Full Size CSAS Logo
Dear friends, 

This past month, the Gray Center hosted a legal policy conference on Capitol Hill to discuss the implications of the leaked Dobbs draft opinion for the Supreme Court as an institution. The conference also included a panel discussion of methods for Congress to exercise more effective oversight of Executive Branch activity. The conference was an extension of the Oversight & Separation of Powers briefing series that the Center’s Article I Venture has been providing for U.S. Senate and House legal and policy staff. During the conference, the Center was joined by the following former senior government officials:
  • Judge Thomas B. Griffith (formerly of the D.C. Circuit)
  • Sarah Isgur (ABC News Analyst and former DOJ Spokeswoman)
  • Steven G. Bradbury (former DOT General Counsel)
  • Hashim M. Mooppan (former head of the DOJ's Civil Appellate Division)
  • William R. Levi (former Chief of Staff for Attorney General William Barr)
  • Steven A. Engel (former Assistant Attorney General for the DOJ Office of Legal Counsel)
  • Jeffrey B. Wall (former Acting Solicitor General of the United States)
The Capitol Hill conference concluded with a keynote lunchtime conversation with former White House Counsel and Ambassador C. Boyden Gray. Ambassador Gray described how Congress has changed over the decades, discussed his experiences as a law clerk at the U.S. Supreme Court and as White House Counsel, and described aspects of Justice Clarence Thomas’s storied legacy on the Court. The video stream of this interview with Professor Mascott is available here, along with streaming of the Dobbs and oversight panel discussions.
On April 25, the center cohosted a conference with George Mason University's Law and Economics Center regarding the implications of the Federal Trade Commission engaging in rulemaking. The event began with a chat between FTC Commissioner Noah J. Phillips and Gray Center Co-Executive Director Adam White followed by a panel featuring Philips and former FTC Commissioner Maureen K. Ohlhausen. The commissioners and policy experts debated the potential for the FTC to use rulemaking authority in an expansive way in the near future.

Since our last newsletter, we have new Gray Center papers from Bijal Shah, Mila Sohoni, and Laura Jones & Patrick A. McLaughlin. Jenn Mascott testified before a U.S. Senate Judiciary Subcommittee about having the U.S. Supreme Court consistently operate within the limits of its constitutional role. The Gray Center's Separation of Powers Clinic has also filed amicus briefs in Nordlicht v. U.S. and Axon v. FTC, pending before the U.S. Supreme Court, and U.S. v. Crittenden, pending before the en banc 5th Circuit.

Thank you for your interest in the Gray Center's initiatives and academic research.

All the best, 
Jenn Mascott & Adam White
Co-Executive Directors
The Gray Center
Separation of Powers Clinic Update

On May 4, the clinic filed a brief in Nordlicht v. United States, arguing that the ready availability of new trials in cases where evidence is "doubtful" or a verdict "does not satisfy the conscience of the judge" promotes the right to a jury trial. Read the brief here.

On May 10, the clinic filed a brief in United States v. Crittenden, arguing that the 5th Circuit should affirm broad federal district court discretion to grant a second jury trial where a verdict was against the weight of the evidence under the text of Federal Rule of Criminal Procedure 33. Read the brief here.

On May 16, the clinic filed a brief in Axon Enterprise, Inc. v. FTC, arguing that allowing Axon to bring its challenge to an Article III court without exhausting its constitutional challenge before the commission itself would ensure the availability of meaningful judicial review and meaningful relief, help maintain consistency with removal protection precedents, and encourage parties to bring removal protection claims. Read the brief here.

Now Streaming and Podcasting:

Subscribe to our podcast and our YouTube channel so you don't miss any Gray Center programming.
Jenn Mascott testified before the U.S. Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights. She spoke about preserving the legitimacy of the U.S. Supreme Court by having the court consistently operate within the limits of its constitutional role. Read her testimony here.

Jenn Mascott appeared on Meet the Press to discuss the leak of the draft opinion in Dobbs v. Jackson Women's Health Organization and how the justices might react to the leak.

Adam White interviewed Wharton School Assistant Professor Brian D. Feinstein about his new paper, “Submerged Independent Agencies,” co-authored with the University of Chicago Law School’s Jennifer Nou. The paper discusses agency officials sub-delegating rulemaking powers to civil servants who are not appointed by the president, a court of law, or a department head, and lays out the constitutional implications of those arrangements.

Jenn Mascott spoke with Eric Segall on the Supreme Myths Podcast about her reactions to the leaked Dobbs draft opinion.

Jenn Mascott discussed Supreme Court cases involving the president’s power to appoint or remove officers on the University of Virginia School of Law's "Common Law" podcast.

The Gray Center hosted a conference on Capitol Hill on Congress's interbranch role, touching on the leak of the Dobbs draft opinion and current tensions between Congress and the other branches of government.
  • Watch the first panel, with Hashim M. Mooppan and William R. Levi discussing ways Congress can get nonpublic information from the Executive Branch and exercise oversight authority, moderated by former DOT General Counsel Steven G. Bradbury, here.
  • Watch the second panel, featuring a discussion about the leaked draft opinion in Dobbs and the future of the Supreme Court with former Judge Thomas B. Griffith, Sarah Isgur, and Jeffrey B. Wall, moderated by former DOJ OLC chief Steven A. Engel, here.
  • Watch the lunchtime conversation between Ambassador C. Boyden Gray and Jenn Mascott, here.

Adam White interviewed AEI scholars Peter J. Wallison and John Yoo about their new book, The Administrative State Before the Supreme Court: Perspectives on the Nondelegation Doctrine. They discuss common arguments about the nondelegation doctrine and whether the U.S. Supreme Court will start applying the doctrine to restrain administrative agencies.
Working Papers Series:
Read the Latest

Now available on the Gray Center Website:

New on SSRN:
Gray Center In the News:

"Notice and Comment"
Items of Interest

ACUS is hiring!: The Administrative Conference of the United States is looking to recruit an Attorney Advisor. Ideal candidates have more than one year of experience working as an attorney in a setting requiring them to independently manage a portfolio of projects or possess a demonstrated academic background in administrative law and regulatory procedure.

Clarifying Judicial Review Statutes: In The Regulatory Review, Professor Jonathan Siegel described working with ACUS to create a Sourcebook of Federal Judicial Review Statutes and mentioned recommendations to improve those statutes so people do not lose access to judicial review because of idiosyncratic requirements.

Sherif Girgis on the Draft Dobbs Opinion and Its Critics: For The Volokh Conspiracy, Sherif Girgis summarized his responses to critics of Justice Alito's leaked draft opinion in Dobbs.

Patents and Pharmaceutical Prices: Judge Susan G. Braden and Joshua A. Kresh wrote an article arguing that recent proposals to have the Department of Health and Human Services break pharmaceutical patents to lower drug prices might not work as advertised.

How Native Hawaiians and Pacific Islanders Became a Separate Classification from "Asian Americans": Professor David Bernstein previews his forthcoming book with an account of how OMB changed this ethnic category.

Helping Friends and Harming Enemies: Professor Eloise Pasachoff wrote a paper arguing that the Executive Branch should retain control over the administration of federal grants but that reforms should target abuses of the award and enforcement processes.

Upcoming Supreme Court Ruling in Second Amendment Case: Professor Nelson Lund told CBS News that the pending decision could focus solely on the New York statute at issue or give guidance about how far state and local governments may go with firearm regulations.

Unlawful Regulations and Federal Courts: Professor John C. Harrison argues in a forthcoming paper that no affirmative judicial act is required to cause an unlawful regulation to become nonbinding.

Dobbs and the Holdings of Roe and Casey: Professor Eric R. Claeys wrote an article giving a precise account of what the Supreme Court held in Roe and Casey.

Deep State Constitutionalism: Professor Randy E. Barnett offers a long review of Professor Adrian Vermeule's new book, Common Good Constitutionalism.

California Court Rules that Bees Qualify as "Fish": Professor Ilya Somin analyzes a recent court decision that applied a provision of the California Endangered Species Act to bees.

FTC Rulemaking Changes: J. Howard Beales III and Timothy J. Muris published a new report for the American Enterprise Institute arguing that new FTC rulemaking procedures cut against both the goals Congress had when it authorized FTC rulemaking and the development of high-quality rules.

Families, Schools, and Religious Freedom: Professor Helen M. Alvaré wrote an article arguing that courts have been wrong about the balance of authority between parents and schools regarding how to advance tolerance and health among students.

Judge Douglas Ginsburg on Dobbs: Tunku Varadarajan profiled Judge Ginsburg for the Wall Street Journal, who said overturning Roe would be technically correcting a constitutional aberration.

Twitter Should Follow the First Amendment: Jeffrey Rosen argued in the Atlantic that there are strong reasons to believe that the First Amendment should presumptively govern Twitter's content moderation policies.

Against Proposed SEC Climate Impact Disclosure Rule: Professor J.W. Verret submitted a comment to the SEC arguing that the proposal poses a serious threat to the independent and objective corporate reporting system and is unlikely to survive a legal challenge.

APSA Honors Andrew Rudalevige: The American Political Science Association chose By Executive Order: Bureaucratic Management and the Limits of Presidential Power to win this year’s Richard E. Neustadt Book Award for research and scholarship in the field of the American presidency. In 2020, Professor Rudalevige, a member of our advisory council, presented his Gray Center working paper on executive orders at our conference on White House regulatory oversight.
Sign Up Below to Receive Our Event Invitations >>

More Gray Center events coming soon!

September 9 (Conference): Antitrust and the Administrative State: New Issues in Regulation and the Rule of Law

Don't receive our email invitations in your inbox? Click below to sign up so we can notify you as soon as we open registration for each event.
This newsletter is edited by Mike Tyrrell, Communications Assistant & Jace Lington, Research Director