Boyden Gray PLLC

When running for office, Kamala Harris promised she would “never tell you want kind of car you have to drive.” That promise just went out the window as the Biden-Harris US Environmental Protection Agency (EPA) greenlighted California Governor Gavin Newsom’s ban on gas cars and rules that would kill diesel trucks. Boyden Gray PLLC Partners Michael Buschbacher and James Conde break down what Biden, Harris, and Newsom are doing—and how the incoming Trump administration can stop it—in their latest The Wall Street Journal. According to Buschbacher and Conde, although federal law prohibits these kinds of state rules, “EPA decided to approve them anyway via waivers.” Waivers take years to roll back through the administrative process, and ordinary legislation to overturn this EV mandate would have to overcome the 60-vote filibuster in the Senate. But there’s a better option to overturn EPA’s abusive waiver and protect the majority of Americans in both parties who reject EV mandates using the Congressional Review Act. Take a read of Buschbacher and Conde’s full piece to find out exactly what President Trump and Congress must do as soon as possible after the inauguration. https://lnkd.in/gr8cNWwV

Boyden Gray PLLC Partner Michael Buschbacher recently appeared on Fox Business Network to break down California’s backdoor effort to impose an electric vehicle mandate on heavy duty trucks. Not only will all of the EV mandates nationwide cost our nation trillions of dollars over the next 50 years, but this particular move by California is also illegal. “The Clean Air Act says that if you don’t have permission from EPA, you—a state—can’t even attempt to enforce emissions standards for new vehicles. And that’s what you’ve got here, it’s this elaborate attempt to sort of have a back channel or insurance policy to make sure, regardless of what voters say, regardless of what the law says, the climate bureaucrats get their way and end the internal combustion engine.” Boyden Gray PLLC filed a lawsuit on behalf of trucking operators to end California’s illegal cartel arrangement mandating electrification. Check out Buschbacher’s full interview below.

NEW: The Fifth Circuit en banc rules that the SEC unlawfully approved a Nasdaq policy that forces corporate boards to adhere to rigid diversity quotas or explain in writing why they failed to do so. Boyden Gray PLLC represented the lead petitioner in this case, Alliance for Fair Board Recruitment. The court’s ruling is a major rebuke to the ESG movement and reins in regulatory overreach at the SEC. As Managing Partner Jonathan Berry told Andrew Ramonas writing for Bloomberg Law, the court’s decision has “vindicated fair treatment under the law.” The court ruled that the SEC is charged with ensuring stock exchanges comply with laws on the books – not enforcing identity politics mandates. From the ruling: “SEC did not explain how the Board Diversity Proposal has any connection with those purposes [of the Exchange Act].” Moreover, the court states that the history of the Exchange Act “makes clear the Act is primarily about limiting speculation, manipulation, and fraud, and removing barriers to exchange competition. There are other, ancillary purposes, but disclosure of any and all information is not among them.” “SEC may not approve even a disclosure rule unless it can establish the rule has some connection to an actual, enumerated purpose of the [Exchange] Act.” The court finds that Nasdaq’s diversity quota rule had no such connection. Read more about the ruling from Ramonas here: https://lnkd.in/gNakk6He And from the Wall Street Journal here: https://lnkd.in/g8t_rqe6

Boyden Gray PLLC is pleased to announce that the Supreme Court has granted review in FCC v. Consumers’ Research, a major case that could revitalize the Constitution’s nondelegation doctrine. The firm and the Texas Public Policy Foundation represent the challengers. In July, the en banc Fifth Circuit held that the FCC’s Universal Service Fund violates the nondelegation doctrine. The USF raises nearly $10 billion every year and is the most regressive tax in the country. The tax, which shows up on nearly every American’s monthly phone bill, climbs ever higher because the USF is in a death spiral: more demands are put on a dwindling contribution base. This ever-increasing tax is possible only because Congress never imposed meaningful limits on how much the FCC could raise for the USF. And, to make matters worse, the FCC has redelegated this taxing power to a private corporation full of telecom interest groups. The Constitution prohibits taxation without representation, yet a private, unelected body has been setting an ever-rising tax rate paid by millions of Americans. The Fifth Circuit correctly held that this “misbegotten tax” violates the Constitution. Congress itself must take responsibility for imposing taxes. Boyden Gray PLLC and Partner Trent McCotter look forward to presenting oral argument in this important case in Spring 2025.

ICYMI: Boyden Gray PLLC Partner Michael Buschbacher was recently on Fox Business Network discussing the Biden Administration’s harmful electric vehicle mandates. Last week, Buschbacher and co-counsel filed a brief with the Sixth Circuit Court of Appeals challenging the National Highway Traffic Safety Administration's (NHTSA) fuel economy standards, which are so strict that they require phasing out gas-powered cars and trucks and forcing the adoption of electric vehicles. The most obvious issue with these regulations, according to Buschbacher, is that “they are straightforward illegal…. It says in the statute you can’t consider electric vehicles when you’re setting standards, and they did, and that’s really harmful.” In addition to the legal issues, the rules will increase costs on the American people who have already faced significant inflation: “It’s paid for by everyone, by rural Americans, it is terrible for U.S. farmers and for the fuel industry and for ordinary consumers whose costs go up as a result.” Watch Buschbacher’s full interview below. https://lnkd.in/gq4TkMis

Yesterday, Boyden Gray PLLC’s Michael Buschbacher, Jimmy Conde, and co-counsel filed a brief with the U.S. Court of Appeals for the Sixth Circuit challenging the Biden Administration’s illegal attack on gas powered cars and trucks through the National Highway Traffic Safety Administration NHTSA. In June, NHTSA released a rule setting new standards governing the fuel economy of passenger cars, light trucks, and heavy-duty pickup trucks and vans. The NHTSA’s fuel economy standards are “so stringent that they can be met only by phasing out conventional internal-combustion-engine vehicles in favor of electric ones,” as the brief states. This rule is not only harmful, but it also far exceeds the authority granted to NHTSA—or any agency—by Congress. NHTSA “violates the first principles of administrative law: that agencies may not rewrite their governing statue to suite their own sense of how it should operate.” This is not the first example of executive overreach by the Biden Administration on electric vehicles. Earlier this year, the US Environmental Protection Agency (EPA) also issued a rule creating a de facto electric vehicle mandate by imposing increasingly strict limits on greenhouse gas emissions for light-, medium-, and heavy-duty vehicles. In addition to his work to vacate the NHTSA’s fuel economy rule, Boyden Gray PLLC’s Michael Buschbacher is lead counsel or co-lead counsel on ten other challenges to governmental attempts to force electrification, including two recently filed cases challenging EPA. With this latest brief, Boyden Gray PLLC continues to lead the charge against administrative overreach.

NEW from the National Lawyers Convention hosted by The Federalist Society – Boyden Gray PLLC Managing Partner Jonathan Berry breaks down the challenges facing our society in “The Age of Group Identity” and what the conservative legal movement can do about them. “Today I want to contend that the manufacture and management of group identities serves a more sinister purpose: to make our social environment legible to bureaucratic power,” Berry said. “In an effort to orchestrate socially desirable outcomes, bureaucrats, both public and private, develop very specific classification schemes to segment individuals into group identities… They exert unaccountable and arguably unlawful control over us all.” On the inevitability of class distinctions and social hierarchies: “The existence of some kind of elite is inevitable… The challenge is having a leadership cadre that focuses on actual virtue and not on virtue signaling.” On how some group identities can be a positive for our society: “I want to suggest that other sources of group identities that we haven't talked about are places that could be potentially healthier. Group identity that is grounded in in family, in place, in community... These are things that get disturbed and uprooted by our national credentialing system, which exists in many respects to strip mine human talent from across the country and concentrate it in like 5 hub cities.” You can watch the full event here for more insights from Berry and other panelists: https://lnkd.in/ddgTPw_R

Boyden Gray PLLC is pleased to announce the elevation of Jared Kelson to Partner. “Jared is brilliant, and his work is meticulous. Clients have long trusted him with their most important matters, so this was an easy decision,” said Boyden Gray Partner Trent McCotter. “Jared’s is the keenest legal mind I’ve ever been privileged to serve with,” added Managing Partner Jonathan Berry. “He always—always—gets it right. His strategic counsel to clients is unerring, and he has repeatedly taken ‘unwinnable’ cases to victory. He is a good friend and will be a wonderful partner.” Jared Kelson joined Boyden Gray as counsel in 2021. He worked previously as an attorney-adviser in the Office of Legal Counsel at the U.S. Department of Justice, where he received the Attorney General’s Award for Distinguished Service. He was also a law clerk to Judge Thomas B. Griffith of the U.S. Court of Appeals for the District of Columbia Circuit and to Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit. Jared holds a B.S. from Brigham Young University and a J.D. from the University of Virginia School of Law, where he received the Faculty Award for Academic Excellence after achieving the highest overall academic record in his graduating class.

Boyden Gray PLLC is pleased to announce the elevation of James Conde to Partner. “Jimmy is a uniquely gifted regulatory litigator,” said Boyden Gray Partner Michael Buschbacher. “His creativity, encyclopedic knowledge of the Clean Air Act, and good cheer have made our work incomparably more effective. "Jimmy shares our founder Boyden’s gift for putting his finger directly on the deepest issue underlying any controversy,” added Managing Partner Jonathan Berry. “He has enriched our growing practice immensely with his insight, precision, and courage. I am honored to call him my friend and delighted to call him my partner.” Jimmy Conde began his legal career as an associate with Boyden Gray PLLC in 2015. He clerked for Judge Douglas H. Ginsburg of the U.S. Court of Appeals for the D.C. Circuit and Judge David J. Porter of the U.S. Court of Appeals for the Third Circuit before returning to Boyden Gray as counsel in 2023. He holds a J.D., cum laude, from George Mason University’s Antonin Scalia Law School, and a B.A. in Political Theory and Philosophy from the Catholic University of America.

A new piece in The New Yorker features Boyden Gray PLLC Managing Partner Jonathan Berry discussing the importance of family policy in a post-Roe America. According to Berry, family policy is much bigger than so-called social issues—it also includes a focus on the economic foundations necessary for flourishing family life. “Our federal labor and employment agencies have an important role to play by protecting workers, setting boundaries for the healthy functioning of labor markets, and ultimately encouraging wages and conditions for jobs that can support a family,” Berry told the New Yorker’s Emma Green. The pro-life movement cannot ignore the role that fathers play. Their marriageability and employment prospects often inform a woman’s decision to have a child and form a family. As Berry put it, “If you care about life issues, you ought to care about the supply of marriageable men,” an issue that is “affected very heavily by education policy and trade policy and all kinds of other public policies that you don’t think of, conventionally, as social policy.” Read the full piece on the future of the pro-life movement and family policy below. https://lnkd.in/gPREJ3MX