Necessary & Proper Podcast

On March 28, 2023, Representatives Harriet Hageman and Chip Roy joined the Georgetown University Chapter of the Federalist Society for a discussion moderated by David Hoppe. Topics ranged from the representatives' careers prior to joining Congress to the proper role of Congress in the federal government, and the event concluded with audience Q&A.Featuring:- Hon. Harriet Hageman, U.S. Representative, Wyoming- Hon. Chip Roy, U.S. Representative, 21st District of Texas- Moderator: David Hoppe, President, Hoppe Strategies

On March 23, 2023, the Center for Constitutional Design at Arizona State University's Sandra Day O'Connor College of Law and the Federalist Society's Arizona State University Student Chapter and Article I Initiative co-hosted a debate about whether the legislative power can be delegated.The debate featured Professor James Stoner and Professor Michael Rappaport, and was moderated by Arizona State Supreme Court Justice Clint Bolick.Featuring:- Prof. Michael Rappaport, Hugh & Hazel Darling Professor of Law and Director, Center for the Study of Constitutional Originalism, University of San Diego School of Law- Prof. James Stoner, Hermann Moyse, Jr., Professor and Director, Eric Voegelin Institute, Department of Political Science, Louisiana State University- [Moderator] Hon. Clint Bolick, Justice, Arizona Supreme Court- [Introduction] Prof. Stephanie Lindquist, Foundation Professor of Law and Political Science and Director, Center for Constitutional Design, Sandra Day O'Connor College of Law, Arizona State University

The University of Richmond chapter of the Federalist Society hosted this panel discussion on "The Major Questions Doctrine, Chevron Deference & the Future of the Regulatory State" on Tuesday, March 21, 2023.Featuring:- Prof. Joel B. Eisen, Professor of Law, University of Richmond School of Law- Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School- Jonathan Wolfson, Chief Legal Officer and Policy Director, Cicero Institute

In November 2022, the District of Columbia City Council passed the Revised Criminal Code Act of 2022 (RCCA) that significantly reformed the D.C. Criminal Code to "modernize and overhaul" the District's criminal laws including a reduction in penalties for many violent offenses.D.C. Mayor Muriel Bowser initially vetoed the bill citing concerns about some of the changes, but the Council overrode her veto in early 2023. Because D.C. government is not autonomous from the federal government, the legislation requires Congressional approval.The U.S. House voted to nullify the bill, and the Senate is slated to vote on whether to block the bill this week. Should the Senate vote to block the D.C. bill, it could be the first time in almost 3 decades that Congress has nullified a D.C. law.If the Senate votes to nullify the law, the bill will go to President Biden to sign or to veto. While many had anticipated he would veto the resolution, President Biden indicated in a March 2 tweet that he would sign the resolution should it pass.On March 6, D.C. Council Chairman Phil Mendelson wrote a letter to the Senate attempting to withdraw the legislation. Such a withdrawal has not been attempted before. The Senate is still slated to take the issue to a vote later this week.As the Senate vote approached, we hosted a webinar featuring an opening address from U.S. Senator Bill Hagerty, followed by a discussion of the bill and what may come next.Opening Address Featuring:Hon. Bill Hagerty, United States Senator, TennesseeDiscussion Featuring:Zack Smith, Legal Fellow and Manager, Supreme Court and Appellate Advocacy Program, Edwin Meese III Center for Legal and Judicial Studies, Heritage Foundation

On October 17, 2022, the Federalist Society's Regulatory Transparency Project and Capitol Hill Chapter hosted part III in a lecture series on the administrative state. This discussion covered the major questions doctrine and how Congress may respond to the Supreme Court's decision in West Virginia v. EPA.Arguably unenforced for some time, recent federal court cases have once again raised the specter of nondelegation doctrine. In so doing, cases such as West Virginia v. EPA at the Supreme Court, and the 5th Circuit's decision in Jarkesy v. SEC, arguably throws into question the status quo under which administrative agencies have heretofore operated.This final event in the co-sponsored luncheon series on the administrative state investigated the impact such cases may have on Congress in terms of lawmaking delegation, and forecasted what Congress can expect if SCOTUS continues to enforce the nondelegation doctrine while moving away from former deference doctrines.Featuring:- Sarah Binder, Senior Fellow, Governance Studies, Brookings Institution- Daniel Flores, Senior Counsel, Committee on Oversight and Reform, House of Representatives- Moderator: Hon. Trevor McFadden, Judge, United States District Court, District of Columbia

This second event of a co-sponsored series on the Administrative State focused on the role of the administrative state in policymaking. Through its various roles and capacities, the Administrative state can have great leeway to create policy that has similar effects to rules and laws created through the legislative process but comes to be via different means. Agencies can make rules, issue guidance documents that often carry significant weight, interpret statutes, and enforce their rules. All these can contribute to agencies making policies that have the force of law.Some argue that this policy-making by non-elected individuals serving in the administrative state is improper and usurps elected officials' authority. Others contend this is a valuable and necessary part of the Administrative State's ability to operate as authorized, and that the policy-making capacity of the Administrative State is a net benefit.Panelists David Fotouhi, a current partner at Gibson, Dunn & Crutcher LLP who spent four years serving with the EPA, and Richard Peirce, a professor of Law at George Washington University who focuses on the Administrative State, discussed the policy-making power of the Administrative State, and the practical ways in which that power can often be applied. Judge Lisa Branch moderated.Featuring:- David Fotouhi, Partner, Gibson, Dunn & Crutcher LLP- Richard Pierce, Lyle T. Alverson Professor of Law, George Washington University Law School- Moderator: Hon. Lisa Branch, Judge, United States Court of Appeals, Eleventh Circuit

On Friday, November 11, 2022, Senator Mike Lee of Utah addressed the Federalist Society's National Lawyers Convention.Featuring:- Hon. Michael S. Lee, United States Senate, Utah

This first luncheon in a series on how the administrative state functions in modern American government featured former "regulations czar" Paul J. Ray, who served as President Trump's Office of Information and Regulatory Affairs Administrator (OIRA). As OIRA Administrator, Ray oversaw the review of hundreds of regulations, and led efforts on regulatory reform.The luncheon also featured Boris Bershteyn, a partner at Skadden, Arps, Slate, Meagher, and Flom, LLP. Mr. Bershteyn served as acting Administrator of ORIA in 2012 and 2013. He was also General Counsel of the Office of Management and Budget starting in 2011.Moderating this event was Hon. Stephen Alexander Vaden from the United States Court of International Trade. Before joining the bench, Judge Vaden served as General Counsel of the United States Department of Agriculture. During his nearly four-year tenure as head of the Office of General Counsel, the Department won two cases before the United States Supreme Court, relocated and reorganized the agencies that comprise the Department to better serve rural America, engaged in substantial regulatory reform, developed new regulations to allow for the legal sale of hemp and the labeling of bioengineered products, and implemented the 2018 Farm Bill.Featuring:- Boris Bershteyn, Partner, Skadden, Arps, Slate, Meagher, and Flom, former acting OIRA Administrator- Paul J. Ray, Director, Thomas A. Roe Institute for Economic Policy Studies, The Heritage Foundation, former OIRA Administrator- Moderator: Hon. Stephen Alexander Vaden, United States Court of International Trade

The Fourteenth Amendment prohibits anyone who has engaged in insurrection or rebellion against the United States after swearing an oath to support the Constitution from ever holding public office again. In light of this Disqualification Clause, some have called for participants in the riot that occurred on January 6, 2021 to be barred from future elections.Who has the authority to enforce this provision, the states or Congress? Normally states cannot add requirements for holding public office, but is this different, or is enforcement left to Congress itself through its ability to expel members?These questions took on new relevance on September 6, 2022, when New Mexico Judge Francis Mathew ordered that Otero County Commissioner Couy Griffin be removed from office effective immediately for his participation in the January 6 riot under the Disqualification Clause. While this decision is likely to be appealed, it could have serious implications for members of Congress and/or former President Donald J. Trump.Listen to a discussion on these important issues between James Bopp, Jr., who represented Congressman Madison Cawthorn against challenges to his office under the Disqualification Clause, and Pressly Millen, who represented the challengers to Congressman Cawthorn. That challenge was mooted after Congressman Cawthorn failed to win his primary, leaving the underlying questions unanswered. Joining Mr. Bopp and Mr. Millen will be Kory Langhofer, who successfully represented Congressman Andy Biggs before the Arizona Supreme Court on a Disqualification Clause challenge, and moderator Devin Watkins, an Attorney at the Competitive Enterprise Institute.Featuring:- James Bopp, Jr., General Counsel, James Madison Center for Free Speech- Kory Langhofer, Managing Partner, Statecraft- Pressly M. Millen, Partner, Womble Bond Dickinson- Moderator: Devin Watkins, Attorney, Competitive Enterprise Institute

Recently we were saddened to hear of the passing of Senator Orrin Hatch. In his honor, we hope you will enjoy revisiting remarks that Senator Hatch gave during the 2015 Federalist Society National Lawyers Convention. That year's Convention was focused on "The Role of Congress," and Senator Hatch eloquently discussed Congress's place in the Constitution's separation of powers as well as the importance of prudence in effective governance. The Senator was introduced by Leonard Leo, then Executive Vice President of the Federalist Society.Lee Liberman Otis, Senior Vice President and Director, Faculty Division at the Federalist Society, eulogized Senator Hatch here: https://fedsoc.org/commentary/fedsoc-blog/n-memoriam-orrin-hatch.Featuring:- Hon. Orrin Hatch, Former United States Senator, Utah- Leonard A. Leo, Former Executive Vice President, The Federalist Society

On March 24, 2022, Judge Stephen Schwartz joined the Federalist Society's Notre Dame Student Chapter to discuss the historical, theoretical, and practical reasons why law students should care about the Court of Federal Claims. Professor David P. Waddilove then provided a response and moderated an audience Q&A.Featuring:- Judge Stephen Schwartz, Judge, United States Court of Federal Claims- Prof. David P. Waddilove, Associate Professor, Notre Dame Law School

Some experts argue that the first and most important place for congressional reform is its power of the purse. With regular order a distant memory, annual budget proceedings failing to live up to the basic framework of the 1974 Budget Act, the ever-expanding role of the president in spending decisions, and regular threats of federal government shutdowns, some fear the legislative branch has lost its ability to oversee and control our nation's finances.Senator James Lankford joined us to discuss these issues and some of his specific solutions including the recently passed bipartisan "Taxpayers Right-to-Know Act" and his proposed "End Government Shutdowns Act." Thereafter, our panel of experts discussed those ideas and much more.Featuring:- Hon. James Lankford, United States Senator from Oklahoma- G. William Hoagland, Senior Vice President, Bipartisan Policy Center- Matthew B. Lawrence, Associate Professor of Law, Emory University School of Law- Molly Reynolds, Senior Fellow - Governance Studies, Brookings Institution- Moderator: Ilya Shapiro, Vice President and Director, Robert A. Levy Center for Constitutional Studies, Cato Institute

The Evansville Lawyers Chapter hosted Dave Hoppe, President, Hoppe Strategies, for a discussion entitled "How to Fix the Budget Mess."Featuring: - David Hoppe, President, Hoppe Strategies- Introduction: Seth Zirkle, Evansville Lawyers Chapter President

An expert panel discusses the impact that changes proposed in HR 4, the John R. Lewis Voting Rights Advancement Act of 2021, may have on drawing voting districts and litigating redistricting cases.Featuring: - Mark Braden, Of Counsel, BakerHostetler- Jeffrey M. Wice, Adjunct Professor of Law, New York Law School; Director, N.Y. Census and Redistricting Institute- Moderator: Maya Noronha, Visiting Fellow, Independent Women's Law Center

On September 29, 2021, former United States Representative Bob Barr joined the Federalist Society's Southern California Student Chapter to discuss the two-party system.Featuring:- Bob Barr, President and CEO, Liberty Strategies LLC

With Democrats holding power in both houses of Congress and the White House, how will congressional oversight and investigations affect private industry and the Biden administration during the 117th Congress? What should we expect if Republicans take back one or both houses of Congress in the midterm elections? What should private entities expect from congressional investigations, and what effect will recent court decisions such as Mazars have on industry? A panel of current and former congressional investigators discuss these issues and more, as well as how recent investigations and judicial decisions will affect the structural relationship between Congress and the Executive Branch in the years ahead.Featuring:- Ashley Callen, Deputy Staff Director, House Oversight and Reform Committee- Daniel Goshorn, Chief Investigative Counsel, U.S. Senate Committee on Finance- Allison Murphy, Former Chief Oversight Counsel of the House Select Subcommittee on the Coronavirus Crisis, Majority Staff; Partner in the Government, Regulatory & Internal Investigations Practice Group, Kirkland & Ellis- Christopher Armstrong, Former Chief Oversight Counsel, Senate Committee on Finance; Partner, Holland & Knight LLP- Moderator: Michael D. Bopp, Partner, Gibson Dunn & Crutcher LLP

Then-Senator Biden said in 2005 that "American citizens have benefited from the Senate's check on the excesses of the majority" with "minority protections" through the filibuster. Now, however, President Biden believes the filibuster is being abused and, potentially, impeding democracy. Is Senator Biden or President Biden right? Recent pressure from the press and powerful interest groups on the left seem to agree with President Biden and are urging senators to cast aside their centuries-old tradition of parliamentary procedure in favor of simple majority rule. Should they? What are the consequences if the Senate exercises the nuclear option? Can the Senate still act as our cooling saucer and protect against the "excesses of the majority" without the filibuster?Featuring:- Jon Kyl, Senior Advisor, Covington & Burling, and former United States Congressman and Senator- Martin Gold, Partner, Capitol Counsel LLC- Moderator: Peter Roskam, Partner, Sidley Austin, and former Congressman, Illinois' 6th Congressional District

The For the People Act was introduced in the House of Representatives in 2019 as H.R. 1, the symbolic designation marking it as the top priority of the new Democratic House majority. Described by its author, Representative John Sarbanes, as addressing "voter access, election integrity and security, campaign finance, and ethics for the three branches of government," the 570 page bill passed the House later that year, but was never voted on in the Republican-controlled Senate.The measure was reintroduced in the 117th Congress as H.R. 1 in the House and S. 1 in the Senate, but with still more provisions expanding it to over 800 pages. Proponents supporting passage have cited the importance of expanding voter access and fighting "voter suppression." Opponents argue that the bill significantly restricts free speech by changing campaign finance rules, creates the potential for widespread voter fraud by relaxing necessary voting integrity safeguards, and constitutes a federal takeover of state-run elections.The House passed the bill on a near party-line vote (1 Democrat voted "no"), and its fate now lies with the 50-50 divided Senate. Senate Republicans can block a vote with the filibuster, and H.R. 1 has been cited frequently as a reason to abolish the filibuster. But at least one Senate Democrat, Joe Manchin of West Virginia, has stated that he will not vote for the bill in its current form, depriving the legislation--for now--of even a simple majority.Mr. Bradley A. Smith, Chairman and Founder of the Institute for Free Speech and one of the nation's foremost experts on campaign finance law, joined the Federalist Society to discuss some of the more important provisions and implications of H.R.1/S. 1, the For the People Act.Featuring:- Bradley A. Smith, Chairman and Founder, Institute for Free Speech

On May 17, as part of their annual Executive Branch Review Conference, the Federalist Society's Practice Groups hosted an expert panel on the non-delegation doctrine.Whether as the result of hyper-partisanship or as a residue of the constitutional design for lawmaking, government by executive "diktat" is lately increasing. Many of these executive actions appear to have dubious — if any — statutory authority, but the courts have been reticent to validate objections along these lines. The U.S. Supreme Court has indicated a willingness to revisit and possibly to reinvigorate the non-delegation doctrine (with 5 Justices adhering to that view publicly), or at least to put some teeth into its supposedly constraining intelligibility principle. To do so, the Court first will have to grapple with whether Article I, Section 1 of the Constitution contains a non-delegation principle at all.Featuring: - Prof. Nicholas Bagley, Professor of Law, University of Michigan Law School- Prof. Philip Hamburger, Maurice & Hilda Friedman Professor of Law, Columbia Law School- Prof. Jennifer Mascott, Assistant Professor of Law, Antonin Scalia Law School- Prof. Nicholas Parrillo, William K. Townsend Professor of Law, Yale Law School- Moderator: Hon. Neomi Rao, United States Court of Appeals, D.C. Circuit

The Federalist Papers Book Club ran weekly on Tuesday evenings for 10 one-hour sessions beginning January 26th 2021. This session covers Federalist numbers 62, 63, 65, and 66, which discuss the United States Senate.The recommended edition of The Federalist is edited by Carey and McClellan, published by Liberty Fund. It comes in paper and online versions.The Federalist by Publius (AKA Madison, Hamilton, and Jay) contains 85 essays. The recommended reading pace was 9 to 10 essays per week. The sessions focus only on selected essays, however.Slides are available at https://fedsoc.org/federalist-papers-book-club.Featuring:- Dr. John S. Baker, Jr., Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University