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2022 National Lawyers Convention

The Current State of the Legal Profession

November 10 — 12, 2022

The 2022 National Lawyers Convention will take place Thursday, November 10 through Saturday, November 12 at the Mayflower Hotel in Washington, DC. Over three days, the Convention will feature four Showcase Sessions discussing the Convention Theme of "The Current State of the Legal Profession", eighteen breakout sessions sponsored by the Practice Groups, the Fourteenth Annual Rosenkranz Debate, the Twenty-First Annual Barbara K. Olson Memorial Lecture, and the 2022 Antonin Scalia Memorial Dinner. 

LodgingFeesCLE


2022 Antonin Scalia Memorial Dinner

A Celebration of the Federalist Society's 40th Anniversary!

 Union Station
50 Massachusetts Avenue NE
Washington, DC 20002
Thursday, November 10, 2022
Reception - 6:00 p.m.
Dinner - 7:00 p.m.
(ticketed event) BLACK TIE OPTIONAL
SOLD OUT (
wait list available)


Twenty-First Annual Barbara K. Olson Memorial Lecture

Featuring

 

Prof. Richard A. Epstein
Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law

The Mayflower Hotel
1127 Connecticut Avenue NW
Friday, November 11, 2022
5:00 p.m.
(ticketed event)
SOLD OUT (wait list available)


Fourteenth Annual Rosenkranz Debate

Featuring


Prof. Akhil Reed Amar
Sterling Professor of Law
Yale Law School 
Prof. John Yoo
Emanuel S. Heller Professor of Law
Berkeley Law, University of California


The Mayflower Hotel
1127 Connecticut Avenue NW
Saturday, November 12, 2022
12:30 p.m.
SOLD OUT


Annual Hon. Robert H. Bork Memorial Lecture

Featuring


Hon. A. Raymond Randolph
U.S. Court of Appeals, District of Columbia Circuit

The Mayflower Hotel
1127 Connecticut Avenue NW
Saturday, November 12, 2022
4:30 p.m.
SOLD OUT


Showcase Sessions Discussing the Convention Theme:

"The Current State of the Legal Profession"

  • The Legal Profession and Constitutional Culture
  • The Mission of Law Schools
  • Lawyers, the Adversarial System, and Social Justice
  • The Regulatory Power of Bar Associations

Practice Group Breakout Sessions

  • Render Law Unto Congress and Execution Unto the Executive: The Supreme Court Rebalances Constitutional Power
  • Is the National Association of Attorneys General in Need of Reform?
  • Navigating Business Challenges in Red and Blue States
  • Woke, Smoke, or Smart: Regulators Push for ESG
  • Regulatory Elephants in Statutory Mouse Holes?
  • Competition and Innovation Policy for Tomorrow 
  • The Major Questions Doctrine: West Virginia v. EPA
  • What Can Be Done About Violent Crime?
  • Religious Liberty and Education: Kennedy, Carson, and Parental Rights
  • Central Bank Digital Currencies: A New Tool for Government Control?
  • The Largest Ever Federal Infusion of Broadband Funding: Necessary Investment or Waste of Taxpayer Money?
  • Students for Fair Admissions Inc. v. President & Fellows of Harvard College: Affirmative Action Goes to Court
  • The Russian Invasion of Ukraine and International Law, Order, and Security
  • Is Executive Soft Power a Threat to Free Speech?
  • Dobbs, Roe, Casey, and the Rule of Law
  • After West Virginia v. EPA: Can the Biden Administration’s “Whole of Government” Approaches Survive Judicial Review?
  • The Judge’s Role in Choosing a Successor
  • Aftermath of Bruen: What's Next at the State Level?

 

 

Up to 16.5 hours of Continuing Legal Education (CLE) credits available. 


Lodging

The Mayflower Hotel has sold out of rooms at our special rate. The Mayflower may have rooms available at a higher rate, please contact them directly to make your reservations. Otherwise, please make reservations at other nearby hotels.

Reserve early! Washington, DC hotels are becoming booked very quickly for the fall convention season.

The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

Reservations Toll Free: 877-212-5752
Reservations Local Phone: 202-347-3000

Reservation Link: https://book.passkey.com/e/50351931

Cut off Date: October 17, unless rooms sell out sooner.

Inquire about the special rate of $284 per night offered to Federalist Society Convention registrants. Specify "Federalist Society" when contacting the Mayflower.


 

Please note that we are subject to local and federal government restrictions, which could include capacity limitations; therefore, register early to secure your spot.

Convention Fees

The 2022 National Lawyers Convention is now sold out. You may add yourself to the wait list for the Antonin Scalia Memorial Dinner and the Barbara K. Olson Memorial Lecture by selecting the Wait List ticket options on the registration page. If a spot opens up, you will be contacted and confirmed before any payment is processed.

Individual Day** 
Non-MemberSOLD OUT 
Active MemberSOLD OUT 
Student Non-MemberSOLD OUT 
Student Active Member                                                SOLD OUT 


**Individual day purchase includes that day’s sessions, CLE, and lunch.  It does not include social events. CLE materials will be available electronically. A hardcopy of materials can be provided upon request after the Convention, make sure to request CLE Materials in hardcopy form on the CLE sign-in form during the Convention.

Social Events 
Antonin Scalia Memorial Dinner
Non-Member
WAIT LIST 
Antonin Scalia Memorial Dinner
Active Member
   WAIT LIST 
Barbara K. Olson Memorial Lecture & Reception
Non-Member
    WAIT LIST 
Barbara K. Olson Memorial Lecture & Reception         
Active Member
    WAIT LIST 

 

CANCELLATION FEE OF $100 AFTER MONDAY, OCTOBER 31.
NO REFUNDS WILL BE GIVEN AFTER MONDAY, NOVEMBER 7.


Antonin Scalia Memorial Dinner Information

Seating for the Antonin Memorial Dinner has already begun, therefore, we are unable to accept any more seating requests.

As venues/caterers need time to order/prepare special meals, we are no longer able to take dietary restriction requests. At each event you attend, please speak to a server and they will work to accommodate your request on the spot, but we will not be able to order a special meal for you ahead of time.


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9:00 a.m. - 9:45 a.m.
Opening Address by Hon. William H. Pryor Jr.

2022 National Lawyers Convention

Topics: Constitution • Culture • Education Policy • Professional Responsibility & Legal Education
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006

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Description

The 2022 National Lawyers Convention took place Thursday, November 10 through Saturday, November 12 at the Mayflower Hotel in Washington, DC. Over three days, the Convention featured four Showcase Sessions discussing the Convention Theme of "The Current State of the Legal Profession." Hon. Judge William H. Pryor Jr. gave the opening address.

Featuring:

  • Hon. William H. Pryor Jr., U.S. Court of Appeals, Eleventh Circuit

Speakers

Event Transcript

Dean Reuter:  Good morning. Good morning and welcome. I'm Dean Reuter, Senior Vice President and General Counsel of The Federalist Society. It's my pleasure to welcome you here today, welcome you if you're in the room or if you're watching on the livestream or C-SPAN or even if you’re watching later the video. But welcome in and thank you for being here. Welcome, as we mark the 40th anniversary of The Federalist Society. 

And I say the word mark purposefully, advisedly, rather than celebrate. I think some celebration is appropriate. Applause is appropriate, thank you for that, but I'm personally less interested in pats on the back and accolades. I'm personally more interested in looking to the future. And, indeed, my prediction as a veteran of The Federalist Society is that The Federalist Society is poised to accomplish more in the next 10 years than it has in the past 40 years. But that depends on you. Not only is this organization yours, you are the organization, in my humble analysis. You are The Federalist Society. 

The Federalist Society is nothing more than its volunteer leadership and membership, well, maybe the donors too. [Laughter]. The donors are important. And we're a non-profit organization, and we're very good at being a non-profit organization. So the donors are important. 

But the theme for this year's convention is particularly topical, I think, "The Current State of the Legal Profession." Of course, our profession is -- well, should be, an example to the rest of the country. Our adversarial system, the idea that matters are debatable, that debate leads to truth. Our profession should be held out -- heralded as an example. I'm not claiming that attorneys are held in lofty esteem bar our fellow Americans. In fact, I really like the snarky line that it's the unprincipled and disreputable 98 percent of the lawyers that are ruining it for the rest of us.

But to get to the business of the Convention, we have a first-class series of events over the next three days. And that, of course, the phrase first class reminds me of a brief story that I've told once before, but somebody asked me to reiterate this story on first class. So this story goes back to my early days in my early career and concerns two back to back business trips I was taking. Even though it was the beginning of my career, there were airlines, there were airplanes, air travel was involved. I was working for the federal government, and because of travel complications, my return flight on my first trip landed at Dallas Airport after midnight. 

I went home for a few hours of sleep. I had the first flight out the next morning across the country to California. So in the morning, I went back to the airport. Still dark outside, standing in line at the check-in counter, looking ahead. I was flying on a budget-rate, cut-rate, no-frills sort of start-up airline—doesn't exist anymore, I'm sure—trying to save taxpayer dollars. And as I got to the front of the line, I could see the very eager young man, looked like a teenager to me even though I was young, behind the counter dressed in these bright company colors like a fast-food restaurant employee. And as I approached, he looked at me and he said—and I'm not kidding—he said, is this your first time flying? 

I was young, but I was dressed like a businessman and had a carryon bag. And because I had landed earlier that very morning at Dallas Airport, I was able to respond, this isn't my first time flying today. But that went straight over his head. He didn't know what that meant. But I assume he meant to ask me is this my first time flying on that airline. but anyhow, I was booked in steerage, way in the back in the plane, probably what, at that point in time, was a smoking section maybe even, if you folks can remember that. 

And I was thinking about upgrading to first class, even though I was making a paltry amount of money. I'd have to do it at my own expense. So I said to this young man, do you have any first-class seats available? I was hopeful. I had my fingers crossed, and the young -- to his credit, he looked me straight in the eye and he said sir, all our seats are first class. [Laughter]. I said of course they are, and I just trudged off to my flight. 

But at this convention, it really will be first class. I promise you that. So a couple of very quick housekeeping things and then we'll get to our opening address. Please use the QR code. It's been circulated. If you want CLE credit, you need to check in every day with a QR code to get that CLE credit. If you don't sign in, you won't get credit when you leave. You need to check out, sign out with the QR code. Otherwise, by this time next week, you'll be claiming with your bar 170 hours of credit, and they will deny you. 

I want to take one moment to thank the Jack Miller Center for sponsoring something new with the convention this year, a rare documents exhibit, and The Remnant Trust for bringing it here for your viewing. It's in the South Carolina Room upstairs on the second floor for the duration of the convention, but don't wait too long to go see it. There, you can see and, in some instances even hold, original copies of Blackstone Commentaries, the 1787 Pamphlet of the U.S. Constitution, a first edition of The Federalist Papers, the first official publication of the U.S. Bill of Rights, the 1776 edition of Thomas Paine's, "Common Sense," and much, much more. So that's the South Carolina Room upstairs. Trust me, you're going to love it. 

If you drop your business card there, you can win this. This is a leaf of The Federalist Papers. This is Federalist 46, an original first edition with the front and back of the page, very handsome. We've never done a drawing at The Federalist Society. It's not really our kind of thing, but we've also never had a leaf of The Federalist Papers, first edition so [laughter] I'm looking forward to that. 

Now, turning back to the business of the convention, for our opening address, we've recruited a long-time Federalist Society leader, someone who can speak to the 40 years of the organization from beginning to this moment as it has thrived. He asked me to be brief in my introduction, so I will and I'm helped by the fact that you already know him. Chief Judge William Bill Pryor sits on the Eleventh Circuit, for now, nearing 20 years. Importantly, he started and then ran the Tulane Law School Chapter of The Federalist Society while he was there, the first Tulane has a chapter. Please. 

He was then a clerk for Judge John Minor Wisdom on the Fifth Circuit. He served first as deputy and then as the Alabama Attorney General for years. You might not know that he served on the U.S. Sentencing Commission for years. He's, of course, been in private practice, and he's taught at various law schools. I would say if it touches the law, he's pretty much been there. And if it concerns The Federalist Society, he's pretty much done that. So please join me in welcoming Chief Judge Pryor. 

Hon. William H. Pryor Jr.:  Good morning. 

Audience:  Good morning. 

Hon. William H. Pryor Jr.:  Dean, thank you for that kind introduction. It is a pleasure to be here with you and with this great society. As always, I'm looking forward to the addresses, debates, and discussions for this annual convention. This year, we celebrate an important anniversary, as Dean mentioned. 40 years ago, Steven Calabresi, who was a law student at Yale University, planned with his friends Lee Liberman and David McIntosh, who were law students at the University of Chicago, a three-day symposium in New Haven on an academic topic, "Federalism: Legal and Political Ramifications."

Among the speakers for that symposium were Robert Bork, Antonin Scalia, and Ted Olson. President Reagan appointed Bork and Scalia to serve as judges on the United States Court of Appeals for the District of Columbia Circuit that same year. Ted Olson already served in the office of Legal Counsel in the Department of Justice. About 200 people attended the symposium, and so began The Federalist Society for law and public policy studies. 

What started as an organization for law students grew quickly. For my part, I arrived as a first-year student at Tulane Law School in the fall of 1984, two years after The Society's first symposium. At the orientation for first-year students, representatives of all the student organizations spoke and encouraged us to become involved in extracurricular activities. Now, most of the student groups like the Law Review or the Student Bar Association had no overt ideological agenda, but one student group clearly did. 

The president of the new chapter of the National Lawyers Guild explained its history as a liberal counterweight to what he called the conservative American Bar Association. [Laughter]. That presentation made me think that perhaps Tulane needed a new student organization dedicated to traditional Anglo-American ideas about the rule of law. Of course, there was no internet to search yet. None of us students could yet afford personal computers, nor did we have cell phones. But William F. Buckley Jr. was publishing National Review, which had covered the formation of The Federalist Society. 

I searched my several back issues and found an advertisement for The Society with a phone number for an office in Washington D.C. I called the number, which in those days was a big deal for a poor law student on a tight budget because the call was long distance. The Society's first and then only employee, Eugene Meyer, answered the call. With his guidance, I worked soon afterward with another student to plan our first event at Tulane. And similar efforts happened all over the country.

Today, The Federalist Society sponsors thousands of programs with tens of thousands of participants and attendees. It has chapters at more than 200 American law schools with more than 10,000 student members and annually hosts a national symposium for hundreds of students, law professors, judges, public officials, and policy experts. It has chapters for lawyers in about 100 cities with more than 65,000 members. And it has a faculty division that sponsors programs for current and aspiring law professors.

For decades, it has held this National Lawyers Convention in our nation's capital. We have a lot to celebrate. What is our mission? Named for the Founders who favored the ratification of our Constitution and sporting a logo with the bust of the Father of the Constitution, James Madison, The Society is founded on the principles that the State exists to preserve freedom, that the separation of powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what is should be. And through its programs, publications, videos, and podcasts, it seeks to promote an awareness of these principles and to further their application. 

Now, from the start, The Federalist Society has promoted rigorous and open debate as the best way to ensure that the founding principles of our Constitution receive a fair hearing, and the results speak for themselves. Once again, thousands of lawyers, judges, academics, public officials, and students have gathered for this convention to hear public speeches and debates about the rule of law covered by a free press. 

In many ways, it's as if we're holding the Yale symposium again for a bigger crowd, at a fancier venue, with better food. On the surface, at least, not much else has changed. But on this happy occasion, I must ask is there more to this story? Are we ready to consider the tough questions? Do we care about debate as we say we do? If so, what do the critics say? Is there more to The Federalist Society than meets the eye? What do we really do? 

After 40 years, I decided it was time to look harder and investigate this secretive and mysterious network that critics charge has captured the federal judiciary, including the Supreme Court of the United States. So I researched the topic, "an odyssey itself," and what I found exceeded even my wildest expectations. I quickly discovered that I should not waste my time attending the thousands of public events that the hundreds of student and lawyers chapters across the country nor should I bother with the many volumes of the Harvard Journal of Law and Public Policy, the back issues of Engage or The Federalist Society Review, the YouTube videos and podcasts, or the pages of information on The Society website. 

The critics explain that the public operation provides only camouflage. As the writers at Slate Dahlia Lithwick and Rick Hasen explain, The Federalist Society has "styled itself a debating society long after it ceased to be anything of the sort." And as intellectual luminary Elie Mystal [laughter] has said, "Usually FedSoc is able to operate in relative anonymity, quietly working to destroy the equal protection rights of women and minorities." So to get to the truth, I had to go to the shadows where the real operation of The Society happens.

Oh, wait a minute. Oh, there we go. [Laughter]. My odyssey began by consulting the work of a long-time critic, a leader of the world's greatest deliberative body, the United States Senate, toiling away there, doing deep, thoughtful, and insightful research, has been a former federal prosecutor, my former colleague as a state attorney general, an elite lawyer and seasoned investigator. I speak, of course, of Senator Sheldon Whitehouse of Rhode Island. 

We decided to meet at a private beach club [laughter] or as he calls it, a long tradition on the coast of Rhode Island, where he insisted we would find no FedSoc operatives in the shadows. Truth be told, what Senator Whitehouse has discovered is more startling than anything I could've ever imagined. According to Senator Whitehouse, for years, "Dark money operatives working from the shadows have installed Supreme Court justices, hand-picked—hand-picked by the minions of far-right donors."

Little did I know that millions of American voters, the past presidents of the United States, and United States senators only provided camouflage for the real operation. And at the center of that stealth operation has been a reclusive leader of this society, the co-chair of the board of directors, Leonard Leo. As Senator Whitehouse puts it, "Leonard Leo is the little spider that you find at the center of the dark money web." [Laughter]. His spider web extends to state courts, city councils, and even local schools to subvert democracy with dark money.

Now, Senator Whitehouse has also explained that all of you in attendance for this convention have one thing in common. You "all know Leonard, and he knows all of you." As Commentator Trip Brennan of bluetent.us puts it, if dark money conservative groups "represent the death star of the conservative legal movement, Leonard Leo is Darth Vader and the Emperor rolled into one." [Laughter]. The Senate Democratic Policy and Communications Committee has even provided an illustration of the spider web to identify all the power players in this society. This illustration helps you understand how the power players do the real work in the shadows. Let's take a look. 

I start with what the critics call the ideological brain trust, the academics. Although many doubt the influence of contemporary legal scholarship on American law, I say to the brain trust don't worry, your place is secure. As Senator Whitehouse explains, "If you are out to deconstruct American law and replace it with what the big donors want, you need some intellectual weaponry. You don't just need justices who will do what you ask. You need legal theories. You need to give the justices you put on the Court the intellectual artillery, the demolition theories that will help them destroy the precedents and deconstruct our legal system." You need the brain trust to "systematically cheerlead for cultivated fringe ideas."

And for those young or aspiring law professors worried about a topic for your next Law Review article, I say be not afraid. Senator Whitehouse explains, "The legal theories are easy to come up with." [Laughter]. "You reverse engineer. You start with what big donor interests want, then work backwards." A-ha! So there you have it. You need legal theories, intellectual artillery to deconstruct our legal system, but these intellectual theories are easy to come up with through reverse engineering. Everybody got that? 

Let's next turn to the law clerks and the students. Now, if you're new to The Federalist Society or find its mission statement obscure, worry not. One of the great journalists of our time, at a venerable institution for investigative journalism, I speak, of course, of Joe Patrice at Above the Law, has distilled the work of The Society into three steps. Three steps. First, lay the pseudo academic table for the MAGA movement. You heard that right. The pseudo academic table for the MAGA movement, whatever that means.

Second, "recruit students to indulge their troll-ish impulses while placing them on greased rails to the federal bench—that sounds painful [laughter]—regardless of actual qualifications." And third, now most of all, this, most important of all, this is key. "Serve Chick-fil-A." [Laugher]. I suspect many of the law students here today are here for one thing: the food. As vox.com reports, students and faculty "always attend The Federalist Society events because they have the best food and the best alcohol." So, students and law clerks, have a great weekend and enjoy the food. 

For the students in attendance dreaming of becoming judges, in the past, I would've advised you to study hard, get good grades, become an editor of the Law Review, get a clerkship to start your career, practice at a law firm, and perform public service. But Kathryn Rubino at Above the Law tells us that thanks to this society, "ideological purity and pursuit of a far-right agenda is the single most important bona fide for conservative nominees and no less in authority than Mark Joseph Stern." And really, is there less in authority? [Laughter]. As explained, Federalist Society judges tend to hire Federalist Society clerks and the conservative legal movements radicalization machine produces an endless line of young lawyers even more extreme than their predecessors. Over the past half century, each generation of conservative attorneys, particularly those with judicial ambition, has become more radical than the last. 

Now, to the finest product of the radicalization machine: my people, the judges. Now, judges, if you're wearing a hearing aid, you might want to turn it up because Senator Whitehouse says that all the money talks, dark money whispers. [Laughter]. Dahlia Lithwick and Rick Hasen at Slate helpfully explain that the "ostensible neutrality of The Federalist Society provides cover so that sitting judges and Supreme Court justices can speak at Federalist Society events and use the network to recruit judicial clerks who can come into the pipeline to help further conservative ideas without running afoul of rules barring judges from engaging in partisan political activities."

They say it's also a showcase to vet and prep future judges. So if I understand them right, The Federalist Society is like a combined lecture circuit and career placement service for, say, a law school but ostensible neutrality? I think they might have us confused with Yale. [Laughter]. I'll ask Judge Ho. 

What about the educational program? Ms. Rubino at Above the Law explains that recent decisions by the Supreme Court on abortion, the Establishment Clause, the Second Amendment, and the administrative state have created a "hellscape that can be laid directly on the doorstop of FedSoc." So if you're a judge, this convention offers you a unique educational opportunity: to get ahead of the curve and to start work on the sequel, Hellscape 2. [Laughter]. 

Of course, not all critics of The Society are on the left. Consider, for example, Harvard Law Professor Adrian Vermeule who recently published an op-ed in the Washington Post entitled, "There is No Conservative Legal Movement." Hmm? There is no conservative legal movement. Hmm. What a coincidence to run into all of you here this morning. [Laughter]. For the last few years, Professor Vermeule has been composing a requiem for what he calls originalism inc. and touting a "better originalism" that he calls common good constitutionalism, what I call living common good-ism. You might've heard. I'm a skeptic.

But after reading Professor Vermeule's op-ed and watching the recent term of the Supreme Court, Gene Meyer probably feels a bit like President Truman holding the newspaper with the headline, "Dewey Defeats Truman." [Laughter]. If you're a practitioner, especially at the Supreme Court, you might not recognize 1 First Street the next time you visit because Rakim Brooks of Democracy Docket warns that FedSoc has sought to make the federal courts unrecognizable and in just one Supreme Court term, seems to have accomplished that feat. Perhaps, we should hold the convention there next year. But no. The rooms are too small, and the food is better here. Besides, we could never leave the Mayflower Hotel, too many special memories at this grand old hotel. 

For those of you who are attending the convention for the first time, the critics also have special insights about this event. Jay Willis of ballsandstrikes.org helpfully calls this annual convention "a three-day festival of conservative legal movement luminaries explaining that the correct schools of jurisprudential thought are those that yield the conservative legal movement's preferred policy outcomes." He describes The Society as "one of the most powerful reactionary forces in the legal universe," which he grudgingly admits "makes the participation of many non-reactionaries in its fancy events equal parts baffling and alarming."

A more objective source, Professor Steven Teles, describes The Society as a network to give conservatives a chance to meet one another and check one another out. Those are his words. [Laughter]. Now, I suspect many of you have been looking forward to checking each other out. Perhaps, now is a good time to announce the launch of the new FedSoc dating app. Swipe right. [Laughter]. My law clerks assembled up here are excited about its release this week. I hear that next year, FedSoc will launch another dating app for the national student symposium. They're going to call it Legal Tender. 

Tonight, of course, The Society will hold its annual Antonin Scalia memorial dinner or what vox.com describes as like a ball for the who's who in the conservative legal movement. There we go. I guess we're like Baptists though because we don't dance. [Laughter]. We just dress up and, of course, eat great food and drink. Lisa Ezell tells me that about 2,000 people, a record, have tickets for the dinner. In fact, we're sold out. So for those of you who made the cut, congratulations. Tonight, take a selfie. Post it on social media. Put it on the firm bio. It's official. You're now listed in who's who in the conservative legal movement. For those of you still on the waiting list, keep trying and better luck next year.

To sum things per vox.com, "You could make a real case that The Federalist Society is the single most influential advocacy organization in Washington right now, and its story began with a small start-up grant from the Olin Foundation. After all, it's just another way America's philanthropic system in which rich donors get lavish tax breaks for donations that can, if used properly, profound ultra-public policy can clash with norms of democracy."

I don't know about you, but I would call a student group beginning with a small grant for an academic conference and growing into one of the most influential organizations in the United States promoting the Constitution and the rule of law an organizational example of the American dream. May God bless America and may God bless The Federal Society. Enjoy the food. 

Dean Reuter:  I have to say as one of the event organizers, it's really bad form to use up the most talked about part of an event in the first 30 minutes of a three-day conference, but that's planning on our part. So thank you very much, Chief Judge, for those remarks. Really much appreciated and a great way to get us started.

And I'm realizing, as I heard your remarks, I need to do more reading. I don't know what my Twitter feed is but I'm not getting the same things you are. Mine are all cats and dogs and things like that, but we're going to resume or continue, actually, without a break. If we could call the first panel up. We might sit here and idle for a couple minutes just to stay on time, but I advise folks to stay in the room and we'll proceed.

Again, thank you Judge Pryor.

9:45 a.m. - 11:30 a.m.
Showcase Panel I: The Legal Profession and Constitutional Culture

2022 National Lawyers Convention

Topics: Constitution • Professional Responsibility & Legal Education
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006

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Lawyers and judges play an important role in a democratic republic like the United States. 

In Democracy in America, Tocqueville praised the character of America’s lawyers as indispensable to protecting the U.S. Constitution, because their taste for formality would help preserve it against popular passions. Similarly, in Federalist 78 Alexander Hamilton defends judicial review by arguing that judges will be bound down by “strict rules and precedents.” 

Does the U.S. Constitution presuppose a legal profession of this sort?  Have lawyers’ understanding of their job, and more broadly of their role in society, changed significantly?  If lawyers’ interests have become different in the modern regulatory state than in the early republic, can the rule of law, and specifically judicial review, function in the long run as Tocqueville and Hamilton hoped?

Featuring:

  • Prof. Jamal Greene, Dwight Professor of Law, Columbia Law School 
  • Prof. Tara Grove, Vinson & Elkins Chair in Law, University of Texas at Austin School of Law
  • Mr. Ashley Keller, Partner, Keller Lenkner LLC
  • Prof. John McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University, Pritzker School of Law
  • Moderator: Hon. Patrick J. Bumatay, Judge, U.S. Court of Appeals, Ninth Circuit

Speakers

Event Transcript

Hon. Patrick J. Bumatay:  Okay. Good morning. Morning, everyone. Let’s start the program. Good morning. My name is Judge Patrick Bumatay of the U.S. Court of Appeals for the Ninth Circuit. Before beginning, I want to say what an honor it is to be moderating this panel. I’ve been coming to these conventions for almost 20 years, and this is the first time I’ve gotten to moderate a panel in person. So I’m thankful for this opportunity, and we have a great panel too. 

The panel is called “The Legal Profession and Constitutional Culture.” When I think about this topic, I think of the amazing example set by John Adams. No one would question John Adams’ patriotism or dedication to the rights of American colonists, but after British soldiers killed three Bostonians in what’s known as the Boston Massacre in 1770, John Adams made the difficult decision to represent those soldiers. 

No other lawyer would represent that captain of the British soldiers except for John Adams and a more junior attorney. Adams proceeded to win an acquittal for the captain and several other soldiers. It is during this famous case that Adams said, “Facts are stubborn things, and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.” 

So now I’ll introduce our panelists. Our first speaker will be Professor Jamal Greene of Columbia Law School. His most recent book is entitled How Rights Went Wrong: Why Our Obsessions with Rights is Tearing America Apart. And before law school he served as a baseball reporter for Sports Illustrated. 

Next, we’ll have Professor John McGinnis of Northwestern University’s School of Law. Professor McGinnis is well known to us on The Federalist Society. His areas of expertise include constitutional law, originalism in practice and international law, and technology law. 

We’ll then have Professor Tara Lee Grove of the University of Texas School of Law. In addition to several years as an appellate attorney at the Department of Justice, Professor Grove has focused on the study of the federal judiciary and the separation of powers. She recently served on the President’s Commission on the Supreme Court. 

Lastly, we’ll have Ashley Keller. Ashley is one of the founding partners of Keller Postman where he handles a wide variety of trial and appellate matters. Ashley graduated first in his class from the University of Chicago Law School, and I believe he just argued a case before the Supreme Court on Tuesday. Well, I’m glad you survived.

Ashley Keller:  Barely.

Hon. Patrick J. Bumatay:  To start off, each panelist will now give an opening statement. Professor Greene, can you start us off?

Prof. Jamal Greene:  So I’m going to sit here. I think that’s okay; right? So thank you all. Thanks for having me. It’s good to be here. I’ve interpreted this as a panel about how lawyers in the United States should understand their role within the constitutional culture, and this is I think an important topic for today, not least because I can faithfully report that constitutionalism in the United States, especially as practiced by judges, faces at this moment a serious threat to its legitimacy. 

And as privileged members and adjuncts to the very institutions that are under threat, and indeed as so-called officers of the court as lawyers are often called, lawyers are custodians of the law’s legitimacy, and to that degree we are ourselves under threat in this moment. Whether or not we think that threat to legitimacy is justified, it is there, and we must account for it. So what I want to talk about is what our posture towards that threat should be. 

Now, this is not just an important question for this moment but an important question for this particular room and for the people within it. As you all know, the legitimacy threat is bound up with the view held by many—Judge Pryor talked about some of those people—that courts and especially the Supreme Court are not just political institutions but are in fact partisan political institutions. And this convention is the premier national gathering of politically identifiable lawyers, many of whom benefit from the Court’s posture. 

I want to suggest that how you respond to this moment is of surpassing importance to our democratic future. Now, first let me not be misunderstood. I am mindful that among the very first speakers at this convention is me. I think that the invitation to people like me to speak to groups like yours is a quite laudable and I think highly relevant to the topic of this panel. 

But I also want to suggest that the obligation of lawyers, and especially the kinds of lawyers who gather every November here at the Mayflower -- it goes beyond listening to people like me talk at the convention. And I want to use my remaining time to say a bit more about what I think that obligation looks like. 

We are, and for the foreseeable future are, likely to remain in a period of conservative ascendancy on the Supreme Court. Much of the Court’s output, much of its case selection practices, its methods, and its tone have been characterized by what I perceive as a distinct lack of humility. As lawyers, many of whom are no doubt pleased by the outcomes in these cases, I want to encourage you all to embrace humility as a general attitude, as a way of being about constitutional law. And I’ll note that I would say the same thing to the American Constitution Society if there were a progressive ascendancy on the Supreme Court. And you can hold me to that if that happens in my lifetime. 

Now, why is it so urgent to embrace humility in constitutional law as lawyers in this moment? I’m going to give a little bit of a trigger warning here, which is that I’m going to say some uncomfortable things about the U.S. Constitution. We often speak about the Constitution as if it represents in its original design a powerful commitment of the will of the American people. This is at best a fiction and at worst a lie. 

The Constitution was drafted by people who did not allow women to participate in electoral politics, who permitted and at times practiced human slavery, and who by and large conditioned the vote on property holding. The Constitution was ratified as you know in a very close vote by members who were selected under similarly discriminatory conditions. To say that a document that such openly exclusionary bodies drafted and ratified represents ipso facto the will of the people, right, is not just wrong but is quite frankly offensive. 

Now, of course the Constitution has provisions that were drafted after 1787, but other significant moments of constitutional design betray similar problems. The Fourteenth Amendment was drafted by a Congress of exclusively white men. Women, again, could not participate in electoral politics. Most states at the time, including in the north and the west, did not permit Blacks to vote on equal terms with whites. 

It may well be that the language of the Fourteenth Amendment and indeed the language of original constitutional provisions as well represented a genuine commitment of we the people, but the process through which those provisions made their way into the Constitution can’t give us much confidence that that’s right. I recount this history not to take shots at the Founders or the Framers, many of whom had attitudes about republicanism that were ahead of their time. I recount this history rather to suggest that the reverence that we Americans owe to the Constitution today cannot rest on its status as an exercise of popular sovereignty. 

It was not such an exercise, unless we think those acts of mass exclusion were justified. And as you can imagine for someone who looks like me the claim that the Constitution represents some high democratic commitment under those exclusionary conditions is especially alienating. The Constitution was a document drafted and supported by a distinct minority of the population. Right? 

Given that, the authority and legitimacy of the Constitution as written needs to be actively argued and defended, not just assumed. The substance of that defense is far from obvious. Constitutional law debates—and here’s the point—are not then debates between those who honor the deep commitments of the American people embodied in the Constitution versus those who don’t. Rather they’re debates about what the deep commitments of the American people actually are. Who or what speaks for America? Right? 

The question is hard, and it’s hard because genuine, actual diverse majorities of Americans have never codified the answer to that question. It doesn’t mean that we don’t have deep commitments; right? But we the people have never written them down in a Constitution. 

Now, there are many answers that are offered to the question of who or what speaks for us that look very different from the 18th Century Framers speak for us and look very different from the 39th Congress speaks for us. Some believe that it’s important for adjudicators to account for so-called evolving moral values when they reach decisions. Some people believe that longstanding legal and political precedents supported by consistent national majorities or public opinion should carry significant weight in constitutional adjudication. Some people maintain that ordinary statutes, especially federal statutes which require broad and diverse constituencies to pass, should receive very significant or even absolute deference from courts. 

These kinds of claims are not attempts to subvert the true Constitution. They are claims about who or what actually speaks for us. They’re claims about what we as Americans and what we the people have actually committed ourselves to in a deep sense. So what’s the answer? If the written Constitution doesn’t speak for us, then who does? 

Well, the hard answer is that we can’t say with certainty, and indeed there many not be a single answer to that question. Again, we’ve never quite written it down. It’s precisely for that reason that judges who find themselves called upon to answer momentous political questions by resorting to the prior commitments of the American people that are said to be embodied in the Constitution should go about their task in ways that reflect a deep humility about their role within our democracy. 

We as lawyers should support and cultivate that same kind of posture. I’ve written a book called How Rights Went Wrong that’s intended to offer a roadmap for that exercise of humility and for recognition of our pluralism. Unsurprisingly, I recommend it to you all. The book calls for broad recognition of diverse sources of value and at the same time deep attention to the importance of collective governance, which requires negotiation, which requires compromise among people who hold very different visions of the good. If the book has a single message, it is that pluralism is the core value of American constitutionalism in 2022. 

As such, there is nothing more important to our democratic future than each of us not being too sure that we’re right. We need to build that kind of ethos and that kind of spirit into our legal institutions if they are to survive. So if you take nothing else from these remarks, take the plea not to spike the football. Constitutional law is not a game, and indeed to paraphrase the late Justice Scalia we are just one team here. It is America. Thank you. 

Hon. Patrick J. Bumatay:  Thank you, Professor Greene. Professor McGinnis.

Prof. John McGinnis:  So thank you. Many thinkers at the founding believed that a particular kind of legal culture was necessary to a constitutional republic. Central to this culture were tough minded, formalist lawyers who had bucked the popular passions to preserve an enduring Constitution. But over time lawyers have become less attached to formal interpretation I think because of changes in the profession, and that transformation makes the constitutional order harder to maintain. 

It’s thus critical for some substantial element of the legal profession to restore that aspect of our constitutional culture. In Democracy in America, still the best book I think both about democracy and about America, Alexis de Tocqueville admired the American experiment, but he foresaw danger. Democracy could turn excessively populist as demagogs successfully appealed to the ill considered whims of an excitable populace, ending the Constitution. Democratic mutability would thereby endanger republican stability. 

Lawyers were an important bulwark, perhaps the important bulwark against such dangers. According to Tocqueville the importance of law in a republic made lawyers peculiarly powerful in America. When the nobility is excluded from government, lawyers become the most effective governing class he thought. Tocqueville further believed that the nature of their profession makes lawyers’ power a beneficent force. Their devotion to law gives them an inclination to resist the popular passions. The formal structure of law encourages an abiding suspicion of the distortions that would disturb it. 

Tocqueville above all praised the character disposition that comes naturally from studying law. He said, “Men who have made a special study of the laws derive from this occupation certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude.” Tocqueville was not so naïve as to assume that every attorney had such qualities. He also recognized that lawyers are prominent in every kind of political movement, including revolutionary ones. 

But respect for traditional forms and resistance to popular forms are important general tendencies. As Gordon Wood shows in his superb book, Power and Liberty, the formal tendencies and dispassionate attitudes of lawyers were a reason that the judiciary was entrusted with constitutional review. It’s easy to understand the connection. Devotion to formality meant protecting -- meant that those charged with interpreting the Constitution would protect its meaning through time. That approach maintains both the large areas for democratic choice permitted by the Constitution and the restraints on the form and scope for the choice which the Constitution also imposes. And sustaining the constitutional order also directs popular momentum for constitutional change to the carefully deliberate process of Article V. 

The dispassion allowed lawyers to take up also any cases that were backed by plausible legal arguments, even if they were unpopular, as Judge Bumatay’s example of John Adams shows. In Federalist 78, the famous essay defending judicial review, Alexander Hamilton, a lawyer who also defended unpopular Loyalists after the revolution, emphasized the sound judgement and acumen of lawyers who would become judges. In response to claims the judiciary would undermine the original plan of the Constitution, Hamilton conceded the judicial review would serve the republic only if it had learned lawyers who would be bound by strict rules. 

This confidence I think was born out in the early republic. The judiciary resisted the most populist tendencies of the Democratic-Republican Party when it took over the presidency and Congress after the 1800 election. Despite making enough appointments to establish a Supreme Court majority, three successive Democratic-Republican presidents, Thomas Jefferson, James Madison, and James Monroe, didn’t alter the Constitution’s fundamental character. For instance, despite Democratic-Republican attacks the Supreme Court upheld the Bank of the United States unanimously in McColloch v. Maryland. The justices were prudent men who rose to prominence from a legal practice dependent on arbitrating private law among merchants who were well disposed to protecting the Constitution’s rules for a commercial republic. 

It’s often said that politics is downstream of culture, meaning that culture shapes politics more than the other way around. Similarly, legal decision making is downstream of legal culture, and legal culture is largely shaped by the nature of the legal profession. But the legal profession has changed a lot since Tocqueville and Hamilton saw it as the sociological backdrop of judicial review and by extension the entire republic. I don’t have enough time to describe I think the downward trajectory throughout American history of the legal profession for the more formalist dispassionate group described by Tocqueville. 

For instance, in my main remarks I won’t talk much about I think the great failure of legal culture after the Reconstruction amendments. The amendments I think tried to correct some of the defects of the Constitution that Professor Greene rightly calls our attention to. That was a total failure to enforce that great promise of giving African Americans the rights of white Americans for almost a century. 

But let me talk a bit about more of the more recent pivot points in that decline. I think the rise of the regulatory state is partly to blame for the legal profession’s change. At the time of the Constitution lawyers obtained their fees largely from private transactions. They negotiated and litigated contracts, conveyed property, drew up trusts. But since the New Deal, much of law’s become administrative law because the modern state is the administrative state. 

Government lawyers’ practice consist in finding new ways to regulate, and for private lawyers it consists in finding new ways of complying with or avoiding regulation. Lawyers thus gain with any increase in the scope of government and the complexity of its procedures, making them not so inclined to the formal restraints at least where governmental power is concerned. 

The other primary factor behind the bar’s transformation has been the rise of living constitutionalism. Under living constitutionalism, lawyers and judges are not simply servants of the law but potentially tribunes of the people because they can choose to create new rights and discard others. In a legal world without formal anchoring in text and precedence that characterize the lawyer’s craft in the early republic, innovation and indeed radicalism become prized as sources of power. Lawyers become no longer the shield of the republic but the disruptor of its order. 

I think the American Bar Association history reflects this transformation. Until 1938, the ABA’s positions on law were focused mainly on maintaining the constitutional settlement. It favored formalism in law. Its members by a six to one majority opposed Franklin Roosevelt’s scheme to pack the Supreme Court to create a flexible interpretation of the Constitution necessary for the quick approval of all New Deal legislation. 

But as the regulatory state entrenched itself after the New Deal, the ABA grew considerably less devoted to formal order. By the 1960s it was more openly a left wing organization. The watershed public moment, I think, marking the shift was the decision in 1987 by four members of its standing committee on the federal judiciary to rate Robert Bork, quote, not qualified for the Supreme Court. That committee’s remit was to evaluate nominees for judgeships on their professional qualifications. Bork had been Solicitor General of the United States, a professor at Yale Law School, and author of the most influential book on antitrust law in the history of the subject. 

That adverse judgement of the committee members represented a kind of ideological assassination under the veil of professional assessment, a betrayal of the ABA’s own formal rules for professional competence in the interest of keeping a formalist off the court. By the 1990s the ABA began publicly to endorse left liberal positions that were hard to square with any commitment to formalism whatsoever. The most famous resolution was its 1990 affirmation of a constitutional right to abortion. That aberration of the 1973 Roe v. Wade decision showed how far lawyers had come from a devotion to legal formality because the abortion decision was so notoriously unmoored from the text of the Constitution or any substantial precedent. 

As John Hart Ely, himself a supporter of abortion rights, famously observed, Roe is not constitutional law and gives almost no sense of an obligation to be so. I again don’t have time to go through all the ABA’s subsequent resolutions, but today alas they read like a left liberal wish list. I think it’s fair to say as the Tory Party was once said to be the Anglican Party at prayer, the ABA is the Democratic Party at the bar. And the changes in legal culture is also present in the legal academy. While law professors in the early republic from, say, George Tucker to Joseph Story, also leaned to formalism, a recent study shows that law professors of today overwhelmingly believe that living constitutionalism is the way to interpret the Constitution. 

Certainly as Tocqueville recognized not all lawyers need to be formalists to maintain a culture conducive to a constitutional republic, but there must be a critical mass of formalist lawyers to support a Constitution that draws a line between different spheres of governments and between individual rights and democratic authority. Now, it might be argued today there’s no reason to be worried anymore because today’s Supreme Court is the most formalist court for generations. But that ignores the fact that the Supreme Court’s decisions will be considered legitimate in the long run only if they accord with the general legal culture. 

Legal commentators I think are the equivalent of theatre critics of the Supreme Court, and not surprisingly given their ideology and jurisprudence the vast majority of law professors and journalists give it almost uniformly bad reviews. To be sure, the Court itself speaks through its opinions as a kind of Republican school master, but its voice is soft, often drowned out in the cacophony that is modern social media. 

In fact I think it’s not too much to say that a largely formalist court and the louder predominately non formalist legal culture represented by the legal establishment professoriate are today struggling for the control of the direction of the law. That battle underscores, I think, the important work of The Federalist Society. It’s emphatically not the role of the Society to take positions on particular results. Indeed on many important issues such as same sex marriage from a decade ago to the independent state legislature today, the Society has powerful advocates on each side. 

And that should encourage us to understand that legal interpretation is hard work and to absolutely accept the injunction to humility that Professor Greene so wisely enjoins on us. Instead what units the Society is its celebration of formality and the dispassion of law that Tocqueville thought a necessary presupposition to a constitutional republic. It’s the Society’s continuing contribution to legal culture that explains why I’m so happy to be with all of you again this year. Thanks very much. 

Hon. Patrick J. Bumatay:  Thank you, Professor McGinnis. Professor Grove.

Prof. Tara Grove:  Thank you so much. It’s wonderful to be here. So I want to talk about the role of lawyers in a world of polarization, including in a world of effective polarization. And I’ll tell you what that term means in just a little bit. 

So we all know that Congress is polarized. Members of Congress vote along party lines. Members of Congress are tending more to the extremes on both the left and the right. There are fewer and fewer moderates in Congress, and if they are there, they are likely to get primaried at some point in the future. 

It’s not clear if the public is as polarized as our representatives. In fact earlier this week I heard the news talking in great surprise about split ticket voting, people actually voting for a Republican for governor and, say, a Democratic Senate candidate or vice versa. And this was taken in with surprise. But actually political scientists are not at all sure that the public itself really is as polarized as we sometimes think. 

The real problem is this idea of effective polarization. Whatever the actual views of people, Republicans tend to view Democrats as not patriotic, not well informed, and not altruistic. Whereas Republicans view their fellow partisans as patriotic, well informed, and altruistic. Democrats do the converse. They view their fellow partisans as well informed and altruistic and view Republicans as not. And there’s an assumption that if you are a Democrat you must believe X, Y, and Z and if you’re a Republican you must believe the opposite. 

And that leads to effective polarization, not that we’re actually that split but we sure think we are. And we talk in echo chambers and just reaffirm our views of the other. So what does this mean in practice? Just to give an example from everyday life, back in the 1960s only about 3 percent of either Republican or Democratic parents said it would bother them if their children married somebody of a different political party, just not a big deal. There were other things that were a big deal in the 1960s, but ideology was not. 

Fast forward to 2016, over 60 percent of Republicans and Democrat parents say they would be horrified if their child married someone of a different political party. So here we are in this world of effective polarization. Families are divided. People are divided, and what I want to suggest is this also matters to our perspective on the federal judiciary, which is one of my areas of expertise, because you can see this tendency of effective polarization also at work in the way that we talk about judges. 

Just to take us back to the former president, President Trump dismissed a decision by a federal judge by calling the judge an Obama judge. Chief Justice Roberts in a rare move went to the airwaves and said we don’t have Obama judges or Trump judges or Bush judges or Clinton judges. We have a federal judiciary that’s trying to do the law. And what was striking is after the chief justice made that comment not only did President Trump laugh it off but so did most of the legal community which with I am familiar. 

On the left and the right commentators said oh, come on, chief justice. Of course we have Trump judges and Obama judges and Clinton judges and Bush judges. Are you kidding me? There is an assumption that judges can be labeled. And it gets worse. It’s how we talk about the judges. 

So in a May 2020 report by some Democratic senators they describe the judiciary—this is close to the end of the Trump administration—as, quote, packed with far right extremists, end quote. Most of whom were, quote, chosen not for their qualifications and experience, which are often lacking, but for their demonstrated allegiance to Republican Party political goals, end quote. This is not a new thing. Back in the 1980s when Judge Harvey Wilkinson of the Fourth Circuit was nominated Senator Ted Kennedy said he was the least qualified individual ever to be nominated to an appellate court vacancy. 

That is a surprise to us now, but that is what was said. But this is not of course just on the Democratic side. Republicans have also assailed judicial nominees and not only President Trump by calling them Obama judges, but recently senators have been talking about President Biden’s nominees as extreme, ideologs, those who want nothing other than judicial activism. And this isn’t just talk. 

This has real world consequences. If the President and the Senate are from different political parties, I feel very confident in saying and very sad in saying that there will be zero confirmations to the United States Supreme Court. There will be zero confirmations to the federal courts of appeals, and there will be few if any confirmations to the federal district courts.

What does this mean on the ground? I heard recently about a TRO, a temporary restraining order, on which a judge had been sitting for 15 months. There are areas of our country where there just aren’t enough federal judges to hear civil cases at all because they’re so overburdened by their criminal docket and because there are seats that have not been filled. 

And I am not saying that this is the caused by one political party. I’m suggesting it’s caused by both. We don’t know the results of this past election. We don’t know who’s going to control the Senate. But Senate Republicans have already said Senate Democrats served as a rubber stamp for President Biden, and when we come in, it will be a new order. And whenever there is a Republican president and a Democratic controlled Senate it will be the same without some serious changes in the procedures of the Senate and the attitudes of our system. 

So what can we as lawyers do about this? One would think that the process of legal education, the process of becoming a lawyer would be a way to answer this problem of effective polarization because we are taught in law school to think about both sides of every argument. When I’m teaching first semester civil procedures, so the real new lawyers, this is really hard for them. I use one problem in civil procedure to illustrate the concept of forum non conveniens -- and I just lost have the room by mentioning that term. But I use cases based from real life, and this one involves the use of experimental drugs on children in a foreign country without their parents’ knowledge or consent. 

Now the legal issue boiled down to form non conveniens, but after class a student came up to me and said, Professor Grove, I could never argue for that pharmaceutical company even on an issue of procedure. I could never do it. And I said, well, one, you don’t have to, but two, what you do have to do for your own client is be able to predict every single thing the attorney for the pharmaceutical company is going to say because the only way that you can serve your client is to know what the other side is going to say before they say it. To overcome this idea that the other side is inherently bad and put yourself in the shoes of the other side, that is something that we do every day in litigation. 

What I would encourage us to do is to take that same skill that we have as lawyers in litigation that we do on behalf of our clients and apply that to life as well. So our Founders, depending on which history you read, did not anticipate political parties, but they did anticipate political factions. In fact James Madison talked endlessly about political factions and viewed the Constitution’s design as a way of addressing that. So we’ve been dealing with political factions for a very long time. 

What I urge us all to do is to take up Professor Greene’s suggestion of humility, humility about our own perspectives, and to exercise a bit of good faith about the perspectives on the other side, to say that you are a person as well and you may have different views from me. But I’m going to treat you with humanity and respect and listen. Listening is a skill that I think some of us have forgotten, but it’s a skill that can help us understand the views of the other side. Thank you.

Hon. Patrick J. Bumatay:  Thank you, Professor Grove. Mr. Keller. 

Ashley Keller:  Thanks, Judge Bumatay. It’s great to be here on the far right amongst my fellow panelists where I belong. I’m going to do two untraditional things in my remarks. The first is to use less time than I was allotted, and the second is to directly answer one of the questions posed by the prompt to describe this panel that none of you probably read, which is is there sort of a background assumption about what the legal profession is supposed to look like built into our constitutional design. 

As an original matter I’m not so sure, but certainly in modern times I think the answer is yes. There is a background assumption that’s very important, and it's this: that we will have a mostly tolerant profession that vigorously defends the right of fellow lawyers to take on clients with any cause whatsoever, no matter how popular or unpopular that cause is. And it won’t surprise you to hear, since I’m a good conservative pessimist, that I don’t think that that background assumption still holds. It did until very recently, but I think the times they are a changing rapidly. And that’s a problem that we need to be thinking about. 

So to quickly sketch this out so that we can get to the Q & A, I’ll start with why I think the assumption is necessary in modern times, one of the main reasons I think it no longer holds and then a possible set of solutions to that problem. So the reason that I think the assumption is so necessary is because of judicial supremacy. It wouldn’t be a good Federalist Society convention if someone didn’t take an early swipe at Cooper v. Aaron, so here's my opportunity to do so. And Judge Bumatay and to all of the other jurists in the room, you should be working hard to return the judiciary to a role of deciding cases and controversies between actual litigants. 

Maybe go back to seriatim opinions or just one word orders, affirmed, reversed. I think that would be helpful. But that’s not the world that we live in. It’s just a reality that we have to face today that the courts’ role is to -- it’s emphatically the province and duty of the judiciary to say what the law is for everyone, not to the litigants to the particular case or controversy before them. And so when our judiciary announces rules of decision about major constitutional doctrine, no one’s ever going to go back and say, well, the petitioner didn’t raise this argument in his or her brief, so the respondent didn’t point this out to the court. So it’s still an open question. No. 

When the court announces a rule at the court of appeals level and certainly at the Supreme Court level, that’s going to govern all of us. And as I’m sure the judge could attest to and every other jurist in the room could attest to courts are really busy. They hear a lot of cases, and they rely on litigants in our adversarial system to pose the right questions, to raise the right arguments, to frame the issue in the way that’s best for their client but then ultimately will allow the court to expound on the constitutional or statutory principles at issue and announce that rule for everybody. 

So if you get slip shod legal work from lawyers who aren’t willing to take on particular causes because they’re unpopular or because they don’t suit the sort of fashion of the time, that’s a major problem because the courts are going to be handicapped in their adjudications of disputes. And if there’s a valance in the sorts of things that are deemed unpopular from a political perspective, you’re going to get court’s reaching particular outcomes that reflect that valance. So that’s why I think it’s extremely important that the legal culture adhere to the traditional view where John Adams could go out and defend people who were on the wrong side of the Revolutionary question, and though it may have been unpopular with the masses, the legal profession would coalesce around that and say, no, of course if was fine for John Adams to do that. He had to vigorously represent his clients, and those clients were entitled to a vigorous defense. 

Why do we not have that right now? Not everybody may share this view, but I think it’s pretty obvious. Corporations have gone insane with their woke-ism, with ESG. The sort of notion that they would be Switzerland and just try and sell their widgets, their products and services to everybody of all political stripes, maximize shareholder profits, and then dividend that money out for shareholders to do with what they wish, that was the regime I think for the most part for a long time. That regime has fallen by the wayside, and now corporations are putting immense pressure on the elite law firms of our country to support particular political causes, to not get involved with particular clients who have valances that they don’t support. 

And it won’t shock you to hear from the person on the far right of this stage that I think that that is enduring to the benefit of the left and the politics that they support and not to the right. And sort of my premier illustration of that, my John Adams of our time, is Paul Clement. I have the privilege of being opposite Paul Clement since I’m the only conservative plaintiffs lawyer in the country on some matters, and he definitely makes me quake in my boots. He’s the greatest appellant advocate of our generation. The man is a machine. 

He goes and does Supreme Court arguments commando style with no notes at the podium, and he just does a magnificent job. And so for the sin of winning six to three on the constitutional rights associated with the Second Amendment, he had to disassociate himself from Kirkland and Ellis, a place that used to be pretty hospitable to conservative lawyers even though management didn’t believe in all of that stuff, but there were plenty of conservatives at Kirkland, because he’s doing too good a job winning for the conservative side. And the reason that he was at Kirkland and Ellis in the first place is because Kirkland essentially bought his law practice Bancroft because he had to previously disassociate himself from King and Spalding, who didn’t like him representing unpopular clients. 

What kind of world do we live in where top law firms don’t want Paul Clement working with them? A world where law firms no longer adhere to the view, the logical prior that we were talking about, of what the legal culture should be. You don’t have to agree with Paul. You don’t have to want the causes that he’s taking on to be successful, but the idea that you can’t tolerate him, you can’t countenance him being at your firm is a major problem. And whether it’s because the management of these firms don’t have a spine and aren’t willing to tell their clients, listen, we will represent you vigorously in your matters, but there’s no way we’re not going to let Paul take on the matters that he has, or they actually believe it I can’t tell. Or it’s probably a combination of both of those things. 

 We are definitely in a world where law firms in the Am Law 100 I think are becoming increasingly hostile to conservative lawyers representing conservative causes. And so that is going to cycle through the system in a dangerous way as conservative clients get less high quality representation. So what’s my proposed solution to the problem? To quote Barry Wiess, Courage. First things first, conservatives at these law firms, partners at these law firms, Miguel, Ted Olson (sp), sorry to call you out by name, hit reply all when the all firm email comes around spewing this nonsense and say this has to stop. We’re not going to tolerate that. We’re important at this firm. We care about these causes, and people are entitled to their differences of opinion. And we’re going to have a pluralistic tolerant culture that goes back to the way that things used to be not so long ago. 

And we can have a vigorous clash of ideas, but our law firms are going to take on unpopular causes on the right sometimes, just like we countenance taking on unpopular causes on the left or more popular causes on the left. And that’s going to be a-okay. The other thing is I would encourage young conservatives have the courage to not go to those law firms. You don’t have to go to Gibson Dunn or Jones Day or Kirkland and Ellis to have a great legal career. You know, to be self promotional, you can come join me. We’re hiring. 

And there are lots of other boutique firms that can still give you the work life satisfaction that you were looking for when you went to law school, that can validate your incredible intellectual gifts and credentials. But we need to be serious about making sure that everybody can get excellent representation in our legal system because if the current trends continue, both for political reasons but also from a greater societal perspective, I’m deeply concerned about the repercussions of that. And I think conservatives are going to be on the short end of the stick just about every time. 

Hon. Patrick J. Bumatay:  Thanks so much, Mr. Keller. Before we go to the Q &A I just wanted to ask if any of the panelists wanted to respond to anything that they’ve heard. Professor Greene?

Prof. Jamal Greene:  Sure. So I’ll just make a general comment and then a sort of comment/question to Ashley Keller in order to try to figure out the contours of the argument. So the general claim or the general comment is that my perception -- so I do think that as far as I can tell there’s been a general decline in formalism among American lawyers since the founding. I’m not sure that that necessarily represents a kind of moral or ethical failing on the part of lawyers but the fact that the job of a lawyer and particularly a public lawyer in the United States is very different now than it was in the 18th Century or in the early 19th Century. 

The Reconstruction amendments that Professor McGinnis refers to add a bunch of rights into the Constitution. Rights review wasn’t a major part of the job of a judge in the early 19th Century and the late 18th Century. Now it obviously is, so the materials that we’re dealing with are quite different. And the population that we’re dealing with is quite different. 

We understand everyone to have rights. We understand everyone to be able to make claims. And as a diverse pluralistic nation in which we understand everyone to have rights we have strong disagreements about what those rights are and what they require. Those have become essentially contested in ways in which who owns Blackacre is a very different kind of question than who has a right to equality within some setting or whether someone has a right to reproductive freedom. 

These are very different kinds of legal questions, and so of course you get less formalism because we essentially disagree about these things, not because some of us have the right answer and others of us don’t. We disagree because we’re different from each other, and different people have different commitments, values, experiences and so forth. And so the job of a lawyer is quite different. 

The question for Ashley Keller is how should we understand the general proposition? And this is a genuine question because I’m -- I think most of us don’t believe that certainly in civil cases that every law firm should represent any client who brings any non frivolous claim. That’s not -- and I don’t take that to be your argument. So there is some point at which one gets to choose whether one supports the ends of one’s client, and so I’m trying to figure out what that point is for the firm, at the firm level. 

Obviously I think criminal cases are somewhat different than civil cases. At least I think criminal and civil cases are somewhat different along this dimension. If it seems as if some particular client or some particular set of ends is just not getting quality representation, I think maybe that should be relevant to how a firm understands it’s own obligation. 

I’m not sure that’s the case with Paul Clement. His clients got quality representation. So is it just about sort of outside pressure? Firms should make their own decisions or their own choices shouldn’t be unduly influenced by others. That seems right to me, though I don’t know -- I think it’s hard to know when that’s happening and when it’s not happening. So what counts as sort of being pressured from the outside versus having one’s own views about the ends of one’s client? So just trying to -- this is a law professor thing to do is to try to abstract away from the particular facts and try to figure out what the general claim is. 

Ashley Keller:  Yeah. I didn’t know we were going Socratic method today [Laughter]. I’m in the hot seat. I think at Yale now you can put up a sign saying, I don’t want to be called on today, but you could never get away with that at the University of Chicago. So I’ll accept the challenge. 

Of course I’m not saying that a law firm has to take on every matter. Obviously, they like any private business retain the freedom to choose, but as a cultural matter I would like them to have a sort of general disposition that if someone’s willing to pay perfectly green money for us to take on this matter and it doesn’t trip up Rule 11 or something like that and Paul wants to take it on, for instance, we’re going to let him. And of course the gun manufacturer clients received excellent representation. He won, and that’s the nature of why he had to disassociate himself from the firm. 

So while in any individual case I would never suggest that firms shouldn’t have the discretion to pass on it -- and actually even at a broader level, I’m not suggesting a regulatory response. The heavy hand of the state shouldn’t come in and say Jones Day, thou shalt take every civil case that is willing to pay you your outrageous hourly rates. No. That’s not the solution. But the partnership of the firm ought to be willing to say, man, we disagree with Paul and I hate that he’s representing these clients, but it’s part of our culture as a legal profession that we allow that. 

He’s making arguments that are not only non frivolous, they’re actually prevailing in the courts. And the firm is getting paid for the representation good money, and it’s making us all as partners a little richer. And so that ought to be fine. And the clients ought to be told to the extent they’re putting pressure on the firm to say you shouldn’t allow Paul to take on these matters, hey, butt out of it. Don’t be so nosey. We’ll represent you in a very vigorous way, but you ought to have a culture of tolerance and understand the importance of the legal profession taking on causes that you might disagree with. Keep selling your widgets, and we’ll represent you when you breach your contracts and try and get you out from your responsibilities. 

But that doesn’t really have anything to do with whether Paul represents gun manufacturers, so don’t succumb to the pressure that clients are putting on you. Now I recognize as a good capitalist there’s a little tension there because to the extent the firm is going to lose good paying clients who are just getting their noses out of joint, that the firm is taking on other clients that they don’t like from a pure bottom line profit maximization perspective you could say, hey, we have to serve the interest of our clients. But if we’re going to restore the legal culture to one that’s more tolerant of divergent viewpoints, there has to be some push back. 

Hon. Patrick J. Bumatay:  Professor McGinnis?

Prof. John McGinnis:  So let me just speak on that. Just one point I would add to the point about Paul Clement is they asked him to give up representation of his client, and I think that is what is so striking about it. It’s one thing to say, well, we have some interests, and therefore we won’t represent you. But to ask a partner to give something up, I think that represents something that seems to me more egregious. 

So in response to Professor Greene, I guess I’m really suggesting that it’s very important that we approach the Constitution with the same formalism that we approach contracts. And the example I would give of that is I think -- which I talked a bit about in my talk and talk at much greater length -- you mentioned your own book, so I have to mention my own with Mike Rappaport, Originalism and the Good Constitution, where we discuss the really terrible failure after the Reconstruction amendments for the legal culture and the Supreme Court to enforce the Fourteenth and Fifteenth Amendment. 

I think it was really a failure of formalism. They considered things like, well, what are the social practices reasonable to uphold Plessy rather than look at what seems to me indisputable was that the Fourteenth Amendment was to get rid of the Black Codes and that this was illegal, this kind of discrimination under the Fourteenth Amendment, even more clearly I think with respect to the Fifteenth Amendment, which made it very clear that voting rights could not be infringed on the basis of race. And we think if there had been different decisions back then, that would’ve been a great blow against the dreadful Jim Crow south. 

So I actually see in our history the failure of formalism to be one of the ways that we did not give full measure of what I thought you very eloquently described as some of the failures of the constitutional process in the original Constitution followed by at least some substantial constitutional correction in the Fourteenth and Fifteenth Amendment. And I think the legal culture in some sense blanched for reasons, I think, including racism, I think including the idea that was very popular at the time that we needed reconciliation between the North and the South. 

And the advantage of formalism is that I think that it at least -- and I guess that segues me into discussing a bit of Professor Grove’s remarks is that at least it gives us an empirical fact of the matter about which we can disagree. And it’s not the case that always the empirical fact of the matter gives conservative or liberal results. And one of the great, I think, advantages to a culture of formalism -- which I think we’re just starting to see now, is we’re seeing more liberals come into the legal academy beginning to be formalists and deploying formalist methods and thinking, well, maybe there’s some liberal results here that we get from formalist methods. Then we have a debate about something where there can be a fact of the matter. 

The one other point I would make with respect to Professor Grove’s remarks is I don’t think our polarization is exogenous to the Constitution. So as a formalist like me looks at political polarization and says at least one of the causes of political polarization has been the rise of the unconstrained administrative state because when we had a structure we actually had Congress making -- forcing Congress with some kind of a delegation doctrine to make the hard compromises, that meant we got something in the middle. People felt they were heard. We have a structure now with the administrative state where we get wildly different policies from one administration to another. And that abets polarization. 

It also gets the sense that we have to control the presidency above all and that if we don’t, we’re going to be crushed. And that I think feeds into effective polarization. So all I would point out is that very real issues of how we interpret the Constitution that relate to the really very serious problem of polarization that I think that Professor Grove has very sensibly put on the table. 

Hon. Patrick J. Bumatay:  Go ahead, Professor Grove. 

Prof. Tara Grove:  Right. So thank you. I share Professor Greene’s perspective and it sounds like the prospective of many that we have a decline in formalism. But I have to express some agreement with what Professor McGinnis just said that when you get away from formalism, that’s not necessarily helpful to people without power because people in power tend not to be representative of those without power and to the extent they have a lot of discretion to do whatever they want. That may not help the powerless. And I do think the failure to enforce the actual text of the Fourteenth and Fifteenth Amendments is an example of this. 

I’m going to cite another example that’s probably going to get me into trouble because I know Professor McGinnis is on the other side of this one. Justice Gorsuch’s decision in Bostock v. Clayton County, that was a very formalist, textualist reading of Title VII of the Civil Rights Act to say that the prohibition on sex discrimination also protects gay, lesbian, and transgender individuals. I think it would’ve been much harder for that left victory to occur without some formalism on the United States Supreme Court. What worries me, and I’ve seen this in the reaction to the Bostock opinion from many of my textualist friends, are people comfortable with formalism when it leads to results that they do not like? 

I’ve seen some loosening of standing doctrine and other procedures depending on whether people are getting the results that they like. I’ve seen some loosening on textualism. I think the reason that common good constitutionalism is a rising movement -- and I share Judge Pryor’s criticisms of that perspective. I think the reason there is that movement is that originalism is now assumed not necessarily to lead to answers in all one direction. I view that as a benefit of any interpretive theory that it does not lead to answers in one direction, but we’re seeing this effective polarization all over the place. People want answers that fit their priors, and I think that’s highly problematic for our legal order. 

Hon. Patrick J. Bumatay:  Mr. Keller, any further remarks? Okay. Great. Well, we’ll now open up to Q&A. I want to start off with Professor Greene. I wonder if you could describe more what you mean by humility. Like, what does that mean? Can you give us an example of what a lack of humility is in the legal profession? 

Prof. Jamal Greene:  Sure. So I’m specifically thinking -- and I think humility as a general virtue, so beyond lawyering. But when I refer to it in this context, I’m thinking about it in the constitutional context. And I’ll give a concrete example that feels somewhat foreign to what our constitutional culture has become but I think is important is in how we think about remedies for example. So right now the way in which constitutional cases tend to get litigated is one side -- and this is sort of a corollary to our adversarial party presentation system. 

One side sort of presses their advantage as much as possible. The other side presses the claims of their client in the other direction, and then a judge sort of picks one or the other. That’s sort of the culture. And then the opinion sort of looks like a brief for one side or the other to try to make the case that one side or the other was right, the other was wrong and then awards essentially total victory to one side or the other. 

There are in many other constitutional cultures a mechanism that’s referred to as unconstitutional but not void, which is to say that you make a decision that a particular practice has a problem with it or has some constitutional issue. But because you understand the government to be trying to accomplish something valuable, even if they’re doing it in a ham handed way or even if they’ve committed a violation, you say, we’ll give you six months to decide to tell us how you’re going to resolve the constitutional issue, and then we’ll move on as opposed to thinking about the issue as the government must be wrong or right and we’re just going to strike it down or not strike it down. 

So using remedial discretion as a way to acknowledge that there are valuable ends even on the side of the party that’s lost, that’s just one concrete example. But there are lots more in the book. But there are lots of ways in which -- and this actually goes a little bit to Ashley Keller’s point about the role of judges is to think much more critically about deciding cases on the basis of their facts, deciding cases on the basis of who’s right today without making a commitment as to who may be right tomorrow on different facts, who may be right six months from now or ten years from now, to keep the litigants invested in the constitutional culture. And that I think is a tribute to pluralism, a tribute to the fact that we’re all very different and have very different ends but have to keep invested in the same system. 

Hon. Patrick J. Bumatay:  Professor McGinnis, you mentioned a number of factors that have contributed to the decline of the legal culture. I think you’ve said living constitutionalism, the ABA, the legal academy. I was wondering if you think which of those factors is most upstream of the others. Do you think it’s legal academia that’s driving this or any other of the factors is driving all the other factors?

Prof. John McGinnis:  It’s hard to know. One thing is I come from Northwestern Law School, which is a school where people do a lot of empiricism. They put up regression analysis on the board and talk about all the various factors that influence things, and I think in any social phenomenon, one has to be, I guess, humble about identifying a single factor. 

So I do think that one important change has been the rise of the regulatory state, at least insofar as you think that element of the Constitution was constraint on government, because that gives all lawyers, even if they’re against -- even if they’re arguing in this case against greater scope for government an interest in the greater scope of government because they become -- well, they’re sort of a walking transaction cost; right? And so that allows them to make more money. And I think that has been one of the changes that has occurred. I do think the prominence of law schools -- after all, think about the 19th Century. 

Most lawyers became lawyers through association with other lawyers. There was no law school for most people. And even law schools in the early part of the last century were often trade schools. 

Now law schools are much more part of the university system. I’ve even seen during my own time that the university law schools have moved towards the university away from the bar. What I mean by that, most of my colleagues have PhDs. They identify with the university system, and the universities are for whatever reasons extremely left wing in one way. And also they tend not to think that law has an autonomous discipline of its own. 

So if you have a PhD in a different subject, you understand the structure of law in some other ways. And in some sense one would explain away what law is, and that I think is in some tension with formalism as well. So that makes me, like many conservatives, sort of pessimistic for the future because I don’t see the administrative state going away or being very constrained, and I don’t see any resistance to this trend of law schools being taken over by the universities and having both the ideological perspective and the perspective that law is in some sense secondary and should not be understood as an independent formal discipline. So the question makes me even more pessimistic than when I began on this panel. 

Hon. Patrick J. Bumatay:  Sorry to do that. Professor Grove, I’m curious of your thoughts on if whether judges themselves have contributed to this effective polarization. One of the questions I most frequently get asked is what do I think about the tone of dissents and opinions these days. And I wonder are we contributing to this phenomenon?

Prof. Tara Grove:  So there used to be more unanimous opinions on the U.S. Supreme Court, but there have been dissenting opinions speaking in strident tones for quite some time. I think actually judges are not yet the problem. I have a high opinion of judges, all of them. I actually wish people paid more attention to how judges do their job because I think if people looked at how the appellate courts for example work that there are judges from very different perspectives and backgrounds who come together and decide almost every case unanimously on panels. 

There are very few en banc hearings. They’re starting to pick up a little bit but not much in part because appellate judges actually agree on the law. I think that gets lost in our culture today as people focus almost entirely on the U.S. Supreme Court and almost entirely on a very small part of the docket of the United States Supreme Court and have very little sense of the lower court judges. I’ve talked to judges who say we wish the media would not label us as a Trump appointee or a Biden appointee or an Obama Appointee or a Bush appointee. We wish they just call us judge. 

So I think the judiciary -- people being more aware of what the judiciary does could help the perspective because right now what people see to the extent they see anything at all it’s the confirmation process, and that is not helpful to the legitimacy of the federal judiciary. 

Hon. Patrick J. Bumatay:  Thank you. I’ll ask one more question of Mr. Keller and then I’ll open it up to the floor. Mr. Keller, there’s some attorneys who explicitly consider themselves as cause lawyers, and you mentioned you’re a conservative lawyer. If you’re so explicit and express about it, why not be able to hold them to account for that? Why not hold them for those views?

Ashley Keller:  You mean like if someone says I only do right wing causes --

Hon. Patrick J. Bumatay:  Correct. 

Ashley Keller:  -- that should be fine? Sure. I think that’s okay. 

Hon. Patrick J. Bumatay:  And then hold them accountable for that if you disagree.

Ashley Keller:  Well, when you say hold them accountable, I think a boutique firm that has 20 lawyers or something like that, sure, it doesn’t have to go take on causes that are the polar opposite of what they formed their firm to do. It’s very different if you’re at an Am Law 100 firm or an Am Law 10 firm. There are going to be a thousand lawyers there. I would hope that there’s going to be a diversity of opinion amongst those thousand lawyers, and so as a consequence you have to have a more tolerant culture that allows all sorts of different matters to be accepted at the firm. 

But yeah, I take your point. There’s definitely a place for specialization, but sort of making an analogy to cancel culture, we don’t want to cancel those firms. We don’t want them to no longer be able to earn a livelihood because we’re going to bring all of the pressure of the private sector to bear on them and say, hey, you took on this unpopular cause, and so we’re going to try and make it our mission in life for you not to be able to earn a living doing this in the future. That is what’s corrosive and dangerous and I think part and parcel of what you’re seeing today from the big firm cultures.

Hon. Patrick J. Bumatay:  Thank you. Okay. We have a question on that side of the floor. 

Gary Lawson:  Hi, Gary Lawson, Boston University School of Law. And John McGinnis read my mind because what I got up here to say was that even though this is going to come up later in the conference, I was surprised by how little reference there was to the role of law schools in shaping legal culture. I mean, legal culture comes from a lot of places. It comes from up. It comes from down. It’s a multibody problem, which is why it’s such a mess. 

But what at least in my limited experience I’ve seen in recent years is a cascade, not a move, a cascade toward a conception of legal education not as training lawyers to represent clients at all but rather to train lawyers as agents of social change. And you can fill in the leftist in brackets any place that you like. And if that’s really what being a lawyer is about, then a lot of the things that we’re seeing, commenting on in legal culture are of course the logical consequences of that. Is there some deeper question that we’re all avoiding here about what it is that legal education is supposed to be training people to do?

Prof. Tara Grove:  So I was trying to suggest that law school is part of this, right, that once we train our students to think about every single case on both sides and think about not just their client’s position but what they would argue if they were arguing for the other side and really put themselves in the shoes of the other side should be and I think still is part and parcel of legal education. It’s always nice to see you, Professor Lawson. But I’m going to disagree actually that that’s what most law schools do. 

Now, I can’t speak for all law schools, but I’ve taught at five, six now. And at every single one I’m doing the same thing. And let me just say this ranges from Harvard to Northwestern to Texas, my current school, to William and Mary to Alabama and Florida State. What I’ve done at every school is taught law and prepared students to be litigators, and the professors that I know at those schools are doing the same thing in the classroom. 

Now, I do know people in legal academia and elsewhere who would like law schools to be preparing lawyers to be agents of social change and very much advocate that. And what I hear from those folks is a dissatisfaction with the current state of legal teaching because we’re not doing that nearly enough. So my own view is that at least right now law school actually is doing what should be preparing -- it should be preparing people to think about things on both sides. What I worry is that we’re not taking those legal skills and applying it to other aspects of life.

Prof. Jamal Greene:  And just a quick follow up -- and my experience is consistent with Professor Grove’s experience about what law schools are doing. But I do wonder why it can’t be both. I think law schools should train lawyers to be the lawyers they want to be, and some of those lawyers would like to be agents of social change. And that’s okay. 

Lawyers have often been agents of social change, and some of those lawyers don’t want to do that. And they should be able to get a high quality legal education as well. So I think one can wear the hats at the same time. I do think people sometimes get those confused as to which one is which, and I think it’s important for teachers to have clarity about that and to make sure they’re teaching their entire class at the same time. But I don’t think it’s necessarily an either or proposition. 

Prof. John McGinnis:  So I’m afraid I’m more worried than either of my colleagues, and I worry about it for two reasons. One, I worry actually that at least at my law school just as a practical matter people don’t train people to be on both sides just because of their approach to teaching. Many of my colleagues teach from PowerPoints. The Socratic Method has clearly declined since I’ve been a law professor, and so the idea that you should argue both side of the case just as a technical matter in class is in, I think, really very substantial decline, at least at my law school. 

We’re all a little captured by our own experience, and in fact I’ve been told by some students who I teach in the second year that I’m the first professor they’ve ever experienced who cross-examines them on the case and asks students to take different sides. And I also know from colleagues who’ve told me—and these are not conservative colleagues—that they’re afraid to have a very kind of open ended discussion because they’re afraid of what some of the students then are going to call them out on. Because of course an open ended discussion is necessarily one where someone might say something a little off as it were, right, and get in trouble. And so that really does concern me, and so it’s not only a question of professors. It may also be a question of students. 

But then I just can’t -- I have to also suggest that there is a real problem of the ideological uniformity of the legal academy, and it’s just not that I am saying this. There’s an article entitled, not by conservatives, “The Ideological Uniformity of the Legal Academy” by political scientists at Harvard Kennedy School and some law professors. They show just dramatically the case that law professors stand -- that are not Democrat -- they stand to the left of the median Democrat. And they also admit that the great interest in diversity in the legal academy, which is a very great focus of hiring again at my school, a very strong focus on hiring, has moved the academy even farther to the left than it would otherwise be because in general women professors and professors in minority groups are even more liberal than the already liberal professors -- the white male professors. 

So that’s a problem, I think, if we want to actually have as vigorous a debate in law schools and give people the sense of a pluralist legal culture if the legal culture in law schools is neither very adversarial in the sense that I described and it is politically uniform. So I agree that is a serious problem. 

Prof. Tara Grove:  So I just want to add in I agree that law schools need all kinds of perspectives, both in the student body and on the faculty, including different ideological perspectives. And that is something that is missing from many law schools. 

Hon. Patrick J. Bumatay:  Do you want to add anything?

Ashley Keller:  I’m a venal practitioner, so I defer to my friends in the ivory tower.

Hon. Patrick J. Bumatay:  Let’s go to this side. You have a question over here?

Art Macomber (sp):  Yes, we keep hearing that judges are not --

Hon. Patrick J. Bumatay:  Can you give us your name?

Art Macomber: -- legislatures. My name’s Art Macomber, and I hail from the wilds of north Idaho. We keep hearing that judges are not legislators, and we here Justice Roberts say, well, they’re not an Obama judge. They’re not a Trump judge. You know, we don’t associate with this legislative policy spectrum of right and left. However, that is -- the judiciary is thunderously silent on the idea of what is then the spectrum of the judiciary. 

And from the 12th and 13th Centuries I think English law has well developed that there’s a spectrum for the law, which is either law or equity. The King’s law; the church is equity. But we don’t hear much about that. What we hear is, well, they’re an Obama judge or they’re a Trump judge. 

And my question for the panel is to what extent is the judiciary and legal culture harmed by assuming the policy making spectrum of the legislature, right and left, blue or red, as opposed to creating and emphasizing its own spectrum, which is in my view law and equity or something else besides the legislative spectrum that we get into these big arguments about?

Hon. Patrick J. Bumatay:  Anyone want to take this?

Prof. Jamal Greene:  I’ll take a stab at this. I’ll go back to something that Professor Grove said earlier, which is that the vast majority of courts are not handling the kinds of cases that call for the label of Obama judge or Trump judge or what have you. And I think we could do better to recognize and make more visible that fact. 

I do think, and I think this will be maybe a bit controversial on this panel, that the kinds of issues that do call people to refer to judges by partisan labels are issues that people disagree about not because some of them are right about what the law requires and others of them are wrong about what the law requires. They disagree about some of those issues because those issues have inherent political content to them. One can have a discussion and a debate about the degree to which the Constitution should be understood to apply to a set of issues that have inherently political content. But that’s unavoidable. 

So whether one thinks that equality requires the government not to engage in race-based affirmative action or whether one believes that equality requires the government to engage in race-based affirmative action is not a question that can be answered by traditional legal materials. It’s a question that has political content to it, and I don’t think that we’re necessarily well served by pretending that it doesn’t have political content to it. 

And I think the real question is what do we do about that unavoidable fact. What should be the role of judges under circumstances in which there is unavoidable political content to what they’re doing? How should we think about the role of legally educated, legally trained people who have no -- who structurally have no political accountability answering questions that have inherently political content? I think those are really hard questions. Those are questions about the design of political institutions. They’re questions about how to structure state power, and, again, I think we’re not well served by pretending that they’re just the same as, again, who owns Blackacre.

Ashley Keller:  Okay. Can I jump in? I mostly agree with that. I understand why Chief Justice Roberts for institutional integrity reasons said there’s no such thing as Trump versus Bush versus Obama judges, but let’s get real. There are such a thing as those different sorts of judges, and we at The Federalist Society are responsible in large part for that and for good reason. We said no more suitors; right? 

There was a time where your jurisprudential philosophy didn’t line up as neatly with the president who nominated you or the senate that confirmed you. And we on the right said, Holy cow, we’re appointing judges to the Supreme Court who approach the Constitution and interpreting statutory text in a way that is completely antithetical to the way that we believe it should be interpreted. So we’re going to put a stop to that, and it’s become a very successful movement. And so it’s pretty logical to say that if you were nominated by Trump after all the promises he made to the people in this room, like the gentleman to my right, you have a certain approach to interpreting the Constitution and statutes that’s very different than the way that his colleagues who have been nominated by President Biden approach interpreting the Constitution. 

Now, I think everyone here believes that textualism and originalism should not be utilized as things to achieve conservative political outcomes. We should apply those principles neutrally. And if it reaches a liberal political outcome, i.e. there’s no such thing as a constitutional cap on punitive damages for us plaintiffs lawyers, that’s great. That’s what the original public meaning requires, and you reach that outcome irrespective of the political valance. 

So there’s not a one-to-one mapping between being an originalist and being a conservative, or there shouldn’t be. But we have absolutely injected the political philosophy of judges into presidential elections and senatorial elections. And so chastising the public for actually having eyes and ears and recognizing that it’s working, you know, we’re just saying the quiet part out loud. 

Hon. Patrick J. Bumatay:  I’m glad I’m the moderator so I don’t have to respond to that. We have a question over here.

Lee Liberman Otis:  So I think you might’ve just conflated political philosophy and judicial philosophy, even after you just drew the distinction between political philosophy and judicial philosophy and political outcomes --

Hon. Patrick J. Bumatay:  Could you hold the microphone closer to you?

Lee Liberman Otis:  Oh, sorry. I think that you may have just conflated political philosophy and judicial philosophy, which are not the same thing. And I think you probably meant judicial philosophy, not political philosophy, but I’m not sure. But I have actually two questions, one for Professor McGinnis and one for Professor Greene. And I should’ve identified myself also, I suppose. Lee Liberman Otis with The Federalist Society faculty division. 

So my question for Professor McGinnis is that Professor Greene is making the argument, I think, that the problem is not necessarily that judges are doing something improper when they’re injecting moral considerations into -- and not being formalists when they’re injecting moral considerations into their decision making because the legal materials actually call for it. I think that’s his argument, and therefore maybe there should be -- and I’m not sure if I have this right. But maybe there should be a different set of judicial techniques for dealing with those legal materials than formalism for deciding those kinds of cases. So that’s my question for Professor McGinnis. 

My question for Professor Greene is this humility does strike me as desirable, but is it to be expected if people are fighting about moral issues? And are you going to insist on it if they’re fighting about moral issues? I mean, it sounded as if you were saying that it’s important for lawyers to draw the line somewhere about what kind of client they’re going to represent in civil cases. Does that decision also call for a lot of humility? And that may then help us understand perhaps the tension between law schools training social justice warriors and training people to be able to represent both sides. 

Hon. Patrick J. Bumatay:  Professor McGinnis, is you want to start.

Prof. John McGinnis:  So I take there to be actually two questions in Lee Otis’s intervention. So one is what are the legal materials and then should we follow them? I think their argument is to be an originalist. They don’t actually follow just from the nature of the legal materials. I have argued they follow from the nature of the majoritarian consensus at the time the Constitution corrected. I do agree with Professor Greene the most serious challenge to that is the exclusion of African Americans corrected by some later amendments and the alternative of living constitutionalism, which even with a constitution that’s imperfect I think is not the best way of interpreting it. 

If one decides that originalism is the way to interpret the Constitution, one has to go back and understand how the Constitution was interpreted -- the original Constitution in 1789, how they expected it to be interpreted and then how the Constitution of other amendments were expected to be interpreted. And there my argument would be that they thought that formal materials were the way to interpret the Constitution. And that’s a historical debate. 

I think there’s some evidence for that. James Madison, often thought to be the father of the Constitution says the understanding of the people at the time the Constitution is enacted, that’s the only way -- the only legitimate way the Constitution should proceed. But that’s the debate. That I think is the structure of the debate. Should we be originalists now? And that depends on some normative political theory. 

And once we decide we should be originalists, the question is what are the methods of interpretation at the time of enactment. And I think they are broadly originalist. Obviously on a panel like this I can’t set out the evidence for that. I think the second point is pretty strong. Even liberal scholars like Howard Gillman and Laura Kalman have suggested that throughout the 19th Century even when there were disagreements, sharp disagreements about how cases should come out, no one really argued for living constitutionalism. People had varieties, and often they didn’t follow what they said they should do. But they had varieties of arguments to be originalists. 

So I think there was an originalist consensus that you could understand the Constitution, and there were deeply political questions. They may not have been rights questions. They were questions of should the federal government or should the state government have authority, which were deeply political questions that could be resolved by the materials of the Constitution at that time. And it was only in the progressive era when a whole knew view of the Constitution developed kind of along the ideas of Darwin that we needed evolutionary view of the Constitution that we had a strong intellectual alternative to that. 

Hon. Patrick J. Bumatay:  Professor Greene?

Prof. Jamal Greene:  So two questions. So one is is humility to be expected when fighting about moral issues, and no, I don’t think it’s to be expected. I think it’s to be cultivated. It requires intentionality to it, and I think that’s important again as a general virtue in our political discourse. But I don’t think it’s necessarily a question of ethics or role morality when we’re talking about ordinary people, lay people engaging in political discourse. 

When we’re talking about lawyers, it becomes essential. And it becomes essential in constitutional law in particular insofar as when we engage in discussions about rights, who has a right to what, these are really kind of existential questions for people. And an attitude towards those kinds of questions that suggests that there’s just kind of a single right answer and you just lose—the Constitution doesn’t care about you or your claims—is I think a highly socially destructive posture towards the Constitution. So lawyers, I think, have a different kind of role. And again, it’s not something that comes naturally necessarily but something that requires cultivation and intentionality. 

Does selection of clients call for humility as well? I think yes. So I think the general thrust of what Ashley Keller talked about is something I completely agree with which is to say that lawyers should be trained to understand that their job is to represent vigorously the interests of their clients and not to replace their clients or try to replace their ends with the ends of their clients. I think that’s an absolutely essential part of lawyering. Like anything else, I do think there are limits to that in the sense that there are limits to the view that one should be indifferent to the ends of one’s clients. I don’t think lawyers necessarily should be. But again, the general spirit I think is quite right. 

Hon. Patrick J. Bumatay:  Thank you. We only have a couple of minutes, so if we can keep our questions short. 

Mike Wallace:  Mike Wallace from Mississippi. I wanted to ask Mr. Keller to go back to his comparison of the 20 lawyer boutique practice to the thousand lawyer practice. I heard a speech from a federal judge this week who was the 19th lawyer at William, Cutler and Pickering. Twenty lawyers used to be a big law firm. Thousand-lawyer law firms didn’t used to exist. It used to be impossible to practice over state lines. 

When I started, you couldn’t practice in corporate form, and if you don’t have limited liability, the last thing you need is a thousand law partners. But if you’ve got a thousand law partners, isn’t it inevitable that they’re going to tend towards the safe uniformity y’all have been discussing? And if it’s not inevitable, good reactionary that I am, is there anything we can do to go back to what we had?

Ashley Keller:  Yeah. Great question. It’s obviously not inevitable because until 20 minutes ago it was happening that these thousand person law firms were representing various clients that had discordant political agendas. Paul Clement was successfully practicing at Kirkland and Ellis representing gun manufacturers. So it was completely doable for these thousand lawyer firms to take on different sorts of clients with different interests that, you know, maybe rubbed a lot of partners the wrong way but because of the broader legal culture that had been cultivated for a long time, it was tolerated. And now that is increasingly not possible. 

So I do think that it was something that was doable. What can we do to get back to it? You know, you heard my best stab at it, which is courage. People within these firms need to stand up for the culture that we want to have as a profession. Or we need people who think like us, you know, fellow reactionaries, to vote with our feet. And if we can’t obtain that culture at an Am Law 10 firm, you can still earn a great living and enjoy the practice of law working some place else and going to the sort of place that used to predominate our legal culture as you said not that long ago. 

So you don’t need all the trappings of an extra paralegal and word processing department or whatever that these big firms can provide, and, you know, the artwork in these A plus buildings is not that nice. You can do fine at a boutique. 

Hon. Patrick J. Bumatay:  Let’s go on this side. 

Greg Teufel:  Sure. Greg Teufel from the Pittsburgh chapter. I just had a quick question mostly for Professor Greene regarding you made some comments about the fact that -- uncomfortable facts about the Constitution that it was originally -- although it proclaimed to be we the people, it was a limited, exclusive set of people who actually drafted and ratified it back in 1787 and ’88. But I wonder does -- I’m not quite sure the point you’re trying to make in bringing out those uncomfortable truths, if it’s to undermine sort of the centrality, legitimacy, or authority or whether the we the people comment is true today. 

But I wonder doesn’t the history since the Constitution -- sort of the concept of ratification, even if only a small subset of the people actually originally ratified the Constitution, didn’t a couple hundred years of people migrating to the country, choosing to stay in the country, fighting in the military, swearing oaths to support and defend the Constitution, choosing to vote in elections, choosing to pay taxes, those kinds of things -- doesn’t that constitute ratification of the Constitution by we the people, by all races, creeds, religions? And doesn’t that grant if it didn’t have it on day one the Constitution the centrality, legitimacy, and authority to take the role it has taken in our cases that are being litigated in the courts?

Prof. Jamal Greene:  Great. So I take the question to be does a kind of acquiescence, maybe even a kind of active acquiescence over time by a diverse population invest the Constitution with legitimacy and authority. I think that’s one kind of claim that one can make about why the Constitution has the status that it does. So when I said understanding the Constitution as an act of popular sovereignty is something that has to be something that’s actually argued rather than simply assumed, that’s the kind of argument that one might make. 

Now, if one makes that argument, it then begs the question of what is the thing that those populations understand to be the Constitution. What is the thing that those populations understand themselves to have committed to? And that is a very difficult question to answer because those people did not write down what they were committing to, what they understood the Constitution to mean. 

And so when we talk about something like living constitutionalism, it need not necessarily be understood as we’re going to look at these words and sort of pretend that they mean something else or have changed over time. It’s to say the American -- we’re trying to identify the commitments of the American people as constituted today. And that might be something we can identify as originalism, but it isn’t necessarily something that we can identify as originalism. 

That has to be argued. It has to be defended. So yes, that’s a -- this is not a claim that we’re not bound by the Constitution, or it isn’t law or something like that. It’s to say when we think about what makes it -- what it actually means, it begs the question to say it means what it originally meant. And so that’s the point. 

Hon. Patrick J. Bumatay:  I think we have time for these last two questions. Go ahead. 

Joe Cosby:  Joe Cosby, attorney in Washington, D.C. Thank you very much. For Professor Greene, thank you for your comments and everything. I wanted to focus on your response to Mr. Keller about Paul Clement. You said, well, his clients did get represented and they won. And they got great representation. 

But then wasn’t the point of making it an issue for him as to whether or not he could even remain at the firm that he was at exactly that problem, to discourage Mr. Clement and anyone else who saw how Mr. Clement was being treated from providing exactly that kind of representation in the future? And whether it’s intended or not, doesn’t that result in a much more brittle, much more narrow legal culture that runs a serious risk of becoming so narrow and so brittle that serious errors and intolerance become the consequence in the future?

Prof. Jamal Greene:  So I was not trying to defend Kirkland and Ellis or to suggest that their behavior in this particular case is laudable or defensible. I don’t have any -- I mean, the facts as I know them bother me and concern me in the way that they do others. The point I was making is simply to say that if we’re trying to sort of understand the nature of the problem more generally -- so is this an instance of something sinister that goes deeper than this particular case, then one of the things that we might wish to know is are there clients who because of the unpopularity of their cause are unable to get quality legal representation. 

And this is not to me an instance of that happening. It may be that there may be other facts that suggest that it is, so I’m totally open to that possibility. So it was really more of a question of what are the kinds of things that should alarm us. And I don’t have a good sense of whether this is an example of a larger phenomenon that should worry us or it’s just an example of a firm maybe behaving badly. 

Hon. Patrick J. Bumatay:  Would you like to respond? Okay. Go ahead.

Hon. John Curry:  Thank you. Judge John Curry from Chicago. Regarding student culture that was referred to earlier, I’ve had these two reports -- you can label them fake news if in fact they are. One was from Harvard Law School, the other from the University of Chicago Law School. Students who returned from their summer internships who had worked for prosecutorial offices were subject to a sort of Maoist public shaming from their fellow students for even thinking of working for prosecutors. 

So it’s to the three law professors here on the panel. Isn’t it your charge to correct that kind of thinking and make it quite clear that within America the legal profession has diversity and we need that diversity to cover important -- I mean, we need prosecutors to prosecute in criminal law. Many of them go on to become fine criminal defense lawyers after their time with prosecutors. So does this kind of culture disturb you, this rising up from the students who may eventually one day become more Kirkland and Ellises and shaming clients or partners to avoid certain representations? Thank you. 

Prof. Tara Grove:  So I think assuming that that story exists—and I’ve heard some interesting stories across law schools—that would be an example of effective polarization, right, an assumption that if you did this thing and are part of this group then you must believe X, Y, and Z and those are bad things. And it’s also a surprise because we also have a real rise in progressive prosecutors nationwide. Going into a prosecutor’s office today is nothing like it would’ve been for me to go into a prosecutor’s office when I graduated awhile ago. 

So I think when I talk about we as lawyers in the legal profession need to treat each other with good faith, I’m talking about law professors and law students as well. I will say I think the pandemic did not help with this to the extent school was conducted online. I think that students did not have -- students at schools that were online did not have as much of an opportunity to see each other as human beings, as people with ideas and values who might disagree with you on a really hot button topic but you can go play basketball with them after class. 

Our students did not have that experience at many schools for a year, a year and a half, and I think that hurt legal education. I’m hoping going forward we will not have that same issue, but I think that as we go into our silos and only, say, go to Federalist Society conventions or only go to American Constitution Society conventions, only talk to those with whom we agree, this kind of thinking will continue. I think it is crucially important for people who strongly disagree to talk to each other and try to understand the grounds upon which they strongly disagree. I think it’s crucially important that we admit when we have views that are inconsistent with those around us, and I think it’s really hard to do. 

But to the extent we can create that environment in the classroom, which I try very hard to do -- I try to make my classroom open to everyone regardless of their perspective or their background or their ideology. But I think we have to make a commitment -- and this goes back to Professor Greene’s point on humility. Being humble about your own views makes you much more open to respect those of others.

Prof. John McGinnis:  So I agree with everything that Professor Grove said. I do think it is a problem in the legal academies -- to go back to the ideological uniformity, it’s structurally a problem. It’s harder to have that humility when you’re in a bubble of people who almost entirely share a certain number of views. And students are less likely to get pushback in that world. That I think is a substantial problem in the modern legal academy, and in my view it’s getting worse, not better. 

There is a decline, I think, in the sense of heterogeneity of views, and at least at my law school, the ability of people on all sides to be hired. I’m very concerned about that. I’ve heard concerns about that at other schools. And that’s going to create an atmosphere in which -- I think this is a problem of students as well. I think it’s actually a pretty small minority of students. 

But they have a kind of passionate conviction, and unless the institution represents the importance of ideological diversity and openness—and the best way they can do that of course is to have an ideologically diverse and open faculty who debate strongly among themselves right across both the ideological spectrum and the spectrum of jurisprudential views—the students are not going to get the right message. And that is a serious problem in the legal academy today which alas I see no evidence that anyone in the power of legal academy has any interest in correcting. 

Hon. Patrick J. Bumatay:  Okay. We’re out of time, so if you want 20 seconds each to wrap up, go ahead. 

Prof. Jamal Greene:  I’ll just use my 20 seconds on this issue which is I agree it’s a problem. It’s a serious problem. I’ll note that when people become judges or nominated for judgeships after being public defenders publicly shaming them for who their clients are is also really bad and the flip side of this. So I think it’s bad on both sides. 

And as to law schools I do think it’s a small number of people at least in my experience. Most students are I find actually quite open, quite receptive to a wide range of views. That’s just been my experience, and I hope it’s true at other schools as well. 

Hon. Patrick J. Bumatay:  Okay. We’ll give the last word to Mr. Keller. 

Ashley Keller:  I’ll use 15 of my 20 seconds. I agree it’s a problem. I would go back to courage. It’s terrible that students are trying to in Maoist fashion do anything. We don’t want anything Maoist -- but shame people into not going into a prosecutor’s office. At the same time I would say to students grow a spine and push back and don’t keep your mouth shut because you’re afraid you’re going to get canceled. And if people engage in that sort of behavior, come over the top with your own free speech and explain why they’re being ridiculous and contrary to pluralistic values. And you’re going to keep prosecuting criminals if that’s what you want to do for a living.

Hon. Patrick J. Bumatay:  Well, that’s a great last word, everyone. Thank you so much. 

 

 

 

 

11:45 a.m. - 1:30 p.m.
Is the National Association of Attorneys General in Need of Reform?

2022 National Lawyers Convention

Topics: Professional Responsibility & Legal Education
East Room Overflow: Chinese Room
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006

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The National Association of Attorneys General (NAAG) is a nonpartisan association founded in 1907 that facilitates interaction among the 56 state and territory attorneys general.” The organization’s website reflects that it, “provides a community for attorneys general and their staff to collaboratively address issues important to their work, as well as training and resources to support attorneys general in protecting the rule of law and the United States Constitution.” In 2021 NAAG received $15 million from the McKinsey opioid settlement and it currently holds more than $280 million in assets.

In recent years some have called into question NAAG’s leadership and programming and have publicly sought greater transparency prior to receiving, holding, and expending certain kinds of funds from state lawsuit litigation. Does NAAG need structural reform to assuage concerns? Are additional safeguards necessary to ensure the proper stewardship of litigation proceeds?

Featuring:

  • Mr. Oramel H. Skinner III, Executive Director, Alliance For Consumers
  • Mr. Jonathan Skrmetti, Attorney General, State of Tennessee
  • Mr. Chris Toth, Former Executive Director, National Association of Attorneys General
  • Moderator: Hon. Stephanos Bibas, U.S. Court of Appeals, Third Circuit

Speakers

Event Transcript

Margaret A. Little:   I’m Peggy Little, a longtime member of the Executive Committee of the litigation section of The Federalist Society. I want to do a little plug for our section for any of you looking for leadership opportunities. The litigation section is the most fun section.

 

Today we have organized a fine panel, and my job is to introduce the topic and our moderator. The topic is “Is the National Association of Attorneys General in Need of Reform?” Moderating this panel today on this pressing issue is the Honorable Stephanos Bibas.

 

Judge Bibas is a judge on the United States Court of Appeals for the Third Circuit. He has taught law at the University of Pennsylvania and several other law schools, argued six cases before the Supreme Court, and has filed briefs in dozens of other cases. Judge Bibas also clerked on the Fifth Circuit and at the Supreme Court. And he was involved in some private practice, followed by serving as an assistant United States attorney in the southern district of New York where he successfully prosecuted the world’s leading expert in Tiffany stained glass for hiring a grave robber to steal the priceless Tiffany windows from cemeteries. I want to hear more about that sometime.

 

And I want to add a personal note as to Judge Bibas. For all of the young lawyers here today, I cannot recommend a better way to learn both the art and the craft of legal writing than to read his decisions which are models of concision, clarity, and persuasive authority. Judge Bibas.

 

Hon. Stephanos Bibas:  Thank you for that generous introduction. Thank you to the litigation practice group for organizing this wonderful panel, "Is the National Association of Attorneys General in Need of Reform?" Before we begin, one brief announcement about CLE. For those of you pursuing CLE, to get credit you need to sign in and out once a day each day. You can do that by scanning the QR code, the CLE QR code. So if you haven’t checked in and you want CLE, please be sure to scan the QR codes that you should’ve been handed in registration, or feel free to grab a QR code from one of our volunteers who are standing over here ready to help. If you already checked in via QR code, there’s no need to check in again.

 

     So the National Association of Attorneys General, affectionately known as NAAG, is a non-partisan organization founded in 1907. It facilitates interaction among the 56 state attorneys general and territory attorneys general. It's supposed to "provide a community for attorneys general and their staff to collaboratively address issues important to the work as well as training and resources to support attorneys general in protecting the rule of law in the U.S. Constitution."

 

     But recently, it's come under criticism for holding assets that far outstrip its operating budget. And annual operating budget of $5 million, but holding onto assets of almost $300 million. Most of this money comes from taking part in public enforcement litigation, settlements, and some say that these funds belong to the states, not to this intermediary organization. The association has been publicly accused of tacking to the left and failing to fulfill its bipartisan mission. And I'm sure we're going to hear both sides of that issue or dispute as well.

 

     So our topic is "Is the National Association of Attorneys General in Need of Reform?" But first, let me introduce our speakers. First, we'll hear from Jonathan Skrmetti to my far right. Mr. Skrmetti currently serves as Tennessee's 28th attorney general. He was just sworn in two months ago. Congratulations on your new position. Previously, he was Tennessee's governor's chief counsel. He worked as a federal prosecutor. Prosecuted a surprising number of white supremacists plots against federal and local officials. He was in private practice in Memphis. He earned his J.D. from Harvard. Clerked for Judge Steven Colloton on the Eighth Circuit, and was an adjunct professor at the University of Memphis Law School. And, most importantly, he's the proud father of four lovely children.

 

     Next, we'll hear from O. H. Skinner. Mr. Skinner is the Executive Director of the Alliance For Consumers. It's an organization dedicated to "ensuring the consumer protection efforts and attorney general enforcement actions are consistent with the rule of law and benefit everyday consumers." Before that, he was Arizona's solicitor general, and he argued before the U.S. Supreme Court, led the states' consumer protection litigation against Google, Volkswagen, and others. He graduated from Harvard Law School, and then clerked for Judge J.L. Edmundson on the Eleventh Circuit, and was in private practice in Boston.

 

     And finally, we have Mr. Chris Toth, to my immediate left. He began serving as executive director of NAAG five years ago. He just retired about five months ago from it. He'll be able to give us an insider's perspective on the association. Before that, he had worked as NAAG's deputy executive director since 2004. He got his Bachelors from NYU, graduated from the Naval Aviation Officer Candidate School—my son is already star struck and wants to get some career advice from you—and earned his J.D. at Notre Dame. He's a decorated Veteran having served as an officer on active duty and in the Reserves for both Army and Navy. He's also a master gardener and master naturalist. And he's completed 12 marathon, which I believe is exactly 12 more than I have.

 

     So Mr. Skrmetti will start off by talking about the need for a neutral forum for AGs to communicate, and the need for critical mass of AGs. And then Mr. Skinner will talk to us about NAAG's salutatory purpose as bipartisan, but some ethical and liability questions about the way that it's been structured and funded. And then we'll have Mr. Toth talk about the misconceptions about NAAG, how it uses funds, about transparency and bipartisanship.

 

     So I'll ask each of you to start for 5-8 minutes and then we'll have some back and forth, and then we will welcome some questions from the audience. Mr. Skrmetti, why don't you kick it off?

 

Mr. Jonathan Skrmetti:  Thank you, Judge. So I'm going to talk a little bit about why NAAG is necessary. There is an inherent logic in the structure of complex mass litigation involving states that going to push us towards reinventing NAAG if we get rid of it. It fills a space that it has to fill. Now, there is ample room for reform. I'm not going to get into details on that right now. But I want to give you some understanding of the dynamics at play and the reason that NAAG, or something NAAG-like, has to be there.

 

     NAAG was founded in 1907 when the attorneys general of the various states got together -- well, individually bumping heads into the Standard Oil Company. There was, as you would expect, a massive resource asymmetry between each individual state and one of the most powerful companies in American, if not global, history. The AGs realized that they were not going to be able to do this individually but if they pooled resources, they were addressing the same problems. There was room for them to stack up, to have people take various pieces of the cases and work together to multiply their effectiveness.

 

     That dynamic continues to this day in various cases. There are a broad variety of multi-state cases that are organized by the states, typically through the channels that NAAG creates. So NAAG doesn’t run multi-state litigation. But it acts as a convener and provides the infrastructure in which the states can talk. In any given multistate case, you're going to have some states that are the lead states, some states that are on the executive committee that have a lesser but still very significant leadership role, and then a large number of states that are typically along for the ride. They may have one lawyer working part-time on some of the issues. But ordinarily, it's a division of resources where there are few states that are doing the bulk of the work.

 

     In the really big cases, there's no way we could do it absent that or contracting out. It's just too complicated. You know, I cut my teeth in this world as one of the negotiators in the opioids litigation, which the Wall Street Journal, The Washington Post, and The New York Times have all identified as the most complicated litigation in American history. The states were involved, the plaintiff's bar was involved; you have multiple, very large companies with a very large effect on the American economy and the healthcare sector. And it got very complicated. And the states would not have been able to represent the interests of their people if we were trying to do it piecemeal one at a time.

 

     And there are structural incentives, not just for the states who get the efficiency of being able to pool resources to work on the same issues. There's also an incentive here for defendants to have a unified forum in which to converse. If you had 50 states going after a defendant, that's 50 opportunities to litigate discovery; that's 50 streams of discovery requests coming in; you're in 50 state courts. Obviously, there is a huge inefficiency trying to litigate each piece along the way. Sometimes it happens; it's very expensive.

 

     If you have all of the states working in concert, you have an opportunity to secure a global piece much more efficiently. The states working together can talk with each other, find a consensus position that satisfies typically most, not quite all, of the states and offer to resolve all of the liability with the states. Now, that dynamic is complicated because we're not just looking at the states in the really big pieces of litigation anymore. There're also municipalities and counties that are litigating separately. In some states, the state attorney general has the authority to resolve cases on behalf of both the state and state political subdivisions. In most states, that is not the case.

 

     Then you have a trial bar that's been squeezed by tort reform and looking for new entrepreneurial opportunities that's realized that they can come in and represent these municipalities, and that gives them a chance to get a seat at the table in these very large dollar cases.

 

     And so what you see happening in both the really big cases and the smaller cases, but my focus is on the necessity of NAAG in the very large cases, is you have these tri-lateral negotiations, where you'll have the states looking to represent the state interests and get a resolution that benefits the people of those states. You have the companies looking to resolve liability. And then you have the plaintiff's bar representing a very, very large inventory of municipalities.

 

     Now, as you can imagine, most of these municipalities and counties are not often involved in huge, sophisticated litigation. They are approached with a pitch saying, "Hey, there's money on the table. You should get your piece of it. Let us represent you." The big players here will get inventories of hundreds of political subdivisions. As a result of that, there's not a lot of controller oversight exercised by the subdivisions. They're just not in a position to do that. If you're a semirural county somewhere, you're not going to be actively involved typically in the course of this litigation.

 

     The plaintiff's lawyers, meanwhile, are extraordinarily sophisticated. They are repeat players in this system. They are very effective at what they do. And then there's a significant difference in incentives that creates a lot of friction during this process. The plaintiff's lawyers are interested in getting money for their clients, and obviously, can calmly win that money for themselves. It's a very one-dimensional approach to resolving the cases. But in these huge cases we're talking about, there are a lot of potential collateral effects. When we were looking at the pharmaceutical distributors, we were dealing with companies that distribute approximately 90 percent of the prescription drugs in the United States. If something had gone wrong in those negotiations and we broke the companies, -- we don't say it flippantly. There's a high likelihood that some people would've died as a result of that. It would've been a huge disruption to the healthcare of people in our states.

 

     And so there are factors that don't relate to the money that are very important were the states, because they're taking into account the interests of the people, qua the people, and where there's political accountability—sometimes indirectly—they're always answering to somebody for what they're doing. The states are in a better position to internalize the collateral costs in a way that the plaintiff's bar isn't.

 

     And so the states act as a counterweight, and it's very important that the states act as collectively as possible to ensure that the state interests aren’t swept aside by the purely pecuniary interests.

 

     We're seeing more and more of these cases go to bankruptcy court as well, and there, it is very important for the states to speak with a unified voice. The courts listen to that, and it's an opportunity for us to collectively further represent the interests of our citizens, and again, not just be focused on the monetary outcome.

 

     And in the scale of cases that we're talking about, that's important because this is not a situation where you're just trying to squeeze the company, get a bunch of money out of it—they raise their prices a little bit and they go on. This is truly about the company litigation involving some of the biggest companies in the country.

 

     The other issue is if NAAG were to go away, there would be a natural vacuum there. And there're only a few, really obvious candidates to fill that vacuum, and they're all bad. The first is the Attorney General Alliance, which is another all attorneys general organization. It is -- whereas NAAG does not take corporate membership money, it does have lobbyists come into the meetings. But it's organized by the AGs, and it's funded separately. AGA is funded by the corporate interests that are being investigated. And there's a huge incentive there for the companies under investigation to join up. And it does not offer the same type of neutral forum. There's too much opportunity for the existence of the forum to depend on the goodwill of the people who are under investigation. And so it's not a good vehicle for figuring out how to resolve these.

 

     The authority could go the federal government. There're big problems there. You're concentrating power in a very small set of hands. An election could flip it, and then you end up with a lot of inconsistency in the approach. The FTC does not have the historical, institutional competence to deal with these cases the same way the state AGs do. And there are a lot of localized concerns that would just be swept aside as the feds move. In addition, because there are so many different components of the federal government that are typically implicated in these big cases, there's a lot of sclerosis as the different interests within the federal government try to work themselves out. And so you see a very slow resolution process. It can be agonizing getting the buy-in from the relevant parties.

 

     The plaintiff's bar would be very happy to step in and fill the void entirely and just not have to deal with the AGs pushing for something other than as much money as possible coming out of the companies. But I think it's obvious why that's not the best approach.

 

     The one other potential avenue would be if there was separate consumer protection enforcement done through RAGA and DAGA—the Republican Attorney General's Association, the Democratic Attorney General's Association. I think there's some problems there as well. First of all, these are fundraising organization, and so you run into the same conflict-of-interest issue that comes up with the Attorney General Alliance if these were the groups that were involved in this.

 

     Second, there is a real interest in as much of a global resolution as possible from the companies in these cases. And if they have to bifurcate negotiations or if you add in entirely different interests at the table, it's going to really bog things down. There's an efficiency problem there.

 

     The other thing is the states working together to build consensus tend to be able to reign in extreme and unreasonable players. If you split it and make it partisan, it's more likely that you're going to see more extreme positions demanded. And that's not to say that we do it perfectly now. I mean, the United Nations looks like a stable, quiet, well-run organization compared to the attorneys general because everybody is looking out for their states. They're many political considerations at play, and lots of different interests working on different AGs in different ways. So it's hard to get anything approaching a consensus. But without the vehicle of bringing everybody together, without the relationships between the AGs that allow for efficient assembly of these cases, you don't have the countervailing pressure on individual AGs to reach a reasonable accommodation. If we didn't have NAAG and had to do this ad hoc every time, it would take forever. There would be a lot of political friction, especially now, in getting people to the table.

 

     And I recognize that there are very few functional and effective bipartisan entities in the country. We're in a time of polarization. That's just the way it is. And so anything bipartisan is typically viewed with a great deal of skepticism by both sides. Until recently, the AG community and consumer protection was a pretty functional bipartisan institution, and there were a lot of advantages that flowed from that, both for the states and for the American economy in general. I think it's important that we maintain that, and while there is a need for reform, while there are a lot of opportunities for reform, and while a lot of my colleagues are demanding reform -- I mean, if there aren't changes, the NAAG will fracture. We need to figure out how to keep the critical mass of AGs on board. And that means we're going to have to change the organization in some significant ways. But if we fail at that and the organization falls by the wayside, there will be significant consequences. Eventually, we're going to realize where the structural incentives point us, and we're going to go through a lot of trouble to reinvent something that's already been around for 115 years. Thank you.

 

Mr. Oramel H. Skinner III:  So I'll start with a short thing of I -- my group exists because I disagree with the last statement made by my very good friend, where he said that until recently, the consumer protection landscape in the states was functional, and effective, and bipartisan. For what I think you might have heard from a section of that, and that I just fundamentally disagree with, is that the existing bipartisan apparatus that defendants liked because it was a one-stop shop, the trialers were able to work handily with, and that states all bound together in a mushy middle, that was a great outcome. Well, that was a good outcome, I would contend, for the people who were in charge of that operation. And consumers were regularly left out in the cold. It was -- when I joined the Arizona Attorney General's Office, it was unthinkable that in settling a case, the state would send restitution to consumers in that state. We proposed this as part of our individual, one-state, Volkswagen diesel settlement after 43 states made no such commitments to their consumers.

 

     And that just, as a person coming from -- you know, I moved from Boston to Arizona, and I just thought this seemed logical to me, but this was unheard of. So a fundamental premise that I would say that I disagree with is the existing system of NAAG bringing everybody together into one place, from my perspective—and I've written on this, and there'll be a piece running next week on this—it gathers everybody together, piles them into a bureaucratic quagmire in which, from my perspective, states move incredibly slowly. If you were to ask many defendants in an honest moment or any defense council, or you compared it to working at DOJ, the states almost seem like they don't want to settle. You'll have people say, "I'd like to discuss term sheets on a case," -- now, I will say that this often will happen in the mid-sized or large cases. Not the mega cases. But we're talking cases that are worth, like, $100 million. Nobody can get the states to move. It almost feels like they're designed to not move.

 

     And a ne'er-do-well person would think that maybe states are moving slowly because maybe of the states that have the most influence at a place like NAAG are politically aligned with the municipal governments and the left-wing trial lawyers that are running the other cases, where millions and millions and millions of dollars flow and 30 percent fees are retained and then 99 percent of those donations at the federal level go back to Democrats.

 

     So I don't buy the argument that the centralized function of NAAG is itself salutatory. And I will contest that probably on a different panel. But let's accept a version of what you just heard, which is it's very important to have a Kiwanis club in which the AGs come together and they rent a ballroom somewhere. Or they don't. Maybe they just get on a conference line. And they call it the National Association of Attorneys General conference line. And now they're running their cases.

 

     Okay. I disagree with the value of the centralized structure vehemently. I think it doesn't serve great purposes. I think what you'll see in my piece next week is that there's a new trend of—it happens to be conservative states—breaking away and making individualized settlements that I think are moving the ball forward and allowing them to bring a higher cadence of cases, direct more value to their citizens, and break this quagmire. Okay?

 

     Setting that aside, even if you think that centralized structures are good, NAAG is -- what you just heard is you've got this Kiwanis club organization, this phone line, everybody gets together. It helps them coordinate their cases. They need to work together because -- okay. What I see at the National Association of Attorneys General starts out the same way. Everybody, it's been around forever, it's an old bipartisan organization. Now immediately, some of you will say, "All bipartisan organizations are just left-wing laundries where left-wing ideas come in, bipartisanship washes over them, and then they come out the exact same, but now they smell a little different.

 

     Maybe. But what I definitely know is it's old. It's bipartisan. It's an institution. You can hate institutions. You can hate bipartisanship. You can love institutions. You can love bipartisanship. So far, we're down to that part.

 

     Okay. Who are the members of NAAG? It's public officials who are members. Okay, that sounds good. It has accumulated almost $300 million of assets. Well, how did the Kiwanis Club get $300 million of assets, you ask? Oh, well, you see, the public officials settle cases, and when they settle cases, the coordinating body that has a staff of almost 50 people in Washington DC and aren't government employees, receives $15 million here, $100 million there, $40 million here. And over time, that money just gets amassed. And you go, wait, so the Kiwanis Club is getting all this money from public settlements facilitated by a staff that's in DC? And it's big. It's like a big staff, like for some of the states that are in this room that I can see, it would be a staff that they would dream of. Having 50 extra people.

 

     Okay. And who appoints these staff? Well, they're kind of like appointed over time and there's not a lot of turnover. Oh, so it's like we made an administrative state in DC for the states and massive amounts of money have flowed into it over time. Well, what does it do with that money? Well, it lends the money. It invests the money. It facilitates trainings. This summer it helped facilitate retreats for the attorneys general and their spouses to go to London and Berlin and Korea. For the leadership.

 

     Well, that's all good. The Kiwanis Club now has almost $300 million, and it's doing the training, and it's doing the lending, and it's doing the facilitation of the cases with a staff that is not really public employees or really accountable in Washington DC. Okay, so it's kind of acting like a governmental entity. Well, what rules apply to it? Do the Public Records laws apply to it? No, NAAG would dispute that it's subject to any states' public records laws.

 

     Is it subject to legislative oversight? Well, no. You see, it's in Washington DC and it's the Kiwanis Club. It's not the government. Does it have limits on how it can invest its money, subject to state law? Well, no. It has investments in hedge funds and in private equity, and in foreign stocks. Oh, well, is it complying with the new wave of ESG limits on how state money can be invested? Well, no. You see, it's the Kiwanis Club. It's not the government.

 

     So as I work down this, I think you can see that I don't buy the idea that the centralized structure itself is good. But even if you do buy the idea that the centralized structure is good, this should feel deeply strange to you as a person who has come to the Federalist Society. It is the kind of thing where I have big problems. This feels very simple to me: do we ever want government alter ego organizations to get set up, stuffed full of hundreds of millions of dollars from public cases with the white hat of "we are just facilitating the good governance of the world, but we are not subject to any of the rules that would come with being the government."

 

     I think if you've spent years at Federalist Society meetings, it might feel like I'm describing a version of the administrative state. It's good and convenient to have a thing that write the rules so Congress doesn't have to. It's good and convenient for an unelected agency head or committee to be able to issues rules that the president kind of is in charge of but not really. But see, who's really responsible for that?

 

     Yeah, these are the same arguments that you've heard for the administrative state for the unelected bureaucracy, for unaccountable commissions. And I just don’t buy that. I just don’t think that good things come from that. I don't think it's shocking that you see trips to Europe for AGs and their spouses, for leadership retreats, when no accountability really exists in this organization.

 

     And I just think that it is the -- I think that that set of core things really is what rubs me the wrong way, in addition to the fact that I think the existing system for consumer protection disserved consumers and should be broken.

 

     But beyond that, the defenses that you hear -- so all of this just, to me, if you come to a FedSoc conference, you're hearing, "Oh, this is how people defend the administrative state; this is how people defend unaccountable bureaucracy; this is how people defend making decisions outside of what we would normally say is separation of powers; this is how people defend the creation and operation of the CFPB. You see, if you just remove all of the strings, it'll all go great because I'm doing the Lord's work over here." And I don’t but it. And when you have defenses like, "Well, it's bipartisan," I'm unmoved by that. I'm just unmoved by the concept that something that feels like a weird, shady, money-moving operation outside of the government is okay if it's a shady bipartisan operation. [Laughter]

 

     And I truly mean that. I think that that just doesn't -- that doesn't move my concerns. A lot of the criticism from NAAG has come from conservative AGs. I think those conservative AGs are doing groundbreaking work in consumer protection, right? But I think that the problems at NAAG are not necessarily a partisan issue.

 

     Okay. Transparency. I just beg to differ that there's any transparency here at NAAG. NAAG is a non-profit that doesn't file a 990 because it has an IRS declaration that says that it is an instrumentality of the states. But it's not subject to legislative oversight, public records compliance, budget requirements, joint budget committees, or any of the rules that would come with government. So it's just an alter ego existing in free space in between both words, claiming the benefits of both worlds and none of the costs.

 

     And I just don’t think that should be how we run government. I definitely don’t think that's how state AGs should be operating. And I don't think it serves consumers—every day people in the states—because that's how we built the system that has gotten us to where all of us assume that we're not going to benefit from state settlements. Why is it that states are so slow? Why is it that states don’t seem to be on the cutting edge, and they're always sitting at the table with trial lawyers? I just think NAAG -- I mean, one simple example: John and I, as a core disagreement, as very good friends, we both have the same problems. I don't think that when municipal claims and class actions claims settle first, and the lawyers take 30 percent of the money and feed it into left-wing politics, that is a feature. I think that is a problem. Jonathan thinks that NAAG can help stop that. I don't. And one fact I will cite is that the NAAG Consumer Protection Conference that was here in D.C. last week, by my really rough count, there were over a dozen left-wing trial lawyers from major D.C. political shops. And that damn near outnumbered the number of conservative staff at this event.

 

     And so if NAAG is this solution to the trial lawyers, why are the trial lawyers so happy to come to NAAG? Anyways, so to me, I dispute the benefits of NAAG. Even if you accept the benefits of NAAG, I don't see the same world that he just described. I see something that feels very, very outside the box in a way that should make all of you who've spent any number of years here feel deeply uncomfortable and see red flags everywhere, as a first principles matter, as an ethics matter, as a good-governance matter, as a belief in the rule of law matter. None of this should make you feel good, even if the end result is overlook it all; it's in furtherance of goodness.

 

Hon. Stephanos Bibas:  And let's hear from Mr. Toth on the insider perspective.

 

Mr. Chris Toth:  Well, good afternoon, everybody. And a sincere thank you to The Federalist Society for inviting me. It's a real privilege to be here, and it's a real honor to be here with my three fellow panelists. Great individuals. And particularly, Jonathan Skrmetti. Congratulations on your recent appointment as Tennessee AG. And I mentioned this to you earlier, but Tennessee very well may have the finest line of attorneys general of any state in the union. So you really inherit a great position with great predecessors.

 

     And I will say that one of the best conversations I ever had at NAAG was sitting next to you at a chief deputies conference, where we talked about future NAAG work in the area of cyberspace and in emerging technologies, and you had some great ideas. And we look forward to your leadership with NAAG in those arenas. So thank you.

 

     All right. I think the value that I can bring to this panel is talking about how NAAG really works. For 18 years, I took the Metro. I got off at Farragut North, walked four blocks to NAAG office, and I know how NAAG works. And so I think that that's a benefit to provide you. There's been a lot of misconceptions, a lot of confusion about the way NAAG really operates. So I'm going to talk about what is NAAG, how is it governed? I'm going to talk about multi-states because I think that will clarify a lot of the confusion here. And finally, I'm going to talk a little bit the funds, their purpose, who they serve, how they serve them.

 

     So first of all, as O.H. mentioned, NAAG is not a 501(c)3. It is considered by the federal government an instrumentality of the states. And it's a very unique designation that probably only two or three organizations other than NAAG have in this country.

 

     NAAG is governed by the AGs, not by the staff. It has a 12-person executive committee, basically its board of directors, which is bipartisan, and its composition varies from year to year. In 2020, we finished a succession of three consecutive Republican attorneys general. And during that time, the board of directors for NAAG was either 93 or 84 Republican. NAAG is just finishing two Democrat presidents in a row. And during this time, NAAG has been about 7-5 Democrat. It would be 6-6 R/D if not the fact that a Republican attorney general, who's scheduled to join the board in June, was impeached and removed from office.

 

     So there's a lot of effort that goes into making sure, as much as possible, the board is bipartisan. And there was a long effort that worked for many years -- and John, I think this is one of the reforms that I hear is being taken in terms of the rotation of the presidency, and I think it's a good one. As I mentioned, we had three Republican presidents in a row and now two Democrat. But before that, both my predecessor and myself were able to successfully ensure that there was a Democrat and Republican rotation–R D R D R D–and it worked for many, many years. And I think NAAG needs to put that in the constitution so that does happen, in fact.

 

     So moving on to multi-states. Now the way I'm going to use multi-states, I'm going to use it shorthand for bipartisan multi-state lawsuits. I'm not here to defend partisan multi-states, either the Rs or the Ds bring. Some of them have good points, some of them have good objectives. Some of them are legally irresponsible and occasionally, there's a few that I think are even ethically irresponsible. NAAG doesn't get involved in that world, and the funds at NAAG, the resources that NAAG has, will never be used to support partisan multi-states or any partisan activity whatsoever.

 

     But NAAG does support bipartisan multi-state lawsuits. Now Attorney General Skrmetti --

 

Hon. Stephanos Bibas:  Just a couple of examples of what a multi-state looks like for those of us who aren't in this world.

 

Mr. Chris Toth:  Sure. Well, of course, the big multi-states over the past 20 years have included the lawsuit against big tobacco, which resolved in massive settlement agreement. The multi-state in the mortgage fraud crisis. And the big one now which is -- some it has reached its conclusion, some of it is reaching its conclusion, is with the opioids. But at any given time, there could be several dozen multi-states going on.

 

     Let me talk a little bit about their structure because I think this is important because there's a lot of talk about how "NAAG", whatever that means, whether it means the staff or whether it means the executive committee is deeply involved in multi-states. Now let me say this upfront: NAAG staff do not participate in multi-state discussions on settlements. They simply provide, basically, administrative support. They schedule conference calls at the request of the multi-state co-chairs, and they will also schedule meetings when there is a request for grants from some of NAAG's investigative funds. NAAG itself does not get involved in litigation. NAAG is not a party to any of the multi-state lawsuits going on. All those multi-states are brought by the AGs in their individual and sovereign capacity.

 

     Now, in multi-states they come together to work collectively together. But they're still sovereign entities. A multi-state will start where a particular AG or two will identify some harm being done to their constituents. And then if they realize a harm is affecting other states as well, they will have discussions with other AGs. Eventually, they’ll decide to start a multi-state investigation, and sometimes it's only 12 states, but more often than not, it's 40, 45, or even 50 states. So these multi-states have strong, bipartisan support. And once again, they're the only actions that NAAG even provides administrative support for.

 

     The multi-states will form an executive committee, and that's actually more often than not elected. Usually, the lead states end up -- that are on the executive committee of the multi-states, not to be confused with the NAAG executive committee. But the lead states are those states that either have robust consumer protection departments or they're states that have been particularly harmed by the offensives of the people that are being investigated and sued.

 

     And then, they will -- that executive committee will work on a settlement, getting the input from all of the members. And, like any settlement, there's some give and take. Not everybody's going to be happy. But eventually, the executive committee will come up with something that they think they can get an agreement on. And here's the important thing, and I think it's being lost in all these attacks on NAAG in all these discussions, and certainly lost on some of the AGs that have attacked NAAG: once there is a decision that this is going to be the settlement by that multi-state, every AG has the ability to walk away. And some do. Some AGs don't even join multi-state to begin with. Oklahoma, for instance, went its own way. It was the only state to go its own way on the mortgage fraud crisis. Oklahoma also went their own was on Purdue Pharma, and they took it to trial. Every AG is a sovereign actor. They cannot be forced or compelled by NAAG, however you define that, or by their peers to join any multi-state lawsuit. It just can't happen.

 

     So this leads me to the McKinsey case, and I bring McKinsey up because McKinsey has been used as a bloody towel to wave at NAAG about, gee, this is an example of everything that's wrong at NAAG. And one of the lines of the text --

 

Hon. Stephanos Bibas:  What if our audience doesn't know what is McKinsey being sued over?

 

Mr. Chris Toth:  McKinsey was being sued over their involvement in the opioid crisis—thank you, Judge—and the consulting they were doing to some of opioid manufacturers and distributors. So the McKinsey case was settled. And it received unanimous support from all of the states who were part of that multi-state settlement. But one of the things that was used against NAAG is that NAAG received $15 million from this settlement. Why is NAAG getting $15 million when I only got $9 million or $10 million for my state?

 

     First thing, NAAG received $15 million in no other way than when your bank receives your paycheck. It's actually receiving it. It's completely analogous to that. NAAG staff, NAAG's board had no say in the multi-state settlement in McKinsey. There was $15 million that was set aside—about half of it—to repay a grant to one of NAAG's investigative funds. That grant was requested by the states to the NAAG committee, which is all AGs. And they asked for approximately $7.5 million to support that litigation. One of the terms -- and this gets back to AG oversight of everything that's done at NAAG -- one of the terms of requesting a grant from the two main NAAG investigative committees is you have to repay it if you're successful because otherwise, how do you sustain these grants?

 

     So the litigation was successful, so part of that was just repaying a grant that the states -- they requested that money, used, and agreed to pay back. And the other half was used to establish a document repository for opioid litigation. Now, I wasn't part of the negotiations. I can't give you the details on the repository.

 

It was modeled after the tobacco document repository when big tobacco was sued in 1998. But that was the decision of the deciding states to set that repository up. And the first, as an example, I heard about it was when I got an email saying you’ve got $15 million on your way, set up a couple accounts for them, repay the grant, and set aside an account for this money, and we will direct its use later. That’s coming from the AGs.

 

So NAAG didn’t receive $15 million. This was a decision by the AGs, and the first state AG who pulled out of the NAAG in 2021 raised McKinsey as his principle reason for withdrawing from NAAG. But every single state agreed to those terms. I didn’t agree to them because I don’t participate in multi-states. But every single AG that was part of that multi-state agreed to those terms. And the AG that was complaining about McKinsey agreed to those terms and even issued a press release bragging about the McKinsey settlement. And by the way, I think this is worth noting. At the same time this AG was pulling out of NAAG, they were requesting a grant from one of the investigative funds.

 

So the point I’m trying to make here before we just talk about funds briefly is that the AGs are the ones that run NAAG. And I mean O.H. mentioned that somehow the NAAG staff was turned into administrative state, and they’re all here in D.C. That’s actually not the case.

 

NAAG staff are from all over the country and work from all over the country. We started hiring from all over the country way before even COVID happened because the entire country became our talent pool. So there’s staff in Texas, Idaho, Pennsylvania, Florida, Indiana, Kentucky, New York, Illinois, from all over the place. So please rest assured there’s not a cabal of leftist D.C. citizens running NAAG.

 

And to that end too since politics was brought up, I think NAAG is a remarkable institution. And the last thing a person hears in their interview to get a position at NAAG and the last thing they hear when they get a position in their entrance interview is to check your politics at the lobby door. We serve both Republicans and Democrats. Check your politics at the lobby door. Don’t wear campaign buttons to work. Don’t be having political arguments at NAAG. Leave that at the lobby door. And the NAAG staff has been extremely honorable about it. I think the irony is that where I think many organizations within D.C. have become politicized, NAAG is the model of an organization where its staff has not become politicized.

 

And finally, I want to touch on these funds. So the figure’s now become $300 million. I don’t think it ever got above $280 million. I don’t have access anymore to NAAG’s portfolio. I would imagine with the market downturns it’s probably considerably less. But real quick how did that money come about? First of all, after the master settlement agreement was signed about $100 to $110 million at the last count of that came from a 501(c)3 being set up called the NAAG Mission Foundation.

 

So that’s not even governed by NAAG. That’s an independent 501(c)3. And again, every AG, Republican and Democrat, consented to that foundation being set up. And that foundation was set up to support training and research at NAAG and also to provide a backstop for the tobacco settlement. About $70 million of it was set up by the master settlement agreement to provide litigation support for the tobacco settlement. So that has a designated purpose.

 

The remainder of it, about $35 million of it is the NAGTRI Endowment, and that is set up to support training and researches provided at no cost to AG staff around the country. There was a time where there was very little training available for AG staff. And I hear the noise, so I’m going to speed this up. But what’s happening now is the NAAG for the last 15 years has been able to provide training at no cost because of that fund to AG staff around the country and trained up to 20,000 individuals just a couple years ago.

 

And there are two investigative funds, but once again they were set up with unanimous consent of all the AGs, Republican and Democrat, with the idea that the AGs needed some funds to try to level the playing field with big business. Let me be clear here. The AGs are the underdogs when they take on big business. Big business has pockets that are far deeper than the AGs could ever draw on. AGs are the underdogs.

 

And in multi-state lawsuits, bipartisan multi-state lawsuits, good companies don’t get sued quite frankly. This isn’t a matter as the chamber would have you think it that good companies are being sued and bullied by NAAG. If you get into the type of trouble that 45, 50 AGs of both parties are going to sue you, you’ve done something pretty bad, whether it’s the opioid manufacturers, whether it’s big tobacco lying about the health effects of smoking.

 

So I’ll just close on this. Institutions are important. And there’s been a lot of attack on institutions in general. And yes, every institution needs to be reformed and needs to continue to be reformed. But part of -- whether you’re a human being or whether you’re an organization, you figure out the things that work. And you keep them. You figure out the things that are not working, and you change them. But institutions are important, no matter how much reform they need or don’t need.

 

NAAG’s working. It’s working in providing free training to AG staff around the country and making them much better at what they do and making them better able to prosecute corruption, to enforce consumer protection laws, whatever the case is. And institutions really are the skeleton of which the flesh of our democracy is built around. And once you tear an institution down, it’s really hard to build it back up.

 

So yes, anything can be reformed. And I have full confidence that AGs like Jonathan Skrmetti of such character and intelligence will do a good job in creating whatever reforms need to be had. But let’s remember I hear what O. H. is saying. But AGs control everything that is done at NAAG through the board, through various committees. And the staff takes their marching orders from the AGs. So institutions are important, and if you lose them, it’s hard to get them back.

 

Hon. Stephanos Bibas:  Thank you. Let me give each panelist a chance to briefly respond to things that have been said since they spoke. General Skrmetti.

 

Jonathan Skrmetti:  Thank you, judge. I want to say first I am mortally wounded by O. H.’s comparison of this to the administrative state.

 

Oramel H. Skinner III:  I knew that would hurt -- I hurt you. That would hurt you deeply.

 

Jonathan Skrmetti:  Mortally wounded. I came into office with a list of things I wanted to do, including reinvigorate the nondelegation doctrine, overturn Wickard v. Filburn, make sure that the spending clause is appropriately enforced. So that hurts. That hurts.

 

Oramel H. Skinner III:  You’re welcome.

 

Jonathan Skrmetti:  What we’re really talking about here is a contract negotiation. It’s a contract with a bunch of different parties. And I’m going to limit what I say to the mega cases that O. H. talked about, and opioids is an example.

 

In opioids I assure you we did not all want to be at the table together. The plaintiffs’ lawyers would much rather we not have been there. We would much rather they not have been there. We were stuck together because everybody had a finger on the nuclear trigger. The exposure was so big in those cases that if there wasn’t a global resolution of liability that involved virtually everybody -- there was room for a little bit of defection from some of the states, especially if it wasn’t one of the larger states. There was room for a little bit of defection from some of the municipalities that the plaintiffs’ bar had.

 

But if there was any sort of cascade of people actually going to trial in these cases, all the companies would’ve gone into bankruptcy. We would have been in bankruptcy court. There would have been a huge disruption to the American economy, to the healthcare provision in the United States. It would’ve been really bad.

 

And yes, the market would’ve solved for that eventually. But there are real human costs to that hiccup. And there’s a big just loss of money if we don’t handle these things efficiently.

 

The other issues is when we’re splitting up a multi-state and everybody’s working together to streamline discovery, that’s because you’re asking for basically the same stuff. Now, if you have 50 groups of lawyers doing their own discovery requests, there are going to be differences. The variations are going to cost a lot of money to resolve on the part of everybody who’s getting those requests. If we do a common interest agreement, that’s not the administrative state. That’s us doing things more efficiently, which seems to be important for the government to do.

 

And this isn’t the kind of efficiency where it’s like, oh, well, if we have to go to Congress, then that’s just a pain. So we’re just going to do it ourselves. This is 50 sovereigns agreeing to work together to accomplish essentially the same end in the most efficient mechanism possible.

 

The one last thing I will say is there’s a federalism component here. The AGs are more effective. The state AGs are more effective when they work together. That let’s them more effectively assert the state interests in the broader system that we have. If the states are fractured and they’re not able to consolidate their efforts, that empowers the federal government. And then we have more concentrated power, and I think everybody in this room knows that that’s just the fundamental cause of bad government.

 

We have a crazy system involving a lot of separate sovereigns pursuing a lot of different interests. We need that system. It’s a good system. Within the confines of that system voluntary cooperation can be efficient and effective. And it is a good thing in many circumstances.

 

Hon. Stephanos Bibas:  Mr. Skinner.

 

Oramel H. Skinner III:  Yeah. So I think it’s important to accept and set aside this first I would say -- this point of long running discussion between Jonathan and I who are longtime friends. I don’t see as much value in everybody working together in most cases. But let’s -- I don’t think that necessarily has all the values. But let’s just work past that to -- even if everybody should be on the same phoneline together, what is the thing that is so odd here?

 

It’s this neither fish nor fowl thing that has been built and stuffed full of money. And now you have -- I hate to try to seem younger than I am. It’s the Spiderman meme. It’s the staff at NAAG saying, well, I don’t know how those hundreds of millions of dollars got here. We aren’t a party to the case except for the part where we got all the money from the case, which I hear that.

 

Then you have the AGs who will tell you that trying to bureaucratically be the board governing -- because saying nobody at NAAG -- none of the board members of NAAG were members of these cases, I don’t know if you meant that. The AGs who are negotiating the settlements are the board members for NAAG. This is the third party payments from DOJ but to an organization in which Loretta Lynch and Eric Holder and Barack Obama are the board. That’s weird. So they’re pointing the fingers back and being like how did this all happen?

 

I think it really just comes down to accountability. That was mentioned. You know, look. The accountability is missing in all of the key ways that I think accountability should exist. There are only -- there are plenty of instrumentalities of this state as declared by the IRS that exist out there. I think it’s far more than two or three.

 

Let’s just use like the port authority of New York and New Jersey; right? It’s like kind of governmental. It’s also kind of not governmental. It carries out a thing across state lines. But here’s the thing. It was set up by the legislature and given power, and then it went to the IRS and said can I not file a 990 because I’m kind of the government? Okay.

 

Well, NAAG wasn’t set up by the legislature. There is a legislature in each one of these states. They didn’t appropriate money to NAAG. In fact I would say that the money being sent to NAAG was specifically to avoid the legislature. In Arizona we have a revolving fund that can fund cases, and I know not every state does. But that’s the answer. Or if you think NAAG is so deeply salutatory, just get your legislature to appropriate money for it. And now we’re having a fundamentally different conversation. We’re having much more of the first conversation. Is a self convening organization full of money important?

 

But we don’t have that. And I think that the Mission Foundation is a separate (c)3. The sole member of the Mission Foundation is NAAG; right? This is just a thing where if the legislatures appropriated money to set up a New York/New Jersey multi-semigovernmental body that holds money and can lend money and that is somehow accountable to a comptroller or a treasurer or an auditor or the state legislative budget committee, now we’re just having a question of that -- I would say that’s actually more analogous to the administrative state at the federal government level. This is like three standard deviations away from that.

 

A public official sets up a sidecar entity that is run by staff that are not employed by the state but are instead employed by public settlements with no legislative budget oversite committee, auditor committee. It invests money. It lends money. It purports to have no role in these cases but yet has binding contracts requiring repayment from the states. I just -- everyone is pointing figures at everybody. And I’m not here to tell you who’s good. I am here to tell you that even if you think a convening organization is deeply beneficial, NAAG should release the hundreds of millions of dollars that it has and is investing and serve that purpose.

 

The last thing I will note that is I think -- two notes. The McKinsey opioid settlement is instructive because you heard about how there’s an executive committee and then there’s passengers in a case. I think that’s kind of a fair description. The McKinsey opioid settlement is negotiated by a ten state multi-state executive committee, eight Democrats -- California, Colorado, Connecticut, Massachusetts, New York, North Carolina, Oregon, and Vermont -- two Republicans -- Oklahoma and your predecessor in Tennessee.

 

When they negotiate a $650 million deal and then say at the very end $15 million is going to go to NAAG, yes, everyone can walk away. But you now have for all of these elected officials a $650 million deal where the problem with it feels like a rounding error, but it’s not surprising that over the course of time that pebble grew in their shoe. And they did not think that that was a fair way to do this or that that was a normal, equitable bipartisan negotiation. It doesn’t surprise me, and I think that was what you see time and time again.

 

Another thing I will say is these multi-states, we’re talking about mega cases. My concerns with these are they just settled a Ford truck capacity multi-state that I just always like talking about because it was around when I came into the Attorney General’s office. I left five years later; it was still around. I’ve now been in my new job for over two years, and it just settled for $19 million across 50 states about model year 2011 trucks.

 

That’s the problem to me, and that’s your average multi-state. I think there’s over 50 of them happening right now. So occasionally we talk about opioids, or we talk about tobacco. And you’ve got to remember that there’s hundreds of cases in the meantime that are dragging on for a decade with an executive committee that is being entirely driven by a few states and then negotiating deals and giving take it or leave it deals and sending money to NAAG.

 

So the last thing I would say is I have my own questions about the value of the way that NAAG does it’s training. But I will just note this one thing for the NAAG website. Most faculty of NAGTRI are AG staff from AG offices. And when you look at the trainings, it’s repeatedly the biggest overstaffed offices in coastal cities doing Zoom trainings or flying around the country teaching other states how to, I would say, think like everybody the same. And I think that that existing system is not good and doesn’t serve a good purpose. I don’t think it means bad. I just think it doesn’t serve good purposes.

 

Anyway, I’ll just end with saying at the end of the day if the states all get together and decide to pour a bunch of money through the normal legislative approval process into something that has actual government oversight and like somehow run consumer protection that way, I think we’re having a different conversation. But they didn’t, and this thing is pretending to be both everything and nothing at the same time while shepherding a quarter billion dollars. And I think that is a very big problem.

 

Chris Toth:  Thank you, judge. A little bit more about the investments, why are these amounts so big? So NAGTRI endowment for instance has $35 million. Sounds like a ton of money. But if you use it all at once, you’re not going to be able to train people for very long. So the way the NAAG operates, whether it’s the things that the Mission Foundation funds like training or the NAGTRI Endowment funds, training and research, only the investment income from that is used.

 

And the idea is this. And I think this is -- a consummate form of good stewardship is that when you have funds like this and you only use the investment income that means those funds will be there as long as there is a NAAG and as long as there is a United States to make AG staff better at what they do. So that’s why the funds are as big as they are, just like a university endowment in some ways in that you use the investment income so that in perpetuity can provide free trainings, free moot courts, and an incredible amount of other services as well.

 

And an issue with these funds, I wasn’t there for the creation of most of them. But as I said they were all done with the unanimous consent of all the AGs. So to the extent that, O. H., you have a problem with these funds, then it’s like for whom does the bell toll? I mean, the AGs agreed to set up these funds. And there was no dissent. For the ones that were created while I was there, there was no dissent. Everybody thought it was a great idea because they liked the idea. We want to have something so that five AGs from now NAAG can still be providing these services. So that’s part of it.

 

And then the other issue is, O. H., you wrote an article that said that my successor should be worried about a knock on the door where people want these -- where states want these monies back. Well, the first thing my successor is going to do is say, I don’t have the authority to do anything with these settlements. You have to talk to the NAAG executive committee. So if there is a knock on the door, there’s no much that Brian Kane is going to be able to do to respond to that.

 

But here’s an important point too. Whether you think it was a good or bad idea, all these settlements and all these funds were set up. And now they exist as part of court orders. So every -- and it’s dozens of court orders that are involved here. So the idea of the states trying to get money back is kind of -- it’s dead at the beginning because that would require all the participants in all these settlements to go back to the court and say, we changed our mind. And let’s be realistic. That simply is not going to happen. Whether you think it should happen or not, whether it’s a good thing or not, it just simply isn’t going to happen.

 

So I think that’s an argument that only takes you down a rabbit hole and it doesn’t create anything substantive. But I want to emphasize these monies are being used for good things. They are improving the institution of attorneys general. They are making both them and their staff better at what they do. And it’s not only them; it’s about them now, and it’s about AGs in the future.

 

Hon. Stephanos Bibas:  So let me --

 

Oramel H. Skinner III:  Can I --

 

Hon. Stephanos Bibas:  Briefly.

 

Oramel H. Skinner III:  So I think this is now that -- because we have a bunch of nerds in the room. So I think a core thing here is it’s not shocking -- I mean, the idea that AGs have created a perpetual capital pool, like, I think that just proves my point.

 

But on this last point, I think this is really interesting. These funds have been set up with NAAG through various court settlements in which private parties come to the judge and say, we’re sending all this money around, sign this off. I don’t think judges are inclined to say, is the attorney general of some state violating the law of that state by sending money to a third party? It’s not being raised to them.

 

But if -- like Brian Kane, the new executive director of NAAG, was driving down the street in a car that said like NAAG official business and ran over a whole line of school children and there was a judgement against NAAG to the tune of, I don’t know, like $100 million, I think NAAG defending and saying sacré bleu. We cannot give you this money. You see, thirty years ago, this judge, they gave us this money, and they said that we should hold that money. So the money, you’d have to go back and like amend the judgement.

 

I think if you were to go back and challenge the legality of giving money to NAAG, yeah, you might have to Rule 60 that. Not sure that the private parties that gave the money and were never going to get the money back in any sort of circumstances are related parties. We can have a discussion about that another day. But if you were to just bring an action today that said this is public money from a public settlement overseen by public officials and it’s being invested not in compliance with state law or held not in compliance with state law and every new day is a new violation, then we’re not going to dispute how the money got here in the first place or who’s liable for what. But you can’t hold that anymore.

 

It’s not at all clear to me that that is a collateral attack on any sort of judgement. And I wouldn’t be surprised to see a state actor of some variety because keep in mind there’s a lot of people who might feel very perturbed about not having oversight of a quarter billion dollars because we have a lot of arms of government that are supposed to watch public money. So I don’t think it’s a cul-de-sac. It would not surprise me if there are efforts to retrieve the money from NAAG. And I think those efforts will be interesting to civil procedure people all across the country.

 

Hon. Stephanos Bibas:  So let me kick off with a few questions, and then about seven, ten minutes we’ll take -- we’ll have some time for questions from the audience. So start thinking them up. The first one is there’s the cover story, which is this is political in a left wing sense, and it sounds like there’s a trial or component. But the deeper problem here sounds like it’s more political in the sense of avoiding or having unusual structure relative to ordinary separation of powers.

 

Now, this gets a little complicated. State constitutions look different from the federal one. They have different internal rules about balanced budgets and funds and things. But is this just another version of the problem with settlements generally, with dissent decrees generally, with the feds having to limit deferred prosecution agreements where the prosecutor directs money to his alma mater or something? Is this just a different iteration, or is there something special here about NAAG’s involvement that makes it worse?

 

Oramel H. Skinner III:  I feel badly saying this because many people in this room work for AG offices and are my friends. But I think it’s worse because if you have a third party payment situation -- I think that’s what you’re getting at. But this is a third party payment to an organization controlled by the public officials negotiating the third party payment, at least according to how Chris is describing NAAG.

 

And look, I’ve never worked at NAAG, so from the outside it feels like NAAG staff have a lot more control. When you’re in an AG’s office, Chris is describing how the board is governed and who makes decisions. But under Chris’s universe, this is AG public officials sending money from public settlements to a nonprofit organization that they run, which is third party payment plus whiff of self-dealing. And so I think it’s worse.

 

Hon. Stephanos Bibas:  So is there an internal perspective where kind of the topline story isn’t as bad as Mr. Skinner’s making it out to be? Do either of you want to respond to that?

 

Jonathan Skrmetti:  So I think -- and I’m not a hundred percent on the history here, but I think this started with the tobacco settlement.

 

Hon. Stephanos Bibas:  Correct.

 

Jonathan Skrmetti:  And there was an act of Congress that established I don’t know if it was the Mission Foundation or -- there was an act of Congress that shunted a huge amount of money to NAAG and created this fund. And then a lot of mirror funds were set up through a Cy-près type process. Now, that’s something that people have been paying a lot more attention to lately. I think at the time my suspicion is the thinking was, oh, well, it happened in tobacco. This is great. Let’s keep doing it here, and we’ll create this fund and this fund. One of the transparency problems at NAAG right now is there are a lot of different funds with different boards. And a lot of people aren’t quite sure of exactly what’s going on with all the funds and all the money.

 

I realize there are deeper problems that O. H. is addressing. But that’s certainly something that I’ve heard about from my colleagues. I think having a better conceptual framework given some of the work that Arizona did under O. H. looking at these settlements and third party payments, I mean, I certainly feel very differently about that than I think I probably would’ve if I were there 20 years ago and we were just reiterating on what had been done in tobacco.

 

I don’t know about the moral issue relative to third party payments to other groups. If you’re giving money to a group that’s got an overtly or implicit political bias and you’re trying to help your political allies, there may be some more moral culpability there. I think with NAAG because there were the existing structures, I mean, there really is a good faith belief by the people who set these up that this is money that’s going to fund additional consumer protection.

 

However, there’s been a lot more conversation about state constitutional structures, a lot more people looking at their individual state constitutions. And there are different states that have different problems in terms of how this stuff is structured. Some people don’t have any problems. Some people have problems related to third party type payments. Some people have other types of structural problems based on prohibitions on debt and how they’ve been interpreted in their states. Because you’re talking about --

 

Oramel H. Skinner III:  Can you explain about that?

 

Jonathan Skrmetti:  So there are a lot of state constitutions that say the state can’t incur a debt or that there are particular mechanisms allowing the state to incur a debt. And depending on how those provisions are written in an individual constitution and how the various state courts have interpreted those provisions in different states, there may be a problem with repaying grant money to NAAG for some states that are out there.

 

I mean, it is complicated; right? State constitutional law is complicated and very underappreciated. This is dealing with some really deep structural issues that I don’t think people are really thinking about when all this stuff was established. It’s going to take a while to vet through everything and figure out exactly where the problems are because you’re talking about a 50 state survey plus the territories of these individual constitutions and their provisions.

 

I think as we engage in the reform efforts -- and I’m not going to speculate about exactly what’s going to happen, but I think a lot of people are very concerned about both the structure and the amount of money involved. But as we work through that it’s going to take a lot of work by each state to figure out what the constitutional limitations are and the statutory limitations are on their ability to participate.

 

But I want to reiterate, even with those complications, there’s still a huge incentive to figure out how to work together. Even if there’s no money flow other than dues money that pays for getting everybody around a table once or twice a year so they can know each other so when they have to do those calls to get cases going, it’s worth it. The relationships have value, and maintaining those relationships, even if it’s only for one case every few years -- if you’ve got these mega cases hopefully not coming up too often -- there is real value in people working together.

 

Hon. Stephanos Bibas:  It seems like actually one thing people aren’t talking about is what the role of judges is here in approving these settlements, in cy pres. Maybe the bench deserves more responsibility for signing off on these things. Maybe we need devil’s advocates or other people to kind of question in the way that people criticize class action settlements generally. We don’t have Ted Frank here, but some of these are pathologies that --

 

Oramel H. Skinner III:  Ted Frank’s right there.

 

Hon. Stephanos Bibas:  All right. All right. Okay. Some of these get talked about in other contexts. But I wonder -- let me ask you, Mr. Toth. So there are critics especially on the right going around criticizing these universities that build these enormous endowments and don’t use them and proposing there ought to be some kind of tax on accumulation. Well, should the same thing be done here? Has it just gotten accumulated to the point that this ought to be spent out for the purposes of helping the citizens of these states? Because it does seem like $280 million is still a lot more than needed to permanently fund education and some documents and things like that.

 

Chris Toth:  Well, our budget, by the way -- I’m sorry, old habits die hard. NAAG’s budget by the way is actually closer to about $12 million, not five. So in fact all the investment monies are being used. Trust me. As NAAG’s executive director I wanted to spend just about every dollar much to my CFO’s angst, by the way -- to spend every dollar of disposable income we had because our goal was to provide as many services as we can to the attorneys general.

 

So I wanted to make sure that money was put to good use. And I think that makes NAAG’s assets, judge, unlike some of the more extravagant university endowments that it sounds like aren’t being used, but every dollar that can be used that spins off from investment income at NAAG is being used.

 

Hon. Stephanos Bibas:  Any other responses?

 

Oramel H. Skinner III:  I guess the one thing I do want to say is I don’t -- I think that this was built by accident probably. And when I say it has this whiff of self-dealing, I want to be very clear because many of the attorney generals are my personal friends that I don’t think that was the intention. But I do think that it’s hard -- and some of this they signed off, they signed off -- amongst the many things in a person’s job when somebody comes to you and says this century old organization has been for the last 30 years running this lending and repayment game -- and it's cool. It’s great. It’s fine.

 

I think when people started growing upset with the liberal tilt they started asking some core questions like what exactly is happening here, and how does any of this comply with my state’s laws? And then they might’ve had that oops moment that has happened to maybe all of you who’ve taken over a job where you realize that maybe your predecessor didn’t actually do their homework or think that much about it because it was all for good. And so I just want to be very clear that I think they built a probably not very viable or thing that should exist. But I don’t think it was like this self-dealing.

 

Now, I think that it’s not shocking that when you remove all the safeguards all of a sudden they’re flying to London. Like, I think that’s just natural. I mean that, and I don’t mean that in a flip way. I just mean when you remove the safeguards, creep happens. And all of a sudden the training becomes the leadership training. And then the leadership training becomes London because we need a quiet place that’s removed from the partisan politics.

 

I’ve read the email that invited people to this, and they literally use those words. We need a quiet place away from the partisan politics of America to talk about the Magna Carta in August in London. I just think that happens; right? But that’s why checks and limits are important because when you pull the string away, like, it happens. And I don’t think it’s meant -- I truly mean it. I don’t think that they’re like sitting there like Scrooge McDuck. I just think when you remove all the limits and the rules and the restrictions and the accountability you get this. And I don’t -- and so I just want to be clear that I don’t think this is a true sacking away money in a pillowcase kind of a situation.

 

Hon. Stephanos Bibas:  All right. We have time for questions. Here are Judge Bibas’ rules for questions. You state your name. After that, you get three sentences. They must in form and in substance end with a question mark.

 

Ted Frank:  Ted Frank, great panel. Not going to mention cy pres. First, why can’t a state legislature -- any of the state legislatures just perform the investigation and oversight? And second, I never heard the words compact clause mentioned. Does that have any impact here, especially with an originalist Supreme Court?

 

Hon. Stephanos Bibas:  All right. Oversight, who wants to talk about oversight?

 

Oramel H. Skinner III:  It is entirely conceivable to me that in the next 12 months you will have a legislative committee come calling when -- I think when I wrote about the knock on the door, there’s a lot of people who would be concerned about this. And it’s been an election year, and legislatures are part time in fair states. But I don’t think there’s anything that stops them. I don’t think there’s anything that stops them.

 

And compact clause, look, I mean, if I thought this were actually anywhere near them doing anything formal like that -- but it’s an unincorporated association in Washington, D.C., where individual settlements have sent it money. I just think there’s deeper flaws and problems here before you even get there. I think Jonathan is right -- sorry, Attorney General Skrmetti is right that the thing that’s going to drive a lot of this is I just don’t think this flies under most states’ constitutions.

 

I’m totally willing to acknowledge that there could be a wildcard state constitution that is totally fine with money being directed to this kind of an organization and lent -- I mean that. Our states are different. Okay? But I know that there are states that say, like, public money from public settlements must be distributed into public bank accounts. And no, the attorney general cannot borrow against the state, or no, they have to record -- like, there’s just a lot of rules in most states. So I just don’t think it gets anywhere near the truly, deeply compact clause kind of a question.

 

Hon. Stephanos Bibas:  Would either of you like to say anything on either of those?

 

Jonathan Skrmetti:  The one thing I would add is there’s a level of complication here because though you have negotiations that reach these big settlement agreements each state individually is contracting with respect to its own liability. And it gets really messy. So I’m going to refrain from going on because I’ll just drone on, and the complications are too boring for the current discussion.

 

With respect to the compact clause, this just isn’t formal enough. It’s a series of ad hoc agreements along with the Kiwanis Club at which we all have conversations about making these agreements.

 

Hon. Stephanos Bibas:  All right. Mr. Toth, anything you wanted to add briefly?

 

Chris Toth:  I just want to address the issue of the idea of states violating state law when they ask for a grant that they have to repay through a settlement. I’m not an expert in all 50 state laws, and certainly every AG wants to act in concert with their state laws and adhere to them. So if there are conversations to be had with that, they should be had. I don’t object to that.

 

But let’s back up for a second. Before that state asked for that money, maybe they need to look at their own laws and maybe not be the person that’s requesting the money. And the state that’s part of the multistate that doesn’t have such a prohibition asks for it. But these are issues for AGs to resolve on a state by state basis. They’re not NAAG issues.

 

Hon. Stephanos Bibas:  All right. Sir.

 

Coach Weinhaus:  Coach Weinhaus from UCLA. Do you think the grouping together of states to negotiate with defendants is by its very nature conservative for the preservation of the existence and non liquidation of the defendant in these actions?

 

Oramel H. Skinner III:  I have trouble with all the states grouping together -- sorry, I have trouble with all the states grouping together because I just don’t see evidence that -- I have problems with that. I think that what you’ll see if you read anything that I’ve written, what you’ll see next week, is I think states should just be far more aggressive in being the primary problem solvers. I just think that if the states moved faster and more aggressively and thought of themselves as first movers, many problems in the consumer space would be resolved. And consumers would be better off.

 

I am very pro-AG activity in resolving problems. My gripes are 12 year multi-states over $19 million. Jonathan and I have had a discussion about this many times, and he's probably heard this analogy far too many times. I think states become fixated -- the multi-state process becomes fixated on the investigation. It’s staffed 12 layers below a politically accountable elected official where the investigation is the purpose. Case maximization is the purpose. And they’ll spend eight years to ring an extra 5 percent out of an existing $19 million case while they’re letting $12 million cases, $50 million cases float by on the ocean not being resolved by the states. That is the thing that bothers me to my core. And I am constantly trying to advocate for more activity because I think states are the best solution for how to help consumers in a lot of these cases.

 

Hon. Stephanos Bibas:  All right. Mr. Toth wants to --

 

Chris Toth:  All right. Let’s go back to why NAAG was formed, 1907, Standard Oil Trust. General Skrmetti talked about this very eloquently. It was a very, very powerful force that the AGs knew they couldn’t take on themselves. Kind of the elephant in the room here for me -- and I speak not as a former executive director because I wasn’t involved in litigation, but I speak as somebody who observed AG litigation for 18 years.

 

The elephant in the room here is that if AGs act individually, they are much less likely to be successful when they are taking on huge companies that have acted badly. That’s what bad actors want. They want to take on states individually. They don’t want to take them on together. The reason the tobacco settlement happened is all the states came together. They couldn’t have pulled that off individually. Same with the opioid litigation.

 

I disagree strenuously, O.H. We would not have seen the results if the states didn’t band together because when they band together, much like when they banded together against Standard Oil, they are a force to be reckoned with. And as I say again, the AGs are always the underdog here. Even with the miniscule resources that NAAG has, it nowhere compares to the resources that the AGs they’re taking on have. So I think it works much to the benefit of the citizens of this country to constituents when the AGs do band together.

 

Oramel H. Skinner III:  Just one point. This is a really interesting conversation because I think Jonathan makes very -- Attorney General Skrmetti makes very good points about how a defendant should prefer NAAG. And I think Chris makes very good points about why individual states have different strengths and weaknesses against companies. And I just want to note that this first question is a very interesting question that I have strong opinions on. But this is a very philosophically interesting question for another day.

 

Hon. Stephanos Bibas:  Okay. Ma’am.

 

Questioner 1:  Okay. Yes. Most states have fiscal laws that require all funds to be deposited into the public treasury, and they may not be expended other than by appropriation. Now, you have said in this discussion that the first funding of this goes back to tobacco. How does that congressional law creating this fund override the states’ responsibility that the money goes into a public fund and may only be expended by appropriation?

 

Jonathan Skrmetti:  So I can’t speak to tobacco other than maybe there was a supremacy clause interest there. I really don’t -- I’ve not done a deep dive on that. With respect to the other funds, they don’t hit the state coffers. And I think that’s been the workaround that people have relied on is you enter this contract to resolve the case. Then you have a separate settlement agreement with respect to your specific state’s case against the defendant. The defendant sends you whichever amount of money is allocated of the total money. That’s what’s reflected in the individual state settlement agreement.

 

And so the thinking has been I keep the money that comes into the state and put that into the general fund or take out whatever expenses the law allows me to reimburse the AG’s office for spending and then put the rest into the general fund. But all the other money out there is none of my business. We reach the global settlement, and then we have the separate settlement agreement that’s legally binding on the state but that only reflects the portion of money allocated to the state. And so there’s a lot to talk about there, but I think that’s been the understanding of it by and large.

 

Hon. Stephanos Bibas:  And we have time for our final question.

 

Hans von Spakovsky:  Hans von Spakovsky, the Heritage Foundation. The real elephant in the room is something you all really haven’t talked about. Everything has been about going after big corporations, but the big problem -- the other big problem states have is federal intrusion into state sovereignty with huge numbers of federal programs. NAAG has been almost totally absent in that, and the organization that has coordinated that is RAGA, the Republican association. So why would conservative states -- why should they support NAAG instead of sending their dues to RAGA and supporting RAGA?

 

Jonathan Skrmetti:  So first of all very good points. I will say -- and this is something I’ve noticed from my colleagues, and it may be ephemeral. There is a new appreciation for federalism post Dobbs coming uniformly from across the political spectrum. I think the initial shock of the decision in some quarters has been replaced by an appreciation that whatever crazy things Tennessee does, it’s not going to affect people in California.

 

And so you’re going to laugh at me. I’m going to be naïve about this. Three years from now you’ll remind me of this, and it will be very embarrassing. I think there’s an opportunity to get everybody moving in the direction of looking out for state interests. The federal government scared the heck out of a lot of liberal states when Trump was president. And there are some concerns that we in The Federalist Society have had for decades that are getting more traction on the left. And NAAG is an opportunity to keep conversations going.

 

There are not a lot of opportunities. We’re so siloed in so many conversations. And now is the time to evangelize federalism as a principle. I think NAAG is a really good vehicle for getting all the states to look into that. And ideally I would love to see NAAG sue the federal government regardless of which party is in power, advocating for state interests, pushing back against federal overreach, and ensuring that our system of separation of powers is taken seriously.

 

Chris Toth:  General Skrmetti, just to clarify, though, it wouldn’t be NAAG suing the federal government --

 

Jonathan Skrmetti:  It would be the members of NAAG.

 

Chris Toth:  -- because that’s where some of the confusion is. Yeah, and I know you know that. But it would be the individual AGs collectively.

 

Jonathan Skrmetti:  Yeah.

 

Hon. Stephanos Bibas:  All right. And with that please join me in thanking our panel. That was fascinating.

11:45 a.m. - 1:30 p.m.
Navigating Business Challenges in Red and Blue States

2022 National Lawyers Convention

Topics: Administrative Law & Regulation • State Governments
District Room (Lower Level)
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006

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 In the last decades, American businesses have faced growing challenges from within and without. For years, many “blue states” have adopted policies to encourage or even impose social and environmental requirements on companies. Those companies faced a choice: either adopt and manage multiple policies in different states, or adopt the most inclusive version in order to maintain internal consistency.

At the same time, some American corporations began explicit efforts to exert influence on political, social, and cultural issues unrelated to their core business. Companies, particularly financial institutions, started issuing proclamations on non-business matters and changing their business to match, declaring that they would no longer deal with XYZ industry, product, or type of energy production. 

Faced with growing market threats to critical state industries and natural resources, “red states” began to respond, passing laws to counter corporate and state efforts they view as politicizing business. This new pushback is significant, but it complicates matters for in-house counsel trying to navigate the competing obligations from red and blue states. Join us for a panel of experts to discuss these issues and examine possible ways to move forward. 

Featuring:

  • Mr. Chad Boudreaux, Executive Vice President and Chief Legal Officer, Huntington Ingalls Industries
  • Ms. Elisebeth Collins, Former General Counsel, WWE; Former Deputy General Counsel & Chief Compliance Officer, Caterpillar Inc.; Former Assistant Attorney General for Legal Policy,  U.S. Department of Justice
  • Mr. Harold Kim, Chief Legal Officer and Executive Vice President, U.S. Chamber of Commerce
  • Ms. Cheryl Stanton, Chief Legal and Government Affairs Officer, BrightStar Care
  • Moderator: Hon Theodore W. Ullyot, Partner, Torridon Group

Speakers

11:45 a.m. - 1:30 p.m.
Render Law Unto Congress and Execution Unto the Executive: The Supreme Court Rebalances Constitutional Power

2022 National Lawyers Convention

Topics: Federalism & Separation of Powers
State Room
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006

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The Roberts Court is recasting the administrative state according to its view of the separation of powers. It is giving the President more authority to fire his subordinates and creating a hierarchical executive where the President and his principal officers have more authority over appointments and decision making. It is forcing the legislature to speak clearly when it wants to vest agencies with major powers and expressing interest in reinvigorating limits on some delegations of legislative power. It is strengthening the judiciary’s interpretative role, declining to give as much deference to regulatory interpretations by agencies. Is its view coherent and sound? Should the Court square its vision with a modern government that was formed on different principles? If so, how?

Featuring:

  • Prof. Aditya Bamzai, Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, University of Virginia School of Law
  • Hon. Thomas B. Griffith, Special Counsel, Hunton Andrews Kurth LLP; Former Judge, U.S. Court of Appeals, District of Columbia Circuit
  • Hon. Sally Katzen, Professor of Practice and Distinguished Scholar in Residence; Co-Director of the Legislative and Regulatory Process Clinic, New York University School of Law
  • Prof. Nicholas R. Parrillo, William K. Townsend Professor of Law and Professor of History, Yale Law School
  • Moderator: Hon. James C. Ho, U.S. Court of Appeals, Fifth Circuit

Speakers

Event Transcript

Hon. James C. Ho:  -- at the New York University School of Law. As I said, she'll offer a rebuttal and argue that the Supreme Court's recent trends are flatly incompatible with modern realities of American governance. So with that, I will hand over the microphone to Professor Parrillo.

Prof. Nicholas R. Parrillo:  Thank you very much, Judge. And thank you to The Federalist Society for the opportunity to be here today. 

So I'll talk about how the Supreme Court is reforming its approach to executive power, particularly the president's power to remove officers and legislative power. That is, limits on congressional delegation to agencies and relatedly, the major questions doctrine. Now, these two lines of cases differ from each other in that the executive power jurisprudence is tending toward bright-line rules while the legislative power jurisprudence is not. Bright-line rules have advantages, especially when doctrine is shifting. They reduce uncertainty for lower courts, they make things predictable for the political branches and for regulated parties, and such rules help the judiciary credibly commit to uniform treatment of disputes no matter whose ox is being gored. 

So starting with executive power [inaudible - lost video feed 1:32] president and confirmed by the Senate which would include every principal officer who's right below the president must be removable by the president at will and that theory is a bright-line rule. Now, of course, this theory has not been fully adopted by the Supreme Court which has instead inched toward the theory in an incremental way. But the Court's incremental holdings are themselves bright-line rules as far as they go. In Seila Law and Collins v. Yellen, the Court holds that Congress can protect principal officers against removal but only if the officers are part of multimember commissions. In Free Enterprise Fund a few years ago, the Court holds that officers can't have tenure protection if they are subordinate to other officers who do have it. 

That's executive power, but in the cases on legislative power, we find that bright-line rules are much harder to come by. Let's start with the major questions doctrine which says that if an agency claims some power under its enabling statute, then the majorness of the power counsels against upholding the agency's action. Now, some version of that idea goes back to the 1990s at least, but until this year, the majorness of an agency's asserted power was considered just one factor within a comprehensive analysis of the statute's text and structure. This year however, the Court has begun saying that when an agency asserts a power that is major, a whole different approach to statutory interpretation kicks in, a narrower and more truncated approach with a presumption against the agency. The Court simply asks, "Can the agency point to a clear statutory authorization for this power? If it cannot, the government loses." 

Strengthened in this way, the doctrine seems like it could have sweeping consequences, but nobody knows because it's not a bright-line rule. For one thing, it's hard to know what is a clear authorization, and it's hard to know which agency assertions of power are major. West Virginia v. EPA from a few months ago defines majorness with an unweighted multifactor test. The factors include how significant the power is economically or just politically, how different the power is from powers previously asserted, how much the power falls within the agency's expertise, and also post enactment legislative history. That is, whether Congress declined to enact bills that would've specifically authorized the power. 

Now, perhaps we could derive a more determinate version of the doctrine by looking to its origin and basis. West Virginia says passingly that the doctrine rests partly on separation of powers principles. And Justice Gorsuch writes separately that its purpose is to help enforce the nondelegation doctrine. Now, of course, historically, the nondelegation doctrine has been very weak. A statute is upheld if it has an intelligible principle for the agency to follow and every statute has passed the test except for the National Industrial Recovery Act in 1935. 

Gorsuch had argued for a tougher version of the nondelegation doctrine back in his dissent in Gundy in 2019 which was joined by the chief and by Justice Thomas and seemed to draw sympathy from Justices Alito and Kavanaugh. Gorsuch's version of nondelegation would block agency rules governing private conduct unless they fell into certain exceptions like rules turning on fact findings and not policy judgements or rules that fill up the details rather than decide important subjects or make policy. But these exceptions seem quite indeterminate and malleable, especially the exception for any rule that fills up the details. Indeed, Gorsuch said that something could be highly consequential and yet still be a detail. By what principle can a detail be defined? 

One is reminded of Justice Scalia's warning that there is no way to make the nondelegation doctrine determinate because it inevitably turns upon a question of degree rather than a point of principle. Scalia believed that the rule of law had to be a law of rules, of relatively bright-line rules. And he therefore concluded that enforcing the nondelegation doctrine was largely beyond what the judiciary could legitimately do. Now, some people hear that and say, "We've got to have a stronger nondelegation doctrine even if it means deprioritizing the law of rules and making things up as we go." But others hold out hope that a tougher nondelegation doctrine could be reconciled with the law of rules. Justice Thomas, before Gundy, back in his concurrence in the Amtrak case argued for a version of the nondelegation doctrine along those lines. He said, "All agency rulemaking governing private conduct, at least domestically, was unconstitutional unless it turned on a factual determination full stop with no exception for details." Thomas expressly said, "This would obviate the need for judgements of degree that Scalia had found so problematic." 

But really, I doubt that even this formulation would offer much determinacy. The exception for factual judgements is supported by original meaning and by very old precedent. Yet those historical sources show that the exception is broad and difficult to cabin. In Field v. Clark in 1892, the Supreme Court upheld as a fact determination a delegation to the president to activate retaliatory tariffs against any country whose overall tariff policy the president deemed "reciprocally unequal and unreasonable," with no definition of those terms. Congress in the 1790s authorized administrators to set taxable values of land across entire geographic regions at any level the administrators considered "just and equitable" with no definition of value and no methods for finding it.  If a factual determination can entail defining the very thing to be found and the method for finding it, it is hard to say how the category is bounded. Thanks.

Hon. James C. Ho:  Thank you. Professor Bamzai.

Prof. Aditya Bamzai:  Thanks. Thanks, Judge Ho. Thanks for the introduction. Thanks to The Federalist Society for the invitation and thanks to everyone on the panel for what I'm sure will be a great conversation. 

So Professor Parrillo has already set the stage for our discussion of the Court's doctrinal approach in these areas. And I understand that Judge Griffith and Professor Katzen will be addressing aspects of the same topic. So I plan to address this topic from a slightly different perspective. Namely, the history of the Constitution's adoption. It's based on an article that I've recently written, published in the Harvard Journal of Law and Public Policy which I've titled "Alexander Hamilton the Nondelegation Doctrine and the Creation of the United States." 

In a nutshell, the debates that led to the Constitution's adoption were in no small part debates about the separation of powers. The precise same issues that the Court is grappling with in our current era. When John Jay wrote George Washington in January 1787 to outline a series of wholesale rather than retail changes to the Articles of Confederation that he believed were necessary for the federal government's proper functioning, he placed at the top of the list a proposal to "divide the sovereignty into its proper departments." Jay put it this way, "Let Congress legislate. Let others execute. Let others judge." 

Let me illustrate with one of the most significant political disputes in the decades, years, and even months before the Constitution's adoption. The fight over whether states could delegate authority to the federal government to implement an impost or a tax on imports and exports within states. As many of you may know, one of the most significant criticisms lodged against the Articles of Confederation in the years before the ratification of the Constitution was that the Continental Congress could not directly raise funding for the national government. 

During the American Revolution, Congress had sought authority to levy a five percent tax on imports, but through a series of twists and turns over years, states objected to giving Congress such authority. In 1783, Congress modified the request to allow states to appoint tax collectors for the impost, though it retained federal authority to remove those collectors. And there's that issue of removal that Professor Parrillo just spoke about and highlighted. This was a central dispute of the 1780s. So central that when James Madison spelled out the flaws of the Articles in 1787, he placed the inability of Congress to raise revenue at the very top of the list. And when the state of New York ultimately rejected the impost delegation in 1787, it was not just the death knell of the impost proposal but effectively, the death knell of the Articles. 

Now, how is this relevant to some of the themes that Professor Parrillo highlighted? Well, the impost controversy was actually the occasion for a lengthy and substantial debate over the nondelegation doctrine. Not the nondelegation doctrine under the Constitution's Article One vesting provision, vesting legislative powers in Congress. That provision had yet to be drafted. No. I mean the nondelegation doctrine under state constitutional provisions. Let me focus on New York. There, critics of the proposals for federal impost authority invoked the Legislative Vesting Clause of the New York Constitution of 1777 which had been drafted, by the way, in part by John Jay and Governor Morris -- some high-profile drafters -- and contended that it prohibited a conferral of such authority on the federal government. That clause, just so you know, said that the supreme legislative power within the state shall be vested in the legislature. 

The critics of the impost proposal argued that delegating impost collection authority to Congress violated this provision. And I'll just give you one example. As early as 1783, Abraham Yates, who was later a prominent Antifederalist opponent of the Constitution claimed that the New York legislature lacked the power of "delegating the authority constitutionally invested in them to the federal government." He contended that if the legislature could do so "in this instance, they might in another and at last surrender the whole legislative power." And in later years, this theme was repeated by others which -- the same basic point was made not just by Yates but by other opponents of the impost. 

Almost six years of debate over the nondelegation doctrine culminated in a speech before the New York assembly by Alexander Hamilton in February 1787. In his speech, Hamilton directly addressed the doctrine at length. He noted that some had charged the impost bill with violating this constitutional prohibition on delegating legislative power from New York to Congress, and he characterized this objection as the one "supposed to have the greatest force." He acknowledged the critics' premise that the New York Constitution incorporated a nondelegation principle. He said that, and this is a quote, "In the distribution of the different parts of the sovereignty and the particular government of this state, the legislative authority shall reside in the legislature." But relying on other parts of the New York Constitution, Hamilton claimed that a delegation to the federal government did not violate this prohibition against delegations within the different departments of the New York government. 

So despite Hamilton's speech, which reportedly went on for over an hour and 20 minutes -- I'm going to try and be 20 minutes shorter than that if that's okay with Judge Ho -- the New York assembly voted down the delegation at issue. So Hamilton lost for a moment, and I've just conveyed this episode because it shows that in one of the most consequential debates during the years preceding the Constitution's adoption, legislators within New York repeatedly made arguments based on the premise that the New York Constitution contained a nondelegation doctrine and that in seeking to rebut that argument, Hamilton accepted the existence of the doctrine but disputed its application to a delegation to the federal government. 

There's more to the story. Literally two days after Hamilton's speech on the impost on February 17, 1787, the New York assembly adopts a resolution to instruct the state's delegates in Congress to recommend the holding of a convention to revise the Articles. On February 21st -- so that's less than a week after the speech -- Congress sanctions the idea of a convention. And then we all know the rest of the story. Against all odds, at the New York convention in Poughkeepsie in June and July of 1788, the federalists, led by Hamilton and Jay, prevail in persuading their fellow New Yorkers to ratify the Constitution. 

There's much more to be said, particularly about how the ideas of the separation of powers were again implicated during the consideration of the Constitution. But I'll stop right there and allow my co-panelists to say their piece as well. I hope I've given you a sense, through the window of one high profile episode, how the separation of powers played a central role in the drafting, consideration, and the writing of the Constitution.

Hon. James C. Ho:  Thank you. Professor.

Hon. Thomas B. Griffith:  Great. I can't tell you how -- what an honor it is to be here with this panel and with my friend Judge Ho and with all of you. 

If I can be allowed a personal observation -- I'm an old man these days, and I wasn't there the weekend that The Federalist Society was created back in 1982, but I got involved shortly thereafter. And it really is remarkable to me to see what Leonard and Gene and others have done to literally transform the landscape of American law. And it inspires me, and I'm grateful to be part of this and be here today. 

So the modern administrative state creates all sorts of tensions, doesn't it? And it has put the separation of powers to the test. Separation of powers seemed to be kind of a dry topic before the creation of the modern administrative state. And the description of this panel -- what we're to talk about -- we're supposed to address a question that I've translated into a more colloquial question. Do we favor the project of the Robert's Court to establish guard rails that keep the executive, legislative, and judicial powers in their own lanes? And I'm here to say, "Yes, I do." But I'm also here to say that it's probably going to be -- it's a more difficult task than many in this room might imagine. 

Let me start with a story if that's okay. It comes from my first year on the D.C. circuit. I was on a panel with Doug Ginsburg, who was then our chief judge, and Judy Rogers. And the case was a case that some of you are familiar with. I don't see Professor Epstein here. I've been his whipping boy for 20 years or so on this case. It's the Abigail Alliance case. A very sympathetic group of plaintiffs, children, leukemia patients who challenged the FDA's process for approving drugs. They said that they thought they had a constitutional right to get to experimental drugs that had been proven safe but not yet effective. That was the issue. I dissented from Judge Rogers and Judge Ginsburg who said there was a constitutional right to such access. And then it went end banc. 

So that's the background. Here's the en banc argument as best I can recall. I haven't actually gone back to check the transcript because I like my version of the story and so -- but as I recall, Chief Judge Ginsburg is engaged in a colloquy with lawyers for the government. And I can't remember what it was that Doug said that triggered this response, but the lawyer for the government said, "But Chief Judge Ginsburg, the premise of that question -- the premise of your comment calls into question the entire structure of the modern administrative state." To which Chief Judge Ginsburg said, "So much to do, so little time to do it." So that's what -- I'd like to use Doug Ginsburg's question as a framing device. I think the Roberts Court agrees with the first part of it "So much to do." The debate is over the second part of it, how to go about doing it. 

And if I can be allowed another personal observation of my views on the matter. They've transformed over time. In a previous life, I was the chief lawyer for the United States Senate. It was a nonpartisan position, and I defended the Senate and its actions in court. My predecessor, as senate legal counsel, had argued in favor of the legislative veto in Chadha. And so I was schooled in the thought that Justice White's dissent in Chadha was right. It was pragmatic, it understood the spirit of the separation of powers. We can play with the forms. I hope I'm doing justice to Justice White. We can play with the forms a little bit as long as we get the spirit of it. And that seemed right to me. I defended the line-item veto in briefing and helped prepare the SG for it once again thinking, "The forms, they're there, but you can't let them get in the way of the spirit of the thing." 

Well, I have completely changed my view on that over the years. I completely agree with what Justice Scalia writes. He didn't always stick with this because it's a tough issue. But no. The forms matter. So as I've gotten older -- maybe I've just gotten crankier -- I'm more of a formalist for the following reason: I have come to distrust ingenuity and imagination and tinkering. The guardrails are important to keep constitutional players in their lanes. And when The Federalist Society got started way back in the day, that used to be our rallying cry particularly as it applied to the judiciary. Stay in your lanes. Well, that's where I am on this. 

Now, let me talk about each of the projects that the Roberts Court has undertaken. As regards the presidency, they seem to want to give the president more power. Of course, the real problem here is with independent agencies. That's the issue. What in the world do you do with independent agencies? And what are we going to do with Humphrey's Executor?  That's the great unspoken question. What do we do with Humphrey's Executor? Well, I actually have a solution to that, and I will refer you to PHH Corporation v. Consumer Financial Protection Bureau, a decision the D.C. circuit decided 2018. There's a remarkable concurrence in there that [laughter] – no, we can do it. Humphrey's Executor should not be a bar to the president having vigorous removal power. Anyway you see the argument there. I won't bore you with it here. 

The second thing. How do you get Congress to do its job? This is a tough one, but they're trying to do it. It's really tough to get Congress to do its job, and I don't know how -- the major questions doctrine is one. I mean, it's a signal to the agencies. It's also a signal to Congress. Do your job. I'm influenced by Justice Scalia's view on this problem, that what the political scientists tell us what we're dealing with is broad delegations of authority by Congress to avoid electoral responsibility. How do you get around that? I'm not -- I don't know. I'm not certain how you get around that. The gerrymander, primaries, these make compromise difficult, and the heart of the congressional experience needs to be compromise. Small group dynamics do not work in this Congress. They haven't worked for some while where they used to work in previous Congresses. Maybe you're happy with that. Maybe you're happy that no compromises are reached, and legislation isn't really done. I'm not. 

One of the reasons it's not happening is, you and me, we won't allow them to vote themselves a pay raise, and so they don't live in Washington. I grew up in Washington -- the Washington D.C. area with the -- went to public schools with the sons and daughters of congressmen and senators. It was no big deal. They lived here. They lived here because they could afford to live here. Now, they can't, and so you get these strange things, like, I remember hearing Senator Chris Coons once saying, "The only time," this is a bit of hyperbole. He said, "The only time I interact with folks on the other side of the aisle is in the gym and at prayer breakfast and that's it. We don't see each other." Remember a couple years ago, the great innovation at the State of the Union was going to be date night? Do you remember that? At date night, they were going to find somebody from the other side of the aisle and sit next to them at the State of the Union. Well, when you're tinkering with those sorts of things, something is unhealthy, and something is wrong. So I applaud what the Roberts Court is trying to do to get Congress to legislate and do its job. I think that's a tough one. 

Last one. Judiciary. Trying to get the judiciary to do our job when it comes to interpreting the law. Here we are dealing with Chevron. The whole Chevron problem. Let me tell you another personal story about the dynamic involved there. First year on the D.C. circuit, I was completely overwhelmed. Completely overwhelmed. My opinions were late. I was just -- it was just too big of a job for me. I was really discouraged. One of my colleagues, sensing this, took me out to lunch. And I said, "How do you do this job?" And he said, "Well, first thing, it's going to take you five years before you feel comfortable." That was not comforting to me because I thought if it takes him five years, it's going to take me 20. And the next thing that he said was, "And the other point is Chevron -- defer, defer, defer." So one of the problems with Chevron is it makes judges' jobs a lot easier. So there's that dynamic at work. 

So that's the problem. It's deeply entrenched. How do we respond to it? How should the Roberts Court respond to it? They're going to go slow. It's not going to be happy to this group. They're going to be incrementalists. They're faint-hearted formalists. They're going to -- particularly the chief. They're not always consistent with this. Noel Canning. How can you be a formalist and agree with Noel Canning? Here, the Executive Branch and the Congress come up with a workaround for a problematic provision in the Constitution, the Recess Appointments Clause, and yet no one batted an eye at doing that. So they're going to be faint-hearted in that way. 

As Josh Blackman points out this week, Monday's cert denial in Buffington, from which only Justice Gorsuch denied, may signal the end of the -- it may signal a truce in the war on Chevron. But I think that's where the battle lies is -- will this Court be incrementalist in their approach to the modern administrative state, or will they be bolder? Obviously, there are members of the Court who want to be bolder. I think that betting money is that it will be incrementalist because these things are deeply entrenched. It's going to be hard to get each of these branches to do their job, but I think that's the project, and I'm for it. 

Hon. James C. Ho:  Thank you. Professor Katzen.

Hon. Sally Katzen:  Thank you all for inviting me to join this discussion of a very significant and timely issue. I'm not sure I can live up to Judge Ho's introduction being the true skunk at the picnic, but I guess I'm supposed to try. I do think that Judge Ho is correct that I'm going to take my lead from Judge Griffith who I greatly admire and nonetheless, will come to a different conclusion than he did. 

I would like to provide my sense of the Court's overall approach to the administrative state rather than talking about specific decisions or specific topics such as the nondelegation doctrine, major questions doctrine, president's removal authority, Chevron, whatever. And when I look -- excuse me. A frog has taken up residence. And when I look at the big picture over the last several years, I see a Supreme Court majority that is on a mission to dismantle or at least diminish the administrative state. A mission that I believe is regrettably misguided and, in any event, not sustainable in this day and age. And I have five to seven minutes to do this. 

So first off, I do want to give kudos to The Federalist Society. Not only for 40 years -- most impressive -- but thanks in large part to the prodigious work of scholars and law students affiliated with FedSoc, there is a more or less robust framework for a Supreme Court's current jurisdiction. Guardrails are constructed by the Constitution and supported by historical events. We see it in the decisions regarding reproductive rights and gun rights -- slightly off topic, but nonetheless, I'm sure, familiar to all of you. If it's not explicitly stated in the Constitution, then it has to be well documented in historical practice. And in either case, the current interpretation should faithfully follow the earliest historical accounts including the federalist papers. And this is relevant because the Constitution doesn't mention the administrative state explicitly. Although, references to officers and departments suggest that the Founding Fathers did not envision the president being home alone. 

In any event, much ink has been spilled to try to document that the Founding Fathers had a very constricted view of what the Executive Branch could do in setting policy. To be sure, there's also a substantial amount of excellent work -- some done by Nick -- that challenges this view. But assuming arguendo that these were the views held by the Founding Fathers and that this was the precedent for limiting the administrative state in 1789, what should we do with that? 1789 was a good year. Some might say it was a great year, no doubt about it, but I recall that the original effort to create a government in the Articles of Confederation wasn't very successful and the Constitution was, in effect, a do over. Does that mean that we still think of the Constitution as having been chiseled in marble for all ages? Whatever. 

In 1789, the 13 states were holding on for dear life with their fingernails on the edge of the Atlantic seaboard. The country was primarily agrarian, and the decision makers were virtually all white men whose ancestors came from England or Europe. Today, the country reaches from the Atlantic coast to the Pacific coast and beyond with Alaska and Hawaii. It is the most powerful and dominant country in the world. We retain agrarian roots, but we also have experienced industrial strength, a thriving service economy, and an information economy. And we have welcomed immigrants from around the world and enfranchised diverse people, including women, all to the lasting benefit of this nation. 

Now, there are undoubtedly other changes that came with time and technology, but the elephant in the room -- no pun intended -- was the creation and increased prevalence of political parties. This despite Madison's warning in Federalist 10 about the dangers of factions in a democracy. What would Madison have thought about Senator Mitch McConnell's response when he became the majority leader in 2010 and asked, what did he want to accomplish. "The single most important thing is for President Obama to be a one term president." That candid statement reflects what partisan politics has done to our government. It is often not about policy differences. There are some to be sure. But it's about power. Specifically, it's about winning the next election which started Wednesday. And party loyalty trumps -- again, no pun intended -- statesmanship or service to this country. 

So where are we now? The most powerful branch in 1789 cannot today even debate, let alone decide, the pressing questions of the day. Congress is deeply divided, reflecting a deeply divided country. So Congress can name post offices, but it has the hardest time even passing a budget each year to keep the government open. And while it can spend money and lower taxes through reconciliation, it can do very little of a substantive nature to address the pressing problems that confront this nation. And this is because, in large part, party line votes are the order of the day and too often reflect the calculation of party leaders about how to position the party to prevail in the next cycle. This is the institution that the Supreme Court majority says is the only institution to make laws, to anticipate technological, scientific, or engineering breakthroughs or calamities, and give its blessing in advance to specific solutions it may know nothing about and cannot foresee. That's a lot to ask from an institution that's barely functional. 

Then there's the Executive. In 1789, it was quite fragile. So it was a single person rather than divided like Congress. It had limited authority and expectations. No wonder it needed support or protection, and you can well understand the decision of 1789 providing the president the power to dismiss at will those who were his closest advisors and confidants. Today, by contrast, the president is undoubtedly the most powerful man in this country -- perhaps even in the world. He is accountable, in fact, he gets the credit and the blame for everything that happens even when he cannot control it. From the spread of the pandemic to Russia's invasion of Ukraine, even to the economy. Yet, the Court is seemingly concerned that the person with all this power would be helpless unless he can fire at will anyone who has even a modicum of authority and creativity. 

I'm thinking of Justice Thomas's concurring opinion in Lucia defining an officer as anyone who performs a continuous public duty even if they performed only ministerial statutory duties including record keeping clerks and tide waiters. That was a great profession. We don't seem to have many of them now. But in its time, it was good. And the chief justice created, seemingly out of whole cloth, a bright-line test that dual for cause removal protection awarded by Congress for particular category of administrators was too much for the president to bear. So the most powerful person on the planet is somehow too constrained in this day and age unless he can remove an administrative law judge and an independent regulatory commission -- a point that Judge Griffith mentioned -- or maybe be able to remove a civil servant who has contributed to the development, interpretation, or advocacy of any policy. You might remember Schedule F that was floated towards the end of the Trump Administration. All of this notwithstanding the explicit -- you want clear language -- explicit terms of the Administrative Procedure Act that protects ALJs and the Civil Service Reform Acts that protect the civil service. 

Are those acts of Congress, which have been on the books for decades -- are they unconstitutional? Are we being directed to return to the days of Andrew Jackson and the spoils system where loyalty and campaign contributions take precedence over expertise and experience? It was part of our history. Shouldn't we celebrate our history? Can we do something different than we did in our early days? Or should we actually just return to 1789 where the administrative state is put in a little cubby hole, and we're somehow liberated to be governed only by the institutions as they were then conceptualized. I hope not. Because I believe we need, and our Founding Fathers wanted us to have -- I want to repeat that. The Constitution reflects the do over from the Articles of Confederation which failed. The Founding Fathers wanted a government that would work, that would actually function. In that light, I find the 21st century disdain for the administrative state and the multiple efforts of the Supreme Court majority to constrain or hobble it very disconcerting. It's setting us in the wrong direction. 

Thank you for listening patiently. You're a good audience.

Hon. James C. Ho:  I was going to say, this has been a wonderful series of presentations. I want to -- we're going to have an opportunity for questions from the audience. But before we do that, I want to give each and every panelist an opportunity to respond or address really anything that we've just heard, if anybody would like.

Hon. Thomas B. Griffith:  So if I could just respond to the excellent presentation of Professor Katzen. To me, the issue isn't whether there should be an administrative state, it's whether it should be politically accountable. And I think that’s the project that the Roberts Court has undertaken is to make the administrative state more politically accountable. Now, I'm no historian and I'm not a political scientist so forgive my desktop history right here, but as I understand it, the idea of the administrative state as it was created in the '30s or so was to move it away from political accountability. It's a Wilsonian dissatisfaction with the Constitution that was created in 1789, and it's borne of an idea that the world is too complicated now, that we need to move away from political accountability. 

And I think -- I mean, I reject that idea. To me, it is too simplistic, but the most fundamental idea -- Akhil Amar writes in his book, "The Constitution of Biography," the most fundamental liberty recognized in the Constitution is the liberty of "We the people" to make the rules by which society is governed. That there's political accountability for all actors. So I think -- I don't think it’s a disdain for the modern administrative state. It’s a sense that we need these agencies, they do really important work, but at the end of the day, they need to be accountable to folks who get elected. And I see the court's project as trying to make that happen.

Hon. Sally Katzen:  I agree completely with your analysis of it, but I do not see the Court's decisions as moving to make it politically accountable. It says, "You can't make policy. You can't make rules unless your statute which was enacted," take the NHTSA statute for highway traffic safety which was 1966. Unless it explicitly states, "You need seatbelts." I mean, they didn't know about -- maybe they did know about seat belts in 1966 -- probably not airbags, but there might be other things as well. The rules that are being laid down with respect are not rules that say, "Someone should be accountable." It's "No. Congress has to have said it clearly." My god, it’s a major questions doctrine. What is -- I'm going back to where Nick started. What is that? It's in the eyes of the beholder. The beholder? Five or six members of the Supreme Court. Not anything else defines what is a major questions doctrine right now. So I'm not sure -- I agree with your analysis, but I don't think that the steps that they're taking are to drive us towards political accountability.

Hon. Thomas B. Griffith:  So do you agree with the project though that, to make the modern administrative state more politically accountable -- we just disagree with what that means and how to do that? I'll take that.

Hon. Sally Katzen:  Well, I'm more back with Chief Justice Roberts' analogy that a Supreme Court justice calls balls and strikes and doesn't start constructing houses. Although, having watched the World Series, different people call different balls and strikes. And you may have been irritated at some of the umpire's actions, but I don't see them taking on a project as something that is praiseworthy. I think in an individual case, with the individual record, they should follow the law and with due difference to the precedent. I'm not anti-precedent. I really am not. Honestly [laughter].

Hon. James C. Ho:  Professor.

Prof. Nicholas R. Parrillo:  I'd like to say a word about the potential implications of the paper that Aditya Bamzai presented. There's a really interesting debate going on right now about original meaning and nondelegation. I mean, we can debate whether originalism is the appropriate method, but if we assume that originalism is the appropriate method, the question then becomes, what originalist support is there for a nondelegation doctrine or for what kind of nondelegation doctrine? And basically, this debate is occurring at two levels or in two steps. 

First, there's a question as to whether there's a nondelegation doctrine even in principle. And some scholars have argued that there is not, as a matter of original meaning. For example, Nicholas Bagley and Julian Mortenson at the University of Michigan. They argue that, as long as a power that's delegated to the Executive is authorized by legislation, there is nothing about that power that could violate the legislative Vesting Clause. There's no amount of discretion that is too much. There's no type of power delegated that is too much even in principle. 

However, if we reject that view and we say, "Oh, no. Actually, there was some limiting principle," then we get to a second step or a second question in the debate which is, what do the originalist sources tell us about how to cache that out? Is it a matter of too much discretion being unconstitutional? Were verbal formulations, like important subjects and details, used in the founding era? Or is there originalist support for a more categorical nondelegation doctrine, like no rule making unless it's about fact findings or something like that. I think what Aditya Bamzai's paper does is, it provides some very interesting new evidence going to the first question. Going to the question of whether, in principle, there is some limit on delegation. 

We now have Alexander Hamilton in 1787, shortly before the Constitutional Convention, talking about the New York state Constitution -- but it is common to use contemporary understanding of state constitutions to look to federal constitutional structure -- getting into a debate about whether it violates a New York state nondelegation doctrine for the New York legislature to delegate power to the Continental Congress. And you can say, "Well, that’s irrelevant to the question of whether the U.S. Congress, under our Constitution, can delegate power to the Executive because Congress controls the Executive in a way that the New York legislature could never control the Continental Congress. But Aditya points out that Hamilton rejects the idea that there's any limit on delegations to the Continental Congress. But then he says, "But there would be limits on the New York legislature's delegations to its own Executive." So that is interesting evidence going to the threshold question of whether there's a limited principle. But that, as I think Aditya recognizes in his paper, it doesn’t tell us about how such a limit ought to be cached out. 

And I actually think, if we're to have justification for reforming the nondelegation doctrine today, we actually need to answer both of those questions. Not just that there was a nondelegation doctrine in principle in 1787, but there are some originalist sources about how it's to be cached out that are different from the nondelegation doctrine we have. And I will remind you that, officially, we do have a nondelegation doctrine. The Supreme Court has not overruled Schechter Poultry. And there's a very important study recently by Cary Coglianese arguing that it's not right to say that the nondelegation doctrine is dead. You can still say Schechter Poultry is rightly decided, but all these other cases where delegations have passed muster are also rightly decided because the National Industrial Recovery Act in 1935 really was different from everything that has come before and after. Because not only were there standardless delegations, but those delegations covered the entire economy. There was an authorization under that act to limit output and fixed prices for every industry in the economy which is quite different from giving very open-ended standards for the telecommunications industry or securities offerings or that kind of thing. 

That said, I do think there is a further implication, potentially, of Aditya's paper. Which is that -- and Aditya didn't have time to get to this in his presentation, but as he explains in the paper, when Hamilton is describing the legislative power that is subject to a nondelegation doctrine, what is legislative power? He says not only that it includes things that involve coercion as to private persons, like standards for weights and measures in transactions. It also includes -- and correct me if I'm wrong -- the power to make rules for the army and the navy and the power to make requisitions of other governments -- intergovernmental relations. And this, it seems to me, goes against a reading of the Vesting Clause Article One, propounded by Justice Gorsuch and others, that legislative power was understood in 1787 to be confined to general rules governing private conduct such that the nondelegation doctrine today would not cover the welfare state, government largess, benefits, and would not cover the national security state either. The nondelegation doctrine as proposed in the Gundy dissent is one that would go to the domestic regulatory state but not the national security state. It seems to me that Hamilton's speech is some evidence against that narrowing view of the doctrine.

Prof. Aditya Bamzai:  Yeah. Well, thanks Professor Parrillo for those comments. So just off the cuff, I think I largely agree with them in that -- potentially, when you were starting to discuss Schechter Poultry and how that could be described as an opinion about the specifics of the National Industrial Recovery Act -- I may part ways on that topic, but I think you're quite right that there's a threshold question of whether there was such a principle in the abstract that was articulated, embraced, discussed by key members of the generation that put together the U.S. Constitution. And then there's a second question about how to implement that. 

And perhaps this connects with the conversation that Judge Griffith and Professor Katzen were having just a moment ago because I think what we see -- or one would find in founding era materials, like Professor Katzen referenced, the decision of 1789 which is the famous debate in Congress about removal and who has that power over the federal bureaucracy. What we would find is the general topics that are being debated to this day at the Supreme Court are the types of topics that were discussed. And so to my mind, and this may go to a broader question, that has some relevance. That sort of suggests what the Constitution was meant to do. And so maybe to that threshold question, I would suggest, like the answer that is the -- there was an inference from legislative vesting provisions that the legislature could not delegate legislative powers, however defined. 

And I think that Professor Parillo is quite right, and I think this is a topic for -- that we could go on for quite some time. How to implement, then, the abstract principle of a nondelegation doctrine or whatever principle you take away from the decision of 1789 -- how to implement that once you believe that there is this notional -- this principle that there was a nondelegation doctrine. That's something that the Court's going to have to grapple with if in fact, it embraces an originalist approach. And I don't think the paper that I've written quite answers that. And I was very interested to hear Professor Parrillo's thoughts on how the paper can cut in different directions on that point. And I think more work is necessary or more research is going to be necessary for us to fully understand how to provide the lines that form, to use Judge Griffith's words, the guardrails that the Roberts Court is setting out. I just don't think that those guardrails are newfangled or newly created. They, in fact, have been around for a long time, and perhaps their implementation is going to be based in part on the historical record and in part on our attempts to translate that historical record to modern society and government.

Hon. Thomas B. Griffith:  So can I ask you a question? So let's imagine we're back before Humphrey's Executor. Just -- we're in that universe. What do you do with the effort of Congress to create independent agencies insulated from the president's removal power? Let's imagine that's where we are. Is that a good step? Is that a step forward? Is that eviscerating something or is it ingenious tinkering that's right? I think you know where I think. I think it's wrong, but that -- at least in my mind, that's a critical distinction. Where would we be before Humphrey's Executor?

Hon. Sally Katzen:  Well, Humphrey's Executor came very quickly after Myers, which praised the power of the executive. But specifically to your question, when we talk about IRCs, independent regulatory commissions, our minds usually go to the SEC or the FTC which was the animal at issue in Humphrey's Executor itself, and then the more recent cases have been SEC cases. I keep thinking about the Fed, the Federal Reserve. That's an independent regulatory commission, and why is it independent? It's independent because you don't want the political people both the executive, or the Congress screwing around with monetary policy particularly on the eve of elections. 

Now, what I think was intended when they set up the IRCs initially, was to -- an inverse of the major questions doctrine -- which subjects are so sensitive that we don't want the politicians to be jerking them around right before elections or back and forth and back and forth? We want experts. We want people who are using judgment, science, technology, whatever. And so you had a series of independent regulatory commissions that were subject specific that was just too sensitive or at least of a different ilk than Executive Branch agencies. That's what I think is part of the framework.

Hon. Thomas B. Griffith:  But I want to get normative about that. Is that consistent with the Constitution? I mean, I agree with you on the Fed -- it's worked there. I think it's worked very well. And I don't want a president who's behind in the polls facing -- I don't want that either, but I don't want to talk about real world just now. We'll get to that. I want to talk about the formalistic approach. Is that consistent -- this ingenious creation of the independent commission, is that consistent with the constitutional structure? Or is it, in fact, an amendment to the Constitution that didn't go through the amendment process? 

Hon. Sally Katzen:  You've given me two stark choices and I don't like either one of them [laughter]. But that's because I tend to think -- and I think it was Chief Justice Marshall, way back when, who said something about creating a constitution, "We did the best job we could, and we'll learn through experience as life goes on." Now, is the only manifestation of our learning to be embodied in an amendment through the amendment process? And that's an implication of what you said. And I tend to think that that is a very legitimate way of looking at it. It's not my preferred position because I'm alive today and there are issues that I would like to find some compromise on. And we're bound by institutions that seem to have an inability to compromise. And I don't think that's a good place, and I don't think our Founding Fathers would praise us for maintaining all their specific implementations of their principles. I think they would rather we continue to be the phenomenally great country that we are because of our ingenuity, and our entrepreneurship, and our ability to make things work in a real world. So I slipped into real world again. Sorry about that. 

Hon. Thomas B. Griffith:  I think the only way we differ on that is, I'm more comfortable with the view saying, "You make that world a better world by playing well the part that's given to you in the Constitution. And judiciary, here's your job; executive, here's your job; legislature, here's your job." And don't get those jobs confused because the system is built on this. So I would favor that over the real-world ingenuity. And that may cause us serious problems, but I think that's what the Constitution demands. But maybe not.

Hon. Sally Katzen:  I understand where you're coming from.

Prof. Nicholas R. Parrillo:  If I may say a word about this. So the president has the executive power and then also the obligation to faithfully execute the laws. And let's say Congress passes a law that states in the text that its objective is to control inflation. So the president is obligated to faithfully carry out that law. And let's say that economic actors out there think that inflation is going to keep increasing, and those expectations feed on one another. And it is basically impossible for the law, that we want to control inflation, to be successfully executed unless the president makes some kind of credible commitment to control the money supply. But these economic actors out there in the markets don't believe that the president will control the money supply because they know that the president has an interest in not causing a recession and that sort of thing. And they know that the president is beholden to the voters in the next election and so forth. 

So I mean, if you're the president under those circumstances, how do you faithfully execute a law that can't be executed given other actors' accurate perceptions of your political incentives? What you might want is for your hands to be tied in a credible way, in a way that audiences and the markets will believe. And it may be that the only practical way for that to happen, the only way for the law to be executed is for someone else to tie your hands, for Congress to tie your hands. So I mean, that's some argument for the consistency of some versions of an independent agency with Article Two. It is much more believable, as Sally Katzen suggested, with regard to agencies like the Fed where there are distinct problems of credible commitment which may not be as much of an issue with regard to the FTC or the SEC, although we can debate that as well. I mean, that would be a possible response to your question, Judge.

Hon. Thomas B. Griffith:  Thank you.

Prof. Aditya Bamzai:  So just to weigh in. I think I have -- perhaps arriving at some similar place, just a slightly different way of analyzing this. Which is that there was in fact an institution, not on all fours, but somewhat analogous to the Fed, the Bank of the United States both the first bank and the second bank that was chartered at the same time that Congress engaged in this debate conferring the removal authority on the president. And apparently, they considered the bank to be consistent with their position in the debate about the removal power. So I think that one could say that the Fed, there's a historical antecedent for some of its authority. And so it's consistent with the Court's jurisprudence in this area. 

But just to add another hypo to peoples' thinking on this point, it can't just be that because we have an institution named the Fed, we could just confer on it any authority and have that be insulated from presidential control. So what if, for example, Congress were to enact a statute saying, "The Fed shall also now have supervision over," -- I don't know -- I'll just pick the CIA.  "They'll also be able to control some aspect of the national security state," or you could say part of the Department of State. Pick whatever agency you'd like. It's not that we have a carve out for the Federal Reserve. Rather conceivably, what we could say is that we have a historical antecedent for certain types of government functions that are associated with banking or money creation that can be subject to certain mechanisms akin to what we now have for the Fed. But not other types of government functions. That's the way in which the system holds together. So that's a thought that maybe explains part of what the Court is doing in its removal cases and part of where it might potentially go if in fact faced with the point that Professor Katzen raised.

Hon. James C. Ho:  I think we have at least one question out in the audience. Maybe a few more. Let me start by saying, tell us your name, any affiliation you want to reveal, and we are asking you to ask a question. 

Francis Menton:  Thank you. My name is Francis Menton. My affiliation is Manhattan Contrarian. That's my blog. Many people may read it here. So out there, we have the Clean Air Act, and the Clean Air Act basically gives the EPA the authority to regulate pollutants. And then about a decade ago, the EPA decided carbon dioxide was a pollutant. And I guess this question is mainly for Professor Katzen. So carbon dioxide has been declared a pollutant by the EPA, and they're an expert. So does that mean -- could the EPA, on its own authority, then say, "Well, airplanes, they all generate carbon dioxide. We hereby say they must be all grounded. All industry must be ended that generates carbon dioxide, and 80 percent of our electricity generates -- is fossil fuel -- generates carbon dioxide, and of course all automobiles. So you can't drive them anymore." Can the EPA do that or does that go beyond what they've been authorized to do? And if it goes beyond, what is the limiting principle? Do you have one or are you completely fine with that if EPA does that?

Hon. Sally Katzen:  I'm not -- excuse me -- I'm not sure I completely followed because there was a lot of distracting noise out there. But Congress clearly gave the EPA authority to specify those pollutants that are dangerous and should be regulated and to set limits for them based on that which is necessary to protect the public health with an adequate margin of safety and all that. There are standards to be applied. They can't just say, "No cars." I don't think that would survive any kind of judicial review.

Francis Menton:  Under what -- what's the standard?

Hon. Sally Katzen:  Under -- excuse me?

Francis Menton:  What's the standard?

Hon. Sally Katzen:  The standard is set forth in the Clean Air Act is the scientific basis for levels to be set. That's not -- I'm not an environmental lawyer and I'm sure there are others here who could provide the exact terminology, but the EPA is not able to and does not do whatever it has a whim to do when it wakes up in the morning. It bases it, normally, through rule making on notice and comment, cost benefit analysis, scientific determinations that are subject to the critique and then response by the agency. You may not be happy with the answer any more than I was not happy when they stayed the Clean Power Plan in the first place even though it had not yet gone through the courts. It was an extreme action taken to shut down rulemaking in this area. And I think that was unfortunate that we never were able to develop the kind of record that would enable sensible people to see if the agency was acting within its authority as granted by Congress. I am not saying that the organic statute or the authorizing statute is meaningless. It survives. But if it has granted authority, then the agency should be able to use it even if the pollutant is something that they didn't think of when they passed the statute or weren't aware of when they passed the statute any more than under the FCC Act, it was radio. That was in 1933. It was radio. Radio was interpreted to mean television. It wasn't a big step. 

Hon. James C. Ho:  Gentleman up front.

Brian Bishop:  Yeah. Brian Bishop of the Stephen Hopkins Center for Civil Rights in Rhode Island. And I have a narrower and perhaps almost pedantic question raised by Nicholas's recitation of what makes up possibly or the factors that could define a major question. In particular, I'm concerned with a different decision that Aditya mentioned of Justice White's, and that would be Riverside Bayview Homes in which there -- the judge said that he was cherry to effectively say what the law was by what Congress did not do. And I'm afraid he wasn't cherry enough, myself, but here, you're saying that I think a kind of significant factor in that list was whether Congress had tried to give this power and failed. And personally, as much as I can perhaps see a more convincing argument for the inverse, I still am concerned about that as a standard. I don't know if that is the panel's concern -- shared.

Prof. Nicholas R. Parrillo:  So to be fair to the author of the West Virginia opinion, if I recall correctly, when the chief starts talking about bills that Congress did not enact, I think he prefaces it by saying, "We cannot ignore that these proposals were made in Congress and Congress didn't enact them." So I mean, the chief himself seems somewhat wary of relying on this kind of material, but he does cite it. And I mean, related to what I was saying earlier about this being kind of an unweighted multifactor test, it's hard to say how much weight it has in the analysis. I mean, I think what Justice Scalia and other statutory interpretation textualists have said for decades about the peril of relying on post enactment legislative history or congressional failure to act is absolutely right. I mean, it really is treacherous to make inferences from that kind of lawmaker behavior. My hope would be that the Court is not going to rely too much on that going forward.

Hon. James C. Ho:  Gentleman in the back.

Bailey Cordonnier:  Hi. Bailey Cordonnier, President Northwestern Student Chapter. Judge Griffith mentioned INS v. Chadha and I also think of cases like Vermont Yankee that make me wonder something -- a couple of related things. One, does formalism only limit the executive in this area or can formalism bolster that power. And if that's the case, how does that limit the hopes or concerns of the panel?

Hon. Thomas B. Griffith:  I couldn't hear the question.

Hon. James C. Ho:  Can you repeat it? Just speak up a little louder. Thank you.

Bailey Cordonnier:  Yeah.

Hon. Sally Katzen:  If people, when they go out, would make sure that they close the door immediately because there's a lot of noise out there, and we can't hear what's being said, unfortunately. Thank you.

Bailey Cordonnier:  I'll let them close the door.

Hon. James C. Ho:  Or just don't leave [laughter].

Hon. Sally Katzen:  Better yet.

Hon. James C. Ho:  We only have ten more minutes.

Bailey Cordonnier:  So cases like INS v. Chadha or Vermont Yankee that are more formalist seem to actually increase the power of the executive in this area. So I wonder, is it true that a more formalist approach would simply limit the executive, or can it bolster it and go different ways? And if so, how does that temper either the hopes or the criticisms of the panel?

Hon. Thomas B. Griffith:  What would be an example of formalism bolstering the -- I'm not disputing it, but that would be helpful to me if you'd give an example.

Bailey Cordonnier:  Yeah. I think, like Vermont Yankee, in which -- said that the Court, for example, is limited in adding new requirements to what the administrative agencies or the executive does, that seems to me a very formalist opinion that actually increases the power of the presidency at least away from the power of the courts.

Hon. Thomas B. Griffith:  Yeah. See I wouldn't worry about that as much because, maybe I'm thinking too simply here, but to me, the virtue of formalism is that it is, in effect, playing the role of an umpire and saying, "Here are the rules. Here's what you can do. Here's how you do it." Now, what you end up doing, that's up to you. But you got to play by these rules, these formal rules are imbued with values. The rules themselves express a value about how we think the republic should operate. So I don't think the question, at least in my mind, isn't so much whether the result of formalism is an increased power for the executive or a decreased power, it's that you're staying true to the values that were encoded -- upon which the Constitution was built in creating the separation of powers in the first place. So I don't know if that is responsive, but that's how I think of your question. Is that helpful or not?

Bailey Cordonnier:  Yes. Thank you.

Hon. Thomas B. Griffith:  Okay. Thank you for saying it was helpful [laughter].

Prof. Aditya Bamzai:  So I think, just to answer the question, I think there's no necessary connection between formalism or functionalism and any allocation of powers within the branches or to the executive. So one can think of a whole number of cases. You mentioned Vermont Yankee, but the one that comes to mind, for example, is the prosecutorial discretion case Heckler v. Chaney where the Court says, "There's going to be relaxed review in a certain category of cases." So whether that increases or decreases executive power, the point is it just depends on what the rules are. And you have to start to look at the rules and figure out whether there's some honest justification for why the rules are being created the way that they are.

Hon. James C. Ho:  Gentleman in front.

Devin Watkins:  Hello. Devin Watkins from the Competitive Enterprise Institute. And concerning the dysfunctional Congress, I understand that it's not passing the laws you would like, but for me, the choice not to pass law is a proper choice for a Congress. Too often, I see agencies create the rules, private conduct that govern citizens, they find the people that violate that, and then they find that they're guilty, and they determine that fact that they're guilty. And to me, placing all three of those in the same hands creates a horrible incentive that really undermines the rule of law. And I understand that enforcing the vesting clauses by judges may be difficult, it may lend itself to bright-line rules, but I don't think we hire judges just to handle the easy cases. So I would like to hear the panelist's opinions on that.

Hon. Thomas B. Griffith:  Yeah. I think that's a fair point that I don't disagree with. Gridlock can be really good. Yeah, I'm not interested in Congress becoming a juggernaut, just legislating left and right. But can we agree that, at some level, Congress isn't working the way it should. I mean, when you can't get a budget passed -- there's just some basic stuff that needs to happen that isn't happening. So that's my concern. I'm not looking for lots of legislation coming out of any Congress, but I am looking for some. And there are some serious problems that we are facing as a nation. And I used to be Senate legal counsel. I'm an Article One sort of guy, and I think that's where these things are supposed to be resolved. They're supposed to be debated and resolved in front of those who are most closely connected to the populace. That's our members of the House, members of the Senate. And I'm coming from a place where I just think it's dysfunctional in ways that are troubling. But I'm not arguing for a juggernaut, but something. And maybe you disagree with that. Maybe you're satisfied with the stasis. I'm not. I think there's some pressing issues that need to be resolved.

Hon. Sally Katzen:  I agree with you completely. I'm not looking for Congress to legislate every day and pass thousands and thousands of bills. I am interested in Congress, our elected representatives, discussing, debating the issues of the day so that the American people could be better educated about what is going on and have a better understanding of our society writ large. And I think that that is critically important. We don't even have -- in the Senate now, there aren't -- someone says, "I'm going to filibuster." They don't even have to stand. I love Mr. Smith goes to Washington [laughter]. They don't have to stand up. They don't have to be exhausted. All they have to say is, "I'm going to filibuster," full stop. No more discussion, onto the next item. One wonders why some people can't hear each other. They're not speaking the same language. There isn't a place where we can have a dialogue. And we have some members of Congress who have been elected on a platform of "I will not compromise. I will not agree to anything except that which I absolutely believe in. "Well, in a country of ours, it's very hard to exist if you can't have a meaningful conversation and some give and take and maybe, dare I say, some compromise. And I'm fully prepared to be voted down. I'm fully prepared to have Congress not take any action. I would like them to talk.

Hon. James C. Ho:  So I'm actually going to exercise a prerogative to ask my own question because you've both mention congressional dysfunction. And like Tom, I too consider myself an Article One guy, having worked there. So let's just take, as a given, both of you saying that there's a lot of dysfunction in Congress and there are a lot of problems in society. We've talked a lot about horizontal separation of powers. We haven't really talked about vertical separation of powers. If we take the congressional inaction and paralysis as a given, why is the answer executive power as opposed to returning action to the states and having perhaps a vision of the federal government that is more consistent with the founding? Any reactions to that idea? In other words, would a lot of these separation of powers problems about the administrative state go away if the federal government simply did less?

Hon. Thomas B. Griffith:  No. Go ahead. 

Hon. Sally Katzen:  I'm attracted to that idea except that we have seen, in certain areas, races to the bottom or other kinds of actions by states that have produced a hodgepodge of rules. And just as you have the California emissions rules, which now govern the country because it's such a large market. You have one state making that decision. How do the other states feel about that? Even though I -- whatever my personal views might be. Similarly, in terms of child labor or minimum wage or other kinds of taxing policy where states are trying to attract businesses, you have some very strange play in the joints, and for nationwide companies, it drives them crazy. 

I mean, before I went into the government, before I went into teaching, I was in private practice and the biggest complaint I got from our clients was "My god. What am I supposed to do? I got 12 different rules I have to follow." And what they wanted was a federal rule preempting state rules. Now, that's only in certain areas, and I'm making a broad statement based on anecdotes. But while I'm attracted to the idea -- and that's actually what the Supreme Court has handed us in Roe v. Wade in the Dobbs case is, every state should decide. And you look at the results on Tuesday where the five states that had ballot questions came out in favor of reproductive freedom rather than restrictions on abortions. And I don't think anyone anticipated that particularly, but is that really going to solve some of the issues we have? I don't know. Is it worth trying? Anything is worth trying now. We are in -- [laughter].

Hon. James C. Ho:  Well, I love the enthusiasm of the panelists and of all the questioners. I'm afraid we're out of time. So would you please join me in thanking the great professors?

1:45 p.m. - 3:15 p.m.
Woke, Smoke, or Smart: Regulators Push for ESG

2022 National Lawyers Convention

Topics: Corporations, Securities & Antitrust
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006

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Executive branch agencies such as the SEC, CFTC, FTC and others have recently used their regulatory powers to advance ESG (Environmental, Social, and Governance criteria) policies that some consider beyond their core missions and outside of their legal authority. For example, the SEC has proposed climate change disclosure rules that are prescriptive as to the actions expected of public companies. Likewise, the FTC has asked “non-traditional” questions (e.g., environmental, governance, unionization status) during merger probes, and its draft strategic plans propose using antitrust and consumer protection to advance “racial equity, and all forms of equity.”

Institutional investors are also pushing ESG and corporate America is responding. Many companies have embraced “stakeholder capitalism” and as a result are taking public stands on voting rights, gun control, and other social issues.

Some are concerned about the economic and societal impact of these activities, and pushback is occurring in the form of judicial challenges to regulatory rulemaking, new state laws against divestiture and defunding of energy production and gun sales, and state antitrust investigations of institutional investor groups seeking environmental and social change at public companies.

Panelists will discuss the current state of play of “woke capitalism”, and efforts to address agency actions and those of private sector entities.

Featuring:

  • Mr. Jonathan Berry, Partner, Boyden Gray & Associates; Former Acting Assistant Secretary for Policy, U.S. Department of Labor
  • Ms. Dalia O. Blass, Head of External Affairs, Blackrock; Former Director, Division of Investment Management, U.S. Securities and Exchange Commission
  • Mr. Douglas Geho, Chief Counsel, Subcommittee on Antitrust, Commercial, and Administrative Law, U.S. House Judiciary Committee
  • Hon. Christine S. Wilson, Commissioner, Federal Trade Commission
  • Moderator: Hon. Andrew Oldham, U.S. Court of Appeals, Fifth Circuit

Speakers

Event Transcript

Svetlana Gans:  All right folks, if everyone can please take their seats. All right. Good afternoon, everyone. Welcome. My name is Svetlana Gans. I’m a partner at Gibson, Dunn and a member of The Federalist Society’s Corporation, Securities, and Antitrust Practice Group. We welcome you all here. Our Practice Group offers a variety of programs on SEC, FTC, DOJ antitrust, and related issues, and we hope you will all contact us to get more involved with our committee. 

Today, I’m honored and pleased to introduce the moderator for this panel, focusing on ESG policy. The Honorable Judge Andrew Oldham, from the Fifth Circuit Court of Appeals. Before ascending to the bench, Judge Oldham served as General Counsel to Texas Governor Greg Abbott, where he advised the governor on a range of issues and managed litigation in which the governor was an interested party. Previously, he served as a Deputy Solicitor General for the State of Texas, where he represented Texas in federal courts across the country, including twice before the U.S. Supreme Court.

Before moving to Texas, Judge Oldham was an attorney in private practice and clerked for Justice Alito and Judge David Sentelle of the D.C. Circuit. Judge Oldham received his bachelors from the University of Virginia, a masters from Cambridge University, and a law degree from Harvard Law School. Please join me in welcoming the Honorable Judge Oldham and the rest of the panel for today.

Hon. Andrew Oldham:  Thank you, Svetlana, and thank you all for attending this panel on a very important topic. For decades—and when I was a student in undergraduate and graduate school studying economics and economic issues—it seemed like everyone agreed that the -- and perhaps the most bedrock foundational concept in all of microeconomics, at least, was that the purpose of the firm was to maximize profit and to maximize shareholder return. It was a foundational concept and the foundational premise for all manner of things. It was the foundational premise for securities law and securities regulation. It was the foundational concept for securities litigation, for corporate governance and accounting, for antitrust principles, government regulation and deregulation, for decades and for generations.

But today, there has been a significant push and a significant attempt to change that paradigm and to redefine the purpose of the corporation, and that’s the topic that we’re here to discuss today. So I’ll throw out, as we start and open our panel and our conversation today, two of these paradigm-shifting attempts at redefining the purpose of the corporation. The one, and perhaps the biggest earthquake in this area, was the Business Roundtable’s 2019 revision of “the purpose of a corporation.” 

So for those unfamiliar, the Business Roundtable is a group of 181 of the largest -- CEOs of the largest corporations in America, and they changed their definition of the purpose of a corporation, which, as I said, had been for generations to maximize shareholder return. In 2019, they changed it to say the following, “Companies should serve not only their shareholders, but also deliver value to their customers, invest employees, deal fairly with suppliers, and support the communities in which they operate. We foster diversity and inclusion, dignity and respect. We respect the people in our communities and protect the environment by embracing sustainable practices across our businesses.” 

I’ll give you another one: this is from Marty Lipton and several of his partners from Wachtell, Lipton, which came] from a group of the World Economic Forum -- I’m sorry, this is a statement that they had developed for the World Economic Forum and then had published in a corporate governance magazine at Harvard. And this is what the partners at Wachtell, Lipton say is the simple formulation of the corporate purpose. “The purpose of a corporation is to conduct a lawful, ethical, profitable, and sustainable business in order to create value over the long term, which requires consideration of the stakeholders that are critical to its success, the shareholders, employees, customers, suppliers, creditors, and communities as determined by the corporation and the board of directors using its business judgment and with regular engagement with shareholders who are essential partners in supporting the corporation’s pursuit of this mission.” 

So we’ve gone from shareholder return and shareholder value is the only thing that matters to that it is, perhaps, one—if the least important—of the various considerations in the purpose of a firm. This has created all manner of fallout consequences. We have, now, entirely new methods of doing things that, when I was studying this topic 20 years ago, just was basic math. So we’ve gone from the basic principles of normal accounting—that operated when I was studying it—to entire new methods of accounting, including this so-called triple bottom line, which has been described as social, environmental, and economic or people, planet, and profit. So now, instead of just doing dollars and cents in measuring shareholder return, now we have to do corporate accounting to incorporate people and planet, and profit comes in but only at the end.

So this has created all manner of consequences for the panelists that are here to join us today. I would encourage you to look in your programs at their various bios. They’re incredibly accomplished and influential. I won’t go through them in great detail today. I will just give you their affiliations, and I will give you a brief introduction of them, and then I’ll let them speak for themselves. 

So our first speaker is going to be Ms. Dalia Blass. She is the Head of External Affairs for BlackRock and the former director in the Division of Investment Management at the Securities and Exchange Commission. After her, we will hear from Jonathan Berry, who is a partner at Boyden, Gray, and Associates and a former Acting Assistant Secretary for Policy at the Department of Labor. After Mr. Berry, we’ll hear from the Honorable Christine Wilson, a Commissioner at the Federal Trade Commission. And then, last but certainly not least, we will hear from Mr. Douglas Geho, Chief Counsel for Antitrust Commercial and Administrative Law at the U.S. House Committee on the Judiciary. So without further ado, I will turn it over to Ms. Blass.

Dalia Blass:  Thank you, Judge Oldham, and thank you to The Federalist Society for inviting me to participate in today’s panel discussion. I very much look forward to our dialogue. Before I start, just a quick note that my remarks today, anything I say, they are my own views and do not reflect the views of BlackRock or any of my colleagues at BlackRock. I just left the government, so I’m really used to disclaimers.

To help contextualize the work -- where I work, I’d like to spend just a minute laying out our firm, the industry, and the overall approach we have to managing our clients’ assets. As more and more clients have entrusted us with their assets over the years, our firm has grown, and with that growth comes increased interest in what we do and why. And I welcome this opportunity to share my perspective and answer any questions.

Over the course of BlackRock’s evolution, we’ve grown into one of the leading asset management firms across the globe, and we do that by making investing more and more accessible, more affordable, and delivering value to our clients—and value means returns. In the last 20 years alone, we have helped reduce the average expense ratios of U.S. open-end funds and ETFs—I’m sure all of you in the room have holdings in these great vehicles—by over 50 percent. That’s real money in investor pockets. While BlackRock is synonymous today with index investing, our roots are actually as an active bond manager. When BlackRock started, our edge was understanding and managing risk in bond portfolios better than anybody else. And that ethos—understanding and managing risk—that remains the core purpose of our firm. 

Our business is all about choice, and we have the largest platform in the industry that provides clients with choice in how they want to invest their money. We’ve succeeded by offering clients a very wide range of choice from which they can choose to meet their own investment objectives and their financial needs. The ultimate decision about where their money goes, how they invest, is theirs. Our clients, by the way, range from large institutional investors, like public pension plans, to individuals contributing into 401k plans or buying our funds for the very first time as they start their investing career. We are capitalists, and we really believe in the power of the capital markets. Anything that we have done, from our voting to our views on the transition to a low carbon economy, we do that as a fiduciary, with the goal of driving value—returns—to our clients.

Our only agenda is performance and value for our clients. Investing is one of the few jobs, by the way, where you get a daily scorecard. When the market’s closed, have you -- how have you performed? Have you underperformed or outperformed your benchmark? Are you delivering value for your clients? If not, by the way, they will find someone else who can do that. With that focus on risk, choice, and a robust capital market, we take an active role in responding to regulatory initiatives that would impact our clients. We pride ourselves on being the voice of the investor. This is why we actively engage with the SEC and the DOL and others on key regulatory initiatives in the ESG space.

So let’s start with that. Let’s start with the SEC, which I have to say has been quite active in the climate space and engaged in a multipronged whole-agency effort to enhance and mandate climate-related disclosures across market participants under its jurisdiction. I’ll touch briefly on three key proposals, but I will note, at the start, this is just three of others. There are others out there in the ecosystem, including one that just came out today from the GSA for federal contractors. 

First, the SEC has proposed extensive disclosure requirements on public companies. The key provisions include: first, disclosure of GHG emissions that covers scope one and two and, if material or if the company has set targets, scope three, and with third-party attestation—that’s, essentially, an auditor doing the attestation for scopes one and two; second, disclosure of any transition plans, internal carbon pricing, climate-related targets and goals adopted by the company, and progress towards such goals; third, disclosure of climate-related risks over the short, medium and long term, with their impact on business activities; fourth, disclosure of corporate governance of climate-related risks and the process for managing these risks; and fifth, disclosure of qualitative and quantitative risks and historical impact in the notes that audited financial statements presented on a disaggregated basis if the aggregated impact is one percent or more of the total line item—that’s a lot. 

Importantly, by the way, the proposed disclosures would, generally, be filed, not furnished liability. What that means, essentially, translates into strict liability for the issuers. Shortly after this rule was proposed—it was proposed in March—in May, the SEC moved to require disclosure for funds and advisors. For the funds, the SEC proposed a layered disclosure framework based on whether a fund is an ESG integration fund, an ESG focus fund, or an impact fund, with the level of detail increasing as you go from integration to impact. And the proposed disclosures would include voting and engagement, as well as, in certain cases, also GHG emissions. And for advisors -- advisors also that consider ESG factors, they also would have mandated disclosures in the documents they file with the SEC on an annual basis and in their client correspondence. And that also would include voting.

Finally, the SEC proposed amendments to what’s called the Names Rule. It’s a rule that’s an existing rule; it’s been in the books since 2001 to cover strategies including ESG. The current rule requires that if you have -- it requires 80 percent in a portfolio to be invested in assets that track the name. So just by way of example, if you are a fixed-income fund, 80 percent of that portfolio should be in bonds.

So touching on where BlackRock is with respect to these SEC proposals, and then I’ll cover DOL briefly -- generally, our views are broadly aligned with the SEC’s because BlackRock has consistently advocated for providing the markets and investors with high-quality, globally comparable, climate-related disclosures. However, we do believe some changes would improve the proposals. For the climate issue or rule, we provided a very extensive comment letter—you can find it on our website.  I’ll just briefly touch on three key pieces of it, but it’s a pretty long letter.

First, we recommended adherence to the very well-established definition of materiality. For example, if you look at the proposed changes to the financial statements, this one percent item I mentioned—one percent threshold—we do not believe that is financially material. And materiality is pretty key and has driven disclosure in the federal security space since I was a baby attorney, if not before. 

Second, we recommended alignment with the TCFD framework, and if you’re not familiar with that, that’s the framework that, generally, is very widely used. It’s a principles-based framework that issuers globally have used—are using now—of climate-related disclosures, and parts of that proposal went really well beyond the TCFD, introducing prescriptive, granular, costly, and in some cases, competitively harmful information. 

And third, we urged the Commission to consider the impact on the U.S. capital markets of imposing disclosures solely on U.S. public issuers. We noted that this could encourage the sale of physical assets from public to private. We also noted that it could disincentivize private companies from going public, which would reduce choice in the public markets and impact capital formation.

And finally, we also recommended appropriate liability standards to reflect the evolving nature of this disclosure. By way of example, we recommended the Commission consider proposing a new form, which would not have the strict liability standard of the 10-K—the annual report, which is where they propose to have the disclosure—for certain elements of the proposal, such as the GHG emissions and transition plans.

On the funds and advisor rules, we support the Commission’s goal of reducing investor confusion and guarding against greenwashing in the markets. But we, again, suggested certain improvements in order to meet those goals. For example, we recommended the Commission remove the ESG integration fund category because ESG integration is not a fund. It is an investment process, and its portfolio managers have been using that since -- a very long time as they look at climate risks and other ESG risks. 

We also recommended removing the added layer of stewardship disclosures because stewardship is not a definitive characteristic of ESG. It’s a definitive characteristic of just asset management in general. And the disclosure and stewardship, especially for asset managers, is already out there. Form N-PX, which has been in the books for a while—and which the SEC just recently amended—already requires a significant amount of disclosure in this space. 

We also noted it was unclear to us why the SEC elevated the E above the S or the G, regardless of the fund, and why within funds that have an E objective, why they would elevate the GHG emissions above any other metrics -- environmental factors and metrics. 

We did not submit our own letter in the Names Rule. We worked through our trade associations for those letters, but I will note—and this is just my view—expanding the rule to cover portfolio characteristics rather than security characteristics, which is where the rule is right now, is just too subjective. There’s a reason why this rule was not originally intended to cover strategy, and we believe that it should remain that way.

In addition to the SEC, the Department of Labor also moved in this space to cover ERISA plans. So in 2020—and Jonathan would know this quite well—it adopted a rule to provide updated guideposts for fiduciaries of employee benefit plans governed by ERISA. The rule clarified that plan fiduciaries must select investments based on pecuniary factors, defined as factors that are expected to have a material effect on the risk return of an investment.

With respect to ESG factors -- and this is important. With respect to ESG factors, the DOL, unlike in the proposal, recognized that such factors could be pecuniary. The DOL proposed amendments to this rule in October of last year. The amendments would remove the definition of pecuniary, which was a pretty central piece of the 2020 rule, and instead stated that a prudent fiduciary may consider any factor that is material to the risk-return analysis. This regulation, by the way, the final rule is with the OMB, so it’s expected to come out any day now. 

As far as BlackRock’s position on the DOL rules -- for both the 2020 Rule and the 2021 amendments, we agree with the DOL’s long-standing views with respect to ERISA fiduciaries, which must always put the economic interests of the plan, in providing retirement benefits, first and cannot sacrifice investment returns or take on additional risk to promote goals unrelated to the financial interests of the plan participants and beneficiaries. This is consistent with BlackRock’s long-held views with respect to ESG integration. 

We do support the DOL’s goal of making clear how fiduciaries can consider ESG factors because certain aspects of the 2020 Rule presented some investment and recordkeeping challenges. So we were broadly supportive of the 2021 proposal and suggested some really marginal comments to improve.

I’ll pause here, and I will let Jonathan, one of the leading architects of the 2020 Rule, add in his thoughts [LAUGHTER] and correct me on where I went wrong with the 2020 Rule. But thank you again for inviting me to participate today.

Jonathan Berry:  Thank you, Dalia, and I have colleagues in the room who are more central to this, but I’ll happily share the credit if it gets people to like me. So the through line in BlackRock’s position -- I want to take a step back here and point out with both BlackRock as well as the substance of these ESG regulations that Dalia’s just taken you through, the consistent thread is that they track elite preferences. And what do I mean by this? Well, we can look at some of the survey data that’s been submitted in the climate rulemaking—the climate disclosures rulemaking—for example. Consumers’ Research submitted a survey indicating that 70 percent of retail investors—that’s living, breathing, natural person, human beings—indicate that the primary use of their investment income is to save for retirement or to supplement their income, as opposed to the 3 percent who are seeking to drive sustainability and the 2 percent seeking to drive social change. 

Likewise, Professor Cunningham—from GW, I believe—submitted a comment indicating that institutional investors vote for environmental shareholder proposals at about twice the rate of individual investors and tied also to a survey that U. Chicago and FINRA did of over a thousand retail investors, indicating that individual investors prioritize return on investment and other financial factors of the kind emphasized in the DOL rulemaking -- emphasized those factors in their investment decision making more than any other factor. Individual investors, retail investors, identified environmental aspects of a potential investment as the least important consideration, compared to financial governance and social factors. And this tracks surveys of workers as well—non-management workers. 

A recent survey by American Compass found 63 percent of non-management workers, working people, want businesses to, in their words, “focus on business and stay out of social justice issues,” like election reform, racial equity, LGBTQ+ rights. The greatest levels of support for companies taking a public stance on behalf of social justice were white, college-age, educated democrats at 77 percent. So I think it’s fair to call ESG investing an elite preference, not a majority sentiment. And for this crowd, my fellow law nerds, I don’t think I need to spend a lot of time explaining why it is that elite preferences, and not majority views, are what’s getting encoded into the regulations on ESG that Dalia just reviewed.

The short answer, of course, is the administrative state. The medium answer is that the administrative state encodes elite preferences like ESG because it stands outside of our constitutional system of democratic accountability. This is the core problem with the delegation of legislative power to the Executive Branch—namely, the distance it puts between public policies and the lawmakers who nominally own them. Even had the red wave materialized this week [LAUGHTER] and produced -- 501(c)3 -- and produced a radically different Congress, I’m not sure—and this is the point that’s important for this conversation -- I’m not sure that would have drastically altered the Biden administration’s rulemaking agenda—changes the legislative agenda, sure, but not the rulemaking agenda, no. Instead, what’s happening is a steady progression of regulations reflecting elite priorities. 

In the ESG space, we see rules being justified by reference to shibboleths like climate-related financial risk and diversity—and I can talk about those a little bit more, maybe, in the discussion. One of them is -- typically boils down to quotas on the basis of race and sex, which are commonly illegal under federal and many state laws. And the climate-related financial risk is also a concept worth unpacking, but I’m going to stay high-level for now. 

But there’s one justification put out in these rulemakings for mandating ESG disclosures that I want to speak to now. The SEC has repeatedly invoked investor demand as a rationale for mandating various ESG disclosures by public companies. But this investor demand is not arising spontaneously from ma and pa investor, owning a few shares of Coca Cola and clamoring for a diversity matrix that jams corporate leaders into identity politics boxes, of course not. It’s BlackRock and State Street and Vanguard and lots of other big institutional investors and asset managers purporting to speak on behalf of everyone who has their money parked there. 

But these big asset managers, they have agency and accountability problems of their own, like with the issue of delegation of legislative power. Recall the survey data I mentioned about actual retail investors—again, living, breathing human beings—overwhelmingly, they’re not interested in net zero commitments or diversity quotas. But somehow, when BlackRock adds up all of their shares, it comes up with a progressive political agenda, and it doesn't stop there at this obvious gap between little investors and big Wall Street pools of capital. 

Indeed, at every level of money management removed from regular investors, there seems to be an agent channeling the funds to political agendas. Even when actual retail investors are given the opportunity to express their views—if they’re allowed to by the asset manager—they’re often limited to choosing among options provided by proxy advisors, who themselves have an agenda and something approaching a duopoly, but I’ll leave that to the antitrust experts. 

For example, the proxy advisor Institutional Shareholder Services, ISS, points investors to support policies like racial equity audits of companies. And even when actual retail investors retain their right to vote, their influence is nothing compared to the institutional influence that managers like BlackRock exert on companies every day through engagement. What investors face at the end stage is a series of choices that have been filtered by a dominated process. They face a deluge of progressive shareholder proposals or director candidates in company initiatives with no hope for influence or initiative of their own.

To borrow a phrase from SEC Commissioner Hester Peirce, our system of corporate governance is becoming a series of “pressure points that activists can use to strong-arm” funds to advance their goals. Apparently, we’re supposed to believe that it’s the market demanding policy changes that line up quite nicely with the Biden administration’s top priorities. But it is not the market. It is artificial layers of money managers created by public and private regulators. In this way, ESG is vehicle for ideological control of capital allocation.

So one last comparison between the public and private sector proponents of ESG regulations, they’re all the same narrow class of people, and their functional accountability system is not responsibility to voters or investors but to their own cohort. The revolving door is part of it, but a lot of what we call virtue signaling, with asset managers or CEOs touting ESG practices, is really messaging directed to one’s own colleagues in the managerial class to broadcast and enhance one’s own status.

I want to end with a very interesting quote from the great Irving Kristol, writing about the growth of large corporations in the 70s. “Both the founding fathers and Adam Smith could not have interpreted the domination of economic activity by large corporate bureaucracies as representing in any sense the working of a system of natural liberty.” I look forward to further discussion.

Hon. Andrew Oldham:  Thank you, John. Commissioner Wilson.

Christine Wilson:  Thank you, Judge Oldham. Thanks to my fellow panelists for their very insightful and provocative views, and thanks also to The Federalist Society for inviting me to speak today. So I will also give the standard disclaimer: the views that I express here are decidedly not the views of any other Federal Trade commissioner [LAUGHTER] because my good friend and colleague and ally, Commissioner Noah Phillips, left about three weeks ago. We had his official going away party yesterday, and so now the task of writing lengthy dissents falls solely to me [LAUGHTER]. And I just had a big one issued this morning, and we’ll talk a little bit about that in a bit.

So for those of you who are not familiar with the Federal Trade Commission, we exist to protect competition and consumers, and that has long been our mission. We are all about promoting free market forces and accurate non-deceptive information in the marketplace so that rational consumers can make decisions for themselves. But that mission has changed now that we have new FTC leadership under President Biden. These folks call themselves Neo-Brandeisians; they carry the mantle of Justice Brandeis, and they have allies both inside and outside the administration.

So the most fundamental change at the Federal Trade Commission is the attempt to abandon what we at the FTC and what we antitrust lawyers call the consumer welfare standard. And that’s a fancy way of saying, “We evaluate whether conduct is lawful based on how it impacts consumers.” So will it raise prices, decrease quality, hamper innovation, decrease output? And if any of those things is true, absent other procompetitive justifications, the conduct is likely going to be unlawful. 

But the Neo-Brandeisians dislike the consumer welfare standard because they believe it was designed by elites to favor business at the expense of workers. And they view the sound economic underpinnings of antitrust enforcement as a fig leaf that justifies both the consumer welfare standard and the broader status quo. And so, the overhaul of antitrust policy, therefore, requires ditching the consumer welfare standard and the economic framework that serves as its analytical foundation.

So the Neo-Brandeisians are vigorously working to shift the focus from consumers to workers. In describing the goals of antitrust, our Chair, Chair Lina Khan, frequently references workers and honest businesses. Now, I’ve been in the private sector for longer than I’ve been in government, and I’ve counseled many, many companies. I would say roughly 99 percent of businesses are very interested in complying with the law. But workers and honest businesses is the mantra of Chair Khan and her fellow travelers. 

Sandeep Vaheesan is one of the thought leaders in the Neo-Brandeisian movement. He has co-authored various articles with Chair Khan, and he has embraced the concept that antitrust law is “a once populist and progressive law against exploitation that has become the law for exploiters as efficiency and power win.” And more recently, Vaheesan explained that the FTC should “treat low prices as an unfair method of competition because they exploit workers.”

So two developments are based on this fundamental belief. First, the FTC issued a policy statement on gig workers in September. Now, from a practical perspective, it’s clear that the gig worker policy statement is meant to shift our enforcement because we actually, in our consumer protection mission, already look very closely at inflated earnings claims for potential investors or independent contractors. We chase down and enforce against deceptive franchise opportunities and other unfair and deceptive practices that may harm consumers when they are pursuing a livelihood. And on the competition side, we already investigate whether proposed mergers or types of business conduct harm competition for labor as an input—so, in other words, competition for employees. 

But this policy statement goes much further. It focuses on gig workers to the exclusion of consumers and other economic actors. And at the open Commission meeting—this was fascinating to me—the speakers who signed up to share their views with the Commission were lots and lots of gig workers who were very concerned that we were about to issue a gig worker policy statement. They said, “We really like our jobs. Please don’t insert yourself into this and mess up our livelihoods.”

Second, the National Labor Relations Board and the FTC recently signed a memorandum of understanding. According to the general counsel of the NLRB, this MOU will help the two agencies tackle complicated workplace issues, including gig work, the ability of workers to act collectively, and the classification and treatment of workers. Now, I do not object to partnering with other federal agencies where we have expertise that we can actually contribute. So we work with Food and Drug Administration frequently to identify any competitive conduct in the pharma space that would raise prices illegally for consumers. 

I’m not aware of any expertise that the FTC possesses on the proper classification of workers or many other topics in the MOU. But here’s the thing, the MOU could now allow the NLRB investigation concerning classifying independent contractors to morph into an FTC related matter about worker misclassification. So instead of using the FTC’s limited resources to enforce antitrust and consumer protection laws and facilitate the functioning of free markets, we’re going to help the NLRB turn one labor investigation into two labor investigations.

The second effort that I want to address is changing the FTC’s strategic plan. As I mentioned at the outset, we have long existed to promote competition and protect consumers, but in August, the Commission issued its strategic plan for fiscal years 2022 to 2026. The majority’s vision for the agency expands its mission to include goals outside our statutory remit. The agency lacks the expertise and, in fact, the jurisdiction to pursue the additional societal goals that are now embodied in the strategic plan. And, of course, pursuing those goals is going to distract from the important work that we actually have to do and that we were established to accomplish, and my friend Doug is going to talk a little bit more about that.

So, for instance, the new strategic plan requires enhancing FTC employees’ understanding of how climate change impacts the FTC, and our performance metrics will cover the number of training and information offerings to staff on climate literacy and resilience topics. So Chair Khan has frequently told Congress that we are stretched too thin and understaffed. If we’re stretched so thin, why are we offering our employees classes on climate change, and how does that help our mission? 

We’ve also seen a focus on racial minorities over other consumers, and let me be clear, I believe that each person is created in the image of God. I abhor discrimination, but the FTC mandate does not include or encompass the pursuit of racial equity. In 2020, Commissioner Slaughter, who is still on the Commission, proclaimed that there has not been nearly enough discussion about whether our antitrust laws can play a role in racial equity and that her opinion was that antitrust can and should be antiracist.

Then, in a draft strategic plan put out for public comment, one objective was to advance racial equity through the FTC’s competition mission. In the final strategic plan for 2022 to 2026, the language was slightly modified. Now our mission is to support equity for historically underserved communities, and this shows up in both the competition and consumer protection missions. 

So the insertion of these additional goals into our strategic plan means, of course, that consumer welfare cannot be maximized because it’s a mathematical truism that you can only maximize one value at a time. And so, we are choosing to step back from doing what’s in the best interest of consumers and substituting other goals instead.

And then, finally, I want to focus on changes to our in-depth merger reviews. So we enforce the Hart-Scott-Rodino Act, which says that mergers that are of a certain size or value need to be notified to us and reviewed by us to determine whether they will result in a reduction in competition before they are allowed to proceed. And so, as I’ve mentioned—including in testimony before the committee for which Doug works—we have long looked at labor issues in the sense that competition for labor as an input is an important and relevant issue. And so, if we are going to -- if there’s a merger that will create what’s called a monopsony—it’s, essentially, a monopoly buyer -- a monopsony for labor as an input—we will step in and remedy that, and we have done so. But Chair Khan has moved into areas of inquiry, in what we call our second requests, our in-depth merger investigations, that have nothing to do with the Clayton Act or Section 7 violations or the Hart-Scott-Rodino Act.

For example, I don’t know what collective bargaining and unionization have to do with analyzing whether a merger is going to raise prices or decrease output or suppress innovation or otherwise harm consumers. And we’ve seen similar rhetoric unrelated to competition that displays a clear distaste for private equity as a business model. We’ve seen remedies imposed on private equity companies even when evidence uncovered in investigations indicates that private equity involvement has no influence on whether competition concerns are going to arise. And in fact, we have imposed heightened legal obligations on private equity companies, as opposed to other companies who stand in similar situations, which, obviously, is a concern. Imposing heightened legal obligations on disfavored groups like private equity because of who they are rather than what they’ve done raises rule of law concerns. 

So one final note. Some of you may have seen today that the FTC released a new Section 5 policy statement. Section 5 of the FTC Act gives the Federal Trade Commission authority to prohibit unfair methods of competition, and legislative history makes clear that Section 5 was intended to be broader than the Sherman Act, the Clayton Act, and the other antitrust laws. The new Section 5 policy statement says that the Commission is now going to seek to advance the welfare of inefficient competitors, workers, and other unnamed but politically favored groups at the expense of consumers. And so, if we can label conduct exploitive, oppressive, abusive, we’re not going to look at business justifications, we’re not going to look at efficiencies, we’re not going to look at pro-competitive benefits. We are, essentially, going to label it, per se, unlawful.

This is a major sweeping development that is going to enable the FTC to attempt to remake the U.S. economy. To conclude, in recent testimony, Chair Khan promised she was not listening to ESG concerns and letting mergers go through that promised better ESG results. That may be true, but what I have seen is a willingness to use every conceivable tool to block mergers, including potential ESG harms. 

And then, I think, as a way of segueing to Doug—and Doug is going to talk a little bit about this—the last time the FTC went this far afield of its mission, we were stripped of funding, we were stripped of legal authority, and we were required to institute new and substantial procedural hurdles to foster public trust. I fear we’re heading down a similar road, but I’m not going to be surprised, and I’m also not going to be disappointed when Congress steps in.

Hon. Andrew Oldham:  Thank you, Commissioner Wilson. Last but certainly not least, Mr. Geho.

Douglas Geho:  Hi. Doug Geho. And I’ll also give the standard caveat—I’m not speaking on behalf of the House Judiciary Committee or any member. These are just my views and observations. I was invited to give a description of or set of perspectives on ESG and antitrust policy and enforcement from Capitol Hill. And so, that’s what I’ll try to do here in three points: two that are more brief, and the first of which relates in part to what Commissioner Wilson was describing. The third seeks to draw from how recent discussions of antitrust, more generally, on Capitol Hill -- how those discussions can inform our understanding of where congressional interest in antitrust and ESG could lead.

So point one: some in Congress have voiced strong concern about broadening antitrust policy goals or legal standards in ways that could help regulators and enforcers push companies toward ESG. So, for example, one member has criticized “the objective of repurposing antitrust law,”—listed as here is of ESG related issues—and then said, “It is inappropriate to use antitrust law to advance these priorities.” and went on to say, “Congress must not overlook how antitrust law is currently insulated from arbitrary enforcement for projects and policy objectives distinct from the competitive process itself.” So in ending on this first point, I’d say that to the extent enforcers are seeking to broaden antitrust ambit without congressional authorization, that has drawn Congress’s attention already and will probably continue to, and there may be more time to discuss that momentarily.

Point two, on the Hill, there is also strong concern that private sector efforts to advance ESG may break antitrust laws. And here, I’ll provide two examples. A lot’s happened over the last week, so some of us may not have seen this, but Senator Cotton and several other Republican senators sent what I thought was a remarkable letter, and I’ll quote from it because the language is important. This letter was sent to 51 large U.S. and global law firms and amounted to a preservation request relating to ESG and antitrust inquiries. 

[LAUGHTER]

Here’s the letter—or part of it, part of the most striking language—"The ESG movement attempts to weaponize corporations to reshape society in ways that Americans would never endorse at the ballot box. Of particular concern is the collusive effort to restrict the supply of coal, oil, and gas, which is driving up energy costs across the globe and empowering America’s adversaries abroad.” The letter went on to say that Congress will increasingly use its oversight powers to scrutinize “institutionalized antitrust violations being committed in the name of ESG and refer those violations to the FTC and the Department of Justice.” And I’ll get to this in my third point, but I think that kind of inquiry has significance regardless of what the outcome of any particular election cycle may be for any given party.

The second quote is an example from Leader McCarthy when asked about ESG and certain companies involved in the process of advising on ESG-related goals. He was asked about whether these -- any of these engage in antitrust violation. He said, “You’re right, one hundred percent,” and went on to say, “ESG is making the entire country weaker. It’s making China and India stronger. It’s destroying our companies, and it is playing politics.”

So those are two quick descriptions of different aspects of how ESG and antitrust relate in recent congressional discourse. The third point I’m going to make is a conclusion, and then I’ll show my work. And it attempts to synthesize my understanding of how congressional debates over antitrust, generally, have unfolded recently and see if that offers us any clues as to where the current focus on ESG and antitrust may lead.

So point three and the conclusion is that congressional interest in antitrust and ESG is likely to be enduring, unless Congress sees corporate America step back from ESG and related social activism or policies. To unpack that, there has been a meaningful change or shift in the rule of thumb that guides how some on Capitol Hill react to antitrust questions or regulatory proposals, and it’s that change in the rule of thumb that I think helps suggest the interest in ESG and antitrust will be enduring.

It used to be the case—say, ten years ago—that almost all Republicans would have said categorically, “Big is not bad or big is not necessarily bad.” Today though, at least some Republicans would likely say, as a default rule of thumb, “Big is not bad unless big is woke.” And I think what accounts for that evolution in the rule of thumb or heuristic is important because whether it maps on well to ESG and antitrust depends on what’s driving that shift. And first, I think it’s important to say what has not driven that change in the rule of thumb. I’d posit that that shift is not due to new economic understanding or widespread deep study of antitrust doctrine on Capitol Hill that justifies renouncing all prior understandings. In other words, it’s not as if Congress has reconvened the Antitrust Modernization Commission and then been told in a subsequent set of recommendations and a lengthy report, “We were wrong 15 years ago. Throw everything out the window.” That has not happened.

Instead, I think the evolution in the rule of thumb that I described is a function of how many big businesses are willing to march in unison on cultural or political issues. Stated differently, partisan corporate social activism is animating significant backlash against corporate America in some quarters, and it’s not hard to come up with ways to characterize this type of social activism or corporate decision making—for example, denying goods or services or opportunities to certain speakers or viewpoints that challenge progressive orthodoxies, suppressing or demonetizing or disassociating with dissenting views. And then another way of thinking about this might be asking why corporate America, generally, seems to calibrate its moral compass with views that might come from the Southern Poverty Law Center or BLM but turns a deaf ear to other viewpoints from organizations like Alliance Defending Freedom or The America First Policy Institute.

So that’s a description of the shift in the rule of thumb and whether that -- how it’s evolved over time. I think whether or not that rule of thumb applies in this context turns on how some members in Congress think of or perceive ESG. In other words, is ESG perceived as woke or as worthwhile on Capitol Hill? And I’ll give some quotations to help—again, we have limited time but—illustrate how some perceive ESG. 

A recently elected member of -- a soon-to-be member of the Senate has said, “ESG is basically a massive racket to enrich Wall Street and enrich the financial sector of the country at the expense of industries that actually employ workers in middle-class jobs.” Another congressman recently said, “ESG investing is a cancer within our capital markets. It is a fraud on American investors, and there is a need for institutions to stop this nonsense of politicizing capital allocation. And the last quote is not from a member of Congress, but I’m including it because I do think it captures the sentiment of some members of Congress. And this is Peter Thiel—“ESG is just a hate factory. It’s a factory for naming enemies.”

So, in conclusion of this third point, given how debates about antitrust have unfolded on Capitol Hill and that evolution in the rule of thumb I described and the perceptions in some quarters of ESG, I think unless something changes, congressional interest in antitrust and ESG and the nexus between the two will be around for quite some time. Thanks, and I look forward to discussion.

Hon. Andrew Oldham:  Thank you, Mr. Geho. So for all those in the audience who are old hands at this, you know the drill. We’ll have some panel discussion, and then we’re going to open up for audience questions. There’s mics on either side of the auditorium, so feel free to queue up while we are discussing.

Why don’t we go back and start with Ms. Blass. And I want to both give you an opportunity to answer anything that came up in Mr. Berry’s remarks that you might want to answer, and I was also hoping that you might be able to help us understand—for those of us in the audience who are not institutional investors -- if you can try to unpack the idea of what are so-called ESG risks or ESG metrics? 

So everyone in the audience knows that ESG stands for Environmental, Social, [and] Governance, and I think we have some general sense of what we’re supposed to be capturing when we talk about these concepts, but it might also be unclear to folks, how do we measure these things? How do they influence corporate accounting or corporate governance? And one of the other points that Mr. Berry arose that I hope you might be able to answer too in your remarks is if you could tell us if -- how do we unpack the idea that ESG is, in some sense, a response to market demand, but it is folks like BlackRock or institutional investors who are the source of the demand? How do we get -- how do we unpack the chicken and egg problem? 

Dalia Blass:  Thank you for that. Actually, as I was listening, there was so much -- so many threads I could pull here and respond to, so I will try. Let me start with ESG because I do think there’s—and I was listening here—a tremendous amount of misperceptions, perhaps, about what ESG is or is not and what we do with it. But let me run back to something I said in my opening remarks because financial services is a very, very diverse industry. BlackRock and asset managers like BlackRock, when you hear about -- we have about eight trillion dollars of assets under management. That is not our money, and it’s not captive money, right? So our investors, if they don’t like what we do, they can redeem their funds. We’re not a balance sheet business. That’s a very important point. 

ESG, let me just give you an example. I think this is the way -- I’m not an investor, by the way. I’ll add that as a caveat as well. But let me just give you an example. Let’s say that you are an investor, and you are looking at commercial real estate—and commercial real estate on a shoreline of this great United States of America. You look at two buildings, and they are exactly the same. Every single thing about those two buildings is the same. It’s the same developer, it’s the same size, it’s the same year, it’s the same materials, whatever else goes into construction. There’s one difference between the two. One of them is 2 feet above sea level; one of them is 20 feet above sea level. And let me make this a little bit more interesting. Let’s say it’s in the shoreline of Florida—which, by the way, our thoughts, obviously, are with Florida right now because they are, unfortunately, the second time in a row, facing a pretty devastating hurricane. Are you not going to take that into account as you invest? That is what an investor does. You look at these risks. That is a climate risk. 

Let me go to governances, just to give you another example. And I -- Jonathan, you mentioned boards and diversity, which is not a narrow definition, and that’s really important to think about that. Diversity spans anything from demographic characteristics to professional experience. Do you have a certain specialty that would lend itself to the board and the business? It is a very vast definition, and there are studies -- there is studies out there that show a correlation between diversity—in all its forms, by the way; it is not a static, singular definition—and performance by the company. There’s a lot of studies out there. So as long-term investors, we do look at that because it drives value. Diversity drives value. And that’s something else that’s really important because, Judge Oldham, you started your remarks about the BRT and the change and purpose. 

I actually run our Center for Long-term Capitalism. And what does that mean? And, by the way, at its core, the primacy of shareholder value is there. Shareholders own the corporations, so you cannot say -- they are the legal owners. The value inures always to them, so there’s always going to be this shareholder value and the primacy of the shareholder. What you look at to drive this long-term durable return for the shareholder—and we’re doing research in this space, and it’s really exciting—you look at what factors can drive this long-term value. That is when you -- at least when we at BlackRock talk about long-term capitalism, and we talk about stakeholder capitalism, it’s not equal. We do look at what factors drive a long-term shareholder value. 

And we just published a great piece—I know you can find on our website—called “[After] the great resignation,” looking at -- when you look at employees and the turnover -- turnover, by the way, there is correlation between performance and turnover. The higher the turnover, the less performance. So we look at what is driving employee to leave or to stay and how that could impact. This is how you drive long-term value for your shareholders, and that’s the bottom line for us, by the way, when it comes to ESG—when it comes to all this. 

At BlackRock, our work is research- and data-driven. That is what we do, research and data. And we pride ourselves on doing that. So when we look at ESG, when we look at climate risks, when we look at ESG risks, when we look at ESG integration—which, by the way, ESG integration, at its core -- as you look at our portfolio managers, they look for unpriced investment risks and opportunities. That is ESG integration. So when you look at that, you are looking at the drivers of value, and our work in this space is research- and data-driven.  

I do want to touch, if I may, on competition because that has also come up here. So just three threads I’ll pull here. One, the industry—and I know, Jonathan, you mentioned BlackRock, State Street, Vanguard—this industry is over -- just in the United States, over 100 trillion dollars. It is a large industry. It’s also a very diverse industry. So, of that 100 trillion dollars, BlackRock manages about 8 trillion. Our percentage revenue share in this big industry is three percent. It’s a big, diverse industry. It’s very competitive. And it’s also an industry, by the way -- really look at the history of it because it’s really important to see how much good has been driven by this industry. 

Index funds were introduced in the markets in the mid-‘70s. In 1980, United States household owned -- about five percent were actually invested. U.S. household, five percent -- only five percent were invested in the markets. Today, it’s about half. Why? Because of these funds. It's accessible, and it’s affordable. It is cheap. It is easy and it’s professionally managed. That is what the industry has provided—affordable, accessible venues into the United States capital markets, not for the elites, for the retails, for the human beings. And by the way, at BlackRock, we’re at 19,000living, breathing human beings, by the way, just so you know there. 

Cost: we’ve actually published a paper on that one, “The Economies of Scale,” showing how much this industry and how much index investing has brought down cost, not just for index investors, by the way, but across the market because of substitution strategies. So tremendous power in there as well.  

And then I just want to end with one point: voting. Voting is very important. And, Jonathan, you mentioned voting and voting statistics in there. BlackRock has been a leader and pioneer in voting choice. We were the first asset manager to do it. We are very delighted to see two other asset managers now join us on this table. About half of our index equity is eligible for voting choice. Voting choice, essentially, means that they can take the vote. They can participate in this. And this room is full of attorneys, and I invite you to join us in something because the next frontier needs to be breached. And that next frontier is how can we, in the United States, solve the legal and operational challenges so that every investor has the right to a voting choice, so that we can democratize voting even more and more.  

There are lots of hurdles in the United States. We’re able to, actually -- we’re going to be rolling out a pilot in the United Kingdom, where the legal and operation allows us -- the infrastructure allows us to go more retail. We are not able to do that yet in the United States. But we are investing our resources, our time, our talent, and effort to push voting choice out more and more because we do feel that is very, very important. It’s the next step in providing choice in the United States market. So I invite you to join us in this effort.

Hon. Andrew Oldham:  Thank you very much, Ms. Blass. Mr. Berry, obviously, any response you have to that. In particular, I wanted to give you some space if you wanted to unpack the -- some of what you understood as ESG risks or the net zero commitments. These are buzzwords that we often hear in these panels but are not, perhaps, as accessible to everyone.

Jonathan Berry:  Yeah, absolutely. And let me say at the outset, I agree 100 percent with Dalia that the advent of index funds as broadly diversified investment vehicles that have made very low-cost offerings available to a lot of mom and pop’s retail investors is commendable. And I include that, absolutely, BlackRock’s role -- specifically, in propagating that investment model. There’s a tremendous amount to be said for that.

Where I start to differ—you may find it hard to believe that I differ on a few points—is that -- let’s start in reverse order, with voting choice. So a few observations -- one, is that while BlackRock is, indeed, starting to pioneer a certain amount of pass-through voting to some of its clients, it’s not doing pass-through engagement. There is no mechanism available by which I, as the underlying investor, get to engage on behalf of my own shares. It’s still BlackRock employees in the room with the issuer when it comes to that. And a related point is that—at least, as of yet, and if they’re going to change their ways on this, that’s -- there can be a conversation on that—BlackRock, on its SEC filings, I believe—I’m not an expert, this is 13G, 13F—does not segregate out those shares, where it retains voting rights and where it has, indeed, passed those back. So as far as the issuer sitting at the other end of the conference table knows, BlackRock is still accountable for, is wielding, is representing, whatever percentage, 8, 12, 15, whatever percent of that corporation’s total shares.

And then, third, oftentimes—at least, in terms of what we’ve seen so far on who is the recipient of these pass-through votes—voting power, what it does is it’s pushing the agency problem down one level because with large institutional clients like public pension funds, to put it gently, a lot of those pension funds are not the most rigorous financial pecuniary fiduciaries of pensioner’s assets. I’m looking forward to the Illinois bailout [LAUGHTER]. I’m not. I’m not. And similarly, a lot of the choices are shaped by a limited menu of options selected by the proxy advisor duopoly, ISS and Glass Lewis. 

Now, on to the substance of ESG. So it is not -- it would be a very straightforward violation of fiduciary duty, for a fiduciary like BlackRock—this applies to any company as an issuer, and I know BlackRock is an issuer as well—that for them to simply come out and say, “We are not taking action X because of financial considerations or long-term value, we just think, separately, this is the right thing to do. We care about the climate simply as such with no relationship to our business operations.” You can’t say that. There’s a lot of ways to tag that liability-wise, but the short answer is you can’t.  

So instead, what happens are these predicates that get developed that are, for lack of a better way to put it, strategically equivocal on both. And I’ll use climate and diversity as the most prominent examples of this. Diversity—maybe, in some sense, a simpler topic, insofar as the element of race, for example—remains one of the qualifying ways by which one can become an underrepresented minority eligible for the preferential treatment, satisfying BlackRock’s current voting guidelines, for example, which do set minimums in terms of underrepresented as well as women. That’s hard not to call out as a violation of Section 1981, banning race discrimination in private contracting. 

The fact that there are non-racial ways to satisfy that does not cleanse the policy of that taint. That’s like saying, “Ok. Well, to fill this job, you’ve either got to be white or from San Francisco.” Well, it’s possible to satisfy that, to fill that, without taking race into account, but the inclusion of the racial element is a violation. The evidence on diversity and corporate performance, by the way -- as if private money making could ever be a justification for this kind of discrimination, as if -- the evidence is not there, in terms of causation. 

I believe it was the late Stanford law professor Deborah Rhode—feminist and really acclaimed thinker—she concluded—her own literature review—that the empirical evidence for board sex diversity improving corporate performance, was not there. And she said, explicitly, “I still support this, but let’s be clear, it’s for social justice and equity reasons.” If you’re really interested in the subject, you can pull up our filings that we sent to the SEC on the NASDAQ diversity rulemaking. And the evidence is even worse when it comes to racial and sexual minority diversity. It’s just not there.

Finally, and maybe most profoundly—apologies for the length—climate-related financial risk. Let’s break this up into its two core components. There is physical weather risk and what’s referred to as transition risk—you can call it political or policy risk. So physical risk is the example that Dalia gave with the two different buildings. The difficulty is -- so with that hypothetical, I think it’s not hard to say that, at least in the case of the building that’s two feet above sea level or whatever, that may be a -- there may be a material consideration regarding flooding, sea level rise, right there.  

But what’s actually going on in the main is not something where there’s such a direct correlation between the business position and any kind of physical risk. What’s being associated here is greenhouse gas emissions, and the thing with greenhouse gas emissions is they don’t affect the emitter’s risk physically one bit. I could have one business that’s selling carbon offsets, it’s all they do, perched on Martha’s Vineyard, and another coal-fired power plant on the top of a mountain, and the emissions from each of these, respectively, would have nothing to do, nothing—at least, nothing material—to do with their physical risk. So that leaves transition risk. 

Now, transition risk is a very -- it’s a sticky concept. I think it has some legitimacy, understanding that you’ve got your present corporate assets right now that may lose some or all of their value if they become what’s called stranded. So carbon-intensive capital expenditures, if there is much tighter carbon emission regulation or something in the future, they may lose their value. The problem is this is very speculative. This is not susceptible to quantification and data because these are essentially political judgments. And the way you can tell that they’re political judgments reflecting a particular ideology is all the transition risks that get left out. What about the risk of supply chains with China being cut off because we are entering into a phase of great power competition with the communist Chinese? Why is that not an obviously more short-term transition risk for all kinds of businesses, publicly traded and otherwise, that have work overseas? So I can go on, but there’s a lot I’d like to try to clear up.

Hon. Andrew Oldham:  Thank you, sir. Commissioner Wilson, far be it from me to defend the Neo-Brandeisians, but given everything that we’ve heard today, I’m wondering why those who say the consumer welfare model is outdated aren’t right. I mean, if we’ve completely redefined the purpose of the corporation, we’re no longer thinking about shareholder return as the purpose, why would we not want to broaden the consumer welfare model too?

Christine Wilson:  So I think the approach of the Neo-Brandeisians is, essentially, to discredit the consumer welfare standard by being very dishonest about what it does and does not do. And so, they argue that it focuses solely on short-term price, and that is actually an incredibly inaccurate characterization. We look at short-term and long-term price. We look at quality, we look at choice, we look at innovation, and it is a very broad and flexible standard but, at bottom, boils down to a balancing of the pro-competitive effects and the anti-competitive effects of a type of business conduct. And so, it is not amorphous and open-ended in the same sense that a replacement standard would be. 

And the consumer welfare standard ticks all the boxes for things that you want in government enforcement. It is administrable because the variables are finite, right? What are the anti-competitive effects? What are the harms to consumers? What are the benefits to consumers? And it is quantifiable. It is predictable in the sense that we’re maximizing one value, we’re looking at the impact on consumers. As a way of clarifying this, in fact, it’s not just the end consumer; it is other businesses in the supply chain who are either sellers or buyers. And so, it’s not -- we use consumer as shorthand, but it is a number of different participants in the supply chain who may be harmed, in the traditional antitrust sense, by a certain type of conduct. 

So the consumer welfare standard is administrable, it is predictable, and it is credible because it isn’t subject to the vicissitudes of Washington politics, right? We’re not choosing different goals depending on which way the political winds are blowing—is labor important, are small businesses important, and that sort of thing. Doug mentioned the collusion—alleged collusion—among certain firms now and the desire to insulate that collusion from the enforcement of the antitrust laws. In fact, antitrust says exemptions from the antitrust laws should be rare, few, far between because competition is the bedrock of the economy in this country. But the Neo-Brandeisians say, “Collusion is good if you are politically favored.” And so, certain types of suppliers are allowed to collude, but others are not. 

So the consumer welfare standard provides rigor to antitrust enforcement. So what happens when you inject all of these other goals into antitrust enforcement—we don’t know which goals. Even the Section 5 policy statement that was released this morning says that “we are going to focus on benefits to labor, small businesses, honest businesses, and other unnamed constituencies.” And so, how do we know, from an ex-anti perspective, what enforcement is going to look like? Which goal are we going to try to maximize? How do we weight the different goals? What if the goals conflict? And so, we are essentially opening ourselves up to the politicization of antitrust enforcement. And in fact, Chair Khan has said -- she did an interview on Stuart Varney, and she said, “All decisions, all government enforcement decisions, are political.”  

The beautiful thing about antitrust enforcement is that we’ve had a bipartisan consensus for a very long time. And between administrations, Republican and Democrat, you see changes at the margins, but there is a consensus, a broad consensus, about the purpose of antitrust. That consensus has now been unraveled. So I would submit the only way to keep sound antitrust enforcement in this country is to continue focusing on the consumer welfare standard.

Hon. Andrew Oldham:  Thank you, Commissioner. Mr. Geho, I’m curious—to pick up on that last point that the Commissioner raised—if you see anything, from a bipartisan perspective on the Hill, where there’s any kind of prospect of further development on ESG and antitrust or if this is going to remain a partisan question on the margin?

Douglas Geho:  Yeah. So, I’m very interested in what the answer to that question will be as time passes. I think there are a few data points we can look to. Last week there were no -- one data point, there were no democrat signatures on the oversight letter that Senator Cotton sent. That’s interesting because there has been bipartisan oversight in the Senate on antitrust-related issues recently. Another interesting data point, I think, also relates to that letter, but it’s how the letter has been received in the legal and scholarly community—or popular summations of what the legal community might think. One legal blog said -- it pointed to scholarship, suggesting and advocating for immunizing ESG-related efforts. And the rationale was that even though anti-competitive acts may be committed as part of pursuing ESG-related goals, because the objective or purpose, the intent, is to promote dealing with ESG-related issues—it’s not to compete poorly—there should be official immunization for that type of behavior. 

The reason I’m getting into that is because we have seen in Congress recent, largely democrat-driven—although there is some bipartisanship around certain bills—but there are attempts to—for a period of time—permit cartels to be created and collective action to occur for certain favored industries. So given how high in the order of allegiance is for this administration—for example, or the democrat party, generally, some of the, especially the E and the S, G seems to be—I could see proposals being introduced that would seek to immunize some of this type of collusive behavior from antitrust enforcement.

I guess the last data point -- and this gets back to the title of the panel, but there are different ways to push for ESG and for enforcers or regulators to push ESG, and one way is by not bringing in investigation or enforcement because of direction from whatever party is in control of the White House. On the one hand, there has been recent lip service in Senate oversight by our current antitrust enforcers to the doctrine that says there is no exemption for collusion, with respect to ESG or otherwise. On the other hand, though, I think given, again, how high in this administration’s priorities certain climate-change-related efforts are, I have a hard time seeing our current enforcers robustly chasing the thread that -- or pulling the thread that Senator Cotton would like them to pull.

Hon. Andrew Oldham:  Brilliant. Thank you. Let’s do some audience questions. Let’s start over on this side.

Jim Copland:  Yes. Hi. Jim Copland from Manhattan Institute. I have a question for Ms. Blass. On unengagement, specifically, right? There are different types of investors in the market. So at one end, you have, sort of, the price setters. And these are activist hedge funds, at the most extreme, that are doing deep dive research into companies, placing big bets, buying big parts of companies, and they’re going long, they’re going short, and in some cases, they’re leaning into companies and saying, “We want you to change management, spin off this, change dividend policy, change investment policy, etc.” 

At the other end are passive index vehicles. I agree completely with you and Jonathan; these are great for individual investors. I invest in passive index vehicles. But you’re, in fact, not doing that, right? What you’re doing is replicating a market basket that’s set by S&P or someone else and, explicitly, not researching the companies, not making short sales, not doing strategic buying and selling. You’re, decidedly, not buying or selling companies based on employee turnover or board diversity or how high you are above sea level. So given that -- given that you’re a low-cost vehicle replicating a market basket and you’re not being market tested—an active investor in the long run to make money is going to have to be right more often than they’re wrong on their bets so that they’re paying off for the individuals who give them capital—you’re replicating the market basket one way or the other. Why should we trust you, and why should you, in the first place, even in any situation, be engaging with specific companies, telling them how to manage their business because you’re not even deciding whether you buy or sell them in the first place?

Dalia Blass:  Thank you for that question. I appreciate it. So, by the way, just for the sake of clarity, BlackRock is an active investor and an index investor. We actually run both types of funds, but your question is specifically with respect to our index strategies. So with index strategies—and number one, they’re very diverse; you can go from a niche into broad market indices like the S&P 500—because you are actually captive, if you will—because you cannot walk with your feet, which is what you can do as an active investor, looking at fundamentals—this is where engagement and voting actually does matter. If you want to make sure that you are really representing -- as a fiduciary, representing the clients who have entrusted you with their assets, you do engage with companies to understand how they are managing their risks. 

And by the way, this is all their risks. It’s not ESG. It is all their risks. So you engage to understand how they manage their risks and how they look for opportunities because that is what drives long-term value. And if you feel that the company is not managing those risks or not looking for the opportunities in the right way, you exercise the power of the vote because that is the one power you do have. And it’s your client’s assets. It’s really important as a fiduciary that you don’t take a sideline on that one, right? So you encourage disclosure, you look at that disclosure, you study that disclosure, and then you hold the directors who are responsible for the particular area, you do hold those accountable.

Just a couple more points on that one. Our principles on how we vote, our guidelines, they’re public, they’re very transparent. The issues we voted on, they’re public, they’re very transparent. How we voted, they’re public, they’re very transparent. You can find them year in, year out on our website. And as far as the point, Jonathan, you made on the engagement, the power of engagement and that 13D-G does not give you the information, actually, the information is there. The 13D-G, if you combine it with the N-PX, you will find out exactly how much was voted by BlackRock versus how much was not voted. So the math is there. But we do go out there, and we do engage.  

And by the way, this is just a small point we’ll underline here. BlackRock -- we have the largest stewardships team in the industry because we do believe it’s really important to be out there on behalf of our clients. We do engage. We do want to understand how these issuers are managing their risks, right? So we’re not following guidelines by a proxy advisor. We are independent in how we vote. We do our own independent research, and we independently vote in all the matters. And all that is very public and very transparent. 

Hon. Andrew Oldham:  Thank you, Ms. Blass. Go over onto this side.

Paul Kamenar:  Yes. Hi. Thank you. Paul Kamenar. I filed comments against the NASDAQ Board Diversity Rule as well as the SEC’s Climate Control Disclosure Rule on behalf of the National Legal and Policy Center. Two quick questions to Ms. Blass. With regard to your investment, I understand BlackRock disinvested in certain thermal coal companies at the request of environmental activists, and yet at the request of others, you did not divest in Chinese companies, which are controlled by the Communist Party there that engages in extraordinary human rights abuses. So I wanted to know, what do you decide when to divest in those kinds of companies. And secondly, why did BlackRock vote against a shareholder proposal that we submitted to Google and Meta that would simply require those companies to disclose requests that they get from the federal government to censor speech on their platforms, whether it's from HHS, CDC, FBI? You all voted against that good government disclosure proposal.

Dalia Blass:  Thank you for that question. So let me -- on your second one, if I may. I’m not going to comment on any particular shareholder proposal. I’m not part of stewardship team. There’s a lot of analysis that goes into that, so, if I may, I will defer on that one. 

On the investments, I think you were asking about thermal coal and Chinese companies. So in thermal coal, BlackRock took the position that companies that have, I think it was a 25 percent exposure to thermal coal -- that we would not have those in our active portfolios. That decision was made by our active portfolios—active. And it was based on performance. This was a pure decision based on how the performance of these companies—our outlook on the performance of these companies. It was not politically motivated. It’s neutral to that. We don’t do that at BlackRock. But by the way, there are index strategies. You cannot take that position. And if a specific client disagreed with that, again, it’s their choice. It’s their money. So that’s just to explain the thermal coal.

On China, just so you know—a little bit here because I think there’s also a lot of misconceptions about this—our business in China is actually really, really new and small. And it was the licenses that we received to open our business in China, that was done pursuant to the trade agreement that was done under Mr. Trump. And that trade agreement -- the purpose of that trade agreement was to open up the Chinese market to U.S. financial services -- to the U.S. financial services sector. 

BlackRock, in any and every jurisdiction in which we operate, we follow the law. If there are sanctions, if there are restrictions, we follow those sanctions and restrictions. That just is something that’s really important. And as far as human rights, that’s, obviously, something that’s really important. Going back to stakeholder versus shareholder, one of the things that’s really important is how are companies operating in the space. We do look at that. It’s part of our stewardship. It’s really important, and we apply that globally. I hope that answers your question.

Hon. Andrew Oldham:  Well, with that, I’m afraid that we have reached -- I would be a terrible moderator if I did not do the one thing that I was supposed to do, which is to end us on time. So we have reached the end of our allotted time. I cannot thank our esteemed panelists enough for giving us the time and expertise today. And I hope you’ll give them a round of applause. 

 

1:45 p.m. - 3:15 p.m.
Regulatory Elephants in Statutory Mouse Holes?

2022 National Lawyers Convention

Topics: Labor & Employment Law
East Room
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006

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When an agency claims “a merely plausible textual basis” for asserting “extravagant statutory power over the national economy,” separation of powers principles and “a practical understanding of legislative intent” should trigger “judicial skepticism,” said six Supreme Court justices in West Virginia v. EPA, reversing and remanding lower courts’ approvals of the Obama Administration’s Clean Power Plan. What current federal labor and employment regulations, if any, would fail this test? A panel of former agency leaders will apply perspectives from the right and present their nominees.

Featuring:

  • Hon. Eric S. Dreiband, Partner, Jones Day; Former Assistant Attorney General, Civil Rights Division, U.S. Department of Justice
  • Hon. Ondray T.  Harris, Consultant; Former Director, Office of Federal Contract Compliance Programs, U.S. Department of Labor
  • Mr. Brian E. Hayes, Shareholder, Ogletree Deakins; Former Republican Labor Policy Director, U.S. Senate Committee on Health, Education, Labor and Pensions
  • Mr. Steven P. Lehotsky, Partner, Lehotsky Keller LLP
  • Ms. Cheryl Stanton, Chief Legal and Government Affairs Officer, BirghtStar Care
  • Moderator: Hon. Michael B. Brennan, U.S. Court of Appeals, Seventh Circuit

Speakers

Event Transcript

Mory Baskin:  Hello, everybody. And a hush fell over the room. Hello, everyone. I’m Mory Baskin. I’m the Chair Elect of the Labor Employment Practice Group of The Federalist Society and wanted to welcome you here today on behalf of the group, and they told me twice to keep it quick, so it’s going to be a very quick introduction. But today’s topic really goes right to the core value of our group as well as the society as a whole, and that is the separation of powers under the Constitution and more specifically federal labor agencies and the major question’s doctrine of West Virginia v. EPA. 

Now, we have our version of the separation of powers, which is that I’m going to introduce the moderator, and he’s going to introduce everyone else. So our moderator today is the Honorable Michael Brennan, Judge of the Seventh Circuit, U.S. Court of Appeals for the Seventh Circuit. He’s had a distinguished career in both private practice and public service, and most notably, he founded The Federalist Society chapter in Milwaukee. So with that, Michael Brennan. Thank you.

Hon. Michael B. Brennan:  Thank you, Mory. So the title of our panel is Federal Labor Agencies and the Major Questions Doctrine: What Elephants? Which mouse holes? And does West Virginia v. EPA Support Their Eviction? This is one of, I believe, three panels, at this year’s convention, discussing the ramifications of West Virginia vs. EPA. The question for this panel is straightforward, how will current Federal Labor and Employment Regulations fair after this decision? [audio cuts out 00:02:49 - 00:03:57] of the Fair Labor Standards Act. He served as General Counsel of the EEOC, and most recently, from 2018 to 2021, he served as the Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice. 

Ondray Harris serves as an independent consultant advising clients in the areas of labor and employment, government investigation, compliance and governance, and risk and crisis management. He’s the former director of the Office of Federal Contract Compliance Programs, the OFCCP—that you’re going to hear about today—in the U.S. Department of Labor, and he also served there as a senior advisor. Mr. Harris has also served in the U.S. Department of Justice as the Deputy Chief of the Civil Rights Division and as Director of the Community Relations Service. He’s also handled labor cases on both estate and municipal levels. 

Brian Hayes is a shareholder in the Washington D.C. office of Ogletree Deakins, where he co-chairs that firm’s Traditional Labor Practice Group. Immediately before that, Mr. Hayes served as a member of the National Labor Relations Board. He is a member of the U.S. Chamber of Commerce Litigation Advisory Committee, and he formerly served as the Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor, and Pensions. In private practice, Mr. Hayes has represented clients in cases before the NLRB, state and federal courts, and various federal agencies, including the EEOC, OFCCP, OSHA and the Department of Labor. 

Steven Lehotsky is one of the founding partners of Lehotsky Keller LLP. Before that, he served as the Chief Litigation Counsel for the U.S. Chamber of Commerce, where he directed litigation strategy. He has served as an attorney advisor in the Office of Legal Counsel of the U.S. Department of Justice and as a public member of the Administrative Conference of the United States. He also practiced as a commercial litigator in Boston and Washington D.C.

Cheryl Stanton is the Chief Legal and a Government Affairs Officer at BrightStar Care. Ms. Stanton previously served as Administrator of the Department of Labor’s Wage and Hour Division. She served as the White House’s principle legal liaison to the Department of Labor under President George W. Bush, as well as the Executive Director of the South Carolina Department of Employment and Workforce. 

Miss Stanton has our great thanks because she is doing double duty. She just finished speaking on the administrative law and regulation panel, not 15 minutes ago. So thank you, Cheryl. As you can tell, our panelists have covered many agencies—there should be one more slide there—which enforce or give guidance, including the Department of Justice, the Department of Labor in its various agencies, including OFCCP, and the Wage and Hour division, as well as the EEOC and the NLRB. 

Each of our panelists today speak in their personal capacity. Their views do not represent necessarily the views of their respective institutions. And as always, The Federalist Society takes no particular legal or policy positions. All opinions are expressed are those of the speaker. A quick word on format: we have 90 minutes. Each of our panelists is going to give a thesis statement of between six and eight minutes. We’ll then ask the panelists to respond to each other’s remarks in a roundtable fashion. After we move through one round of responses, we’ll open up the discussion for any comments that any of the other speakers may have, followed by questions from the audience. 

So we’ll hear now from our panelists about how current federal labor and employment regulation and sub-regulatory guidance is going to fair after West Virginia v. EPA. Let’s put up that key language from the case again, the second slide, so you have that going forward. There you go. Leave it there. And obviously, the panelists can either speak from their seat or from the rostrum, whatever they prefer. We’ll start with Eric Dreiband.

Eric Dreiband:  Can you hear me okay?

Hon. Michael B. Brennan:  Yes. 

Eric Dreiband:  Okay. Well, first of all, thank you, Judge Brennan. It’s a real honor to appear today, and thank you, everyone, for coming. I’ve known many of the panelists for many years and just really thrilled to be here. I’m also particularly flattered that my former administrative law professor Garry Lawson has chosen to spend a few of his valuable minutes with us today. I’ve learnt everything I know about administrative law from Professor Lawson, and his lovely bride, and my classmate, Patty Grainger Lawson, is here also. So thank you for attending. 

I’m going to speak very briefly about three general topics. One is a big picture, the big picture of what’s happening in the federal courts right now, including the Supreme Court, but also the Federal Courts of Appeals and District Courts with respect to, what I regard, as sea change in how the courts are looking at executive branch agency action, and then secondly, I’m going to talk about, in addition to the major questions doctrine, I think a related doctrine, which is the revival of the nondelegation doctrine, and then finally a couple of examples about Justice Department regulations and the Equal Employment Opportunity Commission. 

On the big picture question, I think what we’re seeing now is we have a working majority, roughly a six-to-three majority, at the Supreme Court, and many Court of Appeals judges, and district judges throughout the country who are now looking at the structural Constitution, that is the separation of powers, as a mechanism to adjudicate challenges to agency authority and thinking of the structural Constitution—that is the separation of powers between Articles I, II, and III, primarily—as a mechanism by which the founders created a government designed both to have a federal government that is powerful enough to do what it needs to do—that is protect us from invasion, for example—but is also a government of limited and enumerated powers that are separated for the protection of liberty in this country. And I think, in my view, that’s what West Virginia v. EPA is all about, among other things. 

Article I of the Constitution vests the legislative power in one body—that is in the Congress. It creates the House and the Senate. It does not vest legislative power at all in federal agencies. And so what we have is we have a Congress created of enumerated legislative powers, only those legislative powers that are mentioned in Article I of the Constitution. There is no other legislative power granted anywhere to anybody in the federal government. Yet, we have a mechanism called the Code of Federal Regulations, notice-and-comment rulemaking, where the courts have recognized, what are called, legislative rules. 

And so the Supreme Court, as recently as 2015, for example, noted that rules issued through notice-and-comment process are often referred to as legislative rules because they have the force and effect of law. So it’s an interesting and bizarre, to me, at least, construction of the separation of powers, to think that all of the legislative power, and even then, the enumerated legislative power that the Constitution vests in one body, the Congress, yet at the same time, legislative rules that have the force and effect of law can be enacted by administrative agencies to impose legal obligations on millions and millions of people throughout the country. And I think we’re now seeing, I think, a return to—through originalism, through judicial decision-making of the six-justice majority that decided West Virginia—a new skepticism and, I think, a healthy skepticism at what administrative agencies are doing. 

And I think it’s a related issue in two ways: one I think in terms of both the major questions doctrine and the nondelegation doctrine, the Supreme Court now has, at least, signaled that it’s interested in reviving the nondelegation doctrine—a doctrine that has been dormant since 1935. There are now five justices who have signaled that they are interested in bringing that doctrine back, and as well as six justices who, in the recent term, endorsed the major question doctrine. 

The upshot of that is, we have now what appears to be, I think, at least, a five- or six-justice majority of the Supreme Court that is essentially concerned about whether or not the Congress of the United States is acting irresponsibly in its view, when it simply enacts generally worded statutes that then hand off enormous amounts of legislative power to executive agencies. 

At the same time, we have executive agencies that simply are frustrated that they can’t, or as a policy matter, persuade Congress to do what they want as a policy or political matter the president wants them to do. So they scour the U.S. Code. They find generally worded statutes, and they invent new regulatory theories to justify taking over large swaths of the economy or enumerated rights or things of that sort.

In 2019, a case called Gundy v. United States, the Supreme Court considered and rejected a nondelegation doctrine challenge to the Sex Offender Registration Notification Act. The issue there was the fact the attorney general could, by the stroke of a pen, essentially create criminal liability and put people in prison by enacting through regulation an interpretation of the Sex Offender Registration Notification Act for people who are convicted of sex crimes before the enactment of the act. 

There were four justices in that case, who signaled their interest in reviving the nondelegation doctrine. Justice Alito joined the majority opinion, at the time, to say that he would not do it in this particular case, but that he was open to reviving the nondelegation doctrine. Justice Gorsuch, joined by Chief Justice Roberts and Justice Thomas, went on at length in dissent about how the nondelegation doctrine should be brought back, and should’ve applied in this case, and is critical to liberty and separation of powers properly understood. And then Justice Kavanaugh, later, in a dissent from denial of certiorari, signaled his willingness to look at it, approving language of Justice Gorsuch’s dissent in the Gundy case. Justice Barrett was not on the court at the time. 

But I think it’s very clear, at least, to me, that given the right vehicle, the right opportunity, the court is very likely to bring that doctrine back, and if and when it does, I think it will be a sea change in terms of both how Congress enacts statutes and how executive agencies, cabined by the major question doctrine, and other provisions of the Constitution that the courts are now looking at as to whether or not the agency action is lawful—that is whether it’s constitutional. 

We had, for example, very recently, the Fifth Circuit determined that the CFPB, the Consumer Financial Protection Bureau, is essentially wholly out of business, according to that court, because the funding mechanism violates the apportionments clause. For lawyers who are litigating cases, I would encourage you—and I’m going to talk about the Justice Department and the EEOC quickly, but to consider rethinking about how you’re looking at agency action if you’re litigating either against an agency, or your client has some kind of agency-related problem. 

The Supreme Court, earlier this week, for example, considered a challenge about whether pre-enforcement actions can be brought in federal court to challenge agency authority—a decision to come probably at the end of the term. At the Justice Department -- I’ll give one example of this. The Justice Department enforces Title VI of the Civil Rights Act of 1964. In 2001, the Supreme Court determined that the prohibitions of the statute are limited to intentional race, color, and national origin discrimination. However, the court indicated there’s this regulation on the books that addresses disparate impact discrimination under Title VI. The court did not reach the question in the 2001 decision, a case called the Sandoval decision because that wasn’t an issue in the case, but it said “expressed skepticism” in that. 

The Justice Department then responded to that decision, saying that the regulation is entirely valid. I’m skeptical that this court now—having looked at that—would say, “Wait a minute. We have a regulation that -- interpreting a statute, it says that the disparate impact discrimination is illegal” when the Supreme Court in the Sandoval case said that prohibitions of statute are limited to intentional discrimination, and the court said, “That means that disparate impact discrimination is expressly permitted by the statute.” 

There is a rulemaking grant in Title VI, the executive branch of government, that authorizes executive branch agencies to issue rules, regulations, or orders of general applicability in order to effectuate the provisions of Section 601 of Title VI, which is limited to intentional discrimination. 

So this is an example, I think of -- either the court, I think, would be -- this regulation, in my view, would be vulnerable. It's not been challenged, and the Justice Department right now, by the way, is quite aware of this issue. It was an issue when I served there about what to do with this. But the Justice Department is aware of this. I think there is a close-to-zero chance this regulation will survive judicial review if it’s challenged. There is no private right of action for disparate impact Title VI claims, and so we’re limited to Justice Department litigation. The Justice Department has been very shy about using this because they’re aware of the vulnerabilities of the regulation. 

The major questions doctrine, I think, may apply. I’m not entirely clear how broadly that doctrine will apply. Certainly, a Chevron challenge could be brought as well, and then again, a nondelegation doctrine challenge could be brought as well because of the generally worded nature of the statute, in terms of rulemaking delegation. 

At the EEOC, there is a similar problem, in my view, with the Age Discrimination Employment Act that is a statute that the secretary of labor drafted in the mid-1960s to arrogate to himself broad rulemaking power. It is one of the few, if only, statutes I can think of where the grant of rulemaking authority is so broad, so vaguely worded, that the only limits are the secretary can enact whatever -- and now the EEOC, by the way. It's transferred over there. The EEOC can enact any regulation or exemption from the prohibitions of the statute if the EEOC concludes that it’s necessary to enforce the law; it’s reasonable, and it’s proper. Those are the only limits. I think that kind of delegation, I think, is highly suspect if and when the Supreme Court revives nondelegation. I don’t think it will be challenged under major questions. 

And then I’ll finish with one reference to a case called State of Texas v. EEOC, which was decided only about a month ago, Northern District of Texas. In 2021, the EEOC issued a technical assistance document and talked about the protections against employment discrimination based on sexual orientation and gender identity. That document was issued by the chair of the EEOC, acting on her own, sub-regulatory, no notice-and-comment procedures. State of Texas sued. District Court found that the EEOC violated the Administrative Procedure Act by not going through notice-and-comment rulemaking, violated the Civil Rights Act of 1964, Title VII itself, when it essentially, number one, and even it issued the document because the EEOC lacks substantive rulemaking authority. 

The rulemaking grant of authority under Title VII is limited to procedural regulations, and in addition, there is one provision of Title VII that says that the EEOC can issue technical assistance guidance if a person requests and pays for the cost of the guidance. And because no one requested it, and nobody paid for it, the government violated Title VII in that way. This decision, if upheld and if sustained, did not squarely address or mention either major questions or the nondelegation doctrine. It didn’t really need to, but it’s indicative, I think, like the Fifth Circuit’s decisions about the CFPB, of an increasing skepticism that the courts are taking. 

The EEOC’s been issuing sub-regulatory guidance and even notice-and-comment rulemaking for over 50 years, and now we have, at least, one judge looking at this, saying, “Not only is your sub-regulatory guidance unlawful, but you violated the law even doing this, and here are the 10 different ways that the government violated law in doing it.” And the district court was so angry that its sua sponte awarded attorney’s fees to the State of Texas for the government's violation of the law. So with that, I’ll leave it and turn it over to my colleagues.

Ondray T. Harris:  Can you hear me? Okay. Yeah. Thanks, Eric, that was a herculean effort. You made it easy for me -- you set up everything nicely. 

I’m going to discuss briefly a day in the life at OFCCP for me. So I’m going to give you a little backdrop because some of you may not know what OFCCP does as well as some of the Civil Rights sections or EEOC unless you are a contractor representing a contract or something. So briefly, I’ll just say that OFCCP is responsible for ensuring that employers doing business with the federal government comply with laws and regulations requiring non-discrimination. It enforces that mission through Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Veterans Readjustment Assistance Act of 1974. 

Together, with those three laws, it prohibits the discrimination of employment, employment discrimination based on race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or the status of one’s veteran status. In addition, contractors and subcontractors are forbidden from discriminating against applicants or employees because they enquire about, or discuss, or disclose compensation. 

And it’s worth mentioning on the -- and I don’t care what your views are on the issue, but it’s worth mentioning that OFCCP was unique in protecting sexual orientation and gender identity long before the decision in Bostock v. Clayton County—the Supreme Court’s decision from Georgia, dealing with homosexual or same-sex discrimination. Pursuant to the Federal Property and Administration Service Act of 1949, the president has the authority to issue policies and directives that promote economy, and efficiency, and the procurement function of government. And part of that act expresses Congress intended to provide for the government in an economical and efficient system for a) the procurement of supplies, and personal property, and non-personal services. 

There’s been a sharp increase in the use of that act by executive orders, and that increase, and the scope of the executive orders relying on that authority. Research demonstrates that Congress rarely takes issue with the actions by these executive orders. However, the policy and act and using that act, or the authority of it, has created uncertainty and burdens on federal contractors, affecting the workforce and the industrial base, and raising concerns about religious nonprofits, charities, businesses, and universities. 

I would say, if you look at the most recent data for industrial bases, they’re struggling to deal with the number of these requirements under the executive orders. The vendors for the Department of Defense have fell from 80,000 in 2010 to just over 50,000 in 2019, despite there being a 286 percent increase in the number of transactions during that period. Even more troubling is the decline of new entrants falling from a more than 15,000 entries per year to roughly 4,000. 

When the Department of Defense Industrial Association asks businesses, “What conditions limit the company’s willingness to engage in additional federal contracting?” more than 70 percent cited uncertain business conditions, and nearly 63 percent cited administrative burdens. Many of those requirements placed on these contractors are based in Executive Order 11246, which on the [FEDSA 00:26:26] Act, which was the purpose of promoting an economy in efficiency. I think you have to ask whether Congress intended on that act, if it intended to be used in an expansive way and pushing the policies and interpretations of Executive Order 11246—some of which are burdensome and arguably run counter to economy and efficiency. 

Executive order 11246 was signed by LBJ, required nondiscrimination based on race, color, sex, natural origin in hiring and employment by U.S. government and contractors. It also requires a contract to take affirmative actions to ensure that the applicants are employed and that employees are treated during the employment without regard to race, color, national origin, sex. 

What’s an OFCC directive? OFCC directive, I think of it as similar to almost an executive order. The directive provides guidance to OFCCP staff and federal contractors on the enforcement and compliance policies and procedures. A directive in theory is not to change the laws or regulations governing OFCCP program and does not establish any legally enforceable right. 

I’ll talk to you about some executive orders and issues that I’ve been involved in, and one is the TRICARE Directive 2018-02. TRICARE is the healthcare program that the United States Department of Defense military health system. TRICARE provides civilian health benefits to U.S. Armed Forces military personnel, personnel retirees, and their dependents, including some of the reserves. The summary of that directive is -- when I issued that directive, that directive allowed military service personnel and their families to seek healthcare services with local doctors and medical facilities outside of the government-contracting sphere and subcontractors, and those healthcare professionals allowed to serve them. 

And I’ll read a part of that directive. At this time, OFCCP has determined that it would be beneficial, and to the national interest, and the health of veterans, and their families, to extend a moratorium to provide additional time to receive feedback from stakeholders. The difficulty of active duty and retired service members, and their families, have accessing healthcare is well-documented. OFCCP is concerned that continue uncertainty over the extent of the executive order, Section 503, and VEVRAA apply to TRICARE subcontractors has contributed to that difficulty, and that they’re approaching expiration of a memorandum and a company uncertainty further exacerbate the difficulty. Moreover, OFCCP understands that Congress may enact legislation and affecting this area in the near future. And so that’s a portion of that directive. 

Another thing that came across my plate, when I was there, was just before the Masterpiece Cakeshop case. Several members of the Senate reached out to me regarding their concerns of their constituency who are religious universities, charities, nonprofits, some of it from the Catholic charities, Mormon, Baptist, and all sorts of religious organizations were concerned about their ability to contract with the U.S. government. 

I talked with the members of Congress, and many of these charities and organizations—some who are already federal contractors; some who were interested in being federal contractors; some of them who were doing important research or working with the Department of Defense or other organizations—where various concern about the issues particularly touching on gender identity, sexual orientation, and what it meant for them as a religious organization and group and their stance on their employees, and whether such behavior was permissible or not with their professors, or employees, and things of that nature, and whether they could contract with the government if these organizations had some prohibition on that. 

Masterpiece Cake case hadn’t come down yet, and as I said, I’d spoke with senators on this issue and these organizations, and after the Masterpiece Cake decision was decided, a directive was issued in light of that decision. And I think if you look at King v. Burwell, the court said that some things are too important to apply the Chevron deference to that case. The major questions doctrine hold that there are some things that are important are not eligible for a Chevron review or Chevron deference when looking at the interpretative question, e.g. questions that are politically or economically significant. 

And so I want to put that out to the panel and out to you on the floor on some of these matters whether I, some bureaucratic gnome at some agency, who was not elected by the people, should be making decisions on such as the TRICARE issue, which is determining whether military people can get healthcare and particularly in rural communities where many military people live and -- because that’s -- and my directive placed a moratorium on that nationwide. 

And so there’s something Marbury v. Madison about that. I’m saying, we’re going to allow this or we’re not going to allow this. That gives me a certain amount of strength or power that I can’t seriously believe that Congress intended for me to have in that situation. So these are the things that I want to touch on in the conversation. 

Hon. Michael B. Brennan:  Brian.

Brian E. Hayes:  Thank you. It’s good to be with you all this afternoon. I want to talk a little bit about the NLRB, which is, I think, in this context, and I think some folks would argue in other context is a bit of an odd duck in terms of federal regulatory agencies. It’s certainly odd in this particular context because despite the fact that the board has rulemaking authority, from 1935 to 2010, it only exercised that authority on five different occasions, and they were rather mundane exercises of the rulemaking authority. They were generally about procedural and administrative matters, such as whether they were going to assert jurisdiction over dog racing. Nothing too earth shattering. 

About the only pre-2010 regulatory action by the NLRB rulemaking action involved the presumptive composition of bargaining units in acute care hospitals. Again, not one that I think raises to major levels so that -- in terms of the actual case itself of West Virginia v. EPA, there’s some question -- I think there are certainly undercurrents in the case that are relevant to the NLRB, but don’t necessarily fit directly on its adjudicatory model as opposed to an agency that engages in rulemaking. 

There’s one, I think, potential exception to that and that is a currently pending rule. As you said, there was very little activity until 2010. In 2010, and thereafter, the so-called Obama board, issued two regulations: one about requiring employers to post a notice in their place of business, detailing employee rights. That was subsequently struck down. They also issued a lengthy regulation, changing essentially about 25 or 30 aspects of their representation case procedures, largely a procedural kind of regulation internally that was ultimately sustained. 

But another thing happened during the Obama board that’s kind of the setup for the one thing I think that is some interest in this context with the board, and that is that the board issued a decision in a case called Browning-Ferris Industries, in which it jettisoned probably four decades of board law, with respect to the question of whether two entities can be considered as a joint-employer of a given group of employees. 

Until the Browning-Ferris issue, the board’s view was that unless the two separate companies actually codetermined in a direct and important way, wages, hours, and working conditions for the employees who are clearly employed by one of those entities, then they were not joint employers. That changed in Browning-Ferris, and it changed in -- the entire analytical modality was changed in Browning-Ferris in which a board majority in that case said, “No, we’re going to look at this in a different way and say, ‘Even if the punitive joint employer exercises control over the other employer’s employees indirectly, or even if it only has reserved control over those employees, that may well be enough to deem them a joint-employer under the act.’” 

So the problem clearly with Browning-Ferris was that it was extraordinarily vague, and in the decision itself had no limiting principles in it so that -- you can conceive of this situation, which is typical: I’m a contractor. I hire a subcontractor on a job to do something, and in our business-to-business agreement, I say, “Oh, by the way, we start work on this job at 8:00 in the morning, so I need you to be on the job at 8:00.” Well, that affects the subcontractors’ employees’ hours of employment—indirectly, maybe, but it does, so is that enough? Well, it’s unclear under Browning-Ferris. 

Similarly, I reserved the right to -- I have engaged a temporary agency to bring temporary workers in because I have an uptick in business, and I say, “Oh, by the way, here’s our contract for that, and in that contract, I reserve the right to reject an employee. You send me somebody, and if I don’t think they’re doing the job right, I don’t want you to refer them back here.” Even though I never exercised that authority, that is reserved control over the terms and conditions of employer B’s employee. So under Browning-Ferris, the argument is that makes me a joint-employer. 

Well, there was obviously in the franchising community, in the subcontracting community, in the temporary-work provision community an uproar over Browning-Ferris. And part of it was generated by the fact that the decision was just so open-ended. The Trump board tried to take that on by engaging in notice-and-comment rulemaking to establish a rule about how you would determine whether or not two entities were a joint-employer. And in very simplistic terms, what they did is they returned to the law that existed before Browning-Ferris and said, “Look, it’s got to be about a major kind of term and condition of employment. It’s got to be direct, and it can’t be -- this reserve nonsense doesn’t apply.” 

What’s happened since then, of course, is the political composition of the board has changed under the Biden administration, and low and behold, we have another NPRM, that’s now pending, in which the current board says, “We’re going to unring the bell that was rung by the prior board. We’re going to rescind that joint-employer rule, and again in simplistic terms, we’re going to return to the standard that was under the Obama board of Browning-Ferris Industries.” 

So a couple of things that I would just throw out there that I think are of interest in that context. First of all, it’s important to remember that this notion of jointness has a lot of its roots in liability law where people are deemed to be jointly liable for a court, for example. But jointness in the context of the National Labor Relations Act has far more meaning than merely assessing or allocating monetary liability. If you are in fact an employer under the National Labor Relations Act, you have affirmative duties on yourself. You have a duty, if your employees are represented, to bargain with that entity so that -- let me give you the example I think that scares a lot of people. 

Suppose it’s blackletter law that if I have an organized workforce, and I decide to do something like move my business or change the nature of my business, and it results in the loss of work for members of the bargaining unit, I have at the very least, a bargaining obligation with that entity, with the union representing those employees, to bargain about the effects of my decision to change my business operation and adversely affect those bargaining unit members. I may, in fact, have a decisional bargaining obligation where I have to sit with the union and talk about why I’m going to do this and whether I have good reason to do it. 

Well, what happens in this situation. Again, go back to the contractor for just a moment. The contractor contracts with the subcontractor and reserves those rights or reserves those kind of things about the contractors’ employees that I mentioned, and then, all of a sudden, the contractor decides, “I really don’t like my business-to-business relationship with this unionized contractor.” 

Well, can they go out and just severe the business-to-business relationship? The argument is that they then have a bargaining obligation with the employees of the subcontractor. They have to bargain with that union to terminate their business-to-business contract, which is just a little bit mind-blowing, I think, to people and certainly not something that it’s the unintended consequence, or maybe the intended consequence, of what the BFI case does.

The other thing, I think, that’s important, contextually, is not only is there an affirmative duty to bargain for a joint-employer, a joint-employer also loses important protections under the National Labor Relations Act if they’re deemed to be jointly employed. Again, let me give you the contractor-subcontractor relationship: subcontractor is unionized and has a dispute with the union representing its employees. Well, if they are joint employers, these two, then the union can go over and picket employer A, even though employer A may have absolutely no control over the bargaining dispute between employer B and its employees. Nonetheless, they’re stripped of their protection against being enmeshed in secondary activity by virtue of the fact that they’re a statutory employer, according to the board, in terms of fighting them to be a joint employer. 

I’ll finish with just a couple of observations about this. And I’m not sure the degree to which West Virginia v. EPA actually fits this issue, but when it comes to judicial skepticism and some of the undercurrents in the case, it sure fits, in my mind. And I begin with this one: it strikes me as difficult to comprehend how one board can issue a rulemaking, setting out a rubric for how you determine an essential issue, and less than two years later, another board comes along and upends that by 180 degrees, and there is no factual predicate for doing it. They haven’t had enough experience under the current rule to say why they want to do this. The only thing that’s changed is the political composition of the board. 

There’s just a couple of other things too that I think that are worthy of mention in this context. The first is that the board has done no -- they can’t do any economic analysis of what this would cost the American economy. I respectfully suggest that it’s monumental. If you drag unwilling people into collective bargaining, it’s going to cost. And there were also textual issues with this idea of joint employer. 

The phrase joint employer appears nowhere in the National Labor Relations Act, and in the relevant parts of the act, we always are using the word employer in the singular, not in the plural. And also there’s an incongruity between the largest cohort of joint employers would probably be the federal government and state government, who are by statute excluded from the definition of employer, so it’s a kind of illogical position. So with that, I’ll close. 

Mory Baskin:  Thanks, Brian.

Hon. Michael B. Brennan:  Steven.

Steven Lehotsky:  Thank you, and good afternoon, everyone. Since I’m fourth on the panel, I thought I’ll make four points. [Laughter] First, I was actually surprised by West Virginia v. EPA, not because of the outcome. I think the outcome is utterly unsurprising and absolutely correct. 

I was at the chamber and was the head of regulatory litigation when we brought the challenge to the Clean Power Plan, and I think the reasoning of the Supreme Court as to why the EPA doesn’t have the authority to engage in the Clean Power Plan is absolutely correct, and it really fits with all of the precedent that came before it, in King v. Burwell, and Utility Air Regulatory Group, and Brown & Williamson, and all of these other cases that I guess today, after West Virginia v. EPA, are now regarded as making up the major questions doctrine. 

But what I was surprised by was that the Supreme Court talked about it as if it was a thing, like a separate thing, a separate doctrine, as opposed to simply the way it previously had talked about it, which was as just common-sense statutory interpretation. So if I can start to join issue a little bit with my other members of the panel, I think I would disagree with Eric that it was a sea change in what the court was doing, but it certainly is a sea change in the way the court is talking about it. And it was certainly a sea change from the way the court talked about the issue in the NFIB v. OSHA case that came out in January, which I guess is point number two, and maybe my reason for being here, is talking about how this doctrine affects OSHA and what OSHA does. 

And in the NFIB v. OSHA case, this was the challenge to the administration’s vaccine or test mandate for private employers, so it was covering a huge swath of the American economy doing something that OSHA had never done before or thought it had the authority to do before in its 50-year history. And I think as Brian had alluded to in the context of the NLRB, doing so under a statutory interpretation theory that had really no limiting principle to what OSHA couldn't regulate in the name of workplace safety, and so I think the Supreme Court came to a very clear and obvious conclusion. Six justices agreed that OSHA doesn’t have the authority to regulate public health generally just because of the fortuity that the public health problem happens to arise in the workplace, in addition to everywhere else in society. 

And I think one of the things that’s important going forward is people are looking at different challenges to bring regulations that might be vulnerable is, this was a very risky regulatory move by the Biden administration to try to use what they thought was very broad authority from OSHA to do something, and not only did they lose their vaccine or test mandate, which would've been economically ruinous, given the labor shortages and supply chain problems that America was having at the holiday season when all of this litigation was occurring. 

So they not only lost that particular regulatory tool—they also suffered a real major loss in front of the Supreme Court about what the Occupational Safety and Health Act means and what authority it does provide for OSHA to regulate things like heat exposure, things where they’re currently undergoing proposed rulemaking, and they’re now going to face some serious vulnerability and litigation risk, at a minimum, and going forward with those other changes. 

So the third point I’ll make, and it’s related to the COVID vaccine context, is that both the NFIB v. OSHA and the West Virginia v. EPA decisions have pretty significant ramifications for the other vaccine, COVID-related regulations that are currently under challenge. Ondray talked about OFCCP regulations. There are several different states and other groups that are challenging the contractor vaccine requirement, and all of those different challenges have succeeded so far in the Fifth, Sixth, Eighth, Eleventh, I think even the Ninth Circuit. 

So there’s this pretty significant headwind that has developed against the administration’s efforts to use long-extant authority, in that case, the Procurement Act of 1949, to try to impose some public health regulation on the employees of government contractors. And the same could be said for the vaccine or test mandate that’s being opposed on federal employees, which is also subject to regulation and litigation in multiple different circuits also facing the same sorts of challenges invoking the major questions doctrine. 

And so if I have a fourth and final point, before turning over to Cheryl, I would say it’s one of caution, which is that I think the key from this West Virginia v. EPA case is to make sure that it endures. I think, as I said, in my first point, I don’t know that there really has been a sea change in the way that the Supreme Court approaches these types of statutory interpretation issues because you could back to Brown & Williamson, written by Justice Breyer and other decisions, where this sort of common-sense point that where you’ve got a statute that’s been around for a long time, and nobody thought that it had the meaning that it had until today when the agency tries to invoke it to address some significant economic social political problem. 

We regard that skeptically. We think, “Really. Is that really what Congress was doing in the 1970s when they enacted all of these vast panoply of labor, employment, health and safety laws?” Trying to make sure that that doesn’t get caught up in what I think Justice Kagan, in her very strongly written dissent, labeled as sort of a new innovation. Something that might seem more like an anti-government, maybe Trumpian in its origins, given changes in compositions on the courts kind of change, which won’t endure. 

So I think if there’s work to be done in how these are litigated and how courts decide these issues, you might actually be taking it away from some of the rhetoric of a sea change and making it back into “This is what courts have always done in terms of being skeptical of exercises of federal regulatory authority.”

Hon. Michael B. Brennan:  Thank you, Steven. Cheryl. 

Cheryl M. Stanton:  Thank you. Thank you all for being here. If you’re looking and saying, "I saw an agenda online that it was going to be Tammy McHutchen," you’re not going crazy. She sends her regrets and had a family matter. And so as I speak here today. If I say something profound that you like, I am channeling the esteemed administrator. If you don’t like what I have to say, it’s all my fault. [Laughter] 

But when I started reading through the West Virginia v. EPA decision, thinking about the Wage and Hour Division, which as you may or may not know enforces about 15 different federal statutes, but the one that started it all is, of course, the Fair Labor Standards Act from the 1930s. And I was really interested in the fact that the majority really was probably most offended—it felt like, as I was reading it—by the fact that this was a radical or fundamental change to an existing statutory scheme, that suddenly the EPA had “discovered an unheralded power in transformative expansion and regulatory authority.” And it really made me start thinking about, well, okay, some of these statutes, the FLSA, and the Wage and Hour Division, go back to the ‘30s. There’s clear authority to issue some regulations, based on the Fair Labor Standards Act, and it really made me start thinking about the tale of the overtime rule. I thought about a bunch of different rules. We can debate them, but in opening, I just want to focus on overtime. 

Many of you know the story of the overtime rule. The basis is if you work more than 40 hours in a week, and you are a non-exempt employee, you get paid time-and-a-half. So what’s an exempt employee? Well, there’s a whole slew of exemptions in the statute. The first and foremost that most people think of is the executive administrative procedure -- excuse me, professional exemption. Well, going back into the ‘40s, they began issuing regulations at the Wage and Hour Division, with clear authority to issue regulations to define what duties make that rule this exemption. 

Well, one of the things the Wage and Hour did, very early on, was they decided to impose a duties test but also put forth, what they called, a salary basis test. They said, “If you make this much money or less, there’s no way you can ever meet the duties of one of these three exemptions, and you are by definition non-exempt.” Of course, the challenge of that is that number has to be increased over time to keep up with wages. 

So enter 2004, Administrator McHutchen has the overtime rule that has not been really updated or modernized in some time, and she’s faced with a previous rule that has actually two tests: the long test, that went into the duties in a lot more detail, and with that long-duties test was a much lower salary basis—$155 a week. Now, by 2004, that was so under the federal minimum wage and had been for so long, the test barely existed. Then, there was the short-duties test that was coupled with 2.55 an hour -- oh, excuse me, 255 a week, which was still above minimum wage. 

So what they did was they went through a very long rulemaking process, a lot of comments, a lot of analysis, and what they decided was they were merge the duties test, and they would issue one salary basis, and it was measured against the 20th percentile of the south census and retail salary survey. Try saying that really fast. We’ll get better at that as this goes by. And so that became the format for how you just decide what the salary basis was, that again if it was below that number, you don’t even look at the duties test. You just assume that you know they are non-exempt because they’re making such little money. 

Well, a decade goes by, and that number doesn’t get changed, and the Obama administration comes in and says we need to change this, but they also go back, and they say, “Well, she did away with the more important test, so what we’re going to do is we’re going to use her test of the duties test and not really change it, but we’re going to go to the 40th percentile of the south census and retail salary survey, and that’s going to be the number, and overnight, we went from about 21s -- we went from 455 a week to 913 a week. 

And I’m sure you guys may remember this. I was working in a state agency where the average wages were about $25-, $28,000 for managers. We were going through spreadsheet after spreadsheet on what we were going to do with this rule. But the business community stepped in and sued in Texas and challenged the rule in a number basis, obviously the EPA, and the judge, and what maybe an interesting forewarning of where this might go under the major questions doctrine, really concluded in a large part that this couldn't be right because there were too many false positives. This salary basis test was now so high that the duties test essentially got written out of the statute, written out of the regulation, and all these people were going to get sweeped in under the non-exempt status without really looking at whether their duties fell under this exemption. 

Trump administration comes in. I see a number of friends in the room. We worked together on issuing a new overtime rule in 2019, and what we did was, we reverted back to the methodology the Wage and Hour administration had done in 2004. We kept the duties test as it was in 2004, and we went back and updated the salary basis to what was the 20th percentile of the south census and retail salary survey. Of course, now we’re hearing that the Biden administration has an interest in reopening this rule and maybe trying to get back to the methodology that they did in the Obama administration, maybe with some more luck, or in some way raise this rule again. And this leaves a number of questions, to me, under West Virginia v. EPA. 

First of all, now we have an established methodology for setting that salary-basis test, and if they find a new basis or a new argument for why that salary basis has to be suddenly changed, is that just a traditional EPA challenge or is that something of a new power or a new thing that they can do and upend the regulatory scheme. To me, though, what the more interesting question is—and I don’t know where this comes down as I read the decision and the concurrence and even the dissent—if you go back to the original statute, there’s no mention of compensation in that exemption. And we know Congress knew how to write a compensation qualifier into exemptions for the Fair Labor Standards Act because it did it in 7(i). So if it did it in one exemption but did not do it in the other exemption, is that a clear congressional power? 

But as I mentioned at the beginning, obviously what really, really concerns the majority was that it was a newfound power, that it was a new regulatory scheme, and it was something they suddenly did after decades. And so I think one of the big questions, especially—and we can talk about some other regulations and how it might be analyzed from Wage and Hour under this decision—but are the courts going to now start looking at things that have been in place for decades but don’t seem to have a statutory hook? To me, that’s one of the really interesting next steps that, I think, to Steven’s point needs to be explored as challenges are brought to regulations. 

Hon. Michael B. Brennan:  Thank you, Cheryl. This is the period where the panelists will be able to comment on each other’s remarks, including whether or not this decision is reverberating through the halls of Department of Labor, EEOC and NLRB. Who would like to start off? Go, Eric.

Eric Dreiband:  So I feel like I have to respond to my friend Steve’s critique of my remarks. [Laughter] Let me add, I agree in par with what Steve said, and I disagree respectfully in part. It is certainly the case that the Supreme Court has in earlier cases—including the cases that Steve mentioned—reasoned in a similar fashion to declare an attempt by an agency at seizing new and unheralded powers over the economy as illegitimate or invalid. That’s true, and to that extent, I agree with Steven. 

But what I think would be a mistake, though, to read West Virginia v. EPA in isolation or even read it along with the cases that it sides without looking at what else is happening both at the Supreme Court and in lower courts. And I’m referring in particular, in part, about the nondelegation doctrine. We now have five justices, a majority, who have said they are ready—three of whom were willing to do it in a case three years ago; a fourth who said he’s willing to do it in another case, and a fifth who said the same thing, or nearly the same thing—to revive a doctrine that’s been dead since 1935. 

And we also have, even within the last month, U.S. Court of Appeals for the Fifth Circuit essentially declaring that an entire federal agency essentially is wholly illegitimate in everything it does because the funding mechanism violates the apportionment’s clause. This is a new approach. Now, the apportionment’s clause goes back to the original Constitution. The nondelegation doctrine is not new, but it’s been dead for 85 or more years, and 87 years since the court has done anything with it. And both of these I think are getting at different things. 

One of them I think is a message of the nondelegation doctrine to the Congress, and the same thing with the Fifth Circuit’s decision about the CFPB. “Congress, we now are going to look more carefully at how you’re drafting statutes because we don’t like agencies doing whatever they want. We live in a democracy, and in a democracy, the Congress of the United States is supposed to be enacting the laws that govern our people, not agencies.” So I just want to make that point. 

Secondly, if you listen to what Cheryl said, it reminds me back when I did serve. I served as Tammy McHutchen’s deputy at the Wage and Hour Division at the Labor Department in 2002, 2003 when we were drafting the white-collar exemption regulations that Cheryl described. Tammy came up with a methodology. The Obama administration had different methodology. Cheryl adopted Tammy’s methodology. 

But what’s the common theme here? The common theme is you have unelected executive branch officials essentially just making things up. Cheryl said there’s nothing in the Fair Labor Standards Act that says a single word about how much executive administrative and professional employees are supposed to be paid. Instead, what we’ve created with this administrative state is we’ve created a system in which unelected bureaucrats—and I’ve served in that role myself—but unelected bureaucrats [Laughter] essentially just make things up that are completely untethered to its statutes enacted by Congress. 

And I think what the Supreme Court said in the West Virginia case, I think what Justice Gorsuch’s dissent said in Gundy is, this kind of government is not consistent with the Constitution of the United States. The Constitution is structured in a manner, both to create a government that functions well but to preserve our liberty by functioning properly, and that is the legislative power is enumerated; it’s limited and enumerated, and it can only be done by one body, and the Congress of United States, they can’t delegate it away, and the agencies can’t enact laws that govern us the way Congress is supposed to do. That is totally antithetical to the kind of republic we think we live in. 

Hon. Michael B. Brennan:  Steve and/or Cheryl, any response?

Cheryl M. Stanton:  So I think also what Brian talked about, what I talked about with the overtime story, the companion care exemption story, which we can talk about, really does highlight this idea that we see a lot of flip-flopping, right? You see that when you have a new someone come into office in the presidency, and you have new political officials come in, you end up -- if there isn’t a better kind of guiding principle of when rules can be upended and turned on their ear, whether it’s going into Browning-Ferris, whether it is doubling the overtime salary basis test, assuming that’s valid, overnight, whether it is changing the companion care exemption statute on a dime, what is the guiding principle there? 

And I think that this is fascinating to me because about five or eight years ago, I found myself when people would come to me and say, “Okay, President Trump has gone into office. Is the court going to overturn Roe v. Wade?” And I said to them, the question you should be asking yourself is, is this court going to change the administrative state? Because that’s going to have a lot more day-to-day impact on your life because you don’t think about all of the rags that every day are being pushed out by the executive branch with very little principles or oversight or recourse. Now, we do have the Congressional Review Act, and without a lot of recourse, and they’re doing it constantly, and that’s having way more impact on what you do day in and day out, whether it’s at your job, how your work is structured, any of this. 

And so I think this is a really impactful, an inflection point, on where are we going to go with administrative law. I think I saw a new civil liberty alliance. One of my classmates from law school, here, really pushing this nondelegation doctrine to make us think twice on how do we make sure that there are some parameters and guideposts put in so that the administrative state just doesn’t take over the legislative function?

Steven Lehotsky:  So you had asked if the decision is reverberating through the halls, and I think it certainly is, of all of these agencies. I know with OSHA, the NFIB v. OSHA decision was reverberating in the halls. The administration gambled with OSHA’s regulatory power and lost, and agencies don’t like to lose their regulatory power. Probably, everybody in this room would agree with that, and everybody on the panel who had served in an agency, you don’t like to give up what you have, while you’re there, at least. But I think that’s true across the entire executive branch. If they’re not looking at these decisions, then they’re likely to do things that will cause them to then lose in court and again suffer the same sort of reduction in regulatory power that you saw for OSHA and EPA. 

I think when it comes to the nondelegation doctrine, I don’t know if there are five votes. Eric, you’ll be proven right or wrong I suppose over time. I guess, I’m not sure if there are five votes on that. One thing I’ve always wondered about the nondelegation doctrine, though, is I’m not entirely sure why it’s actually a way to limit the size or power of the administrative state. Imagine if the Wage and Hour Division or the OSHA part that actually writes the regulations, imagine they were congressional agencies. No delegation, right? Perfectly fine for Congress to say, “Okay, here’s what the rule is, and now we’ve got this OSHA that instead of being an executive branch agency is a congressional Article I agency, and they are going to fill in the details for us here.” 

I’m not sure that there’s a separation of powers problem. I’m not sure that there’s been any reduction in what role the federal government would have over the American economy, so that obviously would require a lot of fiat and waving of wands for that to happen, but I’ve never been convinced that it’s actually like a talisman to be able to limit the scope of the administrative state. 

Hon. Michael B. Brennan:  I trust these comments have engendered some questions from our audience. Feel free to line up at the microphones if you have a question. There are three rules as moderator I’m going to invoke first. Please give your name and affiliation. Second, if you give a long preface, we need to move from a declarative sentence to an interrogative sentence at some juncture. And then if there’s a particular speaker to whom you’re addressing the question, please feel free to let them know at the beginning. If it’s to the full panel, let the full panel know. Sir.

Craig Leen:  Thank you. My name is Craig Leen. I’m a partner at K & L Gates, and I was a former OFCCP director as well, and I was Ondray’s senior advisor. I know a lot of people on the panel. Eric, I have a question for you. You spoke very eloquently about the role of Congress, and elected officials, and the nondelegation doctrine, but it seems, to me, that the logical extension of your position is that the Administrative Procedures Act is unconstitutional. Is that your position?

Eric Dreiband:  I think if we were writing on a blank slate, I think we would have to consider that question. Let’s think about it. The legislative power under the Constitution is vested in one entity: the Congress. Yet, we’ve created this whole structure of legislative rules that have the force and effect of law. How is that consistent with Article I of the Constitution. I think there’s a serious question as a matter of first principles. 

Now, we are 70 years, or thereabouts, into the Administrative Procedure Act, and I don’t think the Supreme Court is ready to declare the Administrative Procedure Act unconstitutional as a predictive matter. I think that’s unlikely to happen. But I think in terms of originalism and properly understanding Article I of the Constitution, I think there are serious questions about it. 

Hon. Michael B. Brennan:  Ondray.

Ondray T. Harris:  One of the things that -- I don't know. Can you hear me? You cannot. Okay. Okay. So now you can. So look at Executive Order 11246 by LBJ in 1965, so then it’s at 57 years old. Some laws don’t last that long, and it’s still -- isn’t it really, in effect, a law at this point. Do you see anyone in the near future overriding Executive Order 11246. What president’s going to take that on and say, “Hey, I’m the one that got rid of the nondiscrimination doctrine.” So it really is a law, and it wasn’t passed by Congress. The reason why you can pass executive orders is because you can do it quickly, and it should be inherent in them that they are temporary. Fifty-seven years is not temporary. And I don’t think anyone here sees it going away anytime soon. Isn’t that troubling? 

Hon. Michael B. Brennan:  Cheryl.

Cheryl M. Stanton:  I do think we do need to think about how this applies to executive orders. I don’t necessarily want to take that one on, but I think about the executive order that all contractors have to pay $15 across the country. Well, Davis-Bacon and Service Contract Act are the statutes that Congress passed, that told the administrative state, that told the executive that you are to set prevailing wages. And I went back and looked this morning, and indeed the prevailing wages in the Davis-Bacon Act are defined as work similar to the kind of contract work in the civil subdivision of the state in which the work is performed or the District of Columbia. 

So here we have the president mandating a $15 minimum wage for all federal contractors, but then we have statutes and directives from Congress saying that these wages, these prevailing wages, are based on geography. I question—and this is going a little off—but how far will this major questions doctrine go and how far does it extend to administrative actions like executive orders. 

Hon. Michael B. Brennan:  Sir.

Mark Chenoweth:  Mark Chenoweth with the New Civil Liberties Alliance. My understanding was that the Oracle lawsuit that they were defending against OFCCP did bring Executive Order 11246 and called it into question, and certainly, the NCLA’s amicus brief in that case called Executive Order 11246 into question. So if someone else wants to sue on that, get in touch with me. [Laughter] 

My question is for Steve Lehotsky on the nondelegation doctrine, which is on your last point about the -- do you lose the umph on it if you just move them into legislative agencies. I would've thought that a legislative agency can’t directly impact citizens, and that the concern we have with the administrative agencies isn’t so much which branch of government they’re in, but whether or not they’re affecting citizens directly without the authority to do so. And so I would love to see agencies moved into the legislative branch if that means they can no longer violate civil liberties the way that they’re doing on a daily basis.

Steven Lehotsky:  I’m not so sure that’s right. There’s the Copyright Office, which is part of the Library of Congress, clearly an Article I entity, and the Copyright Office sets royalty rates for music publishers and writers, so I think I don’t know if there’s ever been a constitutional challenge to the Copyright Office. Maybe somebody wants to look into that. I don't know. I’m not sure that --

Mark Chenoweth:  What would be executive power, right?

Steven Lehotsky:  What’s that?

Mark Chenoweth:  The claim would be that this legislative agency was engaging in executive power or executive action if it were doing something directly against citizens.

Steven Lehotsky:  But I thought the whole argument of the nondelegation doctrine is it’s exercising legislative power. I think of --

Mark Chenoweth:  But you can’t do either one.

Steven Lehotsky:  I think of executive power as enforcing the law, right? As Article II, the president has the power to take care that the law should be faithfully executed. So if you’ve got Congress, or a congressional agency, making the laws and then the executive enforcing them, that’s the way our system is supposed to work. I think Eric’s exactly right about the separation of powers implications, but maybe, it just means that Congress should be much, much bigger, and the executive should be much, much smaller and just limited to doing the kinds of things, like maybe the NLRB typically does of adjudication and enforcement.

Mark Chenoweth:  Thanks.

Hon. Michael B. Brennan:  We have time for one more question. Sir.

Matthew Mimnaugh:  Hi. Matthew Mimnaugh. I’m a counsel for the U.S. Senate. My question is directed to the panel about worker classification. So given the 21st century issues we have now with the gig economy, Administrator Stanton, under her tenure, issued a worker-classification rule emphasizing two factors of the economic realities test. DOL just issued a new rule, saying they’re going to emphasize all six factors now, which when applied, couldn’t in essence classify a number of independent contractors as employees. 

So my question is, given the fact that Schechter is still good law, given the fact that Panama Refining Company is still good law, and given the implications of that application on the economy, is there a good legal argument for reviving the nondelegation doctrine just based on that, or do you all believe that, under the FLSA, there is sufficient authority for the administrator to selectively apply the six-factor economic realities test to suit political goals?

Hon. Michael B. Brennan:  Cheryl.

Cheryl M. Stanton:  So I’ve thought a lot about this, as Matt notes, and again, a number of people in this room were of great assistance in issuing that independent contractor rule, and it was the first time we had done rulemaking at the Wage and Hour Division on independent contractor since the statute was written. And so some question there about a new power, did we have authority, things of that nature. But if you look at what we did in that role, and I don’t know which way this cuts, but if you look at what we did in that role, there’s a six factor. The one of the six factors is, is the work integral to the business or the putative employer? 

I raise that because if you go back to the original Supreme Court decision in the 1940s, Rutherford Foods, where it talks about what’s an employee under the FLSA versus not, that is the original of where people pull this elusive six-factor test out of. It’s a chicken plant. It’s a poultry plant. And one of the factors they look at is, if the plucker who was the -- is he an independent contractor or not, gets pulled off the line, can the line still operate? Was he integrated into the line of work such that the work couldn't happen without him? And it was him. 

I say that because the ABC test, the B goes to that concept of integral, not is it -- let’s talk about freelance journalists. They hate being classified as employees. They all lost -- I shouldn't say they all. Many of them objected because they lost work because they stopped freelance journalism in California when AB5 was passed. And they are integral to the business because they were writing articles that the news outlet was putting out, but they weren’t integrated in the process. 

Similarly, how far does this go? If you have a freelance graphic designer, well, it’s integral that you have, in your marketing material’s, pictures, and on your website, does that make you integrated into the line of production. So, anyway, I say all that to say that one of the things we really teased out in that rule was this idea of what was Rutherford Foods originally saying in the ‘40s. And so I really wonder how the major question doctrine would apply in that situation where what you have is a rule that’s trying to go back to the basics, go back to the beginning and say where did this start, what was it supposed to be, and how has it been knocked off course over time?

Hon. Michael B. Brennan:  Well, as Chief Judge Breyer said this morning, “Debate is not dead. It lives at The Federalist Society.” I hope you enjoyed our panel today, and please join me in thanking them.

 

1:45 p.m. - 3:15 p.m.
Competition and Innovation Policy for Tomorrow

2022 National Lawyer's Convention

Topics: Corporations, Securities & Antitrust • Intellectual Property
State Room Overflow: Cabinet & Senate Rooms
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006

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As global crises abound, from pandemics to war, society cries out for myriad new technologies, from healthcare and high tech to manufacturing, energy, environment, and food. This panel will explore how the antitrust and patent systems can best foster competition and innovation in each of these vital areas.  What are the key ideas to bear in mind when sculpting these specific legal systems? What are the agencies like the PTO and DoJ Antitrust Division best able to accomplish; and what legal rules help them do their best work? How do the courts fit in? What roles are best played by large business firms compared to small and medium enterprises? This panel will explore the lessons that can be drawn from big changes made over the past century to the patent-antitrust interface such as the 1952 Patent Act and the 2011 America Invents Act with an eye towards how best to use them to shape the legal systems for tomorrow.

Featuring:

  • Hon. Makan Delrahim, Partner, Latham & Watkins LLP; Former Assistant Attorney General, Antitrust Division, U.S. Department of Justice
  • Prof. Christine Haight Farley, Professor of Law and Faculty Director, Program on Information Justice and Intellectual Property, American University Washington College of Law
  • Hon. Andrei Iancu, Partner, Irell & Manella LLP; Former Undersecretary of Commerce for Intellectual Property and Director, U.S. Patent and Trademark Office
  • Hon. F. Scott Kieff, Fred C. Stevenson Research Professor of Law, George Washington University Law School; Former Commissioner, U.S. International Trade Commission
  • Moderator: Hon. Ryan T. Holte, U.S. Court of Federal Claims

Speakers

3:00 p.m. - 3:30 p.m.
Book Signings

2022 National Lawyers Convention

Mezzanine
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006

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The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State

  • Prof. Tom Merrill, Charles Evans Hughes Professor of Law, Columbia Law School

Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses

  • Prof. Vincent Phillip Muñoz, Tocqueville Associate Professor of Political Science and Concurrent Associate Professor of Law, University of Notre Dame

Speakers

3:30 p.m. - 5:00 p.m.
What Can Be Done About Violent Crime?

National Lawyers Convention 2022

Topics: Criminal Law & Procedure
East Room Overflow: Chinese Room
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006

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America’s national conversation about firearms is primarily about mass shootings and gun control. Some experts assert that a deeper conversation, however, should include relevant data, the problems of suicide, street and gang crime, and domestic violence. Others point out that we should examine what isn’t being done by local authorities from an enforcement standpoint, as well as how well existing federal criminal firearms statutes are being investigated and prosecuted.  They assert that combating violent crime is a state responsibility, with federal support only supposed to fill in the “interstate gaps.”

This panel will discuss the foregoing considerations and pursue a more nuanced conversation about the problem of gun violence, established enforcement roles, and possible policy solutions.

Featuring:

  • Mr. Thomas Abt, Chair, Violent Crime Working Group and Senior Fellow, Council on Criminal Justice
  • Mr. Paul Carrillo, Community Violence Initiative Director, Giffords Law Center to Prevent Gun Violence
  • Hon. Erica H. MacDonald, Partner, Faegre Drinker Biddle and Reath LLP; Former U.S. Attorney,  District of Minnesota; Former District Judge, First Judicial District, Minnesota
  • Rev. Mark V. Scott, Associate Pastor, Azusa Christian Community
  • Moderator: Hon. Amul Thapar, U.S. Court of Appeals, Sixth Circuit

Speakers

Event Transcript

William McClintock:  All right. We’ll go ahead and get started. Good afternoon. My name is William McClintock, and I’m a member of the executive committee for the criminal law and procedure practice group which has organized this afternoon’s panel on violent crime. Our chairperson John Richter got stuck in Miami because of the tropical storm, and so I’ve been deputized to quickly introduce our panel moderator who I’m certain needs no introduction to this crowd. 

So without further ado, I’ll introduce our moderator this afternoon who is Judge Amul Thapar who currently serves as a judge on the United States Court of Appeals for the Sixth Circuit where he’s served since 2017 and incidentally was President Trump’s first nomination to the federal courts of appeal. Prior to his service on the Sixth Circuit, Judge Thapar served as a judge on the United States district court for the eastern district of Kentucky, a district where he also served as the United States Attorney prior to joining the federal bench. Judge Thapar, welcome and thank you for your willingness to moderate our panel this afternoon. And without further ado, I’ll turn it over to you. 

Hon. Amul Thapar:  Thank you very much for having me. I appreciate The Federalist Society having this panel in particular. I think it’s very important today that we not only need The Federalist Society to do this, but we need other groups to do this, to bring speakers like this together to talk about violent crime. It’s an issue effecting everyone in every phase of society, and it’s an area where we really can work together to solve problems. And so I think it’s great to have four wonderful speakers like this that can talk about their different experiences and hopefully you can take some of their ideas and put them into action in your own communities. 

We’re going to hear first from Erica MacDonald. Ms. MacDonald is a partner at the law firm of Faegre Drinker Biddle and Reath. Prior to joining the law firm she was the 36th U.S. attorney for the district of Minnesota. As I told her, that’s the greatest job she’ll ever have, so the rest of her career’s downhill. So if she comes up with good ideas, you should put them to action so she can feel good. 

In addition to leading her office, she was selected as one of the small group of U.S. attorneys to serve on the Attorney General’s advisory committee, which is a committee that advises the Attorney General on policies nationwide that would benefit U.S. attorney’s offices. She was also chosen as one of the 16 commissioners of the President’s commission on law enforcement and the administration of justice. Prior to serving as a U.S. attorney, she served as a judge on the district court in the Minnesota’s first judicial district for over eight years and as an AUSA. 

After hearing from Ms. MacDonald, we’ll hear from Mr. Carrillo. Mr. Carrillo is the director of Giffords Law Center’s community violence initiative. He was raised in southeastern Los Angeles in an environment with gangs, drugs, and gun violence. So he knows this stuff firsthand. 

He began his career as a volunteer at a hospital-based violence intervention organization and in 2005 co-founded Southern California Crossroads, a nonprofit organization that provides violence prevention and intervention services throughout the greater Los Angeles region. In 2012 he cofounded the National Gang Violence Prevention and Intervention Conference, which brings over 800 practitioners in the field of community violence together to share the best practice approaches to violence. 

After hearing from Mr. Carrillo, we will hear from Thomas Abt. Now, Mr. Abt teaches, studies and writes about the use of evidence informed strategies to address violent crime and other public safety problems. He is the author of Bleeding Out: The Devastating Consequences of Urban Violence and a Bold New Plan for Peace in the Streets. It was published in 2019. He also talks to media outlets often and has a TED talk on saving lives by stopping violence that has been viewed more than 200,000 times. 

So that’s your homework for tonight if you haven’t viewed it to view that TED talk. He also worked for Governor Andrew Cuomo and worked at Harvard in both the Kennedy School and the Law School. Finally he was also chief of staff to the office of justice programs at the U.S. Department of Justice. 

Finally, last but not least, we’ll hear from Mark Scott. Reverend Mark Scott is the associate pastor of the Azusa Christian Community in Boston. The Azusa Christian Community seeks to follow Jesus’ inaugural declaration to under the anointing of the holy spirit preach good news to the poor. Reverend Scott is a fellow with the Seymour Institute for Black Church and Policy Studies. He currently works at the Boston Public Health Commission as the director of the division of violence prevention. He’s also the board chair for the Massachusetts coalition to prevent gun violence, and he is a board member of the Ella J. Baker House where he helped create the violence reduction task force. With that, I will turn it over to Ms. MacDonald. 

Erica H. MacDonald:  Thank you. Good afternoon. I’ll move this a little bit closer. You know, our thought as a panel is we’re each going to have some brief introductory remarks that we prepared, and then we plan to hopefully have a conversation with you all. We welcome questions. We encourage questions, not the hard ones. No, you can ask the hard ones too. 

But I can tell you it’s a really thoughtful panel that was put together here today. I know that my colleagues Tony Bacon (sp) and Mike Hurst (sp) had a big hand in that. And the reason I say it’s very thoughtful is because to combat violent crime it really has to be a whole systems approach. Law enforcement can’t get it done alone. We can’t do it without the buy in of our community, and we can’t do it without the support of our faith leaders. And we have to have evidence-based programs. 

And so the fact that I’m sharing the stage up here is no coincidence because we know that this is what we need to do our work. You know, so now I’m putting on my U.S. Attorney and AUSA hat. And I can tell you that any responsible violent crime reduction program has to have three components: prevention, treatment, enforcement. It’s a three-legged stool. If you do not have one of those legs of the stool, your program will fail. And importantly it requires collaboration, collaboration not only among federal, state, and local officials, but also collaboration with community and the support of our faith leaders. In Minneapolis for instance nothing gets done if you don’t have the support of your faith leaders. 

So there’s various forms of violent crime, and I didn’t want to talk in a vacuum. So I thought I would specifically focus on gun violence and what we’re doing from a treatment, prevention, and enforcement perspective. And then I’m going to turn it over to my panel members. I’m going to give you a few statistics that you probably have already heard or know but just to kind of put this problem in focus. 

In 2020, 77 percent -- so in 2020, 70 percent of all homicides were gun related, committed by a firearm. In 2020, we had record high sales of guns, and then there’s a really important metric that we follow in law enforcement. It’s called time to crime, in other words the time that the gun is purchased to the time that the crime is committed with that firearm, and what we’re seeing is a much quicker time to crime. And research shows that that is part of what is elevating our violent crime statistics as it comes to crime. 

Specifically in 2015 to 2019 that time to crime was 13 percent of the crimes were in less than a year. By 2020, 23 percent, so a 10 percent increase -- 23 percent time to crime were less than a year. So talking about the enforcement perspective, and that’s the easy part, right, from my perspective as an assistant U.S. attorney and as a U.S. attorney. We have various tools in our toolbox that we can use to address crime that involves guns. 

So for example we can prosecute folks that are prohibited persons in possession of a firearm, so not just felons. There’s other prohibited categories: if you’re suffering from an addiction or if you have a mental health or let’s say you have a domestic violence conviction in your background. There’s various ways that we can prosecute those cases. An important thing that we need to talk about is also prosecuting straw buyer cases. 

They’re not the sexy of cases. Honestly, they typically involve very sympathetic defendants because they are usually being used by someone to get that firearm to get it into their hands. But those are cases that we need to focus on as well. So we’ve got tools that we can use. But we really need to talk about prevention and treatment, and that’s what I want to talk about here today. 

And so I want to talk to you, you know, there are community-based programs that are at the neighborhood level that involve addressing people who are most at risk for either being shot or shot at. And so specifically in Minneapolis we had a program or we have a program -- I say had because I’m no longer at the office regretfully, Your Honor. But we have a program called the group violence intervention program. And what that is is an evidence-based program that targets young men who are either at risk for being shot or pulling the trigger. 

And I say it’s evidence-based because we have a research partner, John Jay College, who’s the one that pulls together the information as to whom we should target. Now, I think you probably know this. It used to be back in the day that a lot of the violent crime was gang related. We’re not seeing that as much today. We’re seeing it more group related, very loose groups. And typically, you know, while back in the day maybe gangs were motivated by a different factor, what we’re seeing a lot now are social media beefs that blow up and turn into something that results in a fatality. 

And so what we do in our group violence intervention program is we target those groups. We bring them in for a call in. We talk to them from the law enforcement perspective, and then we turn it over to what’s called the moral voice perspective. So it starts out with the mayor explaining to these young men why there here. It turns next to Minneapolis PD who says if you’re involved in this, this is what’s going to happen to you. It turns to the county attorney who says this is how I would prosecute you in my jurisdiction, and oh, by the way, you don’t want to meet Erica because let me tell you what happens when you go to the feds. And then I explain to them the consequences that could happen if they’re prosecuted federally. 

But then we explain to them we’re here because we want to keep you safe, keep you alive and keep you free. We’re not asking you to get out of your group or out of your gang. We’re asking you to put down the guns. And we have a path out for you if you choose to do that. At a minimum put down the gun, but we have a path for you. 

And we turn it over to the moral voice. And those are individuals in the community who all have felony level convictions on their record who are now involved and total life’s work is getting these young men out of the gangs, out of the groups. And so they give them the opportunity for employment. They help relocate them if necessary outside of their community. They help them get their driver’s license. They help them contact various law firms with pro bono programs that will help them with expungement -- all of those things that give them a path out of violence, put down the gun, and to have a healthy productive life. 

When I was a judge and my guess is my colleague sitting next to me -- you know, I can’t tell you how many men stood before me on the day of sentencing and said, judge, I’m tired. I’m just tired. My friends are dead or they’re in prison. And I’m just tired of this. I want to be done. And so that was the voice and that was the message, and I told these young men, Don’t be there. You have a path out now. 

I can tell you it has tremendous success. I’ll give you a few statistics from it. Since we launched the program in 2017, 400 people, 400 young men plus have elected to accept services and to put down the guns. Of those from 2017 to 2020 we saw a 73 percent drop in the number of group involved gun cases. And in 2017 we saw a 55 percent drop in the number of gun cases related to these groups. 2018 it dropped again, 40 percent drop compared to 2018 and a 73 percent drop compared to 2016. And by 2019 we saw a 71 percent drop. 

Now, what happened in 2020 obviously had a great impact on this program. Because of the pandemic, we could no longer have those in person intervention meetings. And we saw crime going back up, and we saw group member violence relating to gun crimes going back up. Luckily we’re past that now. We can start the intervention programs again and have those one-on-one in person meetings. 

So I tell you that to say there are creative programs out there. This is a problem for all communities and all shapes and sizes. It’s a mistake to oversimplify the problem and point to one cause. But what it does require is that we work collaboratively as a group, all of us, to address the crime problem and to come up with creative solutions with a holistic approach. So then I’m going to turn it over. I think, Paul, are you next?

Paul Carrillo:  I believe so. 

Hon. Amul Thapar:  You are. 

Paul Carrillo:  Hello? Can you hear me? Oh, there it goes. Okay. Thank you. I have a few things to share, and I’ll try to stick to the time that I was given and knowing that we’ll have some time for Q&A afterwards. 

So first I want to thank you all for having me and giving me the opportunity to participate and share my experiences. Now, I don’t call myself an expert. I’m a person who has been through a few things and made a bunch of mistakes and learned a few things. And so I’d just like to share my experiences. 

I think in regards to violence or more specifically gun violence I think any community in my opinion that has more than 10,000 residents should be trying to cultivate a comprehensive strategy. I was just in Uvalde two weeks ago for the second time, and there’s 16,000 people there in that town, a very small town. At first I thought it was 60. It’s 16, one six. It’s a very poor community, very disenfranchised, and they just are lacking in so many areas. 

And so it just kind of dawned on me like a town as small as this needs a comprehensive strategy to address violence. I don’t disagree with what Erica shared, although I have a different kind of view on things in terms of a comprehensive strategy and what that entails. And again, I don’t disagree with the three-legged stool. But in my experience a viable comprehensive strategy and an example that I can share with you is in Los Angeles. Mayor Villaraigosa created in 2008 the GRYD office, Gang Reduction Youth Development. 

And the strategy included prevention efforts to keep young men and women from becoming involved in the criminal justice system and joining gangs, etc.; an intervention component which leverages folks with lived experience, oftentimes formerly incarcerated individuals who now want to be peacemakers and help their community and oftentimes are the only ones that can engage those at highest risk or I should say those that are willing to pull the trigger, producers of violence in terms of the interruption -- interrupting the transmission of violence. The third pillar is re-entry. You definitely have to try to support those coming out of either juvenile hall and prison. 

I mean, don’t get me wrong. Some folks won’t make it. Some folks don’t want a program. Some folks are just going to commit themselves to a life of crime and etc. But in my opinion I feel like the vast majority would respond if given the right opportunity. 

Next is survivor’s services, which is the fourth pillar. And they’re often forgotten, and they can be your biggest advocates, your biggest assets or allies—I shouldn’t say assets—to help solve the problem in the community. And these are mothers, anybody who’s been closely impacted by violence. Perhaps they’ve been shot themselves or victimized. But these can be individuals that can be trained and mobilized to help raise funds and just championing the efforts and also be part of the solution. 

And then of course law enforcement is a critical pillar of a comprehensive strategy. I did some work in El Salvador, and we had all the components except for law enforcement. And so we were kind of -- we would meet with the national police and the local police and kind of cross our fingers and say we hope you’ll support what we’re doing, right? But at the end of the day in many situations they just didn’t care, so we were always kind of working against that. I knew that we could only go so far if law enforcement wasn’t an active participant and supporter of the strategy. 

I will say that the GRYD office had a good run in terms of success. We had 50 year lows in homicides in Los Angeles up until the pandemic. One of the things that is key and I think Erica mentioned this is the coordinating of a comprehensive strategy. It sounds good. Thomas and I talk about this a lot. It sounds good and peachy and, you know, all those good things when you talk about a comprehensive city-wide strategy. 

But there are very few. And those that are out there are mostly dysfunctional, typically because of politics and egos. But in LA we had a run were we essentially had the chief of police, the sheriff and the mayor all on the same page, all publicly supporting and promoting the strategy, even endorsing and promoting ex offenders as part of the solution, which was like the first time nationally that a big city did that. Even when some of the folks who were violence interrupters got arrested because they kind of reverted back to their previous lifestyle, the chief, the mayor, and the sheriff stood firm and said there’s going to be bad apples. 

But we’re pushing forward, and these guys are part of the solution. Things have changed. We got a new mayor. We’re about to get a new mayor, our second mayor since Villaraigosa. The sheriff at the time is incarcerated, Sheriff Baca, for some other stuff, you know, got himself into some trouble. Or maybe he’s on home arrest. And I’m not making fun of that, but it’s unfortunate. And we have a new chief. And the GRYD office is not -- in my opinion it needs some innovation at the moment. It had a ten year run, and with the pandemic I think a lot of cities like Erica mentioned are trying to figure out now how do you kind of pivot back and get that momentum that some of us had before the pandemic. 

I’ve got a bunch of other stuff I can share later, but I’ll leave you with this last thought for now. And I think Thomas is next. I agree a hundred percent with the idea and the importance of evaluating violence reduction efforts. Like, we have to; right? Obviously, you want to know if it's working. But I will say that most of the models that exist or that are the most popular, if we all -- if I asked you all to write down on a piece of paper what are the two or three most popular models that you’ve heard of in regards to gun violence prevention, you would probably all write down the same one or two. 

And the problem that I have with those is that they’re very old. We lack innovation in this field, and so many things have changed. And I’ll give you one example is that social media is a significant part of all of our lives; right? I think Facebook blew up in, what, 2006 or whatever. But it is also very important in the lives of our youth, even our youth and our individuals who are out there shooting people. And so gangs use social media to coordinate, to recruit, to promote violence, to threaten folks, etc. There is not one evidence-based model that addresses social media violence. So that in and of itself is proof that we lack innovation as a field as professionals. Thank you. 

Thomas Abt:  It’s a real pleasure to be here with all of you here at The Federalist Society. It’s also a pleasure to be with such esteemed panelists. I agree with a lot of what’s been said. You know, it’s really encouraging to hear from a law enforcement leader like Erica to be promoting this balanced approach. And I think you’re hearing actually a lot of similarities between what she and Paul were talking about. 

The particular strategies she’s talking about, the group violence reduction strategy, it’s a bit complicated because that strategy is known by like nine different names, so you may have heard of it as focused deterrence or operation ceasefire or GVI or GVIRS. But it is an important strategy, and I think it illustrates some principles that I’ll talk about. So it’s good to hear from Erica in that regard. 

Paul, as usual -- I’ve known a long time -- is selling himself unbelievably short. He is a very important expert in this space and has saved a lot of lives in LA and is now coordinating some of these efforts nationally for Giffords. And I think he’s expressing a sentiment that you hear among some of the most committed people in this space, which is a sense of impatience and a sort of understanding that we need evidence-based practice but that that evidence needs to evolve and we need space for innovation. 

The fact that we really -- we understand the importance of social, but frankly we don’t have good intervention strategies for social is a real issue. We’re several years behind. We need to catch up. And I also think he raises this issue of sustainability. 

Focused deterrence was, for instance, remarkably successful not only in Minneapolis but in Oakland in recent years, cut violence by 50 percent. Given all of the political and other turmoil that happened in the wake of the murder of George Floyd, that program that had a partnership between law enforcement, community members and service providers became politically untenable despite its success. Maybe the same thing happened in Minneapolis. 

Paul was talking about one of the best examples of comprehensive strategies out there in LA. With the transition in political leadership, that program didn’t die, but the level of enthusiasm and support waned. And one of the things I often talk about is we know how to reduce community gun violence in this country. We do it again and again and again, but we don’t do it sustainably. And that is, I think, a real challenge. 

I haven’t heard yet what Mark will say, but I do think that, Mark, you represent an incredibly important constituency, which is the voice of the faith-based community. Erica said that as well. There has to be a moral component to these things. And I think that that’s a really important voice. And you see in many cities a group of increasingly clergy who are not just sort of sermonizing and moralizing but really willing to get their hands dirty as you have done and really get into the details and the weeds of the policy and the work. 

I think that based on my research there are three fundamental antiviolence principles that I think sort of encompass a lot of what we’ve already talked about. And those three are focus, balance, and fairness. Study after study after study shows that community gun violence is hyper concentrated, not among large groups of -- large demographic groups but among these small networks that Erica alluded to. 

We also know that violence doesn’t concentrate in, quote/unquote, bad neighborhoods but in micro locations known as hot spots. So what you might think of as a bad neighborhood is actually a neighborhood that may be overall mostly peaceful but has three or four violent micro locations. And so it’s very important to understand that this violence is very concentrated. And so many of the most successful strategies target those concentrations and focus on the highest risk people, places, and behaviors. 

The second principle is the principle of balance. When myself and Chris Winship, my colleague from Harvard, conducted this systematic metareview of antiviolence strategies I thought there would be sort of at least some form of sort of preference or bias in the literature towards enforcement oriented strategies. That was not ultimately what we found. What we found were a number of successful tough on crime strategies, if you want to use that term. We also found a number of successful prevention and intervention strategies that focused on supports, services, and treatment. 

And I think this sort of mirrors the broader reality which is that if you want to incentivize human behavior you have to think about carrots as well as sticks. And there’s really no city in this country that has sustainably either arrested their way out of community gun violence or just programmed their way. And I think that speaks to this broader problem that we’re having in this country, which is the way we talk about this issue, which is deeply partisan and hyper polarized. 

There was a window a few years ago where it seemed that progressives and conservatives were really coming together about how to move the system forward and address a lot of these issues. That’s certainly less true today. And one of the challenges with that is most of the evidence informed strategies that we’re talking about are kind of somewhere in the middle. 

They’re not particularly -- they sort of might not match up perfectly with what the hard right wants, and they don’t match up perfectly with what the hard left wants. They have an element of enforcement. They have an element of prevention. And it’s getting harder and harder to make policy in the sensible center. And so I think that’s a real challenge. 

And then the last thing I will say is that if you want to be sustainably successful in this space in addition to being focused and balanced, you must be fair. And what I mean by fair is your work needs to be perceived as fair and legitimate by the communities that are most impacted by it. And what we see in these communities is they are often very unsatisfied with their law enforcement partners, but they desperately need their law enforcement partners. And one of the things that we see is that people in these communities don’t want to be over arrested, overcharged, overincarcerated. But at the same time they feel unsafe, and they feel like while we’re being burdened by the excesses of law enforcement we’re not being protected. 

And one of the things that we need to do is double down on that focus aspect and really focus on the most serious people committing the most serious offences and not, as a lot of my law enforcement colleagues say, fish with a net. And so I think that’s an important thing. I’m sure there’s going to be a lot more to talk about, but I think that if we can create the political space to be both evidence informed and community informed, I think we can make real progress on this issue. 

Rev. Mark V. Scott:  Thank you. I’m very happy to be with you here today. I’m going to really try to build on what the other panelists have said and also see if I can perhaps lay some foundation to a lot of this conversation. I want to focus on four things. I want to talk about faith. I want to talk about collaboration. I want to talk about both being very focused on a particular population but also having a broad-based prevention approach. And then I want to talk about a public health approach.

So on faith, Jesus’s inaugural address is made on a Sabbath day in a synagogue which is a place he was in the habit of visiting. And there he quotes the prophet Isaiah. “The spirit of the lord is on me because he has anointed me to proclaim good news to the poor. He has sent me to proclaim freedom for the prisoners and recovery of sight for the blind, to set the oppressed free.” It was to build upon this philosophical, political, programmatic statement that I moved in the fall of 1989 from a lovely apartment on the Hill to join members of a tiny Black Pentecostal church, the Azusa Christian Community, in the valley of one of Boston’s most violent neighborhoods. 

All of my reflections and learning since then are from that. I won’t go through the whole biography. You heard some of that. The thing I’ll add to the biography is that I’m now a chaplain intern at Boston Medical Center’s Violence, Intervention, and Advocacy program, very similar to the hospital program that Erica mentioned. 

Violence is the result of nihilism. In the spring of 1991 Cornel West and the journal Dissent published “Nihilism in Black America.” Professor West comments apply more to some places and times than others, and they may be a bit over the top, an act that a preacher professor would be apt to commit. But they’re worth hearing. 

“Nihilism is to be understood here not as a philosophic doctrine, that there are no rational grounds or legitimate standards or authority. It is far more, the lived experiences of coping with a life of horrifying meaninglessness, hopelessness and most importantly lovelessness. Nihilism is not new in Black America. The first African encounter with the New World was an encounter with a distinct form of the absurd. The genius of our Black foremothers and forefathers was to create powerful buffers to ward off the nihilistic threat, to equip Black folk with cultural armor to beat back the demons of hopelessness, meaninglessness, and lovelessness. 

“These buffers consisted of cultural structures of meaning and feeling that created and sustained communities. This armor constitutes ways of life and struggle but embodied values of service and sacrifice, love and care, discipline and excellence. Greed, hate, envy are spiritual ideas that must be countered by the spiritual ideas of faith, hope, peace, love, and joy. Religion is one way of organizing and implementing the ideals. The Black church has been and now must be the invisible institution at the center of creating buffers against the nihilistic threat in this new world.” 

Two, collaboration, the first two clauses of the First Amendment are an excellent frame for collaboration between communities, all communities of faith, civil society, and government. I have in my head also a diamond approach. You’ve heard three. Everybody likes three. I’m going to go with four. 

So diamond, think of baseball, Red Sox. I heard that; right? Bad year, bad season, next year -- or a solid form of the element carbon. So faith is one. The law is two, inclusive law enforcement agencies and the criminal justice system. Three is nonviolent direct action. That’s those members of the community that have been there, have experienced it, and are now in a position to contribute in direct engagement with the population that we’re most concerned about. And four, public health approach. 

So number three on this being very focused but also having a broad prevention approach, it’s walking and chewing gum at the same time, so a clear, sharp, sustained -- very important word -- focus on those families—violence functions in a family—so those families most impacted by violence and then ever widening efforts to prevent it from happening in the first place. So if you think of it as the fire, put the fire out, but then how do you help the people who are displaced by the fire? Why did the fire happen? And what are we going to do to stop it from happening another time? 

And then finally number four, this public health approach. So I had a young man in a neighborhood, his name is Jimmy Dauphine (sp), tell me you have to learn to peel back the onion. Ask the question why. 

So we know we had a 14 year old boy show up at school with a gun, so we can stop him. We can take the gun. We can go through the criminal justice process. We can adjudicate him delinquent. We can put him into a juvenile justice system, but why did he bring the gun to school? And you’ll get an answer. Well, why did that happen? And you’ll get an answer. Why did that happen? So peel back the onion. 

And then also the technical term among my public health colleagues is social determinate of health, but I just want to tell the bridge story. So when we moved into that valley in the Four Corners neighborhood, there was a main thoroughfare that came through the neighborhood, went over a bridge. There was a train track under it, and the bridge was so decrepit it was shut down. They just shut it down. And it was shut down for year over year over year. 

So one of our advocacy things became fix the bridge. And they fixed the bridge. Now, the train that was on those tracks was the commuter train. It brought people from affluent suburbs to jobs downtown comfortably and conveniently. There were stops in our neighborhood, but they were all closed. So then it became fix the stops. Fix the stops. Fix the stops. So now there are train stops in the neighborhood. 

But now that you have a train stop there, it becomes -- the property value begins to go up. So one of our church members’ landlord said, I’m going to raise your rent $500. Not much you can -- and so she said okay. I’m going to go buy a house. And so she got some support and help from the city, and she’s now a homeowner. But those kinds of things in a neighborhood are part of what create both safety and health. I just picked one of them, transportation, which then led to an economic concern. 

So the thing I want to repeat and sort of move towards closing with is that communities face all kinds of threats, and this is something you heard earlier. There are also all kinds of resources that would protect it. So I want to reference a meeting that we had in Boston on November 4th of this year. It went from 4:00 to 5:30. The mayor was there. The police commissioner was there. The superintendent of the schools were there. And then about a good dozen or so people who have been deeply impacted by violence and are now thriving contributors to their families and neighborhoods. And they had a whole host of ideas. So that cohort of folk -- and the idea is that they have where you’re going to find a lot of the sustainable solutions to this issue. 

Boston has experienced a difficult October. I live in Dorchester, one of Boston’s neighborhoods. Dorchester has experienced a very difficult year. So if you know Boston at all, if you go to another one of the Black communities in Boston, Roxbury, it’s gone down. If you go to Mattapan, it’s gone down. In my neighborhood, Dorchester, it’s gone up significantly. We’ve had a number of juvenile homicides. 

Our overall rate is low. It’s lower this year than it was last year. Our ten year average is trending downward, so we’re doing things that work. But right now it feels terrible if you’re a Dorchester resident. So the recent violence is difficult, very, because violence is always present, lurking and at times surging. And it’s not possible to predict the future, but hopefully as the year passes we’ll see it go down, we’ll see it shift around. 

But our collaborative efforts must be improved and sustained until we finally address the root causes and the things that create violence. And we must remain committed to safety and even more peace. Let me close with the Afro-Asiatic wisdom literature of James the Bishop of Jerusalem where he declares, “Religion that god our father accepts as pure and faultless is this: to look after orphans and widows in their distress and to keep oneself from being polluted by the world.” Thank you. 

Hon. Amul Thapar:  Before we open it up to questions, does anyone want to ask or talk about what anyone else did? In other words, any responses?

Erica H. MacDonald:  Not me. 

Hon. Amul Thapar:  No? Okay. If you have a question, there’s a couple mics. I’m going to lead us off with just a few, and then we’ll take questions from the audience. So a couple of you, Erica and Paul, you mentioned the pandemic causing problems with the programs. Paul, you used the words pivot back. 

And I guess my first question for the two of you is how do we pivot back to get those programs that were working implemented again, and are they, Paul, to your point really timely when we’re facing new challenges that maybe those programs didn’t address? And so how do we do it and move back to the successes we were having before facing the new reality?

Erica H MacDonald:  Yeah. That’s the biggest issue, especially my community like probably several of your communities, we’re having trouble with law enforcement obviously Minneapolis; right? Our sworn strength was 900 in I think it was 2018, 900. Then our chief had gone to Minneapolis city council and said based on all the statistics I have we should have a sworn strength of 1,300. And to be clear, he’s a Black police chief, Rondo Arrandondo, fantastic, well respected. City council kind of lost their head on him. 

The sworn strength in Minneapolis now, the people on the street, is less than 500. And so we have so few resources, and these programs rely on those resource. You have to have as we talked about a carrot and a stick approach. And so the biggest thing we have to do right now is rebuild our law enforcement resources so that we can start doing programs like this again. They’re basically holding it together by a shoestring to have folks just on the street and responding to the emergency calls. Paul?

Paul Carrillo:  When the pandemic started, I was still running my nonprofit organization in Los Angeles, and during the pandemic I joined Giffords. But I had many conversations with folks like Thomas and others and almost felt like at times that we should probably throw everything out pre-pandemic because the pandemic changed so many things, communication, the way folks move or didn’t move, who you hung around, et cetera. 

But my staff in the midst of the pandemic -- the violence went down for a short period of time, and we largely focused on preventing the spread of COVID. We partnered with LA county public health, and we started hitting -- my same violence interrupters, street outreach workers were now canvassing the communities handing out pamphlets on facts on COVID and where they can get vaccinated and passing out masks and hand sanitizer. So we ended up with double duty, stopping the spread of COVID with Department of Public Health, and then soon after violence went back up again and obviously went up a bunch of places. 

So I don’t have an answer to that to be honest, but I think it’s a mix of things. You have to look at what’s worked in the past but then also be open to this whole new world that we live in post pandemic.

Hon. Amul Thapar:  Thomas, you mentioned one of the things that I think we all grapple with which is how do we get away from making this a partisan issue and start to implement solutions where we can get -- you mentioned the left and the right. But they often drive the train. You called it the left, right, and sensible middle. And the sensible middle tends to stay home a lot while the left and right drive the train. So how do you get the left and right to work together to come up with solutions that work? And who should lead that charge?

Thomas Abt:  I’ve thought a lot about that, but I have to admit I’m not a political expert. I’m a researcher and practitioner and have been working in government for a long time. So I’ve been involved in politics, but I’m not necessarily an expert in politics. 

But I do think that one of the things that’s easy to say but very hard to do is to shift the frame of the conversation from an argument to be won to a problem to be solved. If you’re talking about a problem, it’s easier to evaluate various strategies in a less emotional, less combative way. If you’re sort of positioned in this sort of one side is right versus wrong, it’s very hard to get things done. 

And in terms of sort of making room for the sensible center as I called it—and this is something that the council on criminal justice where I work really tries to achieve as a nonpartisan organization— I think that it’s really incumbent on folks -- we have to police our own, meaning that I think that folks on the left have to call out the extremism when they see it on the left and that the same thing is true on the right. We have to sort of insist on a responsible conversation. 

It’s very easy to call out the other side. It’s harder to call out one’s own side, but I think that that’s really sort of a key issue. I took a lot of flack after the murder of George Floyd in saying as a committed progressive and Democrat that I thought defund was a terrible idea. I took a lot of criticism for that, but I think that was the right position to take. And I think history has born that out. 

At the same time we have to be candid that there was a massive sort of electoral strategy among some on the right, not all, to really create this sort of fear-based environment about criminal justice. And we have to address that as well. And so I think there’s enough blame and enough responsibility to go around, but I think that sort of being -- I think the people in this room, whatever group you belong to, you can use that credibility with that group most effectively. 

Hon. Amul Thapar:  My final question, reverend, you mentioned sustainable solutions. You’re a pastor. How can you ensure -- it seems to me that one of the things that was unique about what you talked about is that you are a pastor and you can impact a lot of people indirectly and directly. How can we rely on our church partners and others to really have sustainable solutions?

Rev Mark V Scott:  I think we’re going to be here; right? So I mentioned 1989. That’s when we moved into the neighborhood. We’re still there. Our institutions last. We’re not in general cycling through from one administration to the other. 

So the work that we’ve done goes back to Mayor Flynn and then Mayor Menino and then Mayor Walsh and then Mayor Janey and now Mayor Woo. And they’re all very different. They have very different strategies. But we’re always present and there. 

And I can remember going into a church for a funeral. It was a terrible homicide, and the young man would’ve had no involvement in the church at all. But his grandmother did. And so that family dynamic that’s supporting through three generations the family there. I mean, we’re there, and because of that construct that’s in the First Amendment, we’re not -- we shouldn’t be and we’re not for the most part partisan. So we’re able to take a step back, stay here for a long period of time—we’re on the 2,000 year plan for those of us who are Christians—and to stay engaged. 

I would say the tips I give secular organizations, governmental organizations in working with the faith community. One is don’t pick favorites. Don’t like that preacher but not that one over there. Don’t pick favorites. I would also say that you want to -- there’s sort of faith in general, faith community. But then you have faith communities that will come up with specific programming. 

Now, that will need to be re-innovated, evaluated, like any other kind of programming. But if you can find specific programming that churches can do -- and the last thing I’ll say on that you talked about the moral voice. So I’ve been in those conversations in the courtroom with an audience, and you’ve got the law enforcement community and the moral voice. And you sprinkle in some of the faith community. 

It’s a very powerful voice for somebody to say, I did this. I was involved in that. I went to prison. I’m home. I’m working. I’m thriving. I’m married, taking care of my family. That’s a very powerful voice. They may or may not be religious. But then you back that up also with the faith voice, you can always find it. It’s in every city. And then those things can be sustained. 

Hon. Amul Thapar:  Okay. 

Diego Pestana:  Thank you for this panel. Diego Pestana from Tampa, Florida. I wonder if the panelists could speak to nonviolent crimes and how those might be indicators of future violent crimes and how do prosecutors or legislators strike the balance between overcharging for a seemingly nonviolent or innocuous crime and nipping in the bud what might be the first step to violent crime? Thank you. 

Erica H. MacDonald:  I’m trying to decide which one of us is the best one to answer that. So from a prosecutor’s perspective and especially from -- I mean, I’ve got colleagues here, my colleagues from the last administration. We’re always trying to strike that balance because we have communities that suffer from not just violent crime but nonviolent crime. And then the state court is also struggling with that. 

So to nail down what I’m saying is this is we can’t not address those issues. Typically people think of drug crimes as nonviolent crimes. Now, I’ll argue differently to that, but to the extent that you talk about drug crimes as nonviolent crimes a lot of individuals’ criminality is motivated by their drug addiction. And so we have got to keep laser focused on the full panoply of threats to the community because one plays off the other. And if we take our foot off the gas on any, we’re going to lose.

Rev. Mark V. Scott:  One thing I would say too is whatever it is, violent or nonviolent, follow people. Stay connected, not necessarily perhaps the prosecutor and the defense attorney, but a system where you stay with people. So when I talk to some of my colleagues now who are in that thriving contributing community and I talk about Boston’s really dramatic drop in violent crime, 152 homicides one year to 33 -- and now we’re at about a 50, 55 average a year. When I say, well, you know, we did thus and so and thus and so and that’s why it -- they say, no, no. The reason why crime went down is you locked everybody up. And I’ve had that conversation at least three times. 

And I think the mistake we made particularly in the faith community is not to systematically in a sustained way follow people in the prison. So it’s not a lock them up and throw away the key mindset, but it’s a stay involved, stay engaged because they’re coming home, because they have family members that still live in the community, because what they do -- any of the shots they call from inside can drive what happens on the outside. So whatever it is, whether it’s a smaller, nonviolent crime, understand the community in which it happened. 

So it may seem like well, that’s just public urination; right? But not if you have to use the laundromat there. So understand the community and then stay engaged with the person for whatever it is throughout the entire process. 

Thomas Abt:  Just very quickly I think it’s about balance. I think it’s a big mistake to treat everything as equally important. I think we should be focusing primarily on the most serious offences and offenders. But at the same time I see an overcorrection. I think it’s a good thing that we’ve moved away from policies of mass arrests and mass incarceration, but we can’t create impunity for low level offences. And so I think an issue here is of course we should focus on the big stuff and not the small stuff, but that doesn’t mean de facto decriminalizing small stuff. 

Hon. Amul Thapar:  Yes?

Mike Isaac:  Thank you. My name’s Mike Isaac. I’m also from Tampa like Diego. I’m a former state prosecutor and currently a criminal defense attorney. I don’t really have a question, but I have a few comments. And I invite the panel to maybe latch on to any one of them and discuss them. 

We didn’t get to this point overnight, and we’re not going to solve anything overnight. In Hillsborough County we have specialty courts. Some violent crime is the result of a variety of different issues, whether it’s the mental health or the drug addiction courts. We have the veterans’ court. We have juvenile courts. 

One of the silver linings that we’re seeing is tool building and skill building as a result of these courts taking these individuals and giving them an opportunity for better hope because they now have a bigger toolbox to work with. I think that this is one of society’s greatest challenges to overcome. And I see in my dealings over 30 years foreigners come to this country, and in less than one generation they thrive from our public education system. Yet generation after generation after generation specifically of African Americans, they don’t. 

And one of the challenges is that they don’t come from nuclear homes. There’s an overwhelming number of children that don’t have two parents in the home, and I think that that plays a very big part in the sustainability, at least that’s my personal opinion, as to why it’s difficult to sustain. The children need two parents who are both productive, who stand for very good role models. 

And when you have a lack of hope and a lack of the perception that you’re part of the American dream, it persists from generation to generation. And that’s why I said we’re not going to get there overnight, but to overcome, I think, one of these issues we need to give a different paradigm particularly in the African American communities as to a more nuclear family. 

Erica H. MacDonald:  Just to comment on that, when I was a judge in Minnesota I presided over both our drug court as well as our veterans’ court. And those specialty courts have been very innovative and very welcomed in the community. And we see tremendous success. 

I think you’re right. We can’t just think of business as usual, and the more that we can use those specialty courts to really -- for veterans for example, it used to be they would do one tour, come home. Now they’re doing two, three tours. It’s really they’re suffering from alcoholism and drug addiction in a way that it’s self-medicating. And so those specialty courts, the more that we can use them the better. 

And then the other thing that I’ll comment on is a lot of judges would say sentencing is the hardest thing that they do. And I’ll tell you the hardest cases I had to do were termination of parental rights, so cases where good people who are suffering from whatever mental health problem or addiction, they just aren’t fit to parent. And there’s all kinds of evidence that it probably maybe does more damage to a kid to take them from that parent. So it is a complicated, complicated -- and you’re right. We didn’t get here overnight, but the more that we at least keep trying to come up with innovative ways to deal with our problems and then measure if they’re working. Yeah. 

Rev. Mark V. Scott:  Picking up on the notion of we didn’t get there overnight, meaning we’re going to need a long view on how to approach this and picking up on the notion -- you heard me say families a number of times. So I want to just narrow that down and sharpen it a little bit and say fathers. And so the importance of a father and the development of the father, a focus on the father, even if the court’s around child support. So the court’s going to require you to pay child support but also develop you as a father. 

There were programs in Boston, and this is a sustainability thing. We’re not sustaining it. So you’re on probation, and so you have some obligation to the court. And so part of the way you work through your probation is to go and enter into a fatherhood program that the court runs. The health commission has a father friendly program to support fathers. So some of that’s got to come -- and I read from James, that was James 1:27 that religion’s going to be acceptable to god, our father. And so the focus on that is key to the question around the family. 

Hon. Amul Thapar:  Yes. 

Avi Kombly (sp):  So I wanted to—I’m Avi Kombly. I’m from Indianapolis—speak a little bit about the comment you made about the police recruiting struggles. It’s obviously happening in every major city and even in the suburbs. Like, as an example my hometown is a suburb of Indianapolis where officers are very well compensated. They used to be getting 500 applicants for every one spot. Now they’re getting to the point where they have 12 applicants for 18. So there seems to be a root cause that’s greater than financial compensation or other things. And I was just wondering if there’s any examination done into the root cause and how police recruitment can play a role in this bigger picture that we’re talking about. 

Erica H MacDonald:  I’ll go ahead and take that. So I served on the President’s commission on law enforcement and the administration of justice, and we looked at the full scope of issues facing our communities and law enforcement. And the demoralization of what has occurred for our law enforcement officers within the last two years has been devastating. It used to be that it was a proud tradition that a grandfather then a father and then a son, and now we have fathers saying I would never encourage my son or my daughter to put on the uniform. 

And so until we can start building up the profession as it is, look, 99.9 percent of law enforcement officers are out there -- in every profession we’re going to find someone who didn’t do their job in the right way. But we’ve got to start building back up the respect for law enforcement officers such that people want to take this on. It’s a frightening thing for people to put on a uniform. We need them. We should give them our thanks. We should have their backs, and so I think as a community we’ve got to do that. Everything that you can do to help in that cause, please.

Rev. Mark V. Scott:  We celebrated in Boston a few weekends ago Faith and Blue, so it’s a national thing that goes on. It came through Boston as well. You heard me when I talked about the diamond. On one corner is faith, and the other is law, so faith community law enforcement partnerships. And what is really part of that is about honoring and supporting the profession. 

So in Boston we see a -- we just put out a recruit class of new officers, 104. They’re budgeted for 140. They know that there’s attrition. So they oversubscribed it to 146. Attrition starts before the class even sits, so they sit 138. And they’re like, well, let’s find two more to push it up to 140 and couldn’t because -- and normally you would have a robust number, right? That’s never happened before. 

So the strategies that -- to Thomas’s point, the community is looking for good law enforcement services, not oppressive, not unfair, not unjust, not overuse. And so it’s a lot of education. And you can nerd out on just the law enforcement part. I mean, it’s a complicated -- there are a lot of good jobs in the police department. And Boston’s a well-compensated -- they have some really interesting, good jobs that you can get. But people don’t know, aren’t aware, and so it’s -- and in addition to hiring people, you’re also losing people. People are retiring faster than they’re coming on, so it’s a serious concern. 

Matt Beck:  Hi, everyone. My name is Matt Beck. I’m a 1L at Yale Law School. Paul, I know earlier you were talking about this ecosystem of actors who helps to inform crime fighting strategy, chief of police, sheriff, mayor. I would be curious to hear all of your thoughts on how DAs and prosecutors play a big role in this equation. I actually lived in Los Angeles this past year, and of course George Gascon is an incredibly controversial figure. What happens? How do you flex your strategies when you’re faced with a DA like a Boudin for instance who might not be on board or who might be coming from a totally different ideological standpoint?

Thomas Abt:  I think the question was to you.

Paul Carrillo:  You can go first.

Thomas Abt:  So I think I’m a broken record about this, that you can have -- you can pursue social justice and effective law enforcement at the same time. And in fact, you must do that. Violence reduction and in fact anything in criminal justice, if you’ve been working in the system as I have, former prosecutor, former state level criminal justice leader and at the federal level, violence reduction is a team sport. And if the team doesn’t play well, prevention, enforcement, all the different parts of enforcement, one thing that is sort of a dirty secret that people don’t talk about is that people assume that all sort of different types of law enforcement actors all get along with another in a jurisdiction. That couldn’t be farther from the truth often, so there’s lots of tensions there as well. 

But making sure that people understand that the efforts -- the antiviolence efforts in the city sort of succeed or fail together is a real important thing. And I think actually the best case study of that is Boston. I think that Boston doesn’t have a great reputation for racial reconciliation in the rest of the country. But the work that clergy and law enforcement did together beginning with the TenPoint Coalition and moving forward has really change the fundamental sort of interactions in the city. 

And it’s not an accident that the city is generally outperforming other cities. And I think one of the things that’s interesting is focus deterrence or GVRS or whatever got its start in Boston. The TenPoint Coalition got its start in Boston. Those efforts are not formally in Boston anymore, but they did -- they were successful enough for long enough that they sort of changed the underlying principles of the way Boston works and made it more collaborative. 

Paul Carrillo:  I’ll say in California in my lifetime at least we’ve experienced both sides of addressing violent crime from a district attorney or a prosecutor’s perspective and their kind of outlook or their goals in terms of addressing the issues. In the 1990s for example we had what folks refer to as a crime bill, three strikes law, which -- and I’ll say there certainly are individuals in communities who deserve to be put away for life and can’t function in society and will continue to commit violent crimes. But there’s also -- when you had folks in California getting a life sentence for stealing a piece of pizza or a candy bar, it’s just ridiculous. 

And then it had to get to a point where the Supreme Court judge in California, like the mandate AB109 that in 2,000 inmates, 4,000 inmates be released because prisons were overpopulated, etc. So what tends to happen as a country, as a society is we tend to swing to one side of the pendulum to the other side versus what’s the hardest part is somewhere in the middle. That’s really hard to do what Thomas referenced earlier. And so locking everybody up is not the answer. 

And most high ranking law enforcement officials that get it acknowledge that and say that. And also it’s also not the answer is not let everybody out, give them another chance. And then some folks take that chance to go and commit a serious crime or kill somebody. 

I think Gascon has a very difficult task on his hands because how do you balance respecting and honoring and pushing justice for victims of violent crime while also trying to implement policies that give people a second chance, who need a second chance or alternative sentencing, etc. And so it’s very difficult. But I would say when the GRYD office from 2008 up and to the pandemic had its run of success and violence was significantly down, 50 year lows in homicide, was when as a city and also as a state we were switching from that sentencing 12 year olds to 300 years to the other side of what’s fair, what makes sense versus some of these sentencing enhancements, which were just ridiculous. So I’m not -- I think the proper approach is in the middle, which is the hardest to do is where I’ll leave it at. 

Rev. Mark V. Scott:  I’ll also say the DA is extremely important. It’s a very important office and one that the community needs to engage. And the district attorney needs to engage the community. So you can really -- you can talk about a victim impact statement. You can talk about juvenile diversion, and you can really dig into very specific cases. And people can come to learn more and more about how the court actually functions. 

But one of the things that we do, you heard it in my bio, the violence reduction task force, which meets at the Ella J. Baker House every Wednesday from 9:00 to 10:00. We start on time. If it’s 10:01, shut up. And it involves law enforcement, different parts. It involves faith community. It involves community health centers. It involves activists, interested residents. And we go over what happened. 

And also in that meeting is the DA. So the DA is talking about what happened that week, bad in the court. So you’re following -- and we’ve done it since 1998. It’s one of the things we’ve sustained. And so if you’re ever in Boston on a Wednesday morning at 9 o’clock, come by the Baker House, and you can see that in operation. 

Christopher McDonald:  Thank you for your comments. Christopher McDonald. I’m on the Supreme Court of Iowa. You talked about a team approach and some programs and services. I’d be interested in knowing from the panelists what role do you think state courts can have in addressing this problem directly and have you seen examples of state courts being involved effectively in violence reduction programs? 

I think this piggybacks a little bit off the gentlemen from Tampa. State courts do have a lot of innovative courts where they’re either delivering services directly or managing the coordination of services. So we have domestic violence courts, drug courts, veterans’ courts, juvenile diversion courts. I just wanted to know if you’d seen examples of courts addressing violence directly.

Thomas Abt:  I think we’ve talked a bit about various court-based innovations. There’s drug courts. There’s mental health courts. There’s gun courts now that can be effective. But I also want to sort of take a moment maybe to pivot using this question to discuss a state issue, which is state gun laws. And this is really kind of the elephant in the room, and I think we have an obligation to talk about it, even if we don’t all agree. 

I think there’s rough agreement among experts that there were three major causes of the homicide spike in 2000 (sic). One was the pandemic of course. Two was the social unrest that followed the murder of George Floyd, and the third was the massive surge in legal gun sales, a surprisingly large share of which went directly into the criminal market. 

And I think rather than talking about the number of guns that we see out there, I think we have to talk about the access to guns and the access to guns on the street. In 1980 there was one state, Vermont, that had permitless carry. Today we have 21. Those laws are always passed over the objection of local and state law enforcement who don’t want -- who desperately think that that is counter to their mission of public safety. 

I don’t know what the right answer is. I favor regulating guns the same way we regulate cars. But we have to start talking about this, and we have to break the impasse about this. No other country addresses guns the way we do. We obviously are doing -- we obviously need to change that somehow. I don’t know what the precise answer is, but we have to start especially among thoughtful people on all sides of the issue -- we have to start engaging on it. 

Hon. Amul Thapar:  Since we don’t have any, I’ll jump in just with one more question, and then we can wrap up with conclusions from each of you. But while you’re talking about guns and other things, how would you -- I know you don’t have the answer, so I’m going to push you a little on that and say in your perfect world how would you do it such that -- the concern of many people is that you’re just regulating law abiding citizens and taking their guns away while many of the guns seized in Chicago for example aren’t traceable to any gun sale or anything like that. So what’s your answer there, and how do you do it without policies like stop and frisk, which we know had some success but at the cost of liberty?

Thomas Abt:  Well, I think one thing is that there’s no perfect answer here. And the fact of the matter is that law abiding citizens are going to have to -- who own and carry guns will have to take on some additional inconveniences to prevent people who are mentally ill, who have a criminal record, all those things, because right now our gun market is incredibly leaky. So for instance one of the things that we suspect but don’t know for sure is because a lot of those gun sales in 2000 (sic) were to first time gun owners who frankly didn’t know how to safeguard their gun, a lot of those guns got stolen. They got left in cars. The cars got stolen, and those guns found their way into the hands of criminals. 

We have to have some reasonable, commonsense restrictions, some training, some other things. And if you don’t and if you’re not willing to take some minor inconveniences, I don’t think you should be able to own a gun if you’re not willing to do the bare minimum for something like that. That’s my opinion. I think that’s well-founded on the research. 

One of things that we see with these permitless carry laws is ten years after them we see about an 8 to 12 percent increase in all homicides traceable directly to those laws and not other factors. And so I don’t know what exactly the right thing is, but I think the key thing is how do we have a commonsense approach to making sure that those who shouldn’t have guns don’t have them. And I think unfortunately that does mean some modest burdens to the rest of us.

Rev. Mark V. Scott:  So thank you for that question, judge, and also for bringing this subject matter up. So I think the right -- talking about it, thoughtful people talking about it is definitely a very important next step. The notion of we don’t want guns in the hands of people who have no legal frame around owning a gun -- we don’t want it in the hands of someone who is going to intentionally use it to harm someone. 

How do we solve that problem? Erica mentioned time to crime. And a flip of that question might be where did the gun come from? So if we could have a deeper understanding of where did it come from, then we can -- that kind of information will help us address the problems. So if you’re talking about it from kind of a neighborhood level, we didn’t -- we don’t make these guns. Where did the 14 year old -- why did the 14 year old boy have a gun? And so the illegal market around guns is a real challenge. 

So people will say, well, those guns aren’t coming from Massachusetts. They’re not coming from here. They’re coming from New Hampshire. They’re coming from down south. People get them. They drive down south, get a bunch of guns, come up. And one of the reasons people might shift from the drug business to the gun business is there’s more money in guns. Or they’ll switch to the people business. There’s more money in selling people than there is in selling drugs. 

So how to dry up that market of the illegal sale of guns by having some state by state, some national guidance and regulation that stops people from being able to hop in a car, go down to Georgia, load up with a bunch of guns and then come sell it in Dorchester, that’s the problem we want to try to solve. 

Hon. Amul Thapar:  Well, concluding remarks. Who wants to start?

Erica H. MacDonald:  I’ll start. It’s been a great conversation. I’ve taken away some stuff, including I never even thought about the issue of social media and devising a program around that to include that in our group violence intervention. I’m going to take that away. 

I will tell you that the commission I referenced, the President’s Commission on Law Enforcement and Administration of Justice, if you go to the Department of Justice homepage, you’ll see there’s a very, very thick report that was issued that addresses so many issues related to what’s going on in our community. So I would recommend that to you. There’s an executive summary, so don’t worry. You don’t have to read the whole thing. You can read the executive summary. 

But it talks about officer retention, recruiting. It talks about mental health and wellness for our law enforcement officers. It talks about the rule of law and the respect of the rule of law. It’s a really great report. It’s comprehensive. The commission listened to hours upon hours of testimony from subject matter experts and really came up with some very thoughtful recommendations. So if you’re interested in this space, Department of Justice website, you can find that report. 

Hon. Amul Thapar:  Mark?

Erica H. MacDonald:  It’s the President’s Commission on Law Enforcement and the Administration of Justice. And if you put that at DOJ, it’ll pull you right up to that report.

Paul Carrillo:  Thank you. I would just encourage you all, kind of what has taken place here, but we should be committed to doing it more moving forward is to have -- is to be willing to be uncomfortable and have conversations in the sensible middle as Thomas referred to. And I think the pastor kind of referenced this earlier. I would say that all these efforts, all these models, all these statistics and approaches and ideas are great and are needed. And we need to keep doing them. But they’re all essentially Band-Aids until we address root causes; right? 

And the pastor mentioned social determinates of health. However they started, whoever’s fault it is, poverty, easy access to guns, homelessness, mental health issues, substance abuse, single parent homes, these community-wide issues will continue to breed young men and women every week, every day, every two years, every generation who are willing to pick up a gun and use it. But the question is how did they arrive at that place in life. And so if we don’t look that far back, we’ll be here another 20, 30, 40 years having the same conversations of a new model and a new approach and patting ourselves on the back until the root causes in some of these cities are addressed. 

And then one last thing is one big mistake that I’ve seen over the years is when a city or foundation or a person falls in love with the model, and they see it as a cookie cutter approach and try to shove it in other communities. And that isn’t always a good idea. You should do the due diligence to make sure that there’s a chance at success at least and the community buys in before the model that you love is shoved into any given community. 

Thomas Abt:  I guess what I would say is what I’m hearing on the panel is a lot of optimism about the possibilities for constructive work at the microlevel, the micro-partnerships. And I think what you’re hearing maybe mostly from me is a lot of frustration with our inability to break some of these impasses at the macro level. And what I would just argue is we need to create a new interest group of thoughtful people who want to solve this problem. 

Erica and the judge are both former Trump appointees. I worked for President Obama. We obviously agree on more than we disagree, and I think that those types of partnership are going to be essential moving forward. 

Rev. Mark V. Scott:  I think the thing I would say really in agreement is we can solve this. We can act -- this is a problem we can solve. And I think I first heard -- it was a pastor who said it, and it would have been back in the violence that was surrounding the crack epidemic. That’s when Boston hit 152 -- that’s when violent crime was really a surging, challenging problem, certainly in Boston. It was gun fire every night. It was people being shot all the time. 

And there was a feeling of we just can’t -- I sat in the basement of a church with an intellectual leader in the Black community, and he said, I don’t think we can solve this without violating people’s civil rights. I couldn’t believe it that I was sitting in a church in my community and a Black intellectual said we’re not going to be able to solve the crime problem without violating people’s civil rights. And at a separate gathering, another pastor said, gentlemen, we can solve this problem. 

And so I think a lot of it begins at the microlevel because what works in Boston is not going to work in St. Louis. So picking it up and saying, do this, the people of St. Louis will reject it just on the face of it. So working locally but then having that macro -- that dialogue, that sustained conversation and doing both of those things because we can solve this.

Hon. Amul Thapar:  So I want to end by first thanking our panel but also by saying this is a much bigger conversation than we can have in an hour and a half, and these four brilliant people have brought up a lot of ideas and a lot of thoughts. But none of us should be the critic, and we should all, to steal from Teddy Roosevelt, be the man in the arena, meaning each of us can get involved. Each of us can take some of these ideas and run with them and go back to your own communities and push them. 

And I know we’re all busy, but we have time to do this. And it matters to our communities. And so I would implore you to take what you heard here today as just a first step and go out and learn for yourself. I can’t tell you how important this is and how much the entire community will benefit from each of you just giving back a little in this area. 

The other thing that Thomas said that I couldn’t agree with more is there are solutions to be had, and we really need to be willing to work together and all set aside our preconceived notions and sit down at the table and roll up our sleeves and get to work and try things and fail and hopefully try things and succeed at the microlevel and transfer those to the macrolevel when they succeed with the recognition that not everything’s going to work in every community. So this is an amazing panel. I commend them for taking the time to come here today and talk to you. I hope you’ll take time to talk to them to the extent they’re here throughout the conference and get ideas and take them back to your own communities. Thank you all very much and thank the panel.

3:30 p.m. - 5:00 p.m.
The Major Questions Doctrine: West Virginia v. EPA

National Lawyers Conference 2022

Topics: Administrative Law & Regulation
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006

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Supreme Court actions during the 2021-2022 term - opinions, grants and denials of petitions for certiorari, and motions docket orders - captured the attention of the legal community.  Emblematic of the trend in judicial analysis was West Virginia v. EPA in which, notwithstanding that every brief cited Chevron for or against deference to the agency’s action, the Court’s opinion never mentioned it.  Instead, the Court invoked the major questions doctrine to conclude that the Environmental Protection Agency’s regulations had exceeded the authority Congress had granted it in the Clean Air Act.  In other decisions as well, the Court applied new degrees of weight to a variety of methodologies, doctrines, and canonical tools in its interpretations of statutes and the authority they grant the agencies assigned to implement them.

This panel will explore what this new trend in judicial analysis means for future challenges to agency actions.  Is the SEC’s focus on ESG, for example, within the confines of its statutory mandate?  Can ERISA fiduciaries favor ESG concerns over earnings and value considerations? Is DOJ acting within its authority when it requires the target seeking to settle an enforcement action to pay, not a statutorily prescribed fine to the Federal Treasury, but non-parties, unrelated to the enforcement action?  Is the Department of Education authorized to forgive student loans?  Can the Department of Defense discharge military personnel for refusing a COVID vaccine?  These and other questions are likely to be the subject of lively discussion by this panel of experts.

Featuring:

  • Mr. Ian Gershengorn, Partner, Jenner & Block; Former Acting U.S. Solicitor General 
  • Prof. Jennifer Mascott, Assistant Professor of Law & Co-Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School, George Mason University; Former Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice
  • Prof. Tom Merrill, Charles Evans Hughes Professor of Law, Columbia Law School; Former Deputy Solicitor General 
  • Mr. Yaakov (Jacob) M. Roth, Partner, Jones Day 
  • Moderator: Hon. Edith H. Jones, U.S. Court of Appeals, Fifth Circuit

Speakers

3:30 p.m. - 5:00 p.m.
Religious Liberty and Education: Kennedy, Carson, and Parental Rights

2022 National Lawyers Convention

Topics: Religious Liberty • Religious Liberties
State Room Overlow: Cabinet & Senate Rooms
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006

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This panel discussion will examine public and private education, with a focus on the relationship—and occasional conflicts—between religious liberty and secular values in that setting. Panel members will discuss the likely impact on religious liberty and parental rights of two landmark Supreme Court rulings from the past Term: Kennedy v. Bremerton (the “praying coach” case) and Carson v. Makin (the Maine tuition assistance case). Other Supreme Court decisions could also be addressed, including Pierce v. Society of Sisters and Troxel v. Granville. Panelists could also discuss the impact on parental rights of recent federal education regulations.

Featuring:

  • Prof. Nicole Garnett, John P. Murphy Foundation Professor of Law, Notre Dame Law School
  • Prof. William P. Marshall, William Rand Kenan Jr. Distinguished Professor of Law, The University of North Carolina at Chapel Hill School of Law; Former Special Assistant Attorney General, Minnesota
  • Ms. Erin Murphy, Partner, Clement & Murphy, PLLC
  • Moderator: Hon. Raymond Kethledge, U.S. Court of Appeals, Sixth Circuit

Speakers

Event Transcript

William L. Saunders:  --everyone to this session for -- sponsored by the Religious Liberties Practice Group. I’m Bill Saunders. I’m a professor at Catholic University with the Institute for Human Ecology and the Center for Religious Liberty. I’m also Chairman of The Federalist Society’s Religious Liberties Group. And as I say, I welcome you. If you like this kind of programming, I invited you to join the Practice Group and get involved.

I’m going to just now turn it over to our moderator, Judge Raymond Kethledge of the Sixth Circuit. He received his undergraduate degree and his law degree from the University of Michigan. He then clerked for Ralph Guy on the Sixth Circuit and Anthony Kennedy on the U.S. Supreme Court. He’ll tell you about this panel. Judge.

Hon. Raymond Kethledge:  Thank you, Bill. And hi. I’m Ray Kethledge. It’s great to see such a large group here. I think we have a real interesting topic to discuss. I’m going to be extremely brief here. We are, today on this panel, talking about Free Exercise and Establishment clause issues and, particularly, how those play out in a school setting, focusing specifically on the Carson and Kennedy cases from last term and also looking ahead to what might follow on now, after the Court has decided those cases. We have -- we’re blessed to have a really stellar panel here, and I’m going to be super brief on the bios. I think you probably already know a lot about these folks.

Erin Murphy is -- she was, obviously, one of the people who litigated the Kennedy case. She is at the firm of Clement & Murphy. You may have heard of her partner as well as Erin. So she’s obviously an expert in all the doctrines that we’re going to be talking about today and also on the Supreme Court, an expert as to that.

Bill Marshall, from the University of North Carolina Law School -- Bill’s been dealing with these issues for forty years. Right? When you were -- I mean you were a 1L with the first case. No. So he filed a brief in a case called Mueller — right? — which was a case out of Minnesota involving a challenge to tax credits that the state was providing to individuals, and they could use them for whatever -- to fund whatever kind of education they wanted, including at sectarian schools. So Bill was one of the litigants in one of the early cases in the doctrine -- in that particular line of cases. He’s a wonderful guy, and he's a real expert in his field.

Nicole Garnett, from Norte Dame Law School, she’s going to focus more on Carson today. She also has a long, personal involvement in litigating the issues that are in the line of cases that lead up to Carson. So the way we’re going to do this today is we’re just going to have five-minute statements from each of the panelists, starting with Erin and then going to Bill and going to Nicole. We’ll probably spend about, maybe, roughly, maybe, one-third of our time on the Carson line of cases. And then, probably more time on the Kennedy case. But we’ll just see how things play out. I do think we’ll have about -- at least 20 minutes for questions towards the end, so we’ll be happy to take those. And why don’t we just get it started with Erin Murphy.

Ms. Erin Murphy:  Sounds great. Thanks, Judge. And thanks, all of you. It’s great to see a packed room here to talk about religious liberty, especially in our last set of panels of the day. So statement’s probably overstating it. I’m just going to spend a little time to set the stage and tell you all a little bit about the Kennedy case, for those of you who may not have followed it quite as closely. Also, there was a lot of efforts throughout the case to confuse some of the facts of what was going on, so I thought it’d be helpful for folks to know a little bit more about the case, a little bit more about what the Court held, and obviously, we’ll dive in more throughout the panel into broader implications of all of it.

So I had the pleasure to represent Coach Joe Kennedy along with our wonderful partnership with First Liberty Institute up at the Supreme Court last year. Coach Kennedy is a high school football coach. He has coached at Bremerton High School in Bremerton, Washington, for many years. And from the very beginning, when he started coaching there, he had a practice of, at the end of games, he would kneel, typically at the 50-yard line, and just a brief, quiet prayer, like, roughly, 30-second prayer, just giving thanks to God for the fellowship, for his team, for the sport there on the field. When he started the practice, he did it by himself, but, over time, some students noticed what he was doing and asked, “What are you doing?” And he said, “I like to kneel and say a prayer.” They said, “Can we join you?” And he said, “It’s a free country. Do what you want to do.” And, so, students began joining him.

And, over time, this kind of evolved into a practice of giving post-game motivational talks that involved prayer. The team had also, wholly independent of Coach Kennedy, had its own practice of pre-game locker room prayers, and he, over time, joined in those. None of this bothered anybody to anybody’s knowledge for a very long time. What happened was at a game a coach from another school, another district, the opposing team, kind of took note of it and came up to an administrator and said, “We think this is really cool that you let your coach do this.” And the administrator instead thought, “This doesn’t seem. I didn’t know about this,” and decided to kind of make a big fuss about it. So it turned into, essentially, an investigation and all of this back and forth with the district.

And ultimately, the district then expressed concerns about the various practices that Coach Kennedy had been engaged in. And he, through a back and forth, said, “I understand. I understand the concerns about praying with students, and I’m happy to stop doing that. We won’t do -- I won’t join them in any locker room prayers. I won’t be part of that. We won’t have any religious content in any motivational post-game talks. There won’t be -- I’m happy to do that.”

But what he said was, “But I still want to continue my practice of kneeling by myself at the 50-yard line to say a brief prayer at the conclusion of the game.” And he also said, “I’m not inviting students, but if some -- if a student chooses to do the same thing, I don’t think I should have to get up and run away and hide the -- hide my religious exercise before closed -- behind closed doors.” The district objected to that and basically said, “No, no, no. You do have to hide your religious exercise behind closed doors,” and said, “You can go do it in a -- you can go up to the -- go back to the locker room when nobody’s there. Go up to the press box. Come back when everybody’s gone, but you can’t do it in front of students.”

So the case was litigated through -- we brought a challenge to it, challenged the school district, litigated in the district court, litigated in the Ninth Circuit. And what the district argued throughout, and the Ninth Circuit agreed, they argued that, when the coach knelt to say a brief prayer after games, he was actually engaged in government speech. And, so, the district and the Ninth Circuit took the view that this kind of private act of religious exercise was actually the government speech that it could control entirely, and that -- even that wasn’t quite enough for the Ninth Circuit. They decided to hold in the alternative that even if it was private religious exercise, private speech not part of his job duties, that it would violate the Establishment Clause to allow it. In other words, that the Constitution compelled the district to prohibit him from engaging in religious exercise in front of students. The case had kind of two trips up to the Supreme Court, but, ultimately, last year, the Court granted cert, and Coach Kennedy ended up prevailing.

And the Court basically, I think, issued kind of two or three key holdings that we’ll drill down on but just to get them out there. So the Court first rejected the idea that this was government speech and really rejected the premise -- the argument that had been being made by the school was, look, teachers and coaches are role models, so essentially, they’re always on duty, and everything they do and say in front of is, therefore, the school’s speech and can be controlled. And the Court rejected that and, I think, rightfully so. As it said, that’s a position that has extraordinary consequences, both for free speech and for outwardly religious teachers and coaches, because it would essentially mean that the school could prohibit, could control all manner of speech, religious or not, at any time a teacher or coach is essentially on school ground or in front of students and really would give schools leeway to ostracize outwardly religious people from being role models for students in the public schools. So the Court rejected that proposition and said, look, no, we’re always said in Garcetti and other cases that government speech is speech that really owes itself to the job. And maybe it’s government -- sure, it’s government speech, as we agreed, when the coach is talking to the team on the sideline and calling plays or having a -- in the huddle, maybe the locker room talk, whatever, there are certainly aspects of being a coach that involve speech that the school would have a different kind of interest in.

But when you’re talking about, here, time after the game where there’s not interaction with the students when the school district had conceded it would be perfectly fine for the coach to take a phone call, talk to his family, do all sorts of other things, and just said, no, the one thing you can’t do it religious exercise, that, at that point, you’re not talking about government speech. And then, the Court rejected the proposal that the school was compelled to prohibit the coach from engaging in religious exercise in front of students and did two really key things we’ll talk a little bit more about. For one, the Court finally, thoroughly rejected the so-called Lemon test that had long been the way that, at least under -- in theory, if not really in practice, that was the Supreme Court’s test in the Establishment context, where the Court would focus on what does a reasonable observer think. And, so, the school district’s argument here had been a reasonable observer might think we’re endorsing his religious exercise even if we don’t mean to, and we’re telling everybody that’s not what we’re trying to do, and it’s just impossible for us to divorce ourselves enough. And then, the Court said we’re done, really, with the reasonable observer test. We’re done with the Lemon test. We’re instead going to focus on thinking about all of this through what’s consistent with the historical traditions of the Establishment Clause.

And then, the other piece of it -- the argument had been made that this was coercive and that students were feeling -- might feel coerced to join in the prayer. But I think the Court drew an important distinction in thinking about that, and the Court basically said, look, there’s no evidence of actual affirmative coercion here. There’s nothing. Nobody had ever suggested that the coach was compelling students to participate or giving people less playing time if they didn’t or anything like that. What the district was really arguing is students might just feel pressured to join and emulate their coach just because it’s their coach. And basically, the Court said that’s really not the kind of coercion we’re thinking about when we’re talking about coercion. Coercion means something affirmative, not what you might think of as more in the vein of peer pressure.

So those are the big picture aspects of the case. I think it has a lot of really important ramifications, both for where the Court’s going in terms of Establishment Clause, jurisprudence, and in terms of thinking about how we draw that distinction between what is government speech and what’s not government speech in the school context. But we’ll talk about all of that a little bit more as things progress.

Hon. Raymond Kethledge:  Great. Thank you -- is this working? Thank you, Erin. Is that working? Yeah? Okay. This is a -- you all -- this is like being in an Anglican church, very undemonstrative. [Laughter]. That’s fine. All right. All right. Bill Marshall.

Prof. William P. Marshall:  Yeah, the light is shining in my eyes right now. Is mine working? Is this working?

Hon. Raymond Kethledge:  Yes.

Prof. William P. Marshall:  First of all, let me thank The Federalist Society for inviting me here. I’m a former Board Member of the American Constitution Society, and I think it’s very important that we continue to talk across ideological lines. And I thank The Federalist Society for inviting me here to speak. I should also point out that, when I was a kid, my dad was a conservative Republican, and my mom was a liberal Democrat, and long as I could take any issue and defend it, they let me take that. I subsequently learned that my mother was a lot smarter, but that was not the [laughter] point of the discussion.

A couple days ago, somebody won $2.1 billion in the lottery, and I was reading about that. Then, I was reading these other stories underneath it, saying that lottery winners have a tendency to have a lot of problems afterwards. Things begin to fall apart. They go bankrupt and other things. Be careful what you wish for. This organization has won the lottery with respect to constitutional law for the last couple of years, and the theme of my remarks today are really going to be, “Be careful what you wish for, particularly in the area of church and state.”

I’m going to talk real quickly about the school funding cases. I don’t find that as troubling as I find -- I call it the Bremerton case only because using the term “Kennedy” makes you think of a particular justice, and I don’t want to confuse that going forward. But with the religious school funding cases, the law has changed pretty dramatically. Not that long ago, the issues were must the state deny aid to religious organizations under the Establishment Clause. And then, it moved to can they fund aid, various kinds of aid, without violating the Establishment Clause. And now, we’re at the point where the claim is you must fund religious organizations under the Free Exercise Clause, or, sometimes, those kinds of cases are argued under the Speech Clause.

What’s interesting about these kinds of arguments dealing with state support of religion is that they really transgress one of the early themes behind the Establishment Clause, which was Evangelical Principle. It wasn’t the -- Jefferson. It was the Evangelical Principle that religion was corrupted whenever it was supported by the government. And that was a major theme. When Jefferson wrote his "great wall of separation" letter, he wrote it to the Danbury Baptists. And it wasn’t because he was taking them on. It was because he was showing affinity with their position about the need to have a wall between church and state.

And other leaders, particularly Roger Williams, again, talked about the corruption of religion that happens when government supports it. So if you’re going to receive money from the government, one of the issues you might worry about is whether you’re going to become dependent upon that aid from the government, whether you’re going to need to conform your religious teachings in order to be able to come consistency (sic) with what the government is requiring, whether you’re going to have to be accountable to the government because the government usually wants to find out where its money goes. I realize that’s not always true, but at least in a lot of circumstances, it is.

What are you going to do about situations where maybe the money you go -- and this is something that James Madison was concerned about -- would go to people who are teaching religion who are not just saying, “Follow my religion,” but who are also condemning people who belong to other religions. And if you take a look at some of the textbooks, not many, but some of the textbooks used in religious schooling, they call out other religions by name and condemn them, particularly Mormonism. Mormonism gets a bad rap in a lot of Protestant school textbooks. And you might want to wonder whether or not it’s appropriate to be funding the kind of teaching that teaches against particular -- other particular religious traditions.

So that’s one thing. Be careful what you wish for in the sense of school funding. And then in Bremerton, be careful what you wish for on this. This was a dramatic case. I can’t overemphasize the importance of this case. The Court pretty strongly -- the Court has never really announced it was doing this, but I think in the American Legion Case a lot of the justices, particularly Kavanaugh, really explained that the Court -- what the Court had been doing for many years is many different contexts and different rules in particular context.

The context where it was the most separationist was in the public schools. And, so, you had cases like Lee v. Weisman, which found coercion of the type of peer pressure that’s rejected in the Kennedy case. In the Santa Fe case, you find that the Court goes out of its way not to allow an election of somebody who’s then going to be able to say a prayer over the loudspeaker at football games. This really relaxes that kind of separation of the public schools and allowing religion into the public schools. And you might just think about, practically, what does it mean if one person, as the coach of the football team, can do one kind of prayer. Can the coach of the basketball team do another kind of prayer?

And also, the problem -- sometimes, in psychology, it’s called the [inaudible 0:18:52] kind of thing, the “we don’t care if nobody is doing something. But the minute somebody else does something, we think we’re entitled to the same kind of thing.” And that’s exactly what the Court was talking about in the original school prayer case in Engel v. Vitale. Since that case, I think the jurisprudence has talked mostly about the effect of religion on outsiders, being aliened at times — they talked about that — or being coerced. But Engel was really talking about the effect of including prayer for the position of insiders because what they were concerned about was insiders fighting for each other, for that prize, for the ring of who’s going to have the government endorsement.

And in the public schools, this is a particular problem, I think, because as the Court has said, and as numerous psychologists have said, the public schools mirror who we are as a society. They give us our goals. They give us our sense of unity, so the fact that people are going to want to fight for that approval is particularly prevalent, I think, in the public school as opposed it is in other areas. I’m not as hard on school funding cases because I don’t think that’s quite the same problem there. But in the public school cases, I think that particular issue of the divisiveness that would result if we start allowing explicit religion in the public schools is problematic. And by the way, even in the legislative prayer cases, which the Court has upheld, there have been political campaigns about whose prayer should be there or whether there should be prayer in those schools. Think about what that might lead to in the context of the public schools.

Now, you might wonder why am I talking about school prayer because this wasn’t school prayer. This was a coach just leading his own private prayer. Now, a lot of that has to do with the facts of the case, and there’s a big difference in how we read the facts of the case, according to how the dissent reads it and how the majority reads it. But as Erin points out, one of the things the Court looked at was whether or not there was coercion. Well, if team sports are not coercive, I don’t know what is on the voluntary side.

People want to be on the good side of their coach. It’s a team idea. People want to be with their team and speak with their team. It’s not the kind of coercion where you don’t get playing time. I agree with that. There’s no evidence of that. But it is a kind of coercion that everybody wants to be seen part of that team.

I think that the Court may even be requiring a much greater coercion than even in this case with respect to what that means. Justice Scalia thought that you could only find coercion if there was an actual penalty attached. There’s no penalty attached in voluntary school prayer, so I think this case undercuts the notion that the prohibition on school prayer is unconstitutional because of coercion. And it also undercuts it in a different way because the Court goes out of its way to say the only test we’re really going to use here in deciding whether or not there’s an Establishment violation is historical practice. This is from Bremerton, "whether or not the practice accords with history and faithfully reflects the understanding of the Founding Fathers." Now, I do think, as an originalist matter, the Founding Fathers were very concerned about religious divisiveness, including -- very concerned about that issue.

But when school -- when public schools were developed in the 1830s, there was school prayer right away. So there’s a pretty good historically argument, at least if we’re looking at the 1830s rather than the 1780s, that that’s going to be upheld as well. But think about the difference of this country in the 1830s as opposed to it is now. In the 1830s, when Horace Mann wanted the teaching of religion in the public schools, it was because all the Protestants — and this was most of the country — believed in it. It was basic literacy. When the Catholics came over in the 1850s, that entire consensus fell apart because it was a different Bible.

The end result of that was there was violence in the street as to who -- as to whose Bible would be used. People were killed over this in the public schools. And the end result of that was then the Catholics created their own schools, and the end result of that was fights over funding of private, religious education. These were called the Bible Wars of the 19th century, so there’s that lesson -- there was that lesson to be learned there as well. I think these are the reasons why we need to be particularly concerned with religion in the public schools, why I think we should be careful what we wish for in that vein.

I do understand the argument that’s been raised frequently, “Well, isn’t there an equality issue with respect to why everything but religion is allowed in the public school. That’s not neutral.” I will agree with you. It’s not neutral. But it’s the second-best neutrality. It’s not picking one sect over another sect, which is infinitely more divisive than this. You can’t have a perfect neutrality.

And let me do the final point in terms of “be careful what you wish for.” Europe, as you all know, doesn’t really have too many strictures against established religions. Most of the countries in Europe actually have established religions. And for centuries, that led to war and wars and battles between the various religions. Different result now. Europe is much less religious than the United States. All of these established churches, all of these public celebrations of particular religions have led to nothing but the weakening of religion because it turns out that maybe Roger Williams was right when he thought that, if you have government support of religion, it actually weakens it. Thanks.

Hon. Raymond Kethledge:  Thank you, Bill. Nicole Garnett.

Prof. Nicole Garnett:  Thanks. Thank you so much for having me. As Judge Kethledge pointed -- said, I’m mostly going to talk about Carson. I’m happy to talk about Kennedy too. One of the gratifying things that I’ve able to do over the last couple of years at Notre Dame Law School is work with our awesome students in the Religious Liberty Clinic filing briefs, including Aly Cox. Shout-out to Aly Cox, who -- we filed two briefs in Carson at the cert stage and at the merit stage, and we filed a brief in Kennedy. So I thought about Kennedy.

I just have one funny Kennedy story to tell about our brief. Our brief in Kennedy was -- we tried to make the point that the Court should abandon the endorsement test and the reasonable observer test, which we were happy to learn it had done a long time ago. [Laughter] But the lower courts hadn’t gotten the bat signal, so we found lots of fun circuit splits, like circuit splits about -- literally, there was a circuit split about whether it was unconstitutional or constitutionally required to allow small children to pass out candy canes with Bible verses taped to them.

But my very favorite story, which didn’t end up in litigation, was about the little girl who in an “All About Me” assignment -- she was eight; she was supposed to say who her hero was, and she wanted to say God. And the teacher said, “You can’t say God is your hero because this is a public school. You have to pick a different hero.” And, so, she chose Michael Jackson, [laughter] which -- although I do respect Bill’s words of caution, I do think that actually illustrates the importance of -- the reality is I am, to my core, an advocate for private school choice. Parental choice has been the cause that I’ve -- my whole life has been oriented around. But 90 percent of American school children are in public schools, so it is very important to remember that the private religious speech of teachers and of children is -- it’s really important to protect that, so we’re not telling little girls that they can’t say God is their hero in public schools. Okay.

A little bit about Carson for those of you who don’t know. Carson was the first third in line of cases over the last few years, which held that the Free Exercise Clause prohibits the government from excluding religious organizations from otherwise available public benefit programs. Specifically, Carson involved a voucher program for kids in -- it was called Town Tuitioning. So Maine, which describes itself as a large, rural state -- and as a Kansan, I find that slightly offensive [laughter]. Maine has many districts that that don’t have high schools, and since 1876, Maine has given those districts the option, effectively, of giving the kids in their district a voucher to attend a private school. Until 1980, the kids could use those vouchers at religious schools. But, 1980, the state decided that was unconstitutional for the reasons that Bill pointed out.

This was back in the day when it wasn’t clear if you could give money to religious schools. Maine made an honest mistake, I think, at that point. They stopped allowing kids to use these vouchers -- this money at private religious schools. Since 1980, people -- the kids who earn tuition could use the money anywhere in the world. They could go to Swiss boarding school, and they did. But they could not use the money at a religious school.

So the Supreme Court in -- and this is a -- another really important date in the history of Carson is that in 1996, I filed, along with some of my colleagues at the Institute for Justice, the first lawsuit challenging the exclusion of Maine’s Town Tuitioning Program. So it was very gratifying that 27 years -- 25 years later -- 26 years later, the Supreme Court got around to telling the world that I was right along. [Laughter] I did cry a lot. Anyway, so I have a personal connection to this. So Carson says that the exclusion of religious schools from this Town Tuitioning Program violated the Free Exercise Clause. It had sort of -- this Court had kind of already said that twice.

So what was Carson even about? Really the most -- the thing that was left after these other cases — one’s called Trinity Lutheran; another’s called Espinoza v. Montana — was whether there was a constitutionally relevant distinction between discriminating against a religious organization for -- or a school -- for being religious — or sometimes, it’s called -- the -- based on the character or status of the school or organization as a religious institution — and discriminating against it in order to avoid putting government funds to religious uses. So that’s -- was described, and this question was left open. It was the status-use distinction. And Maine maintained that it was not discriminating against religious schools but only was trying to prevent public funds from being used for religious instruction. The Supreme Court, and Justice -- the Chief Justice says, “We’ve never said there is any such thing as a distinction between status and use,” which was funny because he’s the guy who came up with it in the first place. But, okay, anyway. We’ll put that water under the bridge.

Anyway, I think that that is very important for reasons that Aly Cox would know because our brief in the Carson case represented Muslim, Jewish, and Catholic schools. And the point of that brief — and then a second one at the merit stage — is basically to point to be religious, most of the time, means to do religious things. So you can’t say, “Sure, you can be religious and participate but not if you do religious things,” because to tell a Muslim school not to teach Islam is to tell -- or a Catholic school not to teach Catholicism or a Jewish school not to teach Judaism is the equivalent of telling them to cease to be Catholic, Muslim, or Jewish. So I think that the elimination of the status-use distinction is important. Otherwise, I just want to make a couple of points about why Carson matters and then some unanswered questions that we might get into in Q&A.

The first is Carson matters -- and here I actually take your words of caution seriously because Carson matters because, much to my gratification, school choice is ascendant in this country. We know have two states, Arizona and West Virginia, with a universal private school choice, probably three to five more with about 80 percent of kids now qualify for vouchers, including Ohio and my home state of Indiana. And, so, I do actually take the caution that you can get addicted to this stuff, and I worry about that. That’s my main concern. We have to be careful that we -- if, as religious people, if we’re going to participate, even though I believe it is just to give parents a choice, we have to be prepared to walk if the government imposes conditions that are unacceptable to us as people of faith. So I do take -- I appreciate that. I actually -- so a couple of things about the scope of Carson, I think what’s left after Carson that we might fight about.

So the first is -- so the Court says, in these three cases, you can’t participate -- can’t condition participation in a public benefit program effectively on the -- on not being religious or on the provider secularizing, so I think the first and most immediate question is what -- outside of the K-12 context, how many laws and programs does that declare unconstitutional. I would say thousands because there are -- outside of the K-12 context, the government regularly enlists the services of religious social service providers to do all kinds of things on the condition that the services those social service providers provide are secular, just to give a few examples, childcare; Pre-K; Title II, teacher professional development; housing; job training; homelessness; halfway houses; prison reentry; all kinds of programs. Somebody as a religious litigator, including perhaps myself, should be making a list and just going to federal court. I think that -- so I do think that Carson — although it’s -- because no voucher program, no private school choice program, and now, 31 states have private school choice — has excluded religious schools except for Maine and Vermont. It’s immediate implication for parentals choices, minimal, but, outside of it, I think it’s actually quite large.

The second question that’s left open about the scope is the Court says -- the Chief reiterates you don’t have -- the state does not have to subsidize public -- private education, but once it does, it cannot refuse to subsidize religious instruction in religious schools. I think that there’s a really important question about what does it mean to subsidize private education and, in particular, whether charter schools are private or public because every state law prohibits religious charter schools. I think that turns on a different doctrine, the state action doctrine, but I definitely think that question is now on the table, which would have huge implications for education policy.

And then, finally, the -- a set of questions that’s left unanswered that has to be sorted out in later cases about -- is about the unconstitutional conditions doctrine and, specifically, what conditions can a state place on a school -- or not a school. Anybody, but let’s just say a school participating in a program of private school choice. Carson is an unconstitutional conditions case. It says you can’t condition participation on the school secularizing, but there are all kinds of other conditions that might be placed on participation that private religious schools might find objectionable. Immediately after Carson, Maine did impose some nondiscrimination requirements that basically resulted in no religious schools in the state participating in the tuitioning program. But, outside of the employment context, restrictions on the regulation of student admissions would be something that some schools might object to as well as curriculum, so you might say to the school, “You can participate, but you must teach things that as a religious school you think are wrong. Or you can participate, but you must not teach things that as a religious school you think are right.”

And those have not yet come to pass in the private school choice movement, but I think that they are waiting in the wings. And those, just to close, I think those are the kinds of things that bring me back to your words of caution about be careful what you wish for because those are big religious liberty battles, I think, that are lurking in the future in private school choice. Thanks.

Hon. Raymond Kethledge:  Okay. Thank you. Thank all of you. Well, let’s talk about Carson -- [Applause].  Let’s talk about Carson and some of these funding issues for a bit. Bill makes the important point to which you just returned, which is that funding often creates dependency. We certainly see that with state governments as well as various other entities that receive federal money and that the -- many people in the founding generation were concerned about that, including some of the most famous Founding Fathers. You gave a response to the pragmatic concern about that, Nicole, as, basically, saying that people of faith, when they’re receiving this money to educate their kids, they have to be ready to walk.

But I wonder if you have a response to his historical point. As I understood Bill’s historical point, it is that the founding generation -- one of the reasons they wanted to prohibit establishments of church, any church, is to maybe avoid the European outcome and to protect churches from being corrupted. And, so, maybe what Bill says suggests that perhaps an Establishment Clause concern should not -- should be looking at the church’s integrity in trying to prevent churches from receiving money that might corrupt them. So do you think -- is this corruption concern something that Establishment doctrine should take account of?

Prof. Nicole Garnett:  So I think that, as an original public meaning originalist, I don’t think -- I’m sure that Roger Williams was worried about it, and I do not doubt that there were good reasons. I don’t think that the Establishment Clause had anything to do with prohibiting the federal government from funding religious schools. There’s plenty of evidence, particularly in Espinoza, that the founding -- soon after the founding, the federal government started funding religious schools, which is one of the reasons why there’s not -- as a matter of what the original meaning of the Establishment Clause is, I think, no, it’s not a part -- what individual Founding Fathers were worried about is not the original public meaning on the Constitution. And early practice suggests that, no, it doesn’t. And if the Establishment Clause --

Hon. Raymond Kethledge:  Does that -- if I may, just on that point, you said they didn’t -- that they wouldn’t have had a -- or did not have a concern about schools, but is that just pointing to an application in their time and not really, necessarily, telling us what the actual principle embodied in the clause is? We look to history to figure out what the principles are that we’re going to apply to a set of facts, speech, maybe applying it in an internet case.

Prof. Nicole Garnett:  Sure. So, I guess, I -- as my understanding, the original meaning of the principle in the Establishment Clause -- and my husband is actually the Establishment Clause scholar, not me, but it was a Federalism principle primarily designed to prohibit the establishment of a national church and to protect state establishments. So I actually think that’s actually, to bring us to Kennedy and this idea of coercion, I think that it’s very hard to know, outside of that very narrow, main purpose, what the original meaning is. And maybe we might even ask whether the Court by analogy is stretching it a little bit by saying, well, really what it was about was an anti-coercion principle, although smarter people than me have said that. So I don’t think so.

As an originalist, I don’t think that was [inaudible 00:39.52]. But I do want to say that, pragmatically, I agree with Bill that I do think we always have to be careful, if we take the money, that we are, as people of faith, ready to walk. One of the biggest tuitioning schools in the state of Maine, John Bapst Catholic -- John Bapst High School, which is a secular school, until 1980, was called John Bapst Catholic High School. And when they stopped tuitioning kids, it closed and reopened as a secular school. That’s a cautionary tale for me.

Hon. Raymond Kethledge:  Okay. Thanks. Bill, anything to add on that?

Prof. William P. Marshall:  Well, we could have the long debate about what the Establishment Clause --

Hon. Raymond Kethledge:  Briefly.

Prof. William P. Marshall:  -- is all about [laughter] and whether or not it should apply to the states and whether it’s just a federalism principle. I would like to have historians in the room to do that. But I think that -- I do think the Establishment Clause is informed by a lot of policies, and this is one of them. I think it’s informed by the principle of anti-corruption. I think it’s informed by the principles of divisiveness. I happen to agree with Nicole on one point. Rick Garnett’s one of the greatest Establishment Clause experts in the country. Rick has written a great article on divisiveness and where he says is why do we care about here when we celebrate divisiveness politically elsewhere. And I happen to agree with a lot of that, but I do think when we get to the public schools and we get to fighting over schools, there’s a different kind of divisiveness that we need to be concerned about, and it’s one that history tells us that we need to be concerned about.

Hon. Raymond Kethledge:  Okay. Thanks. So it’s about 4:15 already. Why don’t we spend another, maybe, five minutes on Carson and this kind of stuff? And I guess just each of you -- do you think there’s much left to litigate regarding school funding, or -- we sort of had Trinity Lutheran twice, I guess, as you described it, Nicole. Is there anything left here?

Prof. Nicole Garnett:  You could always litigate. [Laughter]

Hon. Raymond Kethledge:  In terms of larger principles.

Prof. Nicole Garnett:  I think the things I highlighted are the things, I think, that are going to be litigated. So what is a program of -- what is funding private schools and, specifically, about charter schools? And then, the conditions questions. I think those are the big questions left. I think there’s a hanging chad whether the direct versus indirect funding distinction still matters, which is what the -- originally the Court used to justify in the Zelman case, allowing kids to use vouchers at private religious schools. I don’t think it does, although the Court seems to resuscitate it a little bit in Carson.

Billions of dollars of COVID relief went to religious institutions. Nobody said a word, so I think those are the big questions. I do think that there will be efforts to try to push Carson to say that maybe the state -- the next stage — and this might be in state court — the next stage is effectively trying to use litigation to force the state to adopt private school choice through litigation. And I do not think that is going to go -- that’s going to go anyway -- farther -- any farther than it ever has because it’s not the first time that it's been done so, I think, strings and sort of what the scope of private school choice is. Those are the things that are out there.

Hon. Raymond Kethledge:  Okay. Thank you. Bill?

Prof. William P. Marshall:  Yeah, I agree with where it’s going. I think the next line of litigation is going to be the state’s going impose some very serious restrictions on the schools, including anti-discrimination in admissions. It may have concerns about some things that are being taught, particularly if it happens to be condemning the religions of other folks. Even Justice Kennedy in the Town of Greece, Galloway case, legislative prayer case, said, we’re going to allow them to prayer, but they can’t use the prayer that they’re using to denigrate other religions. I think that’s going to come into play here on conditions of receiving the money. And then, I think the religious schools are going to claim an exemption, or they’re going to try to argue for an exemption from these kinds of laws under Free Exercise.

Now, the interesting thing of doing that is that these whole school funding cases are based on a notion of equality, that you can’t distinguish in an adverse way religion from non-religion. They can’t be disprivileged, if I can use a word. But then, if you come back and say that we need exemptions, you’re arguing exactly the opposite and saying we are special and, therefore, we are entitled to special treatment. And I think there’s a tension in that line of argument.

Hon. Raymond Kethledge:  Okay.

Prof. Nicole Garnett:  Just one quick follow up to what Bill said is to point out that the biggest thing — and maybe this is the exemption question — I think the first and most important question for regulatory conditions is going to be about the ministerial exception, which is a constitutional exemption, and the next question’s going to be is can you condition the participation on the waiver of the ministerial exception. And that — I do think you’re right — and then, there’s -- it becomes like we want to be treated equally, but we also have these special religious -- and that’s okay with me, by the way, but it is true that those there the questions that are coming.

Hon. Raymond Kethledge:  Erin, you want to add anything?

Ms. Erin Murphy:  The one thing, just bigger picture, I would add. I think a lot of people have said, in the wake of Kennedy and these line of cases, does the Establishment Clause do anything other than say you can’t establish -- have an established religion. And I do think that the Establishment Clause -- whereas the Free Exercise Clause is, of course, very focused on discrimination against religion or discrimination against your religious practice, the Establishment Clause has been a little more where the idea has been housed of discrimination among religion and treating one faith more favorably than another. And I think all that could very much come into play in some of these debates that will be had about conditions that are being imposed. Obviously, generally when you’re dealing with spending power, legislation, the rule is you’re doing it voluntarily and you get to walk away if you don’t like the conditions. But I think that notion of our conditions being crafted in a way that is targeting specific religions and religious faiths is probably where -- in a lot ways, the Free Exercise and Establishment stuff becomes a little bit two sides of the same coin, but I think that’s where there may still be a lot of work to develop Establishment Clause doctrine in that sense of thinking about targeting of particular faith.

Hon. Raymond Kethledge:  Great. Well, that dovetails with the first question I wanted to ask you, regarding the Kennedy case. So why don’t we move to that. Obviously, in Kennedy, the Court brooms the Lemon case on grounds that it was already dead, sort of a hygienic matter. [Laughter] So -- but with Lemon gone, what, if anything, is left in terms of endorsement as an Establishment Clause concern and break on what is permissible?

Ms. Erin Murphy:  Sure. So I think what is still left is, if you think of endorsement in the more literal sense, that is quite different from when you’re viewing -- when you’re thinking about a reasonable observer having the mistaken impression that you’re endorsing religion. So it would certainly be a different thing if a school is choosing to embrace the speech as their own and really say, hey, we’re going to have you all now join in or be here while the school speaker comes up and gives the prayer. Obviously, the way doctrine has developed over the years, it depends a lot if you have -- if you treat that more like now is an opportunity for everybody to come up and say their piece, you don’t get to discriminate against the person who wants to use the opportunity to say their religious piece. But we do still have government speech involved in the school context, and when you’re dealing with what really is government speech, which they didn’t think you had here, then you’re in a different camp for Establishment Clause purposes. So I don’t think that the concept of endorsement is entirely gone. I think it’s just that endorsement is back to what we would normally think of as endorsement, which is affirmative efforts to actually embrace or endorse religion rather than treating as endorsement the mere failure to essentially censor the religious speaker or oust the religious practice from the public square.

Hon. Raymond Kethledge:  Okay. Bill, do you have anything you want to add on that point?

Prof. William P. Marshall:  Almost --

Hon. Raymond Kethledge:  You don’t have to.

Prof. William P. Marshall:  -- like to believe it’s true, but I don’t think it is true. I do think -- first of all, we can argue the private/public part. I do think if a teacher is on her -- is on -- is doing a study hall and starts praying and saying, “I’m on my own time,” in the same way that Coach Kennedy said he was on his own time on the 50-yard line after a football game, that follows. And you’re going to see that kind of prayer, and I think that’s going to lead to other kinds of prayer coming in -- and not just prayer, by the way. This case was also decided on speech grounds. Needless to say, you’re going to see kinds of very controversial speech coming in there, and you’re going to be telling the schools they can’t do anything about it.

And that’s not just prayer. Again, it could be much more controversial, political kinds of material. But with respect to endorsement, the only endorsement that the Court’s going to recognize, according to the Bremerton case, is that the framers historically found to be problematic. And I think that’s a real problem because the framers were visionaries, needless to say -- the framers concerned about the underlying principles.

But Bible reading in the 18th century wasn’t the same as Bible reading in the 20th century for the simple reason that there was only one Bible that people thought about in the United States during that period with very limited exception. When the Catholics came over to the U.S. and there were all these immigration fights and all this anti-Catholicism, part of it was fighting over different Bibles. And when the school picks one Bible over another or a teacher picks one Bible over another, that’s the kind of controversy that will -- that I think is problematic. And it’s one that the framers did not see.

Hon. Raymond Kethledge:  Okay. Oh, okay, Nicole.

Prof. Nicole Garnett:  I hope the reasonable observer is dead because it was a terrible test. So it’s great --

Hon. Raymond Kethledge:  I’m sorry. What test?

Prof. Nicole Garnett:  -- I said the -- I really do hope endorsement is dead. The reasonable observer was never -- it was never workable. As Justice Gorsuch said --

Hon. Raymond Kethledge:  That’s definitely dead. But I just wondered if endorsement is -- that just doesn’t matter anymore, that whole concept.

Prof. Nicole Garnett:  So I don’t know -- not in any recognizable way, I think. I do think this is one question -- I just talked -- I’m glad -- the reasonable observer, as Gorsuch said, was an “avatar.” But I do think one thing that’s really interesting is a question for all the judges here in the room. What do you do with a bunch -- when you jettison a test that has led to lots of erroneous opinions? So I teach education law. I taught the moment of silence case. I don’t even know --

Hon. Raymond Kethledge:  You’re liberated is what you are.

Prof. Nicole Garnett:  -- I don’t even know if this a rule anymore because it’s a Lemon case. And the Court -- there are lots of cases that depended on Lemon that are still -- I guess you’re supposed to play by the finally ruling. But the test that caused them to be there is wrong. It’s gone.

Ms. Erin Murphy:  No, it’s a really interesting -- obviously, I do a lot of Second Amendment work, too, and you’ve got the same thing going on there, but it’s much easier because there’s almost no doctrine. It’s only been going on for 10 years, and it’s all out the window. But it’s a much trickier thing to think about, wow, we’ve got decades and decades of precedent that’s been built around a test. And does it kind of all get redone under a new type of analysis? Yeah.

Prof. William P. Marshall:  Just a quick story, if I may. This summer I got an email from one my students saying, “I hope you’re having a great summer. But I imagine you’re spending every bit of it thinking how you’re going to teach constitutional law next year.” [Laughter].

Hon. Raymond Kethledge:  Okay. Well, let’s talk about coercion. Obviously, Kennedy’s a big holding in that respect. And starting with Erin, what do you think is the test now with regard to whether there’s impermissible coercion in violation of the Establishment Clause? And is it focused exclusively now on the actions of the state actor, or are we still kind of taking into account the feelings or perceptions of the actual, let’s say, people who were there and potentially subject to the authority of the state actor?

Ms. Erin Murphy:  I think it is pretty much, at this point, focused on the actions of the state actor and the concept of what I think of as kind of affirmative coercion. And that doesn’t mean it can’t be indirect. Just because, if you have a coach who says, “Oh, no one has to participate, but only the people who do get good playing time” or a teacher who’s only giving better grades to people who do whatever it is, that’s still -- you’re still proving up a form of actually coercion. It’s just indirect. So I think that that’s really where the focus is. But I guess I’m not as troubled as Bill is by that because, of course, it’s true that teachers and coaches and many other adults in mentor-type positions, there are going to be students and kids who want to emulate them.

But we don’t say that that means that a coach can’t say who their favorite football team is or what they politics are or many, many other types of speech and activity that students may choose to emulate. And, so, that’s what has always bothered us so much about this case, this idea that it’s fine, it’s fine if students see people of -- see mentors, see coaches, see teachers, hear them say everything else in the world  and have to make a decision about whether they want to think like them and act like them, whether -- how they’re going to deal with the fact that someone in a position of authority may have different views than them, except when it comes to religion. When it comes to religion, no, no, no. That’s something that just can’t -- we can’t acknowledge the fact that you may have people in positions of authority above you who don’t share your religious views. And the reality is that that is going to be true for all of us in life outside of school as well as it is in school, so I -- it’s not that we don’t appreciate that there is a dynamic of students feeling pressure to emulate fellow students, to emulate teachers, to emulate coaches, to do things that they think will get them better treatment. The concern is when you really single out the idea of the consequence of that is that we have to kind of hide the fact that teachers actually have religious views.

Hon. Raymond Kethledge:  Justice Sotomayor’s dissent, I thought, rather pointedly said that Coach Kennedy was engaged in demonstrative prayer, like that was a strike against him. I just point that out as germane to your point. Bill, what do you think?

Prof. William P. Marshall:  I don’t -- I think religion’s different in this context. I think that’s why we have an Establishment Clause and we don’t have a constitutional provision that says that the government can’t say, “We support free market capitalism.” There’s something special about religion that I think pertains to its divisions. I don’t think that’s an absolute rule that cuts across the board, but I do think when we’re dealing with kids and public schools, historically, fights over religion have been particularly intense. They’re likely to stay intense. I think that the invitation -- when some people start doing it with their religion, other people are going to feel that they needed to do it with their religion --

[CROSSTALK]

Hon. Raymond Kethledge:  Kind of like Town of Greece — right? — this rotation or whatever that was.

Prof. William P. Marshall:  Yeah. Well, but, again, if we’re offering religion as a prize, if we’re offering government approval of religion as a prize, then people are going to compete for it. And when religions compete for it, we get the kinds of divisiveness that Engel recognized as being problematic. I hear Erin’s argument, but Erin is saying that prayer in the schools is constitutional as long as it’s voluntary.

Hon. Raymond Kethledge:  But on the -- on your point about a prize, do you think Coach Kennedy’s actions are offering up anything as a prize there? Or is it just an individual expressing his own faith and --

Prof. William P. Marshall:  I think when a football -- I think the prize that I’m talking about is people wanting -- people using their authority to advance religion. Now, everything I read about Coach Kennedy is that he’s a terrific person, and I don’t think he had any malintentions at all. But I do think when you’re the coach of a football team, you know that people are going to want to express solidarity with you as the coach, not just to get playing time. Even if you’re the person sitting on the bench, even if you’re Rudy, what you want to do is [laughter] show that you’re there all the time for your team.

Hon. Raymond Kethledge:  Okay. Did you want to add anything? You don’t have to.

Prof. Nicole Garnett:  I actually don’t know -- I don’t know what the coercion test -- I’m very curious to see — and it will take a long time to — how it works because the reality is that — I teach education law, as I said — schools do have to make decisions about speech. Not everything can be said at every time, and people have to pick textbooks, and people have to decide to teach math during math class, so they’re very complex -- public schools are very complex organisms. And I don’t know how this is going to play and how really the coercion test is actually going to play. I will say to Bill’s point, though, that as far as I know voluntary, private prayer has always been constitutional.

Prof. William P. Marshall:  Oh, sure.

Prof. Nicole Garnett:  And it’s always been constitutionally protected. And voluntary, private prayer is what Coach Kennedy was doing, so -- you might disagree with that, but that’s what the record suggested that he was doing.

Prof. William P. Marshall:  Well, not -- it depends on how you read that record, but I think looking at the -- going -- for a football coach going to the 50-yard line after a game is not private in anything sense of the word.

Hon. Raymond Kethledge:  Bill, if I can ask you on that point, it’s a highly fact-bound case in some ways, but he had proposed -- Coach Kennedy had proposed that he be able to go back out on the field alone, sort of when -- everything’s dark out there and everybody’s gone and do his prayer at midfield. And the school said, “No,” because that would be an overt religious action, I guess, while he’s still wearing his high school team garb. What’s your take on the permissibility of what he had proposed there?

Prof. William P. Marshall:  Yeah, that doesn’t seem objectionable to me. I do think that there are thin lines here. I don’t think this one -- I think this was a relatively easy case from the other side, given the location of it. But, sure, there’re thin lines in there. And I also don’t think that the third grader shouldn’t have been able to choose God if she wanted to. That was her private choice. I do think there’s been an overreaction to Establishment issues, that school administrators have a tendency to overthink these areas, and they need to be instructed on it. The -- there were pretty good guidelines, I believe, that the Justice Department once put out about legitimate religion in the public schools that I think are pretty good as to what that happens. I don’t believe that --

Hon. Raymond Kethledge:  You talk about -- and I’m going to ask this question to Erin. Bill just mentioned school administrators and guidelines. They have to be able to sort of try to figure out what’s permissible and what isn’t as they’re operating their schools. Lemon is gone. Now, we have historical practices and understandings. How workable do you think that is now? And how workable do you see it becoming, as we have more cases, for the school superintendent who has to deal with the coach wants to do something on the basketball court 30 minutes before the game or something?

Ms. Erin Murphy:  Yeah, so, I think that it -- really a lot of the pressure ends up being put on the public versus private speech distinction, the government speech distinction, when it’s all done, because I think the Court has now made very clear to schools -- I think they made it very clear long before this case in a long line of cases to schools that, if you’re talking about private speech, private religious exercise, you don’t get to -- you certainly don’t have to and you don’t get to suppress it or censor it just because it’s occurring in the workplace, in the school building, whatever it may be. But obviously, there are different concerns when you’re talking about government speech. And are there going to be some lines that are hard to draw? Obviously, I think Bill and I would disagree about whether the free time a teacher has during study hall -- if they can read any other book in the world, I’m not sure why they can’t read their Bible. On the other hand, I think we would probably both agree that getting up and reading the Bible during math class is not something a teacher should be doing because you’re there, and the speech you’ve been hired to provide is teaching math. So I think that it’s a workable framework, and the debate then becomes how do you decide what to put in the school speech, the government speech, the speech that really does belong to the institution versus the private speech.

And I do worry that -- we’ve already seen it in the aftermath of Kennedy from the Bremerton School District that the impulse of some school districts and governments is going to be, “Okay. Well, let’s try and go back to redefining government -- redefining the government job in the broadest terms we can to try to have as little room as possible for the private speech since that’ll get us out of -- get us back into bucket where we can stop it.”

Hon. Raymond Kethledge:  Okay. Bill, any thoughts on that?

Prof. William P. Marshall:  Well, I certainly agree it’s going to be -- the lines are going to be hard to draw. There’s no question.

Hon. Raymond Kethledge:  Well, there’s a question. I wasn’t saying that, just for [laughter] but go ahead.

Prof. William P. Marshall:  Again, I just would want to go back to the basic theme of what I’m talking about. This decision really, to me, says voluntary prayer in the public schools is legal. I don’t see any way out of that the way they drew it, talking about coercion being much more than just peer pressure and then taking a look at historical practice. And then the question I’m just asking everybody in the room is that really a good thing? I understand the prayer in the school decisions were some of the most controversial ever decided by this Court. But in a society such as ours, do you really want that to take place?

If it’s your prayer, do you want it to be said? If it’s somebody else’s prayer, do you want it to be said in school? Or is this the kind of divisiveness that is best -- that we best stay away from? And obviously, you know where I am on that particular question, but the question for me isn’t should there be prayer in the school. The question for me is whose prayer. And that’s where it all breaks down, and that’s what I think we need to think about.

Hon. Raymond Kethledge:  Nicole, anything?  All right.

Prof. Nicole Garnett:  Nope.

Hon. Raymond Kethledge:  All right. This is going to be a lightning round here real quick, just one question. I’m kind of asking questions I want to ask, I’m interested in. So with coercion, Erin, is -- we’re talking about, sometimes, a state actor who has discretionary authority over people -- over certain people who are present when the state actor’s going to engage -- is going to pray or engage in some kind of faith activity. And does that count for anything in determining whether there’s coercion, or are we just simply looking at did he ask, invite, etc.?

Ms. Erin Murphy:  So I think it could matter in the sense where you’re trying to deal with, as I was suggesting earlier, kind of indirect coercion. Now, I don’t -- I still think it has to be actual coercion, not, look, you’re not trying to do it all, but you’re just in the kind of position where people are going to mistakenly you are. I think you still need to be able to demonstrate, no, in fact, that’s what you’re trying to do. But obviously, it’s relevant in thinking about whether you’re trying to coerce people, whether you’re someone who has the authority to coerce people. So I don’t think it’s completely irrelevant, but I think it --

Hon. Raymond Kethledge:  Part of the context.

Ms. Erin Murphy:  Yes, exactly.

Hon. Raymond Kethledge:  All right. Bill, anything?

Prof. William P. Marshall:  Yeah, you got to think about -- it’s not just whether you have the authority; it’s just whether you have the status. That will do that as well. So I’d add that.

Prof. Nicole Garnett:  This whole conversation makes my conviction that private school choice is a good idea even stronger. [Laughter].

Hon. Raymond Kethledge:  Okay. All right. Why don’t we open it up to questions from the audience here?  I’m not -- okay. You’re -- yeah, I see there’s someone in front of the light.

Steve Calabresi:  I’m Steve Calabresi and am a co-founder of The Federalist Society. I enjoyed this panel immensely. I have to say I agreed with Nicole and Erin on the two cases that were being discussed, but I had a couple of thoughts. First, on original meaning, I agree with what Nicole said about the original meaning of the Establishment Clause of the First Amendment. But I think what really made matter in Fourteenth Amendment cases like the ones we’re talking about is what was the original understanding of establishment of religion in 1868 when the Fourteenth Amendment was ratified. And my impression is that religion at that time was highly valued because it had driven the abolitionist movement.

It was driving the women’s suffrage movement, and it was driving the temperance movement, which eventually led to the abolition of alcohol. And one of the great oppressions of slavery was seen as being the fact that slaves were not allowed freely to worship. So I think, in 1868, free exercise of religion was a primary value and an important value. But there is another hitch about 1868, which is that 27 out of 37 state Bills of Rights in 1868 had state Establishment Clauses. So they actually had copied the federal Establishment Clause into their state Bills of Rights in two-thirds of the states. Now, 22 of the states out of 37 copied the Second Amendment into their state Bills of Rights, and the Supreme Court in McDonald against City of Chicago said that’s enough to incorporate the Second Amendment. So there may be some kind of Establishment Clause idea in the Fourteenth Amendment because it was so widely present in state Bills of Rights.

Secondly, I’d emphasize that I firmly agree with Bill’s opening point about be careful what you pray for. The framers opted for privatization of religion and deregulation of religion. And — surprise, surprise — with privatization and deregulation, we got a lot more religion in the United States than there is in France or Germany or Italy, where there are established churches and regulated schools and things of that kind. So that’s -- in fact, if you want to compare us in terms of belief in God or belief in the devil or belief in an afterlife, Americans look more like the residents of Islamic countries in South America than they do like the residents of Europe or Canada or Australia or New Zealand.

Turning to Bill, I wonder the German Constitutional Court in the case that I always have really liked held that women wearing Islamic head scarfs could teach in German public schools, and that that was not coercive or offensive to other German students. The French Supreme Administrative Law Court, it came out the other way and said that students in French schools and teachers in French schools couldn’t wear Islamic head scarfs, couldn’t wear yamakas, couldn’t wear Stars of David, and couldn’t wear crucifixes. In England, the U.K. Supreme Court declared that an Eastern Orthodox school, school set up for Eastern Orthodox Jewish students, couldn’t refuse admission to a child who was born of an Italian Catholic mother and a Jewish father because that was racism. So even though the school had a religious reason for wanting to prefer Jewish students, it was overridden. Now, it seems to me that if teachers are wearing head scarfs or yamakas or crucifixes or anything like that, there’s nothing problematic about that. I don’t think that would be coercive.

Canada’s Supreme Court allowed a Sikh student to wear a Kirpan, which is a ceremonial dagger, even though it forbade the bringing of weapons and knives to school on free exercise of religion grounds. Assuming we allow all of that, is there really any difference between the coach, instead of wearing an Islamic headdress, his preaching at the 50-yard line, and isn’t that something that we should not be troubled by?

Prof. William P. Marshall:  Always love arguing with you, Steve. It’s always [laughter] the best because you give just enough [laughter]. I think there is a difference between leading something that is a ritual and just wearing something. I think what you point out in discussing all of these cases is how difficult these lines are. And clearly the lines in Establishment Clause jurisprudence up until now have been some of the craziest lines imaginable. Some Ten Commandments are okay; others are not. And the thing goes on.

Yeah, I think there’s a difference between those cases. I do think that, one, you’re actually bringing people into a religious activity. Whether it’s formally coerced or not, you’re doing it by the strength of who you are as the coach. And the other one, you’re just having something on your own body. Is it a thin line? Yeah. But I do think that it’s one that is justifiable.

Steve Calabresi:  Thank you.

Hon. Raymond Kethledge:  Okay. Do we have time for another one?

Ms. Erin Murphy:  Yes.

Hon. Raymond Kethledge:  Erin’s the timekeeper. Okay. A question and fairly quickly into the talking.

Audience member:  Yes, Your Honor. Thanks, everyone. Great panel. I was wondering what the right answer to the anti-discrimination component is in school choice. So if there’s a law passed that says as a condition of state funding you must let people in on the basis of race, sex, sexual orientation, religion, and a school says that we don’t want to -- or we don’t admit someone that’s same sex or transgender because of our religious faith, what is the Court to do? What would be the correct answer under the --

Prof. Nicole Garnett:  You mean as a matter of constitutional law?

Audience member:  Constitutional law under the Free Exercise Clause. The original meaning or the correct understanding of the Free Exercise Clause and Establishment.

Prof. Nicole Garnett:  Right. So I often talk to Catholic bishops about school choice, and I do remind them that the government can regulate you in all kinds of ways that you don’t like without it being unconstitutional. So not every condition is necessarily unconstitutional. I think the question here would be -- an unconstitutional conditions doctrine is such a puzzle — right? — so we don’t really know what it means. I do think there are some certain core autonomy of the religious institutions the First Amendment protects with administerial exception, that the church autonomy doctrine itself would say it’s not waivable. Even if you just -- you can’t force somebody -- you can’t use the leverage of the purse in order to force -- to get the government to monkey around in the autonomy of a religious organization because the government simply lacks the power to do so. And that is an Establishment Clause doctrine as much as it is a Free Exercise Clause doctrine.

As for the others, I don’t know that -- I -- we just had a great conference at Notre Dame about the unconstitutional conditions, and I think the best way to think about it -- and I don’t know if it’s the right way but -- is the government using -- is it leveraging -- is it essential to the program that they exercise this leverage, and if so, then maybe it’s okay. And if not, then they’re just using the power of the purse to accomplish indirectly what they couldn’t accomplish directly. But I don’t have a clear answer, especially in a world without Smith being overturned, what the right answer in these conditions cases are because there’s, assuming it’s neutral and generally implacable, then you don’t get an exemption under the Free Exercise Clause, I think. I don’t know.

Ms. Erin Murphy:  I would just -- I think a lot of this is intertwined with the rather undeveloped doctrine of constraints on Congress’s spending power, and I think there’s, particularly, some interesting parallels to the use of the spending power vis-à-vis states. We’ve been making some arguments in a brief about not being able to use this spending power to force states to give up their taxing authority. And the argument is that’s just such a core aspect of sovereignty that it’s not the kind of thing the government should be able to coerce through spending conditions. I think it’s a little bit of a parallel in thinking about church autonomy and if there are certain things that would just be the government has no business using its spending power to try to come at something that’s really at the heart of the autonomy of a religious organization, but I agree. I think all this stuff is very tricky. There’s a reason there aren’t lots and lots of cases articulating clear understandings of the limits on Congress’s spending power in any context. And when you throw the Establishment Clause and Free Exercise into the mix, it just complicates things even more.

Prof. William P. Marshall:  I agree that a lot will depend on where the Court goes with the Free Exercise Clause. But it’s certainly problematic, I think, if institutions that getting -- that are getting government funding for something as important as education are allowed to discriminate on the basis of race or gender or anything like that. And this is part of the problem of -- I think, that the state will have a very legitimate, if not a compelling, interest to enforce anti-discrimination requirements in those circumstances, and that’s part of the problem. Be careful what you wish for because if you’re going to have these -- you’re going to get government funding, you could expect you’re going to be held to some sort of government accountability.

Hon. Raymond Kethledge:  Great. All right.

Audience member:  Thank you.

Hon. Raymond Kethledge:  Thank you. Next question.

Audience member:  I’ve got a fundamental question of what constitutes a religion for purposes of the Establishment Clause. It used to be -- and you’re all talking about the 1800s where religion meant building on that town square with a steeple, taught you morality, and make -- the decisive issues were which Bible to read. We’re not in the 1800s anymore. If you watch Libs of TikTok -- and I’m not sure I want to recommend it -- but if -- there’s a great deal of divisiveness right now over what is being taught at the elementary school level with respect to sexuality, whether it be transgender, whether it be gay rights, whatever. Now, luckily, I don’t think we’ve had as many deaths with respect to that issue as we had in the 1800s. I’m from Philadelphia; I know very well about those.

Hon. Raymond Kethledge:  Okay. So we need your question.

Audience member:  But my question is is there an argument to be made that there is a New Age religion that decides what is moral and is immoral. And is teaching to our elementary school children that you can be gay, you can be whatever gender you what, so forth and so on, that constitutes an impermissible establishment of religion?

Hon. Raymond Kethledge:  So what counts as a religion, though, is the basic question --

Audience member:  What counts as a religion for purposes --

Hon. Raymond Kethledge:  What are the -- is the description?

Prof. Nicole Garnett:  I would say that has been litigated unsuccessfully in the past. I think in the ‘70s it was called the secular humanism claim.

Prof. William P. Marshall:  Humanism. Yeah.

Prof. Nicole Garnett:  Yeah, I know there are these cases going on right now, not necessarily about religion, about coercion in the schools, indoctrination, and other things. I just don’t see the courts really getting into that precisely because, by definition, public schools are places that indoctrinate, and they have to make decisions. They might make a decision I don’t like, but I don’t see it as -- I understand probably some of you in this room are litigating some of these claims, so I apologize. But I don’t see it as being a successful line of argument.

Audience member:  Okay.

Hon. Raymond Kethledge:  Any disputes --

Audience member:  Okay.

Hon. Raymond Kethledge:  Thank you.

Audience member:  Thank you.

Hon. Raymond Kethledge:  Next question.

Audience member:  Hi. Thanks so much. So it’s clear in the First Amendment context that first sort of question you can’t establish or directly say you can’t be Catholic or whatever. Second order, I think, is what we saw this summer, which is that you have to treat religion equally. You give money to the secular schools, like in Maine, you also have to give money to the religious schools. I have a question about the third order problem, something that, I don’t know if it’s been litigated yet or from what direction, but what happens when the effect of the money or the effect of the equal treatment given to all religions or people, secular and religious, is the same? The treatment is the same, but effect is very different.

So what happens in a struggling community where the only religious group large enough to have a non-failing public school or even public school at all is, for example, just to pick one random religion, the Catholic religion, and then it is completely uninhibited from indoctrinating all students into that religion. And, so, parents have to make a choice -- and it’s not reasonable to be emancipated, children making the choice for themselves. Do I want my child to have a safe school and a good education or either a nonexistent or home -- crappy home school or very bad public school that is secular or Protestant or Muslim or Jewish or Evangelical or any other religion? And, so, kind of the disparate impact effect of equal treatment based on the size of groups, kind of a competition, anti-trust-type argument.

Hon. Raymond Kethledge:  Anybody?

Prof. William P. Marshall:  I agree with your observation that this does help those religions that have the resources to have schools before. That argument has also been raised previously, and I don’t think it’s going to go anywhere either, constitutionally. Nicole and I agree on everything, as you can tell from this panel, so far. But I agree -- but that argument has been rejected as well, although it’s clearly a policy reason as to why you might not want to fund religious schools because there’re only some religions that have the resources to be able to have schools.

Prof. Nicole Garnett:  So one thing just -- it is very hopeful, I think, to -- that pluralism in American education is so much better than it used to be. So we have charter schools. We have private schools. We have homeschools. We have microschools. We have online schools. And, so, increasingly, that -- the sort of example that you give is not the reality facing many parents anymore. And I think that there’s just a lot of energy -- entrepreneurial energy in the education space that will make, hopefully, more options available to parents, poor parents, so their choices aren’t -- they aren’t put to the choice that you suggest.

Hon. Raymond Kethledge:  Yeah. Thank you. And I think we thank the unregulated character of American religious practice for precisely that. Okay. One more question for our patient person here.

Audience member:  Okay.  Thank you.

Hon. Raymond Kethledge:  Oh. All right. I don’t know if we have time for two, to be honest with you. But -- okay.

Audience member:  Yeah. Okay. So just very quickly, I think, I remember Gertrude Himmelfarb, Bill Kristol’s mother, making an argument that there’s a real distinction between the American Enlightenment and the French Enlightenment, the American Enlightenment being very much aligned with religion and favorable to religion, the French being anti-religion. And it would seem to me that that’s the source for religion disappearing in Europe is that it was mostly guided by the French Revolution. So -- and Enlightenment. So my question, then, is, with regard to Engel that was a secular prayer, what would be the problem be going back to the American Enlightenment as a joint cultural thing and just taking the beginning of the Declaration of Independence, which is a common cultural inheritance and that talks about the Creator and simply turning it into something that it is addressed directly to the Creator. What’s the problem with that as -- so now it’s everybody’s prayer.

Hon. Raymond Kethledge:  Bill? Quick response.

Prof. William P. Marshall:  I guess that’s for me. We have something in the Pledge of Allegiance when we say, “Under God.” And that’s litigated. There’s a lot of cases that deal with ceremonially deism or whatever -- that -- in a week, there’s going to be a national holiday called Thanksgiving. There’s clearly some reference to religion in the public culture as well; there should be, given our history.

Audience member:  Well, I guess, my point, though, is that you seem to be going back all the time to is this something we really want? And the thing that you seem to fear the most is especially prayer in the public schools, so why not take that as the common ground on which this can be resolved?

Prof. William P. Marshall:  I think the question you’re asking is is there a prayer that we can have that isn’t controversial. I ask my students that, that exact question. I said, “If we started off by saying, I’m going to paraphrase the prayer in Engel. ‘Almighty Invisible Hand, we acknowledge our dependence upon the --' and we ask for it’s blessing, would that be okay?” My students were actually uncomfortable with that, I was surprised to see, because they thought it was ritual that was what was problematic. Whether that’s true or not, I don’t know. I can see exactly the point that you’re taking. Take a line from the Supreme Court, Justice Douglas’s “we are a religious people whose institutions presuppose the existence of a Supreme Being.” Could we say that every morning and not be problematic? Again, there’re slippery slopes in this business. In fact, these have some of the slipperiest slopes of all, so I think that we need to be cautious.

Hon. Raymond Kethledge:  Okay. Real quick in the back. Sorry I didn’t see you sooner.

Paul Schmidt:  That’s okay. Paul Schmidt from Alliance Defending Freedom. Love the commentary on the school choice cases. I litigate them in Vermont. I have a different angle on it, though, particularly with the public benefits piece. How does the parental rights or parental -- fundamental parental right to determine the direction and upbringing of your children factor in, particularly after Mitchell and Helm -- Mitchell v. Helms in the settlement case where the circuit breaker analysis kind of comes in? So if this -- these are benefits that belong to families, I wondered if any of the panelists had a comment on the issue of parental rights. Thank you.

Hon. Raymond Kethledge:  Anybody?

Prof. Nicole Garnett:  I guess I would say, as you know, most of -- the [inaudible 01:25:19] of cases has not been very effective in advancing parental rights. It’s a fairly limited line of cases, so the question is whether you can reinvigorate that in state or federal courts or maybe put that line of cases in the Privileges or Immunity Clause of the Fourteenth Amendment to Steve Calabresi’s point. But I -- so I just don’t -- right now, it’s kind of an anemic line of cases. It doesn't get you very far or hasn’t historically.

Hon. Raymond Kethledge:  Okay. I think we’re out of time. I want to thank this panel for their time and sharing their expertise with us. You all have been great.

6:00 p.m. - 7:00 p.m.
Madison Club Reception

2022 National Lawyers Conference

Columbus Club
Union Station
50 Massachusetts Avenue
Washington, DC 20002

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Attendance by invite only. Black tie optional.

6:00 p.m. - 7:00 p.m.
Lawyers Convention Reception

2022 National Lawyers Convention

East Hall
Union Station
50 Massachusetts Avenue, NE
Washington, DC 20002

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(Ticketed event) Black Tie Optional

7:00 p.m. - 10:00 p.m.
Antonin Scalia Memorial Dinner

2022 National Lawyers Convention

Great Hall
Union Station
50 Massachusetts Ave NE
Washington, DC 20002

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(Ticketed event) Black Tie Optional

A Celebration of the Federalist Society's 40th Anniversary

10:00 p.m. - 11:00 p.m.
Closing Reception

2022 National Lawyers Convention

East Hall
Union Station
50 Massachusetts Avenue
Washington, DC 20002

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Co-Sponsored by the Harvard Student Chapter.

Music by The Alex Donner Orchestra

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9:00 a.m. - 11:00 a.m.
Showcase Panel II: The Mission of Law Schools

2022 National Lawyers Convention

Topics: Culture • Professional Responsibility & Legal Education
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006

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Law schools are the gatekeepers of the legal profession and thus wield substantial influence on the law’s future shape.  In recent times, law schools have increasingly viewed themselves less as charged with training lawyers to serve their clients’ needs and more as engines of social justice.  Is that an appropriate role for law schools?  How compatible are the two missions?  Does the highly and increasingly ideologically homogeneous character of law school faculties, as shown in many studies, exacerbate the tension between those missions?

Featuring:

  • Dean Mark Alexander, Arthur J. Kania Dean and Professor of Law, Charles Widger School of Law, Villanova University
  • Prof. Joshua Kleinfeld, Professor of Law, Northwestern University Pritzker School of Law
  • Prof. Paul G. Mahoney, David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law
  • Dean Dayna Matthew, Dean and Harold H. Greene Professor of Law, The George Washington University Law School
  • Moderator: Hon. Neomi Rao, U.S. Court of Appeals, District of Columbia Circuit

Speakers

11:15 a.m. - 12:00 p.m.
Address by Senator Michael S. Lee

2022 National Lawyers Convention

Grand Ballroom
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006

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Featuring

  • Hon. Michael S. Lee, United States Senate, Utah

Speakers

12:00 p.m. - 2:15 p.m.
Students for Fair Admissions v. Harvard: Affirmative Action Goes to Court

2022 National Lawyers Convention

Topics: Constitution • Civil Rights
State Room
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006

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The panel is sponsored by our Civil Rights practice group and will focus on the issues in, and potential outcome of, Students for Fair Admissions Inc. v. President & Fellows of Harvard College

One of the most closely anticipated cases of the coming Supreme Court term involves a challenge to the use of racially preferential undergraduate student admissions practices at Harvard University and the University of North Carolina. This panel will examine the issues raised by those cases, the possible outcomes, and their likely impact on the future of higher education and beyond. Will these cases mark the end of race-as-a-factor in holistic admissions practices? If so, will universities comply with the Court’s decision, or will they evade it? And what will be the ramifications in other sectors, such as the workplace? Is a color-blind society possible in our time?

Featuring:

  • Mr. Michael A. Carvin, Partner, Jones Day
  • Hon. Gail L. Heriot, Professor of Law, University of San Diego School of Law; Member,  U.S. Commission on Civil Rights; Former Civil Rights Counsel, U.S. Senate Committee on the Judiciary
  • Prof. Eric Segall, Ashe Family Chair Professor of Law, Georgia State University College of Law
  • Moderator: Hon. Kevin C. Newsom, Judge, U.S. Court of Appeals, Eleventh Circuit

Speakers

12:00 p.m. - 2:15 p.m.
Central Bank Digital Currencies: A New Tool for Government Control?

2022 National Lawyers Convention

Topics: Financial Services & E-Commerce
East Room Overflow: Chinese Room
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006

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Central Bank Digital Currencies (CBDC) are the subject of global debate. While proponents see CBDC as a new tool to promote financial stability and inclusion, critics point out that the Federal Reserve would acquire vast new powers to potentially implement a comprehensive government social credit system. In theory, CBDC could be programmed to be used for only designated purposes, on specific items or at particular merchants. To stimulate the economy, CBDC could be programmed to expire in a certain limited time or deposited directly into certain individual’s bank accounts. These concerns about the risks posed by CBDC have been foreshadowed by the actions of American banks and payment processors to refuse to serve certain individuals, non-profit organizations, or merchants. Actions by foreign governments illustrate the potential danger of comprehensive government control over personal financial transactions. China has banned cryptocurrencies and developed its own CBDC, which will enable the Chinese government to monitor and control personal transactions and behavior. In Canada, the government froze the bank accounts and cryptocurrency wallets of anti-vaccine mandate protestors and those who had made donations to support them. 

If the U.S. were to adopt a CBDC, how can the privacy and financial freedom of Americans be protected? Furthermore, how can the U.S. avoid some of the troubling trends seen in other countries and the troubling potential expansion of administrative power as it weighs the issue ofCBDCs?

Featuring:

  • Hon. Randal Quarles, Chairman & Co-Founder, The Cynosure Group; Former Vice Chair, Federal Reserve; Former Chair, Financial Stability Board
  • Prof. Steven L. Schwarcz, Stanley A. Star Distinguished Professor of Law & Business, Duke University Law School
  • Prof. Todd Zywicki, George Mason University Foundation Professor of Law, George Mason University Antonin Scalia School of Law; Former Chair, Consumer Financial Protection Bureau Taskforce on Federal Consumer Financial Law
  • Moderator: Hon. Joan Larsen, U.S. Court of Appeals, Sixth Circuit

Speakers

12:00 p.m. - 2:15 p.m.
The Largest Ever Federal Infusion of Broadband Funding: Necessary Investment or Waste of Taxpayer Money?

2022 National Lawyers Convention

Topics: Telecommunications & Electronic Media
District Room (Lower Level)
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006

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Description

While many Americans take broadband access for granted, in certain predominantly rural areas broadband access remains limited. In addition to private funding, federal and state efforts have spent billions of dollars to address this problem over the years with varying degrees of effectiveness, and there are billions in funding currently flowing out for more broadband projects as a result of pandemic-era funding bills. Most recently, the Infrastructure bill has provided another $42 billion in funding on top of the existing efforts—but will this close the gap once and for all or will we look back at this as a case of opportunity (and funds) lost? Should the country prioritize speed and low cost or taking the time to get every American connected to fiber? With a range of important viewpoints represented, this panel will discuss the largest federal effort to promote broadband connectivity.

Featuring:

  • Ms. Shirley Bloomfield, Chief Executive Officer, NTCA–The Rural Broadband Association
  • Mr. Veneeth Iyengar, Louisiana State Executive Director for Broadband Development and Connectivity, ConnectLA; Chairman of the Board, Innovation Catalyst
  • Hon. Michael O’Rielly, President, MPORielly Consulting Inc.; Former Commissioner, Federal Communications Commission
  • Moderator: Hon. Jeffrey S. Sutton, Chief Judge, U.S. Court of Appeals, Sixth Circuit

Speakers

2:00 p.m. - 2:45 p.m.
Book Signings

2022 National Lawyers Convention

Mezzanine
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006

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An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know

  • Prof. Randy E. Barnett, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center
  • Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston

Classified: The Untold Story of Racial Classification in America

  • Prof. David E. Bernstein, University Professor and Executive Director, Liberty & Law Center, Antonin Scalia Law School, George Mason University

Speakers

2:15 p.m. - 2:45 p.m.
Networking Break
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20006