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Twelfth Annual Executive Branch Review Conference — EBRXII

The Constitution and Regulatory Overreach

April 16, 2024
The Mayflower Hotel
1127 Connecticut Avenue
Washington, DC 20036

Twelfth Annual Executive Branch Review Conference — EBRXII
Theme: The Constitution and Regulatory Overreach

Tuesday, April 16, 2024
The Mayflower Hotel
1127 Connecticut Avenue, NW, Washington, DC

Online registration is now closed.
Onsite registration will be available.

Lunch Address featuring Speaker Mike Johnson

Speaker Mike Johnson
56th Speaker of the U.S. House of Representatives

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 Opening Address featuring the Honorable Paul J. Ray

Hon. Paul J. Ray
Director, Thomas A. Roe Institute for Economic Policy Studies, The Heritage Foundation

CLE Info


Schedule:

Welcome: Opening Address & Plenary Session
9:00 a.m. – 10:30 a.m. 

Breakout Panels
10:40 a.m. – 12:00 p.m.

Lunch Address with Speaker Mike Johnson
12:00 p.m. – 12:15 p.m.

Lunch
12:15 p.m. – 12:45 p.m.

Luncheon Panel
12:45 p.m. – 2:30 p.m.

Breakout Panels
2:45 p.m. – 4:30 p.m.

Closing Reception
4:30 p.m. – 6:00 p.m.

Panels:

  • Is the Whole of Government Greater Than the Sum of its Parts?
  • Environmental Law and the Constitution: Exceeding the Limits?
  • Law and Order on the Border?
  • Is Humphrey’s Executor still relevant?
  • Testing the Tension: How Do Nondiscrimination Regulations Interact with Religious Freedom?
  • U.S. Financial Regulation: Principles, Opportunities, and Challenges

Speakers:

  • Hon. Paul Atkins
  • Ms. Julie Blake
  • Mr. Braden Boucek
  • Hon. Mark Brnovich
  • Mr. Anthony Campau
  • Dr. Sohan Dasgupta
  • Mr. Jeffrey Dinwoodie
  • Mr. Eric Grant
  • Prof. Gail Heriot
  • Hon. Robert Jackson
  • Mr. Matthew Kuhn
  • Prof. Martin S. Lederman
  • Prof. Jennifer Mascott
  • Hon. Timothy Massad
  • Mr. Michael McGinley
  • Prof. Andrew Mergen
  • Mr. David S. Mitchell
  • Ms. Andrea Picotti-Bayer
  • Prof. Jed Shugerman
  • Mr. Brett Shumate
  • Hon. Jonathan Skrmetti
  • Ms. Elizabeth Slattery
  • Ms. Corinne Snow
  • Prof. Ilya Somin
  • Hon. Jill Sommers
  • Hon. Stephen Vaden
  • Hon. Beth A. Williams

And More to Come!

Cost:

  • Conference (with no CLE) - $50 ($25 for Members)
  • Conference with CLE - $100 ($50 for Members)
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9:00 a.m. - 10:30 a.m.
Welcome: Opening Address & Is the Whole of Government Greater Than the Sum of its Parts?

EBRXII

Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue
Washington, DC 20036

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Event Video

Description

During its first hours, the Biden Administration promised a Whole of Government approach to implementing its policies. Ever since, the administration has delivered, with every federal agency using all the tools at their disposal. Through “Interpretations,” “Dear Colleague” letters, guidance documents, employee manuals, litigation, notices of proposed rulemaking, controversial new criteria for cost/benefit analyses, and more, agencies are implementing the administration’s goals regarding “climate change,” “equity,” and other of its priorities. This panel will discuss the many methods the current administration is using to achieve its policy objectives and, where relevant, how they are faring against challenges to their legitimacy.

Featuring:

  • Braden H. Boucek, Vice President of Litigation, Southeastern Legal Foundation
  • Anthony Campau, Principal, Clark Hill Public Strategies
  • Hon. Gail Heriot, Professor of Law, University of San Diego School of Law
  • David S. Mitchell, Senior Fellow, Washington Center for Equitable Growth
  • Moderator: Hon. Jonathan Skrmetti, Attorney General of Tennessee

Speakers

Event Transcript

Nate Kaczmarek:  Good morning. Good morning and welcome to the Twelfth Annual Executive Branch Review Conference. My name is Nate Kaczmarek, and I am Vice President and Director of the Practice Groups for The Federalist Society. On behalf of my colleagues and the practice group leadership, we are thrilled to once more be gathered at the Mayflower to discuss the current state of the Executive Branch and the administrative state. I also want to welcome our audience joining us via the livestream. We appreciate your viewership and look forward to your feedback. One quick logistical item, if you are seeking CLE for your attendance today, please be sure to check in and check out using the QR code on the back of your program.

 

This year’s conference theme is the Constitution and Regulatory Overreach. If you ask some on Capitol Hill about our topic, they will tell you that we live in a target rich environment and that the current administration is “burying Americans in red tape.” Supporters of the administration, however, praise the efforts to expand regulatory protections and enforcement and modernize the regulatory review process. That is all the table setting I will be doing this morning. Our practice group executive committees have been hard at work to put together a full day of debate and discussion on these matters, so much so that every moment from now until 6:00 tonight is spoken for.

 

So I will quickly turn to the task of introducing our excellent first speaker for this morning’s opening address, the Honorable Paul Ray. I’ve known Paul for years, and together we’ve discovered a shared interest in good books. Often, when we get together, one of us will bring to the other a new book we have recently finished for the other to enjoy. We’ve agreed that we both like much of the exceptional writing of the novelist Mark Helprin, and in thinking about introducing Paul today, I was reminded of a famous quote that a New York Times critic once wrote when reviewing one of Mark Helprin’s books. That critic stated on the front page of The New York Times “I find myself nervous to a degree I don’t recall in my past as a reviewer about failing the work and inadequately displaying its brilliance.” I feel much the same about introducing Paul.

 

Paul is the director of the Thomas A. Roe Institute for Economic Policy Studies at the Heritage Foundation. He previously served in government as the administrator of the Office of Information and Regulatory Affairs or OIRA. Before that, he served as counselor to the U.S. Secretary of Labor. He clerked for Judge Debra Ann Livingston of the United States Court of Appeals for the Second Circuit and for Justice Alito on the Supreme Court. His law degree is from Harvard, and his undergrad was at Hillsdale. Go Chargers.

 

He is a deep thinker, a constitutional scholar, but unusual in this town is that his considerable intelligence is only outpaced by his genuine warmth and kindness. He is a great friend, and I think I can say without hesitation that for all his accolades and titles his favorite roles are more recent: those of husband and father. Please join me in welcoming Paul Ray. Let me get out of the way.

 

Hon. Paul Ray:  Nate, thank you very much. It’s a beautifully generous introduction. It’s a real pleasure to be here. Even if it weren’t such a pleasure to be here, it’d be totally worth it just to share a platform with you. So thank you so much. It’s very generous of you.

 

It’s a great honor to be here to offer a few thoughts on today’s topic, which as Nate said is “The Constitution and Regulatory Overreach.” I’ve titled this short talk “Beyond the Parchment Barriers.” This famous phrase, as many of you know, comes from Federalist 48. And I want to quote the passage that is its home in full. “Will it be sufficient to mark with precision the boundaries of these departments in the constitution of the government and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American Constitutions, but experience assures us that the efficacy of the provision has been overrated and that some more adequate defense is indispensably necessary.”

 

I begin with this passage because in the Supreme Court term especially we are concerned with marking the boundaries of power with precision, though it is the boundaries of the agencies rather than of the three branches named in the Constitution that we are concerned with marking. SEC v. Jarkesy considers the necessity for articulating boundaries to agency authority, and of course Loper Bright Enterprises v. Raimondo presents the question of how to resolve ambiguity at the boundaries. Both cases have aroused great interest in the administrative law community, and rightly so. For one of the gravest problems with today’s administrative system is that agency authorities are open ended and vague. Sound decisions in Jarkesy and Loper Bright would result in clearer limits around agency authorities, and that would be a tremendously positive step in the right direction.

 

But at the same time, we mustn’t overlook matters in this point in Federalist 48. There’s a danger that in this term of all terms we’ll focus too closely on marking with precision the boundaries of agency authority and forget about the structural protections that can make those boundaries more adequate, to quote Madison. We learned about these protections beginning in Federalist 51. They have to do with both motives and means. The Framers sought to give officials in each branch of government the motives to act in the way they’re supposed to act and the means to check each other. We might say the first defense was meant to prevent officials from pressing to hard against the parchment barriers, the second to ensure that officials effectively man the barriers against each other.

 

This morning, I’d like to sketch a few ways the administrative state fails to provide the motives and means the Founders believed vital to make parchment barriers effective. These failures mean that even if Congress could be made to draw relatively precise boundaries around agency powers and even if the courts could be made to give effect to them, we’d still have good reason to worry about the administrative state. First, let’s reflect on the ways the Founders gave lawmakers the right motives to play their constitutional role.

 

Pride of place, of course, must go to elections, which motivate congressmen to vindicate the views and interests of their constituents. Madison famously observed that the sweeping extent and diversity of the young republic would bring a vast array of opinions and interests into the legislature. This diverse representation means that particular factions cannot easily ram through legislation to their exclusive advantage. It also means that legislative proposals are subject to criticism from the perspective of every interest and opinion.

 

The result is a legislation that takes many concerns into consideration and makes intelligent tradeoffs among them. As the Supreme Court has explained, no legislation pursues its purposes at all costs. It’s not enough to conclude that a bill would advance some objective or another. For enactment, it must do so at no greater cost to other objectives than legislators interested in those objectives are willing to pay. Indeed, as the Court has put it, deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice.

 

The Founders, of course, did not rely just on elections to give lawmakers the right motives. They also sought to create a “communion of interests and sympathy of sentiments” between Congress and the people as Federalist 57 puts it. They did so by drawing representatives from the people and returning them to private life at short intervals, at least in the House. Madison explained further in Federalist 57 that members of Congress “can make no law which will not have its full operation on themselves and their friends as well as in the great mass of the society,” a connection which he says has always been deemed one of the strongest bonds by which policy can connect the rulers and the people together.

 

“If the people,” and again Madison’s words, “shall ever be so far debased just to tolerate a law not obligatory on the legislature as well as on the people, the people will be prepared to tolerate anything but liberty.” One of the main guarantors of the communion of interests and sympathy of sentiments between Congress and the people is the separation of powers. For as Montesquieu explains “Where the powers are united, the same body of magistrates will be possessed as executors of the laws of the whole power they have given themselves and the quality of legislators.” The ability to enhance their own power through legislation would mean that members of Congress would experience legislation in a very different way from the people. For a statute that severely diminishes an average citizen’s ability to carry out his plans might dramatically enhance a member of Congress’s ability to carry out his legislative agenda. And this difference in perspective would disrupt the union of interests and sentiments the Founders wished to create.

 

Now, let’s think for a minute about the motives that the administrative state’s architecture is likely to give regulators. The first thing we notice, of course, is that regulators are unelected. They lack what both the Federalist and Common Sense tell us is the main vehicle for aligning the government’s motives with those of the governed. Further, unlike Congress, agencies are specialized. Often, their specialization appears in their names. It’s no mystery what the Environmental Protection Agency protects or the Federal Energy Regulatory Commission regulates. We need only read James Landis’s The Administrative Process to realize how large a role specialization played in the New Dealers’ hopes that agencies would be both effective and insulated from politics.

 

Specialization is driven not just by statutory mandate but by agency staffing practices. Agency staff, especially high ranking staff, usual join agencies whose mission they believe is important. Agencies are thus filled with employees whose own interests push them toward the very specialization that their statutes demand.

 

Now, agencies specialize by focusing on some concerns to the exclusion of others. EPA, for instance, specializes in fighting pollution precisely by not worrying too much about national defense, the stock market, etc. We should therefore not be surprised when we find that agencies often develop tunnel vision. Michigan v. EPA from several years ago offers us an illuminating if extreme example. The agency there took the position that regulation to control mercury emissions from power plants would be necessary and appropriate even if the harmful collateral consequences vastly outweighed the good that controlling these emissions would achieve.

 

Agencies regularly succumb to similarly if less striking myopia. They are motivated to pursue their own special missions with little thought for other priorities. In this way, agencies’ motives differ from Congress’s whose members’ diverse interests push it towards an all things considered approach. Nor are agencies likely to experience the communion of interests and sympathy of sentiments for which the Founders hoped from Congress.

 

Members of Congress tend to reflect the values of the people who elect them. Not so for agency staff who self-select into their agencies. Nor do agency staff return to the people as the Founders expected members of Congress would. It’s quite common for agency staff to spend their entire carriers in federal service. But most tellingly agencies don’t live under the regulations they issue in the same way the people do. Of course, agency staff are not formally exempt from their own regulations. Someone who works at DOL and also happens to run a business must follow DOL’s wage and hour regulations, for instance.

 

The point is that agency staff are not likely to engage in the activities they regulate just because their line of work is regulating rather than working in a regulated field, nor are the staff who set policy, overwhelmingly resident here in Washington, likely to be a part of the communities that experience their regulations main effects. But agency staff do not just experience regulations differently than the people. The union of legislative and executive power allows agencies to expand their own executive power by using their legislative power.

 

And this means agencies’ interests in a given regulation may be opposite to the people’s, for what an agency experiences as enhancing its power may diminish the people’s and vice versa. Regulatory clarity and stability, for instance, help regulated parties to plan but restrict agencies’ ability to respond to changing needs. All this can give agencies a very different perspective on regulations than the people have.

 

Now, let me be clear. My point is not at all that agency staff have bad motives. To the contrary, during my time in government I formed the highest regard for the public spirit of very many agency employees, both political appointees and career civil servants. I saw men and women of both descriptions seek what they believed was best for the country simply because they believed it best. But public spiritedness isn’t the same as the communion of interests and sympathy of sentiments that the Founders aimed to create. The former, taken by itself, is compatible with a high degree of deviation from the people’s views. Indeed, dedication to the public good can itself be the motive for seeking regulatory power that the regulated public would prefer to withhold.

 

I’d like to turn now to the second of the protections I mentioned earlier, the means by which the founders enabled officials to man the parchment barriers against each other. Let me begin with Federalist 63, which famously explains that the true distinction between the ancient republics and the American regime lies at the total exclusion of the people in their collective capacity from any share in the latter, again, Madison’s words. The need for this exclusion is clear. Because in a popular regime the people are sovereign and hence irresistible, constitutional commitments can succeed only insofar as they’re the commands of the people and not limits upon them. And the only way to keep a constitution from degenerating into the latter is for the people to exclude themselves from active governance.

 

To carry out this exclusionary approach, the people committed in the Constitution to govern only through representatives, but they went further. They also gave each of the three branches of government a democratic mandate so that no official or group of officials may claim to stand in perfectly for the people and thus reintroduce them into governance. Because each official has some claim to speak for the people but none has a total claim, officials can check each other each invoking the people’s own authority to counter the other’s and, in this way, making good on the Constitution’s limits.

 

One goal of the architects of the administrative state was to overcome the Constitution’s system of checks, which they felt thwarted necessary federal action. In his book Constitutional Government, Woodrow Wilson explained that the president, because he can embody and direct the aspirations of the nation, can assemble a weight of public opinion that makes him irresistible and conflicts with other political actors. Wilson thought the president would be able to appeal to the people over the heads of congressional factions and thus bring unity of purpose to federal action.

 

Of course, Congress has its own democratic mandate on which it can draw when resisting presidential pretensions, but the courts are far less able to invoke the popular will. That’s one reason for their “natural feebleness,” to quote Federalist 78. And while conflict between a popular president and the courts has erupted from time to time throughout our nation’s history, the prospect of such conflict should always give us pause since at its worst, it pits the Constitution against the self-proclaimed tribune of the people.

 

Now, the courts have been reviewing agency actions for decades. Pretty often such review goes unremarked by the public. If you want proof, just try talking to your airplane seatmate about recent developments in APA case law. I’ve tried it. What’s new in recent years is the rise of presidential administration, and this has fundamentally changed judicial review of rulemakings in at least two ways.

 

First and most obviously, presidential administration means that courts reviewing administrative action sometimes find themselves facing not just an agency with a modest public profile but the president and his millions of supporters. Second, as the public has become accustomed to aggressive presidential use of agency rulemaking authorities, presidents have encountered growing demands for regulatory action to solve all the day’s most pressing problems. The difficulty is that presidents do not in fact have the powers to play in William Howard Taft’s words “the part of a universal providence” and set all things right.

 

So rather as Congress passes the buck by enacting statutes that foist the ultimate policy decision onto administrative agencies, presidents seek to pass the buck by appearing to act on problems they cannot solve. They can pass the buck to the courts by directing regulations that respond to popular demands very visibly but that are very unlikely to survive judicial review. Their incentives to do this can only increase upon realizing that campaigning against the courts can be electorally rewarding.

 

While I don’t wish to be too controversial, the student loan forgiveness episode appears to be a case in point. The legal basis for that action was very weak, and so the ultimate outcome of the litigation was entirely predictable. The result was that the President received credit from his supporters for addressing an important problem. That a solution didn’t ultimately work was of course the Court’s fault, not his. Within hours of the Court’s decision, he sought to turn it to his electoral advantage and televise remarks in which he identified himself with the, in his words, millions of Americans who felt angry about the Court’s decision.

 

Now, bucks cannot be passed forever. Even those that don’t stop in the Oval Office have to stop somewhere. I fear that more and more often on important national issues the buck will stop with the courts who are far less suited than Congress to bear the brunt of frequent conflicts with the Executive. Sound decisions in Jarkesy and Loper Bright cannot avoid that danger. Indeed, clearer lines around agency authorities may bring the courts into more frequent conflict with the White House.

 

Now, that’s not a good reason for the Court to avoid its duty in these two cases. It is, though, a good reason for all of us not to expect the Court to fix all that’s wrong with the administrative state. The Court is not a universal providence any more than the president is. While we should be pursuing administrative law reform in the courts with vigor, we should also seek more properly political solutions, solutions that bring Congress back onto the field for instance and that make the most of the willingness of states to push back on federal overreach. Reinvigorating these and other checks would revive the healthy tensions on which the Founders relied to make the Constitution’s parchment barriers effective. Thank you. (Applause).

 

Nate Kaczmarek:  Thank you, Paul. I didn’t oversell you. Appreciate your brilliant remarks. You gave us a lot to chew on. As I mentioned, we have a tight schedule, so we want to move quickly to our excellent first panel of the day. And I would ask each of those speakers for the first panel to please join me up here. This plenary session is titled “Is the Whole of Government Greater Than the Sum of Its Parts?” And it was put together by the great chair of our Administrative Law Executive Committee Eileen O’Connor and several other members of the committee. Our thanks to all of them.

 

As you’ve come to expect from our conferences, we have an embarrassment of legal expertise with us here today, and we are pleased that the moderator for this session is the Honorable Jonathan Skrmetti, the Attorney General of Tennessee. His abbreviated bio is as follows. General Skrmetti was appointed to by the Tennessee Supreme Court to serve an eight year term, and he was sworn into office in September of 2022. Prior to his current role, General Skrmetti served in several capacities in the Tennessee government, in private practice, and as a federal prosecutor first at the Civil Rights Division and then as an Assistant U.S. Attorney in Memphis.

 

General Skrmetti’s degrees are from George Washington University, the University of Oxford, and Harvard Law School. He clerked for Steven Colloton on the U.S. Court of Appeals for the Eighth Circuit. Full bios for AG Skrmetti and for all of our speakers today are available to you on our website, fedsoc.org. With that, please welcome a good friend of the Society, General Skrmetti, and our distinguished panel. (Applause).

 

Hon. Jonathan Skrmetti:  Good morning, everybody. It is my privilege to be able to introduce this panel. I’m going to move fast because we have a lot to talk about, and they have a lot to say.

 

I’ll start to my immediate left with Braden Boucek, who is the Vice President for Litigation at the Southeastern Legal Foundation. He previously served as the Vice President of Legal Affairs at the Beacon Center of Tennessee. And in both roles, he was involved in active litigation to promote liberty and check the government. He’s been a litigator since 2001. He was a decorated federal prosecutor in both Nashville and Memphis for almost a decade. He also served as a state prosecutor, and he worked in the Tennessee Attorney General’s Office. If any of you know young lawyers looking for jobs, we’re always hiring. Braden obtained his law degree from Florida State University and his bachelor’s from the University of Richmond.

 

Proceeding further down the line, we have the Honorable Gail Heriot. Professor Heriot serves as a professor of law at San Diego School of Law. Since 2007 she’s also been a member of the United States Commission on Civil Rights. I think anybody who comes to one of these conferences appreciates her enduring commitment to protecting civil rights and promoting the Constitution and its appropriate application by the federal government. She also serves on the board of directors of the National Association of Scholars and the California Association of Scholars. She previously served as the Civil Rights Counsel to the Senate Committee on the Judiciary and worked in private practice.

 

David Mitchell serves as a senior fellow at the Washington Center for Equitable Growth, focusing on tax and regulatory policy. He previously served as Director of Government and External Relations there. And prior to joining Equitable Growth, he was the Associate Director for Policy and Market Solutions at the Aspen Institute Financial Security Program, where he led a team responsible for amplifying research and spurring action to address short- and long-term financial challenges facing low and moderate income Americans. He previously worked as a legislative aide to Senator Sherrod Brown handling healthcare and social security issues and held positions with the Senate Finance Committee, the White House National Economic Council, in private practice with Hogan Lovells, and at OMB as well as Citizens for Tax Justice and the National Association of Community Health Centers. He holds a BA from Tufts, an MPA from Princeton, and his law degree from Georgetown University Law Center.

 

Finally, we have Anthony Campau, who is principal at Clark Hill Public Strategies and an attorney at Clark Hill PLC. He previously served as chief of staff and counselor at the Office of Information and Regulatory Affairs within OMB overseeing the development of most new federal regulations and guidance. He clerked for Judge Naomi Rao on the D.C. Circuit, has served as in-house counsel and assistant secretary of the board of a large university, and served as a regulatory fellow at a major think tank in Washington, D.C. So thank you to each of you for serving on this panel.

 

We are here to discuss the whole of government approach to regulation, and the whole of government approach is as it sounds: focused on using the entire apparatus of the federal executive, or in other countries all of the ministries, to pursue solutions to the same policy area. So you’re looking from every angle of federal regulatory authority and solving certain problems. In the current administration, we see a whole of government approach to unions, to climate change, to sexual orientation and gender identity issues.

 

There are a variety of these whole of government policy priorities. And as you heard Paul discuss, this is a relatively novel approach to the use of the administrative state in the United States. So I’m going to give each speaker approximately eight minutes to talk through your initial reaction to whole of government and highlight salient points. Then, we’re going to have an exchange between the speakers, and then we’ll have some time to open it up to questions. With that, Gail, would you like to kick us off with the --

 

Hon. Gail Heriot:  I thought Braden was going to go first.

 

Hon. Jonathan Skrmetti:  Oh, Braden, go ahead.

 

Braden H. Boucek:  That’s fine. I think I’d rather lead for Professor Heriot than the other way around. I’ll talk about one whole of government approach in particular that I find alarming. That’s the whole of government approach to equity that’s currently the priority for this administration. And the position I’ll take is that the whole of government approach contravenes the central promise of the Declaration of Independence that all men are created equal as well as threatening to undermine important separation of powers principles.

 

Now, the whole of government equity approach is attributable to a day one priority of this administration. On day one this administration declared by Executive Order that the American dream was “out of reach for too many Americans” and that it would pursue an ambitious whole of government equity agenda. And in subsequent Executive Orders the administration makes equally clear about what steps it would take and what goal it intended.

 

It said that it would “continuously embed equity into all aspects of federal decision making,” and it would require agencies to implement a “comprehensive equity strategy” that would yield—and here I underline the phrase—equitable outcomes. And the EOs were then equally clear about precisely what it meant when it was trying to generate equal outcomes. It specifically defined the racial categories and other supposedly persecuted minority groups that it thought the federal government should ensure equitable outcomes for.

 

Now, it might not be totally evident what they meant by the phrase “equity.” Now, maybe this high sounding and vague euphemism is nothing but an aspiration, and maybe it doesn’t mean that they’ll sacrifice equality in the name of achieving so-called equitable outcomes. But when you go a little bit further and see how agencies are implementing this strategy, you will find that overt discrimination is precisely what this administration means when it pursues an overt whole of government approach to equity.

 

Let me give you just one example from an agency I know well because I sue it with regularity, the United States Department of Agriculture. The United States Department of Agriculture pursuant to the equity agenda has instituted what it calls an equity action plan. A lot of the agencies have these equity action plans. And it proclaims in the equity action plan that equity is “more than a catchphrase. It is a promise.” And it stated that it strives to institutionalize this emphasis on equity.

 

Now, many of you are aware of the effort in 2021 of the United States Department of Agriculture to forgive the loans of every farmer in America who it deemed to belong to a category it called “socially disadvantaged.” What many of you may know is that the United States Department of Agriculture itself defined socially disadvantaged farmer to mean express racial categories. And so in other words, the United States Department of Agriculture, entirely based on skin color, was proposing to waive away the loans of every farmer in America who belonged to a certain racial category. Many of you also recall that through an avalanche of preliminary injunctions that were correctly entered, this program was immediately halted hardly before it ever came into effect.

 

Now, rather than continue to allow USDA to defend the indefensible, Congress wisely decided to repeal the program. All of these cases were subsequently deemed moot by any court to consider the question. Now, you would think that if the United States Department of Agriculture is going to be arguing that these definitions are now moot and not capable of repetition, then that would mean it had abandoned the definition of socially disadvantaged altogether. Not so.

 

In fact, the United States Department of Agriculture continues to employ this racially problematic term, smearing it all throughout its regulatory code, in many instances in regulations that it has promulgated since the 2021 loan forgiveness program was halted. USDA continues to maintain these categories of socially disadvantaged, and it does so through a form that it self-administers on the local level that categorizes whether or not farmer belongs to the socially disadvantaged category. And these racial categories are the same categories that as David Bernstein has thoroughly demonstrated are as incoherent as they are contrived. Why are Pakistanis socially disadvantaged but not Afghans? Nobody knows.

 

And right now, the United States Department of Agriculture is continuing to give more disaster relief to farmers to the races that it has deemed to be socially disadvantaged than other farmers for the same amount of loss. Now, as we keep saying in our lawsuit challenging this program at Southeastern Legal, natural disasters don’t discriminate, so why is the United States Department of Agriculture? Even worse, unlike the farm loan forgiveness program, this lacks any kind of congressional authorization altogether. This is entirely something that the United States Department of Agriculture has come up through funding formulas that it is administering internally. So this is things like notices of funding availabilities or proposed rulemakings, all of which do not need to go through the regular legislative process.

 

Now, nothing could better illustrate the dangers of a whole of government approach. It started with one word, “equity,” but it ultimately ends with just another box on a bureaucratic form. In this way, equality has been devoured by the whole of government’s enthusiastic appetite for equitable outcomes. And while the promise of the Declaration of Independence that all men in America are to be treated equally by their own government has always been subjected to stress testing throughout our nation’s history, nevertheless this still marks something new.

 

Never before has the federal government so enthusiastically thrown American values overboard and devoted the full might of the American government to a contrary policy without congressional backing. Now, typically when equality has been tested throughout our nation’s history, it’s the federal government who’s been the good guy. But now, aided by an overeager and unaccountable bureaucratic class, racial classifications are proliferating. And even worse, it’s all too easy to overlook unless you are well acquainted with the minutia of the Code of Federal Registrations, a fate I wish upon no one in this room.

 

Now, the role of the courts as Paul alluded to is certainly to enforce the Constitution’s guarantees, all of them, and that means equality. But the principles of separation of powers cannot be overlooked as well. Perhaps no issue should be considered to be politically significant than the use of a so-called benign racial classification in a government program. It is, after all, discrimination against an American citizen. And so in addition to ruling that such classifications are unconstitutional, courts should find that the use of a racial classification is a major question that requires clear congressional authorization that is lacking in something like a routine outlay for funds for disaster relief.

 

We shouldn’t lose confidence, however. Equality is a remarkably durable idea. It has survived everything from kings, slave-ocrats, eugenicists, Nazis, communists, and segregationists. It is certainly up to the challenge posed by bureaucrats and celebrities hungry for likes. But it will fail if we fail to lose confidence in it, and we should not let our own government undermine it for any reason, certainly not a mere desire for efficiency in government operations. Thank you.

 

Hon. Jonathan Skrmetti:  Thank you, Braden. I will note this might be the one room in the United States where people would appreciate a chance to dive into the CFR for a while. Professor Heriot, would you like to follow?

 

Hon. Gail Heriot:  Okay. It’s going to be hard to say something worthwhile in eight minutes, but let me give it a try here. I’ve been asked to comment on the Biden administration’s so-called whole government approach to equity, which isn’t really a whole government approach at all since it doesn’t include the Judicial and Legislative Branches. It’s a whole Executive Branch approach.

 

Mind you, I don’t think it’s a terrible thing in itself for a president to want the whole Executive Branch to act on his priorities. That sure beats a situation where a duly elected president is being undermined by unelected career civil servants. But here, as Braden has described, the heart of the problem may be that the President’s concept of equity is deeply flawed.

 

This flawed concept of equity isn’t new. Some advocates have long been pushing the notion that any racial, ethnic, or sex disparity is inherently a bad thing and must be remedied with preferential treatment or with abolishing standards. Some advocates have even been pushing the notion that all of our history is about racial, ethnic, and sexual oppression and that it is the government’s duty to fix it right away. What’s new, I think, is that this view has come close to a level of obsession by the government itself. The Executive Branch, in a word, has gone woke.

 

Now, in some cases it seems that the whole government approach is aimed at circumventing the other branches. I think some of the effort in the transgender area fits this category. I think some of the things that Braden has been talking about fit that category.

 

But to me, what is most troubling is that in other cases the courts and Congress, especially the courts and Congress of decades past, have been enablers in this flawed approach to equity. Think, for example, Griggs v. Duke Power Company, which defined liability for discrimination under Title VII to include liability for mere disparate impact. Because virtually everything has disparate impact on some race, sex, national origin, or religious group, Griggs made virtually everything an employer could do presumptively illegal and thereby gave the Executive Branch enormous discretion to go after employers for whatever they wanted. Congress acquiesced in Griggs when it passed the Civil Rights Act of 1991, and then the Supreme Court expanded the concept to include fair housing in Texas Department of Housing and Community Affairs v. the Inclusive Communities Project. I could give you other examples of cooperation from the other branches, but let me go on.

 

It seems to me that the Executive Branch isn’t paying a lot of attention to the Constitution when it implements and expands the programs. The number of federal grant programs that discriminate on the basis of race and that stand very little chance of surviving strict scrutiny, especially in view of the Students for Fair Admissions case -- the number seems to be growing. We’ve got the USDA case mentioned already. Let me mention a couple more: the National Institutes of Health and the National Science Foundation take race into account in their funding decisions in many different ways now.

 

But all of these programs have not yet been challenged in part because there aren’t that many people or entities withstanding that are willing to sue. When something does get challenged, other programs that also discriminate on the count of race seem to pop up in their place. One way you can tell how serious the Biden administration is about its equity program is Executive Order 12985, which is titled in full Advancing Racial Equity and Support for Underserved Communities Through the Federal Government. So important it was to the Biden administration that it was ready to go on Inauguration Day, and the President signed it then.

 

Among other things, it revoked the Trump administration’s Executive Order that prohibited training programs for federal employees and employees of federal contractors that teach -- and I’m going to have to read here from what the Trump Executive Order said. They wanted to prohibit training to the effect “1), that an individual by virtue of his or her sex is inherently racists or sexists whether consciously or unconsciously, or 2) that an individual’s moral character is necessarily determined by his or her race or sex, or 3) that an individual bears responsibility for actions committed in the past by other members of the same race or sex, or 4) traits such as hard work ethic are racists or sexist or were created to oppress a particular race.”

 

Now, those are the things the Trump administration didn’t want taught to federal employees, and golly, I think most people would agree with the Trump administration on that. I don’t think that’s that controversial. But that’s what was repelled on day one of the Biden administration.

 

I could understand repelling it if the Biden administration had replaced it with something, with a policy that they thought would work better for that purpose. But that’s not what happened. They just revoked it, and the thinking was that this kind of training was fine and dandy. Executive Order 13985 further states—and again, I’m going to have to more or less quote here—“It is the policy of my administration that the federal government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically adversely affected by persistent inequality. Affirmatively advancing equity, racial justice, and equal opportunity is the responsibility of the whole of our government”—there’s that term—“because advancing equity requires a systematic approach to embedding fairness in decision-making processes. Executive agencies must recognize and work to address these inequities.”

 

Now, if I had just arrived from the planet Neptune armed only with a dictionary of American English, I’m pretty sure all that would’ve sounded good to me. Yeah? Yeah. I wouldn’t have known that in progressive circles equity has come to mean equal outcomes for groups based on race, sex, national origin achieved by preferential treatment or by abolishing standards altogether. Nor would I have grasped that the term “embed,” which gets used over and over again these days, was important here.

 

But I think in the context of Executive Order 13985, and later Executive Orders that made that Order’s institutional framework and reporting requirements permanent, it means that every single Executive department or agency, large or small, must have rules, practices, and most importantly institutions, committees, that are in there good, embedded the way a nail gets embedded in your tire. And they must have equity teams led by a senior official that must produce annual equity action plans that are to generate more and more ways to advance this agenda. Budget requests must then be made to fund these plans. The senior official must be held accountable for implementing the plans.

 

I fear that all of this is going to be difficult to fix. The federal bureaucracy is unlikely to just snap out of this ideology. All the public interest lawsuits and Supreme Court decisions in the world are not going to be enough to solve it if it’s embedded in the bureaucracy. Instead, it’s going to require a lot of really meticulous work from within the Executive Branch.

 

Bear in mind that not everything that’s produced in these equity plans is going to be bad. Some of it will be fine, but a lot of it is going to be focused on these notions of equalizing outcomes, even if that requires preferential treatment based on race, ethnicity, or sex or what is sometimes even worse, abolishing standards. Republican administrations tend not to be good at dealing with issues of race, ethnicity, and sex. For one thing, they tend not to have the number of people with expertise in that area of the law that they need, and in part because they don’t have the number of people with that level of expertise, they tend to be very timid when it comes to ensuring true equal protection of the laws.

 

When some low level functionary within the department of such and such tells them, well, we’re required to do this by law, the Republican appointees back off because they don’t have that much expertise themselves. There just aren’t enough of them for that. A lot of what needs to be done is going to be very unglamorous work. Someone needs to examine the equity action plans and the budget requests being made for them and for that matter the whole budget needs to be searched line by line figuring out when the money is going to programs that consider race and sex and why, whether that in the context of the particular program constitutes discrimination, what incentives are being created by those programs, and are those incentives something that can be upheld within the law or not.

 

An example, someone who needs to know the law -- who actually knows the law needs to understand exactly how the National Institutes for Health and the National Science Foundation consider race, national origin, and sex in deciding who gets funded and who doesn’t. They need to figure out if it is the problem that some people think it is, and if so, how to stop it. This is going to require both legal expertise and expertise about the culture of the particular agencies that we’re talking about. Most of all, it's going to require political will, which is something that is in short supply. And I’m going to stop there because I suspect I’ve gone over my eight minutes. But oops, sorry.

 

Hon. Jonathan Skrmetti:  Thank you, professor. And next up, David, do you want to address the mechanism for embedding some of these policy priorities?

 

David S. Mitchell:  Yeah. Sure. Appreciate that and thanks very much for having me. This should be fun. I come at these questions from a little bit of a different perspective. Equity is embedded in my organization’s name, so I think you can kind of tell that we sit at a little bit of a different place. The Washington Center for Equitable Growth, which is an economics think tank, not a legal entity -- and we are a nonprofit researching groundbreaking organization dedicated to advancing evidence-backed ideas and policies that promote strong, stable, and broad-based economic growth.

 

And as the Attorney General mentioned, I think I’ll probably narrowly focus a little bit on how equity is playing a role in what’s known as the Circular A-4, which is a cost-benefit analysis guidelines that are given to agencies about how to do some of the work. But I’ll also comment just briefly on at least from the economics point of view why equity does matter, why it is important in my view, and why we’re all better off for prioritizing it among the many other policy preferences that we all have at that the President and his administration seems to me justified in pursuing. I should say I’m not speaking for this or any administration, but I do feel like a defense of that agenda is probably called for, just to make for maybe some interesting conversation here.

 

So on the first point of equity being a useful, I think, goal for policymakers to consider is the idea that economic growth and -- there’s long been a thought within economics that there’s this inherent tradeoff between efficiency and equity. And I think we’ve run an experiment over the last two or three decades around this where we have prioritized whether it’s in the fiscal policy space, kind of a trickle down approach of let’s get the incentives right. Let’s make sure that high income folks, investors are able to get tax cuts or use money in order to invest. And then we’re hoping that it’s going to trickle down to everybody else. Let’s not prioritize equity. Let’s prioritize efficiency.

 

And in the regulatory space as well we’ve had an obsession with efficiency, with what’s known as Kaldor-Hicks or potential Pareto efficiency where let’s not worry about who’s getting the benefits or who’s paying the costs. Let’s focus on maximizing output, maximizing the social surplus and then worry about how the pie is divided up down the road. And I think, unfortunately, that that approach has led not just to exploding inequality. We see it not just on race or income or wealth but also between urban, coastal areas and rural heartland areas, between small business and big business, between young and old. So we’ve seen an explosion in inequality, but we’ve also I think more counterintuitively have seen a slowing of economic growth. The last few decades growth has actually been slower than it was in the middle of the Twentieth Century when tax rates were much higher, minimum wage was much higher, union strength was much higher.

 

So I just would like to push back a little bit on this idea that equity is somehow at odds with broad prosperity and a flourishing economy. Yeah. So I think that’s the larger equity question, again, speaking not on moral terms or legal terms or political terms but really narrowly on the economics. And on the regulatory approach as I mentioned, I think in regulations there has been often an obsession with efficiency, with maximizing net benefits but not paying attention to who is paying the costs and who is getting the benefits, or at least not an explicit reference to that.

 

It’s actually been mentioned in all of the executive orders that govern the regulatory review process that policymakers should consider distribution, should consider equity for many years, going back to the 1990s. Republican and Democratic presidents have affirmed that, but agencies actually just haven’t really been doing it. It’s technically difficult, and it’s also goes against this obsession with Kaldor-Hicks efficiency.

 

And so I think a lot of folks on the left were probably pushing this administration to just jettison cost-benefit analysis entirely. And to their credit, I think really the headline for what the administration has done on regulatory review is they’ve reaffirmed the Reagan approach from the 80s that basically sets up a centralized review process, tries to coordinate government. I don’t think maybe they had the words “whole of government approach” back when Reagan set up this review process, but I don’t see anything nefarious about what he and other presidents have done in trying to coordinate Executive Branch action around regulatory review.

 

And so Biden has revised the Circular A-4, which like I say is this guidance document that helps agencies better understand how they should be doing cost-benefit analysis. Equity is definitely part -- I think it’s maybe five to six pages on distributional impact in a 90 something page document that is very technical about all the different ways that agencies should be thinking about how to do their work. On the exact way that Biden has gone about trying to emphasis equity, I’m happy to get into the details at some point, but the main thrust is that, going back to my earlier point, I think if you really want to maximize net benefits, you have to understand who exactly is gaining and who is paying the costs.

 

Let’s see. Is there anything else? The other, I think, important thing about the emphasis on equity in the Circular A-4 is that it really brings to light, I think, probably decisions that were already being influenced by distributional analysis. So I don’t think any of us are so naïve to think that political actors within the Executive Branch were not thinking about who wins and who loses when they were issuing regulations. It’s the essence of politics. But now, if the agencies follow some of the new guidelines, they will be more transparent, and there’ll be more accountability around exactly what agencies are considering when they’re making these decisions, which I think is something we should all be able to agree on. So I’ll pause there and look forward to questions and discussion and appreciate the attention.

 

Hon. Jonathan Skrmetti:  Thank you. And Anthony, did you want to talk a little bit more about the contrast between the mechanisms of regulation and the policies and which matter more?

 

Anthony Campau:  Yes. Thank you very much, General Skrmetti, and to the group here. This is a great discussion. I think that taking a crosscutting approach to managing administering the Executive Branch to me is not necessarily problematic. In fact, I think that there’s a pretty good case to be made that we want a vigorous Executive.

 

Obviously, Article II Section 1 vests the executive power in the president, not in cabinet secretaries, not in career staff. It’s in the president. The president should provide direction and guidance for the agencies that serve under the president’s power, that work under the president’s power given to them and the statutory programs obviously created by Congress but managed by the president at the top.

 

So I think that that is overall we want the administration to be -- we want -- I guess having a crosscutting approach to administration management is not necessarily a problem. I think it is on the policy side, the extent to which we are sort of making law through the Executive Branch instead of setting out having a particular approach to administering the Executive Branch. So as Gail said, I think, first of all, I’m going to say that the whole of government is a bit of a misnomer. We have a very sophisticated system of government where we are balancing federal government with state government. We have -- state governments obviously play a very important role, and then within the federal government we have Executive, Legislative, and Judicial. So we really are indeed talking about whole of the Executive Branch, not whole of the government.

 

And even within the Executive Branch, largely today the independent agencies are off sort of doing their own thing and not reporting in directly to the president. So it’s not even really whole of the Executive Branch if you think of the independent agencies as being part of the Executive Branch and operating under that power. So it’s a whole of a subset of the Executive Branch.

 

But within the Executive Branch, we want the president’s direction. We want coordination and direction, I think. But it really should be at the margins. It shouldn’t be lawmaking. And to a significant extent, this problem I think exists because we have had so many open ended grants of rulemaking authority to the agencies. There’s a lot of flexibility, and then after that obviously I think our deference doctrines in the Court have allowed agencies a lot of run room to go and make law to a significant degree. And so in that framework, I think that hopefully what happens I think in Relentless and Loper Bright will help to address some of this in the near term, in the nearer term.

 

The president cannot really make law, but having the correct approach to administration I think is important. We had, of course, crosscutting mechanisms for administering the Executive Branch -- policy making in the Executive Branch. We had Executive Order 13771 that set out a regulatory budget, Executive Order 13777 that created regulatory form task forces, which were charged with carrying out the regulatory budget as well as direction from Presidents Clinton and Obama on previous Executive Orders. We set up task forces.

 

There are also a lot of other kind of crosscutting approaches to again on the policy management and administration side. Some of them are in statutes. Some of them are in Executive Order. We have the Regulatory Flexibility Act, the Unfunded Mandates or FORM Act, the Congressional Review Act. We had Executive Orders on guidance, so a lot of kind of crosscutting management programs of the Executive Branch. And I think that’s appropriate. That’s what we want.

 

I think we don’t want the president, though, to sort of use that position to really be making the law. So then to just kind of talk briefly about how I think -- just to talk within the Executive Branch the policymaking process, there are two key parts of how I think there has long been a whole of government approach if you will. One is on the policymaking process. Generally, you have an interagency group, folks from all the different agencies, from all the different White House components gathered together to discuss policy ideas and directions and to figure out where at the margins in particular rulemakings they can drive those policy outcomes. So that has been around for a very long time.

 

And then on the back end, you have similar interagency processes around specific rules that gather all the wisdom and interests of the Executive Branch to share perspective and figure out how to guide a particular rulemaking to an outcome that is rationally integrated across the government. So again, I think that these kind of -- I think of it more as crosscutting rather than whole of government coordination, integration, but it really is a focus on how you administer the programs, not necessarily on driving kind of the sort of legal change. I think the more that it is about administration I think the better. The more it is sort of quasi-lawmaking I think is where it gets a little bit tougher.

 

So David just talked about OMB Circular A-4. That has been around for a very long time. I thought the old version was great. It was about having a consistent approach to economic analysis that cut across rulemakings and across the years and the decades. The new approach basically takes a lot of -- in my view, it takes a lot of policy judgments that have always been appropriate to consider, and it puts it into the underlying analysis, which I find to be very troubling because to me the idea of the analysis is to have one kind of rail that runs throughout the decades that you can look and you can evaluate policy choices against that rail.

 

And there were plenty of things that I don’t like about it. There are things that David didn’t like about it, but as he mentioned, there was always a part that was focused on distributional effects. So every administration could have looked at that, did look at that to various extents. But once you start to weight those considerations and you put them in the analysis, it kind of -- I think it actually flows a little bit from in my view a misunderstanding of the role of analysis.

 

The analysis was never meant to determine the outcome of a rulemaking on its own. It was to provide sort of a reference point. It was to provide an input into the policymaking process, and I think there’s been a little bit of an idea that it controls the outcomes, and it really has not for a very long time. If it did, we would have I think a lot fewer rules and a lot less onerous regulatory state, but it has been an input into the decision making process.

 

So I think that anyway what happened with OMB Circular A-4 and with Executive Order that occasioned the rewrite of A-4 recently I think that there is a real effort to kind of drive policy outcomes that are more quasi lawmaking, that really focuses on the lawmaking side -- the quasi lawmaking side of the agencies. And that’s where I think it gets a lot tougher. But just administering in a crosscutting way the Executive Branch under the direction of the president, to me that is not in itself problematic.

 

Hon. Jonathan Skrmetti:  Thank you, Anthony. So one thing that comes to mind is the difference between the more traditional procedural oriented whole of government approach that you just talked about in terms of regulatory budget, in terms of the use of guidance documents, things that do apply across agencies that are a relatively light touch. It’s just telling people hey, here are the mechanisms that you’re going to focus on; here’s how you’re going to use them. And I think the embedded equity idea to the extent that you’re incorporating that into calculations of regulatory costs and just providing distributional information for the purpose of policymakers to evaluate the decisions in front of them seems like a lighter touch than what we’re seeing now, which is relatively aggressive policymaking sometimes contravening what Congress has said or at least going far beyond the interstitial regulatory approach and seeing a robust policymaking in the Executive Branch.

 

But one of the concerns I have is the agencies are not freestanding agencies to assert the president’s will. Even if you accept that there’s a unitary Executive, the structure of the Executive Branch is established via legislation. Congress is creating these agencies where the president executes certain parts of the law through these agencies.

 

Do we have to worry about competence being impacted because the agencies are suddenly having to focus on significant policy questions that may at best tangentially touch upon what they’re supposed to be looking at? And do we have to worry about almost a commissar oriented approach to government where because you’re talking about finite resources and a government that at best can sometimes get things right -- and that’s nonpartisan. Being part of the government, I can confess that we do our best and often either miss the mark or do execute as well as we should no matter how hard people are trying.

 

So if you’re trying to do a hard job already and then you have to start looking at significant other pieces of law that are outside the scope of what you ordinarily worry about, is that going to give us worse government in the long run as the Executive Branch leadership focuses on more whole of government approaches? Gail, do you have a -- Professor Heriot?

 

Hon. Gail Heriot:  Yeah. In a word, yeah, I think it will. But I think maybe it’s like the things that are likely to be adopted with a whole of government approach these days are often things that are almost quasi-religious. You can imagine, well, first of all the equity case, but I can imagine another whole of government approach being climate change.

 

What is the post office going to do about climate change? What is this department, that department, and the next department going to do about this? And it does. It’s going to -- it’s like a windup toy. You’ve got the windup toy that’s supposed to be like deliver the mail, deliver the mail, deliver the mail, and now suddenly they’ve got to do a 180 degree turn and be involved in climate change or equity or something. And I think it’s just part of the way the times are that what is likely to be adopted with a whole of government approach is going to be those things that are highly controversial and that maybe just maybe a segment of society has become obsessed with an idea that’s going to turn out not to be such a great idea.

 

And I think we’re seeing that already with the transgender issue where Europe is already turning away from it, and we’re still marching full speed ahead in part because we embedded it in the law. Whereas other countries might not be quite so quick to make it a legal matter. As Tocqueville observed, we make everything a legal matter. And therefore, it’s hard to get things back on track once there’s been a problem.

 

Hon. Jonathan Skrmetti:  David, would you like to follow up?

 

David S. Mitchell:  I was just going to point out I think if I heard our keynote speaker earlier correctly, Mr. Ray, he was kind of professing a concern about the opposite: that these agencies are so specialized that they’re going to miss the forest from the trees. They’re going to be so focused on delivering the mail they’re not going to realize that -- and this is one of the reasons I guess Congress is better suited to do this work because they have to bargain over the big picture.

 

So I guess I could see it being framed in the opposite way as well, which is that, yeah, to the extent that climate change is an existential threat, which maybe not everybody here agrees, but I think -- and to the extent that equity has been a longstanding challenge and that there has been racial discrimination in our country and that these are major priorities that the President ran on and won on -- these weren’t things that he has been hiding the ball on. He has clear policy preferences on these areas, and so he’s pursuing an agenda in that way. I don’t think the fact that agencies are being asked to do more than just one thing is necessarily a bad thing, harkening back to the earlier comments about there’s also a tunnel vision problem as well if you don’t allow that holistic thinking.

 

Anthony Campau:  I would just add that most of these Executive Orders conclude with a provision that says to the extent permitted by law, and the extent permitted by law may change dramatically in the near term if some of our friends in this room are successful as we think they may be at the Supreme Court. And so some of the things that we put in an Executive Order that would say here’s how you should manage processes of the government I think the administration function of the president is totally appropriate. But the quasi-lawmaking stuff, when you’re adding considerations that are outside of the normal consideration in a program designed by Congress, those may start to get feedback a little bit more.

 

Hon. Jonathan Skrmetti:  Braden?

 

Braden H. Boucek:  Yeah. I couldn’t agree. To the earlier point, sure, this administration and this presidency campaigned on equity, but show me one instance of the President defining that term and saying by equity what I mean is racial categorization of the following five races and then treating some Americans differently on the basis of race. So there is always this -- if you’re in the academic context or the litigation context, you become accustomed to this slippery use of language. Equity is a high sounding and vague phrase.

 

The example I illustrated the United States Department of Agriculture we start with say equity. Then you’ve got an equity action plan saying it’s a priority, and then you get to the end of the road. And Congress sets aside $25 billion for disaster relief for farmers affected by natural disaster, and it’s just a form on file and a box you check. And that’s not what anybody has campaigned on. I dare say that if anybody did the American people would recoil in horror. And so you do see these whole of government approaches being used to do things that I think the American people are just not aware of. And if they want to generate awareness, the constitutionally hygienic thing to do is to present these questions to the American people through legislation.

 

Hon. Jonathan Skrmetti:  I want to follow up, Braden, because you had touched on the nondelegation issues, but at the same time the president does have discretion in how the law is executed once Congress legitimately delegates that authority. It provides the legal basis for execution. Obviously, Congress can’t delegate plenary lawmaking authority, but how much latitude does an administration have in adjusting the execution of the laws based on their priorities?

 

Braden H. Boucek:  Well, I think at a minimum it can’t contravene the Constitution, and the guarantee of equality is pretty firmly embedded in our nation’s history and our nation’s tradition. So part of the whole of government approach, it isn’t just as I said earlier the rejection of equality, but it is the tension with the separation of powers doctrine. And again, to address the rhetorical slippery language, when we talk about whole of government, the problematic part of it isn’t that we’re trying to make government more efficient or that we don’t want the Executive Branch all rowing in the same direction. Of course we do.

 

The problem is that there’s now an open embrace of aggressive muscular Executive Branch action even when either Congress won’t act and we know that that’s the reason why the Executive Branch is acting or the Supreme Court has said you can’t do this. And the Executive Branch turns around to try to find an exception to doing it anyway. And we see recent examples of that from everything ranging from immigration to student loans. And so that’s the problem with the whole of government approach, not the efficiency in government operations.

 

Hon. Jonathan Skrmetti:  Professor Heriot, you talked a little bit about the difficulty in remedying whole of government run amok via judicial or congressional oversight. Braden just talked about that as well. Do you care to elaborate a little more? I know you had some time to talk about it, but you were a little truncated because of the time.

 

Hon. Gail Heriot:  Yeah. The problem is look at the most recent decision of the Supreme Court, the most recent big decision on race issues, and that is Students for Fair Admissions v. Harvard. You’re dealing with institutions that are as small as a public university, which it’s kind of big, but it’s not like the federal government. And even with that, the first thing that happens is that universities start announcing how they’re working to get around this.

 

Well, we’re going to get the same thing with the federal government. Only, the federal government is bigger than Harvard University, and there are so many more ways in which you can get around what the Court has said. It’s an old story. These Supreme Court decisions on race issues whether we’re talking about Brown v. Board of Education or we’re talking about the SFFA case, there are ways in which government officials try to get around them. And they’re definitely going to do that here.

 

Right now, the federal government is riddled with these race programs, and they can read. The lawyers for each one of these departments and agencies, they can read the decision. In theory, SFFA deals with college admissions, but if you read the case, it’s very clear the Supreme Court has now taken a much stronger line on race preferences. And this is going to apply not just to universities; it’s going to apply to just about everything you can think of. And yet, the world hasn’t changed. The federal government did not say we’re going to get rid of all these programs that we have now, and each one is going to have to be rooted out individually.

 

And when you’re talking about grant programs like those administered by the National Science Foundation, every time a panel decides upon whether or not to give a grant to a particular academic who wants to investigate something to do with chemistry or whatever it happens to be, every time they’re taking into consideration, well, is this group sufficiently racially diverse. How are you going to get to those individualized retail decisions that are being made? It’s going to be hard. It means actually changing the culture of these agencies, not just changing what the Supreme Court says or not just changing what Congress says, not just changing what the regulations say but getting to where a particular panel that is investigating whether or not to make grants to a particular kind of researcher, whether or not they are willing to say, look, we’re not going to look at race.

 

Hon. Jonathan Skrmetti:  David, do you want to comment on the separation of powers concerns?

 

David S. Mitchell:  I have to go back to my Georgetown Law days. I don’t practice law, but I will say that it doesn’t seem to me that the moment that we’re in and the interplay that’s being described between the courts and the Executive Branch and Congress is particularly unique to this moment in time. There’s been -- again, as Mr. Ray was talking about, the branches of government are set up to compete against each other, and that’s one of the major checks on the system.

 

To use the Gail imagery from before about the alien from Neptune coming down, I just don’t see an alien from Neptune coming down and seeing the President’s equity agenda as the threat to the rule of law in this country. It seems like there’s much, much bigger more serious threats to the rule of law in this country at the moment. And yes, courts change law. Executives have to respond. Congress tries to assert itself.

 

All of that seems to me a very natural way that our system works, and I don’t think that the President’s focus on equity, which again is really about removing barriers so that all groups and all people can fully participate in the economy, is what I’m most concerned about. But in the democracy, I think, is another obvious goal -- I don’t see that as a hugely nefarious or real threat to the Constitution that maybe some of my fellow panelists do.

 

Hon. Jonathan Skrmetti:  Anthony, did you want to add anything?

 

Anthony Campau:  Well, on that last point I do kind of always find it interesting that not to pick on David but those who embrace sort of lawmaking through the Executive Branch or through the agencies talk about democracy when actually -- obviously, the president is elected by the people. Members of Congress are supposed to make the law. The democratic lawmaking should happen in Congress, and making quasi-law through the rulemaking process is like the least democratic way to do things. So I would say if you love democracy, push for Congress to make law and push all that lawmaking over there.

 

I think that this is a great -- as David said the moment we’re in. I think the moment we’re in is a great moment for Congress to just really vigorously embrace its role as the lawmaking body. I think this is sort of the core of the issue that gives rise to why we have some of these deference standards is that we have such broad grants of discretion to the agencies. And the agencies are using the authority that they have as they see it to push policy.

 

There are fewer barriers to pushing out policy in the Executive Branch. You don’t have to have hundreds of members sign off. You don’t have bicameralism and presentment. You have a lot easier path to pushing your policy out. And that creates some real challenges. I don’t think that’s really how it’s supposed to be, so we want to push that lawmaking back to Congress. Congress could go and narrow and cabin those grants of discretion, particularize instructions to the agencies instead of leaving open ended grants out there. I think that’s a great thing for them to run with now.

 

Hon. Jonathan Skrmetti:  I think that’s a really important point. The whole of government approach as I understand it originated in parliamentary systems where it really was the whole of government, where the executive authority and the legislative authority are combined. And so it’s entirely plausible for somebody to claim that they’re speaking on behalf of the government as a whole. Here because of our separation of power system, the whole of government is to some extent overstating it, and speaking on behalf of the states, the concern is because Congress is not engaged in lawmaking to the extent that they should be for a variety of very frustrating and complicated and intractable reasons, you see more and more power accreting to the federal Executive Branch.

 

And that doesn’t just undermine the ability of the other branches to serve their appropriate roles in the overall policymaking and policy enforcing agenda. It undermines the states because the bigger the federal government, the more robust the policy pursuits of the federal agencies the less room there is for state decision making and the more preemption we see. So it’s a real concern.

 

We have time now to open it up for some questions. As is traditional at these events, I will say this is for questions. If you have a lengthy commentary, there are other opportunities for you to express those opinions. But we certainly welcome questions for the panelists. Yes, sir.

 

Questioner 1:  My question arises from two things I think that have characterized the theme of this discussion. One is that the whole of government approach has emerged as a way of dealing with gaps or things where Congress hasn’t acted where the president would like to act and two, where the president would like to avoid judicial review. My question is doctrinally what should the courts do to address this? Because we’ve seen things like the major questions doctrine which deal with an individual agency’s power grab, but we haven’t seen something where if it gets cut up into a bunch of different pieces, what one judge called regulatory smurfing, like the way that you hide a large financial crime by dividing it up into little bits -- how should courts approach that? It seems to me a problem that’s very much unsolved by the current doctrine.

 

Hon. Jonathan Skrmetti:  That’s a great question. Anthony, do you --

 

Anthony Campau:  I was going to say if Braden wanted to --

 

Braden H. Boucek:  I thought that was for you guys; right? What’s the question?

 

Hon. Jonathan Skrmetti:  I think the question is how do the courts deal with it when -- there are significant problems with the Court coming in and saying this policy as a whole is bad, so every agency should stop doing it. There are a lot of fights going on in which we’re saying hey courts, your jurisdiction is limited to the parties in front of you. And I love the image of smurfing, which comes from people sending out lots of folks to buy small amounts of meth precursors. Interesting metaphor there.

 

Braden H. Boucek:  You might’ve been a prosecutor on that.

 

Hon. Jonathan Skrmetti:  Possibly. How do we deal with this? Is that part of the reason the courts can’t appropriately respond, and is there some sort of jurisprudential doctrine that would help?

 

Hon. Gail Heriot:  I wish it were easier to deal with guidances in court rather than having to just -- an agency puts out something that purports to be an interpretation of a statute, but really what it is is it’s the law. And it’s very difficult to challenge them in court. And I think it should be easier.

 

Braden H. Boucek: Probably like a lot of people who litigate for a living in my world, I think that the courts standing doctrine I’d love to see some rethinking of that. But until that happens, I agree with Professor Heriot. It’s going to make it very difficult to challenge even things like EOs until they actually matriculate into cases and controversies. There is some real need for it. You’ve seen it on illustration today where there’s back and forth on what the meaning of the term equity is. The EO uses the term equity, but it’s only until you get to the actual practical application of it that you see that it involves overt race discrimination. And that’s the part that’s constitutionally and legally problematic.

 

Hon. Jonathan Skrmetti:  That’s not the most reassuring answer, but I think the question highlights a serious structural problem here. Judge Vaden?

 

Hon. Stephen Vaden:  Yes, I have a question for Braden. Braden, you noted that the United States Department of Agriculture took the actions that you’re currently suing them about after being subject to injunctions across the country for similarly race based distinctions that the Department drew. Of course the difference being that in that case the race based distinctions were actually congressionally authorized. Here in your case they’re not.

 

The Small Business Administration similarly found itself under injunctions. Your question and the timeline of it to me raises questions about future accountability for the officials who have taken these actions. The current administration has set a lot of precedents that will be hard to erase as the professor noted. One of those precedents involves very aggressively going after officials from the prior administration for civil and even criminal sanction for actions that they took in office.

 

I’m curious given how the standards go about qualified immunity and particular how one loses qualified immunity if the law is clear, would you have any advice for the current Secretary of Agriculture and Undersecretary for Farm Programs and Conservation, as well as the civil servants who are administering this program, as to what might be in their future when at some point, either in January or four years hence, the administration changes?

 

Braden H. Boucek:  Right. Well, I’m not in the business of dealing legal advice to people that I don’t represent, so take that for what it’s worth. But I think the point that you raise is a totally valid one. Every court to look at the question socially disadvantaged in the racial categories has determined that they are constitutionally unlawful or likely to be declared to be constitutionally unlawful. And you have an instance where the Secretary of Agriculture then withdraws from that category but then proliferates it in other aspects throughout the code.

 

Is that not a situation where, to borrow from the 1983 analogy, you have an official on actual knowledge that what they’re doing is unlawful, in which case in the 1983 context that would give rise to potential individual liability suits? Judge Vaden posed the question, yeah, there are civil rights laws out there too that are going to contain a mens rea requirement. You can easily imagine that the actual knowledge that these programs are unlawfully discriminatory might generate some kind of -- might make it plausible that there’s a civil rights violation going on that’s actionable by a future administration if they were so inclined.

 

Ultimately, what I would rather see -- and this was sort of alluded to by Paul’s comments. I want to get back to a sense where we have a shared sense of constitutional values. At the time of the Founding, there was a sense that the Constitution wasn’t just going to be written law. It was going to be a value system that all of our elected officials and all of the Americans would openly embrace. And I don’t think that we have that shared sense of constitutional commitment in our culture anymore, particularly from high level officials who are oftentimes just really feel like they have competing imperatives and they want to see if they get away with it. And I think that’s really unfortunate.

 

Hon. Jonathan Skrmetti:  Could the Antideficiency Act also potentially apply?

 

Braden H. Boucek:  I’m not going to comment on the Antideficiency Act.

 

Hon. Jonathan Skrmetti:  Yes, sir.

 

Questioner 3:  Hi. I had a question for all of the panelists kind of bringing it to a lower level, but sometimes we’re debating a level of abstraction. What is equity? We want this policy, that policy, or the Supreme Court opinions.

 

 In terms of what happens really at trial courts and sort of the enforcement mechanism, what do you see the barrier to things like SFFA or cases in other contexts really trickling down into real wins for plaintiffs and real shifts in policy? Because we just heard about whether government officials have criminal liability in the future or civil for violating civil rights, from engaging in discrimination and kind of putting the shoe on the other foot. What is the obstacle? Is it the circuit courts? Is it the trial courts?

 

Is it some other doctrine the Supreme Court hasn’t changed enough, qualified immunity, standing doctrine? So what’s really preventing these things from trickling down and changing society the way that society was changed by the left in the 1960s through the Civil Rights Movement, both litigation, constitutional and statutory changes?

 

Hon. Gail Heriot:  Facts are standing in our way, and that is you have to prove facts in court. And if a university is discriminating in admissions, for example, they’re not stupid. They’re going to come up with a way to hide it. The Supreme Court had the discretion to accept the Thomas Jefferson High School case just a few months ago where the board controlling admissions to Thomas Jefferson made it very explicit that they thought they had too many Asians, so they changed the rules. They didn’t change the rules to say no Asians. They changed the rules in ways that made it so there would be fewer Asians and more of other races.

 

And the Supreme Court didn’t take the case even though I thought it would’ve been a good one for them because there was a Fourth Circuit decision that I think was clearly making errors about what the law is. But if every time cases have to be litigated in front of a court and it has to be proven that the motivation of the university or college or high school in deciding on admissions was to affect the racial composition of the students, that’s going to get very difficult. And there aren’t enough lawyers willing to work on something like this, and the facts are going to be hard to prove. And so it’s going to be difficult. It’s not going to be easy.

 

Questioner 3:  But if the races were flipped, for example, if it was Hispanics instead of Asians or Blacks instead of Asians, do you still think there would be a factual problem for the plaintiffs to win?

 

Braden H. Boucek:  You wouldn’t even need to worry about bringing lawsuits because governmental agencies would enthusiastically jump in before it even got to that point.

 

Hon. Gail Heriot:  Well, that’s what happened with the laws as they developed after Brown v. the Board of Education. The courts were getting nowhere in the 50s on Brown. They were not able to bring individual school districts into compliance with the Brown case. It was not until the federal government with Title VI had the ability then to say, look, we’re going to cut you off, cut your federal funding off if you don’t get in line that you started getting a lot more compliance because it was much easier to deal with that way. And so it takes more than the Judicial Branch.

 

It took the Executive Branch to make that work. And even just to take an example, Lewis Powell, he becomes the hero of the civil rights group after the Bakke case. But when he was on the board of the Richmond School Board, he wasn’t so helpful on implementing Brown. He was not exactly a civil rights hero at that point, and it takes a lot. It took a lot to make Brown work. It’ll take a lot to make the Harvard case work.

 

Questioner 3:  Thank you.

 

Hon. Jonathan Skrmetti:  Thank you. And I apologize. We’re over time. Please join me in thanking the panelists. Thank you for that wonderful commentary.

 

Nate Kaczmarek:  Yes. Thank you very much. We will take an eight minute break. We will have the criminal law breakout panel in this room, and if you’re going to the religious liberty discussion, that’ll be down the hall in Palm Court. Thank you all very much.

 

10:40 a.m. - 12:00 p.m.
Breakout Panel 1 - Testing the Tension: How Do Nondiscrimination Regulations Interact with Religious Freedom?

EBRXII

Palm Court Room
The Mayflower Hotel
1127 Connecticut Avenue
Washington, DC 20036

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Description

This session will discuss the Biden administration’s efforts to expand sex nondiscrimination protections to cover sexual orientation and gender identity rights through agency regulations. Discussion will center around three major proposed (or soon-to-be final) regulations involving education, healthcare, and employment: the Department of Education’s Title IX rule, the Department of Health and Human Services’ Section 1557 rule, and the Equal Employment Opportunity Commission’s harassment guidance. Pro-LGBT groups praised these proposals while many religious organizations and people of faith raised concerns. Do the agencies’ regulations correctly balance SOGI rights with religious freedom and conscience rights? Did the agencies overreach by expanding sex nondiscrimination protections? Can the First Amendment, the Religious Freedom Restoration Act, or other federal laws protecting religious freedom and conscience rights trump the administration’s nondiscrimination regulations? This panel will tackle these important questions.

Featuring: 

  • Julie Blake, Senior Counsel, Alliance Defending Freedom
  • Prof. Martin Lederman, Professor of Practice, Georgetown Law
  • Andrea Picciotti-Bayer, Director, The Conscience Project
  • Moderator: Ms. Elizabeth Slattery, Director of Constitutional Scholarship, Pacific Legal Foundation

Speakers

Event Transcript

Austin Rogers:  Everyone, welcome to this segment of The Federalist Society’s Executive Branch Review. Our panel today is entitled “Testing the Tension: How Do Nondiscrimination Regulations Interact with Religious Freedom?” My name is Austin Rogers. I am the Chief Civil Counsel for the Senate Judiciary Committee. I also serve on the Religious Liberties Practice Group on the Executive Committee here at The Federalist Society. If you have any questions about our practice group and what we do, please feel free to reach out Nate Kaczmarek or myself. But just, in general, the Religious Liberties Practice Group hosts debates, discussions, panels, much like The Federalist Society does writ large, and our topics pertain to religious liberties, First Amendment, religious clauses, etc.

 

      So with that, very excited about our panel today. We will be having discussion about a very important topic. Over the last decade or so, religious liberties and nondiscrimination protections have grown to be in increasing tension with each other, and this has often found expression through cases that you’re all familiar with, including Masterpiece Cakeshop, Fulton v. Philadelphia, 303 Creative. But it’s also grown in tension more recently through executive action, and that includes agency regulations pertaining to SOGIE. I’m not going to get into any of those agency regulations today, but our panel will, and I’ll leave it to them to introduce those and flesh those out.

 

      I will, however, introduce our moderator, who we’re very fortunate to have with us today. So we have with us today Elizabeth Slattery, moderating our panel. She serves as the Director of Constitutional Scholarship at the Pacific Legal Foundation. And there, she leads a team that produces and promotes legal theories among elite legal audiences, which, of course, in my mind, includes you guys, and that is all to prepare the grounds for courts and policymakers to uphold the rule of law. Elizabeth’s scholarship focuses on the separation of powers for she’s an ardent evangelist, and her work has appeared in the Harvard Journal of Law & Public Policy, The Federalist Society Review, Washington Post, The Wall Street Journal, and even, notably, in Justice Neil Gorsuch’s Supreme Court opinion. That’s just to name a few.

 

      Elizabeth has testified before Congress and is a frequent legal commentator in print, radio, and television. In fact, as a Supreme Court superfan, Elizabeth has also created, produced, and hosted two hit podcasts about the Supreme Court, and her newest project, scotusladies.com, chronicles what’s happening at the Court. Elizabeth received her J.D. from George Mason’s Antonin Scalia School of Law, where she learned the art of originalist interpretation, and she got her undergraduate degree from Xavier University, where she learned the art of questioning absolutely everything, and she learned it from the Jesuits. And those are her words, not mine.

 

      So with that, we’ve got an impressive moderator today. We have an impressive panel. Thank you all for being here, and I’ll let Elizabeth take it away. Thanks.

 

Elizabeth Slattery:  Thank you, Austin. So on January 20, 2021, President Biden announced an executive order directing agency heads to review all existing regulations, guidance, documents, and the like to ensure they comply with the Supreme Court’s reasoning in Bostock v. Clayton County. In that case, the Court held that Title VII’s prohibition on sex discrimination in employment extends to discrimination based on sexual orientation and gender identity. The Court acknowledged concerns that expanding the scope of sex discrimination under Title VII may require some employers to violate their religious convictions. Writing for the majority, Justice Gorsuch noted, “We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution.” But he observed that how RFRA and other statutory protections interact with Title VII is a question for future cases. Justice Alito’s dissent anticipated many of the regulatory actions that we’re going to talk about today that would extend Bostock.

 

      This session will discuss proposed regulations involving health care, education, and employment, among others. While LGBT groups have praised many of these proposals, religious organizations and people of faith have raised concerns. Do these regulations correctly balance the interests on both sides? Did the agencies overreach by expanding Bostock to new areas? And how will the First Amendment, RFFA, and other federal protections for free exercise and conscience rights interact with these regulations? Our panelists will tackle these important questions and many others.

 

      I’m going to keep their introductions brief so you have more time to hear from them and less from me. First up -- and I’ll introduce them in the order that they’ll speak. First, we’ll hear from Andrea Picciotti-Bayer. She’s the Director of the Conscience Project, an organization dedicated to the advancement of religious freedom, conscience protections, and parental rights. Prior to leading the Conscience Project, Andrea served as a trial and appellate attorney in the Civil Rights Division at the Department of Justice. She’s also a legal analysis for EWTN News, a regular columnist for the National Catholic Register, and her work has been featured in a number of outlets, including The Wall Street Journal. And notably, she’s the mother of ten children, which I think is the biggest accomplishment.

 

      Then, we’ll hear from Julie Marie Blake. She serves as senior counsel for regulatory litigation at Alliance Defending Freedom. Over the last decade, Julie has been on the front lines of high-profile, precedent-setting cases challenging federal overreach in courts across the country. She previously served as deputy solicitor general for the state of Missouri and as assistant solicitor general for the state of West Virginia. And Julie was once the recipient of the National Association of Attorneys General’s coveted Best Brief Award for her Supreme Court work.

 

      And then last, but not least, we’ll hear from Marty Lederman. He’s a Professor from Practice at Georgetown University Law Center, where he teaches courses on constitutional law and the law of religion, among others. Marty served as an Attorney Advisor and later as Deputy Assistant Attorney General in the Justice Department’s Office of Legal Counsel. And he’s a regular contributor to Balkinization, SCOTUSblog, and Slate, among many other outlets.

 

      So with that, Andrea, the floor is yours.

 

Andrea Picciotti-Bayer:  Let me know if there’s a problem with the sound, but thank you, Elizabeth, for that nice introduction. Yes, the ten children are things that I’m most proud of. And it’s really an honor to be with such a distinguished panel today to talk about something that I think is really important and something that I hold dear to my heart. I’d like to start off our conversation this morning with what sounds like a radical idea to some people in America today. Because religious freedom is a universal human right, it’s the obligation of the executive branch to both safeguard it and promote it. This is particularly true when the executive branch advocates policies that are objectionable to people of faith using nondiscrimination laws.

 

      Now, to make such a claim, I’ll start with the first assertion that religious freedom is a universal human right. As a Catholic, I’m guided by the Church’s teaching on religious freedoms. Specifically, Dignitatis humanae explains that “the right to religious freedom has its foundation in the very dignity of the human person as this dignity is known through the revealed word of God and by reason itself. The right of the human person to religious freedom is to be recognized in the constitutional law, whereby society is governed, and thus, it is to become a civil right.”

 

      My friend Daniel Philpott of Notre Dame adds additional thoughts to this notion of religious freedom as a human right. He explains that religion is a natural human phenomenon, which is “sufficiently distinct from and irreducible to other phenomena, such as speech, assembly, expression, and conscience. And because religious -- religion is intrinsically valuable for human beings, the right to religious freedom must be considered a right of its own. Failing to safeguard it must be seen as destroying a dimension of intrinsic human flourishing and thus violating the dignity of the human person.”

 

      Now, obviously, limits on this freedom, relating to safety and order, can be imposed to avoid grievous injustices committed in the name of religion, but such limitations ought to be imposed very carefully. Now, I needn’t tell a room full of lawyers that protection for religious freedom finds a place twice in the First Amendment and that this Supreme Court, consistent with the intent of the Founders, has made clear that these two clauses work in tandem with each other. And the Universal Declaration on Human Rights, which celebrated its 75th anniversary this past December, also gives place of pride for religious freedom, stating that everyone has the right to freedom of thought, conscience, and religion and that this right includes “freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.”

 

      And let’s not forget that just 30 years ago, Congress passed the Religious Freedom Restoration Act, which mandates that “government shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.” Some of the names involved in the ultimate passage of RFFA may surprise you. Then Senator Joseph Biden introduced an initial version of the legislation in 1990, and three years later, RFRA was introduced in the House of Representatives by Congressman Chuck Schumer. A unanimous House and nearly unanimous Senate passed the bill, and President Bill Clinton signed RFRA into law.

 

      Fast forward three decades. Former champions of religious freedom are now skeptics, questioning religious freedom’s distinctiveness. Some even brand traditional religious beliefs as bigotry in the face of demands for unfettered access to abortion and the inclusion of sexual orientation and gender ideology in nondiscrimination laws and beyond. Freedom of belief and conscience is replaced by insistence on total conformity and acceptance. In my opinion, that’s pretty scary stuff.

 

      My co-panelist Julie Blake will be discussing the current administration’s proposed rules related to Title IX and Section 1557, so I’ll highlight four other examples of the administration failing to protect religious liberty in advancing what it claims to be mere nondiscrimination policies. As Elizabeth mentioned, the current administration pounced on the Supreme Court’s expansion in Bostock v. Clayton County of the reach of Title VII’s prohibition on sex discrimination in the workplace to include sexual orientation and gender identity, failing to give proper notice to the fact that the Court specifically mentioned that it was not reaching the issue of religious objections.

 

      On the day of his inauguration, President Biden issued an executive order, directing federal agencies to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity and sexual orientation. Consistent with Biden’s order, the Equal Employment Opportunity Commission, an extensively bipartisan federal agency, has issued proposed guidance that “sex-based harassment includes harassment on the basis of sexual orientation and gender identity, including how that identity is expressed.” Harassment, according to the guidance, includes “intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity,” also known as misgendering. Also included as a force of harassment is the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.

 

      So what if employers and employees are not willing to abandon traditional religious beliefs grounded in biology reality in order to adopt preferred pronouns or do away with sex-specific restrooms or locker rooms? The guidance is unforgiving. “Employers do not and cannot provide Title VII religious accommodations for behavior that is considered harassment.”

 

      Meanwhile, the State Department has proposed rules which apply to award recipients and contractors for foreign assistance. The rules would impose nondiscrimination requirements that extend to gender identity or expression. Granted, the State Department can grant waivers, but given the President’s directive to impose gender ideology across all departments and agencies, this is a bit of an empty promise. Faith-inspired organizations, in particular, are likely to find their religious convictions excluding them from participating in government-funded relief work. And while waivers are allowed for a religious entity to hire co-religionists, that doesn’t mean that they’ll be allowed to make hiring and firing decisions based on the organization’s founding principles. All this makes a mockery of our commitment to promoting religious freedom as a foreign policy priority as enshrined in the International Religious Freedom Act.

 

      Now, using the power of the purse to impose ideological conformity is also at play and a final rule jointly issued this March by no further than nine agencies related to federally funded social services. Among other offenses, the rule calls for rescinding existing regulatory language that clarifies that the exemption in Title VII, Section 702, which permits religious organizations to employ individuals of a particular religion to carry out their work and includes acceptance or adherence to religious tenants of the organization. This change suggests that employees don’t actually have to believe in or agree with a religion’s teaching. They just have to identify as a member of that religion.

 

      And finally, HHS has proposed a new rule requiring state child welfare agencies to ensure that each child in their care who identifies as LGBTQI+ receives “a safe and appropriate placement in services.” Now, that sounds reasonable. But look at what comes next. The rule adds that “to be considered a safe and appropriate placement, a provider — foster parent — is expected to utilize the child’s identified pronouns, chosen name, and allow the child to dress in age-appropriate manner that the child believes reflects their self-identified gender, identity, and expression.” If this proposed rule is finalized, we could be looking at widespread rejection of prospective foster families for children, particularly those who identify as LGBTQI+, simply because they hold sincere religious beliefs about the nature of the human person, and for any child desperate to be placed in a loving home, reducing the number of homes is beyond cruel.

 

      Two last points to consider. First, many people of faith, who are unwilling to submit to these demands for conformity, are not discriminating based on sex but instead acting on the basis of religious adherence. And second, some argue that instead of just making religious freedom arguments in response to these demands, it’s important to make truth arguments. And my response is to note that for people of faith, who are raising religious freedom objections, they do so precisely because they believe the religious teaching they’re adhering to is true. Thank you.

 

Elizabeth Slattery:  Thank you, Andrea. Julie.

 

Julie M. Blake:  Well, thank you so much for having me, and thank you for my co-panelists, especially Marty, for joining us today. We all appreciate a good debate here. So my thesis is simple but takes a little issue with the premise of the panel. Religious freedom is important, but religious freedom is not enough. And that is more true than ever when it comes to the Biden administration’s whole-of-a-government agenda on the subject of gender identity and its very related subject of abortion, where many of these civil rights laws, sex discrimination laws are being redefined to encompass both new categories.

 

      The issue that we have in society is if religious groups respond to these laws simply by saying, “I’d like my exemption, please. You can apply it to everyone else but not me,” we are failing to engage with the real issues about the common good, about truth, and about reality. And we should not cede the public square. We have an obligation to care for everyone, whether or not they belong to our same religion or not. And I think that that is profoundly true in the context of the Biden administration’s forthcoming rules on Title IX and Section 1557. So I’ll take them one by one and show you that while religious freedom is important, it is not enough for each of these rules.

 

      So first of all, Title IX. What is the new Title IX rule? So Title IX is a federal statute. It applies to every person who takes federal funding, in any form, from the federal government, if you have any form of educational entity receiving the funding. So most of the funding goes to the Department of Education but not all of it. Sometimes, it can go through the Department of Agriculture, like for school lunch program.

 

      But the Department of Education is creating a new Title IX rule. It’s replacing the Trump Title IX rule. The Trump rule really dealt with things like due process, campus speech. Those are important concerns, but they’re not going to be the focus of this panel today. The Biden Title IX rule, in addition to addressing the due process issues on campus, is also redefining the substantive categories of Title IX in reliance on the President’s executive order interpreting Bostock. And they are redefining sex to include gender identity and termination of pregnancy, meaning abortion.

 

      And it’s important to realize that the Biden administration has technically proposed two rules. One is a main Title IX rule where it says this redefinition applies to all aspects of education, whatever that is. So that could be in the classroom. It could be PE classes, sports teams. Nothing’s excluded from this redefinition.

 

      And then, they had a second rule about sports where they said, well, maybe, in theory, there might possibly be one time that a male couldn’t play on a female sports team, if he wants but under a very difficult balancing and evidentiary test. That second rule apparently has been canned and is not being released before the election for fairly obvious political reasons. So what we’re left with is the main Title IX rule, which is expected to be released any day now. It’s already left the White House’s review. And this Title IX rule will affect all operations of any school that receives federal funding. So that includes school districts, public universities as well as private universities that take federal funding.

 

      So to move then to the next question of this panel. Did the agencies overreach be expanding sex nondiscrimination provisions to encompass gender identity in this rule. My answer is simply, yes. The point of Title IX was to help women achieve equal educational opportunities, and Title IX is not a sex blindness statute. Title IX is an accommodation statute. It is an equal opportunity statute.

 

      And by redefining sex to mean gender identity, the Biden administration is threatening the equal opportunities that women fought so very hard to achieve. And I’d submit further that it is a major question that Congress would have debated to allow men onto female sports teams and to end women’s sports. I think, up until very recently, everyone knew the whole point of Title IX was for women’s opportunities, was for their equal athletic opportunities, not to make women spectators in their own sports. And that really underscores the importance of this rule when it comes to -- is religious freedom enough? And it’s not enough because there’s no woman who should be forced to compete against a male on an athlete team.

 

      Everyone knows that men have, on average, great physical advantages. Their hearts are stronger. Their muscles are stronger. They can run faster. Having females play against males in sports creates physical danger for females. And it only takes one male to make the playing field unequal as we all saw so very vividly with Lia Thomas and Riley Gaines when he took the women’s titles in the NCAA swimming championships.

 

      Regardless of a female athlete’s religion, regardless of whether she attends a religious school or not, she should not be forced to compete against males in sports. And that’s something that we should all be able to agree -- and religious freedom categories simply don’t address that important question. And ignoring the biological reality that males and females are different is not going to help the problem. I think that it’s important to realize, then, that Title IX’s religious exemption will help solve some of these problems but not all of them.

 

      So in -- Title IX has a religious exemption saying that Title IX shall not apply to any entity controlled by a religious organization. So in theory, that means that if you have -- take my alma mater, Notre Dame -- Notre Dame is a religious entity. If it conflicts with Notre Dame’s religion, it won’t apply to Notre Dame as such. Well, that’s all very well and good. But what happens when Notre Dame wants to take the basketball court against UConn, and let us say, hypothetically, that UConn is allowing a male to compete on the basketball court. What is Notre Dame to do then?

 

      And this isn’t hypothetical. It’s real. My organization, Alliance Defending Freedom, represents female athletes who have already lost countless podium spots, championship opportunities by being forced to compete against males. We represent a school in Vermont, Mid Valley Christian (sic), where they had to forfeit a match when they unexpectedly were asked to compete against a team that was fielding a male athlete, and their female athletes were unable to do so. In response, the Vermont Principals Association kicked Mid Vermont Christian out of the sports league entirely. Do we want that to happen to the NCAA? I think not.

 

      So what we have then is a situation where, even if religious schools themselves are not subject to Title IX directly, there are going to be serious collateral effects of this Title IX rule on religious schools. We’re seeing it already in Vermont. And so, that’s why we need to consider that -- do we want a world where college sports are going to be separated based on these principles, or do we want to maintain the vibrant sphere of athletics that our country has historically had?

 

      I think there’s also some additional religious freedom questions at the margins about policing the Title IX religious exemption. What I found is that, in practice, there are people who would like to get rid of the Title IX religious exemption entirely. There’s a case in Oregon called Hunter v. Department of Education, where a group of students sued, claiming the Title IX religious exemption violates the Establishment Clause. My organization represents several intervening schools defending that exemption, and thus far, it has been successfully defended. However, that question is before the Ninth Circuit right now.

 

      Additional questions are made about the enforcement of Title IX’s religious exemption in practice. When the U.S. Department of Agriculture redefined Title IX for purposes of the national school lunch program, the state-implementing agencies didn’t pay attention to religious freedom at all. One of my clients, Grant Park Christian Academy, a low-income school in a predominantly black neighborhood was told that “you don’t need to participate in the school lunch program.” And it took a federal lawsuit to get the Department of Agriculture to walk back and restore the children’s lunch money. California, not to be outdone, then denied a lunch money program to the Church of Compassion, which operated a preschool and daycare. And it -- it held to its proceedings throughout -- to its position throughout administrative proceedings and even in federal court until facing a prospect, again, of a federal lawsuit, it eventually backed down and agreed to a settlement with a large amount of attorneys’ fees. But none of these things should have taken lawsuits to police the Title IX religious exemption.

 

      So then, moving on to the Section 1557 rule, and you would be forgiven if you’re like, “What is the Section 1557? This sounds like a bunch of garbled numbers I don’t know about.” Just think of it this way: it’s Title IX for healthcare. Obama Care, the Affordable Care Act, incorporated Title IX into healthcare. It simply said Title IX shall apply to healthcare.

 

      So redefining sex in Title IX did not stop within education. It applies to all healthcare operations in America, and the Biden administration’s making it very clear that applies to all healthcare providers as well as to most healthcare insurance programs. And this creates even more serious programs because if biological reality matters in sports, it matters even more in medicine. It is simply dangerous for doctors to ignore good medicine and biological reality in the service of a new nondiscrimination principle. And frankly, it is very hard to overstate the impact of this threatened rule change in medicine. The rule forces healthcare providers to perform gender transition procedures and abortions under its redefinition of sex discrimination. It is apparently discrimination to discriminate against gender dysphoria.

 

      So for example, if a doctor is a surgeon who performs hysterectomies, the doctor that is willing to perform a hysterectomy on a woman with cancerous uterus to save her life, the Department of Health and Human Services says that same doctor must perform a hysterectomy if the woman seeks to more physically resemble a male and no longer have a uterus. That means doctors who use medicines to treat precocious puberty will have to prescribe puberty blockers to halt the natural development of minors. Pro-life clients that offer abortion pill reversal with the use of progesterone will have to provide cross-sex hormones for so-called gender transitions. Doctors who manage miscarriages will have to do abortions under the same nondiscrimination rule as applied to abortion. Doctors who refer pregnant teens for OB care will have to refer them to Planned Parenthood. They must use patient self-selected pronouns. Everyone in the medical field will — and this is an example from the rule — have to refer to a woman on demand as a man, even if she is giving birth or pregnant.

 

      Simply put, this will turn medicine upside down. It will force doctors who do good to do evil, and it will harm patients. The Biden administration has grossly abused its power. It says that the Title IX’s religious exemption does not apply to the Affordable Care Act, that it incorporated all the parts of Title IX it likes but not the religious exemption and definitely not Title IX’s abortion neutrality provisions as well. And so, the religious freedom conflicts are going to be teed up even more acutely in this healthcare context. You’re going to have serious problems under RFRA involving free speech as well as all of the questions under federal conscience laws that protect against participations in abortion, sterilizing procedures.

 

      At HHS, in response to all those concerns, it’s taken the position of, well, if you think you’ve got some constitutional or other statutory rights here, go ahead. Take your chance in enforcement proceedings. That is simply not enough, whether you’re religious or not. No one should be forced to harm patients.

 

Elizabeth Slattery:  Thank you. Marty.

 

Prof. Martin Lederman:  Thanks so much, Elizabeth and Andrea and Julie. It’s a pleasure to be here again. I’m grateful that so many of you turned out. I figured with the adjacent room dealing with interposition and battles between states and the federal government at the border, there’d be no one here. But I’m glad to see some of you care about these issues as well.

 

      I’m going to focus a little bit more on the stated topic of the panel, that is to say, religious liberty when it comes to nondiscrimination rules in the Biden administration. Let me start by saying I served at the Department of Justice for the first 30 months of the administration, was very familiar with many of the rules and other policies discussed here, though, not all of them, including a couple more recent ones that Andrea has brought up. But I’m obviously not going to convey any confidential information. I’ll base this completely on the public record, and I don’t know what’s been happening since July. I’m like you. I’m just on the outside, looking in. And in particular, the Title IX and 1557 final rules have yet to be issued, and so, I will be making -- my comments will be based on the NPRM -- on the proposed rules, which, in certain areas, are much more noncommittal than Julie has suggested, I think.

 

      My basic theme is that I don’t recognize the description that my co-panelists have given for the administration’s posture toward religious liberty or, for that matter, toward abortion and gender affirming care. It is not a surprise at all, to me — having served in the Clinton, Obama, and Bush and Biden administrations — that Senator Biden proposed RFRA and that President Clinton signed it. It was one of President Clinton’s most -- proudest achievements to work with this bipartisan coalition.

 

      The Biden administration is very much committed to religious liberty, and it’s taken extraordinary steps over and over to ensure that exactly the sorts of principles and values that Andrea so eloquently described are preserved in federal law and that Congress’s balance between nondiscrimination rules and religious liberty are honored. I’ll just tick off some, but I could -- there are more. And then, I’d like to focus a little bit on a couple of the things that my co-panelists have said to give what I think is a quite different picture of how these rules would work, what they would do, and how they would apply both to religious objectors and to persons who don’t have a religious or a conscience-based objection because some of the statutes protect both religion and conscience that is not religiously based.

 

      So on his first day in office, President Biden rescinded the Muslim ban -- right? -- rescinded probably the ugliest form of religious discrimination that we’ve encountered from the federal government in recent years. He also has taken steps to preserve sacred sites of tribal nations, such as the Continental Divide National Monument, Bears Ears and Grand Staircase-Escalante National Monuments and the like. He’s signed hate crimes legislation to protect against violence on the basis of religion, among other characteristics, and the Justice Department, in which I worked, is deeply committed to enforcing such hate crimes laws, including against very vituperative and horrifying anti-religious forms of violence.

 

      He has released a national strategy to counter antisemitism, announced the development of a national strategy to counter Islamophobia and related forms of bias and discrimination and taken all sorts of other steps to do that. And in the context of anti-discrimination laws, in particular, all of these agencies and the President have been quite remarkably -- not remarkably -- I think quite unremarkably but predictably and consistently insistent that the many statutory — and in some cases, constitutional — protections for religious liberty will be enforced and will be honored by this administration and are important. The HHS has promulgated — this was after my time — promulgated a conscience rule that goes through in elaborate detail of all the different statutes -- and including RFRA but also including particular health and abortion-based conscience statutes that will be honored the way in which the agency will do so and the like.

 

      I just don’t recognize this picture of an anti-religious administration at all. And I’m not just saying that. It was part of my job to make sure that these statutes were understood and were enforced within the federal government. And it just doesn’t describe the daily reality that I can assure you really is present in all of the agencies and in the White House. Now, are there times in which religious liberty claims come in conflict with other important norms that the President is very much committed to: reproductive freedom, nondiscrimination, and the like? Of course.

 

      But the point here is that Congress has, in many cases, in the First Amendment and others, has created some balance and some room for religious exceptions. And those are being honored by the administration. I’m unaware -- Elizabeth asked before am I aware of cases in which the administration has actually rejected a -- any serious claims for religious exemptions under any of these statutes or any litigation in which this issue has really been teed up, and I’m not really aware. There hasn’t been a lot of post-Bostock -- I think, a little bit surprisingly, there hasn’t been a lot of post-Bostock litigation of religious objectors wanting exemptions to -- for sexual orientation discrimination laws under Title VII or Title IX or 1557 or Title VI or what have you.

 

      There’s been a few cases. The one that reached the Fifth Circuit, the EOC in that case didn’t object on the merits to the religious exemption claim that was being made. They thought it was premature, that the plaintiff hadn’t described what their objection was, and that they weren’t trying to enforce the statute -- the Title VII against the plaintiff. So I may be wrong, but I think there’s not a lot to talk about in terms of post-Bostock litigation and certainly not any indication of hostility from the Biden administration to religious liberty and religious exemption claims. And in fact, the solicitor general has filed some briefs and cases, and what many of you are familiar within the Supreme Court supporting religious liberty and free speech and free exercise rights, including the brief that the Court unanimously followed in Grafton, the undue hardship Title VII accommodation case last term; including a brief in Shurtleff, another unanimous decision about the right of a Christian organization to raise a Christian flag during its event in the city of Boston and the like.

 

      So I think that -- I think it’s fair to say -- I don’t -- I’m not going to claim the administration has done everything right or in every case made the judgments that everyone in this room might agree with, but I think, on the whole, caricaturing -- characterizing it as anti-religious and hostile to religious liberty is somewhat of a caricature. And it’s really interesting when you look at some of these recent cases, you go look at the Justice Department briefs where plaintiffs are bringing claims arguing that the administration is, for instance, requiring people against their conscience to provide gender-affirming care. And the Justice Department comes in on behalf of HHS and says we’re not requiring any such thing. Then, you get very conservative jurists, both in writing and in the Fifth Circuit’s recent oral argument in one of these cases, saying there’s no ‘there’ there. What are you complaining about? The government is not trying to force you to do these things.

 

      So we’re going to get into some of the details of this in our back and forth of these things, but I did want to just say a few things about that -- about the things that Julie has raised first very quickly, and then, maybe we can get further into the weeds. I want to make sure we cover things that you folks are all interested in in the question-and-answer session. So Julie mentioned, for instance, the Hunter case in Oregon, involving a claim by plaintiffs that the Title IX religious organization exemption is unconstitutional. Well, the Biden Justice Department is in court, vigorously arguing against that, successfully, on Julie’s -- on ADF’s side, side by side with the ADF and has successfully defended that religion exemption. But let me talk for a minute about 1557, in particular.

 

      When we -- during the Q&A and during our discussion, if you guys are interested, I’m happy to talk about Title IX and the athletics rule, in particular, although, as Julie pointed out, that one has been -- my understanding is that the final rule has been postponed. I think even the proposed rule there was quite moderate and quite an exception to the ordinary Title IX rules and was quite cautious in what it was proposing but was very open-minded in inviting comments, and they got tens or hundreds of thousands of comments. So that rule’s not there yet. I know that’s the issue du jour that people probably want to talk about, transgender women competing with cisgender women on sports teams. Happy to do so if that’s what people want to talk about, but the administration on that topic has been rather cautious and hasn’t done anything very dramatic yet, in any event.

 

      But on 1557, I want to make -- one thing that I think is important. Julie suggests that the rule -- the proposed rule -- we don’t know what the final rule would look like. The proposed rule would require, even apart from religious objections and religious exemptions, which the rule, by the way, sets up an entire system for people raising religious objection claims and having them honored. The rule goes to great lengths to say that the rules -- that the substantive rules that are put in place will be subject to all of the conscience and religious statutory and constitutional exemption claims that are available. But apart from that, Julie suggested if you’re not -- if you don’t have one of those exemptions, if you don’t satisfy it, you simply don’t want to do what the HHS would have you do. It will require people to engage in gender-affirming care and to actually either perform or subsidize abortions against their will. So that’s just not the case.

 

      So the rule doesn’t do either of those things. It doesn’t suggest that people have to perform abortions. And in fact, Section 1802 -- 18023 of the ACA has a specific provision, saying -- cited in the NPRM that says that no one can be required to perform abortions. The principal thing the statute does is simply to say, which it’s said since 1975 in the Title IX, that a termination of pregnancy, like bringing a pregnancy to term, is not a ground on which someone can discriminate against you. And ADF itself agrees that when it comes to miscarriage, for instance, the law is such that you can’t discriminate against someone for having had a miscarriage.

 

      Well, this says, in addition, you can’t discriminate against people for having exercised their right to have an abortion either. But it doesn’t require anyone to provide or pay for an abortion — at least, the proposed rule didn’t. I’m not -- I don’t know what the final rule will say — nor does it require folks who don’t provide particular services to engage in gender-affirming care that they, otherwise, would not provide. Now, there are -- there is a provision in the 1557 rule that suggests that not providing care simply because of a belief that treating gender -- that treating dysphoria itself through transition care of any kind is wrong, would raise questions under 1557. Even on that, it’s quite ambiguous, and I’m looking forward to seeing what the final rule would say. But so far, there’s been no movement at all by HHS or any other federal agency to require anyone to engage in gender-affirming care that they oppose or that they don’t otherwise provide let alone to provide abortions.

 

      And whenever these cases get into court complaining about that, what you’re seeing now is judges saying there’s no ‘there’ there. Why can’t -- literally, one of the judges said, “Why can’t you take ‘yes’ for an answer?” So I would like to push back and suggest that things may not be quite what they appear to be under some descriptions of what the Biden administration is doing and that it is actually quite committed to religious liberty and to compliance with all of the relevant constitutional and statutory provisions.

 

Elizabeth Slattery:  Thank you. So we’ll have time for audience Q&A, but I want to pose a question or two before we get to that. So the first one — Julie, we’ll start with you, although I’d love to hear everyone’s thoughts on this — the administration is plowing ahead, assuming that the court’s interpretation of Title VII’s definition of sex discrimination applies in other contexts -- other statutory contexts. Is that a valid assumption, or are these statutes different enough that they should be treated differently?

 

Julie M. Blake:  Thanks. So I think that’s the real question. Is President Biden right that Bostock just applies to every other federal sex discrimination statute, every other civil rights statute, or are there meaningful differences between Title VII and other statutes like Title IX, Section 1557, or other laws with their own sex discrimination provisions? And I think that’s the issue that these rules are going to force to a final decision, probably by the U.S. Supreme Court to make a decision is it the same or not. Bostock itself was clear that it concerned hiring and firing only within Title VII. It said it didn’t concern restrooms, bathrooms, locker rooms, or anything else of the kind. And it made that caveat knowingly that there can be important biological realities that need to be recognized in those contexts. And it also said that it was deeply concerned about religious freedom, so Bostock certainly recognized the rule of RFRA and other constitutional provisions as well.

 

      And then, you get to the question of whether Bostock’s hermeneutic necessarily carries over to the interpretation of other statutes, and I think that’s the issue that’s so important to realize. What Bostock identified in Title VII was essentially a sex blindness but-for test, but not every statute requires blindness to the protected category. So for example, when you have the Americans with Disabilities Act or Section 504, the Rehabilitation Act, you have accommodation for disability, not blindness to a disability, because ignoring people’s disabilities don’t actually give disabled people equal opportunities so, too, with Title IX.

 

      Ignoring women was not going to solve the problem the country faced in 1972 of a lack of women’s equal opportunities and education. And so, that’s why Title IX and, then by extension, 1557, when it incorporates Title IX, are different from Title VII. They are equal opportunity statutes, accommodation statutes, not statutes that have the same but-for causation, strict standard that Title VII has been interpreted to have. As well, I think many of the conflicts under these statutes are going to encounter questions well beyond the narrow hiring and firing context that Bostock had, things like equal access to locker rooms, sports teams, medical decisions.

 

      And if I could just briefly respond to Marty. It’s true. If a doctor’s scope of practice does not include, say, performing hysterectomies or providing hormones, they won’t be required to do so, but if they provide hormones or hysterectomies for one diagnosis, they will be required to do so for a diagnosis of gender dysphoria. Or at the very least, they cannot take a categorical position that gender transition efforts are, per se, experimental, dangerous, or harmful. And then, although the rule itself was deliberately vague on abortion, it led one to think that the same procedures — that they could be applied to a miscarriage — would need to be applied to an abortion under the same rationale that the Department of Education was doing. So that’s why I think you’re going to have a lot of fights here well beyond religious freedom. But certainly, you’re going to have serious problems for religious freedom when these rules come out, if they are what they appear to be at the proposal stage.

 

Elizabeth Slattery:  Do you have any comments?

 

Prof. Martin Lederman:  Oh, I do. Andrea.

 

Elizabeth Slattery:  Andrea? Marty?

 

Andrea Picciotti-Bayer:  I don’t want to jump on Marty.

 

Prof. Martin Lederman:  Jump, jump, jump. That’s what I’m here for.

 

Andrea Picciotti-Bayer:  You’re awesome. No, I wanted to say, first off, I wanted to celebrate and agree with you the points that you mentioned that -- where the administration has taken very pro-religious positions, especially on combatting antisemitism, Islamophobia, and that is consistent with the American tradition. And it is something that, I think, everyone in this room needs to be celebrating. These are serious times that we’re in.

 

      There have been examples, though, where the administration’s response has been either nonexistent or anemic. Right? So with a vigorous enforcement of the Freedom to Access to Clinic Entrances Act against anti-abortion protesters, the administration’s protection of church entrances, which is included in FACE, has basically been zero, and that’s a problem. And it’s not -- unfortunately, not unique to the Biden administration. This has been a problem with people’s understanding of what FACE should cover but particularly necessary. A response has been particularly necessary. After the rise in vandalism and attacks to both churches and pro-life pregnancy centers after the leaked Dobbs memo and its decision.

 

      The other thing that I would mention is your -- with all due respect, saying, “There’s nothing to see here.” I think that there is nothing to here see. And that’s a problem. There are enforcement actions that are not going on. And Julie will speak, in particular, about stuff involving HHS, but I can think of a case involving Vermont University Hospital where there was an HHS investigation under the prior administration, and that was kind of fiddled out. And a nurse in that university hospital who had made her position on not wanting to participate in abortion was -- found herself in the midst of that and had to actually engage in that. That’s a problem.

 

      There’s also a problem just -- personnel is a policy. I don’t know if -- you probably know Eric Treen. Adorable. Love him. Maybe a lot of the people here in our gathering know him. He was the Civil Rights Division’s person on religion there for -- through several different administrations, retired. And where is the next person on religion? And if you look at DOJ’s highlighted briefs, you’ll see very few outside of RLUIPA, which, again, great -- that the Justice Department is very engaged in defending the religious rights of people that are in institutions, incarcerated, but getting out there with amicus briefs, especially in the context of the conversation that we’re having right now. Where religious freedom and nondiscrimination laws appear to clash, you hear crickets.

 

      And -- or in the case of the Court’s recent review of that, not specifically on a free exercise issue but on free speech in 303 Creative, the administration took the side of the respondents and not the side of Lorie Smith. And they lost, so they were taking the wrong side. But I would expect that the administration would be more robust in its defense of religious freedom because I don’t think these need to necessarily be either/or rights, and that’s something that I think we need to build.

 

      And with all due respect to Julie as well, I think that religious freedom as a placeholder is crucial and indispensable. We can think, for example, of the amazing Little Sisters of the Poor, who fought repeatedly, won repeatedly to create that placeholder to not have to capitulate and include abortion pills and contraceptive, in general, in their employee healthcare plans. Their employees are nuns, so that was a fight that was fought hard and for a very long time.

 

      And I’m concerned that the rules that were created with all of the stakeholders, those that had concerns about the Affordable Care Act’s overreach, have since been watered down, and I think it’s important. If the administration wants to be recognized as being pro-religious freedom, then there needs to be a lot more effort on the ground to bring in stakeholders and try to figure out what their concerns are while they’re crafting rules. And the rules that I mentioned that were finalized, there were a “gagillion” comments. In reading through those “gagillion” comments, not much was done to respond to them as far as preserving religious freedom. So I think that there’s -- there is -- it’s an important time where we can come together — defenders of religious freedom, advocates for expanded nondiscrimination laws — find a way in which we can all get along, and the first step is that we can say absolute conformity isn’t necessary, that we will, just as the Supreme Court has said repeatedly, respect that good people, people of goodwill, will have different positions on this, many of which are grounded in their religious beliefs.

 

Prof. Martin Lederman:  So I’m pleased to say that I have a great deal of agreement with both Julie and Andrea in their latest comments. Certainly, that’s the sense that I have within the Biden administration as well, Andrea. I’m not -- I don’t know as much as you probably about some of the particular, either enforcement or nonenforcement, decisions that might have been made. That wasn’t my job, really, in the way that these broader policy and rulemaking and litigation issues were in compliance with the statutes were.

 

      My sense is that I don’t think there’s been a lot of litigation in which the -- in which people have been bringing RFRA or conscience claims against nondiscrimination laws in which the U.S. even had a decision to make whether to appear as amicus. I may be wrong about that. I haven’t tried to keep up with that. Maybe folks in the audience know otherwise. But I generally share that sentiment, and my sense is that so does the President and so do the people around the President. Certainly, people in every agency do.

 

      I will say I am very familiar with one of the rules you mentioned, the nine-agency rule involving Social Services. And I think those of you who are very interested in Supreme Court doctrine involving doctrine — Zelman and Mitchell v. Helms and Bowen v. Kendrick and Fulton and Trinity Lutheran, all of the -- and Carson v. Makin — will see that we took those questions extremely seriously and dealt with the extensive comments on those questions in that rule. And I, for one, think that the result is correct and actually implements President Bush’s executive order, which -- to a tee, almost verbatim.

 

      Another thing I would -- another thing I’m particularly proud of -- partly, I’m proud of the Department of Education for doing it, but I’m been involved in several iterations of -- some of you may have seen it; it didn’t get a lot of attention, but the Department of Education put out a new version of the -- now statutorily required guidance on prayer and religious expression in public schools last year. It’s the third or fourth iteration of that. This is a post-Kennedy v. Bremerton version of it. I think it’s quite good and extremely useful for public school officials, students, and teachers going forward. And that’s the sort of thing that a lot of energy is expended on.

     

      But let me just respond quickly to Julie. We agree -- I very much disagree about the high-level premise, which is that there’s a hard question of whether Bostock applies to discrimination on the basis of sexual orientation and transgender status with respect to all these other statutes. I think that’s an easy question. I think the courts of appeals are getting it right. I don’t think there’s going to be any dispute.

 

      I think the rationale of Bostock carries over quite readily when you talk about it, and that’s on the assumption that sex -- the word “sex” in all of these statutes — I’m quoting from Justice Gorsuch here — “refers only to biological distinctions between male and female.” And that’s been the predicate, actually, for these rules -- has been, assuming arguendo that “sex” means biological, physiological — right — anatomical differences -- treating someone differently because of their anatomy is a form of action on the basis of sex. That’s the rationale of Bostock. I think that carries over very naturally and almost unobjectionably to these other statutes.

 

      Where I agree with Julie, however, is that, unlike in Title VII, these other statutes allow for -- in certain contexts, allow for either separation of or distinct treatment of people on the basis of sex in certain contexts more than Title VII does, even before you get to religious liberty claims. And it does so in two ways. This is described in great length in the NPRM on Title IX. The first is that certain -- is that, in certain respects, if a -- the general rule is schools cannot separate boys and girls, male and female on the basis of their biology in educational programs. That’s the baseline rule, but there are exceptions to it. And the way the Education Department has understood it — and I think correctly — is that where the harm -- where there are de minimis or less harms of such separation is not a form of prohibited discrimination.

 

      And even -- in a couple of contexts, even where there might be those sorts of harms as to certain students, such as transgender students, the statute itself provides its own exemption or exception to allow for certain things that otherwise would be prohibited sex discrimination. The most obvious example of which is Section 1686, which allows schools to have male and female dormitories. Right? Living facilities can be separated on the basis of sex. So Julie, I think, is right about that, that -- I think it’s pretty -- I disagree with her. I think it’s absolutely clear that actually discriminating against someone on the basis of their biology. So for instance, not treating the broken bone of a transgender man but you treat one of a cisgender man will obviously be a violation of 1557 and will be a violation of Title IX in the educational context.

 

      The harder questions are, as she’s pointing out, when in the educational context and in the health context is treating people differently on the basis of biological and anatomical considerations -- when is that legitimate? When can it be done? How much equity has to be required and the like? Those sorts of questions are hard under Title IX. They always have been, particularly in the area of athletics where Congress actually passed an amendment to Title IX couple of years after Title IX was enacted, the Javits Amendment, which encouraged the Secretary of Education, then HEW, to treat athletics differently for some of the reasons Julie described and others and to come up with distinct rules that are supposed to result in general equality in the athletics sphere. And that’s what the Education Department is trying to in that NPRM, although I think that it looks like that’s at least several months off before that will become a final rule.

 

      So I’m in -- although I disagree with Julie about the top line about Bostock’s application to these other statutes, I do agree that Title IX and 1557 raise issues about what counts as prohibited discrimination and what is exempt from the prohibition on discrimination on the basis of sex in areas that aren’t -- that Title VII does not, and the statutes aren’t on all fours in that respect. So in that respect, I very much agree with her.

 

Elizabeth Slattery:  So I want to invite anyone who has a question. Come up to the microphone. We don’t even need to fill any extra time. There you go.

 

Questioner 1:  I guess my question is for Julie Blake. It strikes me that some of the -- of your comments were going to involve the courts in overturning majority views, and by this, I mean that the religious exemption normally is you can go to your catacombs, and they won’t come burn you out. But some of what you’re discussing is Constantinism, which is that we should rule regardless of the majority. And I think the majority has a lot of wrong views, and I certainly think on the transgender and the rest of it, it’s really bad. But if they get it in a statute, what are the courts supposed to do?

 

       In other words, if they say we -- the law gets passed, and it says transgender men can play on women’s sports team. Doesn’t religious freedom let us start our own sports leagues, but how would we win? How can you overturn under current doctrine majority rule if they actually have passed statutes that are going to be based on what I consider — and I think most people over all time have considered — false readings of reality?

 

Julie M. Blake:  All right. So I think your question focuses on if Congress hypothetically were to pass the Equality Act --

 

Questioner 1:  Or states.

 

Julie M. Blake:  Or states. If they were to pass the Equality Act or the Women’s Health Protection Act, which has similar principles for abortion, or other laws and to put it in the text that says, yes, these sex discrimination statutes mean this. Or if they simply were to say these are characteristics on their own that we are protecting in whatever way, then, yes, you wouldn’t have the same claim under the Administrative Procedure Act that the agency’s rule is contrary to law or lacks statutory authority in the same way. Of course, my thesis is that Congress never passed any of these laws. Congress refused to pass these laws. Congress, instead, passed laws that said sex, knowing very well what gender identity means and that it was something different and, moreover, that it would be a major question if, when everyone was passing Title IX in 1972 and thought they were protecting women’s educational qualities, if they were, in fact, requiring the end of them.

 

      But yes, I think, if you were in the realm of where you have a statute that requires these things, you would have different questions arise. And some of these questions actually would apply to these rules, too, but let us assume that there was a statute that provided all of this. Well, one question would be is it a Spending Clause statute? If so, the language would have to be very clear. If the language were clear, is it still unduly coercive in the amount of federal funding that it threatens similar to the Affordable Care Act and the Medicaid expansion? Would there be other problems with the preemption of states law under the Tenth Amendment? Perhaps.

 

      And then, when it comes to individual rights, if any of these laws apply in some of the ways we’ve described — coercing the speech of students or of teachers, affecting parental rights by having secret gender transitions in schools, telling doctors they can’t give their full medical opinions to patients — I think you’d walk into a host of problems under the First and Fourteenth Amendments wholly about from the religious freedom concerns, which would, of course, still be there under the First Amendment.

 

      Now, one really interesting question would be, well, what if that statute said RFRA doesn’t apply to this statute? Then, you’d definitely be in the realm of a constitutional question. But thus far, Congress has not carved out any statutes from RFRA’s scope, and of course, my hope is that it will not do so.

 

Questioner 2:  Thank you. I had a question about the Smith problem. So aside from whether it’s good law or not, my question is how the different panelists see essentially the accommodations. So I think, nondiscrimination, the Supreme Court maybe dealt with satisfactorily to most of our panelists, if not all. But when you move to accommodation, just how much accommodation is appropriate, especially considering the very broad differences that people can have in terms of what they consider religion so religions that are based on fallen laws or books or certain rulings, going to a building once a week and saying prayers as opposed to other types of faith. So how far should accommodation go? So obviously human sacrifice, no. Right. We can all agree. But -- or Jehovah Witnesses maybe that don’t want to give their children medical treatment.

 

      But how far would you go, and would you consider history and tradition as sort of the limiter of what is religion, sort of where the states’ police power ends to the basic things, like ensure public safety and health and some morals at the state level? And if you choose history and tradition for limiting the First Amendment this way, would you also use history and tradition for dealing with sex issues more broadly that came up, where, of course, the First Amendment of the Constitution -- the First Amendment and the Fourteenth Amendment were all passed during a time when the history and tradition was of coverture and no female involvement at all in any of these, which necessitated the Nineteenth Amendment to give the right to vote, not -- it’s wasn’t the Fourteenth Amendment that did it by implication. So my question is how you would reconcile that at the second level as well.

 

Andrea Picciotti-Bayer:  I’m so excited that you asked those questions. There are so many issues in the question that you raised, but my favorite is what do we do about Smith. Right? And it seems not that relevant right now, but in light of the people that continue to want to present the Equality Act or the Do No Harm Act, which would undermine RFRA’s force in certain areas, I think it’s important, when talking about the executive branch and nondiscrimination laws, to tackle what do we do about Smith. Right? And I think that the Supreme Court is wrestling with that. I tend to love Justice Alito’s concurring opinion in the Fulton case that basically eviscerated Smith, and then — with all due respect to Justice Scalia — pointed out we need to give life to the First Amendment’s protection for religious freedom.

 

      At the same time, I think that Justice Barrett, I think it was reasonably, said we need to come up with a workable rule. Workable rules are really hard for courts to do. It’s much preferable that Congress lawmakers do that in -- and with the benefit of insight from administrative agencies, but I think that the most important legislation that could come out of Congress is to figure out how do we move forward. And I’d love to see that be done in a -- in not by the executive branch but be done much more in the open with lawmakers wrestling with some of these and taking into account people’s concerns.

 

Prof. Martin Lederman:  I agree with Andrea and particularly in the areas that we’re talking about on this panel, and I know the questioner knows this. But this is an area so suffuse with statutory protections for conscience and religion, starting with RFRA but then in the particulars here, as well. And when it comes to medical treatment, abortion and the like, that one doesn’t really need to worry about what the First Amendment does. I will say I teach the law of religion this semester, and both I and my students, maybe it’s the way I’m teaching it, don’t quite understand what’s got the justices in such tension with one another about whether or overrule Smith because what they’ve created with Fulton and Masterpiece and similar decisions is so much more robust than the pre-Smith/Sherbert/Yoder regime in terms of guaranteeing religious exemptions that it’s not clear what the stakes are about whether Smith -- if we went back to Sherbert and Yoder, religious exemptions would diminish vis-à-vis what the Court has been doing recently. So it’s something of a mystery.

 

      I do want to use this just to pivot to one other thing that happened in the last week or so, in part, because it raises issues Julie was raising about what folks in this room and folks on my side of the aisle think about religious exemption and religious liberty claims vis-à-vis the -- in relation to the substantive debates that are being had about sex discrimination, transgender athletes, abortion, and the like, which, as many of you may know, Indiana has a mini RFRA. It has a statutory RFRA. And claims -- and then, Indiana has recently enacted, in the wake of Dobbs, a very restrictive abortion statute. And that abortion statute was challenged by several different women who claim that their religion requires them to obtain abortions under circumstances that Indiana law would otherwise prohibit and saying that Indiana’s RFRA law entitles them to exemptions. And so far, it’s gone up through two levels of the Indiana state courts, which have ruled in favor of the women’s right to obtain abortions, strangely not discussing at all how they would get them because there were no doctors in the case.

 

      But putting that aside, what was really striking to me is the hostility towards this litigation from folks who have spent many years passionately committed to religious exemptions, including the Becket Fund, which actually shockingly, in my view, filed a brief suggesting that these women among all of the religious exemption plaintiffs of recent years are insincere about their beliefs about what their religion requires -- a remarkable brief that I think is worthy of some attention and some concern, to my mind about what’s really going on here. And I wonder whether religious liberty is really what’s driving a lot of this litigation or whether it isn’t, in fact, more along the lines of the substantive debates on both sides, mind you. People care about the substantive questions. Obviously, these are very important substantive questions on which people have very deeply held beliefs apart from religious exemptions. The Indiana case is really one to watch, in particular how the religious exemption groups and committees treat that case as it goes forward.

 

Andrea Picciotti-Bayer:  I feel incredibly validated because I just wrote about the Indiana case --

 

Prof. Martin Lederman:  Oh, great. I’m looking forward to --

 

[CROSSTALK]

 

Andrea Picciotti-Bayer:  Yeah. No, you’d love it -- you’re going to love the piece. But I actually take the side of Becket on both this specific case of people presenting a religious claim to an abortion similar to claims by the Satanic Temple. I don’t know if you follow this line of cases. Both -- they’ve argued -- and I guess they -- Satanists do believe that there’s a religious ritual behind abortion, but the Satanic Temple, which is different than Satanists, are claiming it because they want a mockery of religion. And they’ve done that in Texas. They were actually trying to force, I think it was, HHS to provide abortion consist with religious freedom, responsibilities.

 

      They’ve also, incidentally, gone after elementary schools, where Bible study clubs are held after school on school facilities, to ask for after school Satan clubs, using religious freedom principles in order to push that agenda, mind you, claiming at the same time that they’re not really Satanists. So it’s a little hard to figure out. But I think that there is a very big issue at stake that religious freedom is kind of the hard issue in the Court right now, and I would love to see its proper understanding and its proper application. That’s where I’d love to see the Supreme Court and the Department of Justice provide measured briefs.

 

      I thought that Becket’s brief was very measured. I do think that there are issues. In general, we don’t question the truth of a person’s belief, and we’re reluctant to question the sincerity. But when it looks like religious freedom is being an argument that’s convenient as opposed to a genuine argument for advancing a claim, then I do think that it’s appropriate for the Court to question that. And I would say — and I may get people disagreeing with me — I saw that there were people making political arguments under the guise of religious freedom during the pandemic to oppose masks and things like that. And I think that it’s worth questioning the sincerity of the belief as being either religious or politically grounded.

 

      So I do think that it’s I disagree with Professor Lederman on the validity of the claims, but I do think that it’s a really important issue that the courts are going to be facing, not just in Indiana, but there are, I think, eight states where their laws -- their regulations surrounding abortion have been challenged on religious freedom grounds in twelve cases in those eight.

 

Prof. Martin Lederman:  Do we have time because we have at least one question? I could -- we could go on all day on this topic as well, and it’s really interesting. But I want to make sure you get your question in.

 

Elizabeth Slattery:  We are actually at the end of our time.

 

Prof. Martin Lederman:  Can we do a -- can she quickly interject? Maybe there’s a quick --

 

Elizabeth Slattery:  Very, very quickly.

 

Prof. Martin Lederman:  She’s been very patient.

 

Questioner 3:  I was -- I -- thank you very much. I was going to take the invitation to jump on Marty --

 

Prof. Martin Lederman:  Jump. But you got to do it quickly. Quickly.

 

Questioner 3:  All right. I’ll just say it seemed to me you took -- spent enormous amount of effort in your comments to say that the administration was culturally very attune to religious freedom, and on the cultural level, I was struck by the fact that you opened with repealing the Muslim ban, which, of course, was not religiously founded — that was directed to national security — and talking about Indian tribes. And if you have time to talk, I would just raise the issue of what’s going on in the Ivy League. No one takes more federal money than them of the energy that is putting in -- being put into very real antisemitism and whether there is a distinct lack of energy by the administration in pursuing that. So if that was the -- feel free to answer, but if that was the last word, thank you.

 

Prof. Martin Lederman:  No, no. I think that --

 

Elizabeth Slattery:  Thank you.

 

Prof. Martin Lederman:  -- I mentioned the fact that the President is and his administration’s deeply committed to efforts to stop antisemitism and Islamophobia. I think that’s pretty apparent. I disagree with you about the Muslim ban, but that’s an honest disagreement.

 

Elizabeth Slattery:  Agree to disagree.

 

Prof. Martin Lederman:  Agree to disagree.

 

Elizabeth Slattery:  Well, please join me in thanking our panelists.

 

 

 

 

 

10:40 a.m. - 12:00 p.m.
Breakout Panel 2 - Law and Order on the Border?

EBRXII

Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue
Washington, DC 20036

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Event Video

Description

In 2023, U.S. Customs and Border Protection recorded more than 3.2 million encounters with illegal immigrants entering the country; 169 of those apprehended while attempting to enter the country illegally were on the terrorist watchlist. Estimates of the number of people who cross illegally and are not apprehended continue to rise and in December 2023, there were 302,000 CBP encounters along the southern border, the highest monthly total ever recorded. In the last year alone, CBP seized 27,293 pounds of fentanyl along the southern border but it is estimated that this is only 5-10 percent of the total that crossed the border.

Texas recently passed SB. 4 a law that allows state and local authorities to apprehend anyone whom they believe is in the country illegally. The federal government administration has challenged the law’s constitutionality in court arguing that Texas is interfering with the federal government’s exclusive authority to regulate the entry and removal of noncitizens.

How is the federal government addressing immigration and pursuing enforcement policies? Is the Administration issuing regulations and executive orders that comport with the law? What role should states and their law enforcement authorities play? This panel will discuss these and other important related issues.

Featuring:

  • Hon. Mark Brnovich, Former Attorney General, State of Arizona
  • Dr. Sohan Dasgupta, Partner, Taft Stettinius & Hollister LLP
  • Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
  • Moderator: Hon. Beth A. Williams, Board Member, U.S. Privacy and Civil Liberties Oversight Board

Speakers

12:00 p.m. - 12:15 p.m.
Lunch Address with Speaker Mike Johnson

EBRXII

State Room
The Mayflower Hotel
1127 Connecticut Avenue
Washington, DC 20036

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Speakers

12:15 p.m. - 12:45 p.m.
Lunch

EBRXII

State Room
The Mayflower Hotel
1127 Connecticut Avenue
Washington, DC 20036

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12:45 p.m. - 2:30 p.m.
Luncheon Panel - U.S. Financial Regulation: Principles, Opportunities, and Challenges

EBRXII

State Room
The Mayflower Hotel
1127 Connecticut Avenue
Washington, DC 20036

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Description

This panel will bring together four former senior policymakers from the SEC or CFTC to discuss the current state of U.S. financial regulation. They will cover foundational concepts such as: the importance of evidence and data-based regulation; the need for regulators to recognize and appropriately adapt to changes in technology and markets; and effective enforcement. These former officials will also offer views on regulatory opportunities to further strengthen and increase the competitiveness of financial markets—while maintaining investor protections. The discussion will also cover several of the “hot button” policy topics of the day, such as disclosure rules for companies and crypto regulation.

Featuring:

  • Hon. Paul S. Atkins, Chief Executive Officer, Patomak Global Partners LLC
  • Hon. Robert J. Jackson, Jr., Professor of Law, New York University School of Law
  • Hon. Timothy G. Massad, Research Fellow, Harvard Kennedy School
  • Hon. Jill Sommers, Chair of the Derivatives Practice Group, Patomak Global Partners LLC
  • Moderator: Jeffrey T. Dinwoodie, Partner, Cravath, Swaine & Moore LLP

Speakers

2:45 p.m. - 4:30 p.m.
Breakout Panel 4 - Is Humphrey’s Executor Still Relevant?

ERBXII

East Room
The Mayflower Hotel
1127 Connecticut Avenue
Washington, DC 20036

Event Video

Description

Earlier this year Judge Jones and Judge Willett released dueling opinions on the applicability of Humphrey’s Executor to the Consumer Product Safety Commission post-Seila Law. Parties have also asked courts to determine whether Humphrey’s Executor even still applies to the FTC given the dramatic expansion of that agency’s powers since the 1930’s. This panel will explore the ongoing applicability of Humphrey's Executor to modern day independent agencies, the proper constitutional role of independent agencies, and the future of independent agencies if the Supreme Court revisits Humphrey's Executor.

Speakers:

  • Prof. Jennifer L. Mascott, Assistant Professor of Law, Antonin Scalia Law School, George Mason University
  • Michael McGinley, Partner, Dechert LLP
  • Prof. Jed Shugerman, Professor, Boston University School of Law
  • Brett Shumate, Partner, Jones Day
  • Moderator: Hon. Stephen Vaden, United States Court of International Trade

Speakers

2:45 p.m. - 4:30 p.m.
Breakout Panel 5 - Environmental Law and the Constitution: Exceeding the Limits

ERBXII

Palm Court Room
The Mayflower Hotel
1127 Connecticut Avenue
Washington, DC 20036

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In his Sackett v. EPA concurrence, Justice Thomas suggested that "many environmental regulatory schemes” appear to "push the limits" of the Supreme Court's constitutional jurisprudence. The Clean Water Act and Endangered Species Act regulate land use without a clear connection to interstate commerce. States complain that federal environmental regulation unnecessarily intrudes upon state sovereignty and privileges some environmental states over others. And environmental regulatory enforcement raises some of the same constitutional and due process concerns that have been raised about SEC and FTC enforcement. Does this mean that federal environmental law, as currently implemented and enforced, is unconstitutional?

Featuring:

  • Eric Grant, Partner, Hicks Thomas LLP
  • Matthew Kuhn, Solicitor General of Kentucky
  • Prof. Andrew Mergen, Emmett Visiting Assistant Clinical Professor of Law in Environmental Law
  • Moderator: Corrine Snow, Counsel, Vinson & Elkins

Speakers

4:30 p.m. - 6:00 p.m.
Closing Reception

EBRXII

State Room
The Mayflower Hotel
1127 Connecticut Avenue
Washington, DC 20036

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