Courthouse Steps Oral Argument: Gundy v. United States

10/09/18 • 44 min

Since 1789, the Supreme Court has struck down only two laws on “nondelegation” grounds, both in 1935. Gundy v. United States will potentially be a third such ruling, depending on whether the Deputy Solicitor General can convince the justices to save the delegation of authority in the Sexual Offence Notification Act (SORNA). The particular provision of SORNA at issue, which directs the Attorney General to decide whether SORNA’s registration requirements apply to sexual offenders convicted before the Act’s passage, may allow the Court to issue a narrow or broad ruling, but any opinion applying the nondelegation doctrine is likely to be a landmark ruling. The case directly affects three of the Federalist Society’s practice groups, and the case indirectly affects almost every other area of federal law.
The nondelegation doctrine operates to prevent Congress from delegating the lawmaking power the people vested in it to another branch or any other entity, but what is the core lawmaking power that Congress cannot delegate? How broadly can Congress phrase its legislation, and how much can it delegate to the regulatory agencies to fill in? The courts’ role in enforcing the constitutional delegation line is even more hotly debated. No justice has disagreed that the nondelegation rule is essential to maintaining the constitutional Separation of Powers, but some have expressed concern in prior decades about a judicially manageable standard for the courts to apply. In recent years, the Court’s lax enforcement of its “intelligible principle” standard from 1928 has been criticized by Justice Thomas, then Judge Gorsuch and many other commentators. The Gundy case presents the Court with a range of options, including from amici who have asked the Court to provide teeth to its intelligible principle standard or to adopt a textually-based standard that would more fully restore the delegation doctrine. How far will the majority go to revive the nondelegation rule, and will concurring justices urge additional movement in the same direction? Or will the doctrine, now on life support, be further diminished?
Todd Gaziano is the counsel of record for Pacific Legal Foundation’s brief in Gundy supporting reversal of the decision below, and joins us to discuss the oral arguments.
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Corporate Governance in 2018: Social Responsibility or Political Action?

Axios recently opined that:
Be it guns or global warming, a fascinating trend is unfolding in the Trump era: Corporations, under intense social pressure, are filling a void left bygovernmental gridlock or avoidance. (emphasis added) ... [t]his phenomenon is inspired not by the pure benevolence of corporations. Instead, it’s intense pressure from social media mobs ...
Seeking a remedy to the “governmental gridlock,” Senator Elizabeth Warren introduced the Accountable Capitalism Act,which would seem to codify political government involvement in what has historically been viewed as the exercise of free market capitalism by U.S. based business entities.
Charles Elson and Mark Nance join us to discuss this trend and what the law regarding a board’s duty to stakeholders is and should be.
Featuring:
Charles Elson, the Edgar S. Woolard, Jr., Chair in Corporate Governance and the director of the John L. Weinberg Center for Corporate Governance at the University of Delaware.
Mark Nance, Senior Vice President and Global General Counsel for Mylan N.V
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

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The Right To Be Forgotten

The “right to be forgotten” refers to the right of individuals to have a company remove or delete their personal data when the company has no apparent justification for continuing to keep it. The “right to be forgotten” was established by the European Court of Justice in 2014, when it ruled that individuals had the right to request the removal of links to either irrelevant or outdated materials. Over half a million requests for link removals have occurred since the ruling, of which Google acquiesced to nearly half.
Earlier this year, the High Court of Great Britain ruled against Google in a landmark court case, and sided in favor of advocates for the right to be forgotten, ruling that Google had to comply with a businessman who requested his previous criminal record of a sentence served over a decade previously be removed from the search engine.
Currently Google is again before the European Court of Justice, seeking to win a case against a French data protection authority. The data protection authority argues with the support of both the French and Austrian governments, that the right to be forgotten should apply worldwide. Google is joined by various media companies to combat this approach, and the decision will undoubtedly have significant implications for search engines and social media giants including Facebook, Google, Yahoo, and Twitter. The issue poses tough questions for how to balance individual rights to privacy, with the public right to information.
Professors Jane Roberta Bambauer, and Meg Leta Jones, join us to discuss and debate this controversial issue, and predict what it may mean for global corporations moving forward.
Featuring:
Prof. Meg Leta Jones, Assistant Professor of Communication, Culture & Technology, Georgetown University
Prof. Jane Bambauer, Professor of Law, James E Rogers College of Law, University of Arizona
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.