Second Annual Executive Branch Review Conference

Executive Branch Review Project

A key element of the Practice Groups' Executive Branch Review project is our annual conference. This year's Executive Branch Review Conference is scheduled for Wednesday, May 7th as a full day conference at the Mayflower Hotel in Washington, D.C. [Register now!]

A key element of the Practice Groups' Executive Branch Review project is our annual conference. This year's Executive Branch Review Conference is scheduled for Wednesday, May 7th as a full day conference at the Mayflower Hotel in Washington, D.C.

Welcome & Opening Address - Audio/Video
9:00 – 9:30 a.m.
East Room

  • Hon. David M. McIntosh, Partner, Mayer Brown LLP and Vice-Chairman, Board of Directors, The Federalist Society
  • Hon. Tom Cotton, U.S. House of Representatives, Arkansas

Suspension of Laws: What are the Limits of Executive Authority? - Audio/Video
9:30 – 10:45 a.m.
East Room

From enforcing and defending the Defense of Marriage Act, implementing the Affordable Care Act, enforcing federal marijuana laws, to making changes to sentencing guidelines, the Executive Branch has chosen less than vigorous action. What are the limits on the Executive’s authority to defer? When may, and may not, the Executive choose not to act, or to act less vigorously, and still meet the requirements of the Take Care Clause?

  • Ms. Brianne Gorod, Appellate Counsel, Constitutional Accountability Center
  • Prof. Nicholas Quinn Rosenkranz, Georgetown University Law Center
  • Prof. Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law; Director of the Environmental Law Advocacy Center; Executive Director, Project for Older Prisoners, The George Washington University Law School
  • Moderator: Mr. Stuart S. Taylor, Jr., Nonresident Senior Fellow in Governance Studies, The Brookings Institution

Policy without Process? - Audio/Video
9:30 – 10:45 a.m.
Promenade Ballroom

The Administrative Procedure Act (APA) defines the process by which federal regulatory agencies are to adopt and enforce federal regulations. Many commentators, however, argue that the federal government has for years engaged in the practice of implementing and enforcing policy while evading the notice and comment requirements of the APA. Critics site informal agency guidance, opinion letters, regional office actions, and other agency actions that purport to bind at least some stakeholders. What are the limits? How real are other commentators complaints about the “sue and settle” phenomenon, described as a less-than-adversarial suit brought against, for example, the Environmental Protection Agency (EPA). Such a suit, it is claimed, argues for an expansion or broader reading of the EPA’s regulatory authority which, after resolution of the suit via settlement, is agreed to by all parties. Finally, what are the limits of unilateral action by a President via executive order?

  • Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law; Director, Center for Business Law and Regulation, Case Western Reserve University School of Law
  • Mr. William L. Kovacs, Senior Vice President, Environment, Technology & Regulatory Affairs, U.S. Chamber of Commerce
  • Prof. Stephen I. Vladeck, Professor of Law, American University Washington College of Law
  • Moderator: Hon. Susan E. Dudley, Research Professor of Public Policy and Public Administration and Director, Regulatory Studies Center, The Trachtenberg School of Public Policy and Public Administration, The George Washington University

Disparate Impact Analysis - Audio/Video
11:00 a.m. – 12:15 p.m.
Promenade Ballroom

Under disparate impact analysis, certain practices might be considered discriminatory if they have a disproportionate adverse impact on a protected class of persons, even without discriminatory intent. A number of commentators have noted an expansion of the use of disparate impact analysis in the federal government to areas other than employment, now including education, housing, government contracting, and auto financing, to name a few. Our panel of experts will discuss whether or not there has been such an increase, and, if so, what the ramifications might be.

  • Hon. Gail Heriot, Professor of Law, University of San Diego School of Law and Commissioner, U.S. Commission on Civil Rights
  • Hon. Peter N. Kirsanow, Benesch, Friedlander, Coplan & Aronoff LLP and Commissioner, U.S. Commission on Civil Rights and former Member, National Labor Relations Board
  • Prof. Theodore M. Shaw, Professor of Professional Practice in Law, Columbia University School of Law
  • Moderator: Mr. Adam Liptak, Supreme Court Correspondent, The New York Times

The Internal Revenue Service - Audio/Video
11:00 a.m. – 12:15 p.m.
East Room

The Internal Revenue Service (IRS) is in the headlines almost daily. This panel will discuss the IRS’s proposed revision to 501(c)(4) rules, the targeting of certain organizations in IRS review and approval processes, as well as the IRS’s determination, currently the subject of litigation, that individuals who participate in federally-run as well as state-run health care exchanges established under the Affordable Care Act are entitled to subsidies.

  • Mr. Michael A. Carvin, Partner, Jones Day
  • Dr. Craig Holman, Government Affairs Lobbyist, Public Citizen
  • Ms. Cleta Mitchell, Partner, Foley & Lardner LLP
  • Mr. Robert N. Weiner, Partner, Arnold & Porter LLP

The Contraceptive Mandate - Audio/Video
11:00 a.m. – 12:15 p.m.
Senate Room

Religion has long had a special place in our society and in the Constitution. Has that place been evolving? If so, how? What does the Constitution say about the role of the federal government, and the Executive Branch in particular, in the realm of religious liberties? This panel will take up such issues as the HHS contraceptive mandate, the U.S. Solicitor General’s positions in religious freedom cases, and other statutory and regulatory matters that have come to the forefront in recent years.

  • Mr. S. Kyle Duncan, Duncan PLLC
  • Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law
  • Prof. Martin S. Lederman, Georgetown University Law Center
  • Ms. Elizabeth B. Wydra, Chief Counsel, Constitution Accountability Center
  • Moderator: Mr. Robert Barnes, Supreme Court Correspondent, The Washington Post

Luncheon Panel: Executive Power and the Role of the Coordinate Branches - Audio/Video
12:30 p.m. – 2:00 p.m.
State Room

What are the duties and responsibilities of the Legislative and Judicial Branch in policing Executive Branch activities? Has the administrative state grown to an extent that the very balance of power between the three branches has changed, and have the coordinate branches taken a step back? When it comes to the separation of powers, and ensuring one branch does not encroach on the proper authority of another, Federalist 51 advises that, “Ambition must be made to counteract ambition.” Should Congress provide more robust oversight, or use its power of the purse more readily to rein in the Executive? Has the judiciary, through the non-delegation doctrine, Chevron deference, and its recent City of Arlington decision, struck the right balance? These and other questions will be addressed by our panelists.

  • Mr. Charles J. Cooper, Partner, Cooper & Kirk, PLLC
  • Prof. William N. Eskridge, Jr., John A. Garver Professor of Jurisprudence, Yale Law School
  • Prof. Neomi Rao, Associate Professor of Law, George Mason University School of Law

Keynote Address - Audio/Video
2:15 p.m. – 3:00 p.m.
Promenade Ballroom

  • Hon. Ted Cruz, U.S. Senator, Texas 

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