RTP's Fourth Branch Podcast

The strictures of the Appointments Clause are receiving renewed attention in the courts, including the Supreme Court. A year ago, the High Court ruled that the SEC’s administrative law judges must be appointed in conformity with this clause, and it has placed another Appointments Clause case on the docket for its next term. In Buckley v. Valeo (1976), the Court held that rulemaking was a sig...

The Federal Reserve plays a central role in the nation’s payment systems. Reserve banks keep currency in circulation to meet demand, provide check collection services to banks, operate payment systems, and provide financial services to the United States government and foreign institutions. The Federal Reserve is currently exploring ways to support faster payments in the U.S. The potentia...

On June 18, 2019, the Federalist Society's Article I Initiative and Regulatory Transparency Project hosted a panel on "Agency Rulemaking: Unnecessary Delegation or Indispensable Assistance?" at the National Press Club in Washington, DC. In his recent article, “Strategic Institutional Positioning: How We Have Come to Generate Environmental Law Without Congress,” published in the Texas A&M Law Revie...

Last week the Supreme Court decided the much-anticipated Kisor v. Wilkie case. The Court had granted certiorari in Kisor to decide whether to overrule Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997). Seminole Rock and Auer are often cited for the proposition that when an administrative agency promulgates a regulation and the regulation is ambiguous...

The U.S. Supreme Court’s decision in Gundy v. United States disappointed some observers who were hoping that the Court would use the case to reinvigorate the nondelegation doctrine. Will the 4-1-3 decision here leave the status quo intact or embolden lower courts to identify more nondelegation problems? Will Congress view this outcome as an invitation to delegate more decisions about the scope of...

On June 4, 2019, a Ninth Circuit panel heard oral argument in a high-profile interlocutory appeal in Juliana v. United States, regarding whether the U.S. Constitution gives rise to cognizable constitutional and federal common law claims against the Executive Branch for actions alleged to cause or contribute to climate change. The Juliana plaintiffs – most of whom were minor children when the suit...

On May 8, 2019, the Ninth Circuit issued a 2-1 decision in Cedar Point Nursery v. Shiroma. In Cedar Point, California agricultural growers asked the court to invalidate an Agricultural Labor Relations Board regulation that allowed union organizers to come on to the growers’ property to solicit workers to join the union for 3 hours per day and 120 days per year. The growers contend that the regulat...

LIBOR is a hugely important interest rate benchmark, used globally and embedded in over $200 trillion of financial contracts. It has its notable shortcomings, including having been subject to scandalous attempts at manipulation. Financial regulators, notably the New York Fed, want it to disappear and be replaced by another index. But can the regulators succeed in their effort? Will LIBOR disappear...

One of the final acts of former Bureau of Consumer Financial Protection (CFPB) Director Richard Cordray before he left to run for Governor of Ohio in 2017 was the issuance of a comprehensive rule governing payday loans, auto title loans, and other small dollar loans. The centerpiece of the rule would have imposed a new "Ability to Repay" (ATR) underwriting standard on providers of these small doll...

Recently, members of the United States Senate and United States House of Representatives have introduced the "Loan Shark Prevention Act," which imposes a nationwide 15% interest rate ceiling on all consumer credit products, from credit cards to payday loans. They also propose to empower the United States Post Office to engage in the practice of consumer retail banking. This Teleforum examines the...

This episode brings you the audio from the opening panel of the Federalist Society's 7th annual Executive Branch Review Conference. The panel featured Counsels from the Department of Transportation, Department of Energy, Department of the Treasury, Department of Agriculture and the EPA. The speakers take stock of the current administration's regulatory reform agenda two years on. Featuring: - Hon....

It is currently a federal crime, under the Bald and Golden Eagle Protection Act, for many Native Americans to possess eagle feathers for religious use. Congress authorized the Department of the Interior (the Department) to permit an exception for eagle feather use for “the religious purposes of Indian tribes” in 1962, yet more than 50 years later the Department’s regulations exclude millions of si...

Regulation is a pervasive and increasingly a contentious issue in 21st Century America. The propriety of any given regulatory imposition may be debatable; however, in this discussion we address bigger questions about how regulation works as a whole—whether, in the aggregate, regulation at the federal, state and local level is working well, or impacting innovation and economic opportunity. What are...

The Texas Tech Medical School recently approved an agreement with the United States Department of Education's Office for Civil Rights, to end the use of racial preferences in their admissions process. The agreement was reached after over a decade of negotiation, initiated by a complaint filed by the Center for Equal Opportunity against Texas Tech in 2004. The agreement is a promising sign for oppo...

This Deep Dive episode brings you the audio from the final panel at the Pepperdine Law Review's 2019 Symposium "Regulating Tech: Present Challenges and Possible Solutions". In this panel, leading thinkers from across the emerging tech space discuss the regulatory environment for everything from drones to ridesharing. Featuring: - William Goodwin, Head of Policy, Regulatory, and Legal, Skyryse - Ry...

On February 14, 2019, the Environmental Protection Agency and the U.S. Army Corps of Engineers published a proposed rule defining “waters of the United States” under the Clean Water Act (CWA). This is a critical definition because it clarifies the waters that are regulated under the CWA. For decades, the EPA and Corps have struggled to come up with a proper definition that is both consistent with...

Cryptocurrencies have been around for 10 years, but there remains significant ambiguity in the tax consequences of their use. A recent report by Coin Center identifies six of those ambiguities and recommends approaches to resolving them. James Foust, the report's author, will provide an overview of what is and is not known, and suggested actions that Congress and the IRS could take to fill the gap...

After over two years of regulatory inactivity, the Wage and Hour Division of the U.S. Department of Labor recently published three proposals to revise the FLSA regulations – on joint employment, the “white collar” overtime exemptions, and the regular rate/overtime calculation. All three will have a significant impact on how employees are classified and paid. In its Notice of Proposed Rulemaking (N...

Most people would be surprised to discover that music is among the most regulated of all the products and services they enjoy each day. Through a combination of historical accidents, momentum, and politics, the U.S. government has ended up strictly controlling the prices that radio stations, streaming services, and others pay to use music, and also regulating the terms of sale. This strict control...

Senator Elizabeth Warren recently claimed that big tech companies like Amazon, Google, and Facebook have grown into monopolies that make it effectively impossible for smaller competitors to gain a foothold in the market. As a potential fix, she proposed that the government should unwind past anti-competitive mergers. There is fierce debate about governmental oversight of big tech companies and the...

This Deep Dive episode brings you the audio from a recent teleforum co-hosted by the Regulatory Transparency Project and the Federalist Society's Environmental Law & Property Rights Practice Group. This episode deals with a pending lawsuit in the Western District of Washington: Lighthouse Resources v. Inslee. This case, which involves a dispute over permitting construction for a coal export termin...

This Deep Dive episode brings you the audio from the keynote address at the 2019 Pepperdine Law Review Symposium: "Regulating Tech: Present Challenges and Possible Solutions". In this keynote, Roger Alford, Deputy Assistant Attorney General for International Affairs, addresses a number of issues in antitrust regulation and enforcement, including consent decrees, consumer welfare, and the challenge...

This Deep Dive episode brings you the recording of a teleforum co-sponsored with the Federalist Society’s Environmental Law practice group. In this episode, Adam Gustafson and Daniel Farber discuss various approaches to considering co-benefits in the cost-benefit analyses of new air pollution regulations, and whether the standing approach is the most efficient and cost-effective. Featuring: - Prof...

This Deep Dive episode brings you the recording of the second panel from the Pepperdine Law Review's 2019 Symposium "Regulating Tech: Present Challenges and Possible Solutions". In this panel, the speakers debate varying standards for antitrust rule-making and enforcement. The merits of the Neo-Brandeisian "populist" approach are weighed against more recent "consumer-welfare" standards. Featuring:...

This Deep Dive episode brings you the recording of the first panel from the Pepperdine Law Review's 2019 Symposium "Regulating Tech: Present Challenges and Possible Solutions". In this panel, the speakers discuss the implications of internet privacy legislation in both California and Europe on innovation, small businesses, and consumer protection. Featuring: - Thomas Hazlett, Hugh H. Macaulay Endo...