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The seventh annual Executive Branch Review Conference took place on May 8, 2019, at the Mayflower Hotel in Washington DC. The first panel discussed "How the Federal Government Litigates Cases."
The Trump administration has not often reversed its litigation approach completely from that of the prior administration. But the Trump administration made headlines last year when it refused to defend the constitutionality of the Affordable Care Act against a lawsuit brought by the State of Texas. Some commentators argued that this was a significant violation of the Department of Justice's “duty to defend" duly enacted laws. Others noted that the “duty to defend" is a relatively recent creation stemming from an Office of Legal Counsel opinion letter in 1980 that is seldom followed and has little if any basis in the Constitution.Does the President have a constitutionally mandated duty to defend duly enacted laws or government action, if he believes they are unconstitutional? If so, are there limits on that duty—i.e., do government attorneys have any additional obligations as servants of the people to consider the long term implications of the arguments they make in defense of government action, or should they simply try to win like private advocates? On the other hand, if the president does not have an obligation to defend laws he finds unconstitutional, should that effect how the court views the standing of third parties intervening to defend challenged laws or government actions that the president elects not to defend? This panel will dive into how the government does and should argue cases.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
Featuring:

Hon. Paul D. Clement, Partner, Kirkland & Ellis LLP
Hon. W. Neil Eggleston, Partner, Kirkland & Ellis LLP
Hon. Scott Keller, Partner, Baker Botts LLP
Mr. Gene C. Schaerr, Scaherr Jaffe LLP
Moderator: Mr. Jesse Panuccio, former Acting Associate Attorney General, U.S. Department of Justice
The seventh annual Executive Branch Review Conference took place on May 8, 2019, at the Mayflower Hotel in Washington DC. The first panel discussed "How the Federal Government Litigates Cases." The Trump administration has not often reversed its litigation approach completely from that of the prior administration. But the Trump administration made headlines last year when it refused to defend the constitutionality of the Affordable Care Act against a lawsuit brought by the State of Texas. Some commentators argued that this was a significant violation of the Department of Justice's “duty to defend" duly enacted laws. Others noted that the “duty to defend" is a relatively recent creation stemming from an Office of Legal Counsel opinion letter in 1980 that is seldom followed and has little if any basis in the Constitution.Does the President have a constitutionally mandated duty to defend duly enacted laws or government action, if he believes they are unconstitutional? If so, are there limits on that duty—i.e., do government attorneys have any additional obligations as servants of the people to consider the long term implications of the arguments they make in defense of government action, or should they simply try to win like private advocates? On the other hand, if the president does not have an obligation to defend laws he finds unconstitutional, should that effect how the court views the standing of third parties intervening to defend challenged laws or government actions that the president elects not to defend? This panel will dive into how the government does and should argue cases. * * * * * As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers. Featuring: Hon. Paul D. Clement, Partner, Kirkland & Ellis LLP Hon. W. Neil Eggleston, Partner, Kirkland & Ellis LLP Hon. Scott Keller, Partner, Baker Botts LLP Mr. Gene C. Schaerr, Scaherr Jaffe LLP Moderator: Mr. Jesse Panuccio, former Acting Associate Attorney General, U.S. Department of Justice read more read less

4 years ago #constitution, #litigation, #supreme court