senate. senators are back tuesday for legislative business. now we take you live to the floor of the u.s. senate here on c-span2. the clerk will read a communication to the senate. the clerk: washington, d.c., september 23, 2022. to the senate: under the provisions of rule 1, paragraph 3, of the standing rules of the senate, i hereby appoint the honorable tina smith, a senator from the state of minnesota, to perform the duties of the chair. signed: patrick j. leahy, president pro tempore. the presiding officer: under the previous order, the senate stands adjourned until 3:00 p.m. on tuesday, september 27 or, on tuesday, september 27 or, >> the senate returns next tuesday with the funding deadline next friday senators are expected to work on the short-term spending bill to avoid a government shutdown. as always follow the u.s. senate live on c-span2. we now return to the cato institute panel on recent

supreme court cases. >> monetary damages remedies can be from the text of the constitution. this is a breakingun idea 1971 originated in the supreme court but where i agree historically the theme of accountability was really important and the mechanism ofor being able to sue officers was seen as an important mechanism of accountability. just a backup and constitutional accountability of the last decade and within the structure itself. who is supposed to appoint an officer and remove an officer from congress limit removal protections, we did not have cases like that this last term. we had this case which is

looking i can the public or mechanisms outside of the government help to keep accountability for government officers. elections are an important mechanism for accountability potentially impeachment and conviction, if you look historically impeachment has been successful fewer than two dozen times, conviction much fewer it is very hard even for congress to successfully impeach and convict a president who is charged with attacking the coequal branch physically so perhaps that's not as effective of a remedy as the framers of the founding generation would've thought. there was a lot of evidence at the time of ratification the folk signing onto the constitution approving the ratification that the mechanism of state common law was going to remain in place, a number of scholars have written about how

the common-law actions were to work, professor has written some, professing her in his scholarship. there was definitely an idea that folks are going to be accountable or be sued in the court tried to derive essentially they would bring a common-law action in the search of trespass and defense.re then the question could come upn in the course of arguing the defense whether it was constitutionally valid action or not. unfortunately over the years depending on your perspective congress has taken a lot of action most significantly to essentially preempt the ability

to be ableo to bring these kind of actions against officers there is a great need for this accountability to be necessary for the supreme court to approve the relief by going to the theme of who decides congress taken his liability away the court should not be able to grantor back, i think abram in the end was a relatively modest holding, the litigants represented by sarah harris in his majority opinion in the case on 11 occasions in the past 40 years the court has beaten back extensions of his release but the court did not want to buy on that question may because they did not think it was necessary

maybe it had a sense it was going to reverse other pressing areas and didn't do too much in one term, the case ends up being relatively modest it's an interesting factual pattern, a gentleman has an in near the u.s. canadian border he is known to smuggle unlawfully entering the country, drugs, he is unabashedly the body he drives around with the license plate with the word smuggler on the back of the, he surprisingly bribed border agents who he accuses of slamming him against his suv and retaliating when he reports this, is trying to get a ministry to release it does not work he brings the claim in this case makes it way to the supreme court because the ninth circuit as it has a tendency to view close by the court's most recent approach to the claims and grants his fourth amendment

excessive force and first amendment retaliation claim, basically on the denial of the first amendment retaliation all the justices were unified. five justices were in the majority say in the fourth amendment claim was an unlawful extension and it came up in a new factual scenario and justics gorsuch is in the middle saying we should get more reconsideration in the three justices are in defense on the denial of the first amendment claim, i think this case illustrates the events is not in the foreseeable future going to be a form of relief for litigants congress probably perhaps will have to or should to the extent there was not only claims against officers constitutionally permissible but

something constitutionally required because of the need for accountability in the previous history congress perhaps should be a place to i revisit this, certainly i think the court has demonstrated the doors are going to be close to the release in the future. if this is not going to be an avenue for reconsideration in the court moving forward how will accountability and structure continue to arise i think the current court is going to continue to take more and more cases with the more grand article two related constitutional accountability theme i think it's going to be cases that look more similar to the one that professor talked about today, i think in the near-term we're going to see reconsideration the court has to sicases this year dealing with e ministry of agencies, there

dealing with jurisdictional components that are not to get to the core of how administrative actors should be kept accountable by their supervisors or the president through removal but there are cases percolating in the lower courts that might press the modern court or the current court to make far-reaching decisions, we will see think the chief justice has been pretty capable of being able to stay and past president and try to reach the constitutional accountability that are narrowly in big precedents like humphreys executive are on the books but will see what happens, there is obviously the sec case making delegation and a ministry of adjudication reclaims. you all can tell me, as of last friday of the petition for

rehearing has not been acted on, i don't know if it's been acted on yet, that may have a rehearing before it goes to the supreme court but that could challenge or bring a marriage challenge to the removal protections for sec commissioners and the amount of discretion that commissioners have in terms of bringing proceedings in-house into court, another case that is percolating that could be interesting we will see how it goes we brought fairly recently walmart the sec had a complaint against walmart and warmer in the motion to dismiss has raise constitutional arguments that have been risen to the level of the wall street journal editorialized last week and they had high-profile litigants i tell you briefly what the arguments and claims are has the former head of the

trump administration and also the clerk teamed up with raman martinez the solicitor general and clerk at latham together with walmart on this motion to dismiss is a lot of big names i would think the case is going to move forward, the claim is trying to distinguish humphrey's executor completely from the modern ftc and say that humphrey's executor does not cover the current ftc because what the ftc is doing now is much more executive according to the court's recent decision of law and free enterprise fund and therefore the preservation of removal protection requires the quasijudicial action in the

1930s era ftc no longer can be reconciled with what the agency is doing. will see the ftc's approach has been to oppose the support in the case and i don't know how much firepower the case will have in the district court which obviously bound by precedent. i think in the years to come in these areas in the executive branch we will see a lot more play even though as of the last term the court has shownou more hesitance and reevaluating the balance of power between congress and the court itself. >> excellent. thank you very much jennifer. [applause] that was incredible you maintain your composure and delivering, very impressive, first i will remind online we were interviewer sending your questions so it can be sent to me right here and before we open up questions to the audience and people online i would like to sign the moderators privilege,

jennifer, federal court claims act god in, the westfall act precludes state courts which as i learned from your article that was a remedy of the founding era, is it only congress that can go about limiting the westfall act, i don't know here but are there any arguments to be made that thiss other absence to vindicate one's search to pursue a court having all these avenues effectively closed off that is to say other constitutional arguments against the westfalll act itself or are the courts out of it and it truly is up to the congress? >> congress could obviously revisit, i think somebody could perhaps bring a challenge to the

constitutionality, there hasn't been a strategy without yet, but that would be another way to go about but the court would agree or how that would be framed i think it's a good question but sure if they're knocking to grant relief in the constitutional requirement but you would have to make the showing i'm not sure a lot of scholarships have shown the practice of the lawsuits of this team, i think folks are just starting to make the argument for the release of the constitution requirement. there are folks on many points along the spectrum of scholarship whom i agree even

the center for the study of constitution regionalism in san diego not like michael ramsey has written a little bit about this. probably there would need to be more work done on the litigation side and study to make that strong claim. >> interesting. thank you for the answer. i will offer the opportunity to panelist, any cross questions you have for one another? along these lines, i guess i'll throw in a question, you had mentioned the vaccine mandate in the obvious major question could you speak to jonathan's criticism of the major questions doctrine concerning major from minor is a real methodological killer. >> it's a problem but the lies full of doctrines where the boundaries are fuzzy reasonable search and seizure and unreasonable like or many areas of law were something like

feasibility is standard. while i think the court can and should do more to explicate where this boundary between the major in the minor i think there are many cases where it's pretty clear whether it's major or not. i think osha vaccine mandate case is clear where it's major, the nationwide eviction moratorium decided last fall is pretty clear it was major and a vast range of government regulations and other lies where is pretty obviously minor. i recognize there is a long-standing debate between people who say everything in the law should be gathered andt governed by bright line rules versus people who say standards are more acceptable but even the biggest champion to bright line ofrules like scalia is still accepted standards in a wide range of situations that may be for the moment having the standard is the best we can do in this area. i think over time maybe theou court should fully provide the

nondelegation doctrine in more of these kinds of issues can be dealt with with nondelegation as opposed to more indirectly through major questions, the best should not be the enemy of the goods we have an imperfect and flawed and fuzzy major questions doctrine and that can be worked on and improved but it's still better how anything goes role where there's no limit and were relatively vague read to delegate vast amounts of power to the executives will disclosure. even if you trust the biden administration with this discretion view trust donald trump or the next republican president might be in if you trust the republicans you trust the democrats, i think the answer to these questions is going to be no and that's one reason why some sort of major questions doctrine is desirable and it should be left to thehy political process