Journal live at 7 00 eastern friday morning per join the discussion. Friday morning. On the discussion. With the next Supreme Court term scheduled to begin october 7, panel of legal experts review the courts most recent term and preview the next term. Speakers analyze the Court Rulings on gerrymandering, Citizenship Question on the senses, other major cases involving freespeech and prison sentencing. The American Political Science Association hosts this 90minute event. We will go ahead and get started. Im elizabeth slattery, legal fellow at the Heritage Foundation. The past panel on Supreme Court term. The Supreme Courts next oops, im sorry. The top one . There we go. The Supreme Courts term starts in a few weeks, but we are here to reflect on the past term. I submit the october term 2018 will most likely be remembered for Justice Brett kavanaughs confirmation hearings than for any particular case the court decided. It is too early to make sweeping statements about the impact of President Trumps nominees to the court, though the rapid destruction of america their opponents foresaw has yet to occur. Justices Brett Kavanaugh and neil gorsuch have, however lived , up to the chief justices declaration that we do not have obama judges or trump judges, bush edges or clinton judges. Like their predecessors, kavanaugh and gorsuch are their own men at times bucking , expectations of how a trump judge will vote. They are not cookiecutter republicans, but thoughtful jurists with independent views of the law. And we will explore some of that today. This panel will focus on the term thes of the past , most important cases such as the census citizenship case and the political gerrymandering case, and a few missed opportunities, like the cases involving the nondelegation doctrine and deference to a ministry of agencies. Enough from me. We are fortunate to have with us today four distinguished panelists. And if i devoted the time there many achievements and positions deserved that would easily take , about 90 minutes here. So i will keep their introductions extremely leave. Ted is a professor at Amherst College and founder and director of the James Wilson Institute on National Rights and the american founding. He has authored many books on politics, political philosophy and jurisprudence and his articles have appeared in professional journals as well as popular outlets including the wall street journal and national review. John eastman is the Henry Salvatori professor of law and director of the center for constitutional jurisprudence at the Founder School of law at chapman university. Hes also a senior fellow at the Claremont Institute. Before entering academia he served as a law clerk to Justice Clarence thomas and practice at the Law Firm Kirkland and ellis. Matthew frank is the director of the center on religion and constitution at the Witherspoon Institute and Professor Emeritus of Political Science at radford university. He is a visiting lecturer at redcliff. He has written a number of books and articles about the court and constitutional law and Anthony Peacock is a professor of Political Science and Department Head at utah state university. Hes also the director of the project on liberty and american constitutionalism at utah state. Tony has written numerous books and articles about the court, the federalist papers and voting rights. Each panelist will come up to the podium and make a presentation of about 15 minutes and then we will open it up to discussion and audience q a. With that im going to turn it , over to tony. Tony thank you, elizabeth. I will try to stay to my 15 minutes. Ive got my watch. Just let me know if i go over. I would like to thank joe and the Claremont Institute for inviting me to appear before this very distinguished panel , and thanks to all of you for showing up and making us feel like we might actually have something important to say. Appreciate that as well. We are going to comment on hopefully relatively Different Cases from this last term. Im going to comment primarily on the partisan gerrymandering case, and the new york case, the department versus new york, which was the citizen question case. Psa years theme at the a at the apsa is populism and privilege. Both have come together and appeals by legal academics, Public Interest law firms, Political Parties and others that have pleaded to have federal courts intervene in yet another political issue in the name of fairness. That issue in this case is political gerrymandering. In route versus common cause in the case that considered that issue, the court rejected such solicitations and ruled that partisan gerrymandering is were were not political questions that were beyond the reach of federal courts. During most of these panels that we have on the Supreme Court, we discussed how many important political issues the to dish area increasingly decides to take on, but this was a refreshing change where the court washed its hands of an issue, partisan gerrymandering. Partisan gerrymandering, that for the last roughly 45 years it has suggested it just might take up. In rucho versus common cause, the court concluded and i quote here, what the appellees and dissent seek is an unprecedented expansion of judicial power. The expansion of Judicial Authority would not be into just any area of controversy put into one of the most intensely partisan aspects of american political life. That intervention would be unlimited in scope and duration. It would recur over and over again around the country with each new round of districting for state as well as federal representatives. And the unelected and politically unaccountable branch of the federal government would decide the issue. This is another dispute in ruch o, who gets to decide these issues of partisan gerrymandering. In rucho, voters and other plaintiffs in North Carolina and maryland filed suit challenging their states post 2010 Congressional Redistricting maps as unconstitutional partisan gerrymanders. Discriminated against democrats where the maryland litigation claimed the Republican Redistricting map discriminated against republicans. Pointedourt in rucho out as far back as 1962 in the , reapportionment case baker versus carr, the Supreme Court held that a political question was a case that lacked a judicially discoverable and manageable standard for resolving the issue at hand. Last year in gill versus whitford, decided in june 2018, and where the plaintiffs from wisconsin were determined to lacked standing in other partisan gerrymandering case, the court emphasized that ever since baker, the unresolved question in partisan gerrymandering cases was whether such cases involved a legal right resolvable according to legal principles, or was instead a political question that had to be resolved elsewhere. Although in cases such as davis demere, the 1986 decision, the court suggested that cracking and packing voters from opposing parties into districts might raise a partisan gerrymandering claim as the gerrymandering claim. As the majority in rucho highlighted, even in vanda mayor the justices were so divided that no ever emerged in the case. There was a split in that case. Push back against nationwide or universal injections and restrictions on executive power, National Security and immigration related matters. The first case was , thate alitos decision the respondent in the cases who were deportable for certain specified crimes were not subject to the immigration and nationality. Because they were not arrested by immigration officials as soon as they were released from jail. The second case was the border wall interaction case, on whether trump could relocate to billion dollars of congress had earmarked for the pentagon to build a border wall. On obama appointed judge in the district of california had issued a nationwide injunction to stop trump from using the funds. The court stayed the injunction. The wall street journal put it, it disagreed with a policy of using the nea to get around congress to build a wall. Was that thenews high court was finally sending a message about the National Injunctions by nationwide judges. Injunctions are typically issued before the merits of the case are ever decided. Versus alloy, Justice Thomas invented the court in his concurring opinion to curtail the power of single District Court judges usually in deep who states, granting injunctions that apply nationwide. Thomas,g to justice nationwide injunctions have become increasingly common and were taking a toll on the federal system, preventing legal questions from percolating through courts, and making every Case International emergency for the courts and the executive branch. He wanted to question this in in concluding remarks that its concluding remarks in the hawaii case last year said it didnt have to take up the nationwide scope of injunctions. In that case thomas had suggested there was no article three or equitable jurisdiction for such injunctions and i think its possible that a majority on the court might be willing to reconsider that opinion and the necessity of whether to reassess these nationwide injunctions. In trump versus sierra club, both justices thomas and gorsuch would have dismissed the District Courts certification for a classwide injunctive relief and denied jurisdiction to even hear a claim in the case. I think both preamp and sierra club suggests there may be at least three other justices on the court that might be willing to reconsider nationwide injunctions at some point in the nottoodistant future. Let me finish up by saying there have been 37 nationwide injunctions. During the Trump Administration. Thats what Justice Thomas had highlighted had been a problem. This was a significant problem from the point of view of separation of powers and National Security issues in particular. Thank you. [applause] thank you very much. As a senior fellow at the Claremont Institute i am particularly delighted to be on this Supreme Court panel. 20 years ago we founded our litigation shop, the center for constitutional jurisprudence and almost from the beginning we have been pursuing as one of our main goals a pushback against the admin strata of state and a revival of the constitutional separation of powers. You might think i would be depressed because two of those key issues, a deference to agency interpretations, and a revival of the nondelegation doctrine were both up before the court this term and our side lost on both of those. But for from being depressed, i am actually quite ecstatic about how these cases come out and im going to talk about those. The first one deals with the nondelegation doctrine. Gundy versus United States. The nondelegation doctrine is tied to an obscure provision in the constitution, article one, section one, clause one of the constitution. The legislative powers herein granted our vested in congress. That means the lawmaking that goes on in this country has to be done by congress. It cant be delegated to private actors or unelected executive agencies. What congress did in the sex offender registration and notice act, punted to the attorney general on the issue of whether the act would apply retroactively to people who had already been convicted of sex crimes. But now, would have to register. And whether that would apply only to people convicted after the act was passed or would have retroactive effect. It was punted to the attorney general without any guiding principle whatsoever to decide whether he should extend the acts Registration Requirements retroactively or keep it only prospective. The theory on which the court has allowed vast delegations of lawmaking power to agencies since the 1930s, has always been, did the congress resolve the tough political questions and give the executive agency an intelligible principle that would control and guide the discretion as it filled in the details of the lawmaking power . The intelligible principle has turned out to be great in theory but completely ignored in fact. We have great swaths of lawmaking power that are delegated to agencies to further the Public Interest or to do things that are fair and reasonable. Barely any principal much less an intelligible one. This one didnt even have that questionse 4 presented in the petition for certiorari, the Court Granted it on only one question. Shall we revive the nondelegation doctrine or does this delegation of lawmaking power violate the nondelegation doctrine . The holding of the court was that the nondelegation doctrine really hasnt been revived. We ducked the issue. Its an odd lineup on the boat. Justice alito who clearly has favored in the past a revival of the nondelegation doctrine voted with the more liberal wing of the court to deny the nondelegation doctrine issue here. That made it a five to three decision. Justice cavanagh was recused from it because he had not yet been ceded by the time the case was argued in the first week of october. The case is not decided until the very last week of the courts term. It was one of the longest courts sitting on the docket. Ive written an article called Justice Alitos strategic vote because about what would have happened if he had voted with Neil Gorsuchs strong dissent characterizing whats at issue and whats at stake in this effort to revive the nondelegation doctrine. If alito had voted with gorsuch , a position he had previously indicated he fully supports, we would have had a 44 tie. Neither the majority opinion nor Justice Gorsuchs strong dissent would have seen the light of day. We would have only seen the we would have only seen the opinion of the Second Circuit is affirmed by an equally divided court. And we wouldnt have any hint of how seriously the revival of nondelegation doctrine that is underway was actually underway. Some have pointed out to me , including my good friend john malcolm at the Heritage Foundation that they could have easily set that case for reargument and then Brett Kavanaugh would have been able to participate and we may have had a different vote. So just politically i ask the question given all that went on in the confirmation hearings for Brett Kavanaugh, do we really want the revival of the nondelegation doctrine to be with Brett Kavanaugh being the deciding vote in his first term on an issue about a offender registration . Probably not. Sex offender registration . Probably not. So i think they punted on this. But the dynamics of the case were pretty obvious to everybody including the party in the case that was filing the petition for rehearing to have a reargument the next term. That will be heard at the first Court Conference in september so we will know a little bit more about whether it was the subject matter they wanted to duck the issue on or just the timing that they wanted to duck the issue on. Nevertheless, i count five votes for reviving a fairly stringent nondelegation doctrine and we havent had that in about 80 years. I think this is a very significant development. I want to play where it comes out and tied a little bit back to tonys comments. The nondelegation doctrine is central to the attack on President Trumps use of the National Emergencies act to build a wall. There is not much constraint or intelligible principle on the president s exercise of that delegated authority either. The president s authority might be a little stronger than the normal nondelegation case because it deals with Foreign Affairs and international matters. But the one thing that should be absolutely clear, if we do revive a nondelegation doctrine, it ought to be acrosstheboard. It ought not to be we didnt mean to delegate authority to this president even though we are fine with delegating authority to every other president. So those are the kind of issues we are going to be confronting next term very quickly on nondelegation issues. The second pushback case that we lost, but that we won is kaiser versus wilkie. Here was the issue on whether the socalled doctrine of our deference should be overruled. And the court held no, it shouldnt be. Justice kagan in defending starry decisive and the notion that we ought to keep our deference in place really modified rather dramatically the way the deference doctrine had come to be playing out in the lower courts. So in her