The annual Federalist Society Lawyer’s Convention was held this year from November 15 to November 17, 2018 in Washington, D.C. The topic was “Good Government Through Agency Accountability and Regulatory Transparency.” I had the privilege of attending again this year and will share with you some thoughts. It is impossible to summarize and reflect on all the discussions, so I will share my favorite moments.
The weekend opened with a rousing address from Senator Mike Lee that focused on the reality of the political and legal landscape that we are currently facing that has bred such hostility from the left as culminated by the Brett Kavanaugh hearings. He also called for further government accountability for policy decisions and recognizing the importance of the separation of powers.
Here are highlights from some of the major panels that were presented:
Role of Agencies
In the panel, “What is Regulation?”, a notable highlight was a spirited debate that took place between Jon Michaels- professor at UCLA law and Philip Hamburger – professor at Columbia Law to discuss the appropriate level of regulation and oversight of agencies. Jon Michaels took an approach that embraces the role of agencies in our society and considered their strengths. While acknowledging that there can be difficulties, as a whole, Michaels is supportive of the agency process established and maintaining the APA. Professor Hamburger took a more absolutist approach to agencies and supports them being curtailed and challenged several aspects of their rule making process. There has been too much latitude given to an unelected branch of government which in turn unfairly minimizes the impact of public participation in the process. Several regulations that arise from the rule making process do have a significant impact on society- the public deserves more transparency and the agencies must be held accountable for their actions.
In the panel on stare decisis, moderated by Supreme Court finalist and Seventh Circuit Judge Amy Barrett and containing Neil Eggleston, Kannon Shanmugam and John Baker a lively panel discussion was presented on the future of stare decisis with the Supreme Court moving forward. Stare decisis is the legal philosophy in which past decisions by the Supreme Court are a central guiding point in present adjudications. It calls on the Supreme Court to first apply and obey past precedent when reaching its decisions in present matters. This philosophy emphasizes the power of the judiciary and common law, but is not always driven by Constitutional interpretation if the two conflict. There was a notable exchange in which concern was expressed that the new 5-4 majority would be open to overturning wide-standing judicial precedent to the detriment of the nation. This, one of the panelists argued would be a raw exercise of judicial power. However, a question was presented in which this argument was challenged. “What if this new 5-4 decision overturned precedent and in doing so returned the power on an issue back to the states? Would this in fact then be a decentralization of power from the judiciary?” In a surprise to the audience, the panelist and the remainder of the panel declined to answer the question. The failure to address this challenge speaks volumes about sentiment on this issue. There has not been an adequate resolution proposed that recognizes that the Constitution and precedent can be easily drawn into conflict. It would be appropriate to reconsider the influence of stare decisis when handling these issues especially with regards to matters that considered past state law at tension with current Supreme Court law that had absorbed power from the states.
Overall, there were some interesting points considered by the panel and questioners on stare decisis. Does applying stare decisis more consistently and concretely preserve the legitimacy of the judicial branch or when prior issues are reconsidered and opinions issued that are more in line with the Constitution, is this the true test of judicial legitimacy? I tend to fall into the latter camp, but I think it is fair to contemplate that the new Supreme Court will be more likely to reconsider prior questions than past generations of the Court.
Another interesting panel focused on discrimination against minorities, with the main focus being the recent case involving Harvard’s discrimination against Asian Americans in their admissions process. This panel was very informative and a first-hand account of this litigation was presented by Patrick Strawbridge, an attorney working on the case. He discussed the background and litigation process to date. In sum, Asian American students disproportionately have been impacted by the factors used by Harvard in their admissions process. While these students typically score higher in terms of academic performance and community service, their scores are typically held back when the personality factor is considered. There are questions regarding this extra factor and the reason for its inclusion among others. If this was not considered, Asian Americans would occupy a higher portion of the incoming class.
Mr. Strawbridge and fellow panelist Dr. Althea Nagai also discussed that trends and testing have indicated that many other schools in the nation have seen an influx of Asian American students in their incoming class yet Harvard’s statistical percentage of Asian American students has remained stagnant for many years. This affirmative action matter will likely make its way to the Supreme Court at some point within the next few years and may in fact challenge the present affirmative action case law. Time will tell if affirmative action is scaled back based on this development. Professor John Yoo of Berkley Law and Harvard graduate, offered that affirmative action does not correct the underlying problems that exist in society today. Instead of focusing its resources in affirmative action, the government should be putting more resources into K-12 education including vouchers and charter schools. If a stronger dedication to this level of education is promoted, it could avoid problems for students in the long-term that require affirmative action for some applicants to be viewed as competitive in the admissions process.
Judge Jeffrey Sutton of the 6th Circuit
Judge Sutton provided a very informative discussion on his thoughts on how we should re-contemplate federalism and the role of states in our nation’s governing system. Too often the focus is on the United States Supreme Court when addressing significant legal questions whereas states have addressed much of the questions in their own governing body and state constitutions. If we look to how various state constitutions considered specifically questions of individual liberty it could be a valuable asset in interpreting these matters on a federal scale. Judge Sutton wrote a book, “51 Imperfect Solutions: States and the Making of American Constitutional Law” in which his discussion was based off. A more detailed and thorough review of the book will be the subject of a future post. One thing is certain, however, Judge Sutton raised some major issues with appreciation for state interpretive methods in his discussion. The United States Supreme Court would be wise to consider his points when assessing the next major cases involving individual liberties.
Debate on District Court Universal Injunctions
The 11th Annual Rosenkranz debate featured Professor John Harrison of University of Virginia School of Law and Neal Kayal, partner at Hogan Lovells who has clerked for Justice Stephen Breyer on the U.S. Supreme Court. They debated a very timely topic, “whether district courts have the authority to enter universal injunctions.” Professor Harrison took the view that they did not have this authority and issuing these injunctions is overbroad relief and outside the scope of their jurisdiction. Neal Kayal took the opposing position and argued while universal injunctions should be rare, they are warranted in complex cases such as the recent issues with immigration injunctions because it is an issue that impacts many and not confined to those initially named in the district matter before the judge. This topic will invoke further discussion as the Supreme Court begins to tackle the injunction decisions of the district courts.
Overall, the Federalist Society Lawyer’s Convention was very informative and it was a privilege to be able to attend and learn the various legal perspective from expert scholars, judges and lawyers at the forefront of tackling current Constitutional law issues. I would encourage attendance to students and anyone in current practice. Constitutional law issues are impacting us every day- healthy debate and intellectual discourse that challenge one to look further then the mainstream media and cable news headlines connects us with law and invites us to provide informative insight on these issues. Perhaps some of us will one day be at the forefront of these battles, but for right now, it is the time to learn and absorb knowledge.