scalia speak last year, at the convention, heard his view that it is very important that employers are given fair notice as to the responsibility, and employees have fair notice of what they’re entitled to. We are not interested in creating policy through enforcement, but rather through fair notice to the regulating community.

 

To that end, after those executive orders came into place, we spent weeks and months working our way through our opinion letters back until the 1960s—and I’m talking about over 5,000 opinion letters—to identify those that were still good laws, still good policy, and were guidance that the regulating community could rely upon.

 

We then took the further step of putting them onto a searchable database. I am so old that I remember going to the library, going through the binders to try and find opinion letters on a particular topic. Now, you can do it by going to our database, which is at www.dol.com/guidance.

 

We can talk about specific policy, and I hope we do, as we move forward, but I think it’s important to understand that the real goal of this Department of Labor overall—and you will hear Secretary Scalia again tomorrow afternoon, I think, speak to this—has been transparency, accountability, but also opportunity. And I think one of the things, there is no greater measure – all you have to do are look at the results.

 

We are working in an administration that has ensured that the lowest quintile of wage earners have had the greatest net worth throughout the last four years; the highest wage group for woman; some of the lowest unemployment rates for African Americans, Asian Americans, and Hispanic Americans.

 

And it’s through not only the policy choices and policy put into place through the labor department but also through the transparency and fair notice that we have given the regulated community so they know the rules of the road when they are in the frontend and not when they’re being punished.

 

I know we have a lot more to talk about with each of these policy decisions and what’s going on at the Department of Labor, but now I’d love to turn it over to a wonderful partner in the labor space, and that is Mr. Robb at the NLRB.

 

Hon. Peter B. Robb:  Thank you, Cheryl. I’d also like to thank The Federalist Society for inviting me. It’s a privilege to speak here. I also would like to thank all of those behind the scenes who put this together on the technical end. It always amazes me how well these work.

 

I would like to point out at the outset, if you hear a very loud noise buzzing behind you, it’s because I’m coming to you live from the west coast of Florida, and we’re periodically getting blasted with updates on Hurricane Ada. If I disappear entirely, then you may be able to say that you were present at the last speech given by the general counsel, but I hope none of that interference happens.

 

So, this week, I will complete my third year of my four-year term. Since I haven’t spoken to this group before, I thought I would discuss what—since my return to the NLRB—have been the major themes and concerns. When I came back to the agency, I found there was much to do.

 

I’ve been fortunate to have been able to work with the assistance of three fine board chairs, Phil Miscimarra, Marvin Kaplan, and John Ring; two deputy general counsels, John Kyle and Alice Stock; special advisor to the general counsel, Dolores Boda; and the many fine career staff at the NLRB. Without this support, I could not have achieved anything.

 

I’ve summarized our work in three themes: substantive law, administrative challenges, and infrastructure improvements. But, first, I’d like to talk a little bit about the role of the general counsel at the NLRB. I think it’s important to understand my role. As general counsel, I have a dual role in prosecuting cases under the National Labor Relations Act and legal proceedings at the administrative board and the federal district appellate and Supreme Court levels, as well as overseeing the operations of approximately 90 percent of the agency.

 

The general counsel’s responsible for prosecuting unfair labor practice charges brought before the agency at about 17,000 to 20,000 per year in recent years and the processing and representation petitions filed with our regional offices for enforcing the board’s orders and for supervising the operations of our regional and satellite offices throughout the nation, as well as our staff at headquarters, who are responsible for case handling, operational, administrative, financial, security facilities, technology and personnel functions. And now I do not read every complaint brief or investigative report, but I read enough that my lens prescription has changed several times this year, and it’s not in a good way.

 

So let me start with case decisions. And one of my first GC memoranda, 18-2, I announced that I would review issues where precedent had been changed recently to determine whether the Board should revisit the issue, and I did, and the Board did, by returning to well-established precedent in many cases. But that is predominantly their story. And as I look out the window opposite, I could clearly see that the sky has not fallen as some had predicted. But the case law has changed.

 

I have advocated personally for the expansion of protections of employees’ rights under the act. In GC 19-01, I instructed the regions to issue complaint absent settlement for union’s breach of the duty of fair representation to employees when they were forgetting to file grievances repeatedly, failing to apprise employees of the status of grievances, and consistently failing to communicate with employees. I advocated that these should not be dismissed as mere negligence because of the severe impact on employees.

 

In GC 19-06, I instructed the regions in the investigation of the improper withholding of dues in Beck cases, challenging the chargeability of dues, expenses for political and other non-representational purposes.

 

I sought to protect employees from violence, racial harassment, and other forms of discrimination that occurred in the course of protecting inserted or union activities. The Board substantially did that in the General Motors case, 369 NLRB number 127, just this year.

 

So we’ve done a lot with respect to changing the law, or most of it, going back to well-established principles that have been in existence for decades. I also focused on agency operations. When I came onboard, I found that the time to process cases had grown, creating a large backlog of unprocessed cases. I was concerned about the time it was taking. Driven by a feeling that resolution of labor cases delayed is labor peace denied, I proceeded to enhance the time limits of cases.

 

In the fall of 2018, Chairman Ring and I issued a new strategic plan to reduce case processing time. I was very proud of the regions in the agency, which have met the challenge and have reduced case processing time. At the same time, by every measure, the quality of case processing has been maintained, and some regions have reported that it has improved because investigative cases are being done earlier when a dispute and the evidence is fresher.

 

The goal was using fiscal year 2018, which began on September 1, 2017, using that as a baseline for processing time, and the goal was to reduce the case processing time by 20 percent over 4 years. I am pleased to report that of just two of the four-year strategic plan, we achieved most of those goals.

 

The regional offices continue to far exceed expectations and have reduced the average case processing time from the filing of an unfair labor practice as charged to disposition by 18 percent. And that’s through fiscal year 2020, and that’s also despite the pandemic.

 

The regions overall reduced the time from filing an unfair labor practice charge to disposition from an average of 90 days, in fiscal year 2018, to an average of 73 days in fiscal year 2020, and reduced the time from informal settlement to final disposition of a ULP from 172 to 136 average days. A decrease of 21 percent.

 

That’s important because that’s what affects employees directly. We settle most of our cases, about 96 percent of the merit cases, and in those, getting the remedies to the employees quicker is of paramount concern to me.

 

Finally, I want to talk a little bit about rebuilding the infrastructure. When I came onboard, the agency had not been expending funds on technology in any significant manner for some time. Therefore, I deemed it a top priority, and, together with Chairman Ring, we moved the agency forward. In the last two years alone, we have spent over $50 million to improve our technology—not maintain it, but to improve it.

 

We have increased the capacity of our cloud significantly. In fact, we moved to the cloud from our own servers, which did increase our capacity. We bought laptops for people that were woefully out of date. We updated numerous programs.

 

We, during the pandemic, moved to Zoom, and we’re doing hearings for unfair labor practices and representation cases remotely through the Zoom technology. And when the board went to Zoom, in a matter of weeks, we trained hundreds of our attorneys in how to present unfair labor practice cases at a Zoom hearing.

 

We improved NexGen. We speeded up the processing time, and, overall, I would say that we now probably rival any of the private sector attorneys, who in big law firms who appear before us in terms of technology, speed, accuracy, and in terms of capacity.

 

Now, we also moved towards an electronic filing. I issued 20-01 GC memo, dealing with electronic filing of documents; GC 20-03, dealing with guidance on electronic issuance of deferral cases; 20-05, guidance on electronic issuance of complaints and compliance.

 

In essence, what we were doing was we were moving to a paperless operation, and now all of our case files are paperless. All those who appear before us, in almost every aspect, they’re required to use the electronic communication unless they don’t have such.

 

And, finally, a few weeks ago, we announced an update, an enhancement of the agency’s public website. That includes several new features that will improve the user experience and make the website easier to navigate. And we also have, for the first time, included many pages of content on our website in Spanish. I consider this a significant improvement and a step in the right direction, but only the first step. We’ll continue to work on that.

 

And, finally, I would be remiss if I didn’t mention something about the operation of the agency during the COVID pandemic. The agency—except for a couple of instances where there was temporary closure in order to deep clean an office that had been directly exposed to someone who had COVID—we remained open, constantly. We worked around every issue and problem that came up. We were able to continue to do our work and process our cases on time.

 

We worked remotely to make sure that elections were conducted, and counts were made. We even had some of our people counting mail ballots over video through Zoom. We’re quite proficient at that, and my priority during this time, of course, was to keep our employees safe while at the same time serving the public, and I think the employees have done a terrific job of that and deserve everyone’s sincere appreciation.

 

So we have been busy. And I’ll just close by saying that’s it been a great honor to serve as the general counsel of the National Labor and Relations Board. And, as I said before, I do have another year left. And with that, I will turn it over to Sharon.

 

Hon. Sharon Fast Gustafson:  Thank you, Peter. And thank you for inviting me to speak. I’m Sharon Fast Gustafson. I’m speaking today from my perspective as general counsel of the EEOC, the person responsible for conducting the agency’s employment discrimination and litigation and for ensuring compliance with the statutes we enforce. I am not speaking on behalf of the commission, which is the agency’s policy-setting body.

 

For context, I arrived at the EEOC in august 2019, three months after Chair Janet Dillon arrived. Three of the agencies current commissioners arrived in the last month. And we now have, for the first time in the current administration, a full complement of five commissioners.

 

The primary mission of the EEOC is to prevent and remedy illegal employment discrimination, and we’ve been doing that good work. Despite COVID delays, in fiscal year 2020, the agency obtained $106 million in relief—the largest amount recovered through the commission’s litigation program in the past 16 years. And the commission experienced a 96 percent success rate for all resolutions, which is the highest success rate on record.

 

Approximately, 70,000 to 90,000 charges of discrimination are filed at the EEOC each year. Many, but not all, are meritorious. In my own three decades of employment litigation, discerning which stories merit a federal lawsuit has been an important part of my job. This was easier when I personally interviewed charging parties than it is now when I have access to only their written stories.

 

Now, I’m responsible for deciding which stories merit a lawsuit brought by the EEOC. Lest anyone think that all American employers have learned the lessons of nondiscrimination, so that the work of the EEOC is done, I share this story: a few months ago, I turned down for litigation a sexual harassment claim where a male employee alleged that his male employer, the owner of the 100-employee business, had among other things touched the employee inappropriately.

 

When I declined to authorize litigation of the claim, I noted that before coming to the EEOC, the employee had first complained to the police, who had called in the employer for questioning. I suggested that I may reconsider my decision if I could review the videotape of the police interview with the employer.

 

When the EEOC attorneys later sent me the police videotape, I saw this employer defend himself by saying that he would never touch an employee in the manner described. He said that he was a good employer, even though he would never employ blacks, Mexicans, or homosexuals. He asked the police to tell him which of his employees had complained so he could kick his butt on the way out the door.

 

I reversed my decision about not litigating that case. These are not micro-aggressions we are litigating. No. The EEOC’s work is not yet done. In the last year, the EEOC’s lawsuits included claims on behalf of female tunnel project workers, who alleged sexual harassment by their male site superintendent and coworkers; a railroad employee with a brain tumor, who alleged he was discharged after being denied a disability accommodation; older workers, at a NASA research contractor, who alleged they were disproportionately selected for layoffs while they recruited replacements averaged age 25; EMT, who alleged her employer retaliated against her for reporting her white fellow EMT engaging in racially offensive conduct towards her; female applicants at a grocery distribution center, who alleged they were subjected to a physical abilities test that was not job related and that denied women employment opportunities; a gay sales consultant, who was subjected to a hostile work environment based, in part, on sexual orientation; two grocery store workers, who were terminated when they requested, as a religious accommodation, that they not be required to wear LGBTQ pride emblems on their aprons. And the EEOC appealed a case on behalf of a pregnant Mexican property manager, who alleged she was fired because of her pregnancy and her national origin.

 

In the last year, the EEOC cooperated with the Department of Justice Civil Rights Division on several briefs in the U.S. Supreme Court, and at several Circuit Courts, as well as at a state Supreme Court. In Patterson v. Walgreen, we asked the court to revisit Hardison’s de minimis undue hardship standard for religious accommodations. In Peterson v. Linear Controls, we asked the court to decide whether Title VII prohibits discriminatory working conditions or only discrimination in ultimate employment decisions.

 

We joined forces with DOJ in Our Lady of Guadalupe v. Morrissey-Berru, in which the U.S. Supreme Court further clarified the scope of the ministerial exception, which is grounded in the First Amendment’s protection of a religious organization’s right to be free from government interference in selecting those who will personify its belief, shape its faith in mission, or minister to the faithful.

 

The Supreme Court, agreeing with arguments raised in a brief, signed by DOJ and EEOC, explained that the ministerial exception bars discrimination claims by employees who play certain key roles or who perform vital religious duties at the core of the mission of the religious institution. EEOC again joined DOJ in an appeal in Payne-Elliot v. Roman Catholic Archdiocese of Indianapolis in the Indiana Supreme Court, which presents a similar issue regarding a catholic high school teacher.

 

The reason the EEOC joined DOJ civil rights in vindicating the ministerial exception, on behalf of employers, is that the EEOC has an interest in the courts getting all aspects of employment discrimination right, whether getting it right helps the employee or whether getting it right helps the employer.

 

Religious liberty has been a high priority for the current administration where everyone I have spoken with has been unequivocally supportive of religious liberty for all. Title VII protects employees from discrimination not only on the basis of their religious beliefs but also on the basis of their religious observance or practice.

 

Employees are protected when their religion tells them that they must do something, for example, wear certain clothing or a beard, or observe the sabbath, or when they’re religious conscience tells them they must not do something, such as take oaths, celebrate holidays, participate in abortion, dispense birth control, use technology, celebrate homosexuality, participate in a bible study or prayer, and so on.

 

Title VII does not just protect popular or majority religions, or those religions that an employer agrees with or, at least, understands. Title VII protects all religious beliefs, observances, and practices. This is America. We get pluralism. We do that here. And, as the name of the Equal Employment Opportunity Commission suggests, we do it equally.

 

I have established a religious discrimination work group to look more closely at the full span of religious discrimination claims being filed so that we can better understand the various forms of workplace religious discrimination and improve our response to it.

 

We have reviewed 100s of recent religious accommodation claims and initiated tracking within our agency of the four broad categories of those claims: appearance, observance, expression, and forced participation. We have trained our investigators in spotting and classifying religious accommodation claims so that they can be handled more appropriately.

 

The majority of religious discrimination cases, that the EEOC has filed in the past, have involved clothing and grooming claims brought on behalf of Muslims, Pentecostals, and Rastafarians; observance, including of the Sabbath, Holy days, and prayer breaks brought on behalf of Seventh Day Adventists, Jehovah’s witnesses, Jews, and Muslims, and forced participation claims, often flu vaccination claims brought mainly on behalf of members of various Christian denominations.

 

In the grocery store case, I mentioned a bit earlier, in which two employees declined to wear aprons with LGBTQ pride symbols in violation of their sincerely held religious beliefs, rather than granting the employee’s request to provide their own aprons or to cover the logo with a name tag, the employer terminated those two employees.

 

Since Bostock, we know that Title VII protects employees from discrimination based on sexual orientation or transgender status, but, at the same time, Title VII protects employees from discrimination based on their religious beliefs that prohibit them from approving of homosexual acts or gender reassignment.

 

The Office of General Counsel has participated with the EEOC’s Office of Legal Counsel and commissioners on a new draft of religion guidance, which is very much needed. I thank Chair Dhillon for leading this effort.

 

The existing guidance was last updated in 2008 before, at least, three key Supreme Court discrimination cases implicating religion were decided: Hosanna-Tabor in 2012; Abercrombie & Fitch in 2015; and Our Lady of Guadalupe v. Morrissey-Berru earlier this year.

 

Two days ago, the Commission held a public meeting and voted to approve an updated draft of its religious discrimination guidance. The religion guidance is not binding law. It is a chapter of the EEOC’s compliance manual that reviews the law and helps both EEOC investigators and the public when considering these issues.

 

The guidance will be reviewed by OMB and then published for public comment. Anyone interested in the topic of religious discrimination and employment is strongly encouraged to review the guidance and to make comments on how the guidance can be improved or strengthened.

 

I expect to see litigation and clarification of the law, especially, at the intersection of sex discrimination and religion discrimination. The EEOC’s mission is to protect all employees whom our statutes were meant to protect, and the commission has been diligent about enforcing all of our statutes, even where the various protections may sometimes come in tension with each other. The law and American pluralism require no less. Thank you. And now, back to Judge Thapar.

 

Hon. Amul R. Thapar:  Thank you, all, very much for great opening talks. I guess I’ll ask the first question, and then we’ll open it up. And since Sharon just finished, I’ll start with Cheryl and Peter to give her a break and use what she said and ask, how have you and your agencies approached religious liberty issues over the past few years? Cheryl or Peter, you want to go first?

 

Hon. Peter B. Robb:  I’ll go first. We don’t have a lot of cases dealing with religious liberty because the National Labor Relations Act doesn’t protect the right of religious freedom per se. But it has come up a little bit tangentially.

 

One is an area of defining institutions that should be exempt from the act because of their religious mission, and the current board has issued a decision on that aspect of it, broadening the protection for religious institutions to allow them to require employees to refrain from certain types of activity that otherwise would be protected. But, other than that, we don’t have a lot with respect to religious liberty.

 

Hon. Cheryl Stanton:  Thank you, Judge. In the context that it comes up in the Wage and Hour space, the most frequently, is with the respect to the issue of what is an intern or a volunteer. And this ties nicely into today. I am remiss in not saying a very Happy Veteran’s Day to all of our veterans on the call as well as to acknowledge over 30 percent of our Wage and Hour staff are actually veterans themselves. So, after they have served our country, they come and serve the American worker in their own wonderful way.

 

But one of the things that happened last year, around this time, was we issued a very important opinion letter regarding what is a volunteer and intern. As many of you may know, the Department of Defense has a program for transitioning veterans that allows them in their last six months of military service, to work in civilian jobs, to be paid their military pay, but allows them to get some civilian experience to make the transition easier.

 

There was a lot of confusion about whether or not these were volunteers or interns with respect to the private sector companies that they were working for, and many companies were reluctant to use this program because of the fact that employees could be deemed as having two employers, and the employer would be responsible for additional pay on top of the military pay.

 

We went through, last year, the parameters of what it takes to be an intern/volunteer and made it clear that those individuals are employed by the Department of Defense. They are paid their military pay and therefore employees of that organization, which has opened that program for -- I know it’s a very important issue for Congresswoman Stefanik, herself.

 

Those principles apply in the religious context with respect to the Fair Labor Standards Act. But that’s just of Wage and Hour itself. I would be remiss in not broadening it to the Department of Labor as a whole. We have a faith-based office that is very robust and very active in the faith-based community to ensure religious liberties.

 

And, recently, our office—which is a sister agency, so I don’t want to take credit for this. Our Office of the Contract Compliance Programs—see I have to remember the acronym because it doesn’t roll off my tongue—recently put into what we call [inaudible 55:24], a final rule explaining the religious exemption under Executive Order 11246.

 

So there’s a lot of focus in the department, even in the federal programs area where religious exemptions are front and foremost, but even in areas like the Wage and Hour where’s there not a specific, necessarily, religious hook, we’re always conscious of how some of our opinion letters and others may impact the religious community.

 

Hon. Amul R. Thapar:  Thank you. And, Sharon, what religious liberty issues do you see on the horizon, just to play off what you said in your talk? Do you see any new or different issues that are coming up in things people should be aware of?

 

Hon. Sharon Fast Gustafson:  Well, first I want to say, the EEOC -- I don’t want to suggest that the EEOC hasn’t been bringing religious discrimination claims. They certainly have. About four percent of our charges are religious discrimination charges, and there are certain kinds that the EEOC has brought in large numbers.

 

There have been many claims brought—Sabbath day observance claims, or other sorts of observance claims, dress or clothing appearance cases, beards, that sort of thing, even quite a few vaccine cases. We’ve seen quite a few of those.

 

We have seen very few, if any, of some other sorts of religious discrimination that people have experienced. One is people who—because of their religious consciences, as I mentioned in the grocery store case I was talking about—cannot celebrate homosexuality. And they simply have to be permitted to refrain from saying things or appearing in ways that would show them celebrating this. I think we’re going to see more of those kinds of cases.

 

There’s also situations with nurses. And I’ve heard several of these stories. Nurses and hospitals, who, because of their religious beliefs cannot participate in elective abortions. And those are cases that I don’t believe the EEOC has brought yet, but I think those cases are out there, and I imagine that they will come, and those are cases that should be brought in the future. And because of Bostock and how the law has been clarified recently, related to that, I think that the topic of religion and sexuality will be in an increasing number of cases.

 

Hon. Amul R. Thapar:  Thank you very much. So now I’m going to open it up to the floor for questions. I want to remind you that we’re only taking questions via Zoom. There’s no way to ask questions of the speakers using other platforms. To ask a question, we ask that use the “raise hand” button which is in the lower middle of your screen.

 

If you’re a Zoom telephone participant, hit *9. I will then call on you. When I do call on you, please unmute yourself and ask your question. I’ll finally remind you that we have three wonderful speakers, and I expect them to speak, and I expect you to ask questions. That means whatever sentence you’re speaking should end in a question mark. All right. And we will begin. Tammy McCutchen go ahead.

 

Tammy McCutchen:  All right. I’ve unmuted. Is this working?

 

Hon. Amul R. Thapar:  It is working.

 

Tammy McCutchen:  All right. People will not be surprised this is for Cheryl. Cheryl, I want you to please assume that we will have a President Biden and look a bit to the future. One of the things that I am sure we’re going to find is that any new administration is going to accuse the Department of Labor of not having been enforcing the law, and I’d like to have your perspectives on that of enforcement under Democratic versus Republican administrations. I’d also like to know what do you think the future of your paid volunteer back wage program is going to be?

 

Hon. Cheryl Stanton:  Thank you, Tammy, for that question. Let me start on the enforcement side. I’m not going to necessarily talk about other’s philosophy about enforcement, but let me start with mine.

 

I started at the beginning about Dad, dinner table conversations, workplace, and the one thing I always remember is his conversations about Wage and Hour investigators. And he was always happy when it was those investigators who showed up on his worksite—sorry, Sharon and Peter—because they were always the most professional, the most educated in their area of law, and the most respectful of the process.

 

And so some years later, when I started talking to him about this role, he laughed pretty hysterically about it and told me I was in over my head, and they would run circles around me. And so when I came in, I came in really trying to understand the civil law enforcement side of this agency and what it was doing.

 

And one of the things I was -- you have heard me say repeatedly, Tammy, disheartened to learn we had not hired an investigator in three years and immediately sought to start rebuilding those ranks and will get applied not only to our agency but our sister agency that handles hiring. We did onboard 175 investigators during the pandemic and another 40—what we call technicians—who are those who are -- think of them as paralegals to a lawyer. They’re the paralegals to our investigators.

 

And one of the things we talked about, when I came in, was getting back to basics. We did not want to be enforcing cases on the edges that allowed for us to create new law or new liability requirements. Instead, we went back to focusing on basic wage and hour and FMLA violations, not those things that we could go to a court and convince a judge to create some kind of new theory of how the law works.

 

In that area, we really got away from -- we also started emphasizing getting back to low-paid workers. We wanted the most vulnerable low-paid workers to be our clients because those were the ones who are not unionized, who could not get easily to a high-powered, plaintiff’s law firm that brings these massive wage and hour collective actions and get millions of dollars in cases. They don’t want the minimum wage workers because they can’t get necessarily the million-dollar payout.

 

So we really got back to focusing on the most vulnerable of workers at minimum wage, and we’ve even started using data to analyze the outcomes of these. We’ve created some indexes to score our investigations to say, “Are we going for some of the severe cases?” And severe cases are not defined necessarily by the amount of back wages we recovered. We look at things like, “Was this a minimum wage employee? Were we getting them minimum wage and scoring it in such a way that we recognize and value that our clients are those who are the most at need?”

 

So what I would say, with respect to our enforcement, during the last 18 to 20 months, has really been a focus on those who don’t have other outlets. We don’t need to go and do massive investigations in unionized workplaces all the time. They have recourse. But I realize they get big back wage cases, so everybody thinks it’s fun and sexy to litigate. I want to help the mom who can’t put the food on the table.

 

You know I did a lot of pre-COVID visits to our offices, and, to get the investigators to talk to me, I’d always make them go around the room and tell me an interesting case. Something that they worked on that really go to them in the last year, and it was last year at this time in Orlando, an investigator said to me, “I was really just so relieved when I got the second set of books so I could figure out how they were paying people under the table.” And I looked at them, and I said, “Second set of books, that’s crazy.” And an investigator, two seats over, looked at me and said, “That’s nothing. Last year, I had to get to the third set of books before I could figure out how the payment structure was working.” I said, “Three sets of books. If you could figure out how to do three sets of books, you can figure out regular rate, even as technical as it is.”

 

So there are real people out there cheating, and cheating not only workers but cheating their competitors, and getting an unfair advantage, and taking advantage. And so, the last 18 months, we’ve really started refocusing on those people who really cannot get at it another way. So I hope that that focus on lower wage of vulnerable populations continues no matter who is at the Wage and Hour Division because those are the people who need us the most.

 

A quick word on PAID. Those of you who don’t know what that is, it’s basically a voluntary compliance come forward program under the Fair Labor Standards Act who cannot get a waiver from your employees for paying back wages that you missed under the FLSA, unless a court blesses it or the Department of Labor.

 

For years, employers who found mistakes in how they were paying were faced with a very tough choice. Do they own up to it and try and make it right and then face a massive collective action if the employees decide to go to a plaintiff’s counsel, instead of resolving it, because they could never get a waiver for it or just making the correction and moving forward?

 

We said, “Raise your hand if you made a mistake. Open your books. Let us audit where you say you made the mistake, tell us how you’re going to make it right, and we will bless it.” It’s not a get out of jail free card. This is making sure that workers get paid the money that they were owed for this mistake.

 

And it’s a highly successful program. It doesn’t take a lot of time. It hasn’t been a big tool in our toolkit, but we end up recovering ten times the back wages per investigator hour that we put into this. And so this is just one more way that employees can be made whole, even when we haven’t found that one particular employer that made a mistake.

 

So, again, enforcement, I love it. I will tell you that 18 months into this job, everything my father ever said about Wage and Hour investigators, and technicians, and support staff, it’s 100 percent true. I’ve never seen a finer, more professional group of people, and I’m very proud to be part of them.

 

Hon. Amul R. Thapar:  Thank you. Shalom Stone, you’re next. Please unmute and ask your question.

 

Shalom Stone (sp):  Can you hear me? Okay.

 

Hon. Amul R. Thapar:  Yes. Perfect.

 

Shalom Stone:  Thank you. So I was wondering whether the agency has considered whether certain kinds of diversity training might be creating a hostile work environment and whether there’s a role for guidance on that kind of diversity training, whether it was sensitivity training that might create that kind of risk.

 

Hon. Sharon Fast Gustafson:  This is Sharon Gustafson. Is that a question for me at the EEOC or for someone else?

 

Shalom Stone:  For you, please.

 

Hon. Sharon Fast Gustafson:  Okay. I’m happy to answer that. Diversity, and sensitivity, and inclusion are very good things. They’re good goals. Employers want to do that, and they can do it. It’s fine to do that. But it is very important for employers to remember as they do this that what the law requires, what Title VII requires, is not diversity. It is nondiscrimination.

 

So it is very important that as employers try to do their own diversity program, that they’re interested in, that they not accidentally fall into discriminating against employees on some protected basis. And I do think that, sometimes, this desire for diversity, and inclusion, and sensitivity training does end up discriminating against people perhaps accidentally.

 

Perhaps, it’s well-motivated, but it accidentally ends up discriminating against people other than the people that it’s trying to protect by telling others there’s something wrong with you. You’re racist, or you’re sexist, or something of that nature, that could be creating a hostile work environment for people that they don’t intend to be creating one for.

 

So I think it’s very important to be careful about that. And I do think that that’s something that the EEOC should look at, but, of course, our enforcement is based on charges, so we will only do that to the extent that those charges are coming in.

 

Hon. Cheryl Stanton:  Although, it’s a little outside of the Wage and Hour space, but, recently, the president did issue an executive order for federal contractors to—I’ll just say at a high level—be more cautious about how those trainings are issued to ensure they’re closer to what Sharon’s describing versus other avenues.

 

And if you’re really interested in this area, I would direct you to the OFCCP website because I believe they have an open request for information out for federal contractors to share their diversity in inclusion training and for workers to do the same so we can help -- so that agency, my sister agency, can help define that a little bit better.

 

There’s also a hotline. I don’t have the number, but we can certainly get it for you, Shalom, on people who they can call in and share information about trainings vis-à-vis the EO. So I know that is a big focus of this administration to make sure that that line is not crossed, and the needle is thread properly.

 

Hon. Amul R. Thapar:  Thank you, both. I want to ask each of you, if you don’t mind, what you think about the recent executive order establishing a Schedule F federal employee. Can one of you explain it? And then can all of you say what you think it means for employee protections, employee accountability, etc.? Cheryl, you want to go first since you’re on my screen, at least?

 

Hon. Cheryl Stanton:  So, as you know, there are different types of federal employees. There are senior executive service that was on the GS scale. They’re certain on different schedules. Earlier this year, we saw Schedule A employees, which are -- I believe, it’s lawyers specifically, but that tool in the toolkit was expanded to allow for a more streamline hiring of individuals who could directly help with the COVID fight.

 

And so Schedule F is just an extension of that that deals with those who are in policy positions, and I don’t know all the parameters of it. But I do know, at high level, the concept behind it is it is a different form a federal employee that has a different kind of -- is in a different classification than the general federal employee. And this is for those who specifically do policy work.

 

We all know that policy can change from administration to administration. And, as one that’s doing policy, it is very important to have, if not someone who is aligned with your policy helping you enforce it, but, of course, those who are not against your policy. And so I think there was some focus on that in other spaces.

 

At the Department of labor, I’ve been very blessed in my agency, and I will say this very clearly, especially -- I want to be very clear on this, and if it’s reported differently, we’ll circle back, but I want to be very clear that what I have done in my shop, in the Wage and Hour Division are again a group of professionals that have worked very closely with us on the policy that we have developed, discussed, implemented.

 

There has been wonderful back and forth, devils advocacy. It is not a situation where, necessarily, we all agree in every direction we go. But once a decision is made, we go there together, and it’s been a very good relationship. So, again, that’s a tool in the toolkit that I have not explored, but I know is issued and created to help agencies and departments that needed it.

 

Hon. Sharon Fast Gustafson:  I don’t have anything to add about Schedule F employees in particular. My understanding is the same as Cheryl’s. But hearing her talk about her workforce over there at the Department of Labor makes me want to say the same thing about the career employees that I have met here at the EEOC.

 

These employees have been -- they are smart. They are expert. They have so many years -- so many of them have spent whole careers here, and they have so much expertise. They’re very diligent in the work that they’re doing. I have been just really impressed with the EEOC employees, especially, the lawyers that I’ve worked with.

 

Hon. Amul R. Thapar:  I want to remind the participants that if you have a question, use the “raise hand” button, and I am going to call -- Peter, did you have anything you wanted to add before I call on the next questioner?

 

Hon. Peter B. Robb:  Well, just that briefly that I agree generally, of course, with the description of the executive order. But I wanted to say that it didn’t necessarily surprise me because although I had nothing to do with that executive order, periodically, in the last four years, we’ve seen some career positions in the government—people in career positions—claiming that they have independent ability to interpret and apply policy.

 

So the issue certainly has come up in various places, and, of course, generally speaking, it’s the president of the executive branch that determines policy. So, currently, like other agencies, we’re simply looking into it. That’s all I have to add.

 

Hon. Amul R. Thapar:  Okay. Thank you. I’ll call on John C. John, you can go ahead. I’m sorry.

 

John C:  Yeah. I think I’m on, correct?

 

Hon. Amul R. Thapar:  You are.

 

John C:  Okay. This is addressed to the General Counsel Robb. First of all, let me thank you. In 35 years of doing NLRB work, I think you’re the best general counsel we’ve had in these 35 years. I was wondering what you thought about board member McFerran’s suggestion or dissenter in the recent board decision manual versus mail elections, where she indicated that even after COVID, the board should consider adopting purely mail elections. What’s your opinion of that?

 

Hon. Peter B. Robb:  Well, first, I’d like to thank you for your comment and ask you if I can quote you on that if I need to someday. But with respect to board member McFerran, I think her dissent was something that was heartfelt and put forward honestly.

 

My position on running manual elections is pretty well known. I’ve been out there now for a number of months. I did extensive research. We developed a series of protocols that suggest the guidelines for running manual elections during the COVID era. We reviewed 1000s of pages worth of medical expert evidence, talked to people, and I think we can run them safely.

 

So there may be a difference of opinion there, but I think the Board recently has clarified the situations in which it would be appropriate to run a mail-ballot election rather than a manual election.

 

Yesterday, I put on some further guidance, which is on our website for our regional directors. So I think that there are many circumstances, if not most, where we can run manual elections at this point. But, again, ultimately, it’s up to the discretion of the regional director.

 

Hon. Amul R. Thapar:  Peter, while you’re on the screen, can I ask you a question while we’re waiting for other people to raise their hands, which is, how has the Board addressed changes or reversals in policy and litigation strategies over the years? So I can give you an example. In the Duquesne case, as I understand it, the NLRB took the position that a Catholic school had an obligation to bargain with a union representing its adjunct faculty.

 

That went to the D.C. Circuit, and Judge Griffith wrote an opinion for a divided panel where the Board lost, even changed to your position, and, in the Bethany College case, decided you didn’t have jurisdiction over this following in what your interpretation of Judge Griffith’s opinion. So how do you decide -- maybe a court decision does it or maybe an administrative change, but I think people wonder, how do these changes get made?

 

Hon. Peter B. Robb:  When the court disagrees with the Board, as it did in that case, the case is remanded to the Board. The Board has to make a decision on whether to accept the remand, take it as a law of the case, challenge it perhaps in the Supreme Court, or if the court allows, revisit its decision and reinterpret the law, taking into account the court’s opinion. I don’t think there’s been any change in how the Board approaches that. In that instance, I act as the Board’s lawyer, but the Board will make the decision, and it’s a case-by-case basis.

 

I think in recent years, we’ve seen more and more courts disagreeing with the Board and disagreeing with each other on specific issues. So it’s become a little more complex for the Board to figure out what they do in a particular case. In that case, of course, the Board accepted the remand and revised its position on exemption for religious institutions. But there’s no big procedural change. The procedure’s basically set.

 

Hon. Amul R. Thapar:  Thank you. Any other questions from the participants? If not, I have more. Well, here we go. Dorielle Paul.

 

Dorielle Paul (sp):  Hello there. Can you hear me?

 

Hon. Amul R. Thapar:  I can. You saved the audience from more of my questions. So congratulations.

 

Dorielle Paul:  I was waiting to see if it was needed or not. Usually, I’m the pit diver. All right. This question is for [Judge] Gustafson. My question has to do with a potential conflict between state and federal findings when it comes to any sort of discrimination. Specifically, what way, if any, does a state’s equal employment equivalent, whatever conclusion they reach -- what way, if any, does it have if that employee was to appeal it federally as well?

 

The reason I say this—and I end that with a question mark—but the reason I say this is if a worker was to be living in a jurisdiction, a state, that they brought a claim under the state’s Human Rights Act, that would obviously have just some discriminatory element to it, but it’s not as conservative in its leanings, and that Board found against the worker. As I said, what, if any way, does that prior state-level finding have with respect to any sort of federal pursue with the EEOC? And thank you.

 

Hon. Sharon Fast Gustafson:  The EEOC has worksharing agreements with various state FEPA, the Fair Employment Practice Agencies, and you’d really have to look in a particular state to see what the agreement was with that state, in more detail.

 

Certainly, it sounds to me like you would be running into res judicata, or issue preclusion, or something if you already tried the case under one law, and then you tried to bring it under -- if you tried it under the state law, and then you tried to bring it under federal law, generally, these things are brought together at the same time, and they go forward in courts together.

 

The Title VII cases can be heard by state courts as well as by the federal district courts. So it’s just very difficult for me to picture that situation. If you have a situation where you had a state agency not paying attention to your claim, and the statute of limitation hadn’t run, there would be nothing that precluded you from bringing it to the EEOC, if that’s what the question is, and having the EEOC look at it with new eyes.

 

But, generally speaking, the EEOC is deferring to the state agencies when there’s a worksharing agreement, and we’ve decided “You look at the case, and then we’ll go along with whatever you’ve decided about that.” But the employee definitely has a right to choose, which then you want to come into the state Fair Employment Practice Agency or the EEOC.

 

Hon. Amul R. Thapar:  Thank you. Samuel McVey.

 

Samuel McVey (sp): Okay. I wonder what involvement your agencies have had with the political advocacy and organization activities of the public employee unions.

 

Hon. Cheryl Stanton:  I apologize. I didn’t hear the end of the question.

 

Samuel McVey:  I’m talking about public employee unions.

 

Hon. Peter B. Robb:  I’ll tackle that one first. We have two unions: The National Labor Relations Board Union, NLRBU, and the Professional Association. The BU mostly does the field and some headquarters people. The PA is for the professionals at headquarters.

 

We are negotiating contracts with both of those entities as well as dealing with them on a variety of things that have come up, say, COVID related, etc. I would say that it’s a very active situation in our dealing with them. They’re not shy in putting forward what their position is.

 

And when we came into this situation, the PA contract had not been renegotiated for 18 years, and the BU contract hadn’t substantially changed in about 6 or 7. So there was definite need to take a look at some of the provisions and bargain. But we’re in very active bargaining with both unions on just on a new contract on a variety of fronts, so we interact on a daily basis with our unions.

 

Hon. Cheryl Stanton:  And I can tell you, the Department of Labor, that is handled by another component within that handles shared service and more of a unified department-wide human resources unit. But they have also been involved with some negotiations and bargaining over the last few years.

 

And, again, I will say, not only has that component been very supportive -- has our HR component been very supportive of the Wage and Hour agency but we’ve enjoyed a very productive and respectful relationship with our -- we actually have three public sector unions within the agency of Wage and Hour. And so they’ve been very constructive and helpful for us in making sure as we make changes and move forward, we do so in a measured and appropriate way.

 

Hon. Sharon Fast Gustafson:  Here at the EEOC, I have very little interaction with the unions. I have had a little bit of -- it’s been a fine, respectful relationship when it’s come up with our own employees who have claims against the EEOC. But any negotiating of contracts and that sort of thing is not done here by the general counsel’s office, but rather by the chair’s office.

 

Hon. Amul R. Thapar:  Well, I’m going to wrap up here so we’re on time. I want to thank our panelists for doing a fabulous job and our audience today for participating, and I just want to remind everyone that the next event is a discussion of “Intellectual Property Rights and the Rule of Law.” It begins at 2:00 PM, and I saw Professor Epstein was on that, so that’s always interesting. No matter what you think of the subject, he will say something interesting. So it’s worth Zooming in and hearing that panel. So thank you all again. Have a nice day, everyone.

 

Hon. Peter B. Robb:  Thank you.

2:00 p.m. - 3:30 p.m.
Intellectual Property: Intellectual Property Rights and the Rule of Law

2020 National Lawyers Convention

Topics: Intellectual Property
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On November 11, 2020, The Federalist Society's Intellectual Property Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The panel covered "Intellectual Property Rights and the Rule of Law."

The world’s first democratized intellectual-property legal system, initiated by Art. I, Sec. 8, Cl. 8 of the U.S. Constitution, is intended, per Federalist #43, to: provide uniformity for the protection of IP rights; secure those rights for the individual rather than the state; and incentivize innovation and creative aspirations. Predictability, rooted in uniform application of the rule of law, is essential for property rights and economically sustainable growth. This is especially true in the context of intellectual property and the tremendous investments required for innovation and creative expression. These intended goals can be jeopardized in times of crisis if they are seen as being pitted against health, safety, security, and humanitarian needs that arise during actual or perceived crises such as the COVID-19 pandemic.

How can private IP rights be achieved and maintained in a manner that genuinely promotes public good without capture issues? Does a crisis necessitate a suspension or weakening of intellectual and/or other property rights –– or is it in times of crisis that rule of law and its attendant stability/predictability are most crucially needed? What we can learn for IP from how the rule of law has been affected by national crises in the past? This panel will discuss IP law in the 21st century and especially in 2020, considering court decisions, public advocacy, and data-driven lessons of history and how they should be applied to ideas for reforms that would weaken IP and rule of law versus those that may construct and restore predictable rights in support of vibrant and productive innovation and creative output.

Featuring:

  • Prof. Jorge Contreras, Professor of Law, University of Utah School of Law
  • Prof. Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law; Peter and Kirsten Bedford Senior Fellow, Hoover Institution
  • Mr. Phil Johnson, Founder and Principal, Johnson-IP Strategy and Policy Consulting; Former, Senior Vice President and Chief Intellectual Property Counsel, Johnson & Johnson
  • Hon. Karyn A. Temple, Senior Executive Vice President and Global General Counsel, Motion Picture Association; Former Register of Copyrights, United States Copyright Office
  • Moderator: Hon. Ryan T. Holte, United States Court of Federal Claims

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

Event Transcript

Hon. Ryan T. Holte:  Welcome, everyone, to The Federalist Society National Lawyer’s Convention. The convention theme this year is "The Rule of Law and the Current Crisis." And our panel this afternoon on intellectual property is “Intellectual Property Rights and the Rule of Law.”

 

      My name is Judge Ryan Holte. I am a judge on the United States Court of Federal Claims and a jurist in residence and professor of law at the University of Akron School of Law. We have four excellent speakers for our panel today. And we will go in order of speakers by the order that I do the introductions.

 

      Our first speaker is Professor Richard Epstein, currently the Laurence A. Tisch Professor of Law and director of the Classical Liberal Institute at New York University, and the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, as well as the James Parker Hall Distinguished Service Professor of Law Emeritus and Senior Lecturer at the University of Chicago School of Law. Professor Epstein has authored numerous books and journal articles on various areas of the law including intellectual property rights, torts, contracts, property rights, and law and economics. He is consistently ranked by legal journals as one of the most influential legal thinkers of modern times.

 

      Our second speaker is Professor Jorge Contreras of the University of Utah's S.J. Quinney College of Law. He's a professor of intellectual property law, property law, and genetics and law at University of Utah's College of Law. He was recently named on the University of Utah's Presidential Scholars and won the 2018 Faculty Scholarship Award. He's previously served on the law faculties of American University Washington College of Law as well as WashU in St. Louis. He was also previously a partner at the international law firm of Wilmer Cutler Pickering Hale and Dorr, where he practiced transactional and intellectual property law in the United States and the United Kingdom. His current research focus is on the development of technical standards and the use and dissemination of data generated by large-scale scientific research projects.

 

      Our third speaker is the Honorable Karyn Temple of the Motion Picture Association. She's currently Senior Executive Vice President and Global General Counsel there. She has previously served as the Acting Register of Copyrights from October 2016 to March of 2019, and then as Register of Copyrights and Director of the United States Copyright Office from 2019 through 2020. From 2013 to 2016, she served as Associate Register of Copyrights and Director of Policy and International Affairs for the United States Copyright Office.

 

      Previously, she's also worked as Senior Counsel to the Deputy Attorney General of the United States, where she helped manage the DOJ's task force on intellectual property, and has also spent several years as Vice President, Litigation and Affairs, for the Recording Industry Association of America, as well as the Recording Industry Association of America's -- working there and the law firm of Williams and Connolly. Billboard magazine has described her as "seen as being evenhanded on the kinds of intellectual property issues that have become contentious in the digital age." And the Professional Photographers of America say she "has demonstrated a thoughtful approach to copyright law and to the Copyright Office management overall."

 

      And, finally, our fourth speaker is Mr. Phil Johnson of Johnson-IP Strategy and Policy Consulting. He is currently principal of Johnson-IP Strategy, which he founded after his retirement in February of 2017 as Senior Vice President and Chief IP Counsel at Johnson & Johnson. He is currently chair of the Steering Committee of the Coalition for 21st Century Patent Reform, a Steering Committee member and Co-Chapter Editor of the Sedona Conference on Biopharmaceutical Patent Litigation, and a member of the Board of the Monell Chemical Senses Center. Before joining Johnson & Johnson, Phil was a senior partner and co-chair of the IP litigation group at Woodcock Washburn in Philadelphia. He has played a key role in both the drafting and passage of the America Invents Act, and was subsequently appointed a member of a six-person committee formed by the director of the PTO to make recommendations on regulations to implement the inter partes review and post-grant review proceedings established by that Act.

 

      So we will begin, again, with Professor Epstein. We will give seven minutes, roughly, to each participant to make opening remarks. And then we will allow for responses and discussion between the panelists.

 

      After our introductory remarks, we will allow the panelists to speak and raise comments to other panelists. Hopefully, we'll have a good conversation from that, and then we will transition to questions and answers within the audience. For that you will raise your chat-feature hand in the Zoom window.

 

      And, with that, I'll transfer things over to Professor Epstein for Professor Epstein's introductory remarks.

 

Prof. Richard Epstein:  Thank you, Ryan. My microphone is working. I'd like to thank The Federalist Society for inviting me to appear on this particular panel. And the subject of intellectual property law is very much in flux. You never know from one end of the day to the other what you're going to see. But what I'm going to try to do is to frame the general inquiry of what it means to talk about the rule of law in connection with intellectual property.

 

      The rule of law, more generically understood, has two components that are associated with it. The first of these components is a kind of a procedural requirement, and the second one turns out to be a substantive requirement. On the procedural side, it turns out that virtually everybody agrees that intellectual property law, like other forms of law, requires a certain degree of regularity in the way in which the particular system is operated and flows together. So that means what you have do to is you have to have a neutral decision maker; you have to have the opportunity to be heard; you have to be sure that the panel is going to be free from bias; there has to be an opportunity to present facts and arguments of law and the like.

 

      One of the things that very much worries me about the current state of the law was the decision that was made underneath the America Invents Act of 2011 to allow for inter partes review inside the Patent Office. I have no objection whatsoever for having all sorts of reviews taking place before a final patent turns out to be issued. But I think the correct answer is, once the patent is issued, that it should be tried in a court of general jurisdiction—a district court, perhaps even a specialized Article I court. I think it's a very big mistake to try and say that the very Patent Office that issued these things should then be put over the judicial courts to decide whether or not its validity is to be upheld or not.

 

      What are the kinds of difficulties that are associated with this? Well, a lot of it depends upon the rules that are used to appoint the judges. And then you're dealing with an ordinary court. The rotation and anonymity is the way in which they're selected. But inside the particular agency, it turns out that that is not rule. What takes place is that the head of the PTAB is in a position to figure out how many people you want to put on a panel, which people you put on the panel and, at least before the current officer took over, Mr. Iancu, there was also situations in which the panel had new judges added on until the result came out the way in which the director wanted it.

 

      I think, in general, that the power of Congress to issue patents is subject to a general constitutional limitation, and that constitutional limitation essentially says that you cannot put in a patent grant a provision which essentially undermines the jurisdiction of Article III courts to handle all of these disputes. That was the way in which the system worked much earlier on, and the McCormick case of 1898 or so gives all of the detailed precedence on that. And I think that this particular form of separation may have a certain kind of short-term efficiencies, but it has the long-term ability to essentially sustain and operate the system in a correct fashion. So that would be my first point.

 

      And the second point I think that one has to talk about is how do you want to think about patents? I would say, if we were to ask ourselves what was the biggest sort of meta-question that exists with respect to intellectual property, it would be the question of self-identification. Is intellectual property to be treated as a species of property rights, or is it to be treated as something less?

 

      So to give one illustration of this—I'll actually give two—when Paul Clement wrote a piece about this, he said you don't want to think about intellectual property as property in the natural rights sense. What you want to do is to think about it as a situation in which the government allows you to exclude other individuals. But that has not got the sharp definition of a property right. Most notably, the rights to use and dispose of this particular patent by a license and practice are going to be compromised if you don't make it into a property right—which, under all standard theories, whether for intellectual property or for anything else, include not only the right to exclude, but the right to possess, the right to use, the right to develop, the right to lease, and so forth. And the only constraints that you had on these things were those from the general antitrust law which, again, carried over from standard forms of property into this particular area.

 

      Another version of this is the thesis that had been advance by, amongst others, Mark Lemley, in which you treat the patent as though it's some kind of a subsidy. And what you assume is that the government is giving out favors, and if they're giving out favors to one, they can give it out to another. They can give the favor out; they could take it back. But I think it's very, very disingenuous to think that, when you're dealing with these forms of property, that they're the same thing as a subsidy that is given to the solar energy company Solyndra or a farm subsidy or something else.

 

      It turns out if you look at the case in Matal v. Tam, they're pretty clear that, when you give somebody—in this particular case—trademark protection, it's not a subsidy, it's a quid pro quo. We give you the exclusives that you can develop something which is going to be for the long-term benefit not of yourself but for the public at large. And that's exactly what happens when you create inventions. They create all sorts of benefits for the public that come sooner, and better that you have a short-term monopoly rent on the one side than no product at all. So what you do is you keep the limited grant and you let it go.

 

      So, in my own view, the only difference between intellectual property and other forms of property is that intellectual property, at least in this patent space, has a necessary time limitation associated with it because it turns out that the restrictions that are in use have real social losses, which is not the case with land and so forth. You have to figure out what the optimal period is—say something about 20 years and so forth. Within that period, you want to treat it pretty much the way you treat all other forms of property, with the strong rights that I've given and the remedial protections that are associated with injunctions and the like. You also want to make sure that, when you're dealing with patent eligibility, you don't expand the notion of what counts as a common-property situation—a natural substance or an abstract idea—so that all sorts of inventions take place.

 

      I can't go into this now, but I've always been a defender of the position that Giles Rich took both with respect to intellectual property on the one hand and with respect to medical and other kinds of inventions on the other, that they should receive these kind of patent respections and should not be treated as though they were a knockoff of the rule E = mc2.

 

      I see that my time is about up. But, essentially, the final message is, if you have the right set of substantive rules, the rule of law constraints become much easier to observe, because what happens is a system which has strong metes and bounds in the property space reduces government discretion. And a system that respects freedom of contract is going to be one in which the courts have the job not of setting the terms of just arrangements, but figuring out what the parties meant and then applying standard contract principles to see that those bargains are accepted—subject, of course, to the usual constraints of force and fraud, monopoly, and the like.

 

      So with that very conventional position, I think I am now turning the panel over, if I am not mistaken—who am I turning it over to? [Inaudible 00:27:04], right? Okay. Well, I'm going to turn it over. Take care.

 

Hon. Ryan T. Holte:  Thank you, Professor Epstein. And now, Professor Contreras.

 

Prof. Jorge Contreras:  Thank you. Thanks very much, and thanks to The Federalist Society for inviting me to speak on this panel. It's a real honor and an honor, especially, to follow Professor Epstein.

 

      Since the subject of the conference is the rule of law, I'm going to take a slightly different tack. I'd like to address my opening comments to a trending narrative that casts opposition to the demands of patent holders as a form of lawlessness. This narrative specifically takes aim at a practice that has been termed "efficient infringement"—the idea that a firm may rationally decide to infringe patents either because it's going to be too costly for the patentholder to enforce its rights in court, or because it's happy to take its chances in court where an asserted patent could be invalidated, or damages eventually assessed against the infringer years later will likely be no higher than the royalties that the infringer would have paid anyway under a licensing agreement.

 

      So commentators today bemoan a prevailing steal-what-you-want attitude among large companies. One commentator explains that efficient infringement is "another way to say it's okay to violate a constitutionally granted right." Another compares patent infringement to piracy on the high seas, arguing that infringers exploit the lack of enforcement of the Law of Nations. One writer, just days after the recent U.S. presidential election, was quick to place the blame for the "anti-patent chaos" that marked large portions of the Obama administration on an enemy within—a handful of politically well-connected companies that were helpful to Obama's own political ascendency.

 

      Among the top recipients of criticism in this narrative is the PTAB, the Patent Trial and Appeal Board, which Professor Epstein mentioned, an arm of the Patent and Trademark Office that has, its true, rejected a large number of issued patents as invalid. In response, the PTAB has been called a patent death squad, a kangaroo court—despite the fact that, at least to my knowledge, it has generally operated within the statutory mandate established by Congress, for better or for worse.

 

      These statements are not the ramblings of internet trolls or conspiracy theorists. These are statements that have been made by respected figures in the patent world, former government officials, judges, academics, and prolific writers and patent practitioners. And the question I pose is:  Are they right? Is the United States descending into a state of lawlessness in the patent area? And I do not believe that it is.

 

      So let's consider more closely the conduct that critics are responding to. When complaints of widespread efficient infringement are made, they're not generally referring to cases in which one company copies its competitor's patented products and just hopes to get away with it. Nor are they referring to cases where there's a breakthrough discovery that's made and jealous competitors race to incorporate it into their products. Nor is it a case of a licensing deal gone sour in which one company reneges on its obligation to pay an agreed price for access to a partner's technology. And it's not a case of industrial espionage, in which valuable technology is surreptitiously pilfered from a competitor's servers or carried away by disloyal employees. All of those examples are indeed lawless and worthy of condemnation.

 

      But efficient infringement is something different even though it's being cast in the same light as those other types of behavior. Here, a large operating company, often a manufacturer or service provider, is approached by a patent assertion entity—a PAE—often referred to as a patent troll. The PAE notifies the company of a patent portfolio in the general area of the company's business. It offers the company a fee-bearing license, but the company ignores the offer. The message back to the PAE is "sue me, because that's the only way I'll ever pay you a cent."

 

      And the question is why a law-abiding company would adopt this approach. Is it evidence of the lawlessness that these critics decry? I don't think so. There are numerous legitimate business reasons that a company should adopt exactly this approach when confronted by a PAE demand.

 

      First, as has already been indicated, every year, a significant number of patents are found invalid either at the PTAB or in district court. Depending on the industry, the invalidation rate can be over 50 percent. Thus, when a company is approached by an entity bearing patents, there are good odds that some or all of the proffered patents will be found invalid.

 

      Compounding this fact, patents held by PAEs are often considered to be of lower quality than average. Why? Because they're often acquired from bankrupt firms that did not succeed in the market, or they're sloughed off by successful firms that did not find them particularly valuable to their businesses. If these patents happen to cover a company's products, it is often a coincidence or the result of broad and aggressive claim drafting by patent attorneys.

 

      This last point is worth spending another minute on. It's undeniable that the claims of many asserted patents, especially in the software industry, are vague and ambiguous. Patent claims do not protect circuit diagrams or computer code. Rather, they are linguistic consorts crafted by lawyers to be as broad and encompassing as possible. Often, they don't even describe how a particular technology works, but only what the end function or result is.

 

      So I submit that those who analogize patent claims to real property deeds haven't read enough patent claims. There are no clearly drawn boundary lines here. They harken back to the worst of the old metes and bounds boundary systems of yesteryear and with property lines that were established by vague descriptors like "a stone's throw from the river" or "where the old church used to stand."

 

      The question whether a particular product in the real world infringes a patent claim crafted by someone, possibly years earlier, who was not even aware of the allegedly infringing product is a fraught one. And, often, there's no clear answer to this question until a judicial claim interpretation hearing. This indeterminacy in the system is compounded by the behavior of PAEs themselves. Often, a demand letter will refer to a portfolio of patents with no clear linkage to the recipient's products. In patent litigation, we talk about claim charts that identify how every element of the patent claim is practiced by an allegedly infringing product. Claim charts are seldom included in PAE demands, and how could they be? Many of these PAE litigation campaigns target dozens or hundreds of different companies and products. And, unfortunately, it's only for litigation that a patent presented by a PAE can be assessed and valued definitively.

 

      So it's not at all irrational for a company that's approached by a PAE with patents of dubious validity or infringement is uncertain to ignore the approach and allow litigation to produce a definitive result. This is, in fact, an entirely rational strategy and wholly in keeping with the law as it stands today. There is no element of lawlessness at work.

 

      Critics also complain about systemic features that enable operating companies to adopt this wait-and-sue approach. For example, critics of efficient infringement object vehemently to the PTAB's propensity to invalidate patent claims after they have been allowed by the PTO. And it doesn't matter that the PTAB is actually part of the PTO. This administrative body has been challenged on constitutional and administrative grounds for years, and the challenges continue. Why? Because it takes a more skeptical view of patent claims than the PTO's examiner core, which is compensated based on the number of applications processed rather than the quality of their output.

 

      Another frequent target of these critics is the Supreme Court, whose quartet of patent eligibility decisions—Bilski, Mayo, Myriad, and Alice—have been roundly criticized for rejecting the patentability of laws of nature, naturally occurring products, and mental processes. Allegations have been made that the Supreme Court is itself acting in a lawless or at least an ultra vires fashion by creating judicial exceptions to the statutory enactments of the Patent Act, a function that the Court has pursued for the past two centuries.

 

      So I acknowledge that reasonable people can differ over optimal patent scope and policy. Likewise, the PTO and the PTAB can issue and uphold more or fewer patents. And the courts can interpret the Patent Act in ways that we like or dislike. Reasonable people can also seek change through litigation, legislation, and administrative channels. All of these mechanisms are organic parts of our tripartite legal system. We will never have a situation in which all partisan interests are equally happy with the rules or the outcome of every case. But this is just part and parcel of an adversarial legal system. It is no reason to question the legitimacy of the system itself.

 

      So, far from a departure from the rule of law, what we see today in the patent system is, I think, the operation of a well-functioning legal regime seeking to address the interests of competing but largely law-abiding constituencies.

 

      And, with that, I will turn the floor over to Karyn Temple.

 

Hon. Karyn Temple:  Thank you. It is a pleasure to be here today to discuss IP and the rule of law. And we're going to take a quick turn. My remarks, of course, are going to focus on that in the context of copyright law. How do clear, consistent, and strong copyright laws support the rule of law generally, and economic prosperity more specifically?

 

      Of course, much of what I will say here today is pretty self-evident, based on just standard, basic economic principles. We know that robust and clear property rights support growth, innovation, and economic development. That is no less true in the category of intellectual property rights and, specifically, copyright.

 

      Way back in 1787, when the Constitutional Convention convened, the Founding Fathers knew that our culture and society benefit from creative works and that strong laws protecting those works encourage and incentivize the creation of more of them and support our overall economic development. This principle was, of course, enshrined in the United States Constitution, which recognized in the very first Article the need for Congress to have that authority to develop laws to promote the progress of science and useful arts through exclusive property rights.

 

      So copyright law is the foundation of our nation's creative economy, the lifeblood of our business, and a bedrock principle that supports the livelihood of millions of American creators. Today, the U.S. copyright industries add more than $1 trillion to the national economy and support more than 5.5 million direct jobs. Our film and television industry supports 2.5 million jobs in all 50 states, as well as Puerto Rico, the Virgin Islands, and, of course, here in Washington, D.C. Our movies and television shows account for $16.3 billion in exports, registering a positive trade balance with nearly every country.

 

      So I remain surprised that this is still the subject of some argument, that somehow weaker IP laws or weaker IP protections and enforcement are okay or even beneficial because, well, technology or innovation. We do not need weaker IP laws or weaker copyright laws to support technology or innovation. Quite the opposite, in fact. That's why the content industries have been sounding the alarm about an unfettered technology sector for years. We have seen the unhappy results of tech exceptionalism firsthand, and the unbalanced way the burden of enforcing piracy has fallen to the content industries. This is not what Congress intended by the Digital Millennium Copyright Act, and we welcome a greater adherence to the actual text of that statute supporting the rule of law.

 

      Still, many see stronger IP enforcement as a zero-sum game in which efforts to aid the copyright industries come at the expense of the technology platforms. This is wrong. When IP laws are appropriately balanced with appropriate limitations on service provider liability, both will benefit. When piracy is curtailed, content can be appropriately priced instead of artificially deflated. When this occurs, technology platforms will benefit because the content they provide will be more valuable.

 

      Many researchers, especially Walter Park at American University, have found a direct correlation between strong IP laws and overall increased GDP. This correlation is particularly strong in developing countries but can be seen across the board. For example, a 2014 case study in India on the impact of piracy on the motion picture industry showed that increased piracy led to lower motion picture revenue and a decrease in supply for new movies in India. The study concluded that this supported a central tenet of copyright policy that stronger and more effective copyright protection effects more creation.

 

      Similarly, a case study in 2014 of the publishing industry in Israel demonstrated that the weakening of copyright protections there after a 2007 expansion of fair use led to a smaller publishing industry than would have existed without that particular policy change. A 2015 internal study of the global motion picture industry also concluded that stronger copyright laws contribute to greater investment in new motion picture content, creating more jobs in the motion picture industry and related industries, and contributed meaningfully to a country's economy.

 

      And, finally, a June 2015 study of the impact of Canada's educational sector guidelines by Pricewaterhouse found that the expanded guidelines substantially reduced licensing revenue, compromised the ability of publishers to publish materials and meet varied academic needs, and that, over time, the publishing of new content for K-through-12 schools in Canada would disappear, and the quality of the content used by school students would thereby decline. In short, they concluded, "Fewer works will be developed by Canadian content producers, both creators and publishers, and many relatively high-paying jobs are expected to disappear."

 

      Yet, despite this clear evidence of the need for stronger—not weaker—IP laws, current copyright protection and enforcement in the United States still revolves around an outdated notice-and-takedown system in which millions of notices are sent every year and files are removed one at a time. This system is not efficient in both the colloquial and economic meanings of that term. It is not a good use of resources because content companies spend millions of dollars on content protection efforts, yet piracy persists at massive levels. It is a tax imposed on the content industry for a small amount of content protection.

 

      So what do we do about it? We need to continue to work towards stronger copyright protection in the United States and globally with all of our trading partners. In the United States, Senator Tillis, who just won reelection, is poised to continue his review and improvement of the DMCA and announce that he will be releasing draft legislation later this month -- or later next month.

 

      For our trading partners, we must work with them to strengthen their local copyright laws and adopt strong trade agreements. We know that, in certain economies where there are fewer protections for intellectual property rights, theft is inevitable, and the negative economic consequences ripple outward. But the bottom line is this:  The film, television, and streaming industry is global whether we're talking about the content that we see on the screen or the audiences watching them. And, if we want to continue to thrive as an industry, we have to compete on every level, from market access to strong IP rights. And that requires strong trade agreements with strong IP chapters.

 

      These modern free-trade agreements, including the USMCA, set a baseline level of IP protection that the parties to the treaty must live up to. And that baseline is almost always U.S. law. In other words, we tell other countries, if you want to do a trade deal with us, you have to guarantee your copyright, trademark, and patent laws are at least as good as ours.

 

      For decades, there has been bipartisan agreement in administrations of both parties and in Congress that strengthening IP laws and ensuring effective enforcement worldwide is in the vital economic interest of our country. By leveraging access to the U.S. market, the U.S. has been able to secure improvements to the IP frameworks of our trading partners. This work, of course, began in earnest with the TRIPS Agreement in 1994 and, today, 164 countries have joined TRIPS.

 

      For copyright standards, the USMCA has also provided a significant boost. It has made adjustments for the digital age, which including provisions on aiding and abetting for criminal copyright offenses. On the most fundamental level, it breaks down the nonsensical division between what is considered criminal in real life and what is criminal online. It includes strong rules on the presumptions of ownership, on contractual transfers, on national treatment, on criminal remedies for cable and satellite signal theft. It includes robust protections for technological protection measures similar to Section 1201 of the DMCA, and it defines commercial scale to clarify that infringing acts without a profit motive or commercial purpose are actionable. DMCA, of course, is not a perfect agreement, but it has made meaningful improvements to the IP landscape of North America. It's the next best thing to build on.

 

      We are also making headway with China in regard to copyright protection. In January of this year, the U.S. government completed a Phase One trade agreement which includes meaningful enforcement obligations pertaining to copyright protection. And, of course, we recently embarked on negotiations for a new trade agreement with the United Kingdom. In many ways, the U.K. has a more modern and nimble copyright enforcement framework than the United States.

 

      Of course, now more than ever, the stakes for the film, television, and streaming industry and many others that depend on strong IP protection couldn't be higher. So it's important that we all work together to protect and strengthen the copyright system and the rule of law it depends on.

 

      Thank you. And, with that, I will turn it over to Phil Johnson.

 

Phil Johnson:  Thank you. I, too, am honored to be on such a distinguished panel. It's a pleasure to be here with you and an interesting challenge to follow the excellent presentations of all three of the panelists we've heard from.

 

      Because I'm acting in the cleanup position, I'll limit myself to commenting on just a few of the things that have already been mentioned and what needs to be done or what remains to be done in order to improve our IP system.

 

      First of all, I agree that there are issues that need to be addressed. And I will start with one that I think is largely the creation of the Supreme Court, which is a dramatic expansion of its rule that certain ideas—abstract ideas—are not patentable. In a series of decisions, the Supreme Court has taken what was a small and seldom-used exception that it had in its common law and expanded it to prevent the patenting of inventions or discoveries if they're directed to—and "directed to" is not really defined in their decisions—abstract ideas, natural phenomena, laws of nature, and/or products derived from natural materials, such as isolated or purified substances.

 

      Now, of course, by having so expanded this, some things that we think of as discoveries that have traditionally been patented, such as penicillin, cannot be patented under the current precedent because penicillin is a naturally occurring substance which was isolated and purified and developed for medical uses. And there are many other areas in medicine where the same is true, especially those inventions that are based on some of our basic biological processes, which the courts have found not to be patentable recently, although they were traditionally patented.

 

      Another area of concern is that, although the Constitution itself speaks to providing rights to protect discoveries by eliminating natural products, many of those discoveries are no longer patentable. So why do we care about this? Well, we care about it not just because many people have done their research in reliance upon the availability of patent protection—have invested large sums of money to develop products that are eventually marketed—but because many people are not investing as they might because of the uncertainty that's created.

 

      A great promise of medicine going forward is personalized medicine. Almost all personalized medicine depends on the ability to understand the differences in the genetic makeup of one individual to another. In order to do that, personalized medicine relies on sophisticated diagnostics—sophisticated development of products that are tailored to someone's genome. The last thing you want is to give a drug to someone on whom that drug is not going to be effective. That can happen—and does happen—for most drugs. Most drugs are not 100 percent effective on everyone.

 

      So what you would like to do is, with personalized medicine, is figure out which drugs are going to work on an individual and which ones aren't. Which ones are the best? But we aren't able to do that as well as I think we all would like in part because diagnostics have become essentially unpatentable.

 

      The last ten cases that have gone to the Federal Circuit involving diagnostics have been found unpatentable by the Federal Circuit based on their interpretation of the Supreme Court precedent. This and many other factors, including public policy factors, have discouraged the development of diagnostics and have discouraged the investment into them that it takes—because it does take quite a bit of investment and many years in order to develop a good diagnostic—and, actually, has left us in the position that we found ourselves when COVID entered and we found that our diagnostic capability was not what we would like it to be. It certainly wasn't, I think—now recognized in hindsight—anywhere near what we needed in order to effectively respond to the pandemic.

 

      So was this an unexpected event? I think not. By my recollection, I testified, along with many other witnesses, at least four times before congressional hearings that we suffered the risk of pandemics being brought into the United States from other sources and that we should be incentivizing the development of medical technologies, including diagnostics, in order to respond to them. But, of course, now that we have the crisis, I'm thinking—and I think we're all hoping—that incentives will be restored and we will go from where we are, which is not an enviable position, to where we'd like to be, which is a leader in this area.

 

      So, moving on, much has been said about inter partes reviews and the PTAB. And I believe that the idea of the PTAB as it was originally envisioned for conducting IPRs was a laudable one. But, as it was implemented, many things were changed. Initially, it was thought that very few IPRs would be instituted because the director would be making the decision as to whether or not to implement and use the director's independent judgment not based just on whether a threshold showing had been met, but also based on whether it was in the best interests of the patent system to proceed with an administrative proceeding rather than leaving the issues to the courts to resolve.

 

      When implemented, the original director at the time decided that, rather than undertake this responsibility, he would simply delegate the responsibility for deciding whether to implement to the newly created Patent Trial and Appeal Board, which would, in essence, become prosecutor, judge and jury for these appeals, thereby giving up on the two-stage approach that Congress had intended.

 

      Then, as implemented, the PTAB rules—the original PTAB rules—were very friendly to challengers. In the past, similar unsuccessful proceedings had been created, and they weren't used. It appears that the people implementing -- writing the implementing regulations decided to do everything they could to make the proceeding as friendly as possible.

 

      So these are just two points that we comment on. I could go on, but I see my time is up. So perhaps we'll get to them in the question-and-answer series. So I'll turn this back to our moderator to take it from here.

 

Hon. Ryan T. Holte:  Great. Thank you so much, Phil, and all of our panelists.

 

      What I'd like to do now is open up the panel to discussions or comments between panelists. With that, and before we move to the questions from the audience—and, if audience participants do have questions, just a reminder:  The best thing to do is to raise your hand in the Zoom box.

 

      But, before we get to the audience, let's move to panelists' comments and questions between each other. Anyone on the panel? I guess we'll just go in order. Professor Epstein, I see, has his hand up. Professor Epstein, comments or questions?

 

Prof. Richard Epstein:  Thank you very much. Yes, I do have some comments and a sort of takeoff on the comments that were made by Jorge on the one hand and by Phil on the other.

 

      I think it's kind of a synergy on the question that you have to answer is:  When is it that resistance by a particular party that refuses to negotiate a deal is a good or a bad thing? The way in which it was described by Jorge was that, well, you see these weak patents out there. The patent assertion entities, essentially, they're just holdup operations. The appropriate model response is to ignore them and then, if they want to come after you, you defend them.

 

      The difficulty I see with that position is the same strategy can be used with respect to very good patents that exist. And what you can say is, okay, we're going to -- you have to come after us; it's going to cost you a lot of money; you're not going to be able to get injunctive relief; you may have to sue us multiple times. There's nothing about a patent assertion entity which should be different from the original holder. The rights cannot be increased by assignment; they should not be reduced by assignment.

 

      So what happens is you then have to tie in to what Phil said, which is—I agree with him, as I said in my remarks—that the question as to what counts as a natural law when you're dealing with diagnostic tests and the like has been expanded all out of proportion relative to what it is. And so what happens is, now that you have these very, very weak definitions of protection or holding out against somebody who wants to sue for a diagnostic test, it's going to be a perfectly optimal strategy because you're generally going to win.

 

      So what you really have to do, I think, is to make two things. One is you have to assume that we do not want special rules with respect to PAEs. Sometimes they do good things; sometimes they do bad things. But the general common law rule which says that the assignee takes the same rights, no more, no less, than the original assignor is there. And then, secondly, what I regard to be as a kind of a two-part program, which is extremely important, is to basically cut down—by statute if necessary, because the Supreme Court seems hopeless on this issue—on the definition of what counts as a natural law. And then, when you get a workable definition of what counts as a diagnostic test of one kind or another, you start giving injunctive relief in order to protect it.

 

      If you put those two stages together, I think you could handle the biggest problem. I agree with Phil. I think the biggest substantive problem that we face is the expansion of the definition of what counts as a natural subject matter. And I think that the PTAB essentially has gone out of whack. The reason that happens is the same reason it always happens. You create special tribunals and give them all sorts of discretion. There's no guarantee that the first guy is going to get it right or the second guy is going to get it any better. And that the great advantage of the judicial system is it produces the kind of stability that you can't get when you have political intrigue.

 

      So I think the basic point that I made—which I think Phil reinforced and Jorge, I think, to some extent but not hugely disagreed with it—is, the more we make a patent system and a patent court system look like a regular efficient common law system or standard adjudicator system, the better off we're likely to be.

 

Hon. Karyn Temple:  And I'd like to just jump in because I have a question that I think that Jorge is probably going to -- about to answer this in response to Professor Epstein. But I shuddered a little bit, I'll be honest, when he used the words "efficient" and "infringement" together. And the concept that efficient infringement that could potentially be applied to copyright is something that I would be very, very concerned about and along the lines of what I think Professor Epstein alluded to. The concern would be, in terms of rule of law, that we would be putting a value judgment on property rights, on the type of copyright or the type of patent, before we decided as to whether the rule of law would apply to that patent and copyright. And I'm not a patent lawyer, so I can't talk about the things that were mentioned on the patent side. But on the copyright side, that would be disastrous to think that there would be some less valuable copyrights that would somehow be okay to infringe for the greater good, so to speak. So that would be a concept that I would be very, very concerned if it were applied to copyright.

 

      I would love to hear Jorge's thoughts on that.

 

Prof. Jorge Contreras:  Thanks. First, the term "efficient infringement" isn't my term. In fact, I'm arguing against that terminology. It's a riff off "efficient breach," which contract teachers and scholars use and have for years, and it's a pejorative term. I don't necessarily get behind the terminology, so to speak.

 

      With that being said, I do think that with patents -- I do know something about copyright. Patents -- it is harder to tell what's covered by a patent than a copyright. I mean, with a copyright, you see the thing itself. You see the text, the film. You have the encoded soundtrack; you know what that looks like. With a patent, it's lawyer's language that you have to interpret, so I think it's a little harder. And I think it's more reasonable to question someone who comes to you with a patent that -- especially in areas like software, it's often quite unclear what's going on.

 

      But I'll respond to Phil and Richard a little bit. I mean, I don't entirely disagree with what they've said, but just to clarify a little bit where I think there are some points of separation. On the question of incentives, it's just hard to know. And they're just -- they're difficult. They're not counterfactuals that we can look at with any great reliance, so we don't know what's going to happen. It's interesting, Phil, that you use the example of penicillin because penicillin itself wasn't patented and yet became, obviously, widely used. This was in the '40s, so, obviously, any patent would now be expired. But we can get benefits, and we can get social benefits out of inventions even if they're not patented.

 

      With that being said, I agree that at least some of the Supreme Court's quartet of 101 and eligibility cases have either gone too far, or they've been interpreted too far. And, particularly, it's Mayo v. Prometheus that I have the biggest problem with. And I think one of the problems—and, obviously, I'm not on the Supreme Court and didn't clerk for any of the justices at the time—but one of the problems that I think we see with this natural laws area is that it just got a bad reputation due to overclaiming in years past.

 

      So I think about the Myriad case, which I've dwelt on for far, far too long. Some of the claims—and this is a natural products case as opposed to a natural laws case—but in the natural products area, the claims were incredibly broad. You discover an association between three different mutations in a gene and breast cancer. That I think is a legitimate discovery that is probably worthy of some protection. But then to take that discovery and claim the entire gene—a gene that's over a 100,000 bases long—and to claim not only the entire gene and every possible use and application of it with relation to any other disease in the world but even something so small as any segment of that gene that's 15 bases long. There were claims that covered that and were allowed by the Patent Office.

 

      Those types of overly broad claims, when scientists look at them -- and I also teach in the Department of Human Genetics here at my university. When you tell scientists about those types of claims, they can't believe it. They say, "How is that possible?" It's a far cry from the actual diagnostic that originally was discovered and which I do think there's some value in protecting.

 

      So I think, to some degree, the patent bar is at fault. And I was a practicing lawyer for many years, and I understand how lawyers are incentivized to draft these claims. But I don't necessarily think it's always a good thing.

 

      To Richard's point about holdout and PAEs, it's totally right. There are good patents and there are bad patents. One thing that I think is remarkable about the United States, and is good, and many other countries don't have, is our enhanced damages standards. And so, if willful infringement is found, a judge can award up to triple damages in a patent case—which, again, I've done a lot of comparative work and international work, that's relatively unique. Although I have to say, in the Chinese patent law that was just -- the amendment to the Chinese patent law that was just released, they allow quintuple damages in certain cases. So they've one-upped us. But that is a disincentive for sort of the good-faith company that doesn't think they're infringing. The risk is enhanced damages. They are, and injunctive relief is still possible. Even under the eBay test, you can get injunctions. It's harder as a PAE, but still possible, not beyond the realm of possibility.

 

      Anyway, I'll wrap up here. I saw Phil's hand was up. I don't want to overstep my welcome.

 

Phil Johnson:  Okay. I'll start where you left off.

 

      What we don't have in this country that is almost universal outside the U.S. is automatic fee shifting so that the prevailing party gets paid if they win. That would be a great remedy for some of the kinds of conduct you're talking about if you have someone bringing frivolous cases and using the transaction costs of prospective litigation as a deterrent against not taking a license. Because then the accused infringer, if they were in the right, could rightly say, "Okay. I'll fight it out, and you'll pay me my attorneys' fees." And, to the contrary, for cases that are meritorious, patent owners, who may have trouble funding their cases, will have the promise of getting their fees.

 

      I have repeatedly testified in Congress that that would be an excellent way to approach the litigation abuse that unfortunately creeps into the system. And by the way, it is not nearly as extensive in the patent law area as it is in some other areas of law, tort law. But, nonetheless, I've come to understand that, politically, that's not acceptable to Congress because of these other areas, where they don't want it starting in patent law and then creeping into tort law. So that is a concern.

 

      In most industries, the matter is handled because competitors study the patents that are issuing in the areas in which they're operating. They study the patents; they understand the technology; they study the prior art. And they get opinions so that they can shield themselves from willfulness.

 

      But I think that another fundamental issue that you raise -- maybe I've gone on too long, but I do think that, on the incentive issue, I sat for too many years on boards where we reviewed investing in whether to develop one new drug or another. And there are always uncertainties about whether you try to develop a new drug. It's a risky and expensive endeavor. But at some point during those discussions it would come around to me, as the chief IP counsel, and I would be asked, "Okay, if we do this, how long are we going to have exclusivity to get our investment back?" And, as you probably know, under Hatch-Waxman, it's no more than five years, but if you have a patent, it can be up to 14 years. But it's more like 9 to 12 years by the time it takes to go through everything. And, on more than a few instances, I was very sad to say, "I'm sorry. Given the nature of this invention, and given the approaches, I cannot promise you that you have any likelihood of really getting a long period of exclusivity."

 

      And, as soon as I said that, the project was canceled. And these were not just incidental, little formulation things. These were a new way to treat SARS, for example; a new way to treat, or try to treat, cancers, and so on. And you will never know -- no one on this call will ever know which of their loved ones or which of their family members may have been benefitted by something that hit the cutting room floor because of the uncertainty in patent protection.

 

      So, when we're talking about this, which is the greater harm: the things that are never pursued and never invented that never become part of what we all enjoy, or dealing with some of the people who are trying to abuse the system using other methods of doing that? And I'd suggest to you we want and need to incentivize invention because we're far from having everything we need to live successfully in the future.

 

Prof. Richard Epstein:  I guess it's back to me again. And I would like to make a couple of comments. First, to Karyn. I think there is a terminological clarification. The theory of efficient breach, as it's developed very poorly in my viewing contracts, says you can consciously know that you're going to breach—decide to breach—and the other party gets his expectation damages, and you keep all the surplus. So it's a win-win situation. It never works out that way. And, in your industry, what this means is, usually, you're not worried about derivative works; you're worried about outright pirating of existing works in their entirety. So there's no ambiguity. You're not dealing with any of the complexities that we're talking about when Jorge, for example, puts it. So I think your industry, you're 100 percent right.

 

      The other industry, though, I think, is much more difficult to figure out which is:  What are you going to start to do when there's some degree of uncertainty in an industry? And on this particular point, the definitions that the Supreme Court gives are just absolute killers, and the procedural protections that they give are completely inadequate to these situations. So I'm just going to echo what I think Phil said perfectly correctly, is the most fatal losses in the United States are the inventions that are never made or are delayed because you don't get anything from them. If you get something in early and somebody else gets a monopoly return, the monopoly return does not sop up all the surpluses. There's huge consumer gains, particularly in medical properties, where there's a limit of the amount of money that you could pay for saving your own life. So the monopoly issues are not great. And we have just made the wrong tradeoff on all of those things because of a kind of patent skepticism. And I think, in many of these cases, if you had a more sensible system, you would be arguing about matters of claim construction. You would not be arguing about basic matters of patent eligibility.

 

      And I think that that's the way in which we have to move the world. I regard this as the single most important feature of the overall system, which is to essentially—particularly with medical and pharmaceutical patents—to get rid of these crazy definitions of what counts as a law of nature or as a natural substance, and to go back. If you recall, on this last point, this exact battle came up before the 1952 Patents Act among Kalo and their stroke-of-genius stuff. And the Federico and Rich position was trying to go back from ridiculous standards. And I think they moved it pretty strongly. But it's only been in the last 15 or 20 years that we've reverted to the way the law was between 1940, say, and 1952, which was as bad then as it is now.

 

Phil Johnson:  If I may:  Patent eligibility rules aren't the way you want to sort out what should be patented and what shouldn't be patented. There are other rules that are applied in the Patent Office: novelty, non-obviousness, and support under Section 1.12. The inventions must be described, and they must be enabled sufficiently so anyone of ordinary skill in the art can make and use the same.

 

      And many of the criticisms which have been leveled at software patents, and some as we've heard today—when I've taken members of the industry aside and said, "Let's look at these cases"—isn't your argument that it wasn't novel or it wasn't non-obvious? And the arguments we've heard today—isn't your argument that it wasn't sufficiently described and enabled? Yes, you've thrown out a lot there that you'd like to patent, but have you shown that it's new, useful, and non-obvious, and have you described it sufficiently to merit the award of a patent monopoly on it? And, frankly, in heart-to-heart discussions, when I bring up the some of the cases we're talking about, concessions have been made to me saying, "Yes. If we had it, if the system were operating correctly, that wouldn't have been patented anyway, even if we considered the subject matter to be patentable."

 

Prof. Richard Epstein:  Even with the BRCA gene, to give but one illustration, the overclaiming was claiming that you have exclusive rights to the gene in situ in everybody else's body. That's just crazy. But the question as to whether you give substance protection when it's isolated and purified, that's been a battle going on since the early patents over adrenaline. And it's very hard to decide which way you want it to come out. But you'd rather have the battle on that frontier rather than on eligibility. Virtually all of these cases should be patent eligible. And then the question is which of these three increments go. And the BRCA gene was classical for claiming, I think Justice Jorge said, for those particular reasons. But I think, if somebody wants to take it and use it as a therapeutic device, I find very hard to say that there ought to be any kind of categorical bar against that particular development.

 

Phil Johnson:  And I would add that what we're talking about in the medical area is not getting injunctions. There is still a public benefit exception as an equitable bar against injunctions when that is in the public interest. And, in fact, most of the major pharmaceutical companies, when you're talking about serious medical treatments for which there is not an equivalent substitute, do not even try to get injunctions. And in the diagnostic situation, with a pandemic, you would never try to get an injunction. It's adequate in those situations to provide reasonable royalty or lost profits to the patent owner and not deprive the public of the fruits of the inventions.

 

Prof. Richard Epstein:  But that's the way you announce it, going up, right? You give non-exclusive licenses.

 

Phil Johnson:  Right.

 

Prof. Richard Epstein:  So you never claimed it, so you don't have to worry about it. And that was always the case. For example, when Lilly came out with insulin for the first time, well, they used to give it out for free to people who couldn't afford it.

 

Phil Johnson:  It's not widely recognized, but the pharmaceutical industry pays hundreds of millions of dollars a year in royalties to universities and other sources of some of the inventions that the pharmaceutical companies have taken in, and spent, in turn, billions of dollars developing for marketing. So licensing of rights is fundamental to the ability to develop technologies in all industries.

 

Prof. Jorge Contreras:  Yeah. I actually don't disagree with much of this. Phil raised fee-shifting a while ago. I 100 percent agree with that. That, I think, is a very sensible rule that actually has been litigated in the U.S. recently but without great effect.

 

      On the bigger question, on this 101 versus patent eligibility versus the other stuff—anticipation, non-obviousness, enablement—I think this is right to a large degree. You know, the adrenalin case is definitely one of the bugaboos here, one of, I think, a low point in Learned Hand's early judicial career, right? And the problem with the way many of these substance patents are drafted in claiming the thing, the product of nature, as opposed to its use to diagnose or cure a particular disease, is that you preempt all of the uses that you never even thought of and didn't know anything about by claiming the thing itself. Which is odd, and it seems just intuitively wrong. When you discover the mushroom out in the forest that no none had ever found before, if you find that the mushroom is a great -- you can apply it to your burns and it will make them go away. You claim it as a burn treatment. That's great; that should be allowed. But to claim the mushroom itself for every other purpose—which is how many of these claims are written—it kind of shocks people who look at it afresh and who haven't been steeped in the patent world, and that causes a bad overreaction in some cases.

 

Phil Johnson:  But you don't need to -- excuse me.

 

Prof. Jorge Contreras:  Go ahead.

 

Phil Johnson:  You don't need to get rid of that problem by making all uses of mushrooms unpatentable. No one is going to go out and patent -- successfully patent a gene as it exists in vivo, in the human body, or a mushroom as it exists in the forest. Those are traditionally not patentable and not because of eligibility rules, but because there's prior art. Mushrooms are known; genes are unknown.

 

Prof. Richard Epstein:  I think it's eligibility, to some extent. They're natural substances. It's when you convert them or isolate them. And the problem with the isolation and purification standards is actually very difficult. If you only give them a procedure, it's a very weak protection because it's sometimes very easy, if you see one procedure, to invent another. On the other hand, if you give a substance protection, it could turn out to be too strong because somebody with a wholly novel alternative will be blocked. So it's either a question of too little or too much protection. And I don't see any way to resolve that question conclusively for all projects at all times and all periods.

 

Phil Johnson:  The Constitution provides protection for discoveries. And the statutes provide protection for discoveries and inventions. So if you were the first to go out and discover something, even if it exists in nature, under the Constitution and the laws, assuming you could meet the other criteria, it would be presumptively patentable.

 

Prof. Richard Epstein:  Do you think you could patent radium because you're the first person to isolate it or discover it?

 

Phil Johnson:  If no one had ever heard of it before, I don't know. It's --

 

Prof. Richard Epstein:  Boy, I'd be very -- I mean, I know the word "discovery." But I tend to think of it not as finding something that you've never seen before.

 

Phil Johnson:  Well, I --

 

Prof. Richard Epstein:  I think there is basically --

 

Phil Johnson:  Well, it's not something that you've never seen before; that's not the test.

 

Prof. Richard Epstein:  I know, it's got to be separate.

 

Phil Johnson:  That's not the test. If you are the very first person -- let's say there is a molecule somewhere no one has discovered. And you go find it, and you then isolate it, purify it, and use it to treat -- successfully treat cancer, that has traditionally been patentable until the last ten years.

 

Prof. Richard Epstein:  I agree with that. But you've got the second two stages on the first.

 

Phil Johnson:  Well it's -- P.J. Federico, I think, said "anything under the sun that's made by man," right?

 

Prof. Richard Epstein:  Yeah. No, I'm not saying it's wrong. But I'm saying it's all of the things. It's like adrenalin. It was precisely because it was isolated, purified, and used.

 

Phil Johnson:  Let me defend the patent attorneys for a minute. Patent attorneys have the job of representing their client, writing the patent, doing the best job they can, and writing claims. It's the Patent Office whose job it is to look at the claims and examine the claims and decide which claims are patentable. Don't blame the patent attorneys for asking; blame the Patent Office for granting it.

 

      Well, once the Patent Office grants it, then there is some presumption that they've done the job right. And if you don't like how they're doing, then what we should be talking about is increasing the funding for the Patent Office. Because the worst thing in the world is to have an illusory right and have people lose all confidence in the patent system. What you don't want is having the patent examiners using one standard and then, after people have invested hundreds of millions of dollars or more in order to develop and market the invention, have the PTAB come in and say, "Oh, well, we don't use that standard. We have our own standard." And now it's invalid. That pulls the rug out from people who relied on the patent system, and they are learning already that, if they have money to invest, maybe they ought to put it in developing content for Netflix rather than doing the next cure for what might ail you.

 

Prof. Jorge Contreras:  I don't disagree with that at all. Like I said, the motives for lawyers are perfectly clear. They're motivated by what the system gives them. And I agree, the Patent Office is really where the rubber hits the road here. A number of directors have included patent quality—whatever that means—as one of their goals in improving the examination system. But you're totally right. In a system where you're compensated based on throughput and output rather than any kind of indicia of quality, who would even know how to measure it? It's tough.

 

      But I want to come back to discovery because what you said about discovery is absolutely right. It's in the Constitution; it's in the statute. I think the question is "What did you discover?" You go into the rain forest; you find the mushroom that no human eyes have ever seen before. And then you realize that the mushroom juice will, like, cure your burns. You discovered a cure for burns using the mushroom. But did you did you discover the mushroom? Right? Is the language of the constitutional clause intended to give you the right to claim all uses of the thing just because you were the first—not to create it -- this isn't made by man. This is something that you just found in nature. I think there's not nearly enough analysis of what discovery means in this context.

 

Phil Johnson:  And then the answer, there, is that the Patent Office, as you know, has thousands of examiners. And these examiners, many of them spend their entire careers specializing in particular art units, particular sub-categories of technology. And they are the ones that we rely on primarily to look at a disclosure and decide whether it's new, useful, and non-obvious. And whether it's sufficiently described and enabled. So we're relying on them; they're the experts.

 

      The PTAB judges, while they often have some technical training, are not experts in the technology. They don't have the expertise. So they do the best that they can. I'm not saying they're bright people and they're motivated, and so on. But the question is who are going to rely upon—the experts who have no axe to grind who are examining patent applications with their expertise or somebody else?

 

      Now, traditionally, the somebody else has been the courts. And the advantage of going to the courts is that you can have a full trial. You can hear from the inventor. You can hear from experts with live testimony, with live cross examination before the trier of fact, and you can subpoena witnesses if you don't have the witnesses you need. And you can have a full exposition. It's not cheap. It takes some time. But I think those people who are familiar with litigating regularly will tell you, "Yeah, I've won some I shouldn't have. I've lost some." But, generally, they get it pretty much right.

 

      The problem with the PTAB is they do it on a cold record. They don't hear -- you never have a witness testify live in front of the PTAB panel. They don't even have experts being presented live. Anyone who's been in a trial will tell you you can't reliably decide on a cold record. Once you see the demeanor of the witness and so on, that means everything. And yet we don't have that. And, even in cases where it would not be clear to most people, the PTAB thinks nothing of striking down or, in some cases, upholding them. And that is undermining confidence of the users in the system, and that is not good for the rule of law.

 

Prof. Richard Epstein:  I think we should have more questions.

 

Hon. Ryan T. Holte:  Thank you Phil. And thank you, everyone, for a great discussion amongst the panelists.

 

      I'd like to open things up to the audience for a couple questions. Great discussion, also, of mushrooms. And I note that mushrooms, hallucinogenic mushrooms, I think, are now legal in Washington D.C. after the last election, which is a good segue to remind everyone that our panel after this, at 3:45, is “Modern Quandaries of Law Enforcement.” So keep that on your schedule.

 

      But this panel runs until 3:30, and I'd like to have 15 minutes to open things up to the audience. Our first question -- we'll open things up to Professor Dmitry Karshtedt. If you have a question, please raise your hand with the Zoom button or, if you're on a telephone, dial star-nine.

 

      And now our first question -- and remember, if you're asking a question, to unmute your phone. We have a question from Professor Dmitry Karshtedt [inaudible 01:28:21].

 

      Dmitry Karshtedt:  So I guess you can see the video -- they can hear me. Thanks so much for this great panel. I really enjoyed it.

 

      My question is maybe to Jorge and Phil but really to all the panelists, it's about the PTAB. So one of the complaints about the PTAB has been that it allows for Executive Branch actors to then go out and [inaudible 01:28:44] bad litigation. And, with the change of administration, I've seen a little too much from defendant-friendly, or perceived defendant-friendly system, to the much more plaintiff-friendly PTAB to the point that the big check on the long-shot lawsuit challenging the discretionary IPR denials.

 

      In addition, there was a recent PTAB decision called RPX v. Applications in Internet Time, in which the Director put the Chief APJ, Deputy Chief APJ, and Vice Chief APJ on the panel after the hearing. So a different panel was -- basically who was on the panel was replaced, which promptly reached a pro-plaintiff result on a very important issue of real party-in-interest. So my main question is:  Are these kinds of developments a feature or a bug of the current PTAB system?

 

Prof. Richard Epstein:  Bad, in general. I mean, I couldn't quite hear everything that you wanted to say, but I'll make this one simple observation. [INAUDIBLE 01:29:38] is an enormous disadvantage associated with PTAB because you can begin in one administration, you get changes, and then you get changes in the bench. The federal judiciary is much more continuous. And if it turns out you think expertise is a real issue, then you think of Article I courts. Don't think of the PTAB would be my general resolve.

 

Prof. Jorge Contreras:  I would just say -- and, Dmitry, it was a little hard to understand the audio on that. But I would say I think that the PTAB is one of these live-and-learn situations. Certainly, things have changed, right? The statistics that you see about reversals and initiation have evolved since 2013. And the cases come out both ways.

 

      Phil mentioned the cost differential between a PTAB proceeding and full-scale litigation in the federal court. It is, at least in order of magnitude, different, right? It's a huge difference. And that's important. So you do lose some of the procedural mechanisms that you have in district courts, such as live witnesses and testimony and experts and so forth. But you gain efficiency, and you gain something that's sort of in-between. And I don't think that, inherently or constitutionally, that's a bad thing. But I also agree that there are problems and flaws, and it should incrementally be fixed, or that these issues, these flaws, should gradually be fixed. But I disagree with the people who say we should throw out the whole PTAB as unconstitutional and just go back to examination and district court.

 

Prof. Richard Epstein:  On the other side of that debate, I think scrap it and go back to the traditional system.

 

Phil Johnson:  Well, traditionally, what the predecessor board did was it decided patent interferences and some other thing. And, under Section 146, if a party was aggrieved with the board's decision, the party could appeal directly to the district court and request, even, a trial de novo if it was appropriate. Frequently, that didn't happen, but especially in cases where witnesses were unavailable to the aggrieved party in the Patent Office proceeding, then they could be subpoenaed and brought in in court.

 

      And this system worked, I believe, in one form or another from about 1830 on, where patentees always had the opportunity to take their grievances to the courts. This was written out in the America Invents Act for the PTAB. But many people believe that, if the decisions of the PTAB could be appealed to a district court for district court review, it would not only fix what we call the "Arthrex problem," which is the apparent unconstitutionality of the PTAB judges, but also provide judicial input that would be used, then, by the PTAB to improve its own processes, and we would evolve to a much better system much faster.

 

Prof. Richard Epstein:  Next question.

 

Hon. Ryan T. Holte:  Excellent. Well, thank you for a great question. So we'll move to next question from the audience, Steven M. And, just a reminder, as you ask a question, Steven M., please take yourself off mute. Go ahead with your question.

 

Steve Tapp (sp):  Thanks, Judge Holte. This is Steve Tapp. Sorry. I guess I didn't have my name entered properly.

 

      I want to follow up on Register Temple's and Professor Epstein's comments about the so-called efficient infringement in the copyright context because it's not hypothetical. Right now, pending before the Supreme Court is a copyright infringement case, Google v. Oracle, in which it's undisputed that Google was offered but refused a license, and went ahead and copied verbatim over 11,000 lines of Oracle's code in order to build its famous Android platform. Google has explicitly argued to the Court that Oracle's copyright rights should not be enforced in order to allow Google to engage in what it calls efficient infringement. So I wonder, based on the comments so far, if we can all agree that the notion of efficient infringement does not belong in copyright, and that this argument does not offer a justifiable basis to set aside the rule of law on policy grounds. Thank you.

 

Prof. Richard Epstein:  No brainer. I mean, Google's always been a predator in that regard. And it seems to me what Karyn's going to say—and I'll let her say it in a second—is that, if you know it's a deliberate infringement—it doesn't matter whether you're talking about Gone With the Wind or a bunch of code, so long as the thing is protected—either you invent around it or you purchase. And what Google is saying is "We can get it for less." And it's not even clear what measure of damages they would want. I think their view about efficient breach—but correct me if I'm wrong, Steve—is that you don't get any damages because we're so socially virtuous that you shouldn't have to pay anything. Or are they willing to pay some kind of a license? Can you clarify that for us?

 

Hon. Ryan T. Holte:  I think Steve is off the line, now. But, with that warmup, we'll hand things over to Karyn.

 

Hon. Karyn Temple:  Yeah. And I think the argument is that they shouldn't have to pay anything. That --

 

Prof. Richard Epstein:  God help us, yes.

 

Hon. Karyn Temple:  Yeah. If it's a fair use or, you know, then there is no requirement to pay a license. And that's why, yes, I did shudder in terms of the attempt to try to bring some of these patent concepts into the copyright field, which is, I think, very, very different, as you all pointed out. But, unfortunately, we do see that bleeding, I would say.

 

      You mentioned -- we also had mentioned the patent trolling and the notion, somehow, that more enforcement or the use of our laws should indicate something is wrong with our laws and we should weaken them. And that has bled into the copyright realm as well, where people are now starting to talk about copyright trolling—which I think is very, very overblown—but using that concept of patent trolling to say well, yes, that's occurring in the copyright realm as well, and therefore we should weaken the laws because people are using the laws appropriately to protect themselves.

 

      So I think that's a camel-in-the-tent, so to speak, concept that is very dangerous for us because, once you start suggesting that use of the laws and enforcement of the laws suggests something negative and that you should weaken them, then I think, again—going to the title of this panel—the overall rule of law gets weakened. So that's certainly a concern in the copyright space as well.

 

Prof. Richard Epstein:  One comment:  The fair use doctrine is perfectly legitimate to take a piece of work on which you wish to comment, that you should be able to quote what you wish to criticize. But nobody's doing an intellectual critique of the code; they're just simply using it. So it doesn't make for more efficient public discourse about literary works in this case; it's simply an outright form of theft. And they're saying its okay to steal because it wasn't 12,000 lines of code, it was only 11,000.

 

Hon. Karyn Temple:  And I would say, adding to that, there's just the way that courts have interpreted fair use even more broadly. And we've seen recent debates about what is transformative use, and arguments that just taking something from one media to another is somehow transformative, and so that should be a fair use. And so we're again -- yes, I completely agree with Richard that fair use is a legitimate doctrine, obviously, and it's a core aspect of our copyright system. But we see, and have seen, I think, in recent years, courts taking that too far because they've been concerned somehow that there will be this suppression of innovation and technology if fair use is not dominant, so to speak.

 

      So I think that that's dangerous as well because it takes fair use beyond the boundaries that it really was supposed to be, and it essentially creates a complete exception without actually weighing in the factors that the fair use doctrine is supposed to weigh and just kind of relying, for example, on the term transformative. And then people arguing that almost anything is transformative, which is, again, I think somewhat dangerous for the rule of law and how we want the copyright system to evolve.

 

Prof. Richard Epstein:  Amen.

 

Hon. Ryan T. Holte:  So we still have five minutes left. I'd like to have at least one more question, if not a couple more, from the audience. I see a hand up from Professor Greg Dolan, Professor of Law at the University of Baltimore, as well as a justice on the Supreme Court of Palau. I'm not sure what part of the globe Professor Justice Dolan is calling in from, but a question for the panel?

 

Prof. Greg Dolan:  Thank you, Judge Holte. I'm actually -- sadly, I'm calling from New Jersey because Palau has closed its borders due to COVID, and I'm sort of stuck here and doing my work remotely. I would much rather be on a beach. But the panel is sufficiently exciting for me not to complain too much.

 

      The question -- actually I wanted to follow up on Professor Karshtedt's question. Perhaps it's somewhat of a splitting of the difference. I take Professor Contreras' point and I think I completely agree with it in some sense, that there's nothing inherently wrong when somebody comes to you and says to you that "I have legal right X." And you're saying, "Well, no you don't. And I'm going to challenge it, and so prove it that you have legal right X." Whether it comes to patent enforcement or whether it comes to a post-traffic accident where you say, "Look, it was your fault," and they say, "Well, no. Prove it. I'm not going to pay you until you actually win in court." Or a regular property transfers where someone says, "No, your line is not there."

 

      But I think there's not -- that, in and of itself, I don't think undermines the rule of law. So my question is more along the lines of:  Do you think that there is a danger to the rule of law and the consistency of application that we have with so much being assigned to PTAB, which is ultimately under the administration's control, where we have actually seen and dealt with this change from the Obama to the Trump administration. PTAB and PTO have started behaving very differently, and who knows what is going to happen if and when Vice President Biden's ‑- when he’s confirmed, that he appoints his people. And then, four years from now, somebody else is going to come into the Oval Office.

 

      And it seems to me that, generally, when we talk about dangers to the rule of law in the world, we generally talk about that the law or the enforcement very much changes based on who's in the executive mansion. And if that's true here, it's not so much that people are forcing it to go to the courts. It's that they're forcing it to go to the courts based on what they think they can get from a given administration. Do you think that's more of a problem?

 

Prof. Richard Epstein:  I'm going to take a crack at it. This is the Chevron problem writ large. What happens is you give enormous discretion to administrative agencies on questions of law, and then flip flops are going to be the order of the day, and the courts themselves will not be there. So what you need on that case is to basically make all questions of law questions of de novo review.

 

      Now also, by the way, I just want to take the moment:  Thank you, Greg, for the piece that you wrote on medical patents because I think it showed pretty conclusively that the quality of these patents, taken as an average rather than looking at some exotic examples, is much stronger than was commonly claimed. And I think that that should be the baseline for this discussion rather than the assumption that these are uniformly or often very weak patents. So I just wanted to give you a thank you for the article you wrote. I guess it's what, about five or six years ago, now?

 

Prof. Greg Dolan:  It was a [inaudible 01:41:54]. Thank you.

 

Prof. Richard Epstein:  Sure.

 

Prof. Jorge Contreras:  I thank Greg for the question. I think it's in inevitable reality of the world that the administration in the seat of power in any government is going to have an influence over people both appointed to administrative tribunals but also to the judiciary, right? I guess we've heard extensively over the last year the President, the administration, can have an influence over who's appointed to the judiciary, and that's actually a feature in the eyes of many as opposed to a bug. So I don't know. I think that's something that we can live with, right? And the answer is democracy, and if you don't like what this administration is doing, vote in a new administration, and then the people who are more aligned with you will be appointed. I mean, I think that's quite explicit in the discourse today.

 

Prof. Richard Epstein:  But the objection is not to this or that administration, it's to unnecessary transfers. And you get greater continuity through judicial interpretation of law under de novo standard. It's not an argument about, like, Trump or Biden or anybody, it's an argument for continuity. And everywhere else in the law, questions of law are decided by judges. Why at this point would you not want to do that? I think that's the final word that I'm going to say, and I will now be quiet.

 

Hon. Ryan T. Holte:  Thank you, Professor Epstein. And we'll have final comments and notes on that from Phil and then Karyn, and then we'll have to wrap up. Go ahead, Phil.

 

Phil Johnson:  I'd like to comment on the need for certainty over the long term. When you're deciding whether to invest in developing a new product—which may take you 3 to 12 years to do—and that question comes around the table, as to whether to do that project, to the patent attorney, you know what the patent attorney could say? "Well, I don't know. It's going to depend on who the president is 10 years from now when you introduce this product, or 15 years from now when it gets successful." That's not the way a functioning system works.

 

      What you want is to say, "No. This is going to be a piece of property we can -- depending on what the Patent Office grants us, we can rely on this. And you can invest heavily in trying to develop it further and doing further research because you can count on it." And having it fluctuate every four years or eight years is just not the way the system should work. We need the courts to provide more stability. The judges are appointed for life. They interpret the law and apply it. And they aren't involved in enough of these so that any given judge is going to upset the system. You'll get a predictable -- more predictable average. Thank you.

 

Hon. Karyn Temple:  And I would just add, on the copyright nuance to this, really not specifically with respect to consistency in terms of administration, because that doesn't apply to the Copyright Office, but just in terms of consistency and ability for the Copyright Office to be able to meet the technological advancements that we continually see. And one of the things that the Copyright Office, I think, in the past has discussed, and it's been an issue of debate, is whether that Office should have more regulatory authority to be able to address new changes in technology more so than they do now. They have a lot less regulatory authority than the Patent and Trademark Office does. And that has been a question, I think, for some time.

 

      And one of the things that we would want to deal with, whether there should be more regulatory authority in the Copyright Office to be able to make changes that will not be able to be made quickly through the legislative process. Although it sounds like, with some of the concerns that I've heard from this panel, there might be some concerns in terms of giving an agency more authority over these issues. But certainly that's an issue I think does need to be addressed, and whether there's a way to keep up the copyright laws with the technological changes without having to do it through the legislature, but having it done more through the Executive Branch -- through the Legislative Branch through the Copyright Office itself.

 

Hon. Ryan T. Holte:  Great. Well, thank you so much for a wonderful panel.

 

      A big thank you to our panelists as well as the audience, and those who ask questions, especially. A big thank you to any veterans who might have been listening in. Thank you very much, as it is Veterans Day.

 

      And, with that, a reminder that the next convention event is at 3:45—so a little bit over 10 minutes from now—a discussion of “Modern Quandaries of Law Enforcement” to hopefully pick up on the mushroom discussion. And with that, we will end this panel. Thank you to everyone.

 

3:45 p.m. - 5:00 p.m.
Civil Rights: Modern Quandaries of Law Enforcement

2020 National Lawyers Convention

Topics: Civil Rights • Criminal Law & Procedure
Zoom Webinar

Event Video

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Description

On November 11, 2020, The Federalist Society's Professional Civil rights Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The panel covered "Modern Quandaries of Law Enforcement."

The debates surrounding the doctrine of qualified immunity and cultural impact of law enforcement have seen renewed vigor in past months, as citizens across the country question how reform, if appropriate, is best implemented. While qualified immunity finds its roots in the common law practice of extending protections to state actors performing their legal duty, its American origins are less definitive, which prompted Justice Thomas to comment “qualified immunity doctrine appears to stray from the statutory text” in late June. 

Some scholars have suggested modifying policing strategies (i.e. “defund”) or doing away with the doctrine of qualified immunity will protect the rights of individuals against corrupt or prejudiced law enforcement officials, but there is significant pushback from everyday citizens, judges, and Presidents alike. Our panel of policy and legal experts will debate the pros and cons of both topics in this 75-minute virtual presentation.

Featuring:

  • Mr. Larry H. James, Managing Partner, Crabbe Brown & James LLP
  • Ms. Heather Mac Donald, Contributing Editor, City Journal, Manhattan Institute
  • Mr. Robert McNamara, Senior Attorney, Institute for Justice
  • Mr. Charles “Cully” Stimson, Senior Legal Fellow and Manager, National Security Law Program, The Heritage Foundation
  • Moderator: Hon. Patrick J. Bumatay, United States Court of Appeals, Ninth Circuit

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

Event Transcript

Hon. Patrick J. Bumatay:  Good afternoon. I'm Judge Patrick Bumatay with the Ninth Circuit here in San Diego, California. Before I introduce our panelists, I want to say it's an honor to be moderating this panel. I've been roaming the halls of the Mayflower Hotel for more than 15 years attending The Federalist Society National Convention. It's a real treat to be on the opposite side of the dais for the first time.

 

      And I'm lucky to be moderating this panel in particular since it's a topic I'm very familiar with. It's "Modern Quandaries of Law Enforcement." I've been on all sides of the criminal justice system. I've worked as a defense counsel, as a federal prosecutor, as a policymaker at the Department of Justice, and now as a judge. So I'm really interested to hear what our panelists have to say.

 

      Our first panelist will be Heather Mac Donald. She's currently a Fellow at the Manhattan Institute and a frequent commentator on the issues of criminal justice. She's the author of the book called The War on Cops, so I guess it's easy to tell where she stands on today's topics. Heather, thanks for leading off today.

 

Heather Mac Donald:  Thank you so much, Judge Bumatay. It's a real pleasure to be here at The Federalist Society. I'm going to play right off the title of our --

 

Hon. Patrick J. Bumatay:  -- Oh, sorry. Heather, before you begin, I'm going to introduce the rest of the panelists and kick it back to you.

 

Heather Mac Donald:  Fine, okay.

 

Hon. Patrick J. Bumatay:  Thank you. So next, we'll have Larry James, Managing Partner at Crabbe, Brown & James. A longtime respected litigator, he has also served as the General Counsel for the National Fraternal Order of Police since 2001. Larry, thank you for being here.

 

Larry H. James:  Pleasure.

 

Hon. Patrick J. Bumatay:  Third up, we'll have Robert McNamara, a Senior Attorney with the Institute of Justice who litigates cutting edge constitutional issues on free speech, property rights, and economic liberty. He's also the founding member of the NYU Journal of Law & Liberty. Robert, thanks for joining us.

 

Robert McNamara:  Thank you, Your Honor.

 

Hon. Patrick J. Bumatay:  And finally, we'll hear from Charles "Cully" Stimson, a Senior Legal Fellow at The Heritage Foundation. At Heritage, he manages a National Security Law Program and is a recognized expert on national security, homeland security, and crime control. Cully, thanks for joining the panel.

 

      And now, Heather, I turn it back to you. Go ahead.

 

Heather Mac Donald:  I apologize for jumping in. That's the difficulty with Zoom. You don't have body cues and other signals for when the cue is actually coming, so excuse me. I'll start over.

     

      I'm going to address what I see as the biggest quandary facing law enforcement today, which is that officers and police commanders, on a daily basis, hear from the good, law abiding residents of high crime communities a fervent desire for more law enforcement, for more broken windows policing, for more cops on the beat. Let me just give you a sampling of some of the requests that I've heard attending police community meetings in high crime inner city communities for the last 20 years, whether it's the South Bronx, South Central Los Angeles, or the Southside of Chicago.

 

      I hear, "You arrest the dealers. They're back on the streets the next day. Why can't you keep them in jail?" I've heard, "There's people -- I smell pot in my apartment corridor. Why can't you do something about it? There's youth hanging out by the hundreds on street corners fighting. Whatever happened to truancy laws? Whatever happened to loitering laws?" I've heard people complain about youth hanging out, being truant in schools. It goes on and on. "There's a bar outside my window. They're sitting out there smoking weed at 2 a.m."

 

      The quandary facing police officers and commanders is this. They cannot respond to those heartfelt requests for public order without generating precisely the racially disproportionate statistics that can be used against them in a racial profiling lawsuit by either the ACLU, or I fear, by the coming Biden Justice Department, which is on record that it regards disparities in law enforcement as prima facia proof of discrimination.

 

      The cops today are driven by data on where people are being victimized the most and by community requests for assistance. And given the vast disparities in criminal victimization and — this is a very uncomfortable thing to talk about — even greater disparities in rates of criminal commission, the police cannot enforce the law, they cannot respond to requests for assistance without producing disparate impact.

 

      And the country has turned its eyes away from those disparities, not just in criminal offending, but in criminal victimization. Since the George Floyd riots of early June, dozens of black children have been killed in drive-by shootings without any protest from Black Lives Matter activists, and without any notice by the mainstream media that views itself as so righteously anti-racist.

     

      So until the country becomes more honest about where crime is happening, we're going to continue blaming the messenger. Are there bad cops? Yes, there are. But that is not the predominant problem in our law enforcement system today. The cops are the messenger. We're shooting the messenger. Unless we have more transparency about where crime is happening, we're going to continue to be going after the wrong culprit. Of course, cops have to be held accountable.

      I would say the main problem is not use of force. Study after study has shown that when it comes to lethal force, if there's a bias in police shootings, it's against whites, not blacks, when you take violent crime rates into account. And the minimal look of nonlethal use of force that we've seen from, say Roland Fryer, has not adequately accounted for suspect resistance. 

 

      But the real problem, I would say, with policing is attitude. Courtesy, respect, that needs constant work. Cops do yearn for more tactical, hands-on training that would minimize the chances that they find themselves in a situation where they don't have back up. They feel they have no alternative but to use lethal force. We can always do more training. Implicit bias training is a complete waste of time and money. I've attended it. It's an insult to officers' experience and knowledge. More tactical training is necessary. But I would say the big critical issue facing the country today is more honesty about the great disparities in criminal offending.

 

      And I'll stop here and just throw out, just as a chaser, a few statistics. Nationally, blacks commit homicide at eight times the rate of whites and Hispanics combined. They are victims of homicide at the ages of 10 to 43 at 13 times the rate of whites. Those black homicide victims are not being killed by the cops. They're not being killed by whites. They're being killed by other blacks in an equally disproportionate rate of homicide commission.

 

      So I’ll just end there and with great anticipation, hand the podium off to Mr. James. Thank you very much for your attention.

 

Larry H. James:  Thank you very much. Good afternoon, everyone. Let me give you a little bit of background. I don't know where that echo is coming from. I was Safety Director in Columbus, Ohio, so I had the opportunity to oversee a force of around 1,800 police officers. I have had the opportunity to prosecute police officers, investigate internal affairs on police officers. I am currently General Counsel to the Columbus Urban League. My past life, I was General Counsel for the NAACP.

 

      I'm going to give an overview of what I think current policing issues that I think the public doesn't get a good handle on, and these are the things that -- the whole debate between police officers union, authority, qualified immunity, and other related issues.

 

      Police officers in unions do not hire. They do not train. They do not discipline officers. They do not promote within the ranks of officers. They do not set the budget. They do not set priorities for the department. They do not select the equipment. They do not set the criteria for hiring officers. If a department wants to require that all officers have an associate degree, they simply have to institute that. That's not a term that's negotiated with the union. The management has the absolute right to do that.

 

      The issue we've seen with the riots is what type of equipment do police officers use, such as the rubber bullets. That's been an issue that's gone back and forth. Law enforcement officers who show up for riot patrol or other patrol do not determine what equipment they have to use. So if management wants to say that it's inappropriate to use rubber bullets, they simply do not equip them with that. If they want to take away pepper spray — I think that would be incredibly stupid — but they could do that. And we're having all these debates. So from the public standpoint, how do we judge a department or officer or officer's performance, as I just went through what officers don't have the authority to do.

 

      Tasers. When we look at the situation that just happened in Philadelphia, when the two officers showed up, I think Philadelphia has around 4,600 officers; 2,600 officers are equipped with tasers. So the ability to use certain equipment in that situation, it was an honest discussion when the family and the lawyer for the families came out and said, "Look, these officers did what they were trained to do in the way they needed to do it. That shooting with the individual who had the knife could not be avoided."

 

      When we look at the situation that occurred with George Floyd, a lot of people ask the question, "How could that officer be so calm as he had his knee on George Floyd's neck?" The reason is that technique had been on the book in that municipality for over 12 years. The officer that did that technique was one of the supervisors and the trainers of that technique. So you ask yourself, why was that being done? Because that was on the books. That's the way the officer was training, and that's what was acceptable.

     

      Again, when we look at the overall art of policing, I can go back to my Safety Director days, and I remember early on the force, we had a situation where there was an abuse by one particular officer in the use of mace. And I asked the question of the command staff, "What's going on here? This officer says hello and he uses mace." And they told me it was not a use of force. I said, "We're going to declare it a use of force." So what we did is three incidents within a certain period of time took that person back into in-service training. And we begin to deal with those situations.

 

      The idea of the relationship between the community, particularly the minority community, has always been a touchy subject, I think, as Heather just went over.  One of the circumstances we had in the zip code that was primarily black, where senior citizen -- children could not go out and play in their neighborhood. I asked our officers, I said, "Look, what do we need to do?" And they said, "Director, we don't think it's a good idea. We're not invited. They don't want us in that neighborhood." I just said, "Okay, then what do we need to do to make it comfortable for you to be in that neighborhood?" "We need to be invited in."

 

      So I went to the Nation of Islam, at the time, Brother Donell Muhammad, and I said, "Brother, we need to have a press conference, and we need to invite the officers in. And we need to go through a debugging period of having those officers on bikes and walking the streets and getting to know the community." And that is exactly what we did. We wanted to have diversity within those ranks, so we had to make some shifts.

 

      Another thing we did was, in the university area, Ohio State, we were having an uptick in crime. And I called one of the command staffers in and I said, "Okay, can we institute a bike patrol?" And he said, "Absolutely, Director. How soon do you want to do that?" I said, "I'd like to do it in three months." He said, "We can do it in a month." So I think the creative idea between management and how it responds to its officers with the equipment that it needs. And if you do these with police officers, you tell them what the rules are, enforce them fairly, enforce them consistently, I think you will begin to eradicate some of those problems.

 

      In Columbus, Ohio, you may have seen on CNN this past week that we have a number of black officers talking about racism within the department. So for 16 years before the current mayor, the mayor of Columbus, Ohio was African American. We've had four African American Safety Directors. In that time period when I was there, when we'd have those kind of issues, we would call the command staff in. We'd sit. We'd address those issues, whether it was alleged gender discrimination and/or race discrimination. So it's a problem that I think we can handle.

 

      I think the issue, as we saw in Atlanta, that a mayor has to make a decision whether he or she's going to take action immediately or they're going to have their city burn down and riots in the streets, I'm happy I'm not in that position. But if you haven't done your good will ahead of time and you have one of these situations, as you've seen in Louisville and Milwaukee and Minneapolis, on and on, then you're going to have this kind of outbreak and you're going to have officers indicted to try to keep the city from burning down. But you're not going to get to the real core of the problems.

 

      One of the things we do with the FOP is we spend probably about a half-million dollars training our lawyers, training our officers around the country. And we talk about best practices. And we talk about bridging that racial divide between the black clergy, and particularly the black community, and our officers. And we're having some successes. We were having a lot of successes until things exploded.

 

      So that's kind of my overview and my experience. Officers struggle if they've been in a certain are for X number of years on the same beat, so we need to give them relief. Can we rotate them out? This is an ever-evolving area that everyone needs to participate, listen, and try to make the system better.

 

      And with that, I'll call on Robert McNamara.

 

Robert McNamara:  All right. Thank you very much Mr. James, and thanks to The Federalist Society for the invitation to speak today. And I think a lot of the debates about modern law enforcement and difficulties with law enforcement take place in the shadow of the debate over qualified immunity. And I think that makes sense. Qualified immunity certainly has a lot to do with law enforcement. But I also think it's important to recognize that qualified immunity is about a lot more than law enforcement.

 

      Qualified immunity, of course, is the doctrine that says a government official cannot be held liable for violating the Constitution unless the right they violated was what's called clearly established, which, in practice, frequently means that a plaintiff has to be able to point to a particular appellate decision in that jurisdiction in which exactly the same conduct in exactly the same circumstances was held to be unconstitutional.

 

      And that's not a doctrine about law enforcement. That's a doctrine about government. It's a doctrine about government misconduct and how courts should react to government misconduct. And it’s a doctrine that covers all government employees, from IRS agents to code enforcement inspectors to social workers who may decide to destroy your property or strip search your children for reasons of their own. And I think it's important to recognize really what we're talking about when we talk about qualified immunity. It's not police misconduct but government misconduct more broadly and the question of how we're going to respond to official misconduct.

 

      And I think as it responds to official misconduct, qualified immunity has a lot of blame to be laid at its feet. Qualified immunity is a failure. It's a failure as a matter of law. It's a failure as a matter of policy. And it's a failure as just a matter of basic human morality. Qualified immunity fails as a matter of law because it has no foundation in the law.

 

      Modern qualified immunity, this idea that a right has to be clearly established as measured by existing published federal precent, is not a common law doctrine. It is not incorporated into the text of Section 1983. It was invented by the Supreme Court about 40 years ago. And so it's a judge-made doctrine, not a common law doctrine of long standing. And as a judge-made doctrine, I think it can only be defended on grounds of policy. And I think on grounds of policy, it falls massively short.

 

      As an initial matter, one of the huge problems with qualified immunity is that it rests on this kind of strange legal fiction which says government officials are keeping careful track of the published federal opinions in their jurisdiction, so that when the Fourth Circuit hands down an opinion, everyone who is within the Fourth Circuit scrupulously reads the factual details of that case and conforms their behavior to it. And I think we all know that's not true, with all respect to the Judge. Government employees are not scrupulously reading everything the federal appellate courts put out.

 

      And so I think what qualified immunity does is it makes liability arbitrary, where an official's liability no longer depends on how egregious his behavior was or whether he was violating department policies. It depends on whether a particular federal opinion came out one week before or one week after he engaged in his misconduct, even though we all acknowledge that he didn't read that opinion and wasn't expected to read that opinion.

 

      So it makes liability arbitrary, which is the opposite of what we should want if we want to deter serious misconduct. Your liability should depend on how serious your misconduct was, not on this sort of "gotcha" game of combing through the federal precedents. So I think it creates bad incentives for police and government behavior. And I think it fails to achieve the things it's actually meant to achieve.

 

      The two arguments put forth in favor of qualified immunity are that we want to protect government officials from engaging in needless litigation, and we want to protect government officials who are put in difficult positions to make split second decisions. And I don't think either of those really holds up to scrutiny.

 

      Joanna Schwartz, who is the leading scholar on this area out at UCLA, has pretty clearly established that qualified immunity doesn't lead to less litigation. It leads to more litigation in a lot of cases because qualified immunity means that the government official defendant gets an automatic right of appeal when his motion to dismiss is denied, an automatic right of appeal when his motion for summary judgment is denied, and then, like the rest of us, has a right of appeal after trial. And it duplicates litigation needlessly, without necessarily eliminating weaker cases rather than stronger cases.

 

      And while I certainly have sympathy with the notion that government officials have to make, sometimes, split-second decisions, I think using qualified immunity to police that is exactly backwards. Our concern for split-second decisions is already baked into the underlying substantive text. The Fourth Amendment protects us from unreasonable searches, unreasonable seizures. And I think when we're talking about whether someone had only a second to make their decision, that certainly goes into whether it was reasonable.

 

      But the qualified immunity analysis doesn't take into account whether someone had eight hours to make their decision or eight weeks to make their decision. It hinges on whether there's a prior federal opinion saying exactly this conduct in exactly this context violates the Constitution. And so I think to the extent we're worried about too much liability, qualified immunity doesn't actually reduce the liability. And the right place to focus is on the reasonableness standard. It's on the underlying substantive constitutional standard.

 

      Which leads me to the third and, I think, the fatal problem with qualified immunity, which is that it totally divorces us from the constitutional standard. I think it's good and it's healthy to have debates about what the Fourth Amendment allows and doesn't allow. I think it's good and healthy to have debates about what's excessive force and what's not. That's what the Constitution calls upon us to do.

 

      What qualified immunity calls upon us to do is to look at an instance of government misconduct, admit that it violates the Constitution, and then do nothing about it. And I think people of good faith on the right and the left rightly rebel at that command. We should be deciding whether conduct was right or wrong. We shouldn't be admitting it was wrong and saying that's okay anyway. But that's the command of qualified immunity. That's the perversity of qualified immunity. And I think that's the heart of, at least my problem, with the doctrine. And I think the doctrine, by it making liability so arbitrary, leads us to have bad incentives.

 

      There are three possible people who could bear the costs of government misconduct. We could put the costs on the government official, themselves, which in many cases might be unjust and crushing. We could put the costs on a department, on an insurance company, which in practice, is the entity that actually pays these judgments, that's in a position to say maybe we have bad use of force policies. Maybe we're not doing a good job of hiring and firing. Maybe management is making mistakes. And put the incentive there.

 

      All too often, what the current system of qualified immunity does is look at a violation, admit that it's a violation of the constitution, and say all of those costs should be paid by the victim, the person who did nothing wrong, who had no opportunity to change department policy or to take any steps to avoid that situation. That, I think, is intolerable. And that, I think, is why you see voices on the left and on the right unifying around the idea that something has gone seriously awry with the courts modern qualified immunity doctrine.

 

      With that, I will cede the floor to Mr. Stimson.

 

Charles "Cully" Stimson:  Well thanks, Bob. I very much appreciate your comments. And it's an honor to be part of this panel, and with the distinguished judge moderating. And I, like him, used to lurk in the halls of the Mayflower and look up at the panelists and enjoy things, drink in the intellectual debate. And it's an honor to be on this side of the dais. And like him, also, I was a federal prosecutor, but I was also a state and local prosecutor and handled homicides. And so Heather's remarks really rang true to me because I was a prosecutor in D.C. And in D.C., most of the homicides were committed by African Americans against African Americans, and that is a true reality.

 

      I'm going to focus my remarks on qualified immunity as it relates to police officers, recognizing, as Bob said, that qualified immunity applies to thousands and thousands of government officials. And at the outset, let me just say that I want to make clear that in no way, shape, or form am I going to defend the actions of the police officer who killed George Floyd, or who shot and killed other unarmed people, or the officer who sicked dogs on suspects who had surrendered and had their hands up, or officers who stole $225,000 in cash and rare coins from people, or the officer in Latits v. Phillips who ran a suspect off the road with his car and then shot and killed him, or other studies that Clark Neily and Bob and others could cite all day long.

 

      At the same time, as much as I respect the work of IJ — I really do admire their work and follow their work, and Cato and others — I respectfully disagree with their push to absolutely abolish qualified immunity. To my mind, qualified immunity is not an unlawful shield, nor is it a blank check for government overreach. And to that end, I want to focus on three main points in my opening remarks.

 

      One, that even though Section 1983 does not, per say, mention qualified immunity, or immunity at all, there is substantial evidence that the 19th century common law did recognize a freestanding qualified immunity protecting all government officers' discretionary duties, like qualified immunity today.

 

      Second, that as a practical matter, abolishing qualified immunity in toto would indeed result in a tsunami of lawsuits against police officers, most of whom did not violate the constitutional rights of anyone. In other words, to root out the few bad apples in the 750,000 plus police officers we have in this country, you put a bullseye on all of them.

 

      And third, like it or not, the Supreme Court has upheld qualified immunity tons of times with slight modifications, and lower courts have upheld and applied it thousands and thousands of times. And as conservatives, we should be wary of offending the reliance interest at stake and overturning precedent just because we don't like the outcome in a certain number of cases.

 

      So let me expand on my first point. Judd Stone, who I think is a member of The Federalist Society and is the Assistant Solicitor General in Texas, argued this September in another FedSoc event against Clark Neily about qualified immunity. And I was persuaded by his argument when he said that there's a certain appeal that since Section 1983 does not mention qualified immunity, as textualists, we should sort of be very wary of any court created qualified immunity from Section 1983. But also, Judd pointed out that Congress passes law against the backdrop of common law principles, including common law defenses.

 

      And as some of you are certainly aware, Scott Keller has recently published -- or penned a law review article in Stanford Law Review, which is coming out next year, outlining the common law background here. And so as sympathetic as I am to Bob's textualist argument, I find myself more convinced after listening to Judd's arguments and reading Professor Aaron Nielson and Chris Walker's scholarship and Scott Keller's work, that there was a pervasive immunity defense at common law for government officials that informed Section 1983 and judges today.

 

      Scott argues "that the legitimacy of state officer immunities under the courts' precedents depends on the common law as it existed when Congress passed the Civil Rights Act of 1871. In the Supreme Court's own words, it cannot make a freestanding policy choice and must apply immunities Congress implicitly adopted from the common law tradition." And Scott reviewed the four leading 19th century tort treatises that the court consults when assessing officer immunity in common law, Cooley's 1879 Law of Torts, Bishop's 1889 Commentaries on Non-Contract Law, Meacham's 1890 Law of Public Offices and Officers, and Throop's 1892 Law Related to Public Officers. And he traces scores of state court decisions applying those principles.

 

      And Bob may say, like Clark said in the previous debate, well, that's persuasive, but it's post-talk rationalization for argument to keep qualified immunity. Fine, but that doesn't address the very real fact that Scott has contributed, in a very new way and real way, to the debate by pointing out that the common law does, indeed, and did indeed, recognize the freestanding qualified immunity doctrine that protected all government officers' discretionary duties.

 

      Now, look, at common law, they didn't, as Scott pointed out, look to clearly establish law — that's a made-up term, and I see Bob nodding his head — but looked at an officer's subjective and proper purpose. And the plaintiff then had the burden to prove improper purpose with clear evidence. So we can debate, and I hope we do, the extent to which the courts should take into account these common law realities when interpreting Section 1983 or whether the court should revisit the clearly established standard and revert back to the common law standard, an allocation of the burden of proof, which is a bone of contention.

 

      Now, there may be hope on that front. In addition to Justice Thomas and Sotomayor, Justice Neil Gorsuch may be another sympathetic ear on the Court for relaxing the level of specificity needed for a violation to be clearly established, as demonstrated by a dissent he wrote while he was on the Tenth Circuit in a case called A.M. v. Holmes. Furthermore, other circuit court judges, including Don Willett, are calling for a reevaluation of qualified immunity, too, especially the current application of that clearly established standard. But to my mind, it is a more reasonable way forward by looking at the common law and what was provided to recognize that there was a clearly established principle at hand.

 

      Second point, and these are shorter. If qualified immunity is abolished for all police officers, the number of lawsuits, with all due respect to Professor Schwartz, against police officers will inevitably go up more than it is today. I can tell you from a personal perspective as a prosecutor working at the local, state, and federal level and a defense attorney and a judge for five years, that the vast majorities of complaints against police officers I've seen lack merit. Most of the conduct complained about falls into the four corners of their official duties. Some of it comes close to the line. An infinitesimal amount of it crosses the line, and some of that violates a person's constitutional rights. So if you eliminate qualified immunity for all officers, you will guarantee a flood of meritless allegations against officers.

 

      And think about it from the cop's perspective. Do you want to put your life on the line, try to do your very best, and make split-second decisions, as Larry talked about, and then be held personally liable because some attorney convinces a judge that your actions somehow violate his constitutional rights? I don't think so.

 

      And how far does that abolition train go? Would military personnel — I served in the Navy for 27 years — while training for an overseas deployment trying to mimic a real combat environment be personally liable if they injure or kill civilians during a live fire exercise or bombing exercise? Do we want judges, with all due respect to Judge Bumatay, to put them in the place of a gunner's mate or a SEAL and lay down a four-part test about what a reasonable SEAL should have done under those circumstances? I really don't think so.

 

      My last point. The Supreme Court has upheld qualified immunity dozens of times. Lower courts have applied that, and Scott Keller's scholarship establishes quite clearly there was a robust common law recognition of freestanding qualified immunity. So I think we need to be thoughtful about whether we're asking the court to throw out or amend it.

 

      And I think there's a few ways you can amend it. You could treat it as a defensive liability rather than an immunity to suit. You could incentivize indemnification. You could reform police unions, and I'll be curious to hear if Larry thinks that there are some reforms that might be useful. And you could reform the attorney fee-shifting. Congress could get involved, too. And state legislatures could get involved, like California has.

 

      So with those initial remarks, I'll turn it back over to the Judge. Your Honor?

 

Hon. Patrick J. Bumatay:  Thank you so much, everyone, for those insightful comments. Heather, I wanted to start with you, if you could unmute your button. Can you hear me? Okay, well, Heather, while you -- I'm curious your response to Heather's comments that police are -- oh, Heather, are you there?

 

Heather Mac Donald:  Yeah.

 

Hon. Patrick J. Bumatay:   Okay, got it. So I wanted to see if you have any response to Larry's comments. It seems to me that both of you agree that the stress of the police in the community is a problem. He thinks some of the solutions might be increasing diversity in the ranks and changing some of the use of force laws -- rules. What is your response to that?

 

Heather Mac Donald:  Well, I don't think it's a full picture. Of course, there's some distrust among some portions of the community of the police. But let me give you another voice. I'm sorry, I hate to be working with anecdotes here, but this is a voice that is purely representative. A woman who got up in the 41st precinct of the South Bronx in the middle of a community meeting and, apropos of nothing, said, "How lovely when we see the police. They are my friends."

 

      I spoke to Mrs. Sweeper, an elderly cancer amputee in the Mount Hope section of the Bronx who said, "Please, Jesus, send more police," because the only time she felt safe to go into her building lobby and get her mail was when the cops were there because it was otherwise colonized by trespassing youth hanging out, smoking weed, and selling drugs. Those are the voices that never get represented in the mainstream media.

 

      I don't know a cop who is not going out of his way to try to reach out. Some get very hardened. That is a bad thing that needs to be worked on constantly. Let us also acknowledge the reason why cops develop officious attitudes sometimes, things like airmail, which is bags of feces and urine thrown at them from the roofs of housing projects. These are realities that simply never enter mainstream discourse. It's very fashionable and always a safe harbor to say we need more community policing. And I'm not accusing Mr. James of having said that. But that's a general response.

 

      Community policing is an absolutely vapid term, at this point. Again, there's not a department in the country that isn't going to say that it's doing community policing. It has no meaning. So yes, I just -- in my experience, police are trying to reach out. Let us acknowledge the other side of the equation, the stigma against snitching. The cops will tell you that they could solve every single shooting and every single homicide if the numerous witnesses to those crime scenes actually came forward with what they know, including the victims of shootings.

 

      The problem that I see is this national narrative that says that the problem in this country is racist policing when the evidence that is being proffered for that racism is almost invariably disparate impact and the fact that the cops cannot respond to those thousands of good, decent, hard-working people who beg for more proactive enforcement, without, as I said, generating the racial disproportionate data that can be used to shut them down.

 

Hon. Patrick J. Bumatay:  Thank you. Larry, do you have any response to Heather? If you want to unmute your button.

 

Larry H. James:  I want to come at it from a different perspective, because obviously, as General Counsel of the National FOP, I'm not going to disagree with that narrative. But I think there is a more concrete, objective way of coming at this.

 

      When I was Safety Director, one of the things I knew if I wanted to address an issue, I went to the command staff. The command staff is that in between the upper hierarchy of a police department and the officers who were put on the street. And I talked a little bit about that. And these officers understood what you needed to train. They understood what you needed by the way of equipment. They understood how to interact with the community, how to have those relationships, to establish them, to build that trust. So whatever our opinions are or are not, we are at a crossroads, and it's difficult.

 

      So what I want to do is I want to put it back in those officers' domain where they're making the decisions. They're having input into the training. I mean, the two things I talked about, for instance. In Philadelphia, we all saw the clip. Police officers are called. The individual has a knife. They do everything by the book. They're backing up. They don't have a taser. So the budgetary process -- what I'm trying to say is to the public, when you're looking at these issues and something's gone awry, and even with the George Floyd situation, because that criminal trial will take place for those four officers. The outcome is far from assured.

 

      But that officer, he was trained a certain way to implement a technique. And I'm not defending it. That is what they had on the books. That's what they trained. So what we say, on behalf of the National FOP when we're talking about citizen review board, when we're talking about use of force, when we're talking about any aspect of curtailing police activity and the equipment of what you're going to have to use when you're rioting go to the officers, let them -- on the basis of their training, their experience.

 

      Heather's absolutely right. And I talk about that situation in the black community when we sent the officers out to take back those neighborhoods. But I can assure you, that narrative is not going to carry the day, and it's not going to win the day. It will further divide us. So we stay away from that narrative because that becomes a part of that blame game. We can't blame the cops, and we can't blame the poor black communities or poor communities as a whole.

 

Hon. Patrick J. Bumatay:  Thank you. Robert, I wanted to ask you a question about qualified immunity. You suggested one avenue for replacement would be that the liability would fall on insurance companies. My question would be, what would change on the ground, then, for the cop on the street if they know that they're not personally liable and it will go to the insurance company anyway? How will that change officer actions on the street?

 

Robert McNamara:  I think a lot of the hope for changing officer action on the street is not the in terrorem effect of them losing their home and being driven into bankruptcy. A lot of what we're hoping to achieve through liability is changed structural behavior where an insurance company that wants to avoid liability has every incentive to say, "Hey, this guy has had a lot of disciplinary complaints. Are you sure he should be out on the streets?" or "We've identified, among all the jurisdictions that we insure, that this particular use of force policy or this particular de-escalation training really helps, and we'll lower your premiums if you implement this use of force policy that we think reduces these violations."

 

      I think the hope in reducing or eliminating qualified immunity isn't a flood of lawsuits and isn't actually more liability. It's trying to reduce, on the front end, the number of incidents that give rise to liability in the first place. And that's why, I think Cully and I completely agree on the importance of indemnification and at common law, sheriffs were indemnified by a surety for mistakes they made in the course of carrying out their duties.

 

Hon. Patrick J. Bumatay:  Thank you. So it's almost time for audience questions. Just as a reminder, we will only be taking questions via Zoom. If you are a video participant, you can get in line to ask a question by clicking the "Raise Hand" button. If you are calling in, you can dial *9. I'll call on you once it's your turn to ask questions.

 

      And before we get to the audience, Cully, the last question to you. It seems like you both agree that we should return to the common law defenses. But wouldn't that be more difficult for the cop on the street than, it seems like at least, a clearly established law standard or test that allows for clearer rules and clear notice of what an officer can do. Wouldn't the common law approach make it more difficult for the officer to act, especially in the split-second decision area?

 

Charles "Cully" Stimson:  It might as a legal matter at first blush, Your Honor. But I think over time, I think there's a level of professionalism and training that Heather talked to, and I've trained officers to, and I'm sure Larry has as well, that sets a floor, not a ceiling, on officer behavior. And the courts are more than adequately situated.

 

      You know when you were a prosecutor that you know when a police officer crosses the line, not operating within the four corners of her duties, and executes a warrant that she didn't know was invalid, one particular factual matter. But I think over time, that'll sort itself out. I'd be curious to hear what Larry thinks because it seemed to me that he was suggesting that police unions and collective bargaining agreements don't cover a lot of the things that I and others, I think, think they should cover.

      For example, is it not true that some police bargaining agreements protect errant cops and it makes it harder for them to be fired, whereas if you could adjust some of those rules, it would allow those police officers to be fired because I think a lot of people in the force know who the few bad apples are. That's another way. I don't think the insurance route is a good route, as a former insurance executive, because then you're actually giving the green light for officers to do more misconduct because they're going to think the Chubb or some insurance company's going to pay for it.

 

Hon. Patrick J. Bumatay:  Larry, do you have any thoughts?

 

Larry H. James:  Yes, couple things, if I could piggyback. Since 2015, the U.S. Supreme Court has actually decided five qualified immunity cases. The decisions were handed down 9-0 and 8-1. On the issue of qualified immunity, where qualified immunity is denied and those matters actually go to trial, officers are winning those cases at a rate of 85 percent.

 

      So the question is, what would the elimination of qualified immunity do? We have certain townships around the country, small, that will do consortium. And they will have insurance policies that defend, and they're a lot more stringent in their defense of those cases than probably the municipalities are.

 

      The other thing that wasn't talked about on the issue of qualified immunity -- and I have two of those cases. I'm representing officers now. Judge, you've seen them, where the municipality or government entity has cut the officer loose. In other words, they're not offering any indemnification. No duty to defend. And that individual is naked. So you're seeing, I think, a self-censorship with government now where those individuals are cut loose.

 

      The other thing I would say that, on the qualified immunity side of it, when those officers in Philadelphia were facing that individual with a knife, they weren't thinking about qualified immunity. When that officer had his neck on George Floyd, he was not thinking about qualified immunity. There is not going to be a chilling effect on the behavior of officers. So I think that's just a mistaken belief.

 

      We've seen certain initiatives -- I think in Colorado, they've eliminated qualified immunity, but they capped the officers liability at $25,000. And the last real-world reality is if you get a judgment against an officer, he or she's going to declare bankruptcy.

 

Hon. Patrick J. Bumatay:  Thank you. And so we'll turn to audience questions and answers. So we'll turn to our first audience question. I just want to make a reminder that your question should actually be a question and not a statement, and it should be brief. Our first participant will be Michael Rossman. Please unmute your microphone and go ahead and ask your question.

 

Michael Rossman:  Okay. Can you hear me, Judge?

 

Hon. Patrick J. Bumatay:  Yes, I can. Go ahead.

 

Michael Rossman:  This has been a great panel. I compliment all of you on your presentations and the discussion so far.

 

      I have a question for Mr. McNamara. So we're talking about police a lot. But qualified immunity, as we've all acknowledged, applies in a lot of different areas. And there is some difficult legal -- you can think about First Amendment, a public employer trying to restrict the speech of an employee. Procedural due process -- is there a liberty interest? Is there a property interest? You're entitled to some kind of hearing. Is it before? Is it after? I'm not that familiar with right to counsel, but I have some understanding that it has something to do with being in custody, and that's whether or not a person being interrogated feels free to leave, which can be a difficult thing to do.

 

      So my question is, in these instances, would you really want an individual officer, employer, college administrator, to be personally liable in case they make a bad legal decision?

 

Robert McNamara:  I mean, I think, in all honesty, my first instinct is that the way we usually deal with legal questions is we ask courts to resolve legal questions. And the question is why, in this particular context, we would want to put a thumb on the scale in favor of the defendant. We don't put a thumb on the scale when I'm deciding whether or not to cut down my neighbor's tree. If I cut down the tree and it's on my neighbor's property, and a court decides that, then I'm on the hook.

 

      And I'm not sure, as a matter of policy, which is all we're talking about in this context, we want to put a thumb on the scale in favor of the university administrator who's deciding whether or not to silence student speech he doesn't like, that I think if we respect our constitutional rights and we respect that public university student's right to speak, we don't want a special halo protecting the people who are trying to silence him. I think that the Constitution means what it says. And for us to have meaningful constitutional rights, those rights should be enforceable when they're violated.

 

Hon. Patrick J. Bumatay:  Thank you, and we'll go to the next caller. The next participant is Rashida MacMurray-Abdullah. Please remember to unmute your phone and go ahead and ask your question.

 

Rashida MacMurray-Abdullah:  Your Honor, you can hear me clearly?

 

Hon. Patrick J. Bumatay:  Yes, I can. Go ahead.

 

Rashida MacMurray-Abdullah:  Yes, this has been a fascinating discussion, particularly with the qualified immunity. And so I missed the very first part where all of the different panelists introduced their names. And so my question is really about the qualified immunity. I know there's been a lot of conversation about perhaps an alternative would be to have insurance companies as a funder of these types of suits. But hasn't -- historically, the problem has been is that the municipalities end up having, because they are self-insured, end up carrying the weight of some of these big cases.

 

      Like particularly, in Louisville, I think it was a pretty sizeable settlement that the municipality had to cover on behalf of the incident that happened to Breonna Taylor. And they subsequently did fire their officer. But all of those resources that is going to that Louisville community, instead of having to pay for -- their paying the suit for wrongful -- I don't know exactly the nature of what the settlement was -- what the details for the settlement.

 

      But that's money that's coming out of those communities that could be put better in for mental health, it could better training, education for students, Police Athletic League. So how do we reconcile in just saying that we're just not concerned about the officer in terms of having that liability, but now it's falling on the victims, which is the city and the citizens of that community? Thank you.

 

Hon. Patrick J. Bumatay:  Cully, do you want to take that?

 

Charles "Cully" Stimson:  I think Robert's probably better suited to tackle that one. Robert, if you don't mind?

 

Robert McNamara:  Sure. I certainly understand the concerns for the public fisc. But again, I think the hope in putting liability on the municipality that has the power to set policies in the first place is that that creates a disincentive to allow unconstitutional things to happen in the first place.

 

      I think Mr. James is absolutely right, that a judgment against an individual police officer is going to result in that officer's bankruptcy. And that officer frequently is not in a position to have changed the policies, changed the training program in advance.

 

      What we want is to create a system where there are fewer people whose constitutional rights are being violated. And it seems to me the best way to do that is to lay the costs of constitutional violations at the feet of the people who have the most power to implement better policies, better hiring and firing, better training programs. And that is generally going to be the governmental entity, itself.

 

Larry H. James:  Yes, if I could build on that. That's why I started out on my narrative of all the things that police officers do not do. And I think there was an earlier question whether the unions and police protect bad cops. And I think every police officer will tell you they do not want to work with a bad cop.

 

      On the arbitration situation, the lawyers for the union and the union make the decision whether they're going to take a matter to arbitration. Less than five percent of the cases, discipline police cases, go to final arbitration where there's a decision. And the reason for that small number is that when you're evaluating it from the union standpoint, you don't want a bad precedent that you're going to take forward. So the union says, "We're not going to grieve that. We're not going to take that forward." And then when you look at the numbers that actually go to the final arbitration, 52 percent of those arbitrations are rejected by arbitrators. So this idea that there's a groundswell of bad police officers being handled is just not the case.

 

      I think during the time period when I was Safety Director, I ended up firing three police officers, and those cases did not go to arbitration. There were a couple other cases on civil liability where we actually took -- actually let one officer go on his own. We just weren't going to defend him. But I think in this environment, what you're seeing around the country, they're firing officers, they're indicting officers. And you see when it's not warranted, those officers are being reinstated, and then they're settling with the officer for them not to come back.

 

      So we've got to deal with the real issue about what is the government entity actually training. So if we have these riot situations where the officers are given these rubber bullets and they're shot in the head, take them away. These are government practices, not individual officers practice, who are making decision. They're using the tools they're given or not given.

 

Hon. Patrick J. Bumatay:  Thank you. Heather, I was curious what your thoughts are on police unions. Do you think that reform of police unions is part of the solution, or they're not a problem at all? If you could unmute, sorry, Heather. You're still on mute. Okay, I'll come back to you. If you could -- there you are. There you go. Go ahead.

 

Heather Mac Donald:  I think it's hard to generalize. I respect a lot of police chiefs who say that they have had unduly difficult times getting rid of bad officers. Some unions are more obstreperous, have more power than others. I actually don't think that unions in the New York Police Department are particularly averse to any sort of necessary reforms.

 

      So yes, one can debate things like the 72-hour rule. In my experience, a lot of the procedures that become the obvious targets for criticism have a colorable justification for them. These are difficult issues with regard -- I'm for releasing video camera, body cam video as soon as possible. I'm for transparency.

 

      Nevertheless, there are certain balancing decisions that police administrators have to make. And the easy position is to bash unions. And frankly, a lot of cops can be an utter pain in the butt. As a profession, they tend to be whiners. I've rarely found a cop who likes his commissioner, even though that's justified.

 

      On the other hand, let's acknowledge the reality of the reason that they develop an often counterproductive bunker mentality is because they feel, rightly so, that they are facing a world that has no comprehension of what they are doing on a daily basis, that turns its eyes away from the cultural breakdown that is heart-wrenching, that is creating these insane drive-by shootings, these 15-year-olds who feel no compunction about simply opening fire at a sidewalk because they see an enemy gang member and, in the process, are shooing one-year-olds in their back yards.

 

      The cops are dealing with that, and they're being called racists for going where the crime is. And that sort of abyss between cops' reality and the way the public discourse that talks about crime and policing in this country does lead to an obstinacy that can end up being counterproductive. So rather than seeking, again, another safe harbor of, well, let's all talk about obstreperous unions, my position here is let us be honest. The problem in this country is not the police. It's crime. Policing is an epiphenomenon of crime in this country. And unless we bring the black crime rate down, we are never going to get out of this discourse unless we're more honest with ourselves.

 

Hon. Patrick J. Bumatay:  Thanks. Cully, you wanted to jump in?

 

Charles "Cully" Stimson:  If I could just add to Heather's point, which I agree with a hundred percent, is there's another very disturbing trend that's happening right now. And that is the advent of the so-called progressive prosecutors, what we've called rogue prosecutors at Heritage. And we've written a major paper on that. And you have people like Rachael Rollins in Boston, and Larry Krasner in Philadelphia, and Marilyn Mosby in Baltimore, and Kim Foxx in Chicago, and now George Gascón, the one -- the seat in L.A. He unseated the first black African American female elected DA, who is a progressive but a person who actually was a traditional independent prosecutor. And they're beholden to this Soros-type movement and their non-prosecution policies.

 

      And so you have, for example in Boston, Your Honor, a DA who, when she was elected, issues 15 crimes you can commit in Boston — it's called the Rollins Policy Memo — including assault on a police officer, including breaking and entering, including PWID, possession with intent to distribute, and a lot of other crimes. And imagine the impact that has on police officers who are dealing with those crimes happening in front of their face, knowing that the DA's office, the gatekeeper to the criminal justice system, is not even going to prosecute that. And they gleefully talk about that.

 

      And so I'm not for bad cops. Don't get me the wrong way. I think what that cop did to George Floyd is despicable. And I think that the criminal justice system is adequately poised to prosecute bad cops, and they should. But when you compound the problem with what Heather's talking about with the rogue prosecutor movement, you have a toxic mix, and it's affecting morale, it's affecting recruitment, it's affecting retention, and it's affecting crime rates in those cities where the rogue prosecutors are being elected.

 

Hon. Patrick J. Bumatay:  Thank you. Walter Clapp, you're up next. Please remember to unmute your Zoom link and go ahead and ask your question.

 

Walter Clapp:  Hello, can you hear me okay?

 

Hon. Patrick J. Bumatay:  Yes, sir.

 

Walter Clapp:  Wonderful. Thank you so much, everyone. My question -- well, I'll start with two brief statements and then the question. I'm quoting John McWhorter on a podcast with Sam Harris. Sixty percent of the underlying problem in the urban black community could be solved by ending the war on drugs. And talking about the underlying problems facing police in that bunker mentality that you talked about, Heather, certainly comes from living in a war zone.

 

      Today, a rich white kid can go and get prescribed dextroamphetamine from a doctor with a prescription, and the poor white kids are going and getting hooked on meth. My question is this. Is one of the modern quandaries of law enforcement the relic of the war on drugs that exists today?

 

Heather Mac Donald:  Well, I can take that. Am I muted or unmuted?

 

Hon. Patrick J. Bumatay:  You're good to go, Heather.

 

Heather Mac Donald:  Okay. I thought that you were going to be saying 60 percent of the problems in the urban community — and I would have said 100 percent — are due to family breakdown. If you want a root cause, that's really what we're seeing here. Males, young males are not being civilized because they're not in a marriage culture any longer.

 

      The war on drugs — you can read Michael Fortner, you can read others at Yale Law School — was initiated by the black community, whether it's the Rockefeller drug laws or the crack and powder cocaine disparity, that was initiated by the Congressional Black Caucus. The people who live with open-air drug markets are living under the pall of fear. They understand that oppression. They also understand the oppression of drug addiction.

 

      Again, it was black newspapers in the 1950s in Harlem and black politicians in Harlem that were calling for -- they wanted to jail drug users, addicts. You can read some of the language in Michael Fortner's book. It's astounding. And today, if you pull back what we saw after the Freddie Gray riots in Baltimore, the cops virtually stopped any type of drug enforcement. Rather than this leading to a halcyon period of peace, shootings went through the roof. There was a direct inverse correlation between the amount of drug enforcement going on and the amount of street violence that was going on.

 

      For once, very rarely, the Baltimore Sun and the Washington Post actually sent reporters to police-community meetings in West Baltimore. And for once, those reporters reported the types of things that you hear from those law-abiding residents. And there was copy store owner who said, "Since you've stopped enforcing the law, it's like a drug dealers' convention here." He was losing business. Nobody wanted to come to his copy store because they were so terrified of what's going on.

 

      So the reality is is that the reason the cops are in those neighborhoods enforcing drug laws is because that's where people are complaining about open-air drug markets. They're not complaining in Amherst. There may be some universal inequity about that. But right now, the cops are dealing with what the complaints are that they're getting, and that is to want more enforcement, not less.

 

Hon. Patrick J. Bumatay:  Thanks, Heather. Paula Unroe, you are up next. Please remember to unmute your button and go ahead and ask your question.

 

Paula Unroe:  Hi, can you hear me?

 

Hon. Patrick J. Bumatay:  Yes, go ahead.

 

Paula Unroe:  Excellent, thank you. And thank you so much for taking my question. Just for some perspective, I am a 34-year insurance professional and paralegal, but I'm actually here as a concerned white person learning how to be an anti-racist. And there's a plethora of conflicting information on racial issues, police issues in this country. And so I wanted your thoughts on just a couple of statistics and ideas.

 

      One is that 83 percent -- I'm seeing 83 percent of whites are killed by other whites, largely because crime is a matter of proximity and opportunity. So who's going to drive across town to commit these types of crimes? It's done in your own community. But I think the thing that I wanted your thoughts on most was the statistic that I see that unarmed blacks are two times more likely than unarmed whites to be killed by police.

 

Heather Mac Donald:  First of all, when it comes to interracial violence, that is the -- if you look at the universe of all black on white and all white on black interracial violence, blacks commit 88 percent of it. That's from the latest Bureau of Justice statistics report on criminal victimization. As far as the ratio of blacks and whites being killed by the police, as of June, the Washington Post was reporting that nine unarmed blacks have been killed by the police in 2019. That's out of 7,400 blacks who died of homicide. That's less than 1.1 percent of all black homicide victims.

 

      The Washington Post defines unarmed very generously to include people who are trying to steal an officer's gun, or who are beating him with his own equipment, or driving away from a lawful car stop with a loaded semiautomatic weapon in their car. The fact of the matter is, when you take crime rates into account, and violent crime rates into account, the usual statistic that's reported in the media, which is that blacks have a two-and-a-half times greater chance of being shot by a cop than whites, reverses completely.

 

      When you take violent crime rate into account, whites are three times more likely to be shot by a cop. So criminal justice research has known for decades that the biggest predictor of  officer behavior is civilian behavior. If a civilian resists arrest, which is what we've seen throughout this summer, the officer is going to escalate his own use of force until he gains lawful compliance.

 

      So there simply is not a problem in this country of a racist epidemic of biased police shootings. That is not the case. The problem we have, again, is the very high rates of black victimization by black criminals. And that is the civil rights concern that we should all be worried about.

 

Hon. Patrick J. Bumatay:  Next question is Gregory Dolan. Please remember to unmute your phone. Go ahead, Gregory.

 

Gregory Dolan:  Thank you very much. I wanted to ask a question, perhaps broadening the conversation a little bit. And we have law enforcement, not just with police officers on the street. We also have law enforcement from various state and local level administrative agencies who police who you bake cakes for, and you do other things like that, and they issue directives who can say what things on campus.

 

      And often times, they do tread on people's First Amendment rights, and people's other liberties, and yet they do get protections from the qualified immunity doctrine. And so I just wonder whether the abolition of that doctrine is -- will have broader positive implications, not just what's going to happen on the street, but what's going to happen in our civil society overall.

 

      And I suppose, just a quick follow up, if I may, is I guess a few of them are more economic perspective, given the fact that most judgments against police officers would probably be really judgments against the city that hired them, since the lawyers who sue would want to recover  money as opposed to just bankrupting a police officer. Given the fact that an officer's not going to be personally liable, ultimately, why do you think that would affect how they personally do their job as opposed to how the cities train them and dispatch them, etc.?  Thank you.

 

Hon. Patrick J. Bumatay:  Robert or Cully, do you want to jump in?

 

Robert McNamara:  Sure. I certainly agree with the premise of the question, which is that qualified immunity is a doctrine much more about the Constitution than it is about the police as an entity. And I think it’s a healthier conversation to have about qualified immunity if we have it about the protection of constitutional rights rather than specifically about policing. I think the police are obviously one aspect of the government that interacts with the public, and qualified immunity undeniably has implications for policing. But I think qualified immunity, much more broadly, has implications for our rights, our First Amendment rights, our property rights, and whether they're going to be protected the same way non-constitutional legal rights are. So I think that's absolutely correct. And Cully has thoughts, as well.

 

Charles "Cully" Stimson:  The thing I would add is, in my mind, as I was preparing for this discussion -- which I very much enjoy, and I want to thank everybody for doing this group. It's been terrific. Thank you very much, Your Honor, for hosting it.

 

      In my mind, there's a big difference between people who are on the front lines making split-second decisions — and whether we reform or abolish qualified immunity, and I think you know my position on that — and those who have a lot longer time to consider their actions. And so in my mind, there is a big difference between that.

 

      I want to pick up on one last thing that Heather said. In our rogue prosecutor series, we highlighted each of the rogue prosecutors. Kim Fox, in Chicago, you have a higher combat death rate, persons per year killed, than in the average year in Iraq or Afghanistan when we were in combat operations. Think about that. There is carnage going on in the streets there. You had a better chance of dying in Chicago than you did in Iraq or Afghanistan. And that's just not right. And so the cops have to wade into that morass and try to figure that out with the help of the people. And so I just wanted to add that to give some people some food for thought.

 

Larry H. James:  And I think the other thing I want to say on the qualified immunity, this is about civil litigation and about monetary recovery. It does not relate to whether a law officer is going to be disciplined, terminated, and/or indicted. There is no chilling effect on that as it relates to qualified immunity. Prosecutors, on the other hand, have an absolute immunity, as you talk about it. So I think you just want to keep things in perspective.

 

      I think what we've got to be careful of as we go into these debates of what's going to move the needle and what's going to be helpful, I think we're looking at policies that improve policing and the relationships of police with communities.

 

Hon. Patrick J. Bumatay:  We have time for one more question, and it's going to go to Maritza Bolano. Sorry if I butchered your name. Make sure to unmute your phone and go ahead. Maritza? Have you unmuted your phone, Maritza?

 

Maritza Bolano:  I --

 

Hon. Patrick J. Bumatay:  -- Yep, you're there. We hear you now. Go ahead.

 

Maritza Bolano:  Okay. So my question really goes to the notion of abolishing qualified immunity and what kind of effect would that have on recruitment and retention of a competent police force and their supervisory personnel and making sure that we have experienced officers who can handle complex situations into the future.

 

Larry H. James:  I'll take a stab at it.

 

Hon. Patrick J. Bumatay:  Okay, thanks, Maritza. Go ahead, Larry.

 

Larry H. James:  Two things. Recruitment is down 40 percent across the nation for police officers. So in this age of trying to find qualified individuals, you're seeing the standard get less and less for police departments around the country because no one wants to take these jobs. You're also seeing early retirement at a disproportionate level of the seasoned officers.

 

      So to your point, it's having a chilling effect. And particularly, your minority officers, if you watched what happened during the riots, many of those officers were targeted harder than their white counterparts. They were either an Uncle Tom, sellouts, or any number of things that was just not healthy. So it's having a drastic -- if qualified immunity was eliminated, you're going to see a downtick on those individuals who is going to have to expose what few assets they do have to doing the job.

 

Hon. Patrick J. Bumatay:  Great. And I'm going to use my moderator's privilege to extend the panel a little longer and ask Dan Morenoff, why don't you go ahead and ask your question? Unmute your phone, please, and go ahead.

 

Dan Morenoff:  Of course, and thank you, Your Honor. I appreciate that, especially given the hour. I'll try to make this brief.

 

      I know several of our speakers have mentioned their concern that if we abolish qualified immunity, and if a victim of whatever official action obtains a judgment, that the official in question will simply file for bankruptcy and that will be the end of it. I know I probably have more bankruptcy experience than most of the people involved in this panel, but I find myself thinking that I'm fairly sure that any such judgment would have to involve a finding of mens rea, as well as the fact that the bankruptcy code already makes nondischargeable a number of kinds of claims, including intentional injuries.

 

      Given that any claim a victim could have that would arise in this context would probably fall under that category, I find myself wondering why would we make these particular intentional injuries dischargeable when no other intentional injuries are? And does that have any bearing on people's thoughts about whether that is or should be the end?

 

Larry H. James:  If you look at insurance policies, even your insurance policy, if your act is intentional, if you took your car and intentionally ran into someone, you're not going to have coverage, number one.

 

      From a government aspect, if an officer has acted outside the scope and duties of his or her responsibilities or intentionally inflicted harm, then they're not going to be covered. They're going to be on their own. 

 

      The cases that I've seen where officers go over to bankruptcy, and obviously you know this, the assessment of their financial wherewithal, is the ability to pay. So it's not one of intentional -- because if it's intentional, you're not going to have insurance policy covering it. If intentional, you're not going to have a government covering it.

 

Hon. Patrick J. Bumatay:  Thanks. We'll have one or two more calls. Ed Heimlich, are you able to unmute and go ahead and ask your question?

 

Ed Heimlich:  Yes.

 

Hon. Patrick J. Bumatay:  Go ahead.

 

Ed Heimlich:  Thank you. First, my question's going to be for Cully Stimson. First, let me say that my many years of experience, dating back to the tumultuous '60s and my much research since then, our country survived for most of its existence without providing any common law immunity for those employed at public expense. But what happened in the 1970s was a reaction to the civil rights movement, the anti-war movement, and it was an extension of the Cold War.

 

      Our Supreme Court with judges -- well, it started with the federal court with judges appointed by the Nixon administration initiated a dirty war against the American people. And as a result, our incarceration rate over the next three decades grew to be, by far, the greatest in the entire world. And we are, in fact, a police state.

 

      My question for Mr. Stimson is what is our common law?  Is it the Declaration of Independence that says that all men are created equal? And that reference was not to African Americans. It was to the titled nobility in Europe, in England, where the king was the sovereign and those who acted in the king's name, including the British troops that were the de facto police force in the colonies were above the law, had immunity.

 

Hon. Patrick J. Bumatay:  Okay. Thanks, Mr. Heimlich. I think we get the question. So Cully, why don't you go ahead and answer.

 

Charles "Cully" Stimson:  Sure. Mr. Heimlich, thank you for your question. The common law that I was referencing and referring to was the very same common law that Scott Keller was referencing in his upcoming Stanford Law Review article, which detailed not only the four tort treatises that the Supreme Court and others turn to when looking at the jurisprudence behind torts and common law torts, but also the cases throughout the state courts that referenced immunity.

 

      And so we can have a philosophical debate, which I think is where you were headed on what the common law is, per say. But what I was specifically referencing was what Scott Keller laid out in his law review article, which I encourage you to read.

 

Hon. Patrick J. Bumatay:  Thanks, caller. And now for the real last caller. I think we have a call-in from [phone number omitted]. If you unmute your phone and go ahead and ask your question. Caller, are you there? Okay, I think we might have lost him or her, so we will end the panel here. Thanks, everyone. This has been an enlightening discussion for sure.

 

      I'd like to thank the panelists and the audience for joining us today. A reminder that the convention starts again tomorrow morning with "A Discussion with Professors Robert George and Cornel West on Freedom of Speech, Freedom of Thought, the Black Lives Matter Movement, and the Cancel Culture." We'll start at 11 a.m. Eastern tomorrow. Thanks again.

 

Heather Mac Donald:  Thank you.

 

 

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11:00 a.m. - 12:15 p.m.
Showcase Discussion: A Discussion with Professors Robert George and Cornel West on Freedom of Speech, Freedom of Thought, the Black Lives Matter Movement, and the Cancel Culture

2020 National Lawyers Convention

Topics: Civil Rights • Constitution • Culture • Philosophy • Politics • Free Speech & Election Law
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On November 12, 2020, The Federalist Society hosted an online showcase discussion for the 2020 National Lawyers Convention with Professors Robert George of Princeton and Cornel West of Harvard. The title of the panel was "Showcase Discussion: A Discussion with Professors Robert George and Cornel West on Freedom of Speech, Freedom of Thought, the Black Lives Matter Movement, and the Cancel Culture."

In the aftermath of George Floyd's killing, the country is re-examining fundamental aspects both of our society and how we talk about changing it. In order to undertake that examination in a spirit of honesty and free inquiry, one view holds that participants need to feel free from the danger, and sometimes, as we have seen, the reality, of punishment or intimidation for taking an unpopular point of view. Those holding this view are concerned that we seem to be entering an era of enforced conformity to a new norm—that America is systemically racist, and that a failure to accept and acknowledge this fact is disqualifying from having a place in academia, in public life, or even in the private sector. They are concerned that the radical changes being called for ignore the pillars of the successful American experiment that ultimately led from slavery to the outlawing of racial segregation, and that these changes will do grave harm both to American society as a whole and to the radical changes’ intended beneficiaries.

On the other hand, some believe that our society is so inherently degraded by racism that a fundamental change is justified from the old ways of how we have felt we can think and speak about these issues. The thought is that the traditional notions of free speech and free thought are themselves devices that support oppression, and inevitably are employed to prop up  established practices and ways of thinking that have created, and perpetuate, racial inequity.  This view holds that those who have been harmed by  racism are only further harmed by a so-called “balanced” discussion of their grievances.

Professors George and West will address whether both society, and the ways in which we can discuss its virtues and its deficiencies, are in need of fundamental change.

Featuring:

  • Prof. Robert P. George, McCormick Professor of Jurisprudence; Director, James Madison Program, Pinceton University
  • Prof. Cornel West, Professor of the Practice of Public Philosophy, Harvard University
  • Moderator: Mrs. Jennifer C. Braceras, Director, Independent Woman’s Law Center
  • Introduction: Hon. Dean A. 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 speaker.

Speakers

Event Transcript

Dean Reuter:  Good morning, and welcome to this, the fourth day of The Federalist Society’s National Lawyers Convention. I’m Dean Reuter, Vice President, General Council, and Director of Practice Groups at The Federalist Society. I’m very pleased to welcome you back today, to the Showcase Day of the Convention, if you will. The theme of this, our first ever all virtual convention, is the Rule of Law and the Current Crisis.

 

      Today’s the day, under our new week-long virtual convention rubric, that we host our Showcase Panels, Showcase Addresses, and Showcase Discussions. We’re going to end our day much later today, this evening, with an address by Supreme Court Justice Alito beginning at 8:00 P.M. Eastern Time. Before that at 6:00 P.M., retired Judge Janice Rogers Brown will share her thoughts in her address, not to be missed. Along the way we’ll have Showcase Panel discussions that examine law, social justice, wokeness, and the protests; and the presidency and the rule of law.

 

First, though, to get us started today, I’m pleased to welcome the discussion leader of our first event this morning. Jennifer Braceras is the Director of the Independent Women’s Law Center at the Independent Women’s Forum. She’s also a frequent columnist in virtually every print and online outlet you can think of, and a former Commissioner on the U.S. Civil Rights Commission. Jennifer Braceras, the floor is yours.

 

Jennifer C. Braceras:   Thank you, Dean. Thank you so much. I want to welcome everyone to this panel and tell you how thrilled I am to be here today with two of our nation’s leading public intellectuals. They probably don’t need much of an introduction. Professor Cornel West of Harvard is a Professor of Practice of Public Philosophy. He’s also had a long and distinguished career at Princeton University and has taught at a number of other major universities across the country.

 

      Professor Robert George is the McCormick Professor of Jurisprudence at Princeton, where he is also the Director of the James Madison Program. For more than 15 years these two gentlemen, who agree on probably very little politically, have taught and lectured together providing a model of public discourse, dialogue, and friendship across the ideological divide. Together, professors West and George have stood up for truth seeking, democracy, and freedom of thought and expression, and denounced campus illiberalism, or what my kids today call cancel culture. Sadly the type of dialogue and discourse in which professors West and George engage has become increasingly rare in our society.

 

This past summer they published in the Boston Globe a compelling piece on honesty and courage, and I would like to use that piece as a springboard for our discussion today. Professors, you start the piece by saying, and I’m going to quote here, “We need honesty and courage to honor the contributions of great men and women who have come before us — those who articulated and defended true principles of justice and the common good, built or helped to preserve worthy institutions, and modeled important values.” But then you go on to say, “We need the honesty and courage to recognize the faults, flaws, and failings of even the greatest of our heroes, and to acknowledge our own faults, flaws, and failings.”

 

Professor George, if I may start with you, would you please elaborate on these sentiments and maybe tell us — well, why don’t you start by telling us the genesis of the Boston Globe piece, and then if you could specifically address that passage and tell us what the two of you were thinking when you wrote it.

 

Prof. Robert P. George:  I’ll be happy to do that, Jennifer. Let me though, begin by thanking you for moderating this conversation, and thanking The Federalist Society, Dean, Gene, Leonard, the entire gang for the opportunity for Brother Cornel and myself to appear. I wish I could claim that I was among the founders of The Federalist Society. I was not, but I did get involved fairly early on in the life of the Society. I knew it was a good thing, but even in my wildest dreams I had no idea of what a profound positive contribution the Society would make to legal education, to the legal profession, and to the judiciary. I support the leadership and everyone at The Federalist Society, and I thank you for the work you do and this opportunity to be in this discussion.

 

Of course, it’s just a pure joy, as it always is, to be with my beloved friend and brother, Cornel West. As you mentioned, Cornel and I have been teaching together and lecturing together and writing together for 15 years. We’ve also been thinking together and arguing with each other. We’ve been praying together. We’ve been singing together. Cornel puts up with my hillbilly guitar playing so that we can sing the old hymns together. It’s just been a fabulous thing.

 

I’ve learned so much from Cornel over the years, including in our teaching, not only substantively, in listening to his reflections for our students on the great works that we teach: Plato, St. Augustin, all the way up to the modern period, people like Dewey and Strauss and C. S. Lewis and so forth, Martin Luther King, but also from the great example, the wonderful example he sets as a teacher, one who probes, one who prods, one who practices what he preaches, forcing students to think, unsettling them, challenging their dogmas and convictions, no matter whether the student has come in on the Left or on the Right or somewhere else on the spectrum. Cornel wants students to think about why they believe what they believe, and he’ll push and prod to make them do that.

 

      The piece that you kindly have made the focus for today, Jennifer, began, actually, as a result of the controversy, the second round of the controversy at Princeton University about removing Woodrow Wilson’s name from the famous school of public affairs, formerly called the Woodrow Wilson School at Princeton. This was part of the whole uproar that occurred in the wake of the George Floyd murder, killing. There was a backstory to this because in 2015 some students had occupied the president of the university’s office demanding among other things that Woodrow Wilson’s name be removed for the reason that Woodrow Wilson was a racist. And Woodrow Wilson indeed was a racist. He was guilty of racist activity such as resegregating the Washington bureaucracy.

 

In 2015, a deliberative process was put in place to consider whether to remove Wilson’s name, and a judgment was made on the basis of that process, not to do so, to honor him, not of course, for his racism, but to honor him for his contributions to the society and especially to the university, building Princeton University into a great research institution. There can be no doubt that Wilson deserves a great deal of the credit for turning Princeton from being a good small college, but not a great research university, into a great research university on the model of some of the great European, especially German, universities. When we got the second round of controversy over Wilson, at a time when statues were being pulled down by mobs around the country, when there was pressure to rename institutions across the country, when there was a kind of spirit of iconoclasm, which still, of course, has not gone away abroad, Cornel phoned me, called me up. We check in with each other during this COVID crisis pretty frequently.

 

He called me with a particular problem on his mind and that was that he was not happy about what had just been done, the removal of the Wilson name. In particular, he was concerned that no process, no decent process was used, no consultations were made. It seemed to be just capitulation to the spirit of iconoclasm that had swept the country. There was a thoughtlessness about it. If you know anything about Cornel West, you know that one thing he just cannot tolerate is doing things thoughtlessly. It’s one thing to come to a conclusion one way or another including one that we disagree with on the basis of reflection and thought. You might get it wrong, but you you’re thinking. It’s another thing to just capitulate to a spirit of iconoclasm or to a mob or to a zeitgeist or something like that. One of the things that Cornel and I deeply share is an opposition to that kind of mindlessness, that kind of thoughtlessness. He proposed that we write something about this, ideally, something that would have a broader application than to Princeton, addressing the spirit of iconoclasm about which we were both concerned.

 

Of course, things take on a life of their own, and so we began reflecting on what the deep problems are in the country, of which the uprisings and, in some cases, burnings and lootings in cities, and so forth, murders. We began reflecting on what’s that all about? What do we really need? What does this say about the condition of our culture? We drew the conclusion that among the central things that we need is more courage and more honesty in dealing with a vast range of issues, not just the iconoclasm, not just the questions of naming buildings or tearing down monuments. But in the passages that you read, Jennifer, what you see is the genesis of the project. The first thing we addressed, we went on to address a number of things, and I suspect you’ll ask us about them, but the first one was this question of tearing down statues and renaming buildings and so forth.

 

And I’ll just conclude because I’ve spent too much time with this introduction, but to give you a couple of examples, it is one thing to take note of the fact that this nation has a terrible legacy of slavery and other crimes, crimes against the Native American Indian tribes and so forth, and that should be done. The second half of what you just quoted is about that. We need to own up to the flaws and faults of our history, not thinking we’re better than the people, we as individuals are superior morally, to the people who committed those offences, knowing that we ourselves are offenders — and we are probably committing offences today that a better sensibility may someday condemn, if we do get a better sensibility — but nevertheless, not whitewash our history or pretend that bad things didn’t happen, or that good people didn’t do bad things.

 

But let’s also not pretend that there were not good people, that we don’t have heroes, that there aren’t people who deserve to be honored, whether it’s George Washington. Yes, he was a slaveholder, but he was the indispensable man in creating this democratic republic, this profound experiment in ordered liberty and self-government, all the way up through Martin Luther King.

 

We now know that Martin Luther King did some bad things. He had a very bad attitude toward women. He was not only a philanderer, but also someone who was abusive toward women, manipulative toward women. David Garrow, who’s certainly someone very sympathetic to King and to everything that King stands for, nevertheless, reports that he believes the evidence points to the fact that King in his own hotel room once laughed as a woman was being sexually assaulted on a bed in the bedroom. Does that mean the we cancel King any more than we cancel George Washington or Abraham Lincoln or Fredrick Douglass, or any of the other heroes that have stood for things that are right and true, whatever their sins and errors personally were, whatever beliefs they had that certainly do not square with ours at this time?

 

Cornel and I wanted to answer with a resounding no. We honor heroes. We recognize heroes. We give our children and grandchildren a heritage, heroes to look up to. We remember the great things that they did, standing for great principles, building great institutions, like the Constitution, and at the same time, we acknowledge they were flawed and human and that the institutions that they built are flawed and human, and we try to use their example as an inspiration to do better in part by correcting what needs to be corrected from their legacy.

 

Jennifer C. Braceras:  That sounds like a very sensible and classically liberal position, which I think even ten or fifteen years ago might not have gotten much pushback at all. But it actually, at least where I live in Massachusetts, I think would be regarded a radical Right position now. What do you think about that, Professor West, and have you gotten pushback from the Left on exactly the point that Professor George has just made?

 

Prof. Cornel West:  Well, we’ll just first say thank you so much, Sister Jennifer, for being the already marvelous moderator that you are. I just want to say very briefly that it’s a blessing to be part of this conversation with The Federalist Society. It’s not every day I get a chance to engage my deeply conservative Right-wing brothers and sisters. It’s always a delight and anytime I’m in dialogue with Brother Robby, you know, he’s my very, very dear, not just friend, but brother. We have a love that’s in no way reducible to politics. We have a deep brotherhood that’s not reducible to agreement on public issues. Our families come together, ourselves and souls come together even as we wrestle with our disagreements.

 

For me, part of the problem these days, though, is that we live in a moment of such deep spiritual decay and moral decrepitude that we even have to look for an ideological label to attach it to something that’s just decent. For me, it’s a matter of trying to just hold on to integrity, honesty, decency and all of those can reside in different political camps. They can all reside in different ideological camps or schools of thought, as they were. Therefore, all we were trying to say is, let’s go back to the Socratic legacy of Athens. Let’s go back to the prophetic legacy of Jerusalem. Let’s ensure that we have robust, uninhibited conversations, that people enter public space without humiliation, with a sense of humility so they can learn to listen as well as present their views and then try to be empathetic.

 

And I, coming out of my own prophetic legacy of Jerusalem that genius of Hebrew scripture, spread the hesed, spread that loving kindness and that steadfast love to the orphan and widow and fatherless and motherless. Hence, you end up with a defense of liberty on the one hand, but also the defense of egalitarian sensibilities when it comes to ensuring that people have access to food and housin’ and jobs with a living wage, and so forth. There’s, of course, where the ideological battle comes in.

 

I do want to salute my dear brother, Eugene Meyer. We had a good time in dialogue with him last time we were here and his father, of course, towering figure, that great credo that he wrote in 1962 talking about liberty. You say, “Yes. Liberty’s indispensable, must be defended no matter what.” But there’s more than one road to serfdom. It’s not just a concentration of power in the public sphere with the state bein’ authoritarian, but it could be monopolies in the private sphere that render people dependent, render people unable to gain access to be the kind of security they need.

 

And so what Brother Robby and I was simply saying, is that we have to have dialogues across the board. If you gonna read Edmund Burke, then let’s read Hazlitt. You gonna read Frank Straus Meyer, then let’s read Jeff Stout’s Democracy and Tradition. We need to have a variety of different perspectives to get at these issues of liberty, get at these issues of equality, get at these issues of fraternity, sisterhoods, and brotherhoods. But most importantly, for me, it’s a matter of keeping track of the spiritual and the moral dimension and it’s there where the greed, the hatred, the contempt.

 

And the reason why I called Brother Robby on the phone was that I said, “Brother Robby, it looks like we’re seein’ the triumph, once again, of Thrasymachus over Socrates.” Thrasymachus says what? Power. Power. Power. Might makes right. That somehow you can do anything you want and get away with is with impunity. You can say what you want and get away with it, do what you want and get away with it. We see this too much across our society, but especially among the neo-liberal elites, among our conservative elites, among too many politicians, among too many people who are in high places. No accountability, no answerability, hard to get at them in terms of Socratic energy, which is to say serious, genuine critique. I’m not talkin’ about name callin’. I’m not talkin’ about finger pointin’. We got a whole lot of that. I’m talkin’ about genuine intellectual engagement, genuine rational deliberation about people’s actions and their consequences.

 

One of the ways in which every regime, let alone a fragile democratic regime, goes under is when you can’t get at its lies and its crimes whatever forms it takes. It can be crimes on the block, it could be crimes on Wall Street. It can be drones dropped on innocent folk and people lie about it, or it could be lies in a church, a mosque, a synagogue. It affects all of our lives. And that kind of poison, of greed, and mendacity and contempt, and hubris, begins to suck all of the spiritual and moral good stuff out of a democracy and you end up with the tyranny that Plato talked about in The Republic when a democracy can’t survive; looking for a strong man, looking for the tyrant who’s unable to exhibit any kind of shame, any kind of regret. These are very, very, very crucial, crucial issues that Brother Robby and I are talking about in terms of honesty, in terms of courage. I don’t wanna go on too long, my dear sister.

 

Jennifer C. Braceras:  Oh, no. It’s fine. I’m curious just to follow up with you 'cause it sounds as if much of your objection to the renaming was process-based, that there wasn’t --

 

Prof. Cornel West:  Oh, absolutely. Absolutely. In fact, as a graduate student, I had argued for the removal of the name back in 1975 --

 

Prof. Robert P. George:  Oh, I didn’t know that.

 

Prof. Cornel West:  -- just based on argument, just based on engagement. We sat there, we talked right there in Nassau Hall. I agreed, as Brother Robby noted, I agreed with the conclusion, but if the process doesn’t have integrity, then the message that it is sent to the world, especially the precious young students -- and we talked about this on the phone, right? Remember, Brother Robby? -- I said, “This is the message we’re sendin’ to the students. All you got to do is just present some kinda power and might and you undercut somethin’ that just two years ago you argued on a rational round, you couldn’t do.” Let’s have a rational deliberative process beginning with faculty and students. We love Brother Chris. I’m not puttin’ Brother Chris down, the president of Princeton. He’s a good person. We go back and forth with him, but people get caught. People get caught.

 

We have some other examples. Well, I won’t go into it now. It can’t just be a matter of power. If it’s all reduced to power, then the weak and the vulnerable are going to get crushed. If it’s just a matter of power, then we’re selling our souls for the highest bidder with the most power. And believe me, those kinda chickens come home to roost. You gonna reap what you sow if you think that somehow you can follow Thrasymachus and end up in the Socratic zone. That’s like thinkin’ you can hang out with Pontius Pilate and end up bein’ a follower of a Palestinian dude named Jesus, or you’re part of Pharaoh’s camp and think that somehow you a close partner of Moses. No. You gotta get your categories right. These are spiritual and moral ways of engaging the world. It’s not just about money, money, status, status, power, power, casting aside the Ten Commandments and obsessed with the eleventh commandment; thou shalt not get caught –- the survival of the slickest. No. That’s not the kinda world we wanna present to young folk, and it’s certainly not the kinda world we wanna live in.

 

Jennifer C. Braceras:  Unfortunately, though, it seems to me at least, that most people today on both the Left and the Right, aren’t necessarily interested in the dialogue or the search for truth. Most of them are only interested in power. How do we talk to those people, and if I’m right that those people are dominant in society today, particularly in politics and in the academy, what are we as a society or as citizens to do about that? Professor George.

 

Prof. Robert P. George:  Jennifer, when we finished our piece on honesty and courage, we submitted it to the Washington Post, which immediately rejected it. We submitted it to the Wall Street Journal, where I frequently have published op-eds. They almost immediately rejected it. We submitted it to the New York Times where they not only rejected it, but with a note saying, “We can’t understand what you’re trying to say here.”

 

Now, Cornel and I can be accused of many—we can justly be accused of many faults, but a lack of clarity in what we’re saying, a lack of clarity in what we believe? That’s not one we’re accustomed to hearing. Yet, I’m sure that the editors of the New York Times editorial page were telling the truth when they said they couldn’t understand what we were saying. But I would submit the problem is with them, not with us. It was not some objective lack of clarity. It’s just that the ideas are so alien because they are so locked into a certain mindset. They’re so cramped into a silo, unable to see anything beyond their own ideological predilections that something like our piece that tries to deal with things in a balanced, in a truly balanced way, not for the sake of moderation. Neither Cornel nor I are a moderate. He’s a progressive. I’m a conservative.

 

We’re not moderates, but we do try to present a balanced picture because that’s what the truth requires. It is not something they can understand. It’s not something they can see. They just want to know what’s the bottom line? What should the policy be? How do we do things so that our side wins?

 

I can assure you either of us can easily get pieces published or we can get a piece published together if we were ranting and raving about somebody. If we were condemning some politician or if we were denouncing something either from the Right, in my case, or from the Left in Cornel’s case. We don’t have any trouble getting our pieces accepted. But here was a piece that I think is probably the best thing we’ve done -- well, I rather like our 2017 statement as well on ...Truth Seeking, Democracy, and Freedom of Thought and Expression, but I think it’s a pretty darn good piece and something that really needed to be said. Yet, it only got published at all because there was an old-fashioned editor at the Boston Globe. Cornel happened to know her.

 

Jennifer C. Braceras:  Marjorie Pritchard.

 

Prof. Robert P. George:  [Crosstalk 39:16]

 

Prof. Cornel West:  Absolutely. That’s her. You’re right.

 

Jennifer C. Braceras:  She’s wonderful.

 

Prof. Cornel West:  She’s marvelous. Yes.

 

Prof. Robert P. George:  I don’t know her myself but judging from our interaction in relation to this piece, I picture her as a sort of Meg Greenfield figure. Remember Meg Greenfield from the Washington Post, the old-fashioned liberal in the true sense, in the sense of someone who’s open to ideas and really wants to get at the truth of things and wants all points of view to be represented and doesn’t want ranting and raving but wants genuine deep analysis. Well, we were just lucky she happened to be there. I don't know how long somebody like that will last at a place like that, but we’re lucky she happened to be there, and she was willing to publish the piece. But it got rejected everywhere else.

 

Jennifer C. Braceras:  Let’s talk about another line from the piece. You say, “We need the honesty and courage to recognize progress toward the ideal of equal justice.” But then you go on to say, “We also need the honesty and courage to recognize the blights on our history.” That’s somewhat related to the first point about how we examine heroes in our country, but it's a little broader and I think very relevant to the discussions we were having this past summer in light of the Black Lives Matter movement, which seems to not want to recognize progress where it’s been made and only talk about the sins of this country. This seems to be a repudiation of that. Is it?

 

Prof. Cornel West:  Yeah. It depends on which voices in the movement. The Black Lives Matter movement is a particular moment in the longer tradition of the black freedom struggle. Any moment in the black freedom struggle you gonna have a variety of different views and viewpoints and so on. I think a number of my precious black brothers and sisters in the Black Lives Matter movement, would want to begin with Malcom X and say, “Well you don’t stab folk in the back nine inches, pull it out six inches, and celebrate the progress.” I think all of us should resonate with that because the suffering is still very real. Too many injustices are still being made. But because justice is bigger than all of us, just like truth is bigger than all of us, you still have to recognize the degree to which certain breakthroughs have been made. Certain kinda progress has been made.

 

It’s just a view that says, “We acknowledge the breakthroughs and the progress.” primarily because black folk, white folk, red folk, indigenous folk, right across the board, they have sacrificed, those who have been willing to exemplify in their own lives a certain concern about people being dominated, in this case black folk. You don’t ever want to deny the effects of that kind of struggle. You do have to acknowledge the progress that’s been made, but you don’t want anybody to use that progress as a way of downplaying the suffering that’s still in place, or the forms of domination that are still operating. In any movement, you’re gonna have a variety of different things said. You’re gonna have contestation, and so forth, and so on.

 

I think what Brother Robby and I are calling for more than anything else, is how do we exemplify the best of our human ability, which means we have to have a humility, an intellectual humility just like Socrates. We also have a moral tenacity. It’s like Jesus going into the temple in Jerusalem and running out the money changers. You don’t see that picture of Jesus on too many churches, but that was the cause of his crucifixion. He both had a certain kind of tenacity, in terms of a righteous indignation of the least of these being mistreated, but he also recognized Peter himself is not gonna come through in terms of acknowledging Him being the close friend when Peter denies Jesus three times. The humility means we’re all fallen. We’re all finite. We’re all fallible. That’s the connection to John Stuart Mill. That’s the connection of freedom of expression. That’s the connection to freedom of opinion. All of us are fallible and must learn how to listen.

 

We ought to be jazz like. You can’t be a jazz woman or a Blues man unless you find your voice, not just an echo, and lift every voice—here’s the anthem of black people, now lift every echo. You can’t be an extension of an echo chamber. No. You just concerned about power. You just want to adjust. You just want to accommodate. So often we end up with elites in both parties, well-adjusted to injustice, well adapted to indifference when it comes to the most vulnerable ones. They could be trans, gay, lesbian. They could be white working class. They could be the elderly of any color. They could be indigenous people. They could be black folk in the hood. Whatever it is, it could be Jews in Russia. It could be Palestinians in the West Bank. It could be Cashmerians under occupation. All forms of human suffering need to be targeted if we’re takin’ seriously the great revolution in the species which was the prophetic legacy of Jerusalem. To be human is to do justly, love mercy, pursue justice, and walk humbly with thy God. If you atheistic, walk humbly with forces bigger than you, but whatever form, hold off the self-righteousness, hold off the self-satisfaction.

 

Prof. Robert P. George:  The basic idea here is simple. You tell the truth. Tell the whole truth; good parts and bad parts. Tell nothing but the truth. It’s just a witness’ oath. Tell the truth, the whole truth, and nothing but the truth. The whole truth will be complicated because human beings are complicated.

 

Prof. Cornel West:  Absolutely.

 

Prof. Robert P. George:  Human beings are capable of great achievements of genuine greatness, but also of terrible evils. All of us fail. We’re not all Hitler, but all of us fall short. This is captured in the very first book of the Bible, right at the beginning, very first chapter of the very first book of the Bible, in Genesis. We’re taught that man is made from the dust of the Earth. Now, that’s pretty humbling, from the dust of the Earth, so we shouldn’t get too caught up in praising ourselves. But on the other hand, this mere dust of the Earth, this basically worthless stuff, nothing, made in the very image and likeness of God, of the most profound value and importance, capable of the greatest achievements and things. That’s really what we’re after here. Tell the story in all its complexity.

 

The trouble is people want to tell the part of the story that is helpful to their ideological agenda. This is the temptation human beings have. They want to emphasize that part of the story and leave the rest out. Very often, of course, even in telling that part of the story, they spin it and manipulate it for the maximum effect toward achieving their goal. It’s very hard, it takes a lot of self-discipline to avoid doing that because we all fall into the temptation to do that. When we have an objective, we might consider it a profoundly just cause. It may be a profoundly just cause. We’re tempted because of our belief in the cause to shade and to trim and to dissemble and to prevaricate and too often even to lie in order to achieve that cause. We think -- we’re tempted to think in any event, that the end justifies the means, but it doesn’t. The only way forward, the only way that makes any sense, the only way that will not in the end bring about our own destruction is truth, honesty, and courage, and having the courage to be honest, to tell the truth, the whole truth, and nothing but the truth.

 

Now, of course, the truth is not always obvious. Some truths are pretty clear, and we need to have the courage to face up to them. Others are complex. Look at the complex problem of vulnerable people today, whether it’s minorities in inner cities, in run down areas, whether it is people in white working-class communities, whether it’s what Charles Murray was looking at when he was talking about Belmont and Fishtown. You’re seeing some terrible social situations, social pathologies, delinquency, drug abuse, domestic violence, crime, incarceration; vicious cycle. Now, how do we address that? That’s a very complicated question. And we have to be willing. We have to have the courage to tell the whole truth and to wrestle with the truth because it’s not completely clear. Reasonable people can disagree about various dimensions of the problem.

 

To what extent is the problem a problem of economics? That’s got to be addressed. To what extent is the problem, especially in inner cities, mass incarceration? What can be done about that? What’s the cause of that? To what extent is the problem, whether we’re talking about minority inner cities or whether we’re talking about white working-class communities in Appalachia or elsewhere, what part is a family structure problem? What part is a moral problem? To what extent are we here reaping the whirlwind of the sexual revolution and the sexual anarchy, out of wedlock childbearing, children growing up without fathers? We have to be able to confront all of those questions in all of their complexity and not to imagine that there’s one single thing that we can focus on to the exclusion of everything else and understand the problem correctly that way.

 

We certainly shouldn’t trim or hide or dissemble in order to shift the emphasis from a part of the problem that we don’t want to fess up to and depict it as something else that’s more convenient for us ideologically. So just -- I’ll be clearer about it. I’ll be blunter. I’ll have the courage to be a little more blunt about this. The economic dimensions of the problem and the questions of incarceration are questions conservatives have to face. The family structure and moral dimensions of the problem — the out of wedlock childbearing, children growing up without fathers — those are questions progressives have to face. I think the two sides do the country and our society, no good service when they refuse to address those questions, or they stigmatize people who do want to address those questions.

 

Prof. Cornel West:  Absolutely. Can I just drop in, Sister Jennifer?

 

Jennifer C. Braceras:  Yes, of course.

 

Prof. Cornel West:  See, one of the things that Brother Robby and I try to do with our students, is to take serious the claim of the great Friedrich Nietzsche when he says, “It’s not just a matter of having the courage of one’s convictions. One must have the courage to critically examine one’s own convictions,” so that you do want to speak the truth. “The commensurate truth is to allow suffering to speak,” in part, but it’s speaking the truth, not just to the powerful, and we must speak truth to the powerful, there’s no doubt about it; too much greed, too much contempt, too much arrogance, too much condescension up there, but we must speak truth to the relatively powerless because the truth is somethin’ that cuts across skin pigmentation, gender, sexual orientation, national identity, and so forth.

 

      When you speak that truth, it means that you’re unsettling yourself, you’re examining your own thoughts and soul and character. At the same time you’re keeping track of those structures of domination, you’re keeping track of those institutions. It's never just gonna be a matter of one side because the truth is more than Janus-faced. It’s got a whole host of different faces. Anybody who has the courage to come to terms with the truth about themselves knows it’s gonna be a painful operation.

 

Prof. Robert P. George:  When we were drafting, I drafted the part in which we talk about the importance of speaking truth to power. I think I put in terms, if I recall, Cornell, of speaking truth to the economically, culturally, and politically powerful.

 

Prof. Cornel West:    Right. Right. Right.

 

Prof. Robert P. George:  Cornel then said, “But you’re leaving something out. We also need to speak truth to the relatively powerless.” This was Cornel’s insisting. And his point, as he explained it was, we can’t imagine that the powerless are only to be treated as victims and not as responsible agents.  And if the powerless are contributing to their own degradation, to the extent that they are part of the problem, we’ve got to speak truth to them, too. We can’t treat them as mascots or something like that. To me, it was a powerful and important insight. It came from Cornel, not from me.

 

Jennifer C. Braceras:  I think that leads us into this next line -- well, I’m skipping a few, but this important line in your piece where you say, “We need the honesty and courage to stand up — to stand alone, if necessary — to speak the truth as God gives us to see the truth, to the politically, economically, and culturally powerful, as well as to the relatively powerless.” That’s the section you’re talking about there.

 

Prof. Cornel West:  Absolutely. Absolutely. No, that’s it. That’s it.

 

Jennifer C. Braceras:  I think it’s also important that you mentioned -- you talk about the need to express dissent even against our own tribes. I think that’s something that’s become harder and harder, partially because of the segmented media landscape, but I think partly also because of COVID. In a COVID world, we associate only with our smallest clans or tribes, so to speak, and we’re not doing as much getting out and talking to people who think differently than us. We can’t, just by circumstance, by fate. I think that’s such an important point that you make, that we need to be able to express dissent even against our own tribes. How do you do that, Professor George? Is there a time in particular where you’ve dissented against the Right and maybe faced pushback for that?

 

Prof. Robert P. George:  Oh, yeah. This has happened to me many times. I am a conservative. As I said, I’m not a centrist or a moderate or anything like that any more than Cornel is. He’s a progressive. But there have been points on which I’ve disagreed with the tribe. One example was the immigration policy that was called the Zero Tolerance Policy, which was exacerbating the problem of family separation. There was a problem, it’s true, with children being separated from parents under the Obama administration. But what wasn’t true and what was proposed as true by many in my tribe, was that nothing had changed or gotten worse under the new policy, under the Trump policy. In fact, it had and fortunately that policy was then reversed, but it needed to be reversed. Before it was reversed, there was this circling of the wagons around the policy because it was our tribe’s policy. It was a bad policy. It was an unjust policy. It was a misguided policy, and so I criticized it. Cornel’s done the same thing on his side.

 

Let me use this opportunity, Jennifer, to talk about a particular kind of pressure that people today feel when it comes to the tribal allegiance issue. People are made to feel they’re under pressure to demonize people on the other side. That demonization has itself become a kind of loyalty test. On the progressive side, unless you’re demonizing the deplorables, the Trumpians, the people who cast 70 million votes for Trump, well, you’re not a loyal team player. And it works in the other direction as well. Unless you’re demonizing the elites, you’re not a loyal team player. That’s a very bad thing. People, especially people who are in the public square and are in a position to influence by their example as well as by their teaching how people behave, need to stand up against that.

 

We need to recognize that these are our fellow citizens. We may disagree with them. We may profoundly disagree with them. We may profoundly disagree with them about profoundly important issues, but they are our fellow citizens and we owe them respect and we mustn’t demonize them in the way that they have been demonized.

 

People on the progressive side are sometimes fearful that if they even have a friendship with somebody who is a supporter of Trump, that that will cause them to be excommunicated from the tribe. Cornel, again, is an example of someone who’s stood up against that. Our local dry cleaning shop owner is a devout and enthusiastic Trumpian, and he’s a good friend of Cornel West, and the two of them go at each other and they argue about those things. But Cornel’s not afraid to embrace this man as a friend, even though he profoundly disagrees with him. In doing that, I think Cornel sets a wonderful example. But he does it at a cost because a lot of people think, “Okay. Well, if you’re willing to reach out that way to somebody who we regard as evil, then you’re not really a loyal member of the group.”

 

Jennifer C. Braceras:  Yeah. I want to pursue that a little bit more. Actually, last Friday I had an opportunity to discuss the election on our local NPR, our local public radio station. I was on with a Boston Globe columnist, and I was representing the conservative perspective. She was representing the liberal perspective. The topic was how do we come together as a nation? How do we talk to each other across the ideological divide? I said, “Look, 71 million people voted for Donald Trump. This is not a lunatic fringe. These are our neighbors, our colleagues, or relatives, and our friends, and the Left needs to accept that.” The response of this columnist was, “Not my friends. Not my relatives.” Then she went on to say that she finds it impossible to open a dialogue with people who “deny my humanity”, was how she put it. What I want to ask you, Professor West, is, how is it possible to have a productive conversation on sensitive topics, such as race, gender, all sorts of things, when some people start from the premise that fully half of this country denies the other half’s humanity?

 

Prof. Cornel West:  Well, I mean, part of the problem is we’ve got to situate it and contextualize it right. When I was in Charlottesville with some very, very sick neo-Nazi brothers and the Klan with some sick white brothers, we had conversations in Charlottesville before the engagement. The irony was they were listenin’ to Motown black music anyway, so we already had somethin’ in common. You can find something in common with fellow human beings if you look hard enough. The problem is is that we don’t have spaces that provide enough incentive for people to linger and want to engage in that way. What happens is you end up being unable to engage almost anybody after a while because if somebody says they don’t have one relative who voted for Trump, I don’t believe that. You gonna tell me outta all the Thanksgivin’ dinners that’s gonna take place next week, that there’s not some Trumpite in the same room eatin’ turkey or whatever you eat with pro-Biden and Harris people? I don’t believe that at all.

 

For me, I think we have to be true to our calling. This is the key, true to your vocation the way Weber understood it. That means then that you’re not after the truth and justice in the name of popularity, but it’s integrity. If I’m critically supportin’ Barak Obama, and he assassinates an American citizen without due process, that is an imperial presidency. That is a challenge to the rule of law. That is as much a challenge of the rule of law as Wall Street crimes, insider trading, or as much as somebody on the street engaged in various kinds of mistreatment of persons and violating the law.

 

We have to have what Jane Austen called constancy across the board. That constancy is one that is so vigilant that you will find something with that person that will connect you. It could be music, could be sports. It could be talkin’ ‘bout their parents. It could be talkin’ ‘bout their children. There’s a whole host of thing that could get you into a conversation before you get into the real deep disagreements, as it were, when it comes to politics.

 

Brother Robby is right. See, Robby has his critique of Brother Donald Trump. I call him a brother because I believe every human being made in the image of God is a brother or sister, or is they’re non-binary, I love ‘em anyway. That’s what it is to try to be a Christian. I also know that I was a gangsta before I met Jesus, now I’m a redeemed sinner with gangsta proclivities, so when I call somebody a gangster, I’m talkin’ ‘bout the gangster in me. I’m talkin’ ‘bout the evil proclivities in me. I’m talkin’ ‘bout the civil war taking place on the battlefield of my own soul every day. That’s true of Brother Trump, too. He just makes different kind of choices. He has no shame. He has no regret. He’s not winning that battle in the way in which I would like him to win, but he can change. He can go another way. That’s what it is to have a certain attitude toward everybody being on the human continuum no matter what their politics or no matter what their ideology is.

 

Now, that doesn’t mean he’s not my foe. Of course he’s my foe. I got people tryin’ to kill me. They are my foes. They make it very clear, but they’re still my brothers and sisters who are just twisted and sick and can’t see clearly and can’t feel deep enough, and therefore, act cowardly. We all have capacities like that as human beings. If we don’t have that kind of conception of what it is to be human, then I think we begin to, again, undercut any of the spiritual and moral preconditions of creating a democratic regime, and we end up not just polarized, but gangsterized. When you get a wholesale gangsterized society, you got Thrasymachus and the Grand Inquisitor ruling things, and those holding on for something greater than just power getting done in.

 

Prof. Robert P. George:  Cornel, I think Jennifer’s point, though, is that — if I’ve understood you, Jennifer. Don’t let me put words in your mouth — is that 71 million of our fellow citizens are not twisted neo-Nazis.

 

Prof. Cornel West:  Oh, no. Not at all. Some of those folk voted for Obama. Some of ‘em voted for my dear brother Bernie Sanders. People are complicated folk. He’s got a slice who are xenophobic, no doubt about that. I mean, let’s be honest, Biden’s got a slice of some folk that I’m not crazy about either. As you know, I’m no big fan of Biden nor Sister Harris in terms of their connection to Wall Street and Pentagon militarism and not enough concerned about rights and liberties too often, especially around the world. The important thing is that you can’t in any way view a community in a monolithic, homogeneous way. It’s the same complexity that, Brother Robby, you were talkin’ ‘bout before, within a human soul, let alone within a larger group.

 

Prof. Robert P. George:  Absolutely.

 

Prof. Cornel West:  And for me, the common denominator, and I think this partly accounts for the success of The Federalist Society since 1982, I’ve been battlin’ you all on a lot of issues. We won’t go into that right now. There is such a contempt for the smugness and the hypocrisy and the self-righteousness of neo-liberal elites, not just in Washington, but The Times, The Post, Harvard, Yale, Berkeley, Chicago. And why is that? Because too many of them are smug, arrogant, livin’ in their own silos, looking down on other brothers and sisters callin’ them deplorables. What gives anybody the right to call someone deplorable? If I’m not callin’ a neo-Nazi deplorable, you think Sister Hillary’s got a right to call conservatives deplorables? No. That’s part of the narrowness. That’s part of the myopia. That’s part of the groupthink and that’s the worst thing in the shaping of a soul — we’re not even talkin’ ‘bout politics — the shaping of a soul in that regard. No. I’m sorry. Go on.

 

Jennifer C. Braceras:  No. No. I think what some people would say, even when talking with an individual with whom they disagree, is they would say, “Well, look. Maybe you don’t think Donald Trump’s -- maybe you’re not a racist. Maybe you’re personally not a racist, but if you voted for Trump, that means racism isn’t a dealbreaker for you.” That’s been the catch phrase that I’ve heard a lot of people on the Left use. That, I think, puts people off because how could it be that racism isn’t a dealbreaker for 71 million people. That just isn’t truth.

 

Prof. Cornel West:  That’s a serious claim, though. I think it’s not just a matter of being a racist. I think he’s got deep neo-Fascist sensibilities in terms of his gangster orientation. So you say to yourself, “If you’re voting for somebody who could call into question the very conditions for the possibility of American democracy, the conversation must go on.” but it’s gonna be an intense one because many of us love this American democracy. We don’t want to see the conditions of the possibility of it called into question. They would say, “No. That’s not what I’m voting for.” Then let’s argue and see what are your reasons?

 

Jennifer C. Braceras:  Right. Right.

 

Prof. Cornel West:  See what I mean? Let’s see what the evidence says. Let’s see what kind of argument you have.

 

Jennifer C. Braceras:  Of course, but sometimes those statements, “Racism obviously isn’t a dealbreaker to you.” are intended to shut down conversations --

 

Prof. Cornel West:  Well, yeah. That’s the truth.

 

Jennifer C. Braceras:  -- rather than to open up conversation.

 

Prof. Cornel West:  That’s right. That’s right.

 

Prof. Robert P. George:  That’s exactly right. Jennifer, you quoted that line from your colleague on the phone the other day in that intense conversation you were having where she said, “I’m not friends with people who deny my humanity.” Well, what she was trying to do there was shut down the conversation.

 

Jennifer C. Braceras:  Right.

 

Prof. Robert P. George:  Accusing other people of denying your humanity when they disagree with you about deep moral questions, is the secular progressive equivalent of, “The Bible says.” So if some fundamentalist preacher you’re tryin’ to have a conversation with says, “Well, you’re wrong because the Bible says,” that conversation is now at an end because he’s essentially terminated the conversation with that approach to things. There’s nothing else to talk about. He thinks that the Bible’s authoritative. He thinks he’s the authoritative interpreter of the Bible. “The Bible says”, conversation over. The same thing with “You’re denying our humanity.”

 

We have to realize that we live in circumstances of deep pluralism, religious pluralism, moral pluralism, moral pluralism that cuts across religious divides so that conservative Catholics, Protestant, and Jews have a lot more in common with each other on moral questions than they have with their co-religionists. Just as progressive or liberal Protestants, Catholics, and Jews have more in common on moral questions with each other than with their conservative co-religionists.

 

Now, we have to recognize that having differences of opinion on those matters doesn’t mean that people on the other side are monsters. We have to believe, in principle, if they’re profoundly important moral questions, that they’re deeply misguided. I fear what’s going on on campuses is a much greater risk to the functioning of democracy, because our young people are being trained in a spirit of illiberalism, than anything that’s going on on either side in Washington D.C. just at the moment. If people are being taught or internalizing the idea that we can get rid of freedom of speech, we can get rid of freedom of thought, that we need to fall in line with an ideology in the name of some new quasi-religion, call it whatever you want to call it, anti-racism, call it wokeness, call it whatever you want, I think that’s a very grave danger, but I’ve got to be in conversation with them. I can’t simply dismiss them and say, “Well, they’re monsters, and I can just have nothing to do with them.”

 

Jennifer C. Braceras:  Okay. I see that there are some people who have been very patiently waiting to try to ask questions to you two. I see that James Gilmore is in line to ask a question. James, could you unmute your microphone and feel free to ask your question.

 

James Gilmore:  Okay. This is Jim Gilmore. I am the ambassador to the OSCE in Vienna, Austria. I’m acquainted with Robby George. I have not yet met Cornel West, but I’m looking forward to that day. I want to follow up on some of the comments were made by Cornel West and, actually by all three of you, really. That is this new media society that we live in. It’s so much more powerful than anything we’ve ever seen before. The big newspapers, the big radio, TV, cable shows, the rest of it. I was struck by your story where you said that you submitted to the Washington Post and to the New York Times, and to the other journals and they all rejected you out of hand. That actually is control of discourse. It’s actually control of discussion. It leads to the question of do we live in a society where we have mind control now because there’s no ability, really, to communicate?

 

I want to follow up on your comment of this pretentiousness of certain people that don’t want another idea to be expressed. You create almost a sense of modern day, contemporary terrorism of thought in the society. I’ll stop by just making note of Jennifer’s comment that the other person said, “Well, I’m just not going to acknowledge anybody that doesn’t agree with my position.” She was really presuming that she had a moral rectitude greater and that the discussion simply was not worthy of any discourse.

 

I guess really, what my question is is when you have a First Amendment that guarantees the right of everybody to speak and the powerful people control all the ability to communicate, and they create an attitude of righteousness, as Cornel West was saying, don’t we live in a society today in the modern world, where we really don’t have anything except a serious mind control that prevents citizens from actually expressing themselves? Thank you.

 

Jennifer C. Braceras:  Professor West, would you like to address that?

 

Prof. Cornel West:  Well, no. I appreciate my dear Brother Ambassador raisin’ that question. I think it’s a crucial one. I think the good news is that with social media, you got a certain kinda democratizing of the means of communication. You find with the younger generation, they’ve just turned off. They don’t watch Fox News. They don’t watch CNN. They don’t watch MSNBC. They get most of their information on social media. Now, social media itself could be polarized and gangsterized and so forth, but you do get a broader array, a plethora of perspectives than you get with the Right on the one hand, and then the neo-liberals or the conservatives on the one hand and neo-liberals on the other.

 

I do think, too, that I don’t want him to be discouraged. This term mind control, I think we have to be very, very careful because mind control is also something that’s a matter of the consent of the person whose mind is being controlled. If you’re a curious person, if you are infused with Socratic energy, you gonna hunt down the alternative views. Just because you’re exposed to this on television, doesn’t mean that’s the only thing you’re gonna be exposed to. You got a variety of different places you can go to make sure that your perplexity and curiosity and Socratic proclivities can be, in some way, enacted. That’s where freedom comes in. That’s where liberty comes in. That’s where self-respect comes in. In the end, for a significant number of us, that’s where our calling comes in. Nothing is gonna squelch our curiosity and our perplexity. Just as nothing is gonna get in the way of our love of truth, beauty, goodness, and neighbor, and as a Christian, enemy. Nothin’s gonna get in the way of my love of any of those. That’s a choice I make until my death.

 

Jennifer C. Braceras:  I think it’s interesting. I agree with Professor West about the democratizing nature of a social media. I think part of the problem is media today is both the problem and the solution, right? It’s the solution because it’s been completely democratized, and you can get any perspective and you can find out information on your own. You don’t have to trust the big networks or the big newspapers. You can dig deeper. But at the same time, because of its very nature, it lends itself to memes and slogans that don’t allow us to have conversations. People will put up slogans about one party or another or one policy position or another that are really just demeaning to the other side. I think that’s part of the problem where the dialogue breaks down.

 

Prof. Robert P. George:  If I could just say a word in response to my old friend, Ambassador and Governor Gilmore. I share the concern about the big social media platforms. I believe that the public and the Congress have been lied to by leaders, executives of the big tech firms who host those platforms. I think that there is room for political deliberation and possibly for legislative changes that will be helpful there. Although the broader problem, of course, is cultural. I agree that we’ve got a problem there, but I don’t think it’s the deepest problem as far as the minds, especially of our young people are concerned.

 

I want to put the focus on two other things. One, what’s happening in education, and not just in higher education. The groupthink that we find on our campuses and in our schools, the fear, the climate of fear and intolerance of competing points of view or criticisms of woke culture that you find in colleges and schools, is very alarming. People are not only suffering a loss of freedom of speech; their freedom of thought is being compromised. I fear that’s actually the goal in many cases. You shut down speech in order to get people to not think or even dare to think dissenting thoughts.

 

So I think something needs to be done, not so much by way of legislation, as by way of example, the sorts of things Cornel and I try to do. We need many, many more academics doing it; speaking out as we did in 2017 in the statement on truth seeking, democracy, and freedom of thought and expression against the groupthink, against the fear and intolerance, in favor of freedom of thought and freedom of speech. We need the exemplification of that by people who are in a position of influence.

 

Then secondly, I think we’ve got a big problem, Ambassador, when it coms to silos. People watching the media or listening to the media or being on the social media platforms that conform to their own opinions so that they’re constantly reinforced in what they already think. Increasingly it’s possible to avoid ever being confronted with an opinion that challenges yours whether you are on the Right or on the Left. You can only read the New York Times and the Washington Post and then only watch MSNBC or CNN and make sure that you’re Facebook friends are only people who agree with you as a person being on the progressive side. You can do the same thing on the conservative side. You only read the Wall Street Journal editorial page. You only watch Fox News. I guess now they’re shifting over to OAN and to Newsmax. You only have Facebook friends, you only allow Facebook friends who agree with you. Then we’re simply reinforcing each other in opinions that we already hold.

 

One of the great things about The Federalist Society from the very beginning is The Federalist Society has always encouraged at all its meetings, and its events, dissenting points of view. Progressives have always been well represented. We have one today right in this session. Right? Cornel’s here by invitation of The Federalist Society. The Federalist Society does a great service to its members and more broadly, by encouraging people to consider points of view that challenge the points of view of The Federalist Society, the majority of members in The Federalist Society. That should be the norm, and in fact, it’s quite rare. Try to think of other organizations that on any kind of regular basis do that. Try to think of media that really encourage dissenting voices against the editorial opinion. Increasingly, they are scarce. That’s a big problem.

 

Jennifer C. Braceras:  We have another question from a Michael Erchren. I’m sorry if I’m mispronouncing that. Michael, if you could unmute yourself and ask your question. Are you there Michael? It seems maybe he’s dropped off. Okay. How about Gene Meyer?

 

Gene Meyer:  Thanks. I had a question. Thanks both of you for doing this. I had a question. There have recently, particularly been attacks, for example, on some of the people who’ve supported Trump, or even some of the law firms that have supported Trump and saying, “Well, gee. We need to go after their advertisers. We need to stop these firms from doing this.” This is not unique. This is one specific example.

 

Now any society that’s going to work well has to have some things that are viewed as completely out of bounds. We’ve done a pretty good job of that with somebody who thinks that somebody’s inferior because of the color of their skin. No respectable person will say that and mostly won’t think it and will be hurt in their life if they go around saying that. There are certain number of views like that. What do we do about what seems to be an attempt to broaden that from something where really 99 percent of society says, “Yeah. That’s unthinkable,” to when you start trying to make unthinkable something that a significant portion of society says or thinks?

 

Prof. Robert P. George:  Well, it’s a challenge to get people on both sides to really understand that even on the most profound questions, the most important questions, reasonable people of good will, can and do disagree. Therefore, people should not be cancelled; all the techniques that are used to cancel people: getting them fired from their jobs, getting advertisers not to advertise on their networks, the use of pressure — this is what Cornel was referring to when he invoked Thrasymachus from Plato’s dialogue, The Republic. The effort to use sheer power, not persuasion, but sheer power to make sure that a certain opinion isn’t expressed at all. That’s a huge problem. We have to resist it.

 

People have to be able to get it through their heads that even their most cherished, deepest held, even their identity-forming beliefs, the beliefs that they regard as essential to their own humanity are legitimately on the table for criticism. Mine are, Cornel’s are, Jennifer’s are, Gene, yours are, everyone’s are. That’s what it means to have a Socratic spirit. We really do need that Socratic spirit. We need to be willing to put even our most deeply held, cherished beliefs on the table and subject them to criticism. We’ll defend them, defend them vigorously, give our reasons, make our arguments, but we don’t cancel the people who issue the challenges. Cornel, what do you think?

 

Prof. Cornel West:  I just tend to be pretty strongly libertarian on these issues. You know that, Brother Robby, just fighting for people’s right to be wrong. It could be Brother Rush Limbaugh. I agree with him about 2.3 percent of the time. That’s probably only when he’s talkin’ ‘bout sports, but I gotta fight for the brother’s right to be wrong because once you call into question somebody else’s liberty, next thing you know they comin’ to your house, especially if you’re in a vulnerable situation that I am, you know, the black man tryin’ to tell the truth about predatory capitalism, white supremacy, male supremacy, losing sight of humanity of anybody; Muslims, Arabs, Jews, whatever. The liberties are indivisible. Therefore, you have to defend the liberty of those who you have deep disagreements with.

 

What Brother Meyer is sayin’, once the society as a whole puts a stigma on some group and that stigma’s so broad that it includes 70 million of your fellow citizens, then you can rest assured that your democracy is about to slide down the slope to chaos because there’s no way you’re gonna have enough bonds of trust and sympathy, and human and humane connection to constitute a public life. You can’t have a democracy without a public life no matter how much money, no matter how many profits you make, and so forth. You got to have some vision of how we relate to each other as fallible human beings with all of our differences.

 

Any time you talk about any of our identities, political identity, racial identity, gender identity, sexual orientation identity, if it’s not rooted in moral integrity and solidarity across your tribe, then you’re reinforcing a chauvinism. You’re undercutting democratic possibility. That’s a moral and a spiritual challenge to each and every one of us in that regard. The firms, the people can know whether firms do X or Y, and so forth. They can have certain accountability in terms of we want to know their reasons. We want to know their arguments, and so forth. But you don’t go about trashing and demonizing in such a way that you preclude them being able to enter public space and give their views and perspectives.

 

Prof. Robert P. George:  Let me use an example, or invoke an example from history, modern history, not something centuries ago, something less than a century ago. This is the eugenics movement. My Princeton colleague, Thomas Leonard, has written a very powerful book, a historical study of the Progressive movement and eugenics. Progressive movement in the 19-teens and ‘20s and ‘30s embraced eugenics wholeheartedly. They regarded it as the way of the future. There were very, very few dissenters. The people associated with the higher echelons of culture, the corporate leadership, foundations, the mainline Protestant religious denominations, the great philanthropies, educational institutions, like Princeton. If you want to look at names on buildings, you’ll see some names of prominent eugenicists on buildings at colleges and universities.

 

Prof. Cornel West:  Harvard got in on it, too. Harvard got in on it, too.

 

Prof. Robert P. George:  Harvard as well. The effort was made to stigmatize anybody who didn’t go along with eugenics — Catholics for example, some evangelical Protestant Christians — to stigmatize these people as backward, anti-science, unscientific, retrograde, hicks, hillbillies, fools. Well, when we look back, who was right and who was wrong? People don’t want to fess up to where their predecessors in their movements were when it came to eugenics. They were deeply invested in it. They couldn’t see any possibility that they were wrong about this, and yet it turns out they were wrong.

 

There’s a lesson in that not just for progressives, but for all of us. We can be wrong about things that we’re pretty dead certain we’re right about. Eugenics should be in the front of our mind whenever anybody challenges us on an issue that we hold dear. Whether it’s related to race or whether it’s related to abortion or marriage or the family or anything else, we need to think about the experience with eugenics.

 

Prof. Cornel West:  That’s a great example.

 

Prof. Robert P. George:  Where did it lead to, where the powerful were, where the smart people were, where the people with PhD’s, the people with authority in the culture.  

 

Prof. Cornel West:  Absolutely. That same self-righteousness that’s blinding.

 

Prof. Robert P. George:  Yes.

 

Prof. Cornel West:  Splinter in the eye becomes the biggest magnifying glass. Check yourself. That itself is Biblical, as we know. That’s real, my brother.

 

Jennifer C. Braceras:  Okay. Sean Ross, do you have a question for the panel. If so, please unmute your microphone.

 

Sean Ross:  Hello, yes. I think Jennifer’s anecdote about the interlocuter saying that she’s denying her humanity, I think that’s very key. That’s happening writ large. Joe Biden said to 80 million Americans that President Trump was a racist, so that happened during the second debate. There’s a root, there’s something deeper there. There’s an underlying dynamic. I think Professor George frames it well when he talks about the missing thoroughgoing commitment to truth and to speaking carefully what is true. Here’s my concern. So if we all agree to speak what is true, I think we’re all mostly, going to still disagree because we all think that we’re speaking what is true already.

 

Prof. Robert P. George:  Sure.

 

Sean Ross:  So what about this as -- and saw the last time you did this. What I picked up on was that you both, Professor West, Professor George, both seem to be, not big fans of deconstructionism, which I think it critical. Going down to the next level, the next root, why do we disagree on what is true? Isn’t it because we disagree on how to think? Isn’t the enemy deconstructionism? Isn’t the problem that people reject, a lot of people nowadays, reject semantic meaning and predicate logic? To Professor West’s idea, I think of Jesus Christ overturning the tables in the temple a lot in these times. Do we need to identify very -- we want to all be nice and diplomatic, but don’t we also need to identify very carefully that it is the deconstructionists who need to be extricated?

 

Jennifer C. Braceras:  Professor West, what do you think?

 

Prof. Cornel West:  Mm. No, it’s a wonderful question. Part of it hangs on what one means by deconstruction. Derrida has his version. Deleuze has their version. If, for me, anything that forecloses the exercise of empathy, the try to get in the shoes and walk a mile in the shoes of the person that you’re talking to, you’re tryin’ to get inside of their world. Why are they saying what they’re saying? What kinda hurts, insecurities, fears, anxieties lead them to have the lens through which they look at the world, and I want them to have that with me. I want them to try to get inside of my world and why I’m looking at the world this way. The deconstruction -- I won’t say trumps, we can’t use that word no more -- if deconstruction forecloses empathy, then you’re not gonna have a basis of any genuine communication and argument and encounter and interaction.

 

I agree with my brother, if he means by deconstruction, this sophomoric relativism that has no interest in getting inside of the skin of somebody else and therefore one goes one’s own way of self-righteous mode, that is the culprit. Absolutely. That is to be called into question. The only reason why Jesus did what he did, in part, we don’t know fully, it’s always a mystery, was because these poor folk, their humanity had been rendered invisible. He said, “You’ve turned my house, the house of prayer, into a den of...” what? Thieves. The greed has taken over any talk about liberty. He knew “Liberty for the wolves is death for the lambs.” He’s lookin’ for love, He’s lookin’ for compassion, lookin’ for empathy. The use of imagination and then say, “Ah, now I know why we disagree. We haven’t reached an agreement, but at least I understand why we disagree.” That’s a step forward to me.

 

Prof. Robert P. George:  Let me offer perspective on this as well. The Socratic attitude that Cornel and I both believe needs to suffuse, not only the education system, but our practice of republican democracy, is undermined when people come no longer to believe that there is any truth. If there’s no possibility of truth, we’ve eliminated a condition of truth-seeking. We’ve eliminated a condition of the Socratic spirit. Certainly, those who are deniers of the very possibility of truth, are our adversaries. Yet, we don’t want to shut them down. They, too, are entitled to liberty of thought and expression. We need to engage them. We need to win the argument about the possibility of truth to establish the foundations and the conditions for the Socratic spirit that we’re interested in. There’s a point on which we agree.

 

The other point I would make is, to agree that there is a truth, of course, is not to agree on what the truth is, except on the question of whether there is a truth. There are two reasons, broadly speaking, why we have disagreement about important moral issues, why reasonable people of good will have disagreement about profound moral issues. One is that some such issues are intrinsically difficult. There is no automatic, easy, SAT question/answer, you check the right box to the question. These are questions that have been argued about by the greatest minds going all the way back to Athens and Jerusalem and what we argue about in the future.

 

The second category is the more interesting one. This is the category where the truth is not necessarily intrinsically all that difficult to know, but in the cultural circumstances that people find themselves in concretely, the truth is obscured in various ways. Institutions are built, understandings are in place that obscure for ordinary people, or most people, the truth. Only the visionaries can see past the obscurities, past what’s obscuring the truth. This, I think, accounts for why virtuous people could have embraced -- that George Washington, for example, could have embraced something as evil as slavery, even as a quote “necessary evil” even hoping that it would be on the road to extinction. How could a virtuous person like Washington own slaves? It’s not that the evil of slave owning is intrinsically difficult to see, although if you look at history, you find slave owning in most cultures, it’s that the social conditions: economic, political, cultural, and so forth, obscured what should be true.

 

Now, once those factors that obscure the truth are out of the way, then it’s all of the sudden easy to see. Why today, is it so easy for people to see that slavery’s wrong? Is it because people became intrinsically more virtuous in the past 150 or 200 years? Is it because we’re morally superior? Plant us back in 1830, we’d be no different from the people back then because we’re not more virtuous. We’re not more intelligent. We’re not better than they are. We would be subject to the same conditions. It would be just a few visionaries who would be seeing past them.

 

We have to be critical of the conditions. We have to figure out what might be blocking us from seeing and embracing truths that shouldn’t be all that difficult to understand, but which we are being blocked from seeing. That requires a self-critical spirit. If you’re got a position on an issue, you should be thinking, “Now, why do some reasonable people of good will disagree? Is it possible that they’re right about this? Is it possible that because of my cultural circumstances or political tribe or the conditions in which I live and think or the way I’ve been brought up to think, I’m not seeing something? You need to engage.

 

Prof. Cornel West:  And this is, again, the issue of seeing. When Shelley says, “Poets are the unacknowledged legislators of the world,” he’s not talkin’ ‘about versifiers, he’s talkin’ ‘bout those human beings who have empathy and teach us to see more deeply and more broadly so we broaden our imagination, right? How come women can’t go to Harvard until just a few decades ago? They didn’t empathize with our sisters of all colors, get inside of their skin and recognize, not just the suffering. They’re not just victims, they got all this genius. They got all this talent. Unleash it. How could they have children working in workplaces at seven years old, just to make profits? No. They didn’t get inside of the children. Thank God for Charles Dickens. Almost every novel, “Let me get inside of this child and you gonna all the sudden have an empathy you didn’t have before.”

 

You see what I mean? That’s what Shelley has in mind. That’s precisely the role of each and every one of us. Brother Robby and I do it in our own humble, fallible way, but we have a good time doin’ it. We have joy in doin’ it. We have a smile on our face even as we disagree. Why? Because we know all of us need to see more broadly, feel more deeply, act more courageously before the worms get our bodies. That’s part of what it is to be a human bein’ at the highest level.

 

Jennifer C. Braceras:  Thank you.

 

Prof. Robert P. George:  I -- oh, go ahead.

 

Jennifer C. Braceras:  Sorry. I hate to end this discussion because I could listen to the two of you talk for hours. I have so many more questions I want to ask, but I think we’re at the end of our time here. I would like to commend to the audience that they look up your brief piece in the Boston Globe on honesty and courage if you just Google “Boston Globe honesty and courage” it should come right up, and encourage everybody to think deeply about what professors George and West have asked us to do. With that, again, thank you everyone for joining us. I want to remind you that they next Convention event is a discussion on “Law, Social Justice, Wokeness, and the Protests: Where Do We Go from Here?” That will begin at 12:45 P. M. Eastern. Hopefully, you can join us for that and enjoy the rest of the Convention week. Thanks, everybody.

 

Prof. Robert P. George:  Thank you, Jennifer.

 

Prof. Cornel West:  Thank you, Sister Jennifer. Wonderful.

 

 

 

 

12:45 p.m. - 2:15 p.m.
Showcase Panel I: Law, Social Justice, Wokeness and the Protests: Where Do We Go From Here?

2020 National Lawyers Convention

Topics: Politics • Civil Rights • Criminal Law & Procedure • Culture
Zoom Webinar

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On November 12, 2020, the Federalist Society hosted a virtual panel for the 2020 National Lawyers Convention. The panel covered "Law, Social Justice, Wokeness, and Protests: Where Do We Go From Here?".

Historically, the rule of law and the concept of justice it represents supply two key roots of the American experiment. Some think the ideology underlying many of the recent protests challenges this experiment at its core and that its concept of justice arguably differs from that of our Framers. Indeed for some social justice advocates the concepts of the rule of law, justice, reason and discussion all are suspect at best and tools of oppression at worst. Are the protesters who hold this ideology reform minded or revolutionary? Do the critics of this movement underestimate the powerful currents behind the protests? What are possible or desirable responses to this challenge?

Featuring:

  • Prof. Randy E. Barnett, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center 
  • Prof. Randall Kennedy, Michael R. Klein Professor of Law, Harvard Law School
  • Mr. Eugene B. Meyer, President and CEO, The Federalist Society (representing Prof. John O. McGinnis)
  • Prof. John O. McGinnis, George C. Dix Professor of Constitutional Law, Northwestern Pritzker School of Law
  • Prof. Nadine Strossen, John Marshall Harlan II Professor of Law Emerita, New York Law School; Former President, American Civil Liberties Union
  • Moderator: Hon. Kenneth K. Lee, United States Court of Appeals, Ninth Circuit

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

Event Transcript

Hon. Kenneth Lee:  Good morning, or good afternoon, wherever you may be. My name is Ken Lee, and I sit on the U.S. Court of Appeals for the Ninth Circuit. And I will be moderating the first showcase panel, “Law, Social Justice, Wokeness and the Protests: Where Do We Go From Here?” This is obviously a very timely topic, and today we are privileged to have a rock star panel. I’d like to say that this panel is like the law professor version of a Guns N’ Roses reunion, except that people here will actually start the show on time.

 

      I don’t want our panelists to feel too old, but I will say that I actually grew up reading their works. When I was in college and law school in the ‘90s, I read their articles and their books. They actually weren’t assigned in classes, but I heard about them and people told me to read them, so I read them, and I learned a lot from them. So I’m honored to moderate this panel.

 

      I will introduce our panelists by alphabetical order. First, we have Professor Randy Barnett. He is the Patrick Hotung Professor of Con Law at Georgetown and Director of the Georgetown Center for the Constitution. For those libertarians watching out there, Professor Barnett is very well known. He’s the Axl Rose of the libertarian movement, and I say that in the best way possible. He’s been involved in key Commerce Clause cases ranging from Gonzales v. Raich, the medical marijuana case, to more recently NFIB v. Sebelius, the Affordable Care Act case.

 

      Next, we have Professor Randall Kennedy. He is the Michael R. Klein Professor of Law at Harvard Law School. He is a prolific author who’s written for both scholarly and lay audiences. His book, Race, Crime, and the Law won the 1998 Robert F. Kennedy Book Award. And I can say it’s one of these books that will open your eyes and challenge your assumptions, no matter what your views may be.

 

      We also have Professor John McGinnis. He is the George C. Dix Professor in Con Law at Northwestern Law School. He was the Deputy AAG in the Office of Legal Counsel under President Reagan and President Bush, 41. Unfortunately, due to an emergency, he couldn’t make it today. But fortunate for us, Eugene Meyer is here, and he will read Professor McGinnis’s remarks.

 

      Finally, we have Professor Nadine Strossen. She is the John Marshall Harlan II Professor of Law, Emerita, at New York Law School. She was previously the President of the ACLU for almost two decades, and she is one of the preeminent defenders of free speech and the First Amendment. Her book, Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights, was named as a notable book by The New York Times. So before we even start the panel, we’ve already had our share of sex, drugs, and rock and roll.

 

      I want to first start off with Professor Randall Kennedy, and I’ll just pose a question for him to answer and then have his presentation. I think everyone has seen the disturbing video of George Floyd, and that was obviously the immediate impetus for the protest and the social movement. My question to you is, is there something broader that has caused this social movement and the protests, and if so, is the movement an appropriate reaction to that or an excessive reaction?

 

Prof. Randall Kennedy:  Judge Lee, thank you very much. And I’d like to thank all who have participated in making this forum available to all of us and issuing the invitation to me. As you indicated, Judge Lee, the immediate cause of the protest of the summer and the ongoing protest was a vivid illustration of police violence against the citizenry. And of course, the episode that was most notorious, the killing of George Floyd, was not exceptional. The fact of the matter is that it was part of an all too familiar pattern of police misconduct, a pattern that has been inadequately addressed by the legal system.

 

      You asked me whether there was more to it than that. Yes, indeed, there’s more to it than that. Behind this problem of policing is the fact that we still live in a society in which, along every index of social life, people of color get the short end of the stick. I don’t care if we’re talking about educational resources. I don’t care if we’re talking about access to medicine. I don’t care if we’re talking about risk of incarceration. I don’t care if we’re talking about risk of victimization by criminals.

 

      We still live in a society that’s basically a pigmentocracy. We live in a society in which there is a clear racial hierarchy, and many people of various racial backgrounds are standing up and are saying that they’re tired of it, and they want that done away with. They want some important reforms.

 

      Now, the protest took many forms. There were marches. There were digitals. There were petitions. It took many forms. And most of the protest was peaceful. Most of the protest was, as far as I’m concerned, very admirable. Again, you had people from all walks of life in every region of the United States, all ages, all complexions, standing as one, saying that that’s right, black lives do matter, and they want a polity in which the agents of law and order handle everybody with respect and handle everybody equally.

 

      Now, were there problems with some of the protests? Yes. There was some violence. Sometimes there was more than just a little bit of violence. Sometimes there was a lot of violence. Was there some criminality mixed in? Yes, there was. Should this be criticized? Yes, it should be criticized. And there were many people in the protest movement who criticized the arson and the looting because they knew that these things would be used against the protest movement. They did not want to see their protest movement besmirched by people acting in an undisciplined, indeed, criminal way.

 

      And there were plenty of people who were friends of the protest — and I include myself among that group — friends of the protest who criticized violence, criticized looting, criticized arson. But the dysfunctional aspects of the protest, the degradation of the protest, should not be used to besmirch the protest movement in general because the protest movement in general, it seems to me, was quite good.

 

      Final two points. One -- or point four for me. I’m speaking at a Federalist Society meeting, and I have to say that I was disappointed by the paucity of voices from the conservative side that spoke up against the abuse of the citizenry by police. I was disappointed by the paucity of voices that spoke up against the culture of impunity that so often allows police officers to engage in misconduct of various sorts, including racist misconduct, and not be accountable for it. I was disappointed in the paucity of conservative voices that I heard speaking up against governmental encroachment on freedom of expression and liberty of the press.

 

      Finally, in our session here, the question is, where do we go from here? I hope where we go from here is an embrace of certain principles, actually, that The Federalist Society has put forth as part of its mission. So when I speak at Federalist Society meetings at Harvard, the president of the Harvard student Federalist Society group always begins by setting forth principles of The Federalist Society, and one of them is limited government. Good. Transparency in government. Good. We always have to be attentive to the problem of corruption and abuse by government officials. Good. All of those, excellent. There is no place in American life where those ideas can be put to better use than with respect to the administration of criminal justice, particularly the imperative need to put the police under more spotlight, to put the police under more effective regulation.

     

      Thank you very much. I look forward to our discussion. Professor Strossen?

 

Prof. Nadine Strossen:  Thank you so much, Randy. I echo so much of what you said. And as we have been reminiscing, about 30 years ago, we both shared the podium at another Federalist Society National Lawyers Convention. For me, I’ve been honored and pleased to speak at so many of these conventions. It’s become like a fall tradition. And I, in turn, have a tradition, which is starting by reminding you of your founding principles. To quote from the website, which I revisited this morning, The Federalist Society is founded on the principles, and the very first one that it listed is the State exists to preserve freedom. Sounds like it comes straight from the ACLU playbook.

 

      And I have to share the anecdote, as I also regularly do, that in 1995, I was on a panel for a Federalist Society event with one of your founding fathers, Irving Kristol, and he was horrified that that was a founding principle. And I’ve written down what his words were. He said, “I am shocked to discover that The Federalist Society seems to have said somewhere that the State exists to preserve freedom. The Federalist Society should call a meeting immediately and change that.”

 

      So that was in 1995, and every time I speak at a Federalist Society event, I go to the website to make sure you have not changed that principle. And indeed, I was happy to see that you had not, and you continue to repeat and endorse the principles of freedom, limited government, and robust open discourse.

 

      I also saw on your website the “About Us” section, which I visited this morning, includes a couple dozen testimonials from very ideologically diverse leaders, including people holding very important titles, including United States President, Vice President, Supreme Court Justice and Attorney General. But I also noticed that of all of these endorsers, there is only one who is quoted not once, but twice. And it happens to be somebody named Nadine Strossen.

 

      So with all seriousness and sincere great respect, this year, above others, I’m especially grateful for the platform of this important convention and this influential organization because I want to follow in Randy’s footsteps in urging you, Federalist Society leaders and members, conservatives and libertarians, to do what I and other liberals have been trying to do, which is to speak out against any attack on individual freedom, the rule of law, other forms of illiberalism, whenever and wherever we see it, especially when it comes from our ideological allies.

 

      With that in mind, I’d like to quote an op-ed that came out today, written by Jonathan Zimmerman, who is a professor at University of Pennsylvania. And the headline is -- this one appeared in the Dallas Morning News, but I think it’s syndicated. The title is “Universities Listen to Biden.” And he is quoting from Joe Biden’s wonderful speech on Saturday where he said, “It is time to put away the harsh rhetoric, lower the temperature, see each other again, listen to each other again. Let this grim era of demonization in America begin to end here and now.”

 

      And I was so struck by his use of that word demonization because that is a term that was used both by conservative icon Robbie George and progressive icon Cornel West in the wonderful dialogue they had at your convention right before us. But people like Jon and I are depending on our conservative and libertarian colleagues in The Federalist Society to do what we have been doing, which is complaining when illiberalism flourishes among our ideological allies because Jon goes on to say -- and by the way, he does describe himself consistently as a liberal Democrat. He says, “Most people interpreted that statement by Biden as an attack on Donald Trump. But,” he says, “I heard it differently: as a critique of us. Instead of challenging Trump’s illiberal spirit, we imitated it.”

 

      And then he gives some sad examples that are bolstered by a consistent public opinion surveys about an air of illiberalism very prevalent on campuses as well as other sectors of our society of people feeling afraid to express their views on the most important issues, including the crucial issues that Randy flagged in his remarks. So I’m trying to do it especially when I find people with whom I share liberal policy goals are using illiberal means to advance those goals. And I wish that The Federalist Society would use your very important voice and influence to do likewise because what a difference it would make if every single one of us did that, evenhandedly and consistently.

 

      Now, I want to say, starting with the charge or the topic description that we were given for this panel, that I have a little bit of a bone to pick because I think it was written in such a way that suggested that the problems are coming only from the left or predominantly the left and from social justice advocates. For example, a key sentence says, “For some social justice advocates, the concepts of the rule of law, justice, reason, and discussion are all suspect at best and tools of oppression at worst.”

 

      Yes, that’s true, as Jon Zimmerman had said and as I have very often said myself. But we have to recognize that this is a problem that is coming from the conservative, from the right end of the spectrum as well. And it’s really important for those of us on either end to be especially brave in criticizing our ideological allies for two reasons. One is because we have more standing to persuade them, and second, because that gives us more credibility when we level the same constructive criticism against our ideological adversaries.

 

      So in that spirit, I signed the Harper’s letter this summer, which was quite controversial. I also wrote an essay about cancel culture, which is very critical of left-wing cancel culture which is going to be published by the American Council of Trustees and Alumni. And I want to give a shout-out to the person there who did the most work on it, Jonathan Pidluzny, who is a big fan of The Federalist Society and is probably attending this convention.

 

      I’d also like to, given the conservative orientation of FedSoc, like to cite a prominent conservative who made this critique about current conservatism, that there is too much illiberalism in it. I’m speaking about New York Times columnist Bret Stephens in a column he wrote on October 30 called “Goodbye Principled Conservatism.”

 

      He says, “What today’s debased conservatism now boils down to is anti-liberalism. But anti-liberalism is not conservatism. At its principled best, conservatives support liberal ends, namely, the right of the individual to enjoy the maximum degree of freedom compatible with the right of his neighbor to do the same,” again, right out of the FedSoc playbook, as we’ve seen. And Bret then goes on to say, “But principled conservativism holds that these liberal ends are best secured by conservative means, including the habit of a free mind. Anti-liberalism, by contrast, employs illiberal means, the delegitimization of people, laws, and norms that stand for the ideals of an open society.”

 

      And unfortunately, we’ve seen too many attacks on those ideals from liberals and conservatives alike. If you want chapter and verse and specific examples, I commend you to the website of FIRE, the Foundation for Individual Rights and Education, which is very good at keeping track of attacks on all ideas from conservatives and liberals alike.

 

      Yes, too many Antifa and other left-wing protesters have engaged in violence, but it’s also true that too many police officers and even members of the military have engaged in violence, not only against peaceful protesters, but also against journalists, legal observers, and medics. Yes, some campus diversity programs undermine intellectual freedom if they aim to inculcate certain ideas about antiracism and white privilege, but intellectual freedom is also undermined when officials pressure schools to abandon their chosen curriculum and instead to adopt a so-called patriotic curriculum with other fixed ideas about important issues such as race.

 

      Now, surveys indicate that most Americans do support the classic liberal principles of freedom of speech and open discourse. It’s just that we have not been speaking up nearly as much as the opponents, the illiberals, on either end of the political spectrum. And that is a perfect segue to the question that we were asked to address, which Randy answered as well, what are possible, desirable responses to these challenges?

 

      And here, I’m going to double down again on the opportunity and the responsibility that FedSoc has with such an unparalleled network of representation on campuses all across the country, with lawyers chapters, thousands of members in government, in civil society, in the legal system. If every single one of you would raise your voices at every opportunity to challenge a departure from your principles, that would make an enormous difference.

 

      And let me just underscore from a fairly recent perspective I have on The Federalist Society, something else that you can do on campus that will be wonderful, not only on campus, but beyond. For many decades now, I’ve been — throughout your existence — I’ve been speaking at national conventions. But fairly recently, in the last few years, I actually became approved to be on your list of available speakers for the campus lecture circuit. And I’ve spoken at dozens of campuses at the behest of The Federalist Society in the last few years. In fact, as recently as this morning, I was communicating with Angela Coco, who is a leader of FedSoc at the University of Michigan Law School about making a virtual appearance on her campus.

 

      And that has really increased my respect for and hope for the positive role that FedSoc can play because when you speak on a campus, you are required -- the inviting campus chapter is required to line up at least one other speaker with a different perspective. It is required to seek to co-sponsor the event with other organizations that have different perspectives on the issues. It is required to have a minimum attendance so it’s not just preaching to the choir. And this has worked out beautifully in my experience.

 

      And so I would suggest to all the campus leaders, Angela and others who are listening out there, use this opportunity to discuss the kinds of issues that Randy talked about and that I talked about. Line up forums with the Black Law Students Association, with the American Constitution Society, ACLU chapters, students who are interested in criminal law reforms. I think everybody shares the same underlying goals. That’s proven by your mission statements. But we deserve to have robust discussions about the appropriate means.

 

      So I look forward to continued, renewed support in practice, consistently and evenhandedly in support of the positive mission statement of The Federalist Society. And now I hand it off to John McGinnis, who is not here in person but whose words will be delivered with passion by Eugene Meyer.

 

Eugene Meyer:  Thank you, Nadine. And thanks, Randy. John, I know, very, very much regrets not being here. And these are his words, not mine, although I no doubt agree with many of them.

 

      So the rule of law and the American tradition of government depend on the surrounding culture, and that culture is one of capacious liberalism, liberalism in a philosophical, not a partisan sense. That culture includes a structure built on individual rights rather than group interests, personal responsibility, and freedom of speech.

 

      So what are the social movements that threaten this culture today? They go by a variety of names, wokeism, or the successor ideology or two. At a high level of generality, their dogma goes like this. Some group has been systematically oppressed, not only by the government but society at large, and that oppression is the sole cause of their desperate plight.

 

      Antiracism is an example of the structure of this thinking. Its leading publicist and best-selling author Ibram X. Kendi, has stated, quote, “Racial discrimination is the sole cause of racial disparities in this country and in the world at large,” close quote. All that has gone before is tainted and society should be completely remade to reflect this essential truth.

 

      This kind of ideology poses a serious threat to the rule of law. Begin with the rights-bearing status of the individual. The Declaration of Independence depends on the moral claim that all are created equal, and thus, individuals are equal before the law. People should not enjoy legal privileges because they are members of a class as nobility and clergy enjoyed before the rise of liberalism. Moreover, the individual identification under law makes it harder for groups to use politics to oppress other groups. This barrier helps preserve equality of individuals under the law.

 

      But a social justice movement that focuses on the group rather than the individual inevitably subordinates individual rights. Exhibit A is the rules on tribunals on sexual assault on campus where the education department took away core protections from the accused, including access to a neutral tribunal and right to cross examination. To be clear, the impulse to prevent sexual abuse is wholly laudable, but the dogmatic structure of a movement that wants to vindicate women against patriarchy transformed reform into a threat to individual rights.

 

      Such movements even create distortions in fact-finding as well as the law. When Michael Brown was killed in Ferguson, the story was told that he was a victim of police racism who said, quote, “Hands up, don’t shoot,” close quote. It took the Obama Justice Department’s report to show that this story was untrue, exonerating the officer legally, although he has never been cleared in the eyes of the social justice movement.

 

      At my law school, the administration nevertheless continues to display a photograph taken at a school demonstration about this incident of people with their hands in the air. It is imperative to the rule of law that facts not be subordinated to an overarching, totalizing social narrative.

 

      Personal responsibility is also bound up with the rule of law. In part, that’s because people take responsibility for themselves only when they can plan, and they can plan only when they know the rules of the game. In part, that’s because a government that’s large enough to absolve people of  individual responsibility is so powerful that the rule of law cannot constrain it.

 

      But to proclaim that some form of systematic oppression is the cause of all disparities between identity groups undermines this premise. The theory of antiracism articulated by Kendi is an example. It uses racial identity and claims of systematic oppression to rob individuals of agency. It releases individuals from responsibility, both the reported victims and the perpetrators. It is also false. Complex social phenomena in a free society rarely if ever have a single cause.

 

      Of course, there’s nothing wrong with arguing that specific social practices brought into being by the collective decision of some individuals are responsible for bad outcomes. That’s a program of potentially useful reform to eliminate such practices. But unless that empirical work is done, this new utopian movement thwarts rather than promotes social reforms. A culture of freedom of speech and tolerance for dissenting views are also necessary to the rule of law and justice, allowing critique of both current law and future reform.

 

      But some of the social movements have no interest in free speech because they are dogmatically sure of their own truth. It is hardly an accident that James Damore, an engineer at Google, was fired when he called attention to plausible reasons other than discrimination that account for the lower proportion of women in computer science. If one begins with the incontrovertible truth that systematic discrimination is the cause of all disparities, free exchange is unwelcome because give and take can lead to an appreciation of complexity, not sloganeering.

 

      Universities have historically transmitted the culture of capricious liberalism from one generation to the next. Their core formal liberalism is epistemic, and openness to ideas and argument, even against the consensus, so that the truth about the world can be discovered. Here, too, facts must not be subordinated to an official narrative. Universities have previously faced dangers of epistemic closure because professors were overwhelmingly of one ideology, left liberal.

 

      But only recently have university administrations themselves increased that danger by taking institutional positions. For example, many schools like my own law school have now labeled themselves antiracist. But antiracism is an encompassing ideology that is not simply a commitment not to discriminate. Indeed, in many versions, it requires discrimination and becomes an Orwellian slogan, another way that truth becomes subordinate to claim of subordination.

 

      Other universities require those who want to be hired or promoted show their commitment to diversity and inclusion of social ideals. When an education institution adopts an ideology, certainly one as comprehensive as antiracism, it chills dissenting views and makes the search for truth secondary to making ideas conform to what is thought virtuous when a virtue signaling university undermines a big part of its core enterprise making sound inferences about causes and effects in the world.

 

      If elites are trained to view society through a dogma rather than openness to sometimes inconsistent facts, they will make America worse, particularly for non-elites, including those who are minorities. Capricious liberalism is the prerequisite for a successful, empirically based social reform, something that is also necessary to the continued flourishing of the rule of law.

 

      That’s the end of Professor McGinnis’s remarks, and I’ll turn it over to Professor Randy Barnett.

 

Prof. Randy Barnett:  Thanks, Eugene. It’s a pleasure to be here. I wish it would be in person. I miss the Mayflower Hotel, like I’m sure everybody else does. I also miss the presence of John McGinnis on the panel with me. With the current makeup, it looks a little more like an American Constitution Society panel than a Federalist Society panel, but I’ll do my best. And I’m very grateful to John for his written remarks, which I think helpfully set up mine.

 

      I’ve been wrestling with what I could accomplish in a ten minute talk beyond complaining. So I thought I would engage in a bit of self-criticism by offering two observations about the conservative legal movement in which The Federalist Society is a driving force. Doing so is going to require me to make some generalizations that will not apply equally to everyone. My first observation concerns how we can do better responding to claims about social justice, and my second will be how we can do better to responding to claims that are based on what we call wokeness.

 

      First, as an antidote to social justice, conservative constitutionalists need to spend more energy on the concept of justice, in particular, justice as defined by natural rights which are affirmed in the Declaration of Independence. It’s no accident that my first book, The Structure of Liberty, Justice, and the Rule of Law was an explanation and defense of the liberal theory of justice.

 

      In my experience, because they not unreasonably fear judges making up and enforcing rights, some conservatives tend to poo-poo justice altogether or, at least, they give it short shrift. For example, some conservatives like to stress that the Declaration’s affirmation that governments derive their just powers from the consent of the governed. At the same time, they tend to dismiss the importance of the first part of that sentence, which says to secure these rights, meaning the inalienable natural rights of life, liberty, and the pursuit of happiness, governments are instituted among men.

 

      Indeed, some conservatives deemphasize the role of the Declaration altogether, going out of their way to insist that the Declaration is not law. This was recently done by Justice Barrett in her confirmation hearing.

 

      The case of Troxel v. Granville provides another example. In that case, the majority of the Court upheld the fundamental right of parents to raise their own children. In his dissenting opinion, Justice Scalia conceded that this right was one to which both the Declaration and the Ninth Amendment refers.

 

      He wrote, quote, “In my view, a right of parents to direct the upbringing of their children is among the unalienable rights with which the Declaration of Independence proclaims all men are endowed by their Creator. And in my view, that right is also among the other rights retained by the people which the Ninth Amendment says the Constitution’s enumeration of rights shall not be construed to deny or disparage. The Declaration of Independence, however,” he continued, “is not a legal prescription conferring powers upon the courts. And the Constitution’s refusal to deny or disparage other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be and to enforce the judges’ list against laws duly enacted by the people.” In contrast, Justice Thomas joined the majority and even argued for strict scrutiny of this right.

 

      I suspect the cause of this deemphasis of justice and natural rights is a preoccupation with a portion of The Federalist Society’s mission statement that says, quote, “It is emphatically the province and the duty of the judiciary to say what the law is and not what it should be.” Now, this comes at the expense of that part of the mission statement which insists that, quote, “The State exists to preserve freedom.” The singular focus on the proper role of judges at the expense of the liberal conception of justice based on the natural rights that define freedom or liberty, is analogous to free market advocates who focus entirely on its efficiency rather than on its justice.

 

      Recently, we’ve witnessed an insurgency in the conservative movement by those who critique the individual natural rights foundation of the American theory of government and advocate a common good conservatism that is highly critical of what it disparagingly calls individualism or liberalism.

 

      Now, of course, this criticism does not apply to all conservatives. And a skepticism of judges implementing natural rights, a skepticism which I share, is not logically incompatible with a serious treatment of how the structural constraints of the Constitution work to advance substantive justice. But this tendency to focus on what the law is rather then what it ought to be cedes the moral high ground to those who are asserting conceptions of social justice above, say, the original meaning of the text of the Constitution.

 

      In my view, social justice is not justice properly conceived. However, without a grasp of natural rights, why they are so imperative, and how the structures provided by the original meaning of the Constitution work to secure these rights, conservatives are unable to clearly explain why it is that social justice conflicts with real justice. Relying solely on a majoritarian conception of popular sovereignty in which the might of the majority is seen to make right, such a conception has a difficult time responding to objections based on social justice on behalf of minorities.

 

      Now, my second observation has to do with wokeness. In my experience in the conservative legal movement, I have found that some conservatives stress the framers and the founding in the 18th century while diminishing the importance of the Republican Party in the 19th century. These Republicans were responsible for ending slavery. They fought tirelessly to protect the freedmen, reconstruct Southern state governments to ensure that they were truly republican, and ensure an equality of civil rights, North and South, by enacting formal constitutional amendments and a series of robust civil rights acts. These amendments and laws were gutted, however, by a Supreme Court using a mixture of original intent and living constitutionalist methods which eventually culminated in Plessy v. Ferguson.

 

      The preoccupation of some conservatives with the role of the judiciary has led them to deprecate the Privileges or Immunities Clause of the Fourteenth Amendment. They fail to acknowledge the due process of law requires the substance of laws be within the just powers of legislatures to enact. They also favor extending the state action doctrine beyond the Privileges or Immunities and Due Process of Law Clauses, where it is apt, to the Equal Protection Clause, where there is good reason to think it is inapt.

 

      Perhaps more importantly, a systemic deemphasis of the anti-slavery origins of the Republican Party, the civil rights laws and amendments it enacted, and the effort of Republican administrations to enforce these provisions results in a failure to provide a positive contra-narrative to the woke left. In this regard, I’ve been influenced by my many years long study of anti-slavery constitutionalism, which was deeply informed by natural rights. In the beginning, I did this simply because I found it to be inherently interesting. Now, it’s become an imperative. Yet, it is a narrative that too few in the conservative legal movement are aware of or appreciate.

 

      My con law case book is organized around these themes and emphasizes how slavery was ended as well as how equality and civil rights were thwarted by the Supreme Court’s passivity in the face of massive Democratic resistance. I find that this narrative completely disarms students who come to my class with a woke narrative in mind and expect a certain kind of narrative from me that they do not get. Class discussions, as a result, have an entirely different tenor than they would have in the absence of this narrative being carefully developed during the first third of the course.

     

      Now, to conclude, by spending more time on substantive justice at the founding and the narrative of the United States afterwards, conservatives can do much to displace the left from the moral high ground it has successfully claimed. In sum, we have a better case to make than we’ve been making and a better story to tell than we’ve been telling. Thanks.

 

      Now, I turn it over to Judge Lee to moderate our discussion.

 

Hon. Kenneth Lee:  Thank you all for the very thought provoking comments. In a little bit, we’ll open up for audience question. And for those folks, you can do so by clicking on the “Raise Hand,” and you’ll be in the queue to be able to ask questions to the panelists.

 

      But before that, before we open it to the audience, I wanted to give panelists first an opportunity to respond to what other panelists may have said, if they have any additional thoughts or want to respond to any of the points made.

 

Prof. Nadine Strossen:  I would love to. I loved all of the comments, but in my little amount of time here, I’d like to single out Randy Barnett. I think your counternarrative is really thrilling and consistent with my idea that we’re not enemies, left and right. We share a lot, according to you, even a lot more in common than many on either side understand. And I look forward to reading the more detailed explication that I know you’ve written.

 

      Just one question. I know you had to compress your points. I didn’t understand the point about the Equal Protection Clause and state action. Do you mind explicating that a little bit more?

 

Prof. Randy Barnett:  I’d be delighted, although I don’t want this panel to get off a tangent about that topic. But in the book that we have coming out next year, Evan Bernick and I, we try to explain how the duty of protection — and this is something that has also come through my work on antislavery constitutionalism — the duty of protection is a positive duty the government owes its citizens in return for their allegiance. It was an argument that was strongly developed by the antislavery movement, which argued that even slaves had to obey the law, in return for which standard social contract theory said the law owed them a duty of protection.

 

      And so even though the state action doctrine properly applies to the Privileges or Immunities Clause, which says no state shall make or enforce any law — that’s the state action — nor deprive persons of the due process of law — that would also be a state action — the Equal Protection Clause, we believe, imposes an affirmative constitutional duty on state governments to equally protect the rights of each of its citizens, a duty that was one of the principal problems that was facing the Republicans when they were trying to reconstruct the South, when Democrats were denying equal protection. It was one of the principle things that was being done to the freedmen and also to white Republicans in the South.

 

      Now, the reason why conservatives and others are very skeptical or doubtful or dubious about this, apart from its originalist bona fides, is that they’re concerned about judges imposing this duty on local law enforcement and local government officers, which essentially would impose monetary liability to an unlimited degree by means of judicial decrees on municipalities who have to satisfy these judgements by making payments. I think this -- and we say in our book this is a justified concern.

 

      So what we argue instead is that this is not a duty that judges should be enforcing, but it is a duty that was within the power of Congress to enforce using its Section 5 powers under the Fourteenth Amendment by providing alternate remedies that do not impose duties on the states but provide substitutes for the remedies that states are inadequately providing if a record can be made that states are, in fact, unequally protecting their citizens.

 

      And in this category, we would, for example, have put the Violence Against Women Act, which created a federal cause of action for gender motivated violence. Regardless of whether you agree with Congress’s findings that states were inadequately protecting women, it is on the basis of such findings that Congress created an alternative remedy for women, which was invalidated by the Supreme Court on the one hand because it exceeded Congress’s commerce power, which it did, but on the other hand because it would have exceeded Congress’s Section 5 powers under its reading of the scope of the Equal Protection Clause, which, in my view, it did not. So if it’s objectionable, it would be so on the grounds that Congress had an inadequate record before it in order to justify this, but not on the grounds that doing so in the face of inadequate record was within the Section 5 powers of Congress to enact.

 

Eugene Meyer:  I have a question for both Professor Kennedy and Professor Strossen. Let me start with Nadine. You talked about the importance of The Federalist Society doing debates with other groups, which we try to do a lot. The increasing problem we’ve had, and it hasn’t reached a critical stage yet, but it’s getting more and more serious, is it is getting increasingly difficult to set up debates, to get other groups to debate, to agree to be part of the debate, and sometimes, even to get debating opponents.

 

      It’s a commitment we have had from the beginning and still very strongly have. You may have slightly overstated how much we try to force chapters through the debates, but we definitely very, very strongly encourage it, and mostly, they try to. But I don't know if you have any thoughts on how to get more of these groups to agree to debate.

 

      And I’m going to leave that question for one second and ask the question I had of Professor Kennedy because it’s somewhat linked. One of the things that’s going on currently — and I’m not saying things aren’t going on both ways around; they undoubtedly are — but there is a fair bit of attempt to, quote, “cancel,” close quote, or whatever term you want to use, those people who’ve done things that either supported Trump or in some way or other done something aligning themselves with Trump. And there’ve been things written saying, “Somebody who has done that should never --”.  Basically, you shouldn’t hire the law firm that has represented him. You should pressure the sponsors of the firm not to represent -- not to do business with the firm because they represented him.

 

      And the two things are linked because both are attempts to counter -- to make it so that you do not -- not just that you disagree with someone, but you try to go after their jobs, their livelihood. And that certainly has gone on on both sides. And clearly, at some stage, society has certain principles where when 99 percent of the people in society think something is horrendous, people are going to respond negatively to that person. But when you’re starting to do that with 25, 30, 35, 40 percent of society, that strikes me as dangerous. And I wonder if you have thoughts about what to do about that.

 

Prof. Randall Kennedy:  I think we are in a very dangerous moment. Let me say first a word about your first question about people not, for instance, organizations not wanting to co-sponsor events with The Federalist Society or people not wanting to come to debates. I think that one of the reasons why some people don’t want to show up, don’t want to co-sponsor is because they don’t want to do anything that’s going to further legitimate, further entrench, further empower, The Federalist Society.

 

      They think -- frankly, I thought about that before I came to this panel. The Federalist Society is powerful, and one of the ways in which it discusses itself or makes itself attractive to many people is to say, “Yes, we are conservatives. We are libertarians. We are on the right side of the political spectrum. But we open ourselves up to self-criticism. We have people come to our meetings. Look at Nadine Strossen. Look at Randy Kennedy. Look at other liberals and think well of us.”

 

      Now, I think that there are people in my camp -- I’m a progressive. My peeps are the people who are around, let’s say, The American Prospect magazine, The Nation magazine, Dissent magazine. Those are my people ideologically. And some of them would say, “Listen, Kennedy, The Federalist Society, when all is said and done, they can say nice things, they can give nice speeches like the ones you’ve heard today, but when all is said and done, a large number of them are followers of Donald Trump, who has been and is right now a danger to democratic values in the United States of America. And no, we do not want to participate. We do not want to help one whit any organization that is going to line up with Donald Trump.”

 

      That is what you face. And the fact of the matter is it’s not as if, when I talk with my friends who say that, it’s not as if they are crazy. It’s not as if they don’t have a point. They do have a point. They do have a point. And that was part of what was saying. It is really too bad, as far as I’m concerned, that there were substantial parts of The Federalist Society that have kept quiet in the face of an absolute danger to American democracy.

 

      We can disagree about various things. We can disagree about affirmative action and all sorts of other things. But we have seen in the past couple of years boundaries crossed that were fundamental. And I think that there are some people who said that people who cross those fundamental boundaries ought, frankly, to be ostracized. And as you indicated in your remarks, it’s not as if all ostracism is bad. Under certain circumstances, there ought to be ostracism.

 

      Now, I think we are in such a dangerous moment. For me, it’s been a very chastening point because I must say, given what’s happened, I do have a new appreciation for norms of civility, for norms of compromise, that I didn’t have before. So I am here. I am speaking to The Federalist Society. And I would do it tomorrow as well. And if the people at Harvard ask me to debate somebody, I will do it again. But do understand the thinking of people on the other side.

 

Prof. Nadine Strossen:  I would just add to that, it’s more than a matter of terminology, but I prefer the term discussion or discourse or dialogue to debate because -- and I say that as a champion debater from high school. The point of a debate is to win. And I think what you should be fostering, and I know from the form letter that you send to your student chapters, you are encouraging robust discussion through the opening statements that present differing perspectives.

 

      But that doesn’t have to be a point, counterpoint, black, white binary. It’s a recognition that these are complicated issues, and there are different perspectives and different evidence and analysis that should be considered. So I think if that is emphasized, that this is to bring people together to further understanding among all of us, and that all of us have our understanding enriched when it is cross-fertilized with a variety of perspectives, that that might -- perhaps the word debate suggests that, oh, The Federalist Society is trying to win this, and we don’t want to throw a sacrificial lamb into it.

 

      Also, all organizations at every level are composed of individuals, and all of us individuals who care deeply about bringing people together with different perspective have a responsibility to act as role models, to act as leaders, to set the tone. So for example, not just the first, I think the second even in a few months discourse you had between Robbie George, such a prominent conservative, and Cornel West, such a prominent progressive, unhesitatingly seeking and welcoming this platform and speaking about the positive role that The Federalist Society can play, I would hope -- and Randy, I trade on the fact that you speak regularly, Randy Kennedy, but also Randy Barnett, who’s part of the libertarian wing, which I think is often ignored or not given as much attention as the conservative wing.

 

      And also, I see at the level of individual chapters the individual personal relationship between students who are members and leaders of The Federalist Society and the American Constitution Society. On my own campus and many others, there is a lot of cross membership. Students who are genuinely interested in the full range of programs, the full range of perspectives, will join both organizations. They have a great deal of trust and respect for each other. So we have to emphasize that kind of personal conversation.

 

      And then I think at the national level as well, at least in my experience, there were always very good, cordial, collegial relationships between the national leadership of ACS and the national leadership of FedSoc, even despite disagreement on very important policy issues.

 

Hon. Kenneth Lee:  Mr. Barnett, do you want to respond?

 

Prof. Randy Barnett:  Yeah, let me respond a little bit to what Randy just said. And Randy and I, I should just mention, have known each other for a very long time and gotten along very well. I hope this session is not going to be the end of that friendship.

 

      But I just want to reassure him that we are not unaware of what progressives think about Donald Trump or people who support Donald Trump. We are well aware of what they think. I have a couple of comments to make about that. Number one, none of the issues that we’re talking about today began with Donald Trump or began during the last three years. They precede that. Donald Trump is not the cause of this. Donald Trump is a symptom of it.

 

      Donald Trump is a symptom of people who looked on the stage of the candidates that were on offer for the Republican nomination in 2016, and I was a senior member of -- a senior advisor to one of Donald Trump’s rival candidates, Senator Paul. They looked on that stage and they really saw, they thought, only one person, or at least a plurality of Republicans saw one person they thought was capable of standing up to, fighting back, and not being cowed by the type of aggression that we do witness from the left, both verbally and physically.

 

      Whether they were right or wrong about that, that’s the guy they thought on the stage was just crazy enough to do what he said he would do, and where all the other ones up there were mere politicians who spouted conservative platitudes while doing pretty much nothing and cowing whenever attacked. Whether they were right or wrong about that calculation, I think that’s what launched him or put him at the head of the pack, among other things. So that’s number one.

 

      Number two is that I think there’s a certain amount of “both sides-ism” that we’ve entered into in this discussion. What we are all talking about -- I think what this panel is really about is an attack on liberalism that is happening within academia in particular and that has now permeated society in general. And Nadine, I know, fully agrees with this, and her comments are fully in this spirit. But it isn’t symmetrical. Of course, you’re always going to be able to find an example on the other side of something, but that’s not really what’s happening here. The shutdown culture, the cancel culture, the intimidation culture, the going after donors culture, this is predominantly coming from one side aimed at shutting down discourse on the other side.

 

      And I know that in the course of characterizing The Federalist Society, Randy referred to it as powerful. It’s a private organization. It’s influential. It’s influential. It’s very influential with some people. But whether it’s powerful -- I don't know if it would be accurate to call it powerful in the relevant sense be it really has no power other than the voice that it represents.

 

      And the fact that it represents a singular location where all the people who are generally shut out of mainstream very, very influential, and I might even hazard to say powerful institutions like Harvard Law School, that’s -- The Federalist Society is really the only place they have to go or the principal, primary place they have to go. And as a result, they’re all in one place, and they can speak in a more influential or powerful way, if you will, than they would otherwise have if they were dispersed throughout academia, which they are not allowed to be by the discriminatory hiring that is done by most law schools, including my own, who were liberal enough to hire me, but not that many more than me.

 

      And so the final thing I would say, if we move beyond academia and we talk about protests, which is the subject of this panel as well, is that the District of Columbia where I reside, although I am not residing at the present. I’m actually taking refuge in central Virginia from the virus. But where I also reside is in the District of Columbia. The District of Columbia was boarded up in anticipation of this election. And I can assure you that it was not boarded up in anticipation of right-wing violence. And one way I can show that is that it really looks like Joe Biden has won the election, or that’s the way it’s going, and we’re not seeing any right-wing violence. Everything seems to be pretty peaceful. It was being boarded up in response to left-wing violence.

 

      And I understand, Randy, and I really appreciated Randy’s earlier comments in which he said that his colleagues and friends condemned that violence. And I believe him. But nevertheless, despite that condemnation, that is where the threat to civil order is coming from predominantly. Of course, you can always find examples on the other side of a provocatory here or there. But if you want to generalize, as we generalize about police and we generalize about racism, we can generalize about the source of violence that’s shutting down discourse and destroying private property and destroying the very livelihoods of the people and businesses that serve the minority community in many, many cities.

 

      The last thing I guess I will say is that it was a huge accomplishment that took place over my lifetime that big box retailer stores were prepared to open up in the inner cities. It used to be that the inner cities were reliant on mom and pop stores and other kinds of bodegas that charged higher prices for a variety of reasons. And Target and Walmart and a bunch of other big box stores, it was a revolution that they were prepared to open up in Washington, D.C. and in other municipalities to provide reasonably priced, high quality services to the minority communities.

 

      And all of that is put under threat by the attack on private property that has been justified or at least legitimated by those who support this form of protest or who at least don’t adequately condemn it. And in that, I would also include the Democratic nominee or the Democratic candidate for President who made a perfunctory statement about this when it politically was necessary for him to do so but otherwise ignored it along with most of the rest of the media who attempted to say that the buildings burning behind them were a product of mostly peaceful protests.

 

Prof. Randall Kennedy:  Can I respond?

 

Hon. Kenneth Lee:  Absolutely.

 

Prof. Randall Kennedy:  Number one, to go back to your very first sentence — and it’s too bad that we’re not face to face — that’s right. You and I have been talking for several decades. The first couple, it was mainly about contracts, but now it’s broadened out. You don’t have to worry about -- I’ve listened to you. I look forward to reading your work. I look forward to future discussions. There’s nothing at all that you’ve said that would make me hold you in any less esteem. That’s point number one.

 

      Point number two, I agree with you about the -- in fact, as every speaker has said here, as every speaker has said here, the attack on just fundamental notions of liberty, fundamental notions of due process, fundamental notions of individualism, I completely agree with you about, for instance, the looting. And frankly, in a certain sort of way, even worse than the looting, because many of the people that are doing the looting are -- they’re criminals. They’re pathetic, and they’re criminals. In a way, even worse, has been the defense that has been voiced for the apology for looting that has been publicized in magazines to which I contribute. Again, this is in my camp. And I find it appalling, disagree, have disagreed, have renounced, have denounced publicly, in writing, in voice. That’s point number two.

 

      Number three, Randy, when you talk about power, listen, in the last few months, there have been efforts -- Nadine Strossen mentioned this. There have been efforts to put the arm on institutions of higher education. Don’t teach that, or your funds will be cut off. It seems to me -- I read the -- I listen to people talking about wokeism, and there is a problem with wokeism. I hear people talk about political correctness. There is a problem with political correctness. And I’m not at all averse to criticizing that.

 

      But then when I hear about legislation being proposed, cut off funding if you’re going to talk about critical race theory, I’m waiting for people to say, “Hey, no, no. We’re not down with that. We might -- we don’t like critical race theory, but we don’t want the arm -- we don’t want the government telling people or pushing people or strong-arming people, telling them what they can and cannot teach.” And I would expect you, and I would expect Federalist Society people to stand up and be heard on that. Do we disagree on that?

 

Prof. Randy Barnett:  No, we don’t. And we also probably -- I don't know if we disagree about whether the federal government should be in the business of funding education like that at all, such that once you create the power in the federal government to do that, then the federal government is going to start making choices among what it can fund and what it can’t fund. That’s possibly one of the problems that gives rise to this opportunity for that kind of curriculum control.

 

Hon. Kenneth Lee:  I want to open it up to the audience for the remaining time period.

 

Prof. Randy Barnett:  I just want to thank Randy for the first two points that he made. We can move on. But I just want to tell him that I heard every word. I really appreciate the fact that he said every word.

 

Hon. Kenneth Lee:  The first person we’ll call on is Professor Ilya Somin, if you can unmute your line and ask a question to the panel.

 

Prof. Ilya Somin:  Can you hear me?

 

Hon. Kenneth Lee:  Yes, we can hear you.

 

Prof. Ilya Somin:  My question was inspired by something that Randy Barnett said, but I’m sure other panelists might have thoughts on it as well, that I agree with, I think, most of what you said about that it’s important to emphasize the 19th century reconstruction at least as much in some ways as the founding and also emphasize the history there and what it was responding to.

 

      I wonder if you would extend that point, and perhaps others would too, also acknowledging, I think, more fully than many conservatives and also some of my fellow libertarians are willing to do that the original founding was, in fact, very flawed on these issues of race and slavery, that, at the very least, it tolerated slavery in the states. It had the Fugitive Slave Clause. I know in your work on antislavery constitutionalism, you have highlighted some people who said, “Well, maybe the Fugitive Slave Clause doesn’t really mean what traditionally people think it means,” but it was certainly still there. And there are other examples as well.

 

      So that doesn’t mean we should necessarily go to the lengths of the 1619 Project and say, well, it was all just really about defending slavery and that’s what the American Revolution was about. But at the same time, it was a bunch of people on the one hand said, “We’re champions of liberty.” On the other hand, many of them, not all, but many of them continued to keep slaves. And some aspects of the Constitution they created offered protection to that institution of slavery. And it seems like many, not all, but many conservatives and some libertarians as well perhaps have not acknowledged that as much as we should.

 

Prof. Randy Barnett:  Not only to I agree with that, my case book, which I mentioned in my comment, is organized around that very principle. The only reason why there was a need for an antislavery constitutionalism to develop in the 19th century is because of some of the mistakes and errors and sins of the 18th century. And so that was implicit in my argument that it should be -- that the process that led up to the Reconstruction era and then how the Reconstruction era was undermined was made necessary by the founding.

 

      And my case books goes into this in great detail, as does the video series that Josh Blackman and I produced as part of our book, An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know. We have whole videos on slavery. So yes, absolutely, it is as part of the founding. But I just should also point out, antislavery was also a part of the founding as well. And even though every state in the Union had slavery in 1776, close to half the states in the Union had either eliminated slavery or were moving towards eliminating slavery by 1787, which is a relatively short period of time.

 

      And in fact, a proslavery ideology in this country did not develop until after the founding. It was almost immediately after the founding when the economic profits to be made by cotton plantation slavery were greatly enhanced by the invention of the cotton gin, which happened two years after the Constitution was enacted, and thereby gave rise to a very, very profitable plantation industry in cotton production that then gave rise to a proslavery ideology that didn’t really exist at the time the Constitution was written and enacted.

 

      All of this is much more interesting and more complicated, but in some respects more favorable than the kinds of stories we get on either side that idealize the founding or that demonize the founding. The reality of the founding is actually a lot more interesting and therefore helps explain what happened after the founding, which is as important, I think, as what happened at the founding.

 

Hon. Kenneth Lee:  The next question will be from Sylvia Ross, if you can unmute and ask your question.

 

Sylvia Ross:  Well, thank you very much. Can you hear me?

 

Hon. Kenneth Lee:  Yes.

 

Sylvia Ross:  All of you were wonderful speakers. I appreciate it. A bit fast; I’m a little on the slow edge here. But my question is really for both Professor Randys. I’ll call them that. The first one had to do with your point, Professor Barrett -- Randy Barnett, I’m sorry -- that you mentioned the Declaration as law. And I’d like you to maybe just expound on that a little bit and how you see it in relation to being read with the Constitution and the solution to maybe addressing some of these things. And I’d just like to hear Professor Kennedy’s comment on what you may have to say.

 

Prof. Randy Barnett:  Great, thanks. No, I didn’t claim that the Declaration was law. I claimed that conservatives go out of the way to dismiss the Declaration as not being law and thereby undermine its significance. In fact, I think, and I have a short essay that I delivered at the student symposium at Georgetown a couple years ago about how the Declaration was the officially adopted American theory of politics. It was the American political theory that was officially adopted unanimously by each of the 13 states. And so that is the political theory of our country.

 

      And then after the political theory of our country was officially adopted, there were two cracks at government. The first was the Articles of Confederation, and then the second was the Constitution. So first came our political theory, which is based on natural rights, and then came two forms of government. Whether you think that the Constitution was better than the Articles or not, the Constitution was arguably an improvement, but one that was highly imperfect for reasons that we just talked about and that needed to be improved further, and eventually was improved further through the efforts as well as the lives of many, many millions of Americans.

 

      And so that’s what I meant. I said that the Declaration deserves to be a centerpiece of our discussion over justice, which is what the point of my -- that was that point in my remarks. I was talking about how conservatives need to pay a lot more attention to justice as opposed to the rule of law. Sometimes, I would have to admonish my libertarian friends that they have to pay more attention to the rule of law as opposed to justice, but that just goes to show that I’m a contrarian, no matter which group I find myself in.

 

Prof. Randall Kennedy:  We can get another question. I agree with much of what Randy said.

 

Prof. Nadine Strossen:  Could I just make one point? I’m holding up here the Cato Institute edition of the Constitution and the Declaration of Independence. And of course, Cato is the libertarian wing here, but very involved in The Federalist Society. This edition includes a wonderful introductory essay by Roger Pilon, long the head of the constitutional project at Cato and a big activist in FedSoc which explains the integral interrelationship between the Declaration and the Constitution. I highly recommend it.

 

Hon. Kenneth Lee:  I have my copy here as well, handy. The next question will be from Rashida MacMurry-Abdullah, if you could unmute and ask your question.

 

Rashida MacMurry-Abdullah:  Great. Thank you very much. This is been a very interesting panel. I’d first like to say, Professor Strossen, I love the fact that you alerted us to the fact that it should be a discourse instead of a debate.

 

      But my main question is actually a question for Professor Randy Barnett. You made a comment with respect to -- that the violence was being — and I’m kind of paraphrasing — that the violence was really coming from the liberal wing with respect to the election. But I want to understand how you reconcile the fact that certain groups of individuals in this country have had to continually go to the Supreme Court to get the rights that are enacted in the Constitution, to get them enforced.

 

      And then how do you reconcile that with the short time of slavery and that thinking about denying people their inalienable rights when we still had Plessy v. Ferguson in 1896, almost 100 years later where we were really having state-sanctioned violence? And I would say that that was not the liberal wing at that time with that state-sanctioned violence.

 

      And then with your response, if Professor Randall Kennedy has anything to add to that comment, I would appreciate it. Thank you very much.

 

Prof. Randy Barnett:  I’m sorry, but I lost internet completely and had to sign back in halfway through your question, so I didn’t catch the beginning of your question, which I take it was addressed to me.

 

Rashida MacMurry Abdullah:  It was addressed to you. So the first part of my question, you mentioned a comment talking about the liberal wing of violence, particularly with the election. You made a comment there was some concern because D.C. was boarded up, and so it was more so being more concerned that the liberal wing was going to be violent rather than, I guess, the non-liberal wing or the right wing. I always find those terminologies of label not really helpful for the discourse. But I did say that Professor Strossen, I appreciated that she changed the conversation from discourse as opposed to debate because I do think that’s helpful.

 

      But really, what I really want you to opine on is the how do you reconcile this conversation about individuals who continually have to go to the Supreme Court to enforce their rights in a way of protesting and making sure that their voices were heard, and talking about this kind of liberal, right-wing violence when we had such a long history of state-sanctioned violence. And I would say that that could not be characterized as liberal-wing violence, the state-sanctioned violence.

 

      You had made a point about that it was a relatively short period of time when we had the kind of discourse about antislavery, but I would argue that that short -- any day in slavery is probably a day too long. But then it was not until 1896 where we had Plessy. So that’s 100 years after that discussion with respect to separate but equal. So hopefully, maybe that’s where you came back in. And then I said it would be great if Professor Kennedy has a rebuttal to that as well. So thank you.

 

Prof. Randy Barnett:  Right. Okay, I’ve got it now. By the way, I really didn’t use the word liberal to describe the violence that was being feared in D.C. or anywhere else. I tend to reserve the word liberal for liberal, and I like that fact that most liberals today call themselves progressives so I can reserve the term liberal for myself and for Nadine Strossen. So I didn’t really label it. In fact, I don’t believe I labeled it at all. Nevertheless, I would probably say, if I was going to pick a label, I would probably say leftist or something like that, to the left of everybody else.

 

      But be that as it may, I really think the more important part of your question has to do with our history that you just alluded to at the end, and I would say it’s worse than -- it’s even worse than you say because Plessy was not the end. Plessy was the middle of 100 years of state-sanctioned segregation, state-sanctioned subjugation of one people on the basis of race by another people in large parts of the country, in addition to other practices that were happening in the North. And this is a part of our history.

 

      So I think -- and again, this is emphasized in my case book. The Civil War didn’t end -- it may have ended slavery, but it didn’t end the problem that slavery was a product of. And it took another 100 years to do that. And it has been pointed out by better historians than me, it wasn’t really the Supreme Court that ended this discriminatory practice. It was the organized political pressure brought by African Americans themselves along with other compatriots that they had throughout the ‘50s and the ‘60s which culminated in congressional laws that helped address this practice. Brown v. Board of Education was well in the rearview mirror when those laws were passed in order to address this.

 

      So at any rate, I would just say that a full account of our history demands a recognition of that. but I will also say that it was, in my view — now, this is where I expect a lot of constitutional law professors to get off the boat — in my view, it was a failure to adhere to the original meaning of the Fourteenth Amendment as well as the Thirteenth and Fifteenth amendments, and a failure of judges to enforce that, or at least to allow Congress to enforce the rights that were protected by those amendments in the form of civil rights acts that were declared unconstitutional in the 1870’s that helped make possible 100 years of subjugation.

 

      And so I believe this is a way of understanding why originalism, which is the view of interpretation that I favor, is a good one. It’s an imperative one because I think our Constitution is now a legitimate Constitution, a Constitution that, on balance, is a good Constitution because of not only what happened at the founding but how the Constitution has been changed by amendments since then.

 

Prof. Randall Kennedy:  We have a really remarkable thing going on now because, Randy, you sound like you’re an intellectual comrade of the great, as far as I’m concerned, the leading American living historian is the great historian Eric Foner. And Eric Foner’s latest book, The Second Founding, is completely consistent with your view.

 

      Eric Foner’s saying everybody’s talking about the Founding Fathers. What about the republican founding fathers? What about the founding fathers of 1868? And he takes a very originalist view of the Thirteenth, Fourteenth, Fifteenth Amendments and suggests that if they were interpreted correctly, that would give a lot of oxygen to a mission that still needs to be carried out in the country insofar as racial justice and, in fact, other forms of justice.

 

      With respect to your other question --

 

Prof. Randy Barnett:  -- Can I respond to that?

 

Prof. Randall Kennedy:  Yeah, sure.

 

Prof. Randy Barnett:  I’m a big fan of Eric’s. I’m a big fan of Eric’s. He’s been a lecturer -- he was a Salmon Chase lecturer of the Georgetown Center for the Constitution, which I direct. And I’m a big fan of his work. I’ve been greatly influenced by his work.

 

      I don’t agree with every claim he makes about the original meaning of these amendments, but on balance, he’s a hero because he, in the 1970’s, before anyone else -- well, not before anyone else. I’m sure there may have been others, but first among all from the radical left, I should say, fought back against the Dunning School of history which celebrated the great lost cause of the states’ rights movement representing the South. It was a complete revision of what happened during the Civil War from which we got -- from which Reconstruction became totally associated with the word carpetbaggers and which president Grant is disparaged, notwithstanding the fact that he fought so hard for civil rights.

 

      It’s Eric Foner from the radical left who was the first person to push back against this. And he told us when he came to our conference that he got into this as a result of doing a high school presentation in which he pushed back against the conventional wisdom that he had in his high school in New York, and that’s what started him on this quest. So yeah, I’m a big fan of his. He’s influenced me. And I recommend people read his work.

 

      But of course, he’s not alone. I would also recommend people read the work of Sean Wilentz, who’s written his book No Property in Man, which is a reevaluation of antislavery sentiment at the Constitutional Convention and the degree to which antislavery delegates pushed back against proslavery delegates who tried to insert the concept of property of man in the text of the Constitution and failed to do so. And as a result of their failure, it allowed an antislavery constitutionalism to develop consistent with the text of the Constitution afterwards. That was a major accomplishment that they did. And I highly recommend Sean’s book, No Property in Man, which the Center for the Constitution has given its 2021 -- or will be giving its 2021 Cooley Book Prize to, to honor.

 

      And now I interrupted you. You were going to make a second point.

 

Prof. Randall Kennedy:  No, let’s proceed. Thank you.

 

Hon. Kenneth Lee:  We have about five more minutes, so maybe we could take one more question. Let’s see, Alexander Cohen, if you can unmute and ask your question.

 

      He may have dropped off. All right, so we’ll move on to Susan Lehman, can you unmute?

 

Susan Lehman:  Hi. Can you hear me?

 

Hon. Kenneth Lee:  Yes.

 

Susan Lehman:  Hi. Okay, so it seems to me that the woke culture is -- it’s a practice of a sort of a reverse motivation assignment. So take, for example, Breonna Taylor. Here is a person who’s a black American, and very, very tragically shot to death by somebody who is a white American. And so then it’s assumed that there are racial motivations in other things as well, other cases not involving police.

 

      So you’re assigning motivation. And if somebody gets fired from their job or other consequences for being an active supporter of Donald Trump, well, then, you must be at least a sympathizer.

 

      So it takes the individual out of it. So Breonna Taylor is a member of one group. The police officer is a member of another group, ethnic group, racial group, so it seems to negate the concept of the individual altogether. So how do you have individual rights if you negate the concept of the individual altogether? That’s part one.

 

      And then the other very simple question is at what point, especially with people who are not in public life, does it become slander and libel? That’s all.

 

      And by the way, I think that many, many of the answers to our problems are not in the state. That’s not to say the challenges aren’t there, but I think many, many of them are -- the solutions are spiritual and interpersonal.

 

      There have been Skinheads -- I saw one guy, Christian Picciolini or something like that. He was a former Skinhead. He changed because he opened a music store and started having interactions with the black Americans in his neighborhood who were shopping at his store, struck up a conversation with one young man whose grandmother was going through cancer. And Christian had a relative who had died of cancer. So all of a sudden, here are these bridges. That --

 

Hon. Kenneth Lee:  -- We have only a couple more minutes, so if --

 

Susan Lehman:  -- Okay. Well, I went on because you guys hadn’t jumped in on my question. So those are my questions. How do you have individual rights when there’s not a concept of the individual? And at what point does this become slander and libel?

 

Prof. Randall Kennedy:  On the question on, ma’am, on your question of many sources, I would agree with you, Ms. Lehman. Yeah, the fact of the matter is this is a crisis that confronts us on many levels. It’s political. It’s cultural. It’s social. It’s spiritual. So yes, there will have to be many sources that are mobilized to lift us, to lift our country to a higher place.

 

      On the issue of racial motivation, people ought not -- people ought be careful in making allegations of racism. People ought not overgeneralize. That’s absolutely true. It’s also true, however, that if you talk with black people and you just in a conversation, you just talk with black people about especially the police, the fact of the matter is that wherever you are in the United States, you get in a conversation and you are going to hear stories about being harassed, being disrespected, being abused, by the police.

 

      This is a deep thing. It’s not a figment of anybody’s imagination. It is for real. It has been studied. One can, indeed, quantify it. There’s been a lot of study on the sociology of policing. And it’s something, again, about which we are going to have to come together. We’re going to have to deal with it.

 

      And while we are -- I know that we’re about to get the hook. I want to emphasize again, going back to my first comment, The Federalist Society has principles. I think in many respects, they are good principles. Apply those principles in the administration of criminal justice, and I think that you can do a lot of good.

 

      Finally, I just want to say, for me, these last few months have been a rollercoaster, and there’s been a lot of darkness in those months. I must say I do find some solace in this meeting. I have thoroughly enjoyed being a part of it. I wish everyone well, and I hope that we will join together to lift our country up. It’s much needed. Thank you.

 

Prof. Nadine Strossen:  Amen.

 

Prof. Randy Barnett:  I want to plug a book, but it’s not my book. The last thing I want to say is the last book I would want to plug is a book called Freedom National: The Destruction of Slavery in the United States, 1861-1865 by a historian named James Oakes. It is a story of the Republican Party, what it did, and how much more effective it was at doing what it did than it’s given credit for, particularly by the Dunning School as well as others. So I highly recommend that book along with the others I’ve talked about.

 

Hon. Kenneth Lee:  Thank you to all the panelists and the audience. I know we could go on on this topic, on and on, but we have a time limit. So thank you again. The next event in the Convention is an address by Secretary of Labor Eugene Scalia, and that will begin at 2:45 p.m. East Coast time. Thanks again to the panelists.

 

Prof. Nadine Strossen:  Thank you, Judge Lee.

 

Prof. Randy Barnett:  Bye, everybody.

 

Prof. Randall Kennedy:  Bye, Randy. Bye, Nadine.

 

Prof. Nadine Strossen:  Bye, Randys.

 

 

 

 

 

 

 

     

2:45 p.m. - 3:45 p.m.
Address by Secretary of Labor Eugene Scalia

2020 National Lawyers Convention

Topics: Labor & Employment Law
Zoom Webinar

Event Video

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On November 12, 2020, The Federalist Society hosted a virtual address by Secretary of Labor Eugene Scalia as a part of the 2020 National Lawyers Convention.

Featuring:

  • Hon. Eugene Scalia, Secretary of Labor, United States Department of Labor
  • Introduction: Mr. Eugene Meyer, President and CEO, 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 speaker.

Speakers

4:15 p.m. - 5:45 p.m.
Showcase Panel II: The Presidency and the Rule of Law

2020 National Lawyers Convention

Topics: Politics • Constitution • Federalism • Federalism & Separation of Powers
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Event Video

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On November 12, 2020, The Federalist Society hosted a virtual panel for the 2020 National Lawyers Convention. The topic of the panel was "The Presidency and the Rule of Law."

The U.S. Constitution states that the president “shall take care that the laws be faithfully executed.”  It also requires the President, before taking office, to swear (or affirm) that he or she will “faithfully execute the office of President of the United States.”   Many believe that the Constitution, in creating a Presidency with sufficient energy to lead the country, contemplates that the President will have considerable discretion in how to go about this.  At the same time, over the years, norms have developed to reinforce the idea that in the United States, executive power is to be exercised pursuant to law, and not as a tool to punish political enemies or to protect friends.  

How does the rule of law both constrain and protect the Presidency? What role do norms play?  Have the norms surrounding the President’s exercise of executive power eroded, and if so, why?  What role have Congress, the media, social media, and other factors played? The panel will discuss these and other matters including possible reforms.

Featuring:

  • Mr. W. Neil Eggleston, Partner, Kirkland & Ellis, LLP, Former White House Counsel
  • Hon. Jack L. Goldsmith, Professor of Law, Harvard University; Former Assistant Attorney General, United States Department of Justice
  • Amb. C. Boyden Gray, Founding Partner, Boyden Gray & Associates; Former White House Counsel; Former Ambassador to the European Union
  • Hon. Theodore B. Olson, Partner, Gibson Dunn; Former United States Solicitor General
  • Moderator: Hon. Edith H. Jones, Chief Judge, United States Court of Appeals, Fifth Circuit

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

Event Transcript

Hon. Edith H. Jones:  Good afternoon. My name is Edith Jones. I’m a judge on the Fifth Circuit Court of Appeals, and I’m very happy to be the moderator for this showcase panel in The Federalist Society Conference. It’s on the powers of the Executive Office and the limits of those powers. The discussion among the panel was centered around the following propositions.  

 

The Constitution prescribes the President shall take care that the laws be faithfully executed and swears an oath to that effect upon taking office. Many believe that the Constitution contemplates that the President has significant discretion in handling his office. At the same time, however, norms have developed to control the exercise so that the presidency is not used as a tool to punish enemies or reward political friends.

 

The questions our panelists will be addressing are how does the rule of law constrain and protect the presidency? What role do these norms play? Have norms surrounding the president’s exercise of power eroded, and, if so, why? What role have Congress, the media, social media, and other factors played in the exercise of the presidential power?

 

Our distinguished panel of speakers begins with Professor Jack Goldsmith of Harvard Law. As you see in your virtual programs, the bios for each of our speakers are very long. I will cut to the chase. He is a learned hand, professor at Harvard, a senior fellow at the Hoover Institution, and co-founder of the site Lawfare. Two of his most recent well-known books include After Trump: Reconstructing the Presidency and In Hoffa’s Shadow: A Stepfather, a Disappearance in Detroit.

 

Our next speaker will be the Honorable Theodore Olson. Ted is a partner at Gibson Dunn in Washington, D.C., founder of the firm’s crisis management, sports law, and appellate and constitutional law practices. Mr. Olson was Solicitor General of the United States from 2001 to ’04. From ’81 to ’84, he was Assistant Attorney General in charge of the Office of Legal Counsel. Except for those periods, he has been practicing consistently with great distinction at Gibson Dunn. He has argued 65 cases before the U.S. Supreme Court.

 

Our next speaker beyond that will be the Honorable Neil Eggleston, a partner at Kirkland & Ellis. He is a litigation partner with a distinguished record of public service, including a number of senior government roles. He was White House Counsel to President Obama from 2014 to ’17 and earlier in his career served as Associate General Counsel to President Clinton from 1993 to ’94. He has broad experience in government and in the private legal services. He clerked for Justice Warren Burger on the U.S. Supreme Court.

 

And finally, we recognize Ambassador Boyden Gray, founding partner of Boyden Gray & Associates, a law and strategy firm in Washington, D.C., focused on constitutional and regulatory issues. Mr. Gray worked in the White House for 12 years as counsel to Vice President Bush during the Reagan administration and as White House Counsel to President H.W. Bush. He was counsel to the presidential task force on regulatory relief, an area in which he has had a professional interest and tremendous impact for many years. He was the U.S. ambassador to the EU and U.S. Special Envoy to Europe for Eurasian Energy. He is on the board of directors of the Atlantic Council, The Federalist Society, among others. And Mr. Gray clerked for Earl Warren, Chief Justice of the United States. We’ll begin with Jack Goldsmith. I turn it over to you.

 

Hon. Jack L. Goldsmith:  Thank you Judge Jones. Thanks to The Federalist Society for inviting me to be on this panel. I’m honored to be on this distinguished panel. So the conventional wisdom is that during the Trump administration the laws and norms that regulate the limitations on the president’s interference in the law enforcement process and, in general, that regulate the president’s supervision of the law enforcement process have been disregarded, damaged, thrashed, and the like. And there’s a large element of truth to this. And I just published a book, one part of which — five chapters — is devoted to assessing this and suggesting reforms.

 

But today, I want to take a different tact and suggest that the norms and laws have been more prevalent than maybe we appreciate -- than many people have appreciated. And I want to do so by asking about the extent to which the way that norms and laws have operated during the Trump administration are consistent with the theory of the unitary executive, which is obviously a prominent theory widely accepted by members of The Federalist Society and conservatives in the country. So it’s actually hard to find the canonical definition of what the unitary executive is.

 

Attorney General Barr at the Olson lecture last year described it generally as the idea that executive powers must be exercised -- executive powers, all of them -- they’re all vested in the President, and they must be exercised under the President’s supervision. And the unitary executive has many components. Part of it is about the President’s power to fire subordinate Executive Branch officials. Part of it is about the President’s control over the administration. Part of it is about law enforcement and the President’s supervision of law enforcement. And that’s what I’m going to focus on.

 

Steven Calabresi and Christopher Yoo in their great book on the unitary executive state that the unitary executive ensures subordinate Executive Branch officials will, quote, execute the law in a consistent manner and in accordance with the President’s wishes. And Professor Sai Prakash and John Yoo say in an essay that they wrote that, because of the original constitutional design, President Trump ultimately can order the end of any investigation, even one into his own White House.

 

So my claim is that the practices under the Trump administration don’t comport with these definitions and these widely held views of the unitary executive. And I’m going to give you six examples. And I’ll be very brief because my time is brief. First, volume 2 of the Mueller report where the most extraordinary element of which is that the President of the United States tried desperately to get his senior subordinates in the White House in the Executive Branch to fire Mueller or to stop him from continuing his investigation. And he utterly failed, and he failed because those subordinates simply wouldn’t carry out his wishes. And we don’t know exactly why they didn’t carry out his wishes — and there were many of them — but it probably had to do with some combination of law. Maybe they were worried about obstruction of justice -- the norm against interference in ongoing investigations that concern the White House or maybe political concerns. But it’s really a remarkable episode.

 

Second, I’m going to move on and give five examples that involve Attorney General Barr, who is obviously a proponent of the unitary -- of a broad conception of the unitary executive. He gave a robust defense of it last year at The Federalist Society. At his confirmation hearings, he acknowledged that a presidential pardon to someone to prevent testimony about illegal acts would constitute criminal obstruction of justice. So that’s a limitation he recognized on the President’s law enforcement supervision.

 

In his famous obstruction of justice memo, he said that the President can commit obstruction of justice if he knowingly destroys or alters evidence, supports perjury, induces a witness to change testimony or deliberately impairs the integrity or availability of evidence, another restriction they recognized under extent law on the President’s supervisory powers over law enforcement. In response to when Attorney General Barr recommended the sentence reduction for Stone in his sentencing hearing very controversially and the President of the United States tweeted in favor of that, the Attorney General went on television that evening in an extraordinary interview and said, “I’m not going to be bullied or influenced by anybody, including the President. I cannot do my job here at the Department with a constant background commentary that undercuts me. I think it’s time to stop tweeting about the Department of Justice criminal cases.”

 

Another example is Barr’s extraordinary failure -- Barr and Trump’s extraordinary failure to remove Geoffrey Berman at the southern district -- the U.S. Attorney in the southern district whom the president didn’t appoint, another solecism for the unitary executive. They were not able to remove him and replace him with either of their preferred choices, and they ended up replacing him with his first deputy, which was Berman’s preferred choice. And after they did so, Attorney General Barr issued an extraordinary statement where he said that the norms of the -- let me get this right.

 

He said that he recognized the norm against improper interference in a case by the Justice Department. He stated that if any actions like that occurred that the proper persons in the U.S. Attorney’s Office should notify the Inspector General of the Justice Department, another entity that is hard to square with the unitary executive and that Attorney General Barr has long criticized, and that the Inspector General would exam any such claims. And my last example is Attorney General Barr’s simply not following through on the wishes of the President of the United States to prosecute his political enemies, which the President’s called for in many contexts and on many occasions.

 

So these examples I went through quickly. There’s a lot to say about them. I think they’re all hard to square with at least the casual conventional wisdom about the unitary executive. They suggest that even in an administration of lawyers deeply committed to the unitary executive they recognize that Congress can constrain presidential power to enforce the law and that Executive Branch norms can and do constrain -- maybe not the President, but his subordinates in carrying out his commands.

 

Now, one response that one might make is that the President still has the firing power, another core power of the unitary executive. And he could fire everyone involved in these acts of either seeming insubordination or noncompliance with his wishes. And you might think that that shows that the President has ultimate control. And that’s the kind of nub of the unitary executive.

 

And it’s true that the President could have fired McGahn and Barr for the actions I just described, people who were notable proponents of the unitary executive theory. But it also shows that Don McGahn and Bill Barr believed in these norm-based and law-based constraints in these various contexts, even holding their broad conceptions of a unitary executive. I also think that the President’s power to fire, while it’s important in these contexts, it’s, at least as an absolute matter, purely theoretical.

 

The fact of the matter is that a President who loves to fire people and loves to exercise hard presidential powers failed to exercise them in all six of the examples that I used. And he acquiesced in these developments. And I believe that any theory of the unitary executive has to explain these developments. There’s more to say. But I’m out of time, so I’m going to turn it over now to Ted, who’s next.

 

Hon. Theodore B. Olson:  Thank you, Jack. That was very interesting. I have been reading your book. Someone should hold up the book so that everybody could see it. After Trump: Reconstructing the Presidency, it’s a very, very interesting book written by you and Bob Bauer.

 

And a lot of the book talks about violations of norms that have been attributable to the presidents over time. And you discuss many presidents besides President Trump, but you focus a lot on President Trump. And you make a number of recommendations with respect to changes that might be made in the powers of the President or limitations on the powers of the President.

 

So I’ll just talk a little bit about that. I think one observation that I might make with respect to what you’ve just described to us as violations of the concept of the unitary executive where the President may have expressed something one day and the people for work for him, either in the White House Counsel’s office or Attorney General Barr, didn’t do what the President seemed to want to have done when he made those statements. Now, I think anybody who has observed President Trump over this period of time knows that he tends to speak whatever’s on his mind at a particular time, sometimes in an interview, sometimes in a speech, sometimes in discussion with the press, sometimes on tweets and things like that. And sometimes he means them, and sometimes he doesn’t. And it’s difficult for those of us who are on the outside to know whether he means them.

 

I think Don McGahn and Bill Barr developed a report and relationship with the President that allowed them to exercise certain judgements with respect to whether they wanted to follow through, knowing full well that the President could have fired them if he was unsatisfied with the fact that they didn’t comply with his wishes. This business about Berman in New York City, of course the President could have fired the U.S. attorney in the Southern District of New York. But he didn’t. He put pressure on the situation so that Berman left, and maybe he did, maybe he didn’t get the person that he wanted to substitute for Berman.

 

With respect to the sentence reduction of Stone, Attorney General Barr may have said, “I’m paying no attention to -- and I’m not being bullied by anybody,” but he did change the recommendation of the Justice Department with respect to the sentencing. And as far as I know, as far as I can recall, the judge actually changed the sentencing from what was originally proposed by the staff who was so unhappy about that. It seems to me that -- and I should acknowledge a bias having served as Assistant Attorney General for the Office of Legal Counsel, a bias in favor -- and as Solicitor General -- a bias in favor of the unitary executive, a bias in favor of presidential power.

 

And I might echo a little bit of what Bill Barr said at the Barbara Olson lecture last November -- that there have been many, many instances over time where Congress has limited or purported to limit the power of the President, not necessarily to the good of the idea of the unitary executive and, in many respects, doing great damage to that concept. You talked about potential removals of the President’s subordinates. He should have the power to be able to do that. If he’s going to be able to execute the law faithfully according to his judgement, he ought to be able to remove subordinates.

 

Congress has created the whole concept of independent agencies, which contain restrictions on the powers to remove those officials, which are inhibitions on the President’s ability to enforce the law. President Roosevelt, if we go back, President Franklin Roosevelt -- go back as far as that, said the government was too complicated. It was very difficult for him to manage the government. And if the President is supposed to manage the government by faithfully executing the law, he needs to be able to remove the people who have responsibility to enforce the law.

 

President Kennedy famously said at one point in answer to a question at a press conference -- the reported asked him something, and he said, “Well, I agree with you, but I don’t know whether the government will.” Many, many other examples of inhibitions on the President to do his job. One of them that stands out in my mind — and it was something that was mentioned and discussed in detail by Attorney General Barr last year — is the entire concept of oversight by Congress -- congressional committees into every aspect of what the President and his subordinates or her subordinates do.

 

Someone’s calculated the number of committees that oversee the Defense Department, but it goes on and on and on. Congress requires reports constantly from Executive Branch agencies to explain what is being done, what isn’t being done, why it isn’t being done. There are subpoenas to -- sometimes subpoenas to members of the administration to come and testify.

 

The number of times that people have to testify are very substantial, and it takes a great deal of time to do that. Those are theatrical events in many cases. They’re highly partisan. They are not -- they are theatrical, and they’re not terribly constructive.

 

Then there’s the whole idea of special counsels, independent counsels, and things of that nature, which we know over time have interfered with the ability of the President to exercise his or her responsibilities. Then there is the investigations of presidential actions, which we’ve seen in bold letters during the Trump administration. Those investigations that are terribly intrusive -- and I’m not saying that they haven’t always been justified. I’m just saying that when there’s a constant investigation going on of the President from the time he takes office to the time he leaves office, when he’s got to respond to leaks from investigations -- and sometimes there are, and sometimes there aren’t. That is an enormous distraction to the presidency. And it’s a distraction to the President’s ability to enforce the law.

 

Then, there’s the advice and consent situation where Congress and the Senate frequently does not permit presidential appointments to the Executive Branch to be confirmed in any reasonable period of time, leaving vacancies. I did a calculation on the number of times cloture was invoked during the George H.W. Bush presidency, 1; during the Clinton presidency, 10; during the George Bush administration, 4; during the Obama administration, 17. And I hope everybody’s keeping count of that. That’s about 30 altogether.

 

During the Trump administration, 344. It has been very difficult for the President to fill his Executive Branch with people that work for him. So anyway, I’ve gone on a long time, but I’ve seen erosion of the power of the presidency. And I looked through Jack and Bob’s book, and I see these many, many additional restrictions being suggested. And I think that’s not necessarily a good thing for the presidency or for the Constitution. And I’m turning it over to Neil Eggleston at this point.

 

W. Neil Eggleston:  Thank you. I’m unmuted, right? Thank you, Ted. Thank you, Judge Jones, for your introduction at the beginning. I also want to say that I’m honored to have been invited to be a participant on this panel by The Federalist Society. It’s quite a distinguished panel, and obviously the topic is timely and quite important.

 

And for those of you who didn’t pay any attention to my biography when it was read, I just want to remind people that I have worked in the White House for two presidents. I worked in the first term of the Clinton administration, as well as President Obama’s White House Counsel. In that role, I obviously got to know Vice President Biden quite well. Indeed, his West Wing Office was essentially immediately below mine in the West Wing, and I saw him quite frequently.

 

As I’ve thought about this topic -- and I’m going to focus on the topic first and probably come back to some of the issues that some of the people talked to at the end of what I have to say, although I’ll probably run out of time. And then I’ll do it in the discussion. As I’ve thought about the rule of law, I really do think that the overarching principle as articulated by Judge Jones is that the instruments of government must be used for the benefit of the country and not for the benefit of the occupant of the White House for his, and hopefully someday her, political party.

 

We’ve taken to refer to some of this as norms. And as to certain aspects of it, I agree that it is a norm. But I think the fundamental concept is more than a norm. I think it’s enshrined in the actual language of the Constitution. And although this President ignored it, it should not be ignored.

 

And that is the embodiment of the Take Care Clause of the Constitution in Article II, which says the President shall take care that the laws be faithfully executed. That is one of his duties in Article II of the Constitution. And I believe the faithful execution of the law requires him to make decisions and execute those laws and make his decisions in a manner of benefit to the country and not of benefit to himself personally.

 

In addition, I want to remind people that the oath of office is actually set forth specifically in the Constitution. The Framers -- and those of you who’ve read the Constitution probably had the same reaction I do. If you get rid of sort of all the amendments and you go back to just the original Constitution, there’s not that much language in there. But the Framers decided to put the language of the oath of office specifically in the Constitution that the President had to give when he was sworn in.

 

People may remember that when President Obama was first sworn in there was a little mix-up between him and Chief Justice Roberts. And they actually did the oath of office again the next day. I think there was some concern. I wasn’t in the White House then. What I think there was some concern about was, if he hadn’t given the oath exactly as it was in the Constitution, would there be a claim later that he never had actually been sworn in.

 

The Take Care Clause — and both Jack and Ted know this better than I do — is frequently cited, particularly in OLC memos — they certainly were to me when I was White House Counsel — as essential an expansion of the power of the President. So whenever I got a memo from them on national security issues and the power of the President and national security issues, I knew I was going to read about three parts of the Constitution that provided the President with power to do whatever they were seeking to do in the national security space. And that’s the Vesting Clause, the Commander-in-Chief Clause, and the Take Care Clause.

 

The Take Care Clause was used and cited as an expansion, if you will, of the power of the President. I don’t think, frankly, that’s the way the Framers thought about the Take Care Clause. I think that the fact that the oath contains the language that the President agrees and he shall take care “that I will faithfully execute the office of the President of the United States.” But I think the Take Care Clause was intended to be a constraint on presidential power, not an expansion of presidential power.

 

And for those of you who are originalists as part of the audience or on this panel, I believe the historical record would show that more than today, actually, the concept of the oath was quite important and quite revered really at the time of the Founders and the drafting of the Constitution. And it had more significance than probably -- than it really does today. So thinking about -- so the point I wanted to make was much of this you can think of as norms.

 

But the constraint in the Constitution that the President take care that the law be faithfully executed, in my view, is not a norm. It’s a requirement of the Constitution, and it’s a solemn obligation of the President that the President agreed to when he took the oath of office. What does that mean in practice?

 

It means the President should not be calling for the Department of Justice and the FBI to prosecute his opponents in a presidential election days before the election. It means the President should not be firing the director of the FBI in order to take pressure off the Russian investigation. It is not being contemptuous of the Hatch Act.

 

If you think about it, the Hatch Act essentially mirrors the Take Care Clause in so many different ways, which is the principle is that taxpayer dollars -- that dollars paid by all the taxpayers, regardless of which party they’re supporting, which pay the salaries and rent and electricity of the White House and various parts of the Executive Branch should not be used to influence the outcome of an election particularly in favor of a person who’s currently in the White House. And so in my view, part of the respect for the Take Care Clause is not being contemptuous of the Hatch Act. It also means not directing the withholding of crucial military aid to an ally unless that ally announces an investigation of the President’s political opponent.

 

As you all know, I could go on and on and on on this list. Now, Ted sort of responds, “Well, you know, he just talks off the cuff. He says things. He doesn’t always mean them.” Jack says, “Well, you know, he didn’t always get people fired. He didn’t always follow through.”

 

I know that probably lots of people on this call were not thrilled with the interview by Leslie Stahl, but she did say one thing I think everybody has to agree with, which is that the President of the United States is the President. He is not somebody’s crazy uncle, and when he speaks, people listen and pay attention. And I think we’ve seen that over the last several years.

 

Let me just address sort of Jack’s unitary executive argument just for a second. And I think the basic principle has been that the President has tried to do a lot of things that the members of his administration just essentially would not go along with and wouldn’t let him do. I have to tell you -- and I think we’ve already seen certain aspects of this in the last week or so. I think -- and I think I’m pretty right that if the President had been re-elected to a second term we would have seen very different people at the senior levels of the Executive Branch and people who would have followed those commands by the President.

 

He’s already fired Mark Esper. He’s fired a number of other people. Most of the senior leadership of the Defense Department are now gone. This has all happened after I believe he’s lost the election. I think that we’ll see a number of additional firings to come. And I think, Jack, I just got to say it may be that he made decisions about who he would surround himself with in the first term. I think that if he had been elected to a second term we would have had a very different sort of composition of the senior executives at the various different agencies who would have been much more willing to follow through on the tweets and commands and the like that the President would have continued and I think probably would have increased the frequency and volume of those demands.

 

Just a few other sort of thoughts, I heard Ted talk about the investigations and how debilitating they can be. Ted and I are old enough to remember the Clinton administration. I was involved -- essentially was there the first term but remained involved because of the Whitewater investigation throughout the second term. President Clinton was under investigation from day one to the final day of his administration, and subpoenas showed up every day.

 

In some ways, President Trump simply decided not to cooperate and ended up litigating all these various different issues up to the Supreme Court, certainly through the D.C. Circuit and up through the Supreme Court. It was a very different response. Obviously, the Senate, which was Republican, did not really investigate the White House. But the House attempted to, and largely President Trump decided not to cooperate with the House. So although there were some efforts at investigations, I really think that not all that much happened.

 

And then the last point I just want to talk about is Ted’s reference to the various different filibusters. And let me just say ultimately, obviously, the filibuster has been loaded down and abandoned. I’m not going to offer my views on this now. But I’d be quite interested and have wondered if people in this organization or other conservative organizations would have talked about the President’s penchant for using acting appointments and performing the duties of appointments to fill out the senior ranks of his administration.

 

Ted, for most of these, there hasn’t been a filibuster. He has nominated anybody. So there’s been nobody to filibuster, and there is no more filibuster. The Constitution requires that the President nominate people for these positions so that the Senate can provide advice and consent. The theory is in the Constitution there is a constraint on the President’s power to fill out the senior ranks of the various different agencies. And that’s explicitly in the Constitution.

 

That isn’t made up by somebody else. And yet, the President has sought to avoid that. I’m sure everybody on the panel knows and most of the people probably in the audience know, but Justice Thomas in his concurrence, I guess -- I can’t remember which. It was a dissent or a concurrence on SW General, which is one of the vacancies reformat cases that I was White House Counsel at the time and lost. So I know the case pretty well.

 

But Justice Thomas commented about whether any kind of acting appointment would be constitutional because of the explicit provision in the Constitution that the senior executives be nominated by the President and subject to the advice and consent by the Senate, which are explicit terms in the Constitution. So in any event, I very much have appreciated this and looking forward to the discussion later. And I’ll turn it over to Boyden Gray.

 

Amb. C. Boyden Gray:  I thought I unmuted myself. I hope I have. This is a great honor to be on this panel, to follow a successor of mine, I suspect. And I know everybody on the panel. And my father, who was -- as I suppose I was for the first part of my life -- but he was a born and bred southerner. If he knew I was on this panel, he would have said, “Son, you are way in high clover.” So that’s the way I feel about it.

 

I want to talk about an area of the law -- rule of law which may seem counterintuitive on this panel -- but talk about an area where I think, as a conservative, the President has too much theoretical authority. But that authority’s being raised by what might be called the fourth branch of government beyond the control of any branch of government. And that’s the question of the delegation of legislative authority to the Executive Branch.

 

Now, Jack goes into a little bit of this in discussion of the delegation of emergency powers ’76 and ’77 statutes which grant open season really to the president. Senator Lee has said, “Gosh, if we don’t like what the President’s doing, we should stop whining about it. We gave him the authority, and we ought to take it back.”

 

But I don’t view those emergency issues as anywhere near as serious as the much broader question of just the wholesale delegation of legislative power to the independent agencies, which they then interpret in ways that the current law says the courts really can’t second guess or judge, notwithstanding the fact that both the Constitution and the Administrative Procedure Act require the courts to adjudicate of what the law is. So I’m talking about the non-delegation doctrine, which I suppose, Cass Sunstein said had 230 good years and one bad or something like that. Schechter Poultry and Panama Refining going back to the Roosevelt Era.

 

It’s been used as a cannon of construction to narrow statutes frequently, and that’s a good thing. But we have a situation where the President has -- the Executive Branch has been given too much authority, too much ambiguity, too many gaps which they then rush in to fill. And it’s very hard for any president, given the limits of the size of the White House Staff and OMB — Office of Management and Budget — it’s really very, very difficult for any president to monitor the tsunami of regulations that come spewing out of these agencies.

 

And the courts have no basis upon which to make a judgment one way or the other as to whether they comply with congressional intent because there’s not enough guidance in the statute to understand -- to use, to utilize, to apply. And I think this is a major cause of our current discontent. I think that it has disenfranchised the little guy to the benefit of the big guy who can cozy up to the big bureaucracies.

 

And the big bureaucracies like big guys because there are fewer to boss around. And it’s a question of who really is in charge. Is it the big guy on the outside? Has that big guy capture the agency? It probably has in most cases. And we have some very bad examples, which I could just give two or three, which I will in a second, of where the agency has run off with the power and let the regulated entity or entities or bodies to just do what they want to do.

 

And this is not what the Constitution provides. The Constitution provides the separation of powers, and it’s Congress’ duty to tell the Executive Branch what law to apply, not to give it the power to determine what the law is and then to apply it, which is what we have now in our current situation. And the damage that’s done to people who don’t have a ready access with armies of lobbyists to the agencies -- they get cut out.

 

So we have this difficulty of agency supported semi-monopolization, which is bad for -- very, very bad for wealth creation, for innovation, and very bad for the proper oversight or administration of the law. The President can’t possibly see the law is being properly applied with the tsunami that Congress has turned over to the agency. So is there a way to do this? Well, I think, yes, there is.

 

I think the Supreme Court is ready and now has the votes to strike a few statutes down like Panama Refining was done and Schechter Poultry back in the ‘30s. And I think that would shame Congress into taking back some of the responsibility that it has totally abdicated. And this sounds maybe counterintuitive to this panel, but I believe that it is the source of great confusion and bad administration and very bad for free markets and liberty.

 

And it is a question of separation of powers. It is a question of having the three branches operate as they should. And it means the courts probably have to get in and kick Congress around a little bit, but it’s hard for the President to manage what the Congress has totally abdicated.

 

So I will end there. I hope that, Jack, you will address in a future edition of your book this area of delegation. It’s not emergency powers. It’s the power over everything else that we do -- over everything that we do. And it’s not -- it’s a free for all. So I hope you will address that.

 

I hope others on this panel will address it. I’ve, as the judge’s pointed out -- or as Neil pointed out, spent my life worrying about this, so I’m perhaps a little obsessed by it. But it is something I believe very, very important. And with that, I will turn it back to the judge for further proceedings. Thank you.

 

Hon. Edith H. Jones:  Yes. Well, we can go in regular order or if someone has something particular to say. Jack, you’re turn.

 

Hon. Jack L. Goldsmith:  Could I respond to a few things? So thanks. So Boyden, I agree with you about delegated powers of the administrative state. And I don’t know if you remember, but you were present when we presented an early draft of this book. And you urged us to put that in and address it. And it’s too big a problem. It would have taken another book, and so we sliced off the areas of delegated power that were closer to the issues we’re talking about, emergency powers, war powers. But I generally agree with what you’re saying about the administrative state.

 

I also want to respond to a few things that Ted said. So I too worked in OLC and I too believe in a powerful presidency. Indeed, a powerful presidency is -- maintaining a powerful presidency is a premise of the book that Bob Bauer and I wrote. But I don’t believe that a powerful presidency or even the most powerful presidency is [inaudible 55:01]. And I don’t believe that that is an accurate description of our presidency. And I think that the Trump administration shows that.

 

So I will just say that the idea that the criminal laws constrain the President is not an idea that’s new to me. It began with deputy -- in the Executive Branch with Deputy Attorney General Silverman’s opinion on this issue. He’s no slouch on executive power. It’s reflected in OLC opinions that pick up on that. And there is some constraint on the President’s ability to -- and Bill Barr recognized this in testimony and in his memorandum. There are constraints, and whether they’re well enough reflection in congressional statutes is another question.

 

But there are constraints on the president’s power to enforce the law when he gets into certain areas. And unitary executive theory needs to come to grips with that. And I think that these constraints are good and important constraints. As for the norms, my point was simply that I think we’ve seen in this administration that was supposedly violating norms -- we’ve actually seen an extraordinary reaffirmation of them. It’s kind of been hidden amidst the flurry of President Trump’s rhetoric, but I think we’ve seen an extraordinary reaffirmation of them.

 

And I think that Attorney General Barr explained why. He made what was in my view a perfectly legitimate suggestion overruling the subordinate recommendation. And that was going to be controversial enough. But when the President weighed in and said, “Way to go, Bill. Great job. Way to listen to me,” it appeared as if, when the President was interfering in that matter involving a friend of his, Barr said that undermined him because it did make Barr look political.

 

Barr, I’m sure, was making a legal judgement about what he thought was right. But it made it look like it was political. And it undermined what Barr was doing, as Barr said. And it’s a very good example of how and why we have these norms.

 

A similar example was when the then President Obama intervened in the Clinton email investigation and said in the middle of it, violating the same norms we’re talking about now, that “I don’t think she meant to do anything to harm national security.” And Jim Comey later said that he viewed that as undermining him, as pre-judging the case. And he gave it as an example for why he took some of the extraordinary steps that he took.

 

So I think there are good reasons for these norms. I think they’re related to political expectations of our society. I think they actually go back to Watergate and conservatives starting basically with Bob Bork’s firing of Archibald Cox. And I just think that they’re important constraints that need to be taken into account and explained by unitary executive theory.

 

If I could just say a few quick words about the book that Ted kindly mentioned, the book is not all about constraining presidential power. In several instances we argue for enhancing the power of the Attorney General and ultimately the President. Two examples are we think that the Mueller investigation showed that Attorney General Barr did not have adequate control of legal interpretations for the Executive Branch, that the regulations were not adequately clear on that. And that needs to be clarified.

 

We also think that it was a huge mistake that it wasn’t clear in Justice Department policies that the Attorney General has to make the hard call, not the FBI Director, on a whole slew of things, including opening up criminal and counter investigations into the President. So the book is not just about constraining presidential power. And on some issues, there’s been a 50-year consensus that certain things like conflicts of interest, corruption, tax disclosure -- these are things conservatives were always in favor of. Assistant Attorney General Scalia said that even though at the time the conflict of interest statutes didn’t apply to the President, of course every president would want to comply with them. And we’re simply suggesting that those norms be converted into law.

 

And the last thing I’ll say is that I agree with Ted about the Senate and the confirmation process. So we have a chapter on vacancies where we suggest that the vacancy discretion of presidents -- and President Trump is not the first to exercise this power broadly, as we make clear in the book. We do suggest tightening up the President’s discretion on vacancies, but we acknowledge the point Ted made. It’s not just a question of the Senate not confirming. It’s also the Senate has not required -- a Congress has not required over 800 Executive Branch positions to be Senate confirmed.

 

And the combination of the Senate growing increasingly recalcitrant about confirmations and having a higher number, there shouldn’t be a deal -- there shouldn’t be a reduction in presidential discretion on vacancies until the Senate fixes that. That is the deal that we propose, and I think that’s the only deal that’s conceivable there. Thank you.

 

Hon. Edith H. Jones:  Ted, would you like to say something?

 

Hon. Theodore B. Olson:  Of course I would. Thank you, judge. I will say first of all that Jack and Bob’s book is terrific because it goes through so much history and in so many different administrations. I don’t think they expect everybody to agree with every one of their recommendations.

 

And I do acknowledge that in some respects it talks about further liberation or further freedom for the President to some operations. The example that he gave about the allocation of the assignment of power to Mueller wasn’t sufficiently explicit, and it needed to be improved and so forth. Well, that’s up to the -- those are Justice Department regulations, and they should -- if they want to fix them, they should fix them.

 

I am a big skeptic about special counsel investigations. They tend to go on forever. They tend to degrade their own bureaucracy. They tend to incentivize excessive use of prosecutorial authority by going after friends and associates and anybody having anything to do with the subject matter of their investigation so that they can prosecute people for events that have nothing to do with the purpose of the investigation in order to coerce cooperation from those individuals. I could go on and on because I’ve had a personal experience with independent counsel investigation.

 

And Neil’s comment about it going on for eight years during the Clinton administration, I don’t know the degree to which that inhibited President Clinton’s ability to be an effective president. I would have thought that it did. And I thought that President Clinton felt that way, that not only was it the Whitewater investigation, but it was investigations of various members of his cabinet and administration. And it seemed to me to be a tremendous distraction.

 

We are now with -- we’ve had impeachments as a part of the process that inhibits the power of the President if they’re not well grounded -- and I’m not making any judgement about any of the impeachment proceedings. But those types of things that take away from the power of the President to do what is the Vesting Clause of the Article II, the executive power shall be vested in the President. And the president needs to be able to do that.

 

I’m skeptical of a lot of the reforms. Although Jack and Bob’s book does have some things in it other than reforms, it has a lot of reforms and includes dealing with the press and other things. I’m kind of skeptical about these things because frequently these reforms come along, and then they’re worse than a disease. And they never go away.

 

And the Framers of the Constitution -- and maybe I’ll stop at this point. Well, maybe two more points. The Framers of the Constitution knew that this government was going to be implemented, executed by individuals, that individuals were flawed, that they were sometimes not acting in the best interest -- would not be acting in the best interest of the country. Hence the separations of powers, the division of legislative authority -- and Boyden’s certainly right about that. Congress frequently doesn’t do what it should do with respect to congressional enactments to authorize the enforcement of certain laws because members of Congress don’t like to vote on anything controversial because someone might not like it. And it might hurt their subsequent election.

 

So they vote for noble phrases like fairness and things like that. But the Framers, because they separated the powers because they thought that -- they knew that individuals would be flawed, they put in lots of checks. And we just experienced one, an election to the extent that the citizens of this country did not like the manner in which President Trump spoke or the manner in which he threatened people or the manner in which he executed the laws. They exercised their franchise, and we have -- and I do believe the election is over.

 

We do have a new president, and we do because a large number of people expressed disapproval, whether one agrees with that or not, of the manner, style, and techniques of this particular President. So we do have a Constitution that works pretty well. At the end of the day, we’re going to have flawed individuals holding that office, and the people ultimately have the responsibility and opportunity to make a change when they feel it’s appropriate.

 

Hon. Edith H. Jones:  Neil, have you anything? Yes.

 

W. Neil Eggleston:  Thank you, judge. I’ll be quite quick, and I think I’m going to end up agreeing with the panel members more than disagreeing with them on this one. Which is first as to Boyden -- as to the independent agencies and administrative state, we just had Seila Law decided only just a couple months ago reaffirming essentially Humphrey’s Executor under the circumstances. And so I suppose they could revisit it, although I suspect they won’t revisit it all that quickly.

 

I do, Boyden, agree with you that the delegation issue really needs to be looked at. I would -- I suspect no legislation is going to get through this Congress, but I would look at IEPA, the National Emergencies Act, some of the national security tariffs, which just provide an enormous amount of unchecked discretion to the President. And I think those are all pretty problematic. Jack would know the details of this better than I do.

 

But a number of these were initially passed in the pre-Chadha era. And Chadha, for those of you who aren’t Jack, will remember that’s the case where the Supreme Court essentially said that Congress had to act through both houses passing a bill and the President signing it and couldn’t have, essentially, like a one house veto. A lot of these that when Congress provided this much discretion to the President, Congress thought it was going to have this check of being able to have a House vote and overturn whatever the president did. Those were struck down for a number of those. So the discretion really remained. I think those are areas that really do need pretty serious look because there’s such an enormous grant of discretion to the President in very significant areas.

 

As to the independent -- well, just one point. Ted, I didn’t mean to suggest that President Clinton didn’t think those investigations impacted him. They very much impacted him. And maybe you hadn’t said this, and I was more responding to things that President Trump had said about he’s the most investigated president ever. And I think having lived through the Clinton investigations, I think President Clinton would significantly disagree with that characterization, who had lots of investigations. And Chairman Burton, we just got subpoenas like sort of handfuls pretty much every day.

 

And finally, as the independent counsel investigations, I don’t actually think the statute is unconstitutional. I know that, Ted, you certainly do. I don’t agree with Justice Scalia’s, I think, long dissenting opinion in Morrison v. Olson. I do think it’s a bad idea. I think it puts -- the statute puts improper motivations on people, as Ted said. And I think frankly we saw that particularly with respect to Judge Walsh in the Reagan era investigations and frankly with Ken Starr in the Clinton era investigations, which were both unseemly in my view and exorbitant.

 

There’s some other examples. I represented Alexis Herman, who had an independent counsel appointed that it was by Ralph Lancaster, a lawyer in Maine — very prominent lawyer, a nationwide lawyer, happened to be based in Maine — did a very professional, very thorough, low-key, out of the press investigation and did not use it as an occasion to enhance his own stature. So in that sense, like so many things, who you pick can have an impact on whether something is successful or not. But in any event, judge, that’s what I have, and I’ll turn it back to you.

 

Hon. Edith H. Jones:  Well, before -- I’ll be turning it over for questions in just a minute or two, but I do think it’s sort of interesting when all these accusations are made about the abuses of the Trump presidency that nobody understands, I think -- or nobody has voiced the depth of what must be disbelief when a president learns that false warrants have been filed with the FISA court in order to obtain very significance surveillance -- what he called wiretapping -- but surveillance of people involved with his campaign and then that he was set up in an interview by the former director of the FBI and then the purpose of that was to leak something to the press over what was eventually considered a totally false dossier that had been funneled through many odd sources for use by governmental investigators, which became a totally baseless prosecution.

 

Now, President Clinton might feel that what transpired with him was essentially the same, but he was not subject, as far as we know, to the same level of surveillance and patent illegality by the levels of government. With regard to Boyden’s comments, there is no doubt that the excessive delegation to independent agencies has been exploited. The last 20 years have demonstrated that in a major way.

 

The previous administration before the Trump administration exploited it to inflict tremendous changes on our economy in the nature -- for alleged purpose of environmental regulation. The Trump administration has tried to roll back a lot of those. The incoming President has already announced that he’s going to change all those.

 

And so this delegation of executive authority is leading to ratcheting, uncertainty, instability. And therefore, what I fear is a very fundamental challenge to our economy going forward, even totally apart from the pandemic. So with that, I will just shut up, and if anybody wants to say anything in response to that, please feel free. Or else I can attempt to start asking questions from the attendees. Jack?

 

Hon. Jack L. Goldsmith:  I think Boyden has a question.

 

Hon. Edith H. Jones:  I don’t see him there anymore.

 

Amb. C. Boyden Gray:  You don’t see me? You don’t see me?

 

Hon. Edith H. Jones:  I see you now. Yes.

 

Amb. C. Boyden Gray:  It’s just an observation that, in keeping with that, the strengths that have been acknowledged in this session, I think everybody on the panel will appreciate the fact that I think that Barr and the President and others involved exercised extraordinary restraint in not doing anything with the Durham report or otherwise pursuing any of the issues, judge, you just raised about the Steele dossier and the FISA warrants. Just to remind people that Walsh, who, Neil, you referred to, not with the kindest approval, I think -- that he effectively indicted the President five days before his reelection in 1992. And no president can survive an indictment five days before he’s up for reelection and there’s no early voting the way there is today. So I just want to make that comment that there’s a lot of restraint that has not been acknowledged when you compare it to what Walsh did.

 

Hon. Edith H. Jones:  Okay. If you are participating by phone and wish to ask a question, you have to dial star nine. I will first recognize Lee Otis, one of the members of the board of The Federalist Society.

 

Lee Otis:  Thank you so much, Judge Jones. I guess I do think that theories of the unitary executive recognize but perhaps in a way that isn’t sufficiently discussed that the authority that has to be reserved to the President is not an authority to dispense with following the law but is instead authority to control discretionary decisions by other Executive Branch agents. And that’s why, for example, executive privilege won’t be available to protect evidence of wrongdoing. And so I guess I’d just like to get people’s thoughts about that and how that -- I think the devil may be in the limitation of that.

 

But it does seem to me to be a pretty clear limitation on the theory because otherwise, as Neil says, what is the point of the oath and what is the point of the Take Care Clause? I mean, I do think there’s a -- I think the Framers also probably intended a negative [inaudible 01:15:26] from the Take Care Clause, which is that the President had the authority to take -- had the necessary authority to take care, etc. But it does seem to me that that’s really not -- that some of what Jack was pointing to was exceptions or sort of reasons to doubt the theory in practice, which I do agree there may be some reasons to doubt that it really operates fully in practice. But I don’t think the proponents of the unitary executive really doubt that the president has to follow the law and that he cannot direct his subordinates to not follow the law.

 

Hon. Edith H. Jones:  Jack, do you --

 

Hon. Jack L. Goldsmith:  Sure. I’ll respond to that. So I agree with that, Lee, to some extent. But I think it begs the question -- and I’m begging the question, too. And let me explain why. The question is what laws can constrain the President? How far can Congress go in constraining the President when he’s exercising his supervisory power over the law enforcement process?

 

And some proponents of the unitary executive speak as if -- and again, as I said at the outset of my remarks, there’s actually no canonical statement of this. And everything I’m about to discuss I believe is contested among unitary executive theorists and scholars and practitioners generally. The question is how far could Congress go? How far has it gone and how far can it go in constraining the President’s discretion when he’s supervising law enforcement or prosecution?

 

So yes, maybe the President can’t violate the law, but what if the law -- but the question is how far can the law go in constraining him? And the only point I was trying to make -- and there was a discussion about whether the obstruction of justice statutes apply to President Trump in the context of exercising his removal power. And I agreed with Attorney General Barr in his pre-Attorney General memo that the plain statement rule almost certainly applies there. But in other circumstances Attorney General Barr has recognized that the President can violate the bribery laws and the obstruction of justice laws by engaging in certain actions that Barr never really explained why he thinks so.

 

But I think the theory is that certain exercises of executive power -- this is the theory suggested by then Deputy Attorney General Silverman, picked up in some later OLC opinions. The theory is it’s not that the President can’t violate the law but that certain exercises of presidential power aren’t proper exercises of executive power, and therefore the President is subject to ordinary criminal penalties. So for example, the example that I believe Silverman used and that OLC picked up is, if the President is subject to the bribery statute because, if he accepted a bribe, he couldn’t be exercising executive power.

 

Well, matters are actually more complex than that. What if the President was exercising a pardon in exchange for a bribe? On that question, Attorney General Barr said in his testimony that he thought that the President could be subject to liability there. So I don’t think that the way you put it makes the problem go away. I think it really enhances and highlights the problem.

 

I don’t know exactly where the line is as to how far Congress can go in constraining the President’s exercise of supervisory power over law enforcement. I do believe it can regulate it to some extent. The Court really has never addressed this in any meaningful way. Morrison didn’t really get at this. And so I just think it’s an open question as to how far Congress can go. But I think it’s more complicated than just saying the President, of course, can’t exercise supervisory power in a way that violates the law.

 

Hon. Edith H. Jones:  We’ll call next Mr. Sean Ross.

 

Sean Ross:  Hi, I want to pick up on what Mr. Goldsmith brought up, the “60 Minutes” interview with President Obama in 2015 -- that he didn’t think that the email server posed a risk to national security and that the investigation, which had already been ongoing at that point -- the FBI investigation, was ginned up for political purposes. Later, of course, we know the emails contained compartmentalized information. We also were served with claims that unsecured emails, even non-classified ones, could be great putative national security crisis.

 

Now, it’s reported that the Mueller investigation concluded that there was no conspiracy pretty early on and for about a year and a half-investigated obstruction of justice. And among the theories of obstruction of justice was had the President committed material acts of that offense through tweets.

 

Hon. Edith H. Jones:  Mr. Ross, get to your point, please. You have a question.

 

Sean Ross:  I certainly do. So my question’s simply this. Is the theory under which the President was investigated for obstruction of justice, apart from style or form but substance only -- is that the same that could have been used to investigation President Obama for the “60 Minutes” interview?

 

Hon. Edith H. Jones:  Mr. Eggleston?

 

W. Neil Eggleston:  So I’ll take that. I had the same reaction when Jack said it. So President Obama was President for eight years. And he made a misstatement or mistake in something that he said on one occasion. And I think to compare that to what President Trump has done on virtually a daily basis urging the Department of Justice to intervene either to help his friends, to benefit people under investigation, or to prosecute Biden days before the election, I think the comparison between those two is sort of wildly sort of misplaced.

 

And in just an answer to the question, I would say that the comment that President Obama made, which had pretty much no impact whatsoever, is wildly different from the seven or eight instances of obstruction of justice that Bob Mueller found in connection with the president. And on this issue, there’s a fascinating legal discussion in the Mueller memo or Mueller report on this very issue of where the line is on what the President could be indicted for in connection with obstruction of justice because essentially of the unitary executive theory.

 

I’m not entirely sure I agree where Mueller draws the line. I think some of the examples that Jack gave are good. I’m completely agree with him that the line isn’t very clear. But I actually thought it was commendable of Mueller to try to come up with a theory about where the line would be.

 

And I do think that -- in response to what Lee said, I do think that the principles, though, are basically the same, which is the President doesn’t have the power to violate the Take Care Clause. And if the President is acting in violation of the Take Care Clause, he’s not acting as President. He’s acting as an individual because the Take Care Clause is in the Constitution and I believe acts as a constraint.

 

And I think Jack has written some stuff disagreeing with this and talking about the application of the plain statement rule. I’m just not sure how applicable that is to obstruction of justice statutes as opposed to issues like whether FOIA applies to the President. It seems to me that’s a very, very different application. But anyway, that would be my thoughts on those issues.

 

Hon. Edith H. Jones:  For the speakers, if any of you want to comment, why don’t you raise your hands, or else I’ll go on to the next question, which is Professor Ilya Somin.

 

Ilya Somin:  Can you hear me?

 

Hon. Edith H. Jones:  Yes, thanks.

 

Ilya Somin:  Great. So thank you to Judge Jones and to the speakers for your many excellent points. I wonder if I might ask a question about the unitary executive in that the idea that all the powers of the Executive Branch should be concentrated ultimately in the hands of one person. That may make excellent sense if the power of the executive and the federal government generally is limited in the ways that it was at the time of the founding. But in the modern Executive Branch, the Executive wields enormous power over all sorts of issues that were not thought to be within the scope of federal power at all at the time of the founding.

 

Just in the area of federal law enforcement authority, the two biggest ones are probably immigration and the War on Drugs in terms of the number of people that are affected or detained or imprisoned. And neither one of those was originally understood to be within the scope of federal power to anything like the same degree they are today. So if we accept a non-originalist vast expansion of the scope of federal power, then it’s not clear why we, at the same time, should be originalists and textualists about the question of the idea that all of this should be under the control of one person -- that it seemed to me an Executive Branch which is vastly more powerful overall than it was under the original meaning.

 

Maybe the solution to that is just roll back the overall power of the Executive Branch. But if we are unwilling or unable to do that, then maybe we should be willing to bend on the idea that all of this should be in the hands of one person. Maybe an Executive Branch as powerful as it is today there should be room for Congress to have certain prosecutors or certain other officials that have some independence from the White House and also the risk of self-dealing by the White House, I think, is much larger in this situation where the amount of power within the Executive Branch is so much greater than it would have been at the founding.

 

So to sort of ask a question, is the original idea of the unitary executive compatible with the very non-originalist expansion of the scope of executive power and federal power generally?

 

Hon. Edith H. Jones:  Ted? Boyden?

 

Hon. Theodore B. Olson:  Yeah. I’ll take a little bit of a shot at that. It seemed to me that the premise was that, because the courts have allowed the federal government to exercise powers that maybe weren’t contemplated at the time of the framing, that then the Executive power should be limited accordingly. It seems to me that, to the extent that Congress is exercising its enumerated and the courts have upheld that, whether it be commerce clause or immigration or the criminal laws or things of that nature, those create opportunities to execute the law.

 

And the Framers went through a big debate over the weekend of the 4th, 5th, 6th, 7th of June in 1787 about whether the Executive power, once it’s created by Congress and once Congress has decided to execute or to act on enumerated powers to create laws, that whether the enforcement of those laws should be vested in a single person or in multiple persons. And the debate was like nine to four or something like that. I can’t remember the exact number -- that for various reasons it was not good to put that power in the hands of a multiple persons. And this is discussed, of course, in the Federalist Papers as well.

 

So it seems to me that it’s almost chronological. But to the extent that it is a lawful exercise by Congress of the power to create laws, the execution of those laws should be vested, according to the first words of Article II, shall be vested in a President of the United States, not multiple presidents and so forth. And Congress shouldn’t be able to control that through constraints on the power to remove.

 

And I will say one more thing about the previous discussion about the President’s responsibility to obey criminal laws. I don’t agree with Neil that anybody makes the argument that if the President is failing faithfully to execute the laws, then he is then subject to criminal enforcement or something like that because people argue all the time that the President should enforce this law in a certain way or should enforce this law and that sort of thing. This has got to be more complicated than that. I did write an opinion or testimony to Congress that when the President violates a criminal/federal statute, he could be indicted while in office.

 

I know OLC has written an opinion that says that he cannot. I went through the Constitution, and I couldn’t find a constraint on the authority to indict a president if there was a clear violation of a generally applicable law, not something that Congress comes up with because they want to constrain the powers of a particular president. But generally applicable criminal laws I would think that the process could be applied against the President.

 

Hon. Edith H. Jones:  Thank you.

 

Hon. Jack L. Goldsmith:  Can I say something briefly on that? I’m sorry.

 

Hon. Edith H. Jones:  Greg Dolin? Oh, I’m sorry, Jack. Excuse me. Please go ahead.

 

Hon. Jack L. Goldsmith:  I just want to say very briefly to Ilya I think what you describe should happen has happened. I mean, there’s been -- there’s no doubt that the President has garnered extraordinary power in a generic way, in an increasing way for the last 230 years. It’s been rising and rising and rising. But at the same time it’s been rising, the kind of constraints that Ted was noting in his opening remarks have been rising. Congress has at the same time [inaudible 01:30:05] in terms of presidential discretion to implement laws and do all these things.

 

It has imposed a whole bunch of restrictions on the executive that are novel in the last 50 or 60 years in terms of Inspector General, reporting requirements, oversight requirements, FOIA and the like, everything in Bill Barr’s famous memo about 10 encroachments. I think actually that in addition to outsourcing law making to the Executive, Congress has also outsourced oversight to the Executive and to private causes of action. And so I think what you’ve just described has happened.

 

Whether it’s happened in an optimal way and whether instead of delegating both law making and oversight to other institutions Congress should be doing it itself, I mean, I don’t think it’s a great outcome overall. But I think what you’ve described has actually happened.

 

Hon. Edith H. Jones:  Boyden?

 

Amb. C. Boyden Gray:  Well, I’m not sure I disagree with Jack. But the Consumer Product Safety Commission, which has been referred, to has had its wings clipped a little bit. But I just want to remind people that when it’s budget courses, not paid by the Congress -- Congress has given away the power of the purse. Congress made this originally beyond the control of the President, basically took the law power -- the law judiciary power to review away. So it’s like Jupiter orbiting in its own little orbit.

 

And when the head of the agency was called to Congress to testify — he didn’t have to. He sort of volunteered — he was asked, “Well, how to you justify spending $200 million on a renovation of your headquarters?” And his answer was “What does it matter to you?” So that’s not a good situation to be in, I think, for the country. So Congress has to step up, and the courts have to give a little boost to congressional responsibility.

 

Hon. Edith H. Jones:  Next person in the queue is Gregory Dolin, D-O-L-I-N.

 

Gregory Dolin:  Thank you, Judge Jones, and it’s a pleasure to see everybody on this panel. Thank you for a stimulating discussion. I wanted to follow up on what Ambassador Gray was saying for both his opening remarks and just now and perhaps turn it around from asking whether or not the President has too much power or too little, for that matter, but whether or not Congress has been jealously guarding its own power from creating independent agencies like CFPB that’s self-funding to kind of, for example, the abolition of filibuster on nominations, which of course redoubted the benefit of both parties but also sort of gave away some congressional ability to really hold nominees to account. And it just seems to me that prior, senators like Senator Bird probably would have never consented to it.

 

But now, senators view it less as a kind of exercise of their power and more of a winning in a grander positive scheme of things. So I guess my question is this. Can the rule of law survive when, instead of kind of jealously guarding each owns -- instead of each branch jealously guarding its own power, as our Founders intended, now branches, I suppose Judiciary excepted, really are looking for policy wins at whatever cost they come. And if that can survive, what potential prescriptions might we have to restore the balance to the branches? Thank you.

 

Hon. Edith H. Jones:  Who would like to take that on?

 

Hon. Theodore B. Olson:  Well, I -- Judge Jones?

 

Hon. Edith H. Jones:  Yes, go ahead.

 

Hon. Theodore B. Olson:  I think that one of the things -- the Supreme Court’s been thinking about the degree to which it will continue to defer to the judgements of Executive Branch agencies under the Chevron doctrine and the other cases that -- Auer deference and Chevron deference and that sort of thing. It might be that the Supreme Court render some decisions saying we’re not going to defer to the exercise of the interpretations or regulations of administrative agencies or Executive Branch agencies, for that matter, when they’re exercising power way beyond that which has been explicitly delegated to them by Congress.

 

So what Boyden says is very, very true. And what I said before is that it comes out of the fact in part because members of Congress don’t want to vote on anything controversial, so they vote on mush, which they then pass on to the Executive Branch or so-called independent agencies. I can never say the word “independent agencies” without saying “so-called” because I never -- when I first came to OLC, I kept looking through my Constitution for Article I, the Congress; Article II, the President; Article III, the Judiciary -- and this fourth branch of government that everybody was talking to me about I could not find anywhere.

 

But to the extent that the courts have given too much deference where Congress was not sufficiently specific about what it intended or what it intended to constrain, then I think that maybe Congress and the agencies will simply have to narrow down the extent to the exercise of their powers.

 

Hon. Edith H. Jones:  Anyone else care to jump in? Alrighty. The last questioner in the queue is telephone [omitted]. So identify yourself, please, or unmute yourself. You’ve got your hand up. 443 --

 

Questioner 5:  Yes, Your Honor, can you hear me?

 

Hon. Edith H. Jones:  Yes.

 

Questioner 5:  Very good. Thanks very much. I realize we’re very short on time, so I’ll be brief. I’m interested in the panel’s response to a potential solution. It seems like the ways that unitary executive could be abused are fundamentally either the Congress sort of concedes its power as discussed through writing vague laws and allowing the administrative state to sort of fill in the blanks. That’s one danger. The second seems to be fundamentally what could be thought of as prosecutorial discretion.

 

I know that there are a number of fairly controversial Supreme Court decisions that came out of at least the prior administration as a result of that administration electing not to enforce laws that were on the books at the time. So if Congress were to reassert its power — and I realize that may be asking a lot of current policy in the political environment — both by, number one, reasserting its power to actually write the law rather than allow it to go through the regulatory process and then prioritize and appropriate resources -- or prioritize the enforcement authorities and then appropriate sufficient resources and then provide oversight, I’d just be curious as to what extent -- and I realize this is very hypothetical, but what extent that might address the problem.

 

Hon. Edith H. Jones:  Ted?

 

Hon. Theodore B. Olson:  Well, I’ll be happy to speak a little bit about that, but it seems to me that’s right down Boyden’s alley in terms of what -- yes, it would be great if Congress would do that. And it could use the power of the purse, which Boyden pointed out with respect to the CFPB it had given away completely to the agency to write its own budget out of the Federal Reserve money so there wasn’t any appropriation of powers at all. But Congress needs to do that sort of thing. And hopefully, there will be some impetus to go ahead and exercise some constraints or quite complaining about the fact that their laws are being enforced in ways that they don’t like.

 

Hon. Edith H. Jones:  Jack? Neil? Boyden, yes.

Amb. C. Boyden Gray:  Well, I think I’ve already said this and things have been said, but I do believe the courts are going to have to take the first step to introduce more accountability into the system by kicking at some of these statutes. That may be very embarrassing to Congress for the Supreme Court to do this or very embarrassing to an agency for Congress to say, “We’re not going to accept your interpretation of this statute which you consider vague.” But I think the courts have to take the first step.

 

I don’t think they can complete the job. The job has to be completed by Congress. But I really do believe firmly that Seila Law, which has been referred to, has been a case that’s raised Auer-type -- Chevron-type issues. I know we’re running out of time, but I do want to tell one sort of joke on Scalia that Thomas loves to tell, as told publicly.

 

Auer is one of those cases which I think is not going to survive this discussion for too long. After the argument in the other case where Auer was discussed at great length, at the end of the argument, Scalia went over to Thomas and said, “You know, Clarence, I think that Auer decision was the worst decision ever rendered by the Supreme Court.” And Thomas said, “You know, Nino, I feel your pain. You wrote it.”

 

Hon. Edith H. Jones:  That’s very good. Well, I’m going to make an effort for us to conclude on time. I’m assuming nobody else has 15-30 second remarks. I want to thank our distinguished panelists for a very high-level discussion of the issues of Executive power. And I think one thing that history has shown us, at least the history of the early 21st century, is that these problems are going to ubiquitous in the coming years, as they have been in the recent past. I also thank Dean Reuter and Juli Nix of The Federalist Society for helping to set this up.

 

And I would like to invite everyone to be on a call in 15 minutes at 6:00 p.m. Eastern Time when former Judge Janice Rogers Brown will deliver an address entitled “Love Letter to the Late, Great American Republic.” Our keynote speaker, Justice Alito, will do his speech at 8:00 p.m. Eastern Standard Time. So I’m sure we all look forward to that. And again, gentlemen, Eggleston, Professor Goldsmith, Olson, Gray, thank you very much for us and thank you to the audience.

     

 

6:00 p.m. - 7:00 p.m.
Address by Judge Janice Rogers Brown

2020 National Lawyers Convention

Topics: Constitution • Federal Courts • Civil Rights • Culture • First Amendment
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On November 12, 2020, The Federalist Society hosted a virtual address by Judge Janice Rodgers Brown as part of the 2020 National Lawyers Convention.

Featuring:

  • Hon. Janice Rogers Brown, United States Court of Appeals, District of Columbia Circuit (ret.); Former Associate Judge, California Supreme Court
  • Introduction: Mrs. Lisa Ezell, Vice President and Director, Lawyers Chapters, The Federalist Society

*******

As always, the Federalist Society takes no position or particular legal or public policy issues; all expressions of opinion are those of the speaker.

Speakers

8:00 p.m. - 9:00 p.m.
Address by Justice Samuel Alito

2020 National Lawyers Convention

Topics: Constitution • Supreme Court • First Amendment • Religious Liberty • Free Speech & Election Law • Religious Liberties
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On November 12, 2020, The Federalist Society hosted a virtual address by Justice Samuel Alito as a part of the 2020 National Lawyers Convention.

Featuring:

  • Hon. Samuel A. Alito, Jr., Associate Justice, United States Supreme Court
  • Introduction: Hon. Dean A. Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

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11:00 a.m. - 12:15 p.m.
Special Session: The Future of the Second Amendment's Right to Keep and Bear Arms: From the Supreme Court to Social Unrest in the Streets‎

2020 National Lawyers Convention

Topics: Civil Rights • Constitution • Second Amendment
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On November 13, 2020, The Federalist Society hosted a virtual panel for the 2020 National Lawyers Convention. This special session covered "The Future of the Second Amendment's Right to Keep and Bear Arms: From the Supreme Court to Social Unrest in the Streets‎."

With contrasting views from the two Presidential candidates, as well as the nomination of Judge Amy Barrett to the U.S. Supreme Court, the Second Amendment has once again become one of the foremost topics of discussion in the legal and political world.

Second Amendment issues have arisen in 2020 like never before. ‎The year started with “Second Amendment sanctuaries” in which almost all counties in Virginia, and many in other states, declared that proposed infringements on the right to keep and bear arms would not be enforced. The Virginia governor declared a state of emergency because of a planned protest in Richmond by gun owners, and although 22,000 protesters, many of them legally armed, attended, there was no reported violence. More recently, rioting and civil unrest have raised questions about citizens arming themselves and the use of potentially deadly force.

What constitutional protections, if any, are available to property owners wishing to protect their lives, livelihood, property, and communities? What is the correct constitutional analysis of restrictions on fundamental rights, including the Second Amendment, enacted in the midst of a nationwide pandemic and what role, if any, do traditional “police powers” play in analyzing those restrictions?  What are the constitutional implications, if any, of criminal cases capturing headlines concerning the use of firearms by individual Americans such as Mark and Patricia McClosky, and Kyle Rittenhouse? The panel will discuss the Second Amendment implications of these timely issues.

Featuring:

  • Mr. Deepak Gupta, Founding Principal, Gupta Wessler PLLC
  • Mr. John Ohlendorf, Associate, Cooper & Kirk, PLLC
  • Prof. Mark W. Smith, Senior Fellow in Law and Public Policy: Presidential Scholar, The King’s College
  • Moderator: Hon. Thomas M. Hardiman, United States Court of Appeals, Third Circuit
  • Introduction: Hon. Dean A. 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.

Speakers

Event Transcript

Dean Reuter:  Good morning, and welcome to this, the fifth and final day of The Federalist Society National Lawyers Convention. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society.

 

      I'm very pleased to welcome you back today as we close out the convention with three very strong panels. I hope this is a return welcome and that you've been able to join us throughout the week for the entire convention. Even if not, every moment of the convention has been archived and is available on The Federalist Society's website in a friendly video format.

 

      Turning to today, for our closing panel hours from now, we'll have a discussion on emergency powers and the rule of law that could not be more timely, frankly. We'll also check in today with agency leaders from the Treasury Department, the Securities and Exchange Commission, and the Office of the Comptroller of the Currency on cryptocurrency, blockchain, and central bank digital currency.

 

      First, though, to get us started today, our opening panel will discuss the Second Amendment. Interestingly, Justice Alito's address last night included a section on the Second Amendment, and he noted that some consider the Second Amendment a second-tier constitutional right. I'm sure we'll hear more about that momentarily from our panel.

 

      I'm especially pleased to welcome and introduce our moderator, Judge Thomas Hardiman. Judge Hardiman has been a Third Circuit judge for the Court of Appeals for the Third Circuit for over a decade; thirteen years now, in fact. He brings a unique view to the appellate bench as, prior to his appointment, he served on the federal district court.

 

      Before serving on the bench, he held a variety of legal positions, including at major law firms. He grew up, though, in the family business driving a taxi cab, and I believe he was the first person in his family to graduate from college and then, of course, law school. My own grandfather, a small businessman himself, loved me dearly, but I'm sure he never forgave me for going to law school myself.

 

With that, Judge Hardiman, welcome. The floor is yours.

 

Hon. Thomas M. Hardiman:  Thank you very much, Dean. I'm not sure my family feels the same way about me going to law school. I think they were glad to see it happen, but unfortunately, no one took over the family business. But welcome. It's great to be with you all; unfortunately, not in person but great to be with you, nonetheless.

 

      As always, we have a distinguished panel here for this one on the Second Amendment. I'm going to introduce our panelists briefly, and then they're going to give opening statements, as always, followed by interaction among the panelists. Then, we'll conclude with questions from the audience. For those who wish to ask questions, please use the “Raise Hand” function on the Zoom call.

 

      Without further ado, our panelists. First, we're going to hear from Professor Mark W. Smith. He's a Presidential Scholar and a Senior Fellow in Law and Public Policy at The King's College in New York City. A New York Times bestselling author of a number of books, Professor Smith has lectured at Harvard and Yale Law Schools and Princeton University.

 

      Following his graduation from New York University Law School in 1995, Professor Smith served as a law clerk to the Honorable D. Brook Bartlett on the U.S. District Court for the Western District of Missouri. He later worked as an associate for Skadden Arps and then as a partner at Kasowitz, Benson, Torres & Friedman LLP. In 2007, Professor Smith founded the law firm of Smith Valliere, which in 2015 was named the small law firm of the year in New York City by Smart CEO magazine.

 

      Our second presenter today will be John Ohlendorf. He received a J.D. from Harvard Law School, magna cum laude, in 2010 where he was an editor of the Harvard Journal of Law and Public Policy. Mr. Ohlendorf clerked for Judge Raymond Gruender of the United States Court of Appeals for the Eighth Circuit, and he taught at Northwestern University School of Law as an Olin-Searle-Smith Fellow, and then at Georgetown University Law Center as a visiting lecturer and Fellow at that law school's Center for the Constitution. Mr. Ohlendorf's articles have been published in the Notre Dame Law Review, the Georgia Law Review, and the Harvard Journal of Law and Public Policy.

 

      Since 2014, Mr. Ohlendorf has been an attorney at the law firm of Cooper & Kirk PLLC where he has been heavily involved in a variety of Second Amendment cases involving the right to carry and restrictions on so-called assault weapons and large capacity magazines.

 

      Our third presenter today will be Deepak Gupta. He's a lecturer at Harvard Law School and the Founding Principal of Gupta Wessler PLLC in Washington, D.C., where he specializes in appellate and complex litigation on a wide range of issues, including constitutional law, class actions, and consumers' and workers' rights.

 

      Mr. Gupta regularly appears before the United States Supreme Court, and last year, he became the first Asian-American to argue before the Court as an invited amicus curiae. He has handled appeals in every federal circuit and eleven state supreme courts and has testified multiple times before the United States House of Representatives and the United States Senate. In the past few years, Mr. Gupta has been involved in several high-profile Second Amendment cases.

 

      Without further ado, I welcome Professor Smith to begin.

 

Prof. Mark W. Smith:  Thank you, Judge. Thank you all for attending today. 2020, as you all know, has been a year of unprecedented upheaval and social unrest. We've experienced a pandemic, a hotly contested presidential election that continues today, and a series of mass protests. We've also seen mob violence, rioting, arson, and vandalism across the country. In response to that violence, ordinary citizens have sometimes been forced to defend their lives, their property, and their communities when the state and local authorities have failed to do so.

 

      Political violence, of course, is not new to our shores. But what is new is the refusal of certain political leaders to act to defend ordinary citizens, public property, and private property from violent actors. Formerly, if a group of violent thugs came to destroy or loot your town, there would be a consensus across the political spectrum condemning such lawlessness. But this year, many political leaders have refused to take all available steps to quell the riots in places such as Portland, Seattle, Minneapolis, and Philadelphia.

 

      As a result, ordinary Americans have felt the need to step in and defend their communities out of fear that their local officials will not do so. As a consequence—as one consequence—Americans have been buying firearms in record numbers, so much so that the FBI's National Instant Criminal Background Check System, or the NIC system, conducted over 28.8 million background checks for firearm purchases just between January and September 2020. This figure exceeded by September the total figure of 28.4 million background check numbers which consisted of the entirety of 2019.

 

      Now, there's two recent and high-profile examples that could be ripped from the headlines for us to review that illustrate some further points, and that is the two recent high-profile examples of defense of life and property against rioters can be seen in the cases of Kyle Rittenhouse and Mark and Patricia McClosky.

 

      In the Rittenhouse case, you had a 17-year-old young man who traveled to neighboring Kenosha, Wisconsin, to help protect the city from a night of rioting. Now, Rittenhouse, [who] shot three mob members in what appears to be an act of self-defense, he was seen on camera before the shooting working with a group of people to remove graffiti off a local building and appeared to be discussing his desire to render medical aid, if appropriate, at the time. At the same time, it's interesting -- it appears that the prosecutor that's charging Rittenhouse for murder has not pressed any criminal charges against the surviving attacker in that case.

 

      Likewise, let's take a look at another thing we've all been reading about this year, and that's the case of St. Louis attorneys Mark and Patricia McClosky, who are now facing felony charges for the unlawful use of a weapon, firearms, from the very same local government officials who apparently failed to protect the McClosky's neighborhood in the first place. In fact, the McCloskys apparently felt the need to take up arms when individuals tore down a gate to their private community and allegedly approached their home in force, allegedly yelling death threats.

 

      Now, it's against this kind of backdrop in the news that I want to propose something. I am proposing that the Second Amendment guarantees to Americans the right, both individually and as part of a group, the right to use firearms defensively to thwart violent threats. Now, this proposition of collective or group defense by ordinary Americans needs to be further explored in light of what we're seeing on our TV screens now.

 

Typically, if you think about it, Second Amendment issues are discussed usually in the context of a scenario where an individual is confronting a single attacker or possibly in a theoretical concept, or very generally. It's discussed as the importance of an armed citizenry thwarting government tyranny as another check on tyranny, which is what, of course, the constitutional document is all about.

 

      The question this morning, as I see it, is does the Second Amendment guarantee Americans the right, either individually or collectively as part of a group, to use firearms to defend their communities against mob violence and threats of mob violence? I think the answer, under the Second Amendment, is yes, they do.

 

      Let's turn back and take a look at the analysis. If you go back to 2008, you have the Supreme Court's decision in Heller v. The District of Columbia. Heller holds that the scope of the Second Amendment is determined by the original meaning of its text and also by the Second Amendment's history and the tradition of the right to keep and bear arms, particularly as that right was understood at the time of the founding.

 

      Now, Heller's text, history, and tradition test supports my view that law-abiding citizens have a fundamental Second Amendment right to use armed force, both individually and collectively with others, in order to defend human life and property that is essential to the wellbeing of their communities from mob violence.

 

      Let's start where all good lawyers and judges should start, and, well, that's with the text of the Constitution. Well, the text of the Second Amendment certainly establishes that the right to keep and bear arms extends outside the home. That's obvious from the Second Amendment's twin verbs. "The right of the people to keep and bear arms shall not be infringed."

 

      Well, if the provision meant to safeguard only a right to have arms in your home, in your kitchen, protecting the right to keep arms would've been more than sufficient. But separately protecting a right to bear arms is read most naturally, in my view, as guaranteeing the distinct and equal right to carry firearms in public.

 

      It is also obvious from what the Second Amendment does not say. As they say, silence can often speak volumes. When a constitutional right only applies to specific places, it actually says so. Let's look at the Third Amendment. The Third Amendment is specifically limited to quartering troops in "any house." Likewise, the Fourth Amendment. The Fourth Amendment is specifically limited to searches of persons, houses, papers, and effects. The Second Amendment contains no similar limitation to the home.

 

      Finally, not only does the Second Amendment's operative text demonstrate that it applies outside the home, but the Amendment's preamble, what Heller calls its prefatory clause, signals that one purpose behind the constitutional protection of the right to keep and bear arms is to ensure the security of a free state.

 

      Now, of course, we know from Heller that there's another purpose. The core purpose [inaudible 00:23:22].

 

Hon. Thomas M. Hardiman:  I believe we've lost Professor Smith there. Until we can get him back, I think the thing to do is to move to John Ohlendorf. If, John, you could begin your presentation while we try to get Mark back.

 

John Ohlendorf:  All right. Thank you, Judge Hardiman, and thank you for your introduction. Thanks to The Federalist Society for inviting me this morning. The lockdown orders that were imposed by nearly every state during the first wave of the COVID-19 pandemic sparked a wide variety of constitutional litigation challenging restrictions imposed, for example, on religious worship, access to abortions, and, critically here, the operation of such facilities of gun stores and gun ranges.

 

      Across the spectrum of these constitutional challenges, many states and many courts throughout the country turned to a previously obscure 115-year-old case to guide their analysis of constitutional challenges in time of a pandemic. That case is Jacobson v. Massachusetts, decided in 1905.

 

      In Jacobson, the plaintiff had challenged a Massachusetts compulsory smallpox vaccination law as violating various provisions of the Fourteenth Amendment as well as "the rights secured by the preamble to the Constitution of the United States" and "the spirit of the Constitution."

 

      Now, pro tip, so that all of you paying for CLE get your money's worth this morning. If you're involved in constitutional litigation and your strongest arguments are based on the Constitution's preamble and spirit, your likelihood of success is not that high. In fact, in Jacobson, the Supreme Court did uphold Massachusetts' compulsory vaccination law.

 

      But the Court noted, in passing, that "if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects or is beyond all question a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge and thereby give effect to the Constitution."

 

      Now, in this past year's COVID-related litigation, this language I just quoted from Jacobson has been cited as effectively erecting a super tier of scrutiny that trumps the ordinary tiers of scrutiny—strict scrutiny, intermediate, and rational basis review—when the government is defending a restriction imposed in time of a pandemic. It's been repeatedly relied upon by states defending their lockdown restrictions and has been repeatedly cited by courts, including by some justices of the United States Supreme Court, although we heard some criticism last night from Justice Alito of that.

 

      I, too, want to argue this morning that this use of Jacobson, at least in the Second Amendment context, is wrong and it is pernicious. I'll begin with the claim that it's wrong. I think it's a doctrinal mistake to use the language that I just quoted from Jacobson to govern Second Amendment challenges during the time of the coronavirus, and I think it's a mistake for three independent reasons.

 

      First, I think it's just not a faithful reading of Jacobson. Jacobson just nowhere purports to be establishing a super tier of pandemic scrutiny that applies to all constitutional rights across the board. Instead, Jacobson dealt very narrowly with what today we would call a substantive due process challenge to Massachusetts' vaccination law.

 

As Justice Alito explained in a resent dissent from denial, "It is a considerable stretch to read the decision as establishing the test to be applied when statewide measures of indefinite duration are challenged under the First Amendment or other provisions not at issue in that case." So I think it's not faithful to Jacobson to read it in the way the courts have been this past year, and I think even if it were, Jacobson also needs to be read in its historical context. Jacobson was decided in the height of the Lochner era, an era when, of course, the Supreme Court embraced a form of constitutional jurisprudence that has since been broadly repudiated and widely recognized to have been out of step with the Constitution's original meaning in many ways.

 

      For one example, the Supreme Court did not begin to seriously enforce the First Amendment free speech right until nearly six decades after Jacobson was handed down. Of course, Jacobson was decided over a century before District of Columbia v. Heller. So I think it's not only wrong but also anachronistic for courts to rely on Jacobson in the way that they have been.

 

      The citation of Heller brings me to my third point, which is that in that case, the Supreme Court very clearly established that the Second Amendment scope is determined by the text, history, and tradition test. By looking at the provision's text, the history, and traditions of the right to keep and bear arms. I'm not aware of any historical evidence that Jacobson's pandemic super deference standard was understood at the time of the founding, or near the time of the founding, to be a legitimate and traditional limit on the right to keep and bear arms. To the contrary, I think the evidence at least suggests that the Second Amendment is especially important in times of crisis like pandemics.

 

So I think it's wrong to use Jacobson in the way that the courts have been. I also think it's dangerous, and I think it's dangerous in a way that sheds light on the danger that is also inherent in the routine use, even in ordinary times, of the so-called tiers of constitutional scrutiny in the Second Amendment context, strict scrutiny, intermediate scrutiny, or rational basis review.

 

Now, I've written elsewhere about what I think are the many failings of the tiers of scrutiny approach, including in the Second Amendment, and I won't rehearse the argument here. But what I do what to highlight this morning is the extent to which I think Jacobson's scrutiny, as it's been used this last year, both exemplifies and intensifies some of the problems with the tiers of scrutiny.

 

To begin with the first step of a scrutiny analysis, which is to determine whether the government has advanced a sufficiently important or compelling interest in support of the challenged measure. One difficulty with that inquiry is that judges simply have no scale on which to weigh government interests and sift the ones that are compelling from the ones that are important from the ones that are, I guess, unimportant. The Constitution certainly provides no ranking of government interests, and the courts have not been able to articulate any principal basis for coming up with such a ranking themselves. In practice, what happens is courts often just end up deferring to the government's assertion that its interest in public safety or national security or public health is a compelling one.

 

In Jacobson, scrutiny, I think, starkly illustrates that problem. In the time of an ongoing, worldwide pandemic, no court is going to have the hardihood to reject the government's claim that it has a compelling interest in preventing the further spread of the virus. My point is not that preventing the spread of the coronavirus is not important or compelling. Obviously, it is compelling. But my point instead is that we are fooling ourselves if we think that we are providing any meaningful check on the abuse of government power by asking courts to double check that, yep, sure enough, the government's interest in stopping the spread of the coronavirus is, in fact, a compelling one. So that's the first step of a scrutiny analysis.

 

Let me move quickly to the second step, which is to judge the fit or tailoring of the challenged restriction to the government's asserted interest. This is usually where most of the action is in the case law. But here, too, I think the use of Jacobson this past year aptly illustrates the problems with this inquiry. Basically, what we've seen in the main is that courts have upheld COVID-related restrictions, and they've done so by explaining that they're not very well equipped to second-guess the scientific or medical judgments made by the experts in the state bureaucracy or the federal bureaucracy.

 

The problem is that that exact same competency argument applies with basically equal force to the great bulk of ordinary constitutional adjudication under the tiers of scrutiny. Determining the fit or tailoring of a challenged law in virtually every contested constitutional challenge basically depends on judgment calls and competing evaluations of very complex and very hotly contested scientific and empirical questions, such as whether restrictions on certain types of firearms actually advance public safety or whether there are alternative restrictions that would advance public safety just as much but are less intrusive. Those types of questions are often dependent on evaluations of complex scientific or empirical judgements.

 

Again, the point is not that judges are especially well equipped to decide those types of questions. I don't think they really are. But, again, the point is that given the completely understandable judicial reluctance to second guess the political branch's determinations of these complex matters, again, I think we are fooling ourselves if we think that this tailoring prong adequately protects our fundamental constitutional rights.

 

The predictable result that we have seen this past year is that, so far, courts have basically upheld most COVID-related restrictions and essentially balanced away our constitutional rights, found them outweighed by the government's interest in limiting the pandemic. I think that's a problem. I think the problem is heightened in the Jacobson context because what Jacobson does is it effectively moves the goal posts even closer to the line of scrimmage so that they ensure that the government's going to win, even if it couldn't prevail under a stricter intermediate scrutiny.

 

So I think that type of analysis is especially troubling, but I think it's a difference in degree not a difference in kind. And I think the fundamental defects of this use of Jacobson also infect the ordinary tiers of scrutiny analysis. The result is that in workaday Second Amendment litigation, too, in ordinary times, courts, I think, I have effectively balanced away our fundamental constitutional rights.

 

Hon. Thomas M. Hardiman:  Thank you, Mr. Ohlendorf. We see Professor Smith back with us, which is wonderful. If you were in the court of appeals, Professor, we would say that you have five minutes left on your light, so please resume. But you need to unmute yourself.

 

Prof. Mark W. Smith:  Beyond the text of the Second Amendment and how it establishes the right both of individuals and of individuals to come together as part of a group to protect their communities from violent threats by other groups, for example, I'd like to move on to look at the history. Let's consider the act of collective community self-defense that sparked the American Revolutionary War. Let's go back to the beginning, the Battle of Lexington and Concord, specifically.

 

      Far from the type of battle you ordinarily picture when you hear that word, Lexington and Concord was not fought, at least on the American side, by an organized, formal military unit. It was fought by ordinary members of the community, the celebrated minutemen who mustered on public squares with their own arms, lead and directed by leaders of the community. And they were acting collectively to defend the essential property of that community, which included firearms and gun powder.

 

      So the shot heard around the world was fired in the context of acts of community self-defense, which is sort of an example of one of the things I'm talking about today because in addition to defending their homes, streets, and shops from the British, the early Americans had frequently found it necessary to engage in various other forms of armed defense, including against attacks in Indian raids.

 

      Now, during the oral argument itself in Heller, now-retired Justice Kennedy asked whether American colonists would have needed firearms to "defend himself and his family" against hostile Indian tribes and outlaws, wolves, bears, and grizzlies. Now, based on these remarks, it was pretty clear that Justice Kennedy was reaffirming the Second Amendment's intent to be enforced outside the home. Justice Kennedy's understanding at the time made a lot of sense because under the existing English common law, which was in place there, individuals had the right to defend their property against robbery, arson, and burglary, including by using deadly force.

 

      In one famous example out of Pennsylvania, Founding Father James Wilson and other men defended Mr. Wilson's home by using firearms against an armed mob. James Wilson, mind you, was no ordinary man in the 18th century. Wilson was a Supreme Court justice. He presided over the Pennsylvania Constitutional Convention of 1790 that adopted the following:  "That the right of the citizens to bear arms in defense of themselves and the states shall not be questioned."

 

      Now, because the Second Amendment codifies a pre-existing right, Heller instructs that its protections are also informed, to some degree, by English understandings of the right to keep and bear arms and the right of self-defense at the time of the founding. And as Blackstone's Commentaries explained—a very important source—"such homicide as is committed for the prevention of any forcible and atrocious crime is justifiable by the law of nature and also by the law of England."

 

      Further, as philosopher John Locke explained, "whoever uses force without right puts himself into a state of war with those against whom he so uses in it." In that state, all former ties are canceled. All of their rights cease and everyone has a right to defend himself and to resist the aggressor.

 

      In some ways, most tellingly, we look to Sir William Hawkins who wrote that "the killing of dangerous rioters by any private persons who cannot otherwise suppress them or defend themselves from them was justifiable homicide."

 

      It is in my view this historical understanding directly applies to community defense using firearms against today's rioters and looters. Just like an individual's home is special because it is necessary to his safety and wellbeing, a community's Main Street is equally as central to the health, vibrancy, and wellbeing of the community.

 

And just like a home invader has restored the state of nature between himself and his intended victim, justifying armed self-defense on the part of the victim, so too, when violent rioters descend on a community intent on burning it down and destroying it, they too have restored the state of nature between themselves of that community, justifying armed self-defense to resist and stop the aggressors.

 

      This is especially true when the government authorities have abdicated their responsibility to keep the public peace. Remember, Americans have not and do not surrender fundamental individual rights, including the right to armed self-defense, when they delegate limited powers to form a government. But a state that refuses to or cannot provide protection to its citizens is a failed state, in essence, leaving its citizens with every right to take appropriate measures to defend their communities.

 

      To conclude, the text, history, and tradition of the Second Amendment show that there is a constitutional Second Amendment right both for individuals and as part of a community to defend against violent attacks. Here, I think the First Amendment's right to petition the government for a redress is an appropriate analogy. That right to petition can be exercised both individually, but it can also be exercised as part of a group. Likewise, the Second Amendment's right to keep and bear arms can be exercised individually and it can be exercised as part of a group.

 

      I wish to make one larger point here as I conclude. Modern constitutional jurisprudence assumes that in times of great peril, the government has the legal authority to expand its police powers in the name of some public emergency. I would argue that in the case of the Second Amendment's right to keep and bear arms, and in the context of a public emergency, the authority of the government to act and restrict Second Amendment rights should actually be more limited rather than more expansive.

 

      Indeed, the right to keep and bear arms is specifically designed to guarantee that ordinary citizens have the means of self-protection, especially in times of public danger. Thus, the government should have less authority to restrict this right in a time of an emergency.

 

      While we would much prefer, and I would certainly prefer, that local government officials do their job of maintaining civil order, it has become increasingly clear that that is no longer a guaranteed outcome. When the police cannot or will not show up to protect us and our communities, it really falls to ordinary law-abiding Americans to step up and defend their homes and their hometowns when no else will do.

 

      The answers to the constitutional questions I have raised today will decide whether we will enjoy the peaceful use of our homes and neighborhoods in the future. Thank you.

 

      I believe I'm now introducing Mr. Gupta. So, Mr. Gupta?

 

Deepak Gupta:  Hi. Well, thank you, Judge Hardiman, and the other panelists. And thanks to FedSoc for inviting me to be here. I'm sorry we're not all together at the Mayflower Hotel. I particularly, at this moment in our history, which I think is a dark moment as it's been a difficult moment, I was looking forward to being able to speak to smart conservatives and lawyers about what we make of the topic of this conference, which is The Rule of Law in Crisis.

 

      Just when we were getting ready to come on, I asked Dean Reuter, "Well, what do you mean by 'The Crisis?' It seems like we're experiencing several different crises at once." I think the previous speakers have touched on them, or at least two of them, who are experiencing, of course, this global pandemic, and we've experienced maybe that the United States is dealing with this worse than perhaps any industrialized developed nation.

 

The richest nation in the world has failed utterly, at the national level, to deal with this pandemic, and we have more deaths than any other nation. We're also struggling to deal with how we safeguard our tradition of civil liberties and civil rights in a pandemic, how we balance competing values. I think those are very difficult constitutional questions that are very worthy of discussion.

 

      We've also experienced racial unrest and protest about racial justice that hearkens back to the late 1960s. Professor Smith referenced that in his comments.

 

      I think the third crisis is the one that is the most recent, perhaps, but -- we can view Donald Trump's presidency itself as a crisis, but I think now we're experiencing special pressure on the rule of law and our constitutional democracy surrounding the transition.

 

      I do think there's an intersection between the kind of concerns about mob violence with guns and this latest crisis because we have a President that has consistently promoted violence. He has used the Second Amendment not to talk about the serious constitutional questions but instead to promote violence. There are militia groups that have said that they will take action on the President's orders in ways that are particularly troubling. I hope our worst fears about that are all alarmist and we will have a peaceful transition as we always have had.

 

      But I think all of those kinds of concerns are implicated in today's topic, and it's a really rich topic. At the risk of being too ambitious, I want to try to take on both sets of comments; particularly, to address what we do about constitutional values in a pandemic, constitutional rights in a pandemic, and also the question of guns in the streets and the public carrying of guns.

 

      To start out, I think we have seen in very short order a kind of pandemic constitutional law emerge, and it's really been remarkable to me to see how it's arisen with respect to kind of the full spectrum of hot-button constitutional issues. We're talking here about guns, but it's also come up in the context of religion, prisoners' rights, abortion, and voting. It raises profound, unsettled questions about how you balance the ability of the state to protect the people versus individual constitutional rights. Of course, we live in a time where it seems like everything becomes a constitutional controversy.

 

      But pandemics are not new. Quarantine laws go back to the fourteenth century in Italy and Croatia when people were dealing with the Black Death and tuberculosis. Presidents John Adams and Thomas Jefferson sought to use the Commerce Clause to deal with outbreaks through quarantines. Chief Justice John Marshall, in his opinion in Gibbons v. Ogden, referred to "inspection laws, quarantine laws, and health laws of every description," to quote him, as subject to state legislation and, in some limited circumstances, subject to national legislation as well.

 

      The Jacobson opinion from 1905 that John talked about has become kind of the touchstone of this discussion, but I actually agree with a lot of what John said that I think maybe too much has been made of Jacobson. The attempt to impose onto Jacobson a kind of framework that will solve these difficult problems is probably too much for Jacobson to bear. After all, this is a decision from 1905 that predates a lot of the twentieth century's development in civil liberties and civil rights law. The constitutional claim that was being raised by Mr. Jacobson in opposition to Cambridge, Massachusetts' vaccination law was a pretty feeble constitutional claim.

 

      But I do think Jacobson has something to teach us. I think I basically would align myself with what Chief Justice Roberts has said. Very little has been said, but he said something about Jacobson. I think the only Supreme Court case that really provides us with some guidance about this is the Chief Justice's decision in a case called South Bay United Pentecostal Church v. Newsom, which was a case where folks in California were challenging pandemic restrictions as applied to church services where there were numerical restrictions based on public occupancy.

 

      What the Chief said is that the precise question of when restrictions on activities should be lifted during a pandemic is, in his words, a "dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution," he says, and he's quoting Jacobson, "entrusts the safety and health of the people to the politically accountable officials of the state to guard and protect." And when they to do that -- and it's not just the Chief. This is an opinion of the Supreme Court. It says, "When they undertake to act in these areas fraught with medical and scientific uncertainties, their latitude," he says, "must be especially broad."

 

      Now, what does that mean? As I said, I don't think it's a framework. I think maybe the best way to understand it is the same way we understand the kind of deference that we afford prison officials in Eighth Amendment cases. That is, there is an understanding that officials that are dealing with difficult, dynamic, fact-intensive problems should get some deference from the courts because unelected judges are not in a very good position to second-guess all of the fact-based judgements that those officials make.

 

      But on the other hand, I don't think any of us would agree that all civil rights and civil liberties go out the window in a pandemic or that there's no way to appropriately challenge restrictions imposed by the state authorities. There still has to be some kind of framework.

 

      I think, as with so much about Second Amendment law, we don't know every much about the content. The Supreme Court has acknowledged the right and set it in motion in Heller, incorporated it to the states in McDonald, and then said very little more about the content of the right. It's mostly been fleshed out in the lower courts.

 

      One thing that Heller made clear is that the right is not unlimited, that the right is subject to qualifications and limitations, and that we know where those limitations come from by looking at the historical scope of the right. One kind of qualification or limitation that Justice Scalia identified in the Heller opinion were limitations on the commercial sale of firearms.

 

      I think it's worth looking at how courts have dealt with challenges to limitations on the commercial sale of firearms in the non-pandemic context to try to inform how we should understand these challenges during the pandemic. I think I would point folks to opinions by two prominent conservative appellate judges, both from the Ninth Circuit, Judge Bea and Judge Bybee, who dealt with question of this kind.

 

      When they dealt with these questions, with these challenges to commercial sale, they drew upon a principle that I think is pretty familiar in our constitutional law, which is a principle of general applicability. In the free exercise context, at least until now, the law has been that when a state imposes a restriction that is generally applicable, that is not targeted against religion or not motivated by animus against religion, that that restriction will be upheld even if it has some incidental effect that burdens religion.

 

      While the Chief Justice didn't cite Employment Division v. Smith in his South Bay opinion, I think he had to have had a principle like that in mind because his reasoning—and I think this reasoning stands independent of his discussion of Jacobson—is that these restrictions in California were okay because, in his words, "similar or more severe restrictions applied to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gathered in close proximity for extended periods of time."

 

      So he was doing what we do when we do a conventional Smith analysis, which is to try to figure out what the relevant comparisons are between restrictions on churches and restrictions on other kinds of secular enterprises and ensured that the restriction applied equally. I think that is basically—although the Chief didn't say so—is basically a Smith analysis.

 

      I think if we look at these decisions by Judge Bea and Judge Bybee from the Ninth Circuit, we see the same thing. Judge Bea said that, in his words, "A measure of general application,"—I'm quoting from him—"that affects stores of any kind and not just gun stores would not raise a Second Amendment issue."

 

      Judge Bybee similarly said in a case called Pena v. Lindley that I worked on, he wrote that "Rules of general applicability don't violate the Second Amendment just because they place conditions on the sales of handguns used for self-defense. We accept such restrictions on our rights, including our fundamental rights to speak, publish, and exercise our religion, because laws of general applicability cover a broad range of activities and hence must have broad popular acceptance and support."

 

      Now, notice Judge Bea and Judge Bybee, they're talking about laws of general applicability in normal times, not in a pandemic. So this isn't a principle that even relies on the Jacobson concept that state and local officials get special deference for these kinds of public health policies in a pandemic.

 

      I think the challengers in these kinds of cases, and we will probably see more of them if there are additional lockdowns and restrictions, I think they face really difficult hurdles because I think first, they have to surmount this concept of general applicability, and I'm not convinced they can. But I think that would be a fact-intensive and case-specific analysis that would turn on whether the restrictions were truly evenhanded or whether there's some indication of animus.

 

      Second, I think the courts are going to have to give special deference to state and local restrictions in a pandemic. Courts are not going to, I think, use the same kind of analysis they would use in normal times when we're dealing with emergency restrictions that are designed to contain the spread of a deadly virus. The devil may be in the details, but I think that those challenges are going to have a hard time succeeding.

 

      I'm running short on time, but I do want to just take issue with some of the things that Mark said because I found the comments troubling. I hope I'm misunderstanding the argument, but I hope what we're not saying here is that we would condone vigilantism by groups in place of policing by the state.

 

      I think the Second Amendment question is not whether the Second Amendment applies outside the home. I think Mark is right that when you look at the text of the Second Amendment, keep suggests rights in the home; bear suggests carrying. I think the relevant question, instead, is what is the scope of the Anglo-American right that is being protected by the Second Amendment?

 

      We know from Heller that the core right, in Justice Scalia's words, is the right of law-abiding, responsible citizens to use arms in defense of hearth and home. But we also know from the history -- there's a rich Anglo-American history dating back to at least the Statute of Northampton of 1328 where we know that it was forbidden for anyone to ride armed by night or by day in fairs, markets, or in other public places.

 

      There is a long history from 1328 onwards into the early American republic where the Statute of Northampton was incorporated as part of the common law, and then that gave rise to statues like the Massachusetts model statute of where there's a good cause. If there's a good cause, a license is given, but if not, public carry can be restricted.

 

      I have written several briefs on these issues, both in the lower court and in the Supreme Court. I think before the Supreme Court takes up the question of the extent to which the Second Amendment applies outside the home, we should first have more ventilation in the lower courts about those historical arguments because they don't rely on the application of means and scrutiny. They are text and history-based arguments that I think we have to grapple with in order to understand the scope of the right that's protected by the Second Amendment. Thank you.

 

Hon. Thomas M. Hardiman:  Thank you very much, Mr. Gupta. Professor Smith, do you want to respond since Mr. Gupta referred to you specifically?

 

Prof. Mark W. Smith:  Sure. I think there's just three points I would like to make. First of all, I think if you look at the Smith case of general applicability of law, that illustrates my point of how in the Second Amendment context of the right to keep and bear arms, it's unique. What I mean by that is Smith, of course, says that if a law is generally applicable across all similar circumstances, then it's not viewed as discrimination if it sort of affects, let's say, a religious belief or what not.

 

      My argument here is that the Second Amendment is a little bit like a fire extinguisher. You need to break it in case of emergency. As a consequence, when you're dealing with times of public stress, public disorder, national disasters, whatever it is that places tremendous stress on the civil authorities, it behooves Americans in their individual capacity as citizens to step up to protect themselves and their communities where the civil authorities are either unable or unwilling to do so.

 

      I think that, actually, I would make the case that the Second Amendment uniquely would be an exception to the Smith general applicability rule because in those times of stress, the Second Amendment is uniquely needed by Americans to protect themselves, their families, and their communities.

 

I would say that, unlike other rights—perhaps the right to meet and engage in religious practices, the right to speak out, and those other rights—I would say that the Second Amendment actually works in reverse where it needs to be protected more than ever before in the context of some sort of civil unrest or pandemic or dangerous situation.

 

      The second thing is, no, I'm not advocating for vigilantism because vigilantism, to be very precise, is this: vigilantism is that someone has done something wrong and the community takes it upon themselves the punishment after the fact. No, my argument is different. I think if you think about what the Second Amendment really is about -- the old saying is, "When seconds count, police are minutes away." Now, that is not to denigrate law and order. It's not to denigrate police. It's a practical reality of the human experience that many times, we humans encounter some emergency situation.

 

And that's why I've written several times that, whether you like it or not, we as people are really the first true responders because it is we who come across the sick person, it is we that come across the criminal, it is we that come across the fire. And we have to address it first, including but not limited to calling 9-1-1.

 

      So, really the civil authorities are almost always the second man on the scene. We are the first responders. What I'm interested about mostly, and I think what the Second Amendment is mostly interested in, is not punishment. It's not about punitive behavior. What it's about is preventative behavior. It's about stopping the person from getting killed in the first place. It's about stopping the town from being burned down before it occurs.

 

      I think that's what the Second Amendment is about. It has nothing to do with vigilantism. Again, if your home is under attack by violent people that want to do harm illegally and immorally, then you obviously have a Second Amendment right to step up and stop that. You don't have to wait for, frankly, you to be dead and have a chalk line around your body. That's not really helpful.

 

      I think the third point is -- Mr. Gupta is always very articulate. He did make a point about let the lower courts make these decisions about text, history, and tradition first and let it percolate up to the Supreme Court. I actually don't think that works. The reason why I don't think that works is if you look at the courts that hear and adjudicate Second Amendment cases, they tend to be in the same jurisdictions that have robust gun restrictions and gun laws.

 

      So, what you really have is, I would call, sort of a biased sample set of bad jurisprudence because all these cases in the lower courts come out of New York. They come out of San Francisco. They come out of Chicago. You're really only seeing a body of jurists that have a tendency to have politics and viewpoints similar to the politicians that have appointed them.

 

You're not getting Second Amendment cases out of Texas. You're not getting them out of Alabama. You're not getting them out of these jurisdictions that are more gun friendly. As a consequence, I think, if you let the lower courts address and analyze the history without the Supreme Court guidance, I think you're really getting a skewed sample set, and I don't think that's particularly helpful to achieving truth and where we need to be in the jurisprudence. Thank you.

 

Hon. Thomas M. Hardiman:  All right. Thank you, Professor Smith. Mr. Gupta, brief response?

 

Deepak Gupta:  Sure. Thank you. I'm glad to hear Professor Smith say that he's not endorsing vigilantism, and I certainly didn't want to mischaracterize his argument. But one concern I have is just that one man's mob is another man's legitimate group of citizens ensuring law and order. What I'm concerned about is not the person who is defending their home with a firearm. As I said, I think Heller stands for the core proposition that that's at the core of the Anglo-American Second Amendment right.

 

      Instead, my concern is the suggestion that armed bands of citizens—and you could have competing armed bands of citizens—that that is what's contemplated by the Second Amendment. I think Professor Smith is making a powerful argument, but it sounds to me more like an argument from first principles of political philosophy than a legal argument. Those of us who are judges and lawyers who need to operate under the Heller framework and answer these questions should treat them as legal questions, and we should start with the legal materials.

 

      The text of the Second Amendment is not going to answer all of these questions, so I think what Heller has told us to do is to use the toolkit of history and tradition to understand how to answer these questions. The questions aren't new. There have always been questions about violence and the extent to which the state has a monopoly on violence. And I think it's fair to say that the English declaration of rights, which came after the Statute of Northampton and with which the Statute of Northampton coexisted, recognized that the state does not have a complete monopoly on weapons. But it also recognizes that the state has a legitimate role in preventing and regulating -- preventing violence on the streets and in regulating violence on the streets.

 

There's nothing new about that. Even in the Wild West in America, we had ordinances at the local level and law that was more permissive than the Statute of Northampton but still restrictive and more like the laws that are at issue in these Second Amendment challenges. I would just urge that we treat the question as a legal question.

 

      A final just quick response. Professor Smith said that the law reflects the nature and politics of the jurisdiction. In urban areas on the coasts, there might be different views about these matters than in, say, the Midwest or the South. I would just say that's the beauty of our federalism. I think the political branches are going to make different judgements in different parts of the country based on the views of the electorate, and that's totally appropriate.

 

      The question is when do those political judgments by the elected branches contravene constitutional limitations? The best way to understand those constitutional limitations is through the traditions and history that we get from Anglo-American understandings of the right. Thank you.

 

Hon. Thomas M. Hardiman:  All right. Let me give John Ohlendorf a chance to chime in. We do have several questions queued up, so I want to wrap this portion up in the next three or four minutes. Mr. Ohlendorf?

 

John Ohlendorf:  Yeah, thanks. I'll be brief. Turning from one crisis to another, I do want to just make a couple points in response to Deepak's very thoughtful comments.

 

First, I'm glad we, I think, basically read Jacobson pretty much the same way. And I agree also with Deepak that the medical efficacy of coronavirus restrictions is a dynamic, it's a contested, it's a complex question, and judges are not that well-equipped to second guess determinations about those kinds of questions. But I think we draw different conclusions from that.

 

      Deepak draws the conclusion that that means judges should be deferential. I draw the conclusion that means we're asking the wrong question in the first place if we're actually trying to provide some kind of meaningful check on government power in the time of a pandemic.

 

      I think this is really nicely captured by Deepak's reference to the deference that's afforded prison officials. It's a little troubling, I think, the implication of that, that all of society is in sort of the same kind of weakened constitutional profile that prisoners are during the time of a pandemic. I think that just highlights the extent to which we've gone down the wrong road here.

 

      Deepak suggested that the analysis should be similar to the one in the Smith case, Employment Division v. Smith. Just like I think the use of Jacobson is an indictment of the ordinary tiers of scrutiny, I think that suggestion is an indictment of Smith for a couple reasons. First, I think the suggestion that our prized constitutional liberties—the right to freedom of speech, religious liberty, the right to keep and bear arms—should be put in the same profile as the right to buy liquor or the right to go to a convenience store, that seems wrong to me. If the constitutional enumeration of these rights means anything, it means that they should be in a preferential position.

 

      Second, even if you're going to do the Smith-type analysis, I think it has to have some teeth. And I think, in particular, the Chief Justice's use of that type of analysis in the South Bay case, with all due respect, was sort of toothless. I think what you have to do if you're going to do that kind of analysis is actually ask, "Is the state treating equivalent types of activities in an equivalent way?"

 

      And where the state is forbidding religious worship but it allows numberless children to gather in the daycare or allows numberless people to gather in the casino, I think judges should call foul on that, and I don't think you need any deference or lack of deference to call foul on that. If people are allowed to go to convenience stores and liquor stores but they're not allowed to go to gun stores, again, I think deference or no, if we're going to do the Smith-type of analysis, we should at least do it with a little bit of a critical and realistic eye.

 

Hon. Thomas M. Hardiman:  Thank you. Do you want to respond in 30 seconds, Mr. Gupta, before we go to questions, or are we okay?

 

Deepak Gupta:  Sure. Yeah, I'm happy to do a quick response. I'm surprised at how much we actually agree on. John and I agree on quite a lot. I think it's almost the devil is in the details. My firm and I, we represented prisoners in some of these challenges early in the pandemic to situations in prisons where we thought that prisoners were being exposed to the coronavirus without adequate precautions.

 

      I think the beautiful thing about constitutional law is that we have to arrive collectively at neutral principles. We don't get to pick our favorite rights. I think, as we work through these problems, I think it sounds like we can all agree that it can't just be a thumb on the scale just because it's a pandemic. We all agree that neutrality has to be a meaningful inquiry. So if there's really animus -- I think I agree with you, John. If comparable entities are not being treated similarly, then that's a problem.

 

      But I don't think, ultimately, a bookstore should be able to say that it's a violation of the First Amendment if all businesses, nonessential businesses, are being shut down for a temporary period of time to prevent the spread of the virus. What I hope we arrive at, and maybe we can agree to some degree on this, is a constitutional law where courts are doing meaningful scrutiny but leaving room for truly generally applicable public health measures that we should all agree are necessary.

 

Hon. Thomas M. Hardiman:  Thank you. All right. Our first question—and please, no speeches; just questions—goes to Jonathan Mitchell. Mr. Mitchell? Please unmute your mic, Mr. Mitchell, as well.

 

Jonathan Mitchell:  Hi. My question's primarily for Deepak Gupta, but I'm interested in what all the panelists think of this. I'm struck by the fact that the Second Amendment with its text is phrased as an absolute. It says, after the prefatory clause, "The right of the people to keep and bear arms shall not be infringed."

 

If the subject matter of the Second Amendment involved something other than gun ownership, it's clear to me that liberal judges and lawyers would interpret this language as creating an absolute right. Just imagine if the Second Amendment said, "A woman's right to reproductive autonomy, being necessary to the security of a free state, the right of the people to obtain and perform abortions shall not be infringed."

 

If the Second Amendment said that, then every liberal judge in the United States would interpret that as an absolute right that allows for no regulation whatsoever, even in a pandemic and even pursuant to laws of general applicability. In fact, liberal judges are already doing that, even though they have no text in the Constitution along the lines that I've just described. They're not basing it on what the Constitution says or what history says but on their own notions of normatively desirable policy.

 

So here's my question. How is it possible for a left-leaning lawyer or judge to say that it is legally correct for judges to interpret the non-textual right to abortion as an absolute, or as a near absolute, to the point that even in a pandemic they won't allow restrictions on that right even pursuant to rules of general applicability, and then, yet, simultaneously say that it is legally incorrect for a conservative jurist to interpret the Second Amendment broadly, especially when, number one, the right to keep and bear arms, unlike the right to abortion, can actually be found in the Constitution's text, and number two, the text of the Second Amendment seems to indicate that the right to keep and bear arms is absolute and is not subject to balancing tests. How are those two positions logically compatible with each other?

 

Deepak Gupta:  Thank you, Jonathan. I'm sorry we won't be able to chat afterwards. It's good to see you, hear from you. I think it's an excellent question. And I think it just points up one of the last points I was making, which is that the beauty of law, what makes law different from politics, is that it has to consist of neutral principles where like cases are treated alike. I'm not sure that there are any truly absolute constitutional rights, at least when we're talking about civil rights and civil liberties. I wouldn't necessarily align myself with Justice Black's view of the First Amendment.

 

With respect to the Second Amendment, I think we know that it is not quite absolute in the way that your question maybe suggests, at least if we operate under the Supreme Court's existing jurisprudence. I think Justice Scalia says the Second Amendment, in his words, is "not unlimited." That is Page 626 of Heller. He says, "We do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation or to keep and carry any weapon whatsoever in any manner for any purpose."

 

Again, as I said earlier, he identifies these longstanding limitations by reference to Anglo-American history. I think, as I mentioned, in the pre-pandemic cases, I think the pre-pandemic cases maybe just resolved the issue because the Supreme Court has already recognized that restrictions on the commercial sale of firearms, at least where generally applicable, that those things are permissible.

 

I think the thrust of your question is that we ought to be looking to see whether judges are being hypocritical in preferring some rights over others because if they're doing that and they're not applying the same sort of constitutional principles simply because they like one right and don't like the other, then they're open to the charge that they're not doing law. I think it has been interesting to see how these cases have played out in different areas of rights. I hope the Court will arrive at some kind of generally applicable framework.

 

Hon. Thomas M. Hardiman:  Great. Our next question is from Kristina Denapolis. Your question? Please unmute your mic. Did we lose Kristina? We can't hear you if you're there.

 

All right. We'll go to the next question. Adam Winkler, please unmute your mic.

 

Adam Winkler:  Thank you so much. I hope you can hear me now. My question relates to the history and tradition, and it may go to the question that was just asked too about why this right is not an absolute right.

 

When we think about the history and tradition test in the Second Amendment, one of the things that seems to be overlooked, for the most part, but I'm curious how the panelists would think about how we should integrate into the analysis, which is the long history and tradition of judicial deference to legislatures when it comes to gun regulation.

 

Even if we go back to the right to bear arms under state constitutional law, we have well over 100 years of nearly uniform state law constitutional interpretation of the right to bear arms to apply only a reasonable regulation test that allows lawmakers great leeway to regulate guns, so long as they don't completely deny the right to keep and bear arms.

 

I'm just curious when thinking about, as we move forward with this history and tradition test, which often focuses on is there a history and tradition of this particular type of regulation that we've ever seen, and I'm just curious how we think about the more general question of the history and tradition of broad legislative authority to regulate guns, and how do we factor that into our history and tradition analysis?

 

Hon. Thomas M. Hardiman:  Okay, John's raising his hand, so go ahead, and anyone else who wants to respond to that good question. Thank you, Professor Winkler. Go ahead, John.

 

John Ohlendorf:  Yeah, so that's a great question, and I want to start by taking issue with the piece of history and tradition that Deepak has mentioned a couple times, which is the Statute of Northampton. Deepak and I have traded many dueling briefs over how to read that statute and the following case law, and I hope we have the opportunity to do so again in the future.

 

But suffice it to say I think what Deepak offered is a very one-sided view of what that statute -- at least how that statute was enforced around the time of the founding. The statute was enacted in 1328, so obviously, it's very old. But by the late 17th century, there was a famous case, Sir John Knight's case, which read it as, at that point, the King's Bench. Justice Holt said it has basically gone into desuetude except to the extent that a person carrying firearms is doing so with ill intent. You see the same principle reflected in contemporary commentators.

 

I think, also, if you move to this side of the Atlantic, it's important to look at how the types of restrictions, of early restrictions that Deepak and Adam are talking about, were enforced on the ground. I'd encourage anyone interested in this to look up on SSRN a recent paper by Professor Robert Leider at George Mason which looks at the, really, lack of meaningful enforcement or any evidence of meaningful enforcement of these types of laws, at least as to ordinary carrying by people for purposes of self-defense.

 

Now, Adam's question in particular about the reasonable regulation standard, that standard, reasonable regulation, was of course, in the mid to late 18th century, kind of the predominant standard across the board in constitutional law. I don't know that it was faithful to founding principles, but it certainly was not treating Second Amendment rights any differently than any other constitutional rights. That was kind of the go-to standard by state and federal courts at the time.

 

If you look at the cases from the 1830s, '40s, '50s, what you see is they do uphold many types of restrictions, for example, restrictions on concealed carry of firearms. But they lay down very clear markers that what you can't do is, in regulating the right reasonably, you can't eclipse the right. You can't go to the core of the right and forbid the right from being exercised in some manner by law-abiding citizens. When states do that, like the State of Georgia did that, then the courts strike those laws down.

 

Hon. Thomas M. Hardiman:  We'll go to Deepak, and then we'll go to Mark. Unfortunately, we have to end promptly at 12:15, so we have about four minutes left. Go ahead, Deepak.

 

Deepak Gupta:  I'll try to be really quick. Thanks, Adam Winkler, for the excellent question. I do want to plug his book, Gunfight, which is a terrific, entertaining, and, I think, balanced read of the history of these, among other things, of the kind of regulation that we're talking about here.

 

Obviously, we can't summarize the whole debate that John and I have about the Statute of Northampton here. You can look at our briefs coming soon to a court near you to see how that debate plays out. But I do think it's the right debate to be having under Heller.

 

Now, that debate has to do with specific analogies of the regulation that's in question, the first step of the analysis. In most of the courts, in the lower courts, I think all of them, actually, you have a two-step analysis. You first ask, "Is this within the scope of the Anglo-American right based on history and tradition?" And then, if it is, if there's a burden on the right, you perform intermediate scrutiny.

 

I think the right way to think about the role of regulation generally, which is what Adam is asking about, is that that comes in at the second step so that even if you don't have a well-established, longstanding tradition that takes that regulation outside the scope of the Second Amendment right, there's still a role to play in deferring to and analyzing the objectives that the state has in protecting people against gun violence.

 

Hon. Thomas M. Hardiman:  Professor Smith, a brief comment?

 

Prof. Mark W. Smith:  Although I always enjoy Adam's excellent work, I'm going to waive my right so that somebody else can ask the final question.

 

Hon. Thomas M. Hardiman:  All right. We have two minutes to hear from Sylvia Ross. Are you there, Sylvia? Can you unmute your mic and give us a very quick question? And we'll try to give you a very quick answer.

 

Sylvia Ross:  Yes. Can you hear me?

 

Hon. Thomas M. Hardiman:  Yes.

 

Sylvia Ross:  Yes, sir. Thank you, gentlemen. It was very good. I do have a question. It has to do with basic philosophy. There were three, quick. Without a natural law understanding, or the laws of nature if nature is God, how can we even understand the Second Amendment properly or interpreting any of the constitutional amendments?

 

The second -- that's my first question. Second is how do we avoid all things pandemic being used as an excuse to overreach on everything?

 

Finally, if we keep calling things a legal question—and I understand there's a need that there are legal questions—but how will that ever help us understand that are there not always a political and a legal philosophy conjoined in making the answers on, particularly, Second Amendment issues? Thank you.

 

Hon. Thomas M. Hardiman:  All right. Mark, you want to handle those in about 60 seconds?

 

Prof. Mark W. Smith:  First of all, I'm a proponent of natural rights philosophies, so I think there's a lot to be said for that.

 

      But I really think that all American constitutional law should be infused with the notion of are we as Americans subjects or are we citizens? If we're subjects, well, that's one thing. But if we're citizens, then, at the end of the day, we're responsible for our health and our wellbeing. And the government is there to supplement it, not replace it.

 

      Now, as to the question of how do you deal with a pandemic and legal versus political questions, I actually think this is a very important distinction that has been lost in the last eight months, and that's this: it's one thing if a legislature, through legislative action, passes a bill by both chambers, it goes to the governor to be signed or vetoed and overrode. It's one thing for there to be a statute that shuts down the entire economy of, let's say, Michigan. To me, it's a far different situation where you allow a governor to have an executive order that says, "I find there's an emergency because three MDs that I'm friendly with tell me there's an emergency, and now I shut down an entire state."

 

      I do think that any of these robust regulations/restrictions/shutdowns should really only be done through the legislative process and not by waving our reference to a 1952 statute and say, "I've got emergency powers as the executive." I don't think that's how it should go down, and that's part of the problem here. These shutdowns have been done through executive order and the wave of a pen, and not through proper legislative means. That, I think, has given rise to a lot of unnecessary tension today.

 

Hon. Thomas M. Hardiman:  Terrific. Well, a great question from Sylvia and a great answer from Mark. I'm sorry we can't give this distinguished panel the rousing applause to which they are richly entitled, but you can just assume that everyone out in cyberspace is giving you the jazz hands or whatever. I'm very grateful for this group, and hopefully next year we will all be together in person to enjoy the fellowship even more.

 

      A reminder to all of our listeners that the next event for the convention is a discussion of “Agency Leaders on Cryptocurrency, Blockchain, and the Evolution of a Central Bank Digital Currency.” That panel will begin at 12:30.

 

      Thank you, again, for all of our panelists and for all those in attendance. Good afternoon.

 

 

12:30 p.m. - 1:45 p.m.
Financial Services & E-Commerce: Agency Leaders on Cryptocurrency, Blockchain, and the Evolution of a Central Bank Digital Currency

2020 National Lawyers Convention

Topics: Financial Services • Financial Services & E-Commerce
Zoom Webinar

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On November 13, 2020, The Federalist Society's Financial Services & E-Commerce Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The panel covered "Agency Leaders on Cryptocurrency, Blockchain, and the Evolution of a Central Bank Digital Currency."

The pandemic has accelerated the establishment of digital currencies, including central bank digital currencies (CBDC). One of the biggest draws of cryptocurrency and even the blockchain, in general, is its leaning towards decentralization. Even so, CBDCs are now in active pilot programs across the world with the Federal Reserve, the Bank of England, the Bank of Japan, the European Central Bank and the People’s Bank of China all exploring the technology.

Proponents of CBDCs argue they will bring multiple advantages for an average consumer, including fast and cheap cross-border transactions, pseudo-anonymity, personal data protection, and international operability. However, Alexander Hamilton might ask if it is tendency of CBDCs to increase public and private credit. “The former gives power to the state, for the protection of its rights and interests; and the latter facilitates and extends the operations of commerce among individuals. Industry is increased, commodities are multiplied, agriculture and manufacturers flourish: and herein consists the true wealth and prosperity of a state."

Featuring:

  • Mr. Brian P. Brooks, Acting Comptroller of the Currency, Office of the Comptroller of the 
  • Currency, United States Department of the Treasury
  • Hon. Brent J. McIntosh, Undersecretary for International Affairs, United States Department of the Treasury
  • Hon. Hester M. Peirce, Commissioner, United States Securities and Exchange Commission
  • Moderator: Hon. Paul S. Atkins, Chief Executive Officer, Patomak Global Partners, LLC; Former Commissioner, United States Securities and Exchange Commission

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

Event Transcript

Hon. Paul S. Atkins:  Welcome, everybody. This is a panel regarding “Agency Leaders on Cryptocurrency, Blockchain, and the Evolution of a Central Bank Digital Currency.” My name is Paul Atkins, and I am very happy to say we have a real all-star cast with us today for this panel. But before we get into that, I wanted to go over a few rules and some information for you all that is important for everybody to know.

 

We also have ability to post questions, so we will -- please use the chat feature to post your question by raising your hand to indicate that you have a question to ask. And that will show up on our screen, and we’ll be able to recognize you and then open your mic. So again, the chat -- the raise hand function. And direct Zoom telephone participants if you dial *9 that is the equivalent of that.

 

So with that, let me introduce our panel members. So we’re joined by Brian Brooks who is the Actin Comptroller of the Currency of the Department of Treasury. So many thanks Brian for being with us today. Brent McIntosh, who’s Undersecretary for International Affairs of the Department of Treasury, and last but not least Hester Peirce, who is Commissioner at the United States Securities and Exchange Commission.

 

So without further ado, I think what we should do is allow our esteemed panelists to make some opening remarks about this topic, and then we’ll have some discussion and obviously a chance for you all in the audience to pose questions. So Hester, let me turn it over to you, Madam Commissioner.

 

Hon. Hester M. Peirce:  Thank you, Paul, and thank you to The Federalist Society for hosting this panel. It’s a pleasure to be with you all virtually today. I have to note at the outset that the views that I express are my own views and don’t necessarily represent those of the Securities and Exchange Commission or my fellow commissioners.

 

As a primary regulator of our capital markets, the SEC is probably not the first agency that you think of with respect to central bank digital currencies. And it shouldn’t be. So I am looking forward to the discussion of the myriad issues that CBDCs raise, including really serious privacy concerns. But I believe that a lot of the really interesting innovation in crypto is happening outside of the central bank digital currency space.

 

Fiat currency could be replaced by what I like to call we-at  currency. We, the people, decide what transaction medium we want to use. More generally, blockchain technology offers a new way of coordinating human action by eliminating the need for centralized authorities and dispersing the decision making to a broad community across the globe. Projects are coming up with creative applications of the technology to upend the financial services industry, records management, logistics, and supply chains and charitable donations, to name a few.

 

Certainly, some of these will be permission blockchains run by a central party. But a lot of the interest and questions will stem from truly decentralized networks. Decentralized networks run and are owned by the people who use them, and they could offer real competition to some of the biggest companies in the world. A legal and regulatory structure built around the traditional corporate structure may be ill equipped to handle these networks.

 

The SEC has seen many of these projects firsthand since 2017 and has grappled with the application of our federal securities laws to crypto. The Agency relatively early on, a couple years ago, established the FinHub, which is a part of the Agency that coordinates our approach to digital assets and other financial technology. For an agency comfortably padding around in its 80-year-old statutory robe, the FinHub has been a positive development, but there’s much work that can be done to make the Agency more welcoming to innovation.

 

The fundamental question that often arises is whether digital assets are securities. And if so, they are subject to the federal securities laws, and that can be complicated in itself. Even when digital assets aren’t securities, the SEC’s jurisdiction may cover some activities relating to digital assets in a variety of ways. So, for example, when a registered entity such as a broker or dealer or investment advisor seeks to hold crypto on behalf of customers, it has to do so in a way that’s compliant with our securities laws.

 

Moreover, certain sponsors have sought to offer to investors exposure to crypto through traditional investment products such as an exchange traded product. These ETPs have to receive SEC approval to list and offer and sell their shares. The SEC so far has rejected listing applications for bitcoin ETPs, something I have objected to on the grounds that we’ve applied heightened standards to these products without any statutory basis to do so.

 

Overall, I’d say that the SEC has had an uneven response to crypto. While we’ve taken some positive steps, a refusal to provide clear guidance on how to comply with the law, a regulation by enforcement, and our seemingly glacial pace in responding to requests for exemptive relief is sending this burgeoning industry a clear signal to set up shop elsewhere and keep Americans off their networks. For those of you that don’t follow the Commission’s day to day actions in this space, I’ll share a few highlights of how the Agency has dealt with the fundamental issue of whether a token is a security.

 

In July 2017, prior to my arrival at the Commission, the Agency issued the DOW report, which was an opening salvo to warn the crypto community that initial coin offerings may be considered sales of securities. It was an odd first case because its facts weren’t the typical ICO facts. But it has become the line of demarcation. We talk about pre-DOW cases and post-DOW -- pre-DOW projects and post-DOW projects. And the post-DOW projects were deemed to be on notice that the securities laws were something that they had to think about.

 

The DOW report applied the framework drawn from the now famous in crypto circles Howey Supreme Court case. And it found that the DOW tokens were securities. Briefly summarized, Howey teaches us that regardless of form something is a security if it represents an investment in a common enterprise with the expectation of profits solely based on the efforts of others.

 

The Commission has followed the DOW report with a line of enforcement cases against ICO issuers. I’ve supported many of these cases, especially when they have involved holding people accountable for material misstatements that they made while raising money from investors. In other words, fraudsters shouldn’t be able to hide behind the crypto label to avoid application of the anti-fraud provisions in the federal securities laws.

 

However, I have not supported most of our enforcement cases against crypto projects for violations of our registration provisions under the securities laws. One of the reasons for my opposition to these cases is that we have failed to put out clear guidance on how a digital asset can be offered without implicating the federal securities laws. Almost any token distribution of that will, by the analysis that our cases have employed, fall afoul of the securities laws.

 

In 2019, Commission staff attempted to provide guidance and issued a framework for analyzing whether a digital asset has the characteristics of an investment contract, which is the type of security that the Howey test defines. This staff guidance identifies 38 separate characteristics to consider when analyzing whether an offering of digital assets is likely a securities offering. Although I appreciated the attempt, this guidance has proved to be too complex and confusing to be of any real use to the public or frankly to ourselves as we analyze when something is a security. So I think our job of providing guidance is still one that we need to take up and give more help to folks who are trying to figure out where things stand.

 

So far, only a handful of projects have been able to receive approval from the Commission staff to move forward with token distributions. A few projects received staff no-action letters whereby the staff acknowledges that it will not recommend an enforcement case to be brought against an issuer in the event that the issuer conducts the offering in a manner that it sets forth in its incoming request to us. However, the very fact that these projects felt compelled to seek no action relief is actually troubling to me because the facts of the projects at issue were such that they seem very unlikely to implicate the securities laws in the first place.

 

A few other projects have distributed tokens pursuant to registered or exempt offerings. A few months ago, in September 2020, a project conducted the first registered token offering after having its registration statement declared effective by the SEC staff. And in 2019, two issuers conducted exempt offerings under Reg A. These are frequently referred to as mini IPOs.

 

The registration process is costly, and more concerning, once a token is deemed to be a security, it has to trade as a security.  Requiring registered broker-dealers or exchanges to be involved in secondary transaction certainly puts a damper on the development of a thriving decentralized crypto network. It also raises many unanswered questions on another sensitive subject that the SEC, custody of these digital assets by the registered entities holding these assets.

 

Outside of these projects, the SEC has taken an aggressive stance against ICO issuers for violating the registration provisions of our securities laws. Most disturbingly, some of these enforcement cases have required the tokens to be disabled or destroyed or have caused the companies to abandon once promising projects on the verge of becoming reality. I understand that the determination of whether a token is sold as a security is a difficult one.

 

It requires an idiosyncratic analysis that doesn’t produce clear guideposts for entrepreneurs to follow. The challenge of discerning a clear legal line is especially difficult with respect to new forms of business and novel technologies. Entrepreneurs may be forced to choose between unpalatable options, either expanding their -- expending their limited capital on costly legal consultation and compliance or forgoing their pursuit of innovation due to fear of becoming subject to an enforcement action or, as some projects do, just completely avoiding the United States.

 

That’s why I proposed a regulatory safe harbor earlier this year. The safe harbor would provide network developers with a three-year grace period exempted from the registration provisions of the federal securities laws but subject to certain disclosure requirements and subject to the anti-fraud provisions of the securities laws. This safe harbor would allow them to facilitate participation in and the development of a functional or decentralized network. And I think that it would be a positive step forward. I have received a range of reactions to the proposal, and my goal is to publish a revised proposal in the near future.

 

But there’s much more to be done on issues like custody and bitcoin-based product approvals. I hope that the Commission will adopt a more open approach to innovation. I fear otherwise we’ll drive some of the brightest young minds this country has to overseas countries that are more accepting of innovation. And that would not be a good thing for any of us.

 

I thank you for listening to me, and I look forward to hearing from my fellow panelists. And speaking of innovation, I’m going to turn it over to Brian Brooks, who has been a leader in encouraging the industry he regulates to embrace new technologies and also, I think, encouraging other regulators to think more creatively about how we can adapt our rules and regulatory framework to modern technologies. Brian, it’s all yours.

 

Brian P. Brooks:  Hester, thanks so much and thank you for having me today. It is an enormous honor for -- I think for Brent and Paul and me to share the platform with Hester, who probably is the most famous person in the world of crypto, probably more famous than Satoshi Nakamoto. She has done more, I think, to push this idea than anybody else in government. So let me do this. I’m going to take a step back for a minute.

 

So I think Hester did an amazing job of walking us through some of the core legal issues that you confront as you think about decentralized networks, but let me take a step back and just ask the question why does anybody care? Why are we doing this? So I’m going to propose several reasons for this.

 

The first is there is a deep thesis, which is borne out in the growth of the internet, which is that networks are more inclusive, more efficient, faster, cheaper, and more resilient than commanding control structures. And I think almost anybody at a FedSoc event’s going to share that basic impulse because I think most of us believe that markets are a better way for organizing economies than central planners. If you believe in that impulse, then you’re probably going to believe that networks are a more efficient way of distributing just about anything than is some central distribution node.

 

So the reason that I care about this at the OCC is that banks are kind of the ultimate central intermediaries of finance. Banks are, as I sometimes say in speeches -- they’re like the Post Office once was to information. There was a time when the only way to distribute information around the country was to write a bunch of letters, put them in envelopes, send them to a central office called the Post Office, and that central office would then be in charge of distributing those letters out to the intended recipients.

 

Only, we all know how that worked. It cost money. It took five days for a letter to get from New York to California. And a non-trivial number of times you discovered that the letter carrier had lost the mail or had buried the mail in their backyard. It happened in a number of cases -- or whatever. That was a highly inefficient way of distributing mail, but it was the only way of communicating information at a time when technology did not exist to allow people to communicate directly.

 

Then along came the internet, and email was built and all of the cellphone messaging apps that we all have and everything else. And nobody in the world writes letters anymore as a result. They send messages for free, and they send messages with all kinds of features on them. You can send video. You can copy multiple recipients. You can send things in a secure way or a private way or an encrypted way or whatever. And we all intuitively understand that networks now are a better way of transmitting information.

 

What crypto is about -- and I’ll talk about central bank digital currency as a species of this in a moment. But what crypto is about is the idea that transmitting value is not fundamentally different from transmitting information. We now have a technology that can simultaneously maintain legers algorithmically. So you no longer need a bank clerk wearing eye shades to maintain legers in a book. But it can also do things peer to peer.

 

So it can maintain a leger but also transact value directly without the need for any intermediation. This is just something that wasn’t possible 20 years ago, but now it is. And blockchain is essentially the internet for the communication of value, much the same way that the first internet was the internet for the transmission of information.

 

So we’re here today talking a little bit about central bank digital currency. And I want to slightly reframe the discussion to sort of say there are two ways forward for an internet-based transmission of value. One way is the government can build it.

 

Now, this has happened in various places, particularly among our geopolitical competitors. China has actually done two major things to build an internet of value at the government level. One is just a few weeks ago China announced the issuance of something called the e-Renminbi, which is an internet version of the Chinese yuan.

 

Their theory is that although the dollar may be the global reserve currency, an aggressive, muscle-flexing China can start chipping away at the dollar by building an easier to use currency. It may not be as stable in value. It may or may not be a true reflection of the strength of the Chinese economy for various reasons, but it’s super easy to use because it can transact directly across an internet transmission portal, whereas dollars have to go through bank clearing organizations.

 

That’s one of the things that they’re thinking. The other thing that China has done is they have captured more than 51 percent of the mining capacity on the bitcoin blockchain, which means that the very first internet of money, which was the bitcoin blockchain about 10 years ago, is now essentially owned by China. So as a country, we now face a geostrategic competitiveness issue, which is do we in the United States want to own internet 2.0 in the same way that we own internet 1.0?

 

One of the reasons that information and commerce flows as freely as it does over the internet is that we didn’t give it away to China at a time when we well might have. We made policy choices to incubate a network-based economy in the U.S. And the result has been good and bad, I will admit. But it has been massive economic growth in the United States by allowing people to build on top of these networks, to self-publish, to sell things quickly, to eliminate startup costs and do all the good things that the original internet brought us.

 

Our leadership in finance is nothing like assured at this point because we have yet to embrace networks. And so now we’re having a discussion in this country about two alternative choices. One is we can be a relatively slow follower to China and build our own central bank digital currency.

 

So again, China issued its central bank digital currency about six weeks ago. We are talking about the possibility that our Federal Reserve could issue our own digital dollar four years from now. So consider that. We’re going to have a four-and-a-half-year time lag in slow following our most important global competitor into the world of electronic money.

 

Normally, we don’t want to be the slow follower. We want to be the leader or at least a fast follower. So what’s the alternative to the government building a set of sort of government run payment rails built on a central bank token? The alternative is to do what we’ve always done best in this country, which is to unleash the innovative risk-taking private economy to build networks. And the good news is they’ve already done that.

 

So we have a number of functioning stablecoins in the United States, which are backed by dollars held in U.S. banks, which transact over the internet. So they are dollars in the sense that all of them are fully redeemable for money held in banks. There’s no question about price volatility because they are redeemable at par for a dollar. But they’re programmable in much the same way that you can send messages on Signal and WhatsApp and Facebook Messenger and your text messages.

 

So they have all of those capacities, except that you’re transmitting value and not information. These things exist today. And so as a country, we have a choice about do we want to double down on a government monopoly like China did. Two problems with that and one is government monopolies are generally bad. And two is we’re way slow out of the gate on that. Or we can do what this country does best, harness our innovative market economy and embrace the concept that there will be lots of private networks for delivering dollars in different ways, much as we all have multiple messaging apps on our phone which allow us to send information in multiple different ways but are all useful to us for various reasons.

 

At the OCC, the question that we have to deal with is banks are generally the transmitters of value in our society. So the question is can banks support stablecoin projects? We’ve said, yes, they can. They can hold reserve deposits and provide ancillary services to ensure that the stablecoins out there comply with consumer protections, don’t result in bank runs and the like.

 

Then the question is can banks provide other normal services to cryptocurrencies? For example, can they provide custody for people who hold these assets? Again, we’ve said, yes, they can. We don’t have a view about whether given cryptocurrencies are valuable or not or whether they’re risky or not. But like any other volatile and risky financial asset, banks have always provided a custodial service. And we’ve said they could do that as well.

 

There remain other questions to confront, and we’ll confront them over time. But I would just close by saying the most important things that are necessary if crypto and stablecoins and some kind of digital dollar are going to exist -- the most important questions are two. First, we must commit to a real and enforceable way of ensuring that crypto does not become a vector for money laundering or terrorism financing. And so we must understand that this kind of financial exchange is subject to the same kinds of national security and law enforcement issue that any other kind of value exchange is, right?

 

These things will not work, and we won’t get their utility if they become vectors for criminality. So that is a critical first gating factor. But there is an equally important second gating factor if these things are to have value and grow the economy. And that is we must understand that decentralization is the point.

 

If we had embraced listservs and intranets in the early ‘90s, we wouldn’t own the future the way that we do now on the internet. So too here, permission-less blockchains ultimately are the future in this world. Now, there are individual companies and networks that will have their closed loops, much as companies in the late ‘80s and early ‘90s had their internal intranets and listservs. And those have their place. But at the end of the day, if what we’re trying to do is own the intranet enabled decentralized future, we need to understand that decentralization is equally important.

 

So those are the two conundrums. We must have real law enforcement to protect our national security while also understanding the scale requires decentralization. So I look forward to the discussion. I’m now going to turn it to my friend, Brent McIntosh, the Undersecretary of the Treasury, who is a major voice on these issues and convener of all the agencies. So Brent, I’ll kick it over to you.

 

Hon. Brent J. McIntosh:  Thanks, Brian. Delighted to be here today. Thanks to Paul for moderating for us and to The Federalist Society for bringing us all together on this topic. I inevitably am going to sound like the least enthusiastic of the three panelists, but I think that’s more a product of the composition of the panel than anything else. We have Brian who has a deep background here and Hester who, I think, is changing her last name to Nakamoto after this panel.

 

But look, despite that fact, both Hester and Brian are right that there’s a reason for immense enthusiasm here in regard to these technologies. Whether it is increased digital payments, digital assets, crypto, stablecoins or so-called stablecoins or central bank digital currencies, the developments here have the potential to create clear benefits for consumers and users over the current system. They’re driven -- the move into digital currencies is driven by real pain points in the system.

 

There can be really no question of that. There are inefficiencies. There are costs. There’s time. Settlement time is too long for individual transactions. And these technologies have the potential to expand financial inclusion to many of the unbanked.

 

So there are immense promise here in terms of cost efficiency inclusion. You already see that across places where there’s been massive adoption in digital payment systems, including, for example, the M-Pesa in Africa. So there is a possibility of rapid broadscale adoption, including internationally, of these technologies.

 

But that said, with rapid broadscale adoption, that rapid broadscale adoption can be self-threatening if it’s not designed well, if the payment mechanisms are not designed well, if the assets are not designed well. If it lacks -- if a payment mechanism lacks meaningful user protections, that’s an easy way to undermine confidence in that payment mechanism. And that would be a huge problem to begin with. And if the payment mechanism were adopted at scale could actually have systemic consequences.

 

If it creates financial stability risks, that would be a problem.  If adopted at scale and the potential for financial stability risks were to come to pass, that would be a problem that could even be global in scale. Similarly, as Brian identified, if the payment mechanisms here become a route for money laundering, sanctions evasion, tax evasion or illicit finance, that also will undermine the efficacy of these payment mechanisms.

 

So in some ways, the design of the mechanisms and the regulatory and supervisory approaches we apply to them have the potential to ensure the success of these systems or to imperil the success of these systems and with it to ensure or imperil the benefits that would flow from digital assets. So when we look at the rise of these technologies and the evolution of these technologies from the standpoint of the U.S. regulatory community and even the international regulatory community, we see a series of age-old imperatives that, although the technology is evolving, the imperatives apply just the same here. Those are things like things that Brian mentioned, money laundering and elicit finance, ensuring that this is not a sort of digital free for all for behaviors that we, in the United States, spend a great deal of time stamping out and working to stamp out. That’s ensuring that there is user protections built in here.

 

So for example, we’re thinking about questions like the reserve that backs a stablecoin and the composition of that reserve and the reserve requirements. Similarly, the Financial Stability Board, which is an international body that grew out of the global financial crisis has been looking at the potential financial stability consequences of a -- most recently of a stablecoin that were adopted at scale and used around the world and became a sort of international currency. There are concerns, as well, around data privacy here and operational resilience and cyber security that are clearly present here in a way that are not present with current Fed reserves or cash. And so those are questions that need to be resolved in a meaningful way to ensure that success of these systems.

 

And then, obviously, I would be remiss as a Treasury Department official unless I pointed out that we want to collect taxes. This should not be a tax-free zone. So whatever level of taxation you believe is appropriate, it’s not a tax-free zone just because you stick cyber or crypto in front of the currency name.

 

And so governments have rules to address these sorts of concerns in the existing system. And they need to think thoughtfully and quickly about how to apply those rules in the cyber domain and how to apply them with regard to these new and evolving technologies, whether it be the crypto currencies that were and remain very prominent, the possibility of a stablecoin that were adopted at scale, or a central bank digital currency. So the Financial Stability Board has done a good deal of work looking at -- and I worked on this work -- looking at how we should apply those sorts of principles to evolving technologies and how to take a situation where a new technology is accomplishing that same business as a prior technology, whether it be cash or some other commercial bank money, and poses the same risks, it should comply with the same rules. And how exactly to make that work in a rapidly evolving technology set is something that regulators around the world are working on intently.

 

And then there’s obviously, from the perspective -- we don’t have the Fed here today. But there’s obviously a question for central banks about the role of private currencies in monetary policy and monetary sovereignty and their ability to continue to use monetary policy as a tool of economic growth and financial stability in a situation where, for example, there were cross-border adoption of a particular private or central bank issued digital currency. We in the United States have an obvious interest in monetary sovereignty and the role of the dollar. And so when we think about that, there are obvious questions for the Fed to address with regard to these technologies.

 

I’ll just turn for a moment to central bank digital currency, CBDCs, which I think there’s some -- it’s not always clear what exactly we’re talking about there. And with regard to central bank digital currencies, we’re talking about a sort of third form of central bank money. It’s not cash. It’s not the sort of bank reserves held at the Fed that are the other form of central bank digital currency.

 

The forms being talked about now, we’re talking about actually consumer-used central bank money, whether it be tokenized or account based. And a number of central banks, as Brian pointed out, are studying this. Bank for International Settlements recently put out a principles paper which was done in conjunction with the Fed and the European Central Bank and the Bank of England and several other central banks to think through the public policy questions that arise out of central bank digital currency. These are public policy questions that are not just questions for central banks.

 

They’re really questions for the governments and the people of various countries to think through because, as Brian points out, a central bank digital currency does provide the central bank, and thus the government, a great deal of power. It provides a great deal of insight into all the transactions that are happening, an awareness of those transactions, potentially the ability to control those transactions or stop those transactions. And that power could be used in some instances for good, but it could certainly be used for maligned purposes. And I think that when we look at the rise of central bank digital currencies in some non-market economies, the possibility of using those for maligned purposes is very real.

 

And then there’s, of course, questions about if a central bank is issuing a digital currency, whether that causes disintermediation in the financial system and bank disintermediation and the question of whether then there’s a harm to the provision of private credit in the system. And these are hard questions that we need to work through as we consider the possibility of a central bank digital currency. There was a very interesting discussion this week between -- or among Chairman Powell, Madame Lagarde, and Andrew Bailey, who’s the governor of the Bank of England, about these topics.

 

And the position they all took was that these are not replacements for cash. They’re intended to be done in a way that doesn’t preempt cash or other digital currencies if the issue is central bank digital currency. Chair Powell said he’s, quote, committed to carefully evaluating the benefits of a CBDC and it’s a questionable approach with great care. And the main focus for him is on whether the CBDC would improve a dynamic and stable payment system. Christine Lagarde pointed out that there are real questions of monetary sovereignty. And one of the reasons the EU would want to adopt a central bank digital currency is autonomy for the euro area. And I think we have a sense for what that means.

 

So that’s all to say there’s a lot of thinking to be done about central bank digital currencies. Brian pointed out that one of the uses that the Chinese aspire to, we think, with a central bank within a digital RMB is the displacement of the dollar. There’s also within China domestic purpose for a central bank digital currency, which is a certain jealousy of the pride of place held right now by Alipay and WePay there and the fact that the Chinese government is not a part of that process and the desire to have greater control there.

 

So this is all to say both private sector cryptocurrencies and stablecoins and central bank digital currencies could have real benefits. They also pose substantial public policy challenges that need to be addressed at the frontend before we get ourselves in an untenable position. And they need to be addressed internationally with our counterparts throughout the international regulatory and supervisory community because they present -- they’re inherently cross-border. They create cross-border externalities, and they need cross-border collaboration.

 

So there’s a lot of work going on at finance ministries and central banks around the world to address those concerns. And I’m sure we can delve into those more as we go forward with further discussion of the panel and take questions from the attendees. Thanks very much.

 

Hon. Paul S. Atkins:  Great. Well, thank you, Mr. Undersecretary, for that and also to the Comptroller and Commissioner for your remarks as well. So just one point of housekeeping here to the attendees, I noticed that we had a few questions, but then it looked like you all unraised your hands. So if you want to pose a question here, please use that hand raising feature. And that’ll show up for me that you’re interested in asking a question. And please leave it raised there so that we can tell that you have that question.

 

Well, one thing before we go into the central bank digital currency discussion in more detail — which I think there’s a lot to unpack on that — I thought maybe we should start at kind of a basic level -- and thanks to Hester. You did a great job in kind of laying out the issues with securities law. But at the same time, recently the administration put out the national strategy for critical and emerging technology, which listed distributed leger technology as an important aspect for the United States that is critical for our leadership in the world.

 

So I wanted to ask you all as far as just in general -- so the blockchain, distributed leger technology, you all touched on this in different ways, but I assume that you all agree that that’s a vital part for guarding America’s technological prowess going forward. And then, secondly, I was wondering if you all could touch on where you think the real critical touchpoints are as far as ensuring that the United States can develop it? Some are regulatory.

 

Maybe some are technologic. Some are inherent, maybe, in our system of rules and regulations regarding what’s criminal and what’s not and obviously what’s a security and what’s not. Different countries have different perceptions of that. But just quickly, I was wondering if we could level set with respect to DLT. So maybe go in the order that we did before, so Madam Commissioner.

 

Hon. Hester J. Peirce:  Sure. I think that the technology is technology that we want to have developed here in the U.S. I think the main barrier to it being developed here is regulatory clarity, which is something, I think, that all of us are thinking about. But I think absent that, people would want to do the development here in the U.S.

 

Hon. Paul S. Atkins:  All right. And Mr. Comptroller?

 

Brian P. Brooks:  Well, there certainly is a big issue of U.S. versus other parts of the world. There are parts of the world, Singapore being my favorite example, that are very growth oriented. It’s sort of like -- you know that book That Used to Be Us? I look at Singapore, and I ask myself if we still have the risk-taking dynamism that we had 50 years ago, let’s say. Could we put a man on the moon today? I don’t know, but I hope so. There definitely are other competitors who are racing to provide regulatory clarity so that people will go there and build this stuff. And here, where we seem to be embracing ambiguity, that’s less likely.

 

I would just say one other quick thing, Paul, and that is that in the U.S. among people who don’t have a deep thesis for crypto, you often hear people talk about, “Well, I’m for blockchain. I’m just not for crypto.” So when I hear phrases like “distributed leger technology,” which is not a phrase that has ever been uttered in Silicon Valley, what I think that is code for is “I’m pro-blockchain, but I’m anti-crypto.”

 

So let me just level set for people who are not deeply educated in this. There’s no such thing as blockchain without crypto. Crypto is the native asset that induces people to solve the puzzles that result in validating transactions. It’s the only reason people plug their computer into the network in order to do the transaction validation that occurs.

 

So don’t be fooled by people who say, “I’m pro-blockchain and anti-crypto.” You wouldn’t have stablecoin networks without the Ethereum token. That’s what lead to the development of the Ethereum network on which all of these stablecoins are built. So we do really need the clarity Hester’s talking about because, without it, there won’t be blockchain. So we can’t think of the blockchain as the infrastructure. It’s the ecosystem of tokens and networks that is the national infrastructure on this.

 

Hon. Paul S. Atkins:  Yes. Okay. Brent, do you have a --

 

Hon. Brent J. McIntosh:  Yeah. I don’t have a lot to add beyond that, but the one thing I’ll say on that is the United States has been a technology leader for many years. And it will continue to be a technology leader with regard to these technologies. It’s also been a leader in regulatory approaches to financial integrity, and it will continue to be a regulatory leader in approaches to financial integrity as we evolve into these areas. And I can tell you just from having discussed with my international colleagues, they are looking to us for the question of how to apply things like “know your customer” requirements and anti-money laundering requirements in this space.

 

And so we will have a leadership role in formulating those rules for technologies developed here or technologies developed elsewhere, at least among the responsible, like-minded countries. And Brian mentioned Singapore. One of the projects we were working on at the Financial Stability Board was a regulatory review of stablecoins. And that was co-led by me and my counterpart in Singapore. So they’re clearly thinking -- they’re forward-leaning on this, but they’re also thinking carefully about the important public policy imperatives that are relevant to the evolution of these technologies.

 

Hon. Paul S. Atkins:  Well, so to follow up on all of that, obviously it’s a big world, and none of this really knows any borders, of course, as far as where things go. And you’ve pointed out -- Brian pointed out rightfully Singapore is also its leader. But in the United States here, too, we have 50 states that also have their own views -- various views about all of this.

 

And Brian, you’ve been a real leader as far as innovation on the federal level and especially with respect to custody and allowing now national banks to be custodians of cryptocurrencies, at least ones that are not securities. And I was wondering how you all view the federalism aspect here in the United States, so the various jurisdictions, because there are -- there’s a solution for a lot of the various approaches. And that’s a preemption at the federal level, which, of course, people in Congress don’t like to ever talk about necessarily.

 

So I’m curious, A, what we need to do with our own housekeeping here in the United States and then, B, as Brent was mentioning with respect to the FSB and other supernational groups — even though FSB is not really subject to treaty or anything like that — but how do we approach this jurisdictional difference?

 

Brian P. Brooks:  It’s a great question, Paul. My lens on this, which is, I guess, different from Brent’s and Hester’s, is the OCC has a unique role in this country of chartering financial institutions. So we’re not just a regulator promulgating rules and policies. We actually get to create banks is kind of the core role of my office.

 

And so here, the way we think about it is most companies that are involved in crypto businesses are licensed as state money transmitters. Many of them have a license in New York that’s called the bit license. But the problem with these licenses is that they only extend to the state border.

 

So as I discovered in my former job at a crypto company, we had to maintain a money transmission licenses in all 46 states that required them. Plus we had to have a state trust company in New York. Plus, we had to have all of these other things. So there were enormous frictions imposed by state by state regulation when you’re doing a large global business.

 

That doesn’t mean there’s not an important role for the states. One of our strengths as a country, obviously -- indeed the nom de plume of this organization is federalism. We have small units where laboratories of democracy can occur, and we can experiment and see what works. And that’s a good thing. But it’s also true, as Hamilton taught us 200 years ago, that for us to compete with the great powers of the world we have to be a big economy, not just a local economy.

 

And so the nature of crypto, which as you say knows no borders -- where the whole point is there is a common unit of exchange on all sides of a border -- requires a larger playing field than any given state. So the way we’re looking at it is thinking about what our national bank powers are because national banks do have pre-emption. They are able to operate across state lines irrespective of state substantive law on most aspects of their operations. And so if national banks can be involved in blockchain, if they can custody these assets, if they can plug into stablecoin blockchains, if they can support stablecoin and other crypto projects, then it’s possible for this to become a national infrastructure.

 

Absent that, it will never be a national infrastructure because New York will take a different view from Wyoming, and that will be a big problem. Indeed, when I give that example, that is a big problem because you have Wyoming, a state that is very pro-crypto, that has now started licensing crypto banks, and then you have New York, a state that is much more enforcement oriented and much more focused on sort of constraining rather than growing some of these innovations. So at some level, when this is big enough and important enough for us, it will have to grow inside of the national banking system, the only nationwide charter that we have.

 

Hon. Paul S. Atkins:  Interesting. Hester, do you have any thoughts on this, especially with respect to how the SEC approached this and then with all the various states?

 

Hon. Hester M. Peirce:  Well, I think that in this instance we can learn from what some of the states are doing. Wyoming, which Brian mentioned, has been really out front in trying to think about a way to create the framework that would allow it to regulate the crypto businesses in its state. And I think we have a lot to learn from that example. So that’s a reminder to me of the importance of the idea of laboratories of democracy.

 

At the same time, I think in this area and others there are times when I think it’s important for us to exercise preemption so that we can have a marketplace that works. For example, we have a framework for private offerings -- exemptive framework, and in a lot of those instances, I think it makes sense for us to exercise our authority to preempt the state laws so that you can have a functioning secondary market. And so some of those same concepts will apply here in the crypto space.

 

Hon. Paul S. Atkins:  Okay. Well, thanks. Brent?

 

Hon. Brent J. McIntosh:  I’ll only add that I think those are great points. I’ll only add that Treasury did a review early in the administration of various aspects of financial regulation. And one of the things Treasury looked at in the fourth of four reports we put out on that was the evolution of FinTech. And there was a recognition in that report that there was a need for nationwide certainty to promote the evolution of some of these technologies if we want to stay a technology leader in the United States.

 

Hon. Paul S. Atkins:  Great. All right. Well, why don’t we turn quickly to a question from the audience, and there are a whole number of questioners who’ve raised their hands. Let’s start at the top. Michelle Roberts, if we can open your mic.

 

Michelle Roberts:  Good afternoon. Michelle Roberts of Blackrock. This is a question for Commissioner Peirce. After the SEC shut down the Telegram ICO where subscribers were leading venture capital firms like Kleiner Perkins and Sequoia, accredited investors -- not the retail, munchie users, I didn’t think an ICO could survive. But I think you opened your remarks by mentioning some recent ICOs under Reg A. Could you please elaborate and explain the difference between those Reg A ICOs and Telegram?

 

Hon. Hester M. Peirce:  Well, so what Telegram was trying to do is they raised money as you mentioned from accredited investors to get the project up and running. And then when they were ready to have the network actually launch, the idea was to get the tokens into the hands of the broader world. And at that point, that second token distribution event, we the SEC came in, and we said, “You can’t do that.”

 

I objected to that. I thought that the approach of raising money initially privately and then building the network and then going out publicly is not a bad approach at all. And it’s one -- the safe harbor that I talked about that I proposed and that I’m hoping will get some uptake. That would allow that kind of a framework to work really well where you raise money privately, and then once you’re ready to launch, you have a way to launch.

 

Now, what some other projects have done is they have used Reg A, which is, as I mentioned, we have public offerings, but we also have private offerings that you can raise money under exemptions from registration. So regulation A is one of those exemptions. It’s been referred to, as I mentioned, as a mini IPO.

 

So you’re still doing disclosure, and that process is one that runs through the SEC. And you’re interacting with the SEC staff as they’re looking at your disclosure documents -- at your registration. And so that is an approach that some projects have taken. My concern about that approach -- and again, if it works for people, that’s fantastic. But my concern is that once you get through that process, then your token is a security, which means it’s subject to all of the requirements about how securities can move from one hand to another.

 

And so it really does mean that then the tokens in that network will be a security and will be constrained by the securities laws until such a point as perhaps someone can come in and say now this network is totally decentralized, and there’s no need for this token anymore to be governed by the securities laws because there’s no longer an asymmetry of information. There’s no central party that has information that people buying that token would need to have in order to make a good decision about whether to buy it. We haven’t seen a token go from the point of being deemed to be a security to being unclassified as a security. Maybe when that happens that will make the Reg A route a more attractive route for people to take.

 

Hon. Paul S. Atkins:  Well, and just -- oh, sorry. Just to add a point to that, the Reg A offering, I remember the CEO of the company that went through that made a remark that the millions of dollars that he spend on supposedly what’s supposed to be a very cheap way -- inexpensive way for smaller companies to go public was his contribution to the whole effort of trying to get things normalized. So it’s not an easy route and especially because the way the SEC has approached things as being very -- let’s say it’s not rule-based. It’s not even formal guidance. It’s really regulation by speechifying almost as far as clarification of what is and is not a security, bitcoin, Ether, and whatnot. So Hester, one follow-up --

 

Hon. Hester M. Peirce:  I do think that that point that you just made is an important one. Clearly the first projects to take the Reg A route are going to -- they’re going to do a lot of the work, which later should smooth the way for future Reg A offerings. So it may end up being a more attractive route for future projects. I’m sorry. What were you going to say, Paul?

 

Hon. Paul S. Atkins:  And actually and hopefully one aspect of that was the limits for Reg A -- you know, the upper limits.

 

Hon. Hester M. Peirce:  In a recent rulemaking, we just raised the upper limit from 50 to 75 million. And so you can spread the costs of capital raising over a larger amount of capital that you’re bringing in. And so we hope that that will make Reg A more attractive, not only in this space but just more generally to companies trying to raise capital.

 

Hon. Paul S. Atkins:  Great. Well, let’s turn to another questioner, and this one maybe will be a banking one. Wayne A. You’re on mute.

 

Wayne A.:  Thank you very much for this very interesting and, I will say, also very important panel. Appreciate all of your participation. I want to follow up on a point that Comptroller Brooks made, and that is when you compared trends of the internet as a means for communication but also now a means for transferring of value. And my concern really has been raised in recent months where we have seen government and private parties inserting themselves into that transferred communication and engaging in various forms of censorship or otherwise blocking that free kind of communication.

 

Can we be confident that if the internet becomes this kind of means of transferring value that you talk about, Mr. Comptroller, that we could be free of government or other parties in essence engaging in financial censorship or other types of interference and that free flow of value amongst the different parties that are participating? And is perhaps maybe the solution, which we don’t have so much in communication -- is a very vigorous field of competition where you have many different parties that are playing significant roles so that no party can block out other individuals? That’s my question. I’d appreciate your views on that. Thank you.

 

Brian P. Brooks:  Well, first of all, Wayne, you’ve always been a hero of mine, and now you’re even more of a hero of mine. I couldn’t agree with you more. What I would say about that is the problem with internet 1.0 is not the internet. The problem is internet 1.0 is not decentralized. So like the internet is not censoring speech. Twitter is censoring speech, and Facebook is censoring. There’re a small number of gigantic intermediaries that took over the internet.

 

So if you go and live in Silicon Valley as I did for two years — which, by the way, is a mind-blowing experience for people like us — you will learn certain things. And one is the idea that internet 1.0 was a partial success but a significant failure for the reason you say. We allowed a small number of giant authorities to amass enormous power under the protection of Section 230, which is now such an issue of hot debate because those companies are not passive maintainers of an internet. They are actually sort of competitors in a debate.

 

Internet 2.0 was supposed to be different from that. Internet 2.0 was supposed to be the information internet where all of us were able to freely do whatever we want, to post whatever we want uncensored. People out in Silicon Valley talk about crypto is internet 3.0 for that reason. So yes, it must be truly decentralized. That is really the key.

 

The issue is building decentralization first. So as I say at the outset, the two things necessary for this to succeed are, A, to solve the money laundering/law enforcement issues but, B, to have a truly permission-less, truly decentralized internet of value where there are no intermediaries who exercise the kind of power that Twitter and Facebook issue. So I think your point is extraordinarily well taken.

 

Hon. Paul S. Atkins:  Brent, do you have a --

 

Hon. Brent J. McIntosh:  Yeah. I would just add on this one that this is an important consideration when we think about central bank digital currencies as well. And when we were talking earlier about the possibility of internationalization of an RMB -- a digital RMB, there are a number of reasons why the current design of the RMB is not easily conducive to internationalization, including the capital controls that currently apply to the RMB. But that said, there’s another issue with internationalization of the RMB.

 

And it’s exactly this. It’s government control of the transactions. And it’s one thing if you’re a Chinese national and you are subject to the immense government control that takes place in China. That’s a problem of one scale, but why would you -- if you were a person in a third country, why would you possibly want to use a digital RMB when you’re subject to the Chinese government knowing all of your transactions and having the possibility to shut them down and assigning you essentially conceivably a social credit score in the same what that is assigned to Chinese nationals.

 

So I think this is a huge question for the evolution in this space. And it’s one that applies not just to the private sector of technologies but to the central bank technologies as well.

 

Hon. Paul S. Atkins:  Yeah. Thank you. That’s definitely a cause of concern as far as privacy and anonymity -- the values that we hold dear in this country, which is a common objection, of course, to CBDCs. As far as -- let’s see. Lindsay Freidman has a question.

 

Lindsay Freidman (sp):  I apologize. I have my wife’s name on. Thank you all for the discussion. I was curious -- one of the practical concerns that I have with respect to crypto currencies being truly decentralized is, for example, last night I sent a wire. It didn’t arrive timely to the recipient, and so I was on the phone with the bank saying, “Did I press in the right account number?” So I’m curious what sort of practical or legal solutions are available when people are truly out in the desert and on their own in a truly decentralized network where so much value is being exchanged?

 

Hon. Paul S. Atkins:  Thank you. Brian, Brent?

 

Brian P. Brooks:  Well, I’m happy to try and comment on that. So the first question I always ask in almost any setting is so consider the alternative. So what I’m hearing you say, which I think we’ve all experienced, is the existing banking system’s pretty clunky. So I don’t think to justify crypto as an alternative that we have to show that it’s not clunky. We have to recognize that the existing system is quite clunky, and crypto may or may not be better in its clunkiness quotient.

 

So let’s start with that. Then, I will tell you that the places in the world where crypto actually is used in a way that it isn’t in the U.S. -- because, to be clear, in the U.S. crypto is mostly seen as an investment asset. That’s why Hester is such a hugely important voice on this.

 

But if you go to other parts of the world like Venezuela, for example, or parts of Africa, refugee camps in Bangladesh — another great example — people are actually using these things to transact with each other. And the reason they’re doing so is because there’s no bank required. They can transact directly on their cellphone. So it’s not really a thing in the world of blockchain where you think you sent the money, but the money didn’t go.

 

The reason that happens in the banking system is normally you have to have two factor authentication and an in call from your bank to confirm the wire. And so, yes, once all of those things have happened, the wire moves almost instantaneously. But a whole lot of things have to happen first.

 

Whereas, in the world of crypto that’s just not so. In a world of crypto, if you have a private wallet on your phone, you could literally hit one tap and it will instantly update the blockchain to show a transfer from your wallet to the other person’s wallet. That’s just not a thing.

 

So by its nature, the lack of a need for an intermediary is what makes it inherently faster than banking. Now, it’s also, to Brent’s point, what makes it inherently riskier. That’s the part that we’re still figuring out, I think, as regulators. But to your point, it is inherently faster because of the nature of what a blockchain is.

 

Hon. Paul S. Atkins:  Hester or Brent, any thoughts on that?

 

Hon. Brent J. McIntosh:  Just to say I agree with what Brian said and this is one of the public policy challenges we face in terms of user protection. And it’s not inherently riskier or clunkier, to use Brian’s term, than our current system. But this is a question we need to work on to develop a system in which people can have confidence that their assets are there and that when they transfer them they go to the right place and we’re not going to have a sort of Mt. Gox situation.

 

Hon. Paul S. Atkins:  Thank you. Hester, any thought? I’ll move on if not.

 

Hon. Hester M. Peirce:   I would just say that I think that one of the benefits of this technology is you can have everything open source, so you know what the software is. And then another benefit is that because of the nature of a blockchain, you have a record of where everything is going. So that’s a benefit. Of course, you can always make mistakes about if you direct your money to the wrong address, you can have the same kind of problems that you could have in another situation. But I think there are inherent advantages to this technology.

 

Hon. Paul S. Atkins: And you can hear perhaps in the future, just like we have with credit cards, the calls with consumer protection folks who will want to have some sort of limits perhaps on liability for the transferor. And that, again, will have global implications. It’s one thing if it’s a domestic sort of issue and other if it’s not. So we’ll see.

 

One thing I did want to ask about, too — speaking of clunkiness — is we have a lot of people say, well, why do we need a central bank digital currency? We have basically a digital dollar. We have transfers, wire transfers, the Fed wire, which speaking of clunkiness and slowness and mistakes. It’s sort of like Brian’s discussion of the Post Office.

 

And then the Clearing House has spent billions of dollars at the Fed’s urging to come up with a real time payments program, but then they’ve run into a buzzsaw of objections now. And the Fed has announced that it will work on its own equivalence of that to be available in something like four years, if it will even occur then. So leaving aside the central bank digital currency, which maybe they’re working on concurrently. So Brian I see you smiling. I was wondering if you have any thoughts on this.

 

Brian P. Brooks:  Paul, I’m just shaking my head in disbelief. It’s hard for me to believe I’m old enough to make these kinds of comments, but I remember that there was a time -- like when I first started practicing law, we didn’t yet have email. We actually had only just gotten computers the year before I joined the firm. But we didn’t have email.

 

And when email first came along, a lot of the older partners in the firm said, “We already have fax machines. We already have instantaneous information transmission. What do we need email for? We have faxes.” People really believed that.

 

And by the way, one thing that many people forget is when we first got -- I think maybe I’m the oldest person on this panel, other than you. So maybe I’m the only one who remembers this. When email first became a thing, the American Bar Association came out with a guidance document for lawyers that said — and this was enforced for about two years starting in the early ‘90s — that lawyers couldn’t transmit confidential information by email because to do so would waive the privilege because that email would travel over other people’s servers. And so that was a privilege waiver.

 

Now, that sounds absurd today, but it actually was an ABA canon for a couple of years between, like, 1994 and 1996. You can check it out. So my basic view is when we say, well, we’ve already got real time payments because we’ve got wires, well, try sending a wire overseas and see how real time that is. It typically takes two to five days for a transfer across a swift network to actually clear to your counterparty in another country. So try doing that.

 

Or try being an immigrant and doing a remittance back home to Guatemala. What you’re discover is there’s no wire solution for you there. There you’re going to Western Union, and you’re paying an enormous fee, plus a foreign exchange conversion charge in order to accomplish that. It’s basically all saying we’ve got the fax machine.

 

And one other statement on your comment about the Clearing House and everything, the Clearing House development is terrific. It’s faster payments. It has limited geographic penetration. And it has one thing that is super anticompetitive compared to our foreign competitors, which is the only people who can use it are banks.

 

Hon. Paul S. Atkins:  There you go. That is an important distinction. Brent?

 

Hon. Brent J. McIntosh:  Yeah. If you need any more evidence that there’s a need for innovation in this space, it’s that a whole bunch of central banks right now are looking at the question of how to solve the cross-border payments problem in a big effort run by Jon Cunliffe, the Deputy Governor at the Bank of England, over the course of the coming year to plan out how to solve these cross-border problems because they are immense problems that haven’t been solved and create all the pain points and more that Brian just described.

 

Hon. Paul S. Atkins:  Hester?

 

Hon. Hester M. Peirce:  I don’t have anything to add in this one. They said it well.

 

Hon. Paul S. Atkins:  Okay. Perfect. All right. Well, thank you very much. Let’s move to another question. Carol Van? Do you have the mic?  It’s muted. Well, hearing nothing, then let’s move to Ron Hammond.

 

Ron Hammond:  All right. Awesome. Thank you very much for taking time. It’s great to see a lot of familiar faces that I worked with during my time with Representative Davidson. So this question is for both Commissioner Peirce as well as Acting Comptroller Brooks. You guys mentioned a lot of different state by state regulations and guidances.

 

NYDFS recently came out with a letter saying that firms need to start assessing their climate risk and develop approached to mitigate them, especially in terms of bitcoin mining. And there’s been a 2019 study that says bitcoin mining could result in a 2-degree Celsius increase in global temperatures down the road. Now, mind you, about 75 percent of bitcoin mining is powered by renewables. But with the incoming administration placing a large importance on climate change, are regulators looking at the climate change impacts of bitcoin and other digital assets that utilize proof of work concepts?

 

Brian P. Brooks:  Well, Paul, I’m probably the designated spear catcher on that one. So let’s see, Ron. The right way to answer is to say that we’re not that many years away from the last bitcoin being mined, at which point, as you know, the bitcoin blockchain is going to transition to a different way of validating transactions. So this may be a little bit of the horse has already left the barn. But it may not matter a year from now.

 

And as people on the conference here may or may not know, many -- really most of the crypto projects nowadays are not built on top of mining platforms. They’re either proof of stake tokens or they have some other means of validation. So I don’t want to say it’s not a big deal, but it’s a limited deal, limited in time in various ways. And again, I would come back to the fact that most of the -- not 90 percent, but more than 50 percent of the bitcoin mining activity occurs in China. So there’s not a ton we can do with it.

 

I will just say on the broader question of how do we think about climate risk as something in the financial system that needs to be dealt with or managed, at the OCC we make a distinction between financial risk created by climate change -- so for example, the fact that you might have a loan secured by collateral property that’s in a coastal area where rising sea levels will cause the first floor to be under water some of the time, as in some Miami apartment buildings, or you might live at a place that is subject to hurricanes of some kinds and you need to assess your collateral. That’s a place where we expect banks to have risk management. Those are direct financial risks to their books, etc.

 

Where I get off the bus a little bit is when people start talking about how banks have a job to affirmatively solve the climate crisis. I think that government works best and market works best where people do what they’re assigned to do. So we’re not the EPA. We don’t have any special knowledge about whether we’re going to migrate away from fossil fuels or whether fossil fuels will be part of our mix for a long time. I don’t have scientists on staff who can assess how risky this activity is versus another or can balance the pros and cons of climate change versus energy independence. So what we focus on over here is the banking system and doing that well.

 

The joke I have is some of you may have seen how the Centers for Disease Control issued a national foreclosure and eviction moratorium. That would be like if I put out some guidance on vaccines or something. I mean, they don’t know anything about evictions and foreclosures. And I don’t know anything about climate change other than I know what the financial risks are. So in that limited way, absolutely, we’re on that, along with our fellow regulators. But in the broader way of solving climate change, that’s why we have environmental regulators and the Congress, I would argue.

 

Hon. Paul S. Atkins:  Okay. Well, thank you. Anyone else? Okay. Well, thank you. I wanted to turn real quickly to the whole privacy anonymity aspect of these central bank digital currency or the lack of and then the threat, perhaps, of government using it for, let’s say, non-democratic friendly type of uses -- sort of a 1984 issue. You all kind of touched on this.

 

But as far as what sort of protections could be built into the system, especially if it’s done from the central bank -- the Chinese have sort of a two level aspect, which in that country is hardly a protection one could say. But is there anything that we could do on this side that might even then make, of course, our CBDC, if we have one, more attractive than others?

 

Hon. Brent J. McIntosh:  I guess, Paul, I’ll jump in on that, and ultimately, I defer to our friends at the Fed on how you would design a CBDC that doesn’t pose those sorts of problems. But I think that the good news is, because we live in a country with a commitment to those sorts of freedoms and with the rule of law, I’m confident that with the right design choices we or the Bank of England or other likeminded partners could come up with a scheme where there were protections around the data in question and it had uses only. And it was able to be used and accessed only in certain circumstances the way we do with other forms of sensitive data.

 

I don’t have the same confidence that even if those rules were in place in some other countries that they would be applied. So I think that this is one of the hard design choices and challenges we face. But I’m confident we could overcome it. I don’t know that we would have confidence that a lot of other places -- I mean, there are a lot of places I would say where we don’t have confidence that they would overcome it.

 

Hon. Paul S. Atkins:  All right.  Anyone else have a thought on that? Brian?

 

Brian P. Brooks:  Yeah. I guess I would chime in for a minute. I have said for a long time that we need to do some deep soul searching in this country about how to balance two really important and yet incompatible objectives. One is of course we have important national security objectives. We want to be safe in this country. We don’t want terrorists using our system against us, etc., etc.

 

But there is a core privacy value in this country, and I’m pretty hawkish about that. And I’m actually pretty worried when I look out there at the way our world is moving in this country about how much of a zone of privacy is left. You don’t want to hear -- I mean, you all have privately heard my various coronavirus rants, but I ask myself a lot of days are there any limits left on what the government can do?

 

The reason that we have cash -- or at least one reason people like to preserve cash is there are some non-illegal but embarrassing things that we want to go buy and we don’t want somebody to know about it. So we have cash. In crypto-land, people say a cashless society is a surveillance society.

 

So on the one hand, I don’t want people to be able to fund Al-Qaeda using a secret privacy token. On the other hand I don’t necessarily want the government to see everything I’m doing all the time. So what’s the right balance of that?

 

And the easiest way to think about it is, if you look at totalitarian states, it’s obvious, I think, that privacy and especially privacy shield tokens are a good thing. You don’t want Venezuelans to be rounded up and go to jail because they made a contribution to the Guaidó shadow government. You want them to be able to do that. That’s clearly freedom fighting. It’s murkier in the U.S. because somehow we tell ourselves that we have this heritage of open democracy. But, man, you’ve seen people out there in some of these antifa protests and things. I’m not so sure. I’m not so sure.

 

And sometimes using technology as a bulwark. It’s like why do we have the Second Amendment? It’s not because it’s legal to go shoot people, but the idea that there is an armed populous makes it less likely the government will come after you. And at some level there are bulwarks against government encroachment that we should at least take seriously. So I might be the wacko on the panel about that, but I do think we need to carefully balance those two goals.

 

Hon. Paul S. Atkins:  I think that’s a good point. Look at how the IRS has been misused by the Obama administration, Franklin Roosevelt, perhaps Richard Nixon and others, not to be bipartisan there. But yeah, I think that’s a very good point. Anyone else have a last point because we’re at time here? Chiming in? Okay. All right.

 

Well, you all have been -- we have a bunch of other questions. I’m sorry we couldn’t get to everyone’s question, but you all have been a great audience. It’s too bad that we can’t do this in person. And a wonderful panel so Mr. Comptroller, Madam Commissioner, Mr. Undersecretary, thank you very much for lending your time to The Federalist Society and to help explicate this very interesting area. So thank you all very much for your time and your energy and your thoughts and good luck and god bless everybody.

 

Hon. Hester M. Peirce:  Thank you.

 

Brian P. Brooks:  Thanks, everybody.

 

Hon. Brent J. McIntosh:  Thanks, everybody.

 

 

     

 

2:00 p.m. - 3:30 p.m.
Federalism & Separation of Powers: Emergency Powers and the Rule of Law

2020 National Lawyers Convention

Topics: Constitution • Federalism • Separation of Powers • Federalism & Separation of Powers
Zoom Webinar

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On November 13, 2020, The Federalist Society's Federalism & Separation of Powers Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The panel discussed "Emergency Powers and the Rule of Law."

The coronavirus pandemic spotlighted an issue that’s been increasingly relevant the last few years: the extra powers that government gets in emergencies. At the federal level, presidents have been declaring emergencies under the Watergate-era National Emergencies Act—which doesn’t itself grants powers but triggers over a thousand statutes—in a host of circumstances, sometimes controversial (like President Trump’s southern-border declaration in February 2019), others barely noticed (assorted economic sanctions under various presidents). Many of these seem to be permanent; we’re still living under declarations responding to the 1979 Iranian hostage-taking and 2006 Belarusian election fraud. At the state level, the police power to govern for the public health, safety, welfare, and morals has run into legitimacy problems, both as legislatures grumble that they’re not consulted for months on end and as citizens question seemingly arbitrary lines drawn around “essential” services that interfere with both enumerated and unenumerated constitutional rights. How do we reconcile the need for governments at all levels to move quickly with both federalism and the separation of powers?

Featuring:

  • Dr. John Eastman, Professor of Law, Dave E. Fowler Law School, Chapman University
  • Mr. Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute
  • Ms. Elizabeth B. Wydra, President, Constitutional Accountability Center
  • Prof. John C. Yoo, Emanuel S. Heller Professor of Law; Co-Faculty Director, Korea Law Center; Director, Public Law & Policy Program, University of California, Berkeley School of Law
  • Moderator: Hon. James C. Ho, United States Court of Appeals, Fifth Circuit

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

Event Transcript

Hon. James C. Ho:  Good afternoon, at least to most of you. It may be morning for some of you. It is my privilege to moderate the final panel of our Convention this year. It has been a most unusual Convention, befitting a most unusual year. And so appropriately enough, our final panel today will feature an all-star cast to examine the developments of the past nine months, and in particular, the emergency powers exercised by public officials in response to the pandemic, and the implications of those emergency actions for the rule of law.

 

      I'll begin by briefly introducing our panelists, who will be speaking in the following order. John Yoo is the Emanuel Heller Professor of Law at the University of California at Berkeley, a Visiting Scholar at the American Enterprise Institute, and a Visiting Fellow at the Hoover Institution. He has served in all three branches of government as general counsel of the U.S. Senate Judiciary Committee under Chairman Orrin Hatch, as an official at the U.S. Department of Justice, and as a law clerk for Supreme Court Justice Clarence Thomas and D.C. Circuit Judge Laurence Silberman.

 

      Ilya Shapiro is the Director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. He has served as editor of the Cato Supreme Court Review, special assistant and adviser to the Multi-National Force in Iraq, and in private practice at Patton Boggs and Cleary Gottlieb. He has testified before Congress and state legislatures across the country and filed more than 300 amicus briefs in the U.S. Supreme Court. He previously clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit.

 

      John Eastman is the Henry Salvatori Professor of Law and Community Service as well as former Dean at the Chapman University School of Law. He also leads the Center for Constitutional Jurisprudence, a public interest law firm affiliated with the Claremont Institute that he founded in 1999. Like John Yoo, John Eastman also served as a law clerk for Justice Thomas. And he also clerked for then Fourth Circuit Judge Michael Luttig and practiced law at Kirkland and Ellis. In 2010, he was a candidate for Attorney General of California. He did not win, however. I believe it was somebody by the name of Kamala Harris who won that year instead.

 

      Elizabeth Wydra is the President of the Constitutional Accountability Center, and she previously served as Chief Counsel of the Center. She has filed over 200 briefs before the Supreme Court and Appellate Courts across the country, and she has argued a wide range of appeals. She previously worked in the Supreme Court and Appellate Practice of Quinn Emanuel and was also a supervising attorney and teaching fellow at the Georgetown University Law Center Appellate Litigation Clinic. She served as a law clerk for Judge James R. Browning of the U.S. Court of Appeals for the Ninth Circuit.

 

      Thank you, everybody, for being here. So here's what we're going to do today. I'm going to ask each of our panelists to give some remarks, and then we'll have some time for questions in two formats. I'll invite questions from each of our panelists to ask one another, and I'll also invite questions from members of the audience that I will call upon.

 

As I do, I would ask you all to observe the following two rules when it comes to audience questions. First, please be sure that you are indeed asking a question because I will cut you off if your question turns out to be a speech. And I'll do that not to be rude but to be courteous to other members of the audience who will undoubtedly want time to ask their own questions. And second, if I call upon you, please be sure to unmute you before you speak.

 

And with that, John Yoo, will you start us off?

 

Prof. John C. Yoo:  Yes, I'd be happy to. And thanks a lot to The Federalist Society for inviting me. Thanks a lot for all the panelists for joining me. And thanks for all of you for tuning in. Especially -- I mean, what are you guys doing here? Why aren't you all out in Pennsylvania doing recounts and trying to get within six feet of the vote counters? That's where you ought to be. It's really great to be here.

 

I just realized we're the last panel. So usually, at the end of the Conference, if you're the last panel, you are punchy, you're a little drunk, and this would the time I would start making fun of my old intern, Jim Ho. And I'm going to just say one thing. Jim is taking this way more seriously than all of this because I can tell you Jim is wearing the very same suit he had on 20 years ago when he interviewed with me for his first job at the Office of Legal Counsel. Don't deny it, Jim. It is the same suit, which, I guess, shows that he's in really good shape, or he's just been in bad shape his entire life.

 

But it's great to be here with you. It's also -- I really miss being at The Federalist Society. I think this must be the first virtual one we've ever had. I miss -- I don't know if Zoom can recreate what it's like to see Gene nervously pacing around trying to make sure all the panels start on time. I don't know if Leonard has been able to figure out a way to use Zoom to conspire in the back of the ballroom while all the panels are going on or while Dean has to actually make sure the whole thing runs on time. I really miss it. I miss all the people crowded together, not going to any of the panels the entire conference, but instead milling around in the middle of that grand promenade all talking. I really miss it. I hope we're going to be back to it next year.

 

I'm going to take some of my remarks about national emergencies and the delegation of power from my new book, Defender in Chief: [Joe Biden's] Fight for Presidential Power? You notice that I have changed the book design. I encourage Ilya, who also has a book, to also change the design now that we're moving into a new administration.

 

So one point I'd like to make is that in this period of national emergency -- and we are in one of the greatest ones, I think, our country has ever faced, the COVID-19 pandemic. I think it's remarkable, actually, how this administration, despite all the attacks on it, has stuck, I think, pretty closely to the constitutional design. Notice that in this pandemic, President Trump has not actually resorted to any claims of any kind of constitutional emergency power in the Executive, à la Abraham Lincoln at the start of the Civil War where he claimed a right to deal with secession and the Civil War through his powers as Chief Executive, Commander in Chief, and the Take Care Clause. Or even like Thomas Jefferson during the Louisiana Purchase when he claimed he had some kind of extra constitutional prerogative power to deal with the great opportunity to buy Louisiana at the cheapest prices available in the United States’ real estate history.

 

Instead, what's happened is that the administration, I think, has stuck pretty closely to the federal design where states are the ones that are really in charge of handling public health and safety, and that the administration has triggered a variety of statutes where Congress delegated to the Executive the powers to deal with this pandemic. And that has kept the administration, I think, actually, to Trump's great political harm, within very straightforward grants of power that were originally given to Congress.

 

And we can have arguments about whether the statute that allows the President to declare national emergencies is too vague, or whether Trump has somehow gone beyond them when it comes to the border wall or the travel ban, but that statute has no definition of a national emergency in it, and it came when Congress was trying to consciously limit the President's abilities in the national emergency area. Nonetheless, Congress chose to include no definition of national emergency. And then the real action is where the hundreds of statutes that exist grant power to the President when those emergencies are triggered.

 

And so, just very briefly, look at what's happened during this pandemic. President Trump -- maybe politically, he wished he had the power to close down every business in the country and reopen every business in the country, but he didn't actually do it. He deferred to the governors. And it’s actually -- I think one of the interesting stories of 2020 is that President Trump's political fate, if it's tied to the economy and tied to success of the pandemic, was really in the hands of blue state governors like Gavin Newsom and Governor Andrew Cuomo. It was their orders to open or close the businesses in their states and how to deal with hospitalization that really, I think, was the determining factor in how our country dealt with COVID.

 

And instead, what happened was that the federal government played the traditional role it should under the enumerated powers vested to the Constitution, which it delegated to the President. The federal government was able to ban travel coming in and out of the country from certain countries. It could have gone farther. The President could have even banned interstate travel, but he did not. That was certainly a power granted, I think, under the Constitution.

 

And instead, most of the activity was in the spending power area where, I think, under conventional understandings of the Spending Clause, the federal government does have the power to spend money to provide resources and back up to the states to buy personal protective equipment, to spend enormous amounts of money to try to develop a vaccine, to try to build ventilators and to distribute them throughout the country.

 

But again, they didn't try -- the federal government -- Congress did not delegate to the President, and I don't think -- and the President did not try to claim a broader power under the Commerce Clause, which I think would have run into the limits set out in the Obamacare case, NFIB v. Sebelius, about trying to force people to either open or close their businesses or curtail their activities. That lies under the police power of the states. And I think my six minutes are up, so I'll turn it over to the other panelists where I think you're going to see much more discussion about whether state exercises of the police power are consistent with the Bill of Rights.

 

I'd just like to add I don't think those Bill of Rights claims really apply to what the Trump administration or what the federal government did. So thanks very much, everybody. And it's great to be with you virtually. I hope we're all back together in person a year from now. And I look forward to hearing from the other panelists and your questions from the audience.

 

Ilya Shapiro:  Well, thanks for that, John. And I echo your opening remarks that it's an honor to be closing down the first and hopefully last ever all virtual Federalist Society National Lawyers Convention. I'm not really punchy or drunk at the moment, so I apologize for -- if my remarks are in any way too sober, although I'll note that Defender in Chief is no longer authored by John Yoo. I got a letter from Justice Thomas thanking me for sending my new book, Defender in Chief. So there's an in-chambers opinion. I think that's binding unless it goes to the full Court and is reversed in some way. But I didn't send him my book, so I am now the author of two books that are out, Defender in Chief, but also Supreme Disorder --

 

Prof. John C. Yoo:  -- This is the best thing that ever happened to your book sales ever, Shapiro.

 

Ilya Shapiro:  -- [laughter] Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court, which is obviously a timely subject as well. And a perfect gift for not just Hanukkah and Christmas, but Thanksgiving. In COVID times, you might want to get presents to your smaller coterie of friends and family that come for the Thanksgiving dinner.

 

      But anyway, I'm here to talk about, indeed, emergency executive powers and emergency powers that are more about the states because, as John said, people have relearned about federalism during the pandemic. The federal government, even in a pandemic, is one of enumerated and therefore limited powers. Most of what's been going on that affects people most directly has been put in by their governors, their mayors, sometimes their legislatures, but John Eastman will talk about the kind of state separation of powers issues.

 

But this is all about state police powers that include the authority to make laws for public health and safety. Most lawmaking in the United States is done at the state level and relies on the police power authority. And indeed, this is a power that the federal government simply doesn't possess because our constitutional structure grants it only certain enumerated powers. The Tenth Amendment restates that arrangement. The powers not delegated to the United States, nor prohibited by it to the states, are reserved to the states or the people. State Constitutions, meanwhile, can be considered documents of limitation rather than documents granting power. They serve a different function than the U.S. Constitution.

 

And the COVID-19 pandemic is testing those limits. But states can still respond effectively and responsibly. Exercise of the state police power must still respect the individual rights guaranteed in the Constitution while also not intruding on regulatory areas where federal law is supreme. For example, a state cannot do away with search warrants or regulate interstate commerce in the name of health and safety. During the first month of the pandemic, shutdown orders and other broad restrictions had a wide berth, constitutionally speaking, and this shouldn't be a surprise. Courts will rarely find that state public health officials have overstepped their bounds.

 

Of course, measures that are reasonable in the rapid response to the start of an emergent health crisis with a lack of epidemiological data will often prove unreasonable once we have a better understanding of the challenges. Outside hotspots, blunderbuss shutdown orders overstayed their constitutional welcome.

 

And even pandemic-related regulations that are generally constitutional can tread on individual rights. The Supreme Court chose not to block California's order that churches may not hold services with more than 100 people but didn't decide the merits of the case. Under Employment Division v. Smith, a case from 1990 that's now being reconsidered by the Court in the Philadelphia foster program case, those merits turn on whether the shutdown orders are neutral and treat churches like any other entity.

 

Once New York began allowing large scale protests, for example, its restrictions of outdoor funerals likely became untenable on equal protection grounds. Then again, neither did the Court block, again without deciding the merits, a Nevada reopening order that limited houses of worship, regardless of size, to 50 congregants, while allowing casinos to operate at 50 percent capacity. Justice Alito touched upon this in his remarks last night.

 

And freedom of speech has also been front and center in the discussion over lockdowns. In April, anti-lockdown protests in Raleigh, North Carolina, resulted in an arrest for violating the state's stay-at-home order with the police remarking, "Protesting is a non-essential activity." Well, that sentiment was revised nationwide in June.

 

Indeed, rash decisions over which workers and businesses are or are not essential have made it difficult to protect other Bill of Rights guarantees. The Second Amendment has faced broad restrictions. Several states classified gun stores as non-essential and required them to shut down. Many states failed to classify defense attorneys as essential workers, raising Sixth Amendment right to counsel and other constitutional concerns as prisons became hotbeds for the virus.

 

But the radical uncertainty that prevailed in the early months has given way to better information, sober reflection, and revision. And so we need to ensure that constitutional guarantees are not sacrificed going forward. If grocery stores can be made safe with markings on the floor, capacity limits, and mask requirements, so can gun stores, or stores selling gardening tools, for that matter. But there still may be justifications to restrict other gathering places like theaters and stadiums. So emergency police power regulations need constant updating to protect people's rights.

 

In some areas of law, federalism limits states' abilities to regulate within the federal government's long shadow, but epidemic response has traditionally been left to the states' discretion. That's ultimately a good thing. States have a greater knowledge of local resources, mitigating and exacerbating factors, and priorities. More importantly, state and municipal governments, close to the ground and their constituents, have greater leeway correcting course on a bad or harmful policy.

 

Some states changed their tunes on gun store restrictions after public outcry and re-evaluated protest restrictions as new information came out. This greater knowledge and responsiveness should lead to better thought out and more narrowly tailored both closing and reopening orders. But states have their own limitations on the police power, which the pandemic is also testing.

 

I'll end with this. In the early days of the pandemic, governors rushed to issue executive orders mandating shutdowns and sorting people's livelihoods into essential or non-essential. They issued these responses in understandable haste. Governors reasonably prefer looking back and saying, "We overreacted," over the alternative.

 

But now that we're looking back, or even ahead to a redo or a third wave, we see that many governors did indeed overreact or simply pursued wrong strategies that had no effect one way or another on infection rates, even if their actions could be justified by the limited information at the time. As our gaze turns forward, state policymakers must remember that while they have broad police powers to respond to emergencies that threaten public health and safety, they're still limited by the U.S. Constitution and their state's constitutions and laws.

 

And with that, I'll turn it over to John Eastman.

 

Dr. John Eastman:  Thanks very much. I, too, share everybody's thanks for being part of this closing panel and looking forward to tipping a good glass of red wine with you all next time we get together.

 

      So, John, you talked about federal issues, and Ilya talked about various rights constraints on the exercise of emergency powers. I'm going to shift to structural constraints, primarily the nondelegation doctrine, which, as we saw in June of 2019 in the Supreme Court's decision in Gundy, is very much now alive again at the federal level. Maybe that's driven in part by the unconstrained definition of national emergency and the National Emergencies Act that President Trump relied on to trigger reallocation of funds for the border wall. Lots of people who have never been fans of the nondelegation doctrine began screaming about that violation of the nondelegation doctrine.

 

At that level, one of the things -- I'd be happy to see the nondelegation doctrine revived even in that case, but one thing that's got to be clear is a nondelegation doctrine has to apply everywhere. It can't just apply to this particular President or any President we don't like.

 

So anyway, the Gundy decision. It was a 5-3 decision, but the significant vote there, of course, Justice Alito's concurring in the judgment, laying out that he agreed with the dissent, but there was not a majority of the Court to take that step yet. What does that tell us? That if he had voted where his views were, we have a 4-4 split. The lower court decision gets affirmed by an equally divided vote, and that's all we get. We don't get that brilliant discussion about the important structural importance of a revived nondelegation doctrine that we get in that dissenting opinion by Justice -- oh, Justice Gorsuch. I may be -- I may all of a sudden be having a brain freeze.

 

Now, let's apply that to the COVID controversy. Almost every state has some anticipatory delegation of emergency powers to their executive officials, and that's as it should be. Something like a natural disaster, a pandemic, a military emergency, those kinds of things, you cannot wait to deliberate and have a legislative judgment on how to deal with them. One of the reasons we have strong Executives, both at the national level and at the state level, is so that the Executive can act with dispatch to respond to immediate needs that were unforeseen. And they're not completely unforeseen. The legislatures have delegated certain emergency powers to the Executive that are triggered.

 

The question is, once you get beyond the immediacy of the emergency, can we go on autopilot and just manage the entire trajectory of a pandemic much beyond the immediate need for weighing in without legislative deliberation? And I think that raises very serious -- separation of powers would be the language in some state constitutions, or nondelegation doctrine issues, same thing. And I think here, the Michigan cases, I think, are most important and point the way.

 

So in Midwest Institute of Health v. Whitmer — finally decided just last month, October 2 — it was a case brought in the Federal Court, but the Federal Court certified the question to the Michigan Supreme Court on whether the governor there had, under statutes, emergency powers, not just to issue the initial round of COVID orders, but to continue reissuing them.

 

And what the Michigan Supreme Court held there was that the Emergency Management Act — it was the Michigan Emergency Management Act of 1976 — had a limitation of 30 days on the exercise of those emergency powers. And unless the legislature recertified the emergency that would allow the exercise of those powers to continue, then the Executive had no continuing authority to keep the lawmaking on autopilot without the input of the legislature. And so any of the orders that came out after April 30, with the conclusion of that 30 days, were held to be invalid.

 

Now, there was an older statute on the books as well that looked like it was just an unfettered delegation of continual emergency powers, including the plenary police powers, with an indefinite time frame. That was the Emergency Powers of the Government Act of 1945. And there, the Michigan Supreme Court said that violates our separation of powers requirements of our State Constitution by delegating lawmaking power without any constraints and effectively giving the governor the plenary police power, the plenary legislative police power, for an indefinite period of time. And to that extent, it was unconstitutional.

 

So neither the immediate Emergency Management Act nor the broader Emergency Powers of the Governor Act were sufficient to allow the continued lawmaking — which is what these executive orders are — to exist past that initial period of an imminent emergency that required the governor to respond.

 

Now, you might say, "Well, don't we want governors and their staffs and the health officials that have all the expertise being the ones continuing to make these decisions?" Well, yes and no. The question is, do they -- under our separation of powers notion, where is the ultimate policy judgment body to be able to decide these things, to weigh the competing interests? It's not like all of the interests fall on side of this thing. And that judgment is an inherently legislative judgment.

 

Now, of course, the legislature is going to want to have the input from the experts, from the health agencies, and what have you. But ultimately, how much of the risk that is being addressed by those orders versus how much of a threat to the economy, how much the counter risks by people who are not able to get the normal medical care that they would otherwise get because COVID is crowded it out, those are the balancing that is inherent legislative function and policy judgment.

 

And when you get beyond the initial emergency imminence requirement, to allow the governor or allow unelected public health officials to continue to make those policy judgments on behalf of the whole society means we really no longer have government by a consent of the governed or representative government. And I think the insight of the Michigan cases points us in that direction.

 

We've seen another one here. I'm currently the visiting professor of conservative thought and policy at the University of Colorado in Boulder. And a case, Neville v. Polis, was brought directly in the Supreme Court of Colorado, as they're allowed to do, raising a very similar nondelegation challenge. Now, the Colorado Supreme Court declined to take up that case. And so it's been -- I think it's been refiled back at the lower courts where it will work its way back up.

 

But as we get further and further away from the immediate, "What in the heck is happening here? We don't have very much information," that lent itself quite credibly to exercise of emergency powers. As we now get more information and we get further and further away from that initial frenzy, it's time for the legislative policymaking balancing deliberation to occur. And I think our constitutional structures, both at the state level and at the federal level, not only provide for that but actually compel that result.

 

All right. And with that, I will pass it over to Elizabeth Wydra.

 

Elizabeth B. Wydra:  Thank you so much. I just want to echo the thanks that everyone else has said for being here today. I especially want to thank Judge Ho. I had the pleasure of working with him over a decade ago, I guess, on the constitutional guarantee of birthright citizenship. And his work there was indeed very influential. And I thank him for that as well as his current service.

 

      So turning to today's topic, I think it's important to lay out some basic facts, and the fact that we're virtual enhances them. We are indeed under a nationwide state of emergency, with all of the states declaring an emergency as well. So you see those maps that we see in the news stories that used to be some shade of red, yellow, orange, depending on the severity of the spread of COVID, are now kind of a glowing bright red across the country. Workers and small businesses are suffering. Families are struggling. And the question is, what is the right thing to do about it, and how do we do it within the law?

 

      So we've seen what President Trump has done, and now we are looking to what President-elect Biden will do. And I think it's helpful to look at what the President-elect has actually said is his plan, particularly with respect to wearing of masks. He has said that he will ask every American to wear a mask when they are around people outside their household. He will ask every governor to make that mandatory in their state. And he will ask local authorities to make it mandatory to buttress state orders around masks as well.

 

      President-elect Biden has also said that he intends to more effectively use the Defense Production Act to manufacture PPE and tests in order to have our economy and schools operate more safely, coordinate testing and community outreach. But I haven't heard too much push back on that. And I think it is also so clearly legal, and so clearly a good idea, that I won't spend much time on that.

 

      So President Biden, when he becomes President, will take the tack of making clear that the evidence says that mask-wearing can allow us to reduce the spread of the virus and hope to have a more fully functioning economy, and then ask for state and local authorities to implement a mask mandate in public settings. Now, maybe he would back all of that up — all of that asking and science-backed guidance to hopefully persuade people that this the right thing to do — maybe he would back that up with lawful federal characteristics, but he certainly has not said that is his plan to date. And while he, and indeed the states to an even greater degree, as John just mentioned, have substantial emergency powers in a public health crisis like this.

 

There is always the present limitation of what is politically feasible. Politicians, for better or for worse, make these decisions, not the scientists themselves. And politicians will always look to what is politically possible. Now, it might be that the scientists think that a New Zealand style approach would be the preferred path of public health experts, but it's also very likely that that simply isn't politically feasible in this country. And we haven't seen a suggestion from the political folks in the Biden camp that that's the way that they're going.

 

Now, to be sure, the President has broad emergency powers if he chooses to use them. As none other than John Yoo said in an L.A. Times opinion piece defending President Trump's power to declare an emergency and build his border wall, "The founders wisely didn't try to limit the government's power to deal with crises and emergencies because the circumstances that endanger the safety of nation's are infinite. As Alexander Hamilton warned in Federalist 23, 'No constitutional shackles can wisely be imposed on the power.'"

 

So that's the constitutional broad grant of emergency power, or, I guess, kind of silence on the emergency power. But as I think all the panelists have mentioned before me, the federal statutes that back up this broad constitutional understanding of emergency response are similarly permissive, though there are, of course, some limitations, particularly in the states.

 

So the 1976 National Emergencies Act, for example, does not define a national emergency or limit the President's right to declare one. The Supreme Court has never overturned a national emergency declaration. And while I do think that the courts would weigh in on methods of reacting to an emergency that are blatantly illegal, the broader decision to recognize a state of emergency is probably never going to be struck down by the courts, for better or for worse, depending on your view there.

 

Now, to be sure, emergency powers can be abused. And I agree with the general sentiment that almost as a necessity, crises tend to result in the expansion of government powers and generally concentrate powers in the hands of the Executive, which can usually move more swiftly in response to emergencies. And that can be problematic, particularly because we rely on the checks and balances of separation of powers. And also because these broad powers can result in limitations on our daily lives in order to get through the crises that can range from minor inconveniences to major shifts in behavior and lifestyle.

 

So it is absolutely appropriate, because of this potential for abuse, to keep a close eye on the use of emergency powers. Our leaders should know that we are watching. We are watching, and we will be ready to take action to hold people accountable in the courts and at the ballot box. And indeed, we will hold our leaders accountable. Accountability, adhering not just to abuse of constitutional power, but to basic failures of policy common sense as well, which I think is probably where we are more likely to see limitations placed on our leaders in this crisis because it is something that, unlike perhaps expanded use of authorization of force or long war powers emergencies, this is something that we see very keenly in our daily lives. So keeping a watchful eye on our elected leaders and educating the public on the law is beneficial.

 

But I want to be careful to say — and I'm really pleased that I did not see this from any of the panelists today — that scare-mongering is unhelpful and, I have to say, irresponsible. Being asked to wear a mask because it is deemed the safe thing to do to keep our communities safe and to allow us to return to some semblance of normality more quickly than not wearing them is not a sure step toward Bernie Sanders or AOC coming into your airports and shutting them down and making you eat broccoli or whatever anxiety-producing hypothetical some might come up with. Reality is anxiety-producing enough. Let's keep our eyes on what's real and what's likely. And let's hold people accountable based on the constitutional protections that we all hold dear and based on the facts.

 

And so finally, speaking of accountability, I've had the pleasure of speaking at The Federalist Society Annual Convention for years now. And I can only assume you keep inviting me because you actually hear what I want to say. So I want to end my comments with some hard truths that I tell in the spirit of fellowship.

 

It has been disappointing to me when a conservative group of lawyers with whom I frequently disagree on policy but who’ve professed commitment to a consistent philosophy of federalism and rule of law — something I appreciate — it's disappointing when folks are largely, not entirely, but largely silent about federalism concerns when President Trump sent officers into local communities who did not want them there to intimidate and detain protesters to crime, police violence, even though stopping racist police violence was at heart of the Fourteenth Amendment; was largely silent about the clear civil liberties concerns when the Trump administration used excessive force to clear peaceful protesters, including clergy members; was largely silent as, time and again, President Trump undermined basic rule of law protections and checks and balances that are necessary to the proper functioning of our constitutional democracy, not to mention the dangerous undermining of our sacred civic practice of going to the ballot box to exercise the foundational power of the people.

 

I think it was just last year's Convention when I was asked after a fantastic panel that we did on originalism why the general public, especially more liberal members of the general public, don't think that conservatives who care so much about the Constitution care about the constitutional ideal of equality. And I was really taken by that question in the audience section of the Q&A.

 

And I think there is no better answer today than that when there's support for presidential emergency powers for a so-called border emergency that is more about stoking racial resentment than an actual emergency but express deep concern over leadership on an honest-to-goodness national health crisis that has taken more than 230,000 American souls and disproportionately affected black and brown communities, then folks might not think your commitment to the constitutional value of equality is that strong, and indeed, just the opposite.

 

So I was taught constitutional history and political philosophy mostly by conservatives, and I hope to hear more echoes today of the conservative voices that taught me about fidelity to the rule of law regardless of which party is in power, fidelity to the Constitution's text, history, and values, and a pledge to foster our continued striving as we the people toward those highest ideals of equality and justice for all.

 

So with that, thank you so much for listening. And I look forward to our discussion.

 

Hon. James C. Ho:  Well, thank you, all of you, for those remarks. Before we open it up to audience questions, is there anybody on the panel who wants to respond to one another, anything that's been said, or perhaps even to ask one another a question?

 

Ilya Shapiro:  I have something, Jim -- Judge Ho. On Elizabeth's point, I doubt she's pointing the finger at Cato. We've been ecumenical in calling out abuses of various kinds, including where there might not be abuses and the charge is just made for -- to make political hay, and both sides do that.

 

But getting back to kind of more the substance of most of our comments, it struck me — and this goes towards John Eastman's comments about state checks on Executive emergency power — it struck me and disappointed me that so few legislatures were willing to push back on gubernatorial excesses, whether in terms of the scope of various measures or their duration. And this can only be for two reasons. One, that the legislature is controlled by the same party as the governor, and party loyalty is greater than institutional or branch loyalty. And two, it's easy to pass the buck and let the governor take all the heat for people that don't like what they're doing rather than take back that power and actually legislate responsibly.

 

But John, do you think what I just said is accurate? And if so, what can we do about it to incentivize or force legislatures to get involved in this process? Not in the immediate immediate, but come on, we're in month seven now, or eight.

 

Dr. John Eastman:  Right. No, I -- look, I agree with that. It's the same problem we have with Congress at the national level. We create all these agencies with unfettered delegations — clean the water, solve the air problem, protect endangered species — without any guidance on at what cost and what tradeoffs. And then the legislature gets to claim the victory, "We voted to clean your water," without having to take responsibility for any of the hard policy judgments that pursuing such a goal actually entails.

 

And here I think, both at the federal level and at the state level, there's been an abdication by the courts because the incentives don't line up for the legislatures to take this power back, for the reasons you've said. And what that means is it's got to be up to the courts to enforce the structural limitations on the Executive, the structural requirements of who actually does the policymaking. And until the courts do what the Michigan courts here just recently did, we're going to find the legislature not very incentivized to take back this authority.

 

I think it's one of the few places where Madison "ambition would counteract ambition" was wrong. He didn't figure out how they could pursue their ambitions without actually appearing to be exercising power. And so I think this is -- well, we have a three-part system of government for a reason. When the two other branches are colluding, the third part has to step in and ensure compliance.

 

And before I give up the microphone here, I do have to take issue. From the very beginning, three or four times, President-elect Biden -- if you had said presumptive President-elect Biden, I would buy that. But these things have not been certified, and there are lots of very valid election challenges that may well alter the outcome of this thing. So be careful about that.

 

The second thing is of course the President had authority to send in troops to Portland when federal courthouse was being threatened with being burned down and the local officials were not doing anything to protect it. He had as much authority there to send in troops as we've seen in a lot of other instances.

 

And as far as not complying with constitutional requirements, people keep saying that, but the fact of the matter is -- and I think Ilya and Cato -- look, we've all been on the lookout to see whether he was going to take the precedents that had been set for operating outside the constitutional lines by both Obama and Bush on the TARP and other things, and whether he would use those as precedent. And what's been stunning is how carefully his team, by and large, with very few exceptions, has stayed within those lines, probably more than anybody we've seen in a couple of decades. And so people make this charge, but it really isn't backed up by any evidence.

 

And now, if you want to say the exercise of the National Emergencies Act to build a wall was bad policy or that long-standing statute that every President since it was adopted in the 1970s has used repeatedly is an unconstitutional delegation of powers, that would be fine. But the notion that it's just this President that is ignoring the statutory authorities that have been given him and taking them beyond what was allowed, that's just not accurate at all. And I'm rather surprised that you would take what were essentially partisan talking points and put them out in such a legal discussion.

 

Elizabeth B. Wydra:  I'm sorry. We disagree on this, John. I think you've made your position clear on this and many other issues, including, as we talked about at the beginning, birthright citizenship, clear. And I strongly disagree with you, not from a partisan standpoint but as a constitutional lawyer. And I don't want to take over the discussion of that. But it's my opinion. I hold it strongly. I believe I have very good reasons for doing it. I'm sure you feel the same.

 

Dr. John Eastman:  I would just follow up on that and ask you what in particular do you think Trump did that violated his constitutional authority --

 

Prof. John C. Yoo:  -- Can I make a point here that I think will --

 

Dr. John Eastman:  --  because it's easy to say that he's done it, but without particulars, it's hard to assess.

 

Prof. John C. Yoo:  Let me make a point that I think maybe explains a difference between John and Elizabeth. And I tend to agree with John on his basic points, but I do see the -- and I think it has to do with presidential motivation. Take the border wall. The President declares an emergency at the border. He thinks there are too many illegal aliens crossing the border. Elizabeth thinks that's actually not true and an effort to stoke racial tensions. John thinks that it's really because there's a larger number of aliens crossing the border. The legal issue here — we can all have our own interpretations about this — the legal issue is, do we want to have courts review the motivation of presidents?

 

So until the Trump years, I think, similar declarations about national emergencies have never been questioned by the courts. And I think that was the right answer. But I think under the Trump years, courts and advocates have said we have the right now to examine why the President really did something. Now, the Court rejected that in Hawaii v. Trump with the border wall, but then it opened the door to it in the census case.

 

What I want to ask is whether people like Elizabeth or John are going to be comfortable in their positions under President Biden. Or do we really want the courts now to be sitting and trying to guess at whether the motives that Biden does something are really -- President-elect, I don't know what to call him. He's going to be President. I don't think that any of these lawsuits are going to succeed. I do agree with Elizabeth that the federalist system about having elections makes cheating on this on a wide scale people think -- I think is very, very difficult. But are both of you going to hold your positions under President Biden? I will. I mean, I don't think that courts should be guessing at the motives that President Biden -- but I think then the courts were mistaken to try to do that to President Trump.

 

We can all as citizens have our reasons for thinking that President Biden or Trump declared a national emergency for the wrong reasons or the right reasons. And we can make that argument in politics if Congress wants to try to overrule a deceleration of emergency. But again, Congress could have done that back when they passed the National Emergencies Act. They clearly didn't because they didn't really want to tie the President's hands because they couldn't predict the future, and they didn't want to be accountable for a case where they did something wrong. And so they're happy to let the President have this relatively unrestricted power of emergency.

 

Ilya Shapiro:  To put a finer point on that, the problem is with the non-enforcement of the nondelegation doctrine. When the border wall emergency was declared — I think it was February of last year, it's like a year and a half ago — I had a blog post that was titled, "Even if Legal Under Existing Law, Violates the Separation of Powers," or unconstitutional -- something like that. What does it mean, even if it's legal, it's unconstitutional? Well, my point is, even if the President can -- there's a case that's going to be taken up by the Supreme Court now about moving money around and whether it meets the statutory requirements for the President to reappropriate in various ways. Well, look, lawyers, it's a close call. The statue's unclear.

 

But even if that satisfies the legal niceties, I think it violates -- that's Congress delegating the legislative duty to the President. And that kind of issue happens all the time. Other examples that you mentioned, Elizabeth, might come into that regard as well. Sending in the troops to protect federal buildings, as John mentioned -- was there too much of an authority given there by Congress because the President isn't just doing that just willy-nilly. There's statutory authority for sending in federal officials.

 

Or for the Insurrection Act, The New York Times op-ed that got Tom Cotton in trouble and the editor of the opinion page fired. The Insurrection Act is pretty clear, and you might think that it's unwise or politically imprudent or implicates broader foundational principles, what have you, but the law is the law. So I point the finger back at Congress in not, as we were talking about state legislatures, in not reasserting its authority, and at the Court, as I detail in detail in my book Supreme Disorder, for how we got into judicial confirmation messes, the Court in letting Congress get away with making those kind of punts.

 

Elizabeth B. Wydra:  Yeah, I would just say that I think the reason I've spoken at The Federalist Society so many years is because I come here in good faith as a constitutional lawyer. And I assure you, if the President elected by the people enacts what I consider to be policies that are deeply inconsistent, whether by the letter of the law or the spirit of constitutional values with our promise of racial equality and justice, I will be first in line to say that they are wrong. And in the same way that what I consider to be destructive attacks on free and fair democracy and voter suppression, I will be first in line. And I look forward to being there with all of you to vindicate the rights to meaningful freedom for all people, regardless of race, gender, ethnicity.

 

Prof. John C. Yoo:  And religion, because I thought that was one thing -- I wasn't on Zoom, but I read the speech. I thought Justice Alito made a pretty compelling case that in this COVID pandemic, the one group whose rights have really been trespassed upon by the government, who've really gotten, I think, the short stick from the courts has been religious groups. And I've been surprised not to see more civil libertarians out there trying to defend their rights of free exercise in all this. I think the question in California -- why are protests allowed under the Free Speech Clause, but people are not allowed to gather to have religious ceremonies? And I think that's been going on all over the country.

 

Hon. James C. Ho:  Well, we've got quite a lineup of hands up on Zoom. So let me see if I can give some folks in the audience some opportunities. Just to be clear, we'll only be able to take questions from audience members who are actually using Zoom. Apologies for that. That's just our technological limit. If you're participating by video, please use your “Raise Hand” button, which should be in the lower middle portion of your screen. I see a lot of you have already figured that out. That's great. If you're participating on Zoom by phone, then you dial *9. So I see we've got a question from Greg Dolan. Please make sure to unmute your line.

 

Greg Dolan:  Thank you, Judge Ho. And thank you to the panelists. As always, it's a very stimulating discussion. And I wanted to pick up where Elizabeth left off in her initial remarks. And then perhaps Ilya just echoed in -- or no, not Ilya, Professor Yoo echoed it in his last comment. And it perhaps it's sort of a two-part question.

 

One is, whatever the legality of either President Trump or President-elect Biden, or putative President-elect Biden, or any governor, using their emergency powers, there's got to be some sort of buy-in from the populace. And the first part of the question is how do we deal with it, that buy-in, when the guidance has been somewhat inconsistent, both in terms of our learning the science — back in March, masks were terrible, and now masks are mandatory — but also in terms of just politics of it? What I'm gathering is it's bad unless you're doing it for the right social reasons.

 

But also, in terms of enforcement, somebody will have to enforce those mask mandates. And to the extent especially the left is concerned about police over-enforcing laws, especially in minority communities, somebody will have to stop people for not wearing masks. Somebody will have to ticket them. Somebody will have to arrest them if they resist, etc., etc. And so the question becomes, is the game worth the candle when police who have to come into close contact who, for example, resist?

 

Hon. James C. Ho:  Ilya, do you want to take that on?

 

Greg Dolan:  Ultimately, it's all a question of how do we do it unless the populace actually buys into it? Thank you.

 

Hon. James C. Ho:  Thank you.

 

Ilya Shapiro:  Yeah, that's the danger of having mandates. And for that matter, if you just have a mandate without a penalty or a fine or a tax, to harken to the Obamacare case that was argued at the Supreme Court this week, is it really a mandate? Is anyone harmed? Does anyone have even standing to challenge it? So yeah, you have to, at the end of the day, have popular legitimacy of the law, or it all breaks down.

 

What is the punishment for not wearing a mask? Is it just the police saying, "Wear your mask," just like they say, "Move along,"? If you're doing something -- you're quote, unquote, not violating any law but up to no good, what is the policy going to be? Obviously, especially in the wake of this year's civil rights protests and the killings of George Floyd and others, those are very sensitive subjects, particularly in those minority communities which may not have as much space to congregate or get together behind gates and behind closed doors and are more likely to socialize in the street and things like that in the public spaces.

 

So those are very difficult questions, regardless of -- I agree, I wear a mask when I am in all the CDC advised areas and all of that, but it's a very sensitive thing even beyond the federalism issues of, yes, the President cannot impose a mandate. But even if governors do, there has to be buy-in, just like if people started locking down, shutting down, sheltering in place even before any lockdown orders came around. So this question of not even what the law is, but popular legitimacy is especially important in this kind of long-standing crisis. It's not really an emergency. When you have something going on in eight months, that's not an emergency. It just means it's a crisis, it's a challenge, it's a special situation.

 

Dr. John Eastman:  Let me pick up on that as well because I think it demonstrates what's wrong with our current jurisprudence on rational basis review. The highly deferential review given to state governments, by and large, doesn't allow us to really get at the nub of the problem. And I think the Nevada church case is particularly good here, limiting the church to 50 people no matter how big their space was but limiting casinos to 50 percent capacity, that if you had a casino that could seat 4,000 people, they can get 2,000. If you had an identical facility for the church, could seat 4,000 people, they get 50. There's no rational basis for furthering it, and yet the courts upheld the order, and the Supreme Court punted on it.

 

Or in California, government officials in the Executive Branch saying that churches are not essential services because you can do church online. Well, that just doesn't -- that's like making decisions about church doctrine that no government has any authority to make. These are the kind of things that really cause people to want to push back at some of the arbitrary exercises of power that is being deployed here, and why it's so important that we restore some separation of powers so the most politically accountable branch has to deal with these kind of things in a way that they can be called to account if they get it wrong.  

 

Elizabeth B. Wydra:  Judge Ho, I just wanted to step in with a point that the questioner made, which I think is a really good one, is about the fact that a lot of the problems that we have outside of COVID don't go away during COVID, and in fact, get even worse. He mentioned the possibility of discriminatory policing. And that is certainly something that has been a concern and will continue to be a concern. I think the specter of systemic racism hangs over COVID in a very real way, both from who is affected by it because of pre-existing health conditions, who is on the front lines working, as well as potentially the possibility for discriminatory policing. So a lot of these problems that are problems pre-COVID remain problems even now and are especially urgent. 

 

Hon. James C. Ho:  I believe we have a question from Michael Rossman. Please be sure to unmute your line. Michael, are you there?

 

      All right. Let's try for a question from Jonathan Cone. Please be sure to unmute your line.

 

Jonathan Cone:  Hi, guys. So I think it's great that Elizabeth is on the panel and helped get this debate going. I do have one question for her. I'm wondering, assuming Biden takes power, if you were advising him in the following scenario, what would you do? Let's assume that there's a red state, and local law enforcement is doing nothing, that state officials are doing nothing in the midst of the following: you have a right-wing group that is tearing down federal courthouses as well as abortion clinics, attacking doctors and patients. What do you recommend to Joe Biden if state and local officials are doing nothing in that scenario?

 

Elizabeth B. Wydra:  Yeah, so thank you for your question. I think, obviously, a lot depends on the facts on the ground. And I think it's easy to both-sides things when you don't have the facts. And certainly, there are instances where sending in federal authorities is entirely appropriate. We saw that needing to be done in order to ensure that Supreme Court orders regarding integrating schools were going to be enforced. And so it's not simply the fact; I think it's the why, and the how, and also the who.

 

Our Constitution exists not just as sort of a game of gotcha but in order to effect certain things like equality and justice and liberty and meaningful freedom. And so looking to see whether constitutional authority not just is there but whether it's being used for an appropriate way, I think that that should be our north star, and that would always be my north star. And I think that respecting the results of the people's democratic voice is also part of that.

 

And I guess that's what I would say. I don't know that President-elect Biden has anything to take from me on that. He has a great team of advisors, but that's probably all I can say without it actually being a real situation. But the existence of constitutional authority is one thing. There are also questions about whether it should be deployed in the way that it is. And that's in many ways where our values, particularly values that I find in our constitutional ideals, come into play.

 

Hon. James C. Ho:  So I'm going to exercise a prerogative to ask my own question. I think there's been some allusion to the possibility of a federal mask mandate. I think Elizabeth, you may have alluded to that. John Yoo, you mentioned NFIB v. Sebelius playing a role here, and obviously, that case said that the Commerce Clause doesn't allow you to compel commerce. Presumably, that would -- that case might have some plausibility, some applicability to a mask mandate, just as it would a commerce mandate.

 

      Elizabeth, do you want to talk about whether if NFIB would apply, would not apply, is there emergency exception? And then to see if others want to respond to Elizabeth's take on the potential constitutional questions surrounding a federal, as opposed to a state, mask mandate.

 

Elizabeth B. Wydra:  I guess I think of those as entirely separate legal questions. Maybe I'm missing the point of what you're saying. But I think that because of the emergency nature of what I assume the mandate would be. I assume it's different. I don't think it's like the individual mandate in NFIB. I assume it wouldn't be just a permanent thing. It would be like we need to do this now.

 

Hon. James C. Ho:  Right, the same issue today as opposed to in February before the -- before COVID-19.

 

Elizabeth B. Wydra:  Yeah. So to me, they seem like entirely different questions. I think the individual mandate is justified based on -- if I were Chief Justice, I would have said both the tax power and the Commerce Clause, but either way, sort of normal and regular constitutional authority, whereas the mask mandate, I think, would have to be justified on some sort of emergency basis. But again, I think -- I bring it up to say that I don't really see it happening as a matter of legal coercion from the Biden administration. It seems to me they would be relying on state and local authorities to do that.

 

      Of course, then you could raise challenges in each state or locality to challenge whether they have their authority under their own laws to do that. But I have not heard any talk, and I really would be surprised if there was an actual legal mandate from the President, from the White House on that. It might be more providing carrots and sticks to state and local governments. But again, I have not heard any of that at all. There has just been a suggestion that they would ask and urge and provide the best scientifically-backed evidence for why states and localities should put into place mask mandates.

 

Prof. John C. Yoo:  Under current law, then you're saying that, which I agree with, is that under Sebelius, the federal government doesn't have the power to require people to wear masks all the time. They could make people wear masks on the interstate highways, and the airplanes, and certain channels and instrumentalities.

 

But I was going to make Jim's question harder, which is, could the federal government make everyone get the COVID-19 vaccine when it becomes available in, say, in January? And it has this 94 percent effectiveness rate, very low whatever -- according to the news reports, very low, very, very low side effects. There's a Supreme Court case called Jacobson which seems to suggest that states can force people to get the vaccine, the smallpox vaccine. So I was reading -- Justice Alito had a great line when he said the Jacobson case was a smallpox outbreak in Cambridge. And then I think he said, "What happens in Cambridge should stay in Cambridge." But unfortunately, that's not true.

 

I'd be willing to have Berkeley live under that law too, but that's not going to happen in Berkeley. I think the rest of the country is now going to be living under what it's like to live in Berkeley, which means we'll have great food and coffee, and all kinds of crazy things happen. But really, the question is like --

 

Ilya Shapiro:  -- It'll cost 18 bucks for that cup of coffee, though.

 

Prof. John C. Yoo:  [Laughter] That's right. But could you force the -- could the government force everyone to take the -- to get the COVID-19 vaccine?

 

Ilya Shapiro:  I don't know if you're asking that tongue in cheek, but clearly, the federal government doesn't have a police power. And so Jacobson is about states' police power. And that is a direct precedent, taking a vaccine. There are different facts, somewhat, of COVID-19 versus smallpox in terms of fatalities or whatever, but still. The federal government I don't see -- even if you call it to use the NFIB John Roberts decision, and say, "Take the vaccine or pay a tax," I'm not sure that would work because the goal is not to raise revenue. It's to coerce behavior. And you'd have to have that tax at a high enough level for people to actually achieve that herd immunity from the vaccination.

 

Prof. John C. Yoo:  What if they -- so first they could say, “It's all free. Everybody who wants one can have one.” And then they -- what if they say -- they use the Title VII Commerce Clause to the farthest reach and just say, "Anyone who's involved with a workplace has to have it."

 

Ilya Shapiro:  So make it an OSHA regulation, effectively?

 

Prof. John C. Yoo:  Yeah, make it -- but, yeah, use the -- anybody who travels and anything linked to interstate commerce has to have it. So you think of the farthest -- the only people you're leaving out are people who want to stay in their house and aren't going to come outside. 

 

Hon. James C. Ho:  Yeah, if I recall during the debates about the Affordable Care Act, there were hypotheticals about fines. No generic mandates, just a mandate for anybody who buys something at CVS. But I think that's sort of where you're headed.

 

Dr. John Eastman:  Let me weigh in. And I'm about as stingy a guy on the limits of the Commerce Clause as there is, but I actually think this is different than NFIB. Just because we use the word mandate in both doesn't make it the same. And on this, I'll agree with Elizabeth. It's not NFIB because you're not using the mandate in order to create commerce. There is commerce going on. And Section 361 of the Public Health Service clearly gives the federal government the power to take measures to prevent the spread of a communicable disease coming in from foreign countries. I think that's a valid exercise of the foreign commerce power.

 

      To prevent the spread of a disease across state lines, I think, is a valid exercise of the interstate commerce power. Where we get into difficulty is then to use that locally because of its aggregate effect that might have on interstate commerce. And currently, they could even do that under Gonzales v. Raich, picking up and reaffirming the old Wickard v. Filburn decision. I think those two cases are wrong.

 

      But that's got nothing to do with imposing on you to wear a mask to create commerce. Buy the mask because we need you to create commerce. That's not an issue. We're talking about commerce going on between the states that's going to be disrupted or interfered with because of the communicable disease. So I actually think there is a pretty significant difference in then what NFIB blocked in the Commerce Clause portion of that decision.

 

Ilya Shapiro:  I agree with that, but I think that just means -- that still begs to question of whether there's a police power to mandate, whether under that statutory -- if it's that statutory Public Health Act power, then that raises, again, the constitutionality of forcing someone to do that.

 

      But the interstate commerce part is an important thing. So for example, the federal government might shut down airports — I think John Yoo mentioned this — or put National Guard on the interstate so states that don't have a vaccination or don't require a vaccination or don't require masks for that reason, you can't exit those states, things like that to coerce the states or simply to maintain the free channels of interstate commerce.

 

Hon. James C. Ho:  So in other words, we're going to test the other aspect of the NFIB ruling and talk about what's too coercive?

 

Prof. John C. Yoo:  Yeah, I was going to say, why not have -- the federal could just say, "If you don't force everybody to get the vaccine, we're going to cut your Medicare and Medicaid budget, just not as much. We'll do it $1 less than we did in Sebelius, or $10." [Laughter] But you could easily see the government doing that. Would that be unconstitutional?

 

Ilya Shapiro:  If it's imposing new conditions on the Medicaid or Medicare program, then yes. But if it was new legislation with new types of funding, specially targeted COVID funding, but to be eligible for it, you have to have one of these mandates, I think it could do that.

 

Dr. John Eastman:  Yeah, I agree with that.

 

Hon. James C. Ho:  I think we have more audience questions. We have one in particular from Sylvia Ross. Please unmute your line.

 

Sylvia Ross:  Yes, thank you, everyone. I appreciate all your information. I want to stay on this mask mandate thing because I'm a real person with a real face and real medical issues. And in Virginia, there are exceptions to the mask mandate. And I've always said political medicine is not the practice of medicine.

 

My concern is to what extent is -- does anybody ever think that the federal government is getting too much, and the states, into the individual treatment of people by forcing them to wear masks when it is a disputed fact in medical practice as to whether or not it even makes a difference? And we can't get that information out there when you have groups like Twitter and Facebook censoring any other true debate between doctors. So one, is it -- my first question.

 

My second one would be how do we protect doctors and their ability to practice medicine and all these other mechanisms going on where treatments aren't available? Because a vaccine isn't mandatory, I believe, if there are treatments for the existing condition, that if there are therapeutics, then you don't mandate a vaccine. Thank you.

 

Hon. James C. Ho:  Anyone want to jump in on that one?

 

Ilya Shapiro:  Well, I think this goes possibly to the standard of review that courts would apply if you're challenging a mandate. And if a governor or a mayor is imposing a mandate based on kind of scientific evidence that's sort of within -- I don't know whether you want to characterize it as within the 20 to 80-yard lines. It's not something that's way out there. The governor or mayor isn't being an outlier in terms of what others are doing, or in terms of just  -- courts will defer on public health questions, and I think rightly so, to a large part.

 

But if it gets to the point where it kind of fails a constitutional smell test such that you're roping off aisles 3 and 5 of your supermarket or something like that, or saying you can buy these kinds of plants but not these, or kind of -- some of these things that have failed, I think, in Michigan and certain other places. They're certain types of mandates, state police power mandates that fail the constitutional smell test. But if it's seen as being kind of a mainstream position, then a court is not going to second-guess that kind of exercise of the police power.

 

Hon. James C. Ho:  Let's go from mask mandate to an actual economic shutdown. If I recall, during the recent campaign, there was some talk that there might be the need, at least in some circles, to justify a federal national economic shutdown. What do you all see as the constitutional arguments that would need to be overcome in that context?

 

Dr. John Eastman:  Well, I think this goes back to the scope of the National Emergencies Act. As John Yoo rightly pointed out at the very beginning, Congress chose deliberately not to define what qualified as a national emergency. There are a lot of statutes that get triggered by that.

 

      If one of the statutes would allow a shutdown of the economy or a stay-at-home order, national stay-at-home order -- I've not looked at all 138 statutes, but anything that's triggered by that National Emergencies Act would be -- and I think the distinction he made is perfectly apt. It would be legal, and it would force us to confront the question on whether the delegation of that amount of legislative judgment power through the National Emergencies Act was constitutional or a violation of what looks to be on the threshold of a newly revived nondelegation doctrine.

 

Hon. James C. Ho:  So that assumes then that, if I understand your response, it's within the federal power to do, and the only question is which branches need to be checked with and which branches have approved it. Anybody here want to question whether it's even within the federal power, or is that just assumed?

 

Ilya Shapiro:  A national economic lockdown? That's definitely not within the federal power.

 

Hon. James C. Ho:  Well, that's why I wanted to ask the question. If not, why not?

 

Ilya Shapiro:  Because there's no general police power to stop -- block all economic activity. This is why the states took the lead with the lockdowns and shelter-in-place orders and things like that. Now, there are limits to state orders. This relates back to the last question if a governor or mayor wanted to mandate the wearing of masks in your own home, that probably goes too far, so it probably would only go to public places that can relate to public spread. But yeah, there's no -- I don't see how you would engineer a law, let alone an executive order, to say all economic activity must cease. I don’t know when that power comes from.

 

Hon. James C. Ho:  That would be Wickard on steroids, in your view.

 

Dr. John Eastman:  Yeah. But let me push back. And by the way, I agree with Ilya 100 percent on what the original Constitution says. But crafting such an order around existing jurisprudence over the scope of the Commerce Clause -- I can stop the business with foreign nations. I can stop business among the states. And I can stop business that in the aggregate have a substantial effect on interstate commerce. And if in the aggregate, I can demonstrate that businesses staying open in the middle of a pandemic, causing people to get sick and undermining economic activity as a result -- Gonzales v. Raich, I think, authorizes it. And it just demonstrates how pernicious that decision is and its precursor, Wickard v. Filburn.

 

Prof. John C. Yoo:  I agree with John and Ilya in a way. I think the original understanding was that the Commerce Clause would not reach so broadly. But under Gonzales v. Raich, if you -- federal government can ban the personal gift of a bag of marijuana for medical reasons. The case is actually four blocks -- took place four blocks from my office. But it was a target-rich environment in Berkeley to bring such a case.

 

      If that really is the doctrine that the court believes in, then why can't it say we're going to close down businesses that have a much more direct impact on interstate commerce than the sale of every individual bag of marijuana, or gift of it? But I don't think that case is true to the original understanding of the Commerce Clause.

 

Ilya Shapiro:  No. I'm going to push back on that. Here's why -- with Raich, as I understand it, the reason the federal government could regulate even wholly intrastate -- whether you consider growth and consumption commerce or not, but allow that prohibition under Necessary and Proper Clause as Scalia did, it's because there's an overall national regulatory or, in this case, prohibitory scheme regarding marijuana. I'm reasoning off the top of my head here with this putative full economic shutdown, or what have you, and maybe there'd be another division of essential versus non-essential businesses, which I think has proven to be completely arbitrary.

 

But anyway, assuming some sort of broad-based economic lockdown, I don't know what that would be. Pursuant to what national regulatory system are you locking these things down? Are you creating a new system in order to justify the use of the powers that are needed to enforce that system? Because that's not Raich; that's something else.

 

Elizabeth B. Wydra:  Just to bring it back to the facts on the ground, I think that it's, first of all, highly unlikely that there would be this sort of -- I don't even know what. There was a lot of talk in political circles about shutting down the economy. I'm not even sure what that means. I think that -- does that mean trying to incentivize workers to be able to make a living, which is totally understandable that people need to make a living, to incentivize workers to stay at home by providing a relief package so they don't have to leave their homes to go out to make a living? That, I think, is fully within the federal government's authority. It's something that's been contemplated.

 

But I think these more direct -- I guess you want to call them shutdown or whatever orders that have come from states and localities about which types of businesses can open at certain times, I think that will continue to stay in state and local power. Whether it can be done there, I think, would depend a lot on the particular state and locality regulations.

 

But I think also, this is one reason why I -- while I think it's important for all of us constitutional lawyers to keep a close eye on the potential for abuse of emergency powers, because this emergency, as opposed to maybe some other declared emergencies, this one touches so deeply our daily lives and the daily lives of almost everybody across this country.

 

So I think that the political limitations that the drafters of the Constitution thought would cabin the exercise of governmental power in an important way, I think that those really will work here because if a lot of these state and local orders, much less federal orders, seem arbitrary, yes, the courts may strike them down, but I think the people will hold their elected leaders accountable perhaps even faster than the courts can act. Not to denigrate the efficiency of the justice system, but that definitely gives me hope in the proper workings of our constitutional democracy.

 

Hon. James C. Ho:  But you -- just to be clear --

 

Ilya Shapiro:  -- Okay, so who had on their BINGO card Ilya and Elizabeth agreeing on originalism and federalism versus John Eastman and John Yoo? If you did, you win a special prize. Dean Reuter will be in touch with you later.

 

Hon. James C. Ho:  I do want to be clear. Elizabeth, I assume you would acknowledge during the campaign, I believe, one of the candidates did say that a federal shutdown was a possibility.

 

Elizabeth B. Wydra:  I just think that means something other than the absolute cessation of every single type of economic activity. I've never heard anyone say that that's what they mean by that. I think it means more like what we've seen in a lot of -- like what we saw in, where I live, Washington D.C., for example.

 

Prof. John C. Yoo:  The Constitution --

 

Elizabeth B. Wydra:  -- I never understood that to be complete cessation of any economic activity whatsoever.

 

Prof. John C. Yoo:  Just to say the constitutional question, though, would be the same if the federal government said, yeah, let's adopt the California system or the CDC guidelines, and just make every -- so some businesses are open, but a lot -- most businesses are closed. Or make it even these are just -- what if they just said we're closing all restaurants and bars in the country except for takeout service? Same constitutional issue. That's what the scientists are recommending we do this winter.

 

Hon. James C. Ho:  Right. Exactly.

 

Dr. John Eastman:  And let me, just so you don't think Ilya and I are as far as apart as he just portrayed it to be, I agree with you that Gonzales v. Raich involved a federal interstate commerce ban on marijuana, and that the inability to distinguish homegrown marijuana from things that had moved interstate gave us the ground. But it also reiterated Wickard v. Filburn, which is broader. And it says any time -- and even Scalia went for it. We don't even have to have economic activity. Any activity that has a substantial effect in the aggregate on interstate commerce is within the federal regulatory arena.

 

Let's limit that just to any economic activity that has a substantial effect in the aggregate on interstate commerce. That's the holding in Wickard and that is reaffirmed in Gonzales v. Raich. And if you take that as the holding, rather than the particular at issue in the case, then I think it's not a very big stretch to connect open businesses with greater harm to interstate commerce because of the spread of a pandemic. And that's why, again, I think, I go back to we're 100 percent in agreement on the original view of this, Gonzales v. Raich is wrong, but I think under that precedent there would be certainly arguably some greater authority than the Constitution originally conveyed.

 

Hon. James C. Ho:  All right. I think we have time for one more question from Scott Koepke. I hope I pronounced that correctly. Please unmute your line.

 

Scott Koepke:  Thank you, Judge Ho. First of all, an observation that Professor Yoo has made his most cogent observation since 9/11 or 9/12 and opined President Bush of whether Judge Ho's suit is the same one, and that's gone unanswered. So that's my first question, whether we can get clarity on that.

 

Hon. James C. Ho:  No, this is a new suit.

 

Prof. John C. Yoo:  You better invoke your Fifth Amendment right, right about now.

 

Hon. James C. Ho:  It's a new suit. I object.

 

Scott Koepke:  And second of all, on a more serious note, we’ve had a great discussion about the powers qua federal, but we have had little discussion and I'm most interested in the powers qua states, between the states and, for instance, the powers affecting the Commerce Clause and equal protection on commerce between the states. So for instance, does the states — I'd like to hear the panel — do the states have the power to pull over cars based merely upon their license plate? Or as I experienced this summer when wanting to go from New Hampshire to Maine to get a lobster that there was a huge sign in neon lights that said, "Any visitors must quarantine for 14 days." The equal protection clause seemed to be triggered, whereas if you're a Maine resident, you didn't have to quarantine, just by being in Maine. But if you were visiting, you had to quarantine. And then the airport situation at Newark Airport where the State of New Jersey had their tables set up for registration.

 

      The question is, are the powers -- take the thing in Maine, because that affected my lobster dinner, whether the states have the ability to restrict, prohibit, well, impose the condition that if you come into your state from anywhere, you have to go into somebody's place for 14 days, and then does it matter whether that's different between just a private citizen doing the recreational activity versus a truck with chickens in it?

 

      And I appreciate the lively panel that you've had. The last seems to go best. Thank you.

 

Prof. John C. Yoo:  Can I invoke the text of the Constitution and then turn my mute thing -- I'll go mute and never speak again, which is the way I wish the Supreme Court would act. So there's actually, I think, a constitutional provision that talks about this. It's in Article I, Section 10. And it says -- get out your Constitutions. I have the secret Supreme Court edition with all the extra pages in it. So it says, "No state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws."

 

So I always thought that that clause recognizes the state's ability to have quarantine laws, inspection. In fact, it even goes so far as to say you could even, under that state power, impose taxes and duties, which are generally prohibited on interstate commerce. So you might remember this clause was significant in Marbury -- I'm sorry, McCulloch, because that phrase, "absolutely necessary" was the language that Marshall said distinguished this for the broader reading of the Necessary and Proper Clause, which didn't have the word absolute in front of it as it does in that clause.

 

But it seems to me if the Constitution only prohibits states from putting financial taxes and duties on imports, and I would assume travel, then it has to be recognized in their much broader power amongst the states to control the travel of goods and services and people in and out. This is assuming that we don't have this Dormant Commerce Clause doctrine, just reading from the text of the Constitution.

 

Dr. John Eastman:  Let me take that up because there's another provision in the Constitution that I think would prohibit a selective application of that police power or that quarantine power, and that's Article IV Privileges and Immunities Clause. So when the Rhode Island Governor initially issued an order banning New Yorkers from coming into Rhode Island from Manhattan, which had been a hot spot, but not Rhode Islanders from returning to Rhode Island from Manhattan, I think that was a blatant violation of the Privileges and Immunities Clause. Their police power authority would allow us to block anybody coming in from a hot spot, but not selectively block only people that -- from states that we don't like, checking their license plates and not let others. And so I think the Article IV Privileges and Immunities Clause would have to kick in here.

 

Ilya Shapiro:  Yeah. And first of all, I'd like to note for purposes of Judge Ho's judicial notice that John Yoo is now stopped from speaking again. I'm not sure that's limited to this panel, actually, so he's really hamstrung himself in his professional career.  

 

Prof. John C. Yoo:  Actually, I'm outside the territorial jurisdiction of the Fifth Circuit, thankfully. I'm already breaking my promise, and there's nothing you can do about it.

 

Ilya Shapiro:  Well, The Federalist Society has affiliate members in all the circuits, so you might be out of luck there.

 

      But anyway, I think my comment about this is that your claims in Maine will largely be in vain. And that's unless the Maine government treats incoming Mainers returning from New Hampshire, or wherever else, differently than you who are an out-of-stater wanting to visit Maine for your lobster lunch because people are people. And obviously, the biology and the DNA of Mainers is no different than out-of-staters. And so as long as anyone coming from out of state, regardless of where your residence is, has to quarantine, then that would be upheld, again, under — to bring it back to my opening remarks — the state police powers to regulate for public health and safety.

 

Hon. James C. Ho:  All right. Well, we are out of time. And in closing, on behalf of The Federalist Society, first, I want to thank our panelists here today for a wonderful, robust, fascinating discussion. And since this is the last panel, and we're closing the Convention with this panel, I want to thank everybody at The Federalist Society, including its staff and its volunteer core, for another wonderful Convention.

 

      I want to reaffirm what many of our panelists have said today and throughout the convention, which is that I too miss the opportunity to be with all of you in person at the Mayflower, enjoying each other's company while debating the issues of our time. This is my 23rd Federalist Society National Lawyers Convention. Allyson and I never miss it. Saying it's the 23rd makes me feel old but also very happy because it's always a fantastic experience. And with that, Dean, we will turn things back to you.

 

Dean Reuter:  Well, thank you, Judge Ho. And thank you to all the panelists. I very much appreciate your participation. And with that, so concludes the first, and as Ilya said, hopefully, the last all-virtual National Lawyers Convention. Somebody said it earlier in a panel this week that when Justice Kagan hosted a gathering of Federalist Society students at Harvard Law School, she said she loved The Federalist Society, but then qualified that statement by adding, "But you are not my people." I wanted to take a moment to sincerely thank all of The Federalist Society members and especially the volunteer leaders and experts I have the honor to work with day in and day out. You are decidedly my people.

 

But I also want to thank the many, many speakers at our Convention who are not Federalist Society members and who would not characterize themselves as conservatives or libertarians. They've offered up their expertise and their time to make our panel discussions more interesting, I think, and to help us check an important box on our mission statement; that is, to provide a diversity of views and make things more provocative. So thank you to all those non-Federalist Society members who participate and show up. I very much appreciate it. And I've heard from some that they are being pressured by third parties to not participate. So in light of that, I especially appreciate their participation.

 

If you in the audience have missed any part of the Convention this year, know that every moment has been archived and is available on our website, so please check into that. Finally, my personal thanks to the staff, my colleagues here at The Federalist Society. They've worked, as always, tirelessly but a little bit differently this year on the Convention. And I think it's come off without a hitch, despite my many anxieties about a hundred and one problems that could have erupted.

 

As we close here at The Federalist Society headquarters, we're already beginning planning for next year's Convention. Get your pencils out, mark your calendars: next year, November 11 through the 13, 2021. I look forward so much to seeing all of you in person here in D.C. next November, if not sooner. But for now, we are adjourned. Thank you very much, everyone. 

 

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