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Dear friends, 

Save the dates! The Gray Center is gearing up for two spring conferences, both located at the landmark Mayflower Hotel in Washington, D.C., where we hope you'll join us.
 
First, on March 18, the Center will convene its first annual Gray Lecture on the Administrative State, which we hope will become one of the Center’s keynote events each year. This was originally scheduled for March 2020, but it was canceled because … well, we all remember March 2020.
 
We’re excited to finally get to do this event and to announce the featured speaker. And after his lecture, we’ll have a panel discussion on the future of agency independence, in light of the Supreme Court’s decisions in Seila and Collins. Keep an eye on your inboxes for an email announcing the keynote speaker and panelists.
 
Next, on April 8, the Center will co-host a conference with the Ethics and Public Policy Center (EPPC) on the future of religious liberty and the administrative state. Questions of religion and administration have become ever more salient; you might recall a conference that we hosted in 2019, with Judge Kyle Duncan and a variety of scholars and practitioners, to explore the issues and trends. But given the last few years’ events, especially the conflicts between religion and regulation that rose to the Supreme Court, we think that this is the right time to return to such themes with the benefit of still more insight and experience.
 
So please stay tuned for that announcement, too!
 
We think this month’s newsletter is a good reminder of the Center’s focus on connecting ideas to governance, and vice versa. We hosted a webinar with two of Washington’s most insightful Supreme Court litigators — Hash Mooppan and Deepak Gupta — for a “halftime” discussion of the Supreme Court’s current term. And we published two new policy briefs on major issues — “the Waters of the United States” and social media regulation — by two experts who draw from significant government experience.

All the best, 
Jenn Mascott & Adam White
Co-Executive Directors
The Gray Center
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More Gray Center events coming this spring!

March 18: The First Annual Gray Lecture on the Administrative State--Featuring a very special guest speaker TBA
@The Mayflower Hotel

April 8: Religious Liberty & Law: In the Courts, In the Public Square, & In Administration
Co-hosted with the Ethics and Public Policy Center (EPPC)
@The Mayflower Hotel

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Our International Guest

The Gray Center was lucky to host an international guest this month. Przemyslaw Ostojski visited us from Poland, where he is a professor at the Academy of Justice in Warsaw, and a public attorney representing the Polish Attorney General in cases before the European Union’s Court of Justice and Poland’s Supreme Administrative Court. During his two weeks at the Gray Center, he continued his research on the similarities and differences between American and EU administrative law. The entire Gray Center enjoyed his visit, and we’re looking forward to the fruits of his research.
Now Streaming and Podcasting:

The Gray Center's recent webinar, analyzing the Supreme Court's 2021 term currently in progress, is now available on YouTube and as a podcast.
The Administrative State Goes to Court: A "Halftime" Analysis of the Supreme Court's Term

Halfway through the Supreme Court’s term, the Justices already have issued decisions with major consequences for the administrative state — most recently, its decisions on the OSHA and HHS vaccine mandates. Next, the Court will hear cases involving the breadth and limits of the EPA’s powers on climate and energy regulation. And we are awaiting the Court’s decisions in cases involving Chevron deference and New York’s administration of gun laws, among other things.

To discuss the current state of the Supreme Court’s constitutional and administrative law cases, and other cases that are pending on the Court’s docket — or which may soon be added to it — the Gray Center hosted a panel discussion featuring two insightful Supreme Court advocates and the Gray Center’s co-executive directors:

  • Deepak Gupta, Founding Principal, Gupta Wessler PLLC; Lecturer, Harvard Law School
  • Hashim M. Mooppan, Partner, Jones Day
  • Adam White, Co-Executive Director, The Gray Center; Senior Fellow, American Enterprise Institute
  • Moderator: Jennifer Mascott, Assistant Professor of Law, Antonin Scalia Law School, George Mason University; Co-Executive Director, The Gray Center

Policy Brief Series:
Read the Latest

The Gray Center's Policy Brief Series is a collection of short articles on timely topics related to the administrative state

By Susan Parker Bodine
No statute pursues its objective at all costs. Congress is far more chary when granting authority to administrative agencies. Yet, many judges have relied on the goals of the Clean Water Act when interpreting the definition of “navigable waters.” Adopting the same approach, in 2015 EPA even relied on scientific studies of dispersal of biological material through animals and birds to help support a broad definition of “water of the United States.” This purposive approach to Clean Water Act jurisdiction is not supported by the text, structure, or historical context of the Clean Water Act. Read the article>>

By Adam Candeub
Following common law, section 230(c)(1) exempts internet platforms from legal liability created by statements their users post. But, thanks to unwarranted statutory interpretation, courts have expanded section 230(c)(1) beyond its common law and textual moorings in two ways: (i) reading the provision to give the platforms absolute immunity–including from knowingly distributing unlawful content and (ii) ruling that section 230 protects against the platforms’ own editorial decisions—as opposed to the editorial decision of their users. Courts have criticized this expansion as without basis in statutory text, legislative history, or congressional intent or purpose—let alone any conceivable policy justification. This judicial expansion of section 230 allows the platforms to turn a blind eye to sex trafficking, obscenity, terrorism, and other sorts of unlawful content. The judicial expansion also allows the platforms to remove users and their content in violation of civil rights, consumer fraud, and contract law. The Trump Executive Order 13925 (E.O. 13925) directed the National Telecommunications & Information Authority (NTIA) to petition the Federal Communications Commission (FCC) to implement regulations to correct judicial misinterpretations of section 230. Successful in demonstrating to the FCC that it had authority to issue these regulations, the NTIA Petition sets forth the roadmap for section 230 reform that can protect users and promote free speech online. Read the article>>
Working Papers Series:
Read the Latest

The Future of the FTC

Lessons Learned From COVID-19

Administrative Law in the States: Laboratories of Democracy
"Notice and Comment"
Things Worth Reading

Laboratories of Democracy, cont’d: As you can see from the list of recent Working Papers above, the Gray Center is studying the States’ experiments in reforming administrative law. We have more to come! And we’re not alone: recently our colleagues at Scalia Law’s Liberty & Law Center co-hosted a roundtable with the Pacific Legal Foundation, on state reforms. For three of their new papers, see here, here, and here.

“Dynamic Competition and Rational Regulation”: Our friends at the Mercatus Center and GWU’s Regulatory Studies Center published a collection of writings by the late Jerry Ellig.
 
“Extraordinary Governance”: Scalia Law’s Nelson Lund reviewed Purchasing Submission, Philip Hamburger’s recent book on Congress’s use of conditional spending, for Law & Liberty.
 
OIRA’s New Era: E&E News reported on OIRA’s efforts to push for more aggressive auto regulations—and the EPA’s resistance to its efforts.
 
“The 21st Century Presidency”: On February 15, the Bipartisan Policy Center will host a virtual event on “The 21st Century Presidency: Two Decades of Significant Change."