RTP's Fourth Branch Podcast

During the COVID-19 pandemic, federal and state governments relaxed rules that limit telemedicine—technology that enables people to access healthcare from their phones and/or computers—to allow more patients to receive care from the convenience and comfort of their homes. Now, as the pandemic wanes, there are significant debates over whether these changes should be made permanent. In this episode,...

Collectively the Department of Labor, Equal Employment Opportunity Commission, and the National Labor Relations Board play a pivotal role in almost every dimension of employment in the nation. This inaugural panel discusses recent developments in the regulatory regimes of each and grades their performance over the four years of the Trump Administration. Greg Jacob moderates the discussion and pres...

Drones are rapidly becoming part of our everyday lives, and society will soon need to grapple with profound issues related to property, privacy, and nuisance. While drones are aircraft, the laws governing aircraft may soon be challenged as drones operate closer to the ground and in airspace never before occupied by manmade flying objects. The unique flying capability of drones is what makes them s...

Protecting and preserving competition are the key objectives of U.S. antitrust laws, which are all phrased as prohibitions: on agreements "in restraint of trade," of mergers and acquisitions where the effect "may be substantially to lessen competition, or to tend to create a monopoly," and on "unfair methods of competition." In a July 2021 Executive Order, the Biden Administration directed agencie...

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) in 2012 determined that forearm stabilizing braces for firearms serve a legitimate function and do not automatically subject a firearm to the strict requirements of the National Firearms Act of 1934. In December 2020, however, the BATFE proposed new regulations that could subject almost all firearms with forearm stabilizing braces to...

In June, President Biden revoked a Trump-era executive order that sought to ban TikTok and WeChat, and replaced it with a new executive order directing the government to review the security threats posed by foreign-controlled software applications. "The Federal Government should evaluate these threats through rigorous, evidence-based analysis," Biden's order dictated, "and should address any unacc...

In September 2020, the Centers for Disease Control and Prevention (CDC) issued its first nationwide eviction moratorium. Since then, the CDC renewed the moratorium several times and most recently issued a new eviction moratorium that is substantially the same as prior versions, but its applicability depends on COVID-positivity rates in each jurisdiction. Under the CDC eviction moratorium orders, s...

The decision in United States v. Arthrex was extremely fractured, with a mix of majority, concurring, and dissenting opinions that cut across traditional jurisprudential divisions on the Supreme Court. Although the split majority held that the appointment of the Administrative Patent Judges at the Patent Trial & Appeal Board (PTAB) violates the Appointments Clause, the Court ultimately remedied th...

On June 21, 2021, the Court of Appeals for the Ninth Circuit ruled a shareholder-plaintiff had standing to sue California's Secretary of State. Creighton Meland, a shareholder at OSI Systems, Inc., sued alleging that Senate Bill 826, which was signed into law in 2018, violates the Fourteenth Amendment because it requires corporations to elect a sliding scale quota of women to corporate board membe...

In June, President Biden signed into law a bill that repealed changes to Environmental Protection Agency methane emissions regulations made by the Trump administration. In this episode, Professor Jonathan Adler joins the podcast to provide context to this development and to discuss the underlying legal and environmental issues at play. Featuring: - Jonathan H. Adler, Johan Verheij Memorial Profess...

"A Dubious Expediency: How Race Preferences Damage Higher Education" is a collection of eight essays written by experts in the field examining and analyzing the impact of racial diversity preferences and identity politics in American colleges and universities. The book's title comes from a 1976 California Supreme Court opinion in Bakke v. UC Regents authored by Justice Stanley Mosk, who wrote: "To...

The Congressional Review Act (CRA) was used in 2017 to overturn 15 rules issued near the end of the Obama administration. The shift in political control in the White House and Congress this year set the stage for a possible repeat with respect to Trump administration rules. The CRA's period for expedited congressional procedures (free of the Senate filibuster) has now expired for late Trump era re...

The antitrust agencies' approach to vertical mergers has been the subject of significant debate — with potential changes still on the horizon. Last summer, the Department of Justice and the Federal Trade Commission issued long-awaited Vertical Merger Guidelines, the first update since 1984. The FTC's challenge to the Illumina/Grail merger — which sits at the intersection of healthcare and developi...

Motivated in part by Congress's failure to modernize immigration policy in the United States, Presidents in recent years have turned to administrative law and the regulatory process to make major immigration policy. The Obama Administration's DACA and DAPA immigration policies come immediately to mind. So does the Trump Administration's attempted rescission of DACA, among other regulatory or execu...

The Supreme Court issued its decision in Cedar Point Nursery v. Hassid on June 23, 2021, holding 6-3 that a California regulation allowing California union organizers entry onto the private property of California growers constituted an uncompensated per se physical taking in violation of the Fifth and Fourteenth Amendments. The Ninth Circuit’s decision upholding the regulation was reversed a...

This episode features a panel discussion on Critical Race Theory, the 1619 Project and the current debates over how best to teach American history. Linda Chavez, Chairman of the Center for Equal Opportunity moderates the program and is joined by Peter Wood, President of the National Association of Scholars and author of 1620: A Critical Response to the 1619 Project, and John Agresto, former Presid...

In May 2021, Rep. Diana Harshbarger (R-Tenneessee) introduced the "Freedom to Work Act," a bill that would utilize the federal government to reduce occupational licensing requirements. In this episode, the Congresswoman joins Shoshana Weissmann to discuss the bill and the most prevalent arguments for and against its passage. Featuring: - Rep. Diana Harshbarger, United States Representative, Tennes...

In recent years, a number of regulatory agencies have increasingly utilized enforcement actions rather than formal rulemaking to achieve desired policy outcomes. Critics argue that this "regulation by enforcement" raises legal concerns involving fair notice, the rule of law, and the Administrative Procedure Act. One prominent example of this phenomenon is the regulation of the cryptocurrency indus...

Federal and state government authority to mandate automobile manufacturers and consumers switch to electric cars is one of the most contentious legal and policy debates of the last two decades. The Biden Administration has proposed to rescind two actions of the Trump Administration — EPA's withdrawal of a Clean Air Act waiver of preemption, and a Department of Transportation preemption regulation...

Over the past decade or so, increasing attention has been paid to agency guidance, the role it serves, and whether it has begun to supplant legally binding regulation as a governing tool. To place more parameters around its use, President Trump issued Executive Order 13891. President Biden rescinded that order upon taking office, and agencies are in the process of unwinding actions taken to implem...

The Biden administration had barely named a cabinet, let alone staffed the government, when it began taking cybersecurity hits from all directions. The Russian government was revealed to have carried out a sophisticated supply chain attack through SolarWinds. Then Chinese government hackers launched attacks through Microsoft Exchange, often using extremely irresponsible and promiscuous tactics. Th...

On June 10, the Kentucky Supreme Court heard a pair of cases to consider whether and to what extent the Commonwealth's legislature may set parameters on the Governor's exercise of emergency powers. In March 2020, Kentucky Governor Andy Beshear declared a state of emergency related to the COVID-19 pandemic. Since then, he and other executive branch officials have issued executive orders, regulation...

With his new casebook, "Administrative Law Theory and Fundamentals: An Integrated Approach," Professor Ilan Wurman seeks to provide fresh thinking to the field of administrative law. In the casebook, Professor Wurman proposes a theory of administrative power that he feels explains constitutional text and structure, as well as historical and modern practice, more completely than competing accounts....

In this episode, Anastasia P. Boden interviews Daniel Greenberg about his new article, "Regulating Glamour: A Quantitative Analysis of the Health and Safety Training of Appearance Professionals." ( https://repository.law.uic.edu/lawreview/vol54/iss1/2/) Featuring: - Daniel Greenberg, President, Advance Arkansas Institute - [Moderator] Anastasia P. Boden, Attorney, Economic Liberty Project, Pacific...

In a conversation moderated by Kimberly Hermann, Braden Boucek and Emily Hamilton discuss several proposed legislative reforms to land use restrictions. Featuring: - Braden Boucek, Director of Litigation, Southeastern Legal Foundation - Emily Hamilton, Senior Research Fellow, Mercatus Center, George Mason University - [Moderator] Kimberly Hermann, General Counsel, Southeastern Legal Foundation Vis...