FedSoc Forums The Federalist Society

John Ream, an engineer and owner of Trek Brewing Company which creates craft beers in Newark, Ohio, is suing the U.S. Department of Treasury over the regulations that prohibit distilling spirits and hard alcohols at home. Mr. Ream asserts that he would like to pursue the hobby of distilling spirits at home for his personal use but cannot because of federal legislation. The federal law, passed under the Commerce Clause of the Constitution, makes it a felony punishable by $10,000 in fines and five years in prison, to distill hard alcohol, even for personal use. Mr. Ream, represented by The Buckeye Institute, alleges that this prohibition is unconstitutional and exceeds the powers granted Congress by the Commerce Clause, since it seeks to regulate non-commercial activity.
The case was filed in the United States District Court for the Southern District of Ohio, early in 2024, and is currently making its way through the litigation process.
Join us for a litigation update on Ream v. U.S. Department of Treasury featuring Robert Alt, lead attorney at The Buckeye Institute representing Mr. Ream.
Featuring:

Robert Alt, President and CEO, The Buckeye Institute
(Moderator) Andrew Grossman, Partner, BakerHostetler LLP

In February 2022, a District of New Jersey court in United States v. Coburn compelled a private company to produce internal investigation materials to two of its former executives, who had been indicted by the U.S. Department of Justice ("DOJ") relating to an alleged foreign bribery scheme. This panel will explore the implications that this decision, and its legal reasoning, might have on attorneys and clients who are attempting to cooperate with DOJ as part of a self-disclosure strategy with the intent to earn "cooperation credit," while at the same time protecting the attorney-client and work product privileges emanating from internal investigations conducted on behalf of one's corporate client.
Featuring:

Hon. Don Cochran, Professor of Law, Belmont University College of Law
Hon. Mike Hurst, Partner, Phelps Dunbar LLP
Hon. John C. Richter, Partner, King & Spalding
(Moderator) Hon. David C. Joseph, United States District Court Judge, Western District of Louisiana

Generally, when Congress strips courts of jurisdiction, it does so by implementing broad, forward-looking, statutory bars that insulate agency decisions or foreclose appeal. In response to the protracted litigation surrounding construction and operation of the Mountain Valley Pipeline, Congress passed a unique statutory provision which (1) granted all required approvals for the pipeline to proceed and (2) stripped every court’s jurisdiction to review the pipeline’s permit approvals. Simultaneously, the amendment granted the United States Court of Appeals for the D.C. Circuit exclusive jurisdiction over all constitutional challenges to the jurisdiction stripping provision.

The case-specific impact of this legislation prompted much public concern and Supreme Court review. Petitioners unsuccessfully argued that Congress exceeded its constitutional authority by intervening to effect a specific outcome in a specific case Respondents prevailed on the counterargument that Congress merely made new underlying law without directing any decision of an Article III court. In this panel, academic commentators and amici from the case discussed the careful distinctions between amendments to substantive law and case-specific jurisdiction stripping, sharing insights on the separation-of-powers questions both behaviors raise.

In July of 2023, the Fifth Circuit reversed the district court's decision in Clarke v. CFTC, and remanded with instructions to enter a preliminary injunction against the Commodity Futures Trading Commission. The case is one concerning the CFTC's revocation of its "no-action letter" concerning PredictIt Market. PredictIt Market is an online marketplace for people to trade contracts predicting important political events, started as a research tool by Victoria University of Wellington in New Zealand. Before going into operation, PredictIt sought a "no-action letter" from the CFTC to operate in the US without registering under the Commodity Exchange Act as a designated contract market, which the CFTC issued in 2014.
However, in August 2022, the CFTC withdrew the letter and issued notice to PredictIt to cease operations within 6 months, which led to suit being filed by supporters of PredictIt. Questions included whether the revocation was arbitrary and capricious, whether the letter constituted "final action" on the part of the agency, and whether the plaintiffs had standing to sue.
Join us as a panel of experts discuss this interesting case.
Featuring:

Michael Edney, Partner, Hunton Andrews Kurth LLP
Hon. David Mason, General Counsel and Chief Compliance Officer, Aristotle International
Connor Raso, Deputy General Counsel, Public Company Accounting Oversight Board
(Moderator) Russ Ryan, Senior Litigation Counsel, New Civil Liberties Alliance

City of Grants Pass, Oregon v. Johnson concerns whether the sections of the Grants Pass Municipal Code which prohibit sleeping/camping on public property like parks and streets constitute "cruel and unusual punishment" as prohibited by the Eighth Amendment. The codes in question only impose civil penalties, which can, in certain circumstances develop into criminal penalties. The case parallels the 2018 case Martin v. City of Boise, in which the Ninth Circuit held that criminal penalties for sleeping/camping on public property violated the Eighth Amendment. Grants Pass raises the question of whether that extends to civil penalties.
The case was originally filed in 2018 by a group of individuals including Gloria Johnson affected by the Grants Pass Municipal Codes, and in 2022 the Ninth Circuit decided in favor of the group. The city appealed and it is set to be heard at the Supreme Court on Monday, April 22.
Supporters of the city of Grants Pass have argued that these codes and those like them are important for addressing issues of local governance and public health and safety. They contend having courts meddle in issues that pertain to local matters is dangerous and preempts local law enforcement and governments from serving their communities. Detractors claim that the codes endanger those who are involuntarily homeless and impose disproportionate punishment for a non-criminal status.
Join us for a Courthouse Steps preview on this interesting case at the intersection of Criminal Law, Federalism and Separation of Powers, and Property rights.
Featuring:

Mark Miller, Senior Attorney, Property Rights, Pacific Legal Foundation

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.
Snyder v. United States (April 15) - Whether section 18 U.S.C. § 666(a)(1)(B) criminalizes gratuities, i.e., payments in recognition of actions a state or local official has already taken or committed to take, without any quid pro quo agreement to take those actions.Chiaverini v. City of Napoleon (April 15) - Whether Fourth Amendment malicious-prosecution claims are governed by the charge-specific rule, under which a malicious prosecution claim can proceed as to a baseless criminal charge even if other charges brought alongside the baseless charge are supported by probable cause, or by the “any-crime” rule, under which probable cause for even one charge defeats a plaintiff’s malicious-prosecution claims as to every other charge, including those lacking probable cause.Fischer v. United States (April 16) - Whether the U.S. Court of Appeals for the District of Columbia Circuit erred in construing 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence.Thornell v. Jones. (April 17) - Whether the U.S. Court of Appeals for the 9th Circuit violated this court’s precedents by employing a flawed methodology for assessing prejudice under Strickland v. Washington when it disregarded the district court’s factual and credibility findings and excluded evidence in aggravation and the state’s rebuttal when it reversed the district court and granted habeas relief.City of Grants Pass v. Johnson (April 22) - Constitutional Law, First Amendment - It explores the standards required for a plaintiff alleging an arrest in retaliation for speech protected by the First Amendment, focusing on what evidence must be shown to prove such a claim, especially in light of exceptions outlined in precedent cases.Smith v. Spizzirri (April 22) - Whether Section 3 of the Federal Arbitration Act requires district courts to stay a lawsuit pending arbitration, or whether district courts have discretion to dismiss when all claims are subject to arbitration.Department of State v. Munoz (April 23) - (1) Whether a consular officer's refusal of a visa to a U.S. citizen's noncitizen spouse impinges upon a constitutionally protected interest of the citizen; and (2) whether, assuming that such a constitutional interest exists, notifying a visa applicant that he was deemed inadmissible under 8 U.S.C. § 1182(a)(3)(A)(ii) suffices to provide any process that is due.Starbucks Corp. v. McKinney (April 23) - Whether courts must evaluate the National Labor Relations Board’s requests for injunctions...