CALL held its September 2023 Business meeting at Maggiano’s on Wednesday, September 20, 2023. President Mandy Lee welcomed three new members to the meeting: Andrew Ellison, Kathleen Mance, and Rachel Tomei.
Meeting Speaker
Vice-President/President Elect Philip Johnson introduced our speaker, Steven D. Schwinn, professor of law at the University of Illinois Chicago School of Law, where he teaches constitutional law, comparative constitutional law, human rights, civil rights, and legal writing.
Prof. Schwinn writes regularly for the ABA Preview of United States Supreme Court Cases, and occasionally for other periodicals and blogs. He regularly works with high-school teachers and classes on constitutional and public-policy issues.
SCOTUS Trends & Cases
Prof. Schwinn’s talk focused on the U.S. Supreme Court’s trend attacking the administrative state and replacing the power of the administrative state with the Supreme Court. Prof. Schwinn noted that the Court’s attacks violate the separation of powers and take two forms:
- Attacks on the structure of agencies
- Attacks on the power of administrative agencies.
Prof. Schwinn explained that the structural attacks go after not only the structure of administrative agencies, but the funding of administrative agencies as well.
He explained the line of cases that upheld the constitutionality of an independent counsel by seven votes to one in Morrison v. Olson, 487 U.S. 654 (1988), but later chipped away at that ruling in the name of the unitary executive in Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010), Lucia v. Securities and Exchange Commission, No. 17-130 (Jun. 21, 2018), and Seila Law v. Consumer Financial Protection Bureau (CFPB), No. 19-7 (Jun. 29, 2020). The result of these decisions was to make it more difficult to insulate administrative agencies from political pressure.
Future Concerns
Schwinn noted that political pressure on agencies is an especially important issue because Former President Donald Trump released what was called “schedule F” which aimed to politicize the entire civil service. Prof. Schwinn argued that no one should want to undue 100 years of civil service reform in this way, regardless of their politics.
Prof. Schwinn explained that attacks on funding could be attacks on structure as well. He noted a case before the Court this term challenging the funding structure of the CFPB. The Fifth Circuit Court of Appeals invoked the idea of personal liberty when it “eviscerated” the CFPB’s funding structure. Prof. Schwinn asked those assembled to consider whose liberty was violated by the funding structure.
Prof. Schwinn then turned his attention to the Court’s attacks on the power of administrative agencies. He argued that the “major questions doctrine” was invented by the Court and first used in West Virginia v. Environmental Protection Agency, No. 20–1530 (June 30, 2022).
Finally, Prof. Schwinn argued that the Court is attacking the agencies’ ability to interpret their own regulations and the Court’s deference to the agencies. Prof. Schwinn noted that the Court might be willing to get rid of Auer deference and might even someday be willing to get rid of Chevron deference as well.
The professor asked a couple of quick follow-up questions.
Committee Reports
Following the talk, the Community Service committee reminded everyone about the beach clean-up that weekend.
Shari Berkowiz-Duff, chairperson of Continuing Education, announced that the Call for proposals for the 2024 AALL annual meeting is live. She also noted that the committee plans to hold a “Mini AALL” in June where CALL members can practice and workshop their programs for AALL.
Jamie Sommer, chairperson of Nominations and Elections, announced that her committee is seeking nominations for Vice-President/President Elect, Director, and Treasurer. Jamie emphasized that self-nomination is encouraged and all that is required is a love of CALL.
Sponsors & Prizes
The co-sponsors for this meeting were Trellis and TRG Screen.
Trellis representative Mike Swarz appeared remotely, but was unable to speak due to some technical difficulties. He shared a link to a 13-minute video about Trellis.
We were also joined in-person by Laura Weidig of TRG Screen, who discussed TRG Screen’s subscription management services.
Jim Fortas and Lindsey Carpino won the door prizes generously donated by Lexis.